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Christian Franck,
Professor at the Institut d'études européennes,
Université catholique de Louvain - Belgium,
Secretary General of
the Trans European Policy Association
In his famous speech on 9 May 1950, Robert Schuman declared: "Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity". By proposing the pooling of coal and steel production, the Schuman Declaration aimed at launching "a first step towards a European federation". Fifty years after the Paris Treaty was signed, the Laeken Declaration is to pave the way for another Treaty in 2004 which will introduce the third stage of the European Integration history. The Laeken process is widely seen to prepare the shaping of an efficient and democratic political regime for an Union of twenty-seven up to more than thirty-five member states.
In accordance with the central topic of this conference, which crosses historical views and current debates about European Integration, my purpose is to highlight a three-age periodisation of the European construction's history before focusing on the threefold character of the present institutional debate.
As regards History, the fifty years which separate the Schuman and the Laeken Declarations might be divided into three main periods.
Encompassing the Fifties and the Sixties, the first one mainly consists in creating the three Communities (the European Coal and Steel Community; the European Atomic Energy Community and the European Economic Community) issued from the Paris and Rome Treaties. These have superseded the first generation of the late Forties European organizations like the Western European Union, the OEEC and the Council of Europe. But the EC were also challenged by the Gaullist projects of grounding Western Europe unification on an Union of States giving the primacy to foreign and defence policy, as demonstrated by the Fouchet plan crisis and later the Soames affair.
If the first period is made by the Six, the second is the time of the completion, the deepening and the widening of a European Union which will take in nine new members. The Hague Summit of December 1969 opens this new age. Not only the Communities will be enlarged but it is also stressed that they are the original nucleus from which the European unity has taken wing. As deepening extends the scope of the EC policies, it also includes the creation of the two intergovernmental pillars - Common Foreign and Security Policy and Cooperation in Home and Justice Affairs, - which stay near the Community pillar in the European Union issued from the Maastricht Treaty.
This Europe of the second age becomes a Europe of the Fifteen. The Nice Treaty is likely to put an end to this period. The reforms it hardly achieved have not solved some problems which have been left over for the post-Nice time. Although it has provided for the admission of twelve new members to the institutions, the Intergovernmental Conference 2000 didn't undertake to shape a new political regime which could secure efficiency and democracy in a Union of around Thirty and even more in the wake of the 2004 enlargement.
It is precisely the main task of the post-Nice time to shape the Union's institutional architecture for the 2004-2020 period.
It is already known that the Laeken Declaration will settle a trilateral Convention, comprising representatives from national Governments, national Parliaments and the European Parliament, which will sketch options on which the IGC 2004 will have to decide.
It is also known that the post-Nice process is to solve the four questions raised at the end of the IGC 2000 concerning the inclusion of the Charter of the Fundamental Rights into the Treaty, the clear-cut division of competencies between the Union and the member states, a growing role for the national Parliaments and a new drafting of the Treaty separating fundamental and constitutional provisions from the secondary ones.
Beyond these four issues it may be expected that the IGC 2004 agenda will be extended to the question on how to shape the political regime of the coming "Fédération d'Etats-Nations". Since the Fischer's speech in Berlin in May 2000, the main political leaders like Jacques Chirac, Tony Blair, Gerhard Schröder, Lionel Jospin and the Belgian Prime Minister Guy Verhofstadt have expressed their views on this constitutional debate. Two main trends have emerged. One is stressing on the "parliamentarization" of the institutional system so that it would become closer to the German federal parliamentarism. In this prospect, the European Parliament would be the main winner while the Council and the European Council would lose their leading role. But the second orientation consists of maintaining the present institutional triangle where the European Council would remain predominant, while the appointment of the president of the Commission might be linked with the election of the European Parliament. Moreover, while many agree that the EU Treaty could be split into one text comprising the fundamental constitutional provisions and another encompassing the less important elements, the question remains open whether the fundamental Treaty is to become a full-fledged Constitution or is to remain a conventional act depending upon the will of the Contracting Parties. A sui generis formula like a "Constitutional Treaty" is likely to be settled.
Even before being committed to the shaping of the political regime, the institutional debate has been to cope with two other kinds of problems: one stems from the stress due to the overloading of the tasks which result of the widening and the deepening of the Union in the Nineties and which every institution is suffering from; the other has divided the larger and the smaller countries in the Nice negotiation on issues like the size of the Commission and the reweighting of the voting in the Council where redistribution of power seemed to be at stake.
