What sort of European Commission does the EU need?

What sort of European Commission does the EU need?

John Temple and Eamonn Gallagher argue that it would be a mistake to have fewer Commissioners that Member States, leaving some Member States “unrepresented”. They insist that only an independent and fully representative Commission can protect the future of the “Community method”.

“Institutions are in trouble when their critics are unloving and their lovers are uncritical”(George Kennan)

At the Inter-Governmental Conference in Nice in 2000, it was agreed that the number of members of the European Commission should be reduced below the number of States when the European Union has 27 Member States. This paper argues that this clause was unwise, and should not be put into effect.

There is a link between the Commission’s role as the single proposer of European Community measures and majority voting. The founders of the Community were convinced that if a veto could be exercised on all issues by each Member State, the Community would not work.

So majority voting was needed. To make sure that the results would be acceptable even to States which were out-voted, the Commission was given the duty of making proposals in the interests of the whole Community. These proposals, even when they could be adopted by a majority, could not be amended without unanimity. To make sure that only proposals in the interests of all were considered, the Commission was given the sole right to make proposals, although all new policy measures must be adopted by the Council (and for some measures also the Parliament), not by the Commission. To make sure that the Commission would act in the interests of all, the Commission’s independence and its composition, representing the whole Community, were guaranteed. All this was, and is, needed to make majority voting acceptable.

However, in recent years some politicians, especially in the large Member States, have departed from the original concept, either because they have forgotten the reasons for it, or for short-term convenience, personal prestige, or national aggrandisement. As Francis Bacon wrote, “Men more frequently need to be reminded than to be informed”. The most serious departure from the original set of safeguards for minority interests is the suggestion, written into the Nice Treaty, that when the number of Member States reaches 27 the Commission will be reduced to less than the number of Member States – that is, the Commission will, for the first time, be less than fully representative.

It would be a serious mistake to have fewer Commissioners than Member States, leaving some Member States “unrepresented” on the Commission, when more than a dozen States are eligible to obtain membership, and the Union is near the moment of entry of ten of them.

None of the arguments about the internal procedures of the Commission, portfolios of unequal importance, or Commissioners’ collective responsibility, is important enough to justify a change with such serious implications for all the Member States, present and future.

Public demand for transparency

Many of the public in Member States criticise the European Union because they do not understand why it was designed as it was. The reasons for the unique feature of the Union, the role of the Commission in proposing measures to the Parliament and Council, are explained here. The other reason why there is public criticism of the EU is that all the most important decisions are taken by the Council, which meets in secret. The result is that Council decisions are not subject to parliamentary scrutiny. It is the secret discussions in the Council which give rise to the “democratic deficit”. The real democratic deficit in the EU is that executive power has increased and parliamentary power decreased because Governments meet behind close d doors and make agreements on both constitutional matters and on legislation.

The deficit in transparency and accountability in the EU does not lie with the Commission, but with the Council. The Ministers present are nominees of their governments: they are not chosen by their national parliaments and they are not answerable to their national parliaments or to the European Parliament. Their meetings, even when they discuss constitutional changes and legislation directly applicable to Member States and their citizens, are not open to the public or the media. What may have been appropriate in the early years of the Community is no longer appropriate in a Union which touches on so many areas of public life. The problems caused by the secrecy of the Council could be solved at any time, without an amendment of the Treaties, by the Council simply opening its meetings. Until this is done, however, all kinds of decisions emerge from these secret conclaves – some good, some bad, and some inexplicable.

The decision of the Nice IGC, still subject to ratification, to reduce the number of Commissioners in future to below the number of Member States is one of the inexplicable ones. It was not part of the reasonable bargain by which the large Member States gave up their right to nominate a second Commissioner in return for an increase in their weighted votes in the Council.

Some provisions of the Nice Treaty are necessary for enlargement. This clause is not. The reduction in the number of Commissioners, which would become part of EU law if the Nice Treaty is ratified, would unreasonably harm the legitimate expectations of the applicant Member States. It would be a serious political imposition on them at this late stage in their accession negotiations, almost an act of bad faith, as well as damaging to the basic Community structure.

