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European Affairs
European Integration
The EU's Draft Constitution Should Not Be Unraveled
By Ulrike Guérot
On June 20 2003, Valéry Giscard d'Estaing, President of the European Convention, presented the blueprint of a European Constitution to EU leaders at a summit meeting in Thessalonica, Greece. The convoluted document, some 300 pages long, brought to a close ten years of reflection on institutional reforms to prepare the European Union for its forthcoming enlargement from 15 to 25 members, and to make the Union more efficient and democratic at the same time.
After the failure of two intergovernmental conferences - in Amsterdam in 1997 and, above all, in Nice in 2000 - the convention that began in 2002 marked an important change in procedure. Composed of 105 representatives from the European Parliament, national parliaments and the governments of the member states and the candidate countries, the convention broke out of the rigid framework of intergovernmental conferences, in which national interests usually set the tone. The delegates largely succeeded in focusing more on the bigger picture of the European Union's institutional needs than on national prerogatives. The convention was able to agree quickly on some points that only a year before had been highly controversial.
The result is still incremental rather than revolutionary, and far from perfect. But it should not be discounted. The big question now is whether the constitutional blueprint will be accepted by the intergovernmental conference that is due to open in the fall of 2003, under the presidency of Italy, which will have the final say over the proposals. The criticism that is coming from almost all sides could put the delicate equilibrium between the core points of the draft constitutional treaty at risk.
Sweden, for instance, is refusing to negotiate under the Italian presidency, out of mistrust for Silvio Berlusconi, the Italian Prime Minister; Britain still has problems with the word "constitution;" Poland and Spain want to keep the voting system stipulated in the Nice Treaty, which is more favorable to them, and Poland is also contesting the blueprint's proposed reduction in the number of Commissioners.
Smaller countries such as Austria, Finland and Luxembourg still have major concerns about the proposal to abandon the current system under which the presidency of the Council rotates among member governments every six months; and neutral countries, such as Austria and Finland, have problems with a proposed "mutual assistance" provision that would allow member states to ask for military help if attacked.
Tinkering with the blueprint, however, would be akin to opening Pandora's box. The draft treaty is the sum of numerous trade-offs, such as the agreement on a stronger president of the Council in exchange for a president of the Commission elected by the European Parliament. Such bargains, on balance, preserve the current mix of federal and intergovernmental features in the European Union's institutional structure, and do not shift the emphasis clearly in one direction or the other. Changing just one element would probably bring down the whole house of cards.
Some major elements of the draft constitution are undisputed: namely the introduction of the EU Charter of Fundamental Rights into the Treaty, the establishment of a legal personality for the European Union and a clearer division of institutional competencies. But the draft enters more controversial ground in proposing solutions for the three vexed issues left unsettled by the Amsterdam Treaty: a new weighting of national votes in the Council of Ministers, taking more account of the relative populations of the member states, a reduction in the number of fully-fledged Commissioners and measures to extend and facilitate qualified majority voting in the Council.
These provisions are essential for the efficiency of the European Union. By 2009, if the draft constitution is adopted, there will be only 15 Commissioners with voting rights at any one time, while a further ten will not be able to vote. Voting privileges would rotate among the 25 Commissioners (one for each member country). A qualified majority in the Council would require only a majority (50 percent or more) of member states, representing 60 percent or more of the Union's population, instead of the triple majority stipulated in the Nice Treaty (a majority of states, weighted votes and population). This change would dramatically increase the chances of forming "winning coalitions" in the Council of Ministers.
An attempt to re-negotiate these hard fought agreements would represent a major setback for the functioning of the Union. If countries such as Poland were to reopen the question of whether each country should have its own Commissioner with full, permanent voting rights, these achievements could easily vanish.
The question of national representation on the Commission has caused sharp divisions between old and new EU members. The prospective new members are not yet accustomed to the functioning of the EU institutions, especially the collegiate structure of the Commission, and are afraid of losing their say in Commission deliberations if they do not have their "own" full Commissioner. As Polish President Aleksander Kwasniewski put it recently, "We need to have the sentiment that we play a role in Europe."