A representative Commission – a question for the Convention

The Convention to consider the future framework of the European Union, set up in Laeken, creates an opportunity to correct this clause in the Nice Treaty. The Convention could consider the issue at an early stage in its discussions, so as to avoid delaying the enlargement timetable.

In fact, all the Member States and applicant States will need to know whether the Commission will be fully representative (and whether it will have the sole right of initiative) before they can satisfactorily discuss the other questions which the Convention will have to consider. For example, it would be easier to get agreement to move from unanimity to majority voting on any issue if it was clear in advance that the measure in question would be proposed only by a fully representative Commission. There are many issues on which States would find it easier to agree if they were sure that they would have a nominee on the Commission at all times. So this is a question which must be discussed and answered definitively at an early stage in the Convention.

Public opinion in the existing Member States, even those which have already ratified the Nice Treaty without consulting their electorates, may also be more strongly opposed to this feature of the Treaty than has yet been realised. If the Convention agreed that there should never be fewer Commissioners than Member States, as we believe it should, that would remove the greatest single objection to the Nice Treaty, by eliminating the only clause in it which, if implemented, would be a serious and probably irrevocable retrograde step for the European Union.

Agreement to do this should make the Nice Treaty acceptable in any country, including the proposed new Member States, in which public opinion will also have to be reasonably satisfied with the results of Nice, and with the future EU Treaties, in particular if referenda need to be held. It would be unfortunate if an ill-considered decision of the Inter-Governmental Conference was to create difficulties in any State. It would be still more unfortunate if such an ill-considered decision made it substantially more difficult to reach agreement on the other changes which will undoubtedly be necessary to create a lasting and satisfactory constitution for the European Union.

Majority voting is essential

The fundamental aim of the European Community (now Union) was and is to make peace in Europe permanent. This was to be accomplished primarily through economic and social integration. As this could not be done in one step, the Community Treaties were limited to providing a framework, a basis for measures to be adopted over many years, not a static set of rules.

The founders of the Community knew, from experience, that if every Member State had a veto on everything, little would be done. Unanimity on every issue was not, therefore, a viable option. The Treaty of Rome, consequently, prescribed what had never been done before – majority voting in an international organisation on an open-ended range of important substantive issues. It was necessary to make certain that this was acceptable in principle when the Community was set up, and that it would be accepted in practice when States were outvoted on questions which they considered important. A safeguard of some kind was needed.

This safeguard was found in a device which is well known in mediation theory. An impartial mediator body, which itself decides nothing, has the task of drawing up proposals which reconcile, as far as possible, the interests of the majority with the interests of whoever may be in a minority on any particular issue. If this system is to work, there must be two rules. The first is that the parties may only discuss proposals which have been made by the mediator and not discuss competing proposals made by others: the second is that, although the mediator’s proposal may be adopted by a majority, it may be amended only by the mediator or by a unanimous decision of the parties.

This device makes majority voting acceptable even when the interests of the parties differ substantially, provided that the mediator is known to make proposals in the interests of all. The mediator body must be seen to be impartial; it must be equally independent of all of the interested parties. In addition, in a multinational environment, where the confidence of all parties must be gained and retained, the mediator body should be and should be seen to be representative of all the parties so that the special problems of each party can be taken into account. If the parties were not sure that the mediator body is fully independent, impartial and representative, the mediator’s proposals risk not being considered to be a fair basis for discussion. Sooner or later the mediator body will be accused of favouritism when it makes a proposal, which, as is inevitable, seems to treat some parties better than others.

The Commission is a policy-proposing think-tank, NOT an executive

To respond to these requirements and to justify decision-making by a majority, the European Commission was created as an independent Institution – not a secretariat. Under the Treaty it was given a status that was and is unique in international law and practice. Only the Commission could make proposals on matters within the Community’s competence and these could only be amended by the Commission or by a unanimous decision of the Member States.

To ensure their independence, the members of the Commission are appointed by common accord of the Governments of the Member States but can only be removed as a body, not individually, by a separate Institution, the European Parliament. Members are required to be completely independent in the performance of their duties and must neither seek nor take instructions from any Government – nor may a Member State seek to influence the members of the Commission.