Another important point of dispute will probably be the proposal for an elected president of the Council, one of the linchpins of the draft constitution. The President of the Council will be elected by a qualified majority of the Council members. The candidates cannot be heads of state or government in office; so basically the position is designed for an elder statesman. A more powerful president of the Council is meant to give the European Union a stronger and more easily recognizable voice in international affairs.
By abandoning the six-monthly rotating presidency, the aim is to assure greater cohesion and to allow longer-term strategic planning, diminishing the influence of national policy preferences in setting the agenda. In the past, many countries have used their six-month stint in the Presidential chair to advance their own special preferences and priorities - Spain, for example, wanted to focus on the Mediterranean; Finland on Baltic cooperation - and launched initiatives that often had no follow-up.
Almost all the smaller member states were opposed to an elected Council president from the beginning, and they are now renewing their criticisms of the plan. Many small states fear that the larger countries will try to run the European Union through some kind of "directorate." They argue that the only way they can imprint their own ideas on the Union is through the rotating presidency, which at least occasionally puts them in the Council chair, if only briefly.
The underlying problem is that the smaller countries feel twice cheated - they are losing their "own" full Commissioners and the chance of chairing the Council of Ministers. With 19 smaller countries in the enlarged European Union, against only six larger countries, it remains to be seen how far the smaller countries will be able and willing to exert pressure on this question in the intergovernmental conference. If, however, the plan for a stronger president of the Council were to be rejected, the whole political structure of the draft constitution would come apart.
The grand compromise at the heart of the constitutional negotiations was an agreement to strengthen both the Council, where governments negotiate, and the more federal, or supranational Commission at the same time. France and Germany agreed on the basic outline of this solution in January, proposing that the Council should get a more permanent president, while the president of the Commission should be "elected" by the European Parliament. Under the agreed procedure, the European Council would suggest a candidate for the presidency of the Commission to the European Parliament, taking into consideration the political preferences of the majority party in the Parliament. The Parliament could accept or reject the Council's nominee, but it would not have the right to select its own candidate. Until the Parliament and not the Council has the decisive say on the nomination, the procedure cannot be described as a true election. The current change in legislation is, thus, only half a step toward the full politicization of the Commission, but it is certainly a beginning. The aim of the overall agreement to strengthen both institutions - Council and Commission - was to create a kind of two-pillar structure supporting the roof of the new constitution, making the EU institutions both more powerful and more efficient.
If one pillar were to collapse, the roof would come crashing down. It is highly unlikely that countries like Britain or Spain would accept more power for the federal side, the European Parliament and the Commission, unless the intergovernmental side were given more power, too. The most likely outcome is that a stronger president of the Council will be maintained, and the smaller countries will be bought off by getting back their own fully-fledged Commissioners.
It then remains to be seen how this novel form of dual leadership by the Presidents of the Council and the Commission will work out in practice. There is obviously a risk of competition between the two leaders. The delimitation of their respective powers remains rather fluid, although the President of the Council is meant to exercise more a representative than an executive role.
The main advantage of the dual presidency is that it keeps the institutional system open. While no national leader can accede to the presidency of the Council while still in power, the draft constitution does not prohibit the president of the Commission from doing so. This leaves the way clear, at least in principle, for establishing a single president at the top of the Union, a valuable option for the future that no country has an interest in excluding at the moment - and another reason for not gambling too much with the draft constitution as it now stands.
If the intergovernmental conference were to reopen these core points, the floodgates would open for a total remaking of the draft constitution, including the agreements reached on qualified majority voting, new budgetary rights for the European Parliament and even the modest achievements in the field of foreign and security policy (see page 44). Negotiations could rapidly deteriorate into the kind of messy and ill-tempered exchanges that led to the flawed Treaty of Nice. The good news is that most member states are aware of this danger.