This is the Communit y method. It now applies fully only to the first pillar. The second pillar, foreign and security policy, is intergovernmental; the third pillar, justice and home affairs, is mixed. Majority voting is currently inconceivable in the second pillar, and rare in the third pillar.

These principles need to be re-stated, because so many people seem to have forgotten them. Even the Commission itself sometimes seems to have forgotten them. In the Commission’s White Paper on European governance, under the heading “What is the Community method?” the Commission says that it “alone makes legislative and policy proposals”, but does not say why, and says that its independence “strengthens its ability to execute policy”, without mentioning that its independence is essential for its far more important duty – to propose policy impartially. An Institution which does not know its own raison d’être may cease to be sure that it has one.

The threat from the European Parliament

The European Parliament is always tempted to ignore these principles. Because proposals for Community measures may be made only by the policy-proposing mediator Institution, the Commission, the Commission’s role necessarily involves a serious limitation on what a parliament usually considers its role to be. The European Parliament is a Parliament which cannot initiate legislation. If it could, it would act by majority and the same majority could both propose and adopt a measure (with the Council). A minority could be outvoted in both Parliament and Council, and the safeguard now provided under the Treaties by the Commission’s carefully designed and unique role would cease to exist.

This can be frustrating for members of the European Parliament, and is all the more aggravating if they do not understand or are reluctant to accept the reason why the European structure is quite unlike national constitutions in this respect. Nevertheless, such an understanding is vital or the Parliament, which can more easily extend its powers at the expense of the Commission than of the Council, may inadvertently but seriously damage the European Union.  

An often unremarked advantage of the Community system is that it protects against both excessive amounts of EU legislation and legislation prompted by special interests. It also enables the Parliament to avoid spending undue time discussing measures drafted by pressure groups and their lobbyists.

How representative should the Commission be?

The founding Treaty provides that the Commission must include at least one national of each of the Member States. That makes the Commission representative of them all, but it is argued that when the number of member States increases there will be too many Commissioners. The solution proposed in the Treaty of Nice is that the number of Commissioners should be less than 27 when the number of Member States increases to that figure, which it certainly will in the next few years, and that they should be nominated in some form of rotation. In theory, all Member States are to be treated equally, so that Germany’s nominee would be a member of the Commission for the same proportion of time as Luxembourg’s; in addition, each Commission must as far as possible “reflect” the Community as a whole.

This solution, whatever details may be suggested, is open to serious criticism. It would make the Commission, for the first time, not fully representative. The Commission could not claim to speak for the whole European Union. At any one time there would be several Member States, which, unlike others, would not be “represented” in any sense on the Commission. They could be unwilling to accept what the Commission has proposed or, more seriously, what the Commission may have done within the limits of the powers which the Commission itself is authorised to exercise.

The Commission has two quite distinct kinds of p owers. Apart from its principal role as the independent and sole policy-proposing Institution, the founders of the Community realised that the same body could also be given tasks that could not be undertaken by the Council or the Parliament. These included: powers to negotiate international agreements when it is authorised to do so on the basis of Directives approved by the Council; decisions on the compatibility with Community law of state aids to industry and state measures concerning state-owned companies; decisions on other cases under Community competition law; and bringing Member States before the Court of Justice if they failed to fulfil their obligations under the Treaties.

To exercise these legal powers, the Commission must be impartial and independent, but not necessarily as “representative” as in connection with its policy-proposing role. Indeed, there are arguments for saying that these decision-making and court-related powers should be exercised by an institution separate from the policy-proposing body, as different skills and procedures are involved. But there is no plan to take these powers away from the Commission.

The threat from large Member States

It remains essential that a Member State, in particular a large Member State – because large Member States resent and have already criticised the Commission’s powers over state aids – must not be tempted to refuse to accept e.g. a Commission decision prohibiting a state aid on the ground that it is not “represented” on the Commission. Since the risk cannot be eliminated and since it is a serious one, the plan in the Nice Treaty that there should be fewer Commissioners than Member States is ill-considered and unfortunate, not simply in relation to the Commission’s policy-proposing role but also in relation to its decision-making and litigating powers under the Treaties.