Time is also pressing. With the Union due to be enlarged on May 1, 2004, there are only a few months left for deliberations. One thing that seems sure for the moment is that the intergovernmental conference will not be finished under the Italian presidency, but will continue into the following Irish presidency. Even so, the new constitutional treaty will still be called the Treaty of Rome, in memory of the first Rome Treaty of 1957, which founded the European Community.
There are also two other sources of pressure - European Parliament elections in June 2004 and the appointment of a new Commission the following month. Many had hoped to present a new constitutional treaty to the European public before the European Parliament elections to enhance the legitimacy of the project. One of the main goals of the whole exercise has been to win the approval of the European public and close the Union's so-called democratic deficit.
The idea has even been raised of putting the constitutional treaty to a special Europe-wide referendum, a proposal that has led to animated discussions in most member states. Several countries, including France, Denmark and Sweden, have already announced that they will hold their own national referendums. It is hard to believe that only some European citizens, and not others, will be given the right to vote directly on the treaty. On the other hand, a Europe-wide referendum would carry major political risks for those who favor a constitution, even if the poll were only consultative. If a majority of voters said No, politically speaking, the project would then be dead.
The real risk is that other complex issues could overcrowd the EU agenda if the intergovernmental conference were to get bogged down and fail to agree on the constitution by, say, spring 2004. By the end of 2004, the European Union will have to revisit the difficult and emotional question of Turkish membership, which also has implications for the debate on the Union's institutions. While advocates of closer integration fear that admitting Turkey would mean the end of all federal ambitions for the Union, those less enthusiastic about federalism might regard that as a good thing.
Negotiations are also due to start soon on the next EU budgetary framework, for the period from 2006 to 2013, and the worst outcome would be for the institutional and budgetary negotiations to become enmeshed with each other. That could make it tempting to buy off some recalcitrant countries in exchange for institutional concessions - Spain, for example could be offered a longer period in which it could benefit from regional development funds in exchange for dropping its objections to the proposed new voting rules in the Council.
Equally, France could create deadlock on institutional reform, if it were not given its way over the common agricultural policy, or Germany could insist that its demands for institutional reform be accepted because of its status as the largest net contributor to the budget. In the end, in fact, it is true that there can be no new constitution without budgetary provisions, and member governments will be less inclined to renounce the right of national veto if they feel that they have lost out in the budgetary negotiations.
For now, the future of the European Union looks busy but uncertain. The proposed constitution was not the main topic of discussion on European beaches during the blazing summer. According to opinion surveys, only 55 percent of European citizens have heard of the constitutional convention, and only 13 percent intend to read the new constitutional treaty.
At the beginning the convention possessed a dynamism that generated frequent comparisons to the American Constitutional Convention held in Philadelphia in 1788. That initial energy has now run out of steam. The Italian presidency does not seem to have ambitious plans for the constitution, and is anyway being treated with suspicion by people in other countries who dislike Mr. Berlusconi. Whether the Union will be able to meet the parallel challenges of enlargement and institutional reform seems, unfortunately, as doubtful as ever.
What is more, many European countries are absorbed in domestic discussions on badly needed structural economic reforms. Large budget deficits in Germany, France, Italy and some other countries are placing a question mark over the fiscal discipline enshrined in the European stability and growth pact, and with it a good part of European solidarity. These problems, together with the still unhealed wounds inflicted by discord over the war in Iraq, do not create a constructive mood for strategic negotiations on the constitution. The negotiating climate will become even more complex after enlargement.
The European Union may now have a constitutional blueprint, but there is still no clear picture of its final political destination or its ultimate borders. It would be best for the intergovernmental conference to endorse the draft constitution without major amendments, in order at least to save what has so far been agreed. The new constitutional treaty could then serve as the basis for the next round of reform, which is sure to come soon. Only one thing is really sure: the European Union is a permanent work in progress.
Ulrike Guérot is Head of the EU-Unit at the Research Institute of the German Council on Foreign Relations in Berlin. She was previously Deputy Director, Department of European and International Affairs, German Employer's Association; Senior Research Fellow, Groupement d'Etudes et de Recherches 'Notre Europe;' and Director of Communication, Association of the Monetary Union of Europe.