Nevertheless, such a proposal has emerged in the Nice Treaty. The reason for this may be that neither the Commission nor the smaller Member States were sufficiently aware of the need for the Commission to be fully representative of the Union at all times. They were unduly influenced by the arguments that if there were 27 Commissioners, the Commission’s internal procedures would have to be altered, collective responsibility would be reduced and there might not be enough portfolios of equal importance for all its members. These are grossly inadequate bureaucratic reasons for a fundamental change in the protection given by the Commission to the interests of the Union as a whole and to minorities. Unfortunately, the Commission itself was unwise enough to say that one Commissioner per Member State is less important than its internal protocol.

Efficiency and the European Commission

It is argued by those who wish to reduce the size of the Commission that:

1) a smaller Commission is more efficient than a larger one
2) there would not be a sufficient number of worthwhile portfolios to go round in a large Commission
3) a large Commission would necessarily lead to a system of “senior” and “junior” members.

This implicitly assumes that the Commission is only an executive, a kind of board of management limited to secretarial and executive functions. It entirely disregards the principal role of the Commission as a think-tank, its role in taking competition decisions and bringing Member States to Court, and its role in external negotiations. The Commission must at all times be equally independent of all the Member States, and must be fully representative of all of them if it is to fulfil properly its central roles of preparing measures in the interests of the whole Community, of safeguarding the Treaties and of representing the Community. These are much more important than its “executive” role.

With an increasing number of tasks arising out of Pillar 3 (Justice and Home Affairs), more Com missioners are needed now than in the past. The Commission should be much more involved in Pillar 2 (Foreign and Security Policy). Commissioners need to spend much more time explaining EU policies and proposals to national parliaments. Portfolios are never of the same weight, whether in government or in business, and no harm is done by recognising this. In any case, the portfolio is not the Commissioner’s most important responsibility. Consequently, the portfolio argument is no more convincing than the argument about efficiency.

The Nice Treaty itself answers the question of the internal organisation of the Commission, by authorising the Commission to appoint Vice-Presidents. Provided that there is equal and regular rotation of the Vice-Presidencies, and that all important decisions are taken in plenary where the members have equality, the Commission should be perfectly able to organise itself appropriately. The Commission’s internal procedures should not override the interests of all Member States.

The political risks of downsizing the Commission

The standing of the Commission is a permanent functional necessity in the Community. A proposal to make the system as a whole less responsive to national sensibilities is irrational.

If there were 21 Commissioners and 28 Member States, each Member State would be without a nominee at the Commission for 25% of the time. If there were more than 28 Member States, and fewer Commissioners, the period of absence from membership would, of course, be greater. In these circumstances, any Member State which does not have a nominee on the Commission could always claim that the Commission was not representative of the interests of the whole Community.

When two large Member States are at the same time without nominees (as would be unavoidable when there are more than five large Member States) it would be even easier to claim that the Commission was insufficiently representative of the whole Community. Of course, when there are 27 or more Member States and 21 or fewer Commissioners, there will be 6 or more absentees when new legislation affecting all of the Union is being drafted. A State cannot feel the same confidence in a Commission in which it has no nominee, however many other Commissioners there are. It does not need to nominate a number of Commissioners corresponding to its share of the population of the EU.

It is inconceivable that the authority of the Commission, already weakened by the co-decision procedure, by the inter-governmentalism in pillars 2 and 3 and by the ambiguity of its role in the area of “enhanced cooperation”, not to mention the debacle of the mass resignation of the Commissioners in March 1999, could be maintained, much less restored, under such a system.

Nice Treaty and Enlargement

The Nice treaty was negotiated in the context of enlargement. This gave a seemingly plausible excuse for arguing that enlargement itself causes the problem by adding to the number of Commissioners. In fact, there are compelling reasons for arguing that a fully representative Commission is even more necessary in a Community enlarged by 10 new and, by definition, inexperienced Member States.

The arguments include:

• a substantially enlarged Community would be much less homogenous than the existing one and its Member States’ interests will, therefore, be more likely to diverge;
• most of the expected new Member States are smaller ones with few votes in the Council and few MEPs and, therefore, are in greater need of the safeguards provided by a fully representative Commission than are larger Member States;
• the new Member States are acutely conscious of the value and importance of their recently regained national independence. It would be difficult to convince them that being deprived of the right to nominate a member of the Commission at all times, as a condition o f entry to the Union, a right exercised by all previous Member States to date, could benefit them or the Union;
• for every Member State (including existing Member States but especially for new Member States) there should be a Commissioner of the nationality in question who can explain what the Community is about.

The democratic legitimacy of the Institutions

The Commissioners are nominated by democratically elected Governments and approved by the democratically elected European Parliament. The Commission is not itself, therefore, directly elected. It could hardly be; if the constituencies were the Member States it would be impossible to prevent candidates from campaigning partly by claiming that they would defend the interests of their Member State, which is precisely what they should not do. The same would apply if Commissioners were to be elected by national Parliaments. If, however, the constituency were Union-wide, few candidates would be sufficiently broadly known.

The whole point of the Commission is that it acts in the interests of the Union as a whole, and its members must, therefore, be as free as possible from outside influences, including those of their own Member States. Commissioners are approved collectively as a group by the European Parliament. The President of the Commission is individually approved by the Parliament. In addition, under the Nice Treaty, the President is given power to require the resignation of a member of the Commission without having to give any reason (this power now exists in practice and hardly needs Treaty underpinning). He could, but only if he so wished, require the resignation of a member of the Commission if the Parliament called on him to do so.

The Parliament may vote to dismiss the whole Commission but has no power to ask for the removal of an individual Commissioner for incapacity or misconduct. But it is important that individual Commissioners should not take the blame for unpopular decisions taken by the whole Commission on e.g. state aids; it cannot be misconduct to enforce Community rules. So the Parliament already has considerable powers over the Commission. It is not clear that it could be given more powers without taking away the independence of the Commission and the safeguards for the Union’s interest as a whole which that independence is intended to provide.

The integrity of the system is now protected by providing that the Commission is appointed in one way, by the Member States in association with the Parliament, and may only be removed in another, by the Parliament removing the Commission as a whole. Nevertheless, the standing and independence of the Commission remain under threat from the Parliament and from Intergovernmental Conferences, due to allegations of a democratic deficit.

The Parliament has come to regard the Commission as a rival for power, not as an ally; it would willingly increase its powers at the expense of the Commission without, apparently, understanding the reasons for the existing institutional structure or perhaps being unwilling to accept it. Members of the European Parliament may need to be reminded that the larger Member States could dominate the Union if the Commission’s powers are eroded.

Intergovernmental Conferences create repeated opportunities to chip away at the structure of the Union. A succession of efforts in this direction, at Maastricht, Amsterdam and now at Nice should leave little doubt that this is intentional policy on the part of some larger Member States.

There is no democratic deficit with regard to the Commission. In its policy-framing role, the Commission’s proposals are adopted only if the Parliament and the Council so decide. At the same time, only the Commission’s sole right to make legislative proposals can provide a safeguard for minority interests, which is essential in a multinational Union to make majority voting acceptable to all the Member States. The independence of the Commission in framing policy is more important than giving it a stronger democratic mandate. These two things are not compatible: one has to choose.

Making the Council accountable to national parliaments 

Attention should, instead, be turned to the Council. If one disregards the fact that there are far too many different legislative procedures, the Community legislative process is basically simple: the Commission proposes, the Parliament considers, gives its opinion, and the Council decides, in many policy areas by co-decision with the Parliament, but Council approval is always necessary. In other words, there is a two-chamber legislature, consisting of the Parliament and the Council. But there are several reasons why it is not seen like that.

These reasons mainly concern the Council:

• Firstly, the Council, even when it is considering legislation, meets in secret: it acts as a standing diplomatic conference, not as an open legislative chamber. It has not adjusted to its legislative role and shows little sign of doing so. When there are 27 or more Member States, it will be even more a legislature than it is already.
• Secondly, the Council is not democratically elected: contrary to the principle of separation of powers, it is composed of representatives of the executives of Member States, not of their legislatures, and the Council is not subject to the democratic control of either the European Parliament or the national Parliaments.

The first reason could be altered relatively easily, if Governments were willing to allow their negotiating positions to be known to their electorates. They would then have to take open responsibility of voting for measures for which they can now blame the Commission, or the other governments. Unfortunately, the Commission’s White Paper on European governance, although it advocates “opening up the policy-making process” and “greater openness, accountability and responsibility for all those involved”, does not say that Council discussions should be open. In other words, the Commission failed to take the opportunity to say where the main problem lies, in spite of the fact that it recognised “that the Union has moved from a diplomatic to a democratic process”.

The second problem is more difficult, as the Governments of the Member States are reluctant to give up their privileges in the Council, whose secrecy keeps both the public and national Parliaments uninformed until the deal-making has been done.

The bad effects of secret Council discussions

Politicians who have proposed a “second chamber” have also suggested that the Council should become some kind of “European Government”, but that idea is both too vague and too radical to be dealt with in this paper. (A real “European Government” would be elected by a European Parliament, and not merely composed of representatives of national Governments not subject to democratic control. But we are a long way away from that). Indeed, one of the arguments against open discussions in the Council is that national Parliaments would become too involved in the Council dis cussions, and would give instructions which would make it more difficult to reach agreement. This is an argument for secret diplomacy and paternalistic inter-governmentalism. It is the main reason why Council discussions are kept secret. It is also the main reason why the Community institutions are regarded as “faceless”.

The secrecy of Council discussions, apart from being contrary to the principle of open government, has several unfortunate effects:

• it lessens the democratic legitimacy of the Council and its decisions and their acceptability;
• it makes the European Institutions seem remote from the citizen;
• it enables national Governments to blame the Commission or one another for decisions for which they themselves have voted;
• it makes it difficult for the public to understand how the Institutions work;
• it makes the public regard European Union affairs as an incomprehensible diplomatic negotiation rather than an understandable legislative process;
• it leads to package deals, by which unrelated concessions are exchanged and decisions made which are not based on their intrinsic merits;
• it makes Governments unaccountable, because national Parliaments do not know what their Governments are doing until after the event, and not always even then;
• it enables Ministers to come out of Council meetings and “spin” what has been said and what they have done.

The last points are particularly important because they prevent national Parliaments from effectively examining what the Community Institutions are doing, making the results less understandable and less acceptable. Of course some decisions of the Council, on negotiating instructions and other executive matters, need to be confidential. But there is no need for legislative and above all constitutional discussions to be confidential, and they should not be.

The absence of democratic legitimacy of the Council is serious in areas in which there is qualified majority voting in the Council allied to co-decision powers of the Parliament. The secrecy of Council discussions is particularly undesirable where the Council deliberates on suggestions not made by the Commission, and where the Council is effectively not subject to democratic control at all. Democracy requires public deliberation, not secret bargains.

The next Intergovernmental Conference

There are several important institutional questions, which need to be resolved in any serious consideration of the Community¹s institutional structure, an examination that is intended to take place before the next IGC.

The role of the Commission is not on the agenda, as it clearly should be. Neither the Member States nor the Commission itself seem to realise that the unique role of the Commission, as provided by the original Treaties, has already been eroded and will be weakened still more if the Nice proposals for a rotating Commission are carried out.

The need to correct the Nice Treaty

The proposal to have a Commission with fewer Commissioners than Member States is much the most important defect in the Nice Treaty. If nothing is done, its effect would be permanent after the Nice Treaty is ratified. Now that the Laeken summit has set up a Convention, it should examine this question. Given its fundamental importance for the aspirant countries as well as for the present Member States, the existing right of each Member State to nominate a member of the Commission should be maintained.

If, on reflection, it is agreed that this provision of the Nice Treaty should be discarded to maintain the institutional balance of the EU, a serious breach in the system will have been averted.

There is no good reason why this should interfere with the current calendar for enlargement if the Convention gives it priority in its programme. The Convention should be able to discuss the cr ucial importance of the Commission early on, and the need for it to be fully representative of the whole Union at all times. The Convention could therefore conclude that the clause in the Nice Treaty allowing fewer Commissioners than Member States should not be implemented, and Member States could agree that it should be taken out of the Treaties at the next opportunity.

This agreement would remove the greatest single objection to the Nice Treaty, and the only clause in it which, if implemented, would be a serious, and probably irrevocable, retrograde step for the European Union as a whole. Once the Convention agreed on this, a way forward to enlargement on a satisfactory and lasting basis would be open. The Treaty of Nice would be easier to defend in all the countries, including both present and future Member States, in which public opinion will need to be reasonably satisfied with the EU Treaties.

One should not underestimate the probability that public opinion in some of the existing Member States, even in those which have already ratified the Nice Treaty without consulting their electorates, will be opposed to this feature of the Treaty. It would be unfortunate if an ill-considered decision in Nice was to create difficulties for the Union in future.

In fact, all Member States will need to know whether or not the Commission will continue to be fully representative, and whether it will have the sole right to propose Union measures, before they can usefully discuss many of the other questions which the Convention will have to consider. It would be easier to get agreement to move from unanimous voting to majority voting if it had first been agreed that the measures in question would always be proposed by a fully representative Commission. If States knew that they will always have a nominee on the Commission, they will find it easier to agree on many issues which would otherwise prove difficult or impossible to settle, except on the basis of unanimity, with all its inconvenience. It would be very unfortunate if one ill-considered decision in Nice made it substantially more difficult to reach agreement on the other changes which will undoubtedly be necessary to create a lasting and satisfactory constitution for the European Union.

The Convention will lead, and is intended to lead, to public discussion of the future EU constitution in all Member States, and in the new Member States. This means that, for the first time, the public will have clear views on issues discussed in the Convention before they are written into a new Treaty by a new IGC. It will therefore be essential for all the governments involved to be sure that the new Treaty, and the new EU constitution which it will lead to, will be acceptable in all respects to their peoples, whether or not they intend to have referenda to approve it.

It would certainly be desirable to have the new EU constitution approved by referenda in as many Member States as possible, in due course. For this purpose it will be essential to avoid including in the future constitution any provision to which the peoples of many Member States could reasonably and legitimately object. The clause allowing fewer Commissioners than Member States is the provision which is most likely to be objected to. It may be said that this clause was agreed in Nice, and that the issue should not be reopened. But the issue was only partially dealt with in Nice, because the whole question of whether any satisfactory system of rotation could be devised was left unresolved.

Whether they like it or not, all Member States are forced to come back to that question. In fact, it seems impossible to imagine any workable system of rotation of Commissioners which would both maintain formal equality between Member States and ensure an adequately representative Commission. A cut-down version of the Commission purporting to be “reflective” of the EU as a whole is a contradiction in terms. Inevitably, each Co mmission would be more representative of some States, and less representative of others. It is hard to think of any scheme which would be more certain to give rise to continuing controversy and resentment, and to make both Commission proposals for EU measures and its legally binding decisions on other issues unacceptable to one State or another.

The serious consequences of this clause in the Nice Treaty are only beginning to be generally understood. The clause was, perhaps, the least considered and most unwise provision, in relation to its importance and its consequences, that has ever been written into a EU Treaty.

In a Union of 27 Member States or more it will be inevitable that at times every Member State, in particular smaller Member States, will be outvoted and will feel that they have too little influence over decisions taken by the Union Institutions.

A fully representative Commission, with the exclusive right to propose measures designed in the interests of all Member States, is the only way in which smaller Member States can be reassured and majority voting can continue to be acceptable in an enlarged Union. It is, therefore, more than a “check and balance”: it is an essential element, one of the few genuinely essential elements in any constitution which is drawn up for the European Union of the future. This is what made the European Union effective: weakening a vital part of it without adequate reason or even informed debate is likely to make what is left less acceptable as the consequences become clearer.

The extension of the Commission¹s exclusive right to propose measures for consideration by the Parliament and Council should also be on the agenda of the next IGC. The defect in the co-decision procedure should be reconsidered as part of the process of simplifying the decision-making procedures of the Union. This should be part of the process of simplifying the Treaties, which is on the agenda. Improving the democratic legitimacy and transparency of the Union, which essentially necessitates open discussions in the Council, can be done at any time without requiring any amendment of the Treaties.

All these latter points are desirable improvements which must be discussed. The role of the Commission ought not to be controversial – it has been forgotten rather than openly rejected. The lip service which is paid to the independence of the Commission may be inadequately informed, but it is fully justified. When the argument becomes clear – when it is understood and appreciated – it becomes difficult for anyone to argue cogently against it.

The proposal to have fewer Commissioners than Member States is the only element in the Nice Treaty which is criticised in this paper. That Treaty was intended in particular:

• To decide the number of votes which each future Member State (except Turkey) would have in the Council;
• To change the existing Treaties so that in future the existing large Member States would be able to nominate only one Commissioner (instead of two as at present) and, in return, the number of votes of these Member States in the Council would be increased.

These two linked changes were both reasonable and politically necessary in anticipation of enlargement, because most of the future Member States (all except Poland and Turkey) are relatively small countries. With a dozen or so new Member States anticipated, the disproportionate voting power of small Member States, granted until now by the Treaties, would reach unreasonable levels. This rebalancing of the influence of small and large Member States was an essential prerequisite for enlargement, and the votes of the new Member States were calculated on that basis.

However, it was not necessary for this purpose to insert in the Nice Treaty a provision to have fewer Commissioners than Member States. Constitutional change should be the result of informed and lengthy reflection, n ot of bargaining under pressure.

This aspect of the Nice Treaty illustrates two weaknesses of the EU procedures for Treaty changes. The first is that important constitutional changes can be proposed by any Member State at an IGC without sufficient previous discussion, and adopted without adequate consideration. The second weakness is that Treaty changes can be agreed, subject to ratification, in a closed meeting of Heads of State and Governments of Member States. Many of them have an interest in moving EU procedures in the direction of inter-governmentalism, which favours the larger Member States, and away from the Community method, which safeguards the smaller States.

Conclusion

The “Community method” necessitates an independent and fully representative Commission with the sole right to propose legislation to be adopted, if they so decide, by the Council and the Parliament. The Commission’s role is especially important for the protection of the interests of the smaller Member States. Only the “Community method” can ensure that the European Union remains acceptable in all the Member States.

The Community method has not been applied to pillar 2 (the common foreign and security policy) and does not generally apply to pillar 3 (justice and home affairs). Even in pillar 1 the Community method has already been eroded by the co-decision procedure.

The role of the Commission is threatened from two sides: by the Parliament and by the larger Member States. The erosion of the Community method tends to favour the larger Member States, which would gain influence from the move towards inter-governmentalism.

This erosion has been partly due to ignorance of what the Commission was created to do: to safeguard the interests of the Union as a whole and to be thoroughly aware of minority interests so as to justify majority voting. The Parliament, the Commission itself and all the Member States need to understand that the common interest needs to be safeguarded in this way.

In the USA, a relatively short constitution was explained in 85 Federalist Papers. The European Community Treaties never had such a thorough, careful, reasoned explanation. The unfortunate result is that many Europeans do not know why the Community was designed as it was. Few people have any overall vision, so changes have been made which are inconsistent with and harmful to the basic structure. Further discussion of the Institutions should be based on much greater understanding than is now the case.

The Convention should ensure a major improvement in the information made available to the public about what is contemplated. It would be strange if an important and necessary safeguard for the rights of all Member States was taken away while the Convention is in session.

All constitutional questions are fundamental and should be treated with correspondingly great care. The role and composition of the Commission is the most fundamental issue which will be discussed in the Convention, because it will decide whether the EU will be dominated by the large Member States, as the Nice Conference was, or will operate on a balanced basis which protects the interests of the whole Community as well as of its parts. If, in the long term, the Union is not acceptable to the small as well as the large Member States, it will cease to function.

John Temple Lang and Eamonn Gallagherwere formerly senior officials with the European Commission.

For more in-depth analysis, see The European Policy Centre’s website:

What sort of European Commission does the EU need?.