Let us start by surveying the question of the stress. For the Commission, this comes from too much requests it is addressing while human and financial resources are not available to handle them. The White Paper on the Commission reform issued in March 2000 and drafted by the Vice-President Neil Kinnock did not only focus on the reform of the career development, linking promotion to merit, and on how bringing closer decision on the policies and financial responsibility; it has also asserted that the Commission would only perform the tasks it has the resources to carry out effectively. That means that the Commission would reserve the right to turn down requests coming from the Council or the Parliament which are not among its essential missions, like further studies on various issues or management of new programmes, when it is short of human and financial resources to cope with those tasks.
Even if the recent "White Book on the European Governance", issued in last July, focuses mainly on the transparency and the participation of actors from the civil society in the shaping of the Community policies, it has also underlined the necessity for the Commission to concentrate on its essential missions like the right to initiative, the implementation of the policies, the guardian of the Treaties and the Community external representation. As an illustration, the creation of "Regulation Agencies" is seen from the White Book like a way to release the Commission from controlling the detailed implementation of EC rules in some specific, highly technical, matters.
Since the Maastricht Treaty has set up the legislative co-decision by the Council and the European Parliament and after that the Amsterdam Treaty has extended the scope of the co-decision, the Parliament is suffering from a legislative overload. The 2000 Commission legislation program accounted for 108 items while 70 were to get an opinion from the Parliament, what represents an increase of about 50% over the last five years. As a major fact of the legislative activity rests in technical issues, EP Members complain that too little time can be devoted to more political debates. Hence the proposal made by the Vice-President James Provan in a "Working Document" of April 2000 "on the internal reform" that part of legislative activities on technical issues could be performed by a special enlarged committee which would discuss the Commission proposal which the Plenary Assembly would only vote for without discussing them. Although Provan's suggestion has not been endorsed, it showed that the EP is also stuck by the stress stemming from the new powers it got. This diagnosis demonstrates that generalisation of co-decision to all the matters where the Council is deciding by majority voting may only be envisaged after that a hierarchy of norms would have been settled which would limit the kind of acts to be passed by co-decision to full-fledged laws.
As regards to the Council, the shortcomings it faces are stemming from the combined impact of the increase in its membership and the expansion of its range of activities, both on the effectiveness of its deliberations and on the consistency of decisions taken in its various compositions, as well as on the workload of the Presidency. This diagnosis has been set up in March 1999 by the Trumpf Piris Report of the Working Party set up by the Secretary General of the Council on the "Operation of the Council With an Enlarged Union in Prospect". The many salient problems exposed by the document rest on the overloading the General Affairs Council (GAC) faces in fulfilling its various missions and in the risks of having inconsistencies in the EU decision-making that the large number of special Councils may provoke.
It is to recall here that even if there is legally one single Council, this may meet in different compositions. While the GAC, Ecofin and Agriculture Council meet monthly, twenty of other compositions meet four or three times per year, even less. The main problem lays in keeping consistency between decisions taken in the different Council compositions. In December 1999, the Helsinki European Council has adopted some guidelines on how to improve the Council's working. One of them reduces the number of compositions from twenty-two to fifteen and submits any convocation of a new composition to an approval by the General Affairs Council.
As regards the stress the GAC itself is suffering, it comes from the increase in the tasks it has to perform. It has become observed that the GAC has no more the capacity to carry out any horizontal coordination of EU activities, to prepare the European Councils meetings and to lead at the same time the EU external policy encompassing Trade as well as CFSP. The December 1999 European Council has decided to make lighter the tasks of external representation by reducing the number of ministerial meetings with third countries and by securing a high ministerial level of representation of the EU only for the Troika, while other EU delegations might be represented by civil servants.
In restoring the GAC's capacity to perform its various missions, other proposals have been made, like a suggestion of splitting the GAC in two different bodies, the one, composed by Ministers of European Affairs, providing for internal affairs, the other, with the Ministers of Foreign Affairs, conducting external policy. Quite recently, the MEP Jacques Poos, a former Foreign Minister of Luxembourg, has presented a report on the Council's reform which proposes that the GAC would meet weekly instead of monthly, with the participation either of Ministers for European Affairs or of Foreign Affairs Minister according to the choice of the national Governments.
The overview of the stresses that every institution is facing as a consequence of the widening and the deepening would be incomplete without mentioning the increase in the amount of cases and the delays in delivering the judgements the Court of Justice is undergoing. The overloading which presses heavily on every institution shows that the institutional adaptability to the next broad enlargement doesn't only consist in whether to change or not the Treaty with a Constitution.
Along with the shaping of the future political regime and the functional challenge of the institutional stresses, the redistribution of power and more particularly the cleavage between larger and smaller states has been brought into light by the Nice Treaty negotiations. This may be considered as the third aspect of the three-fold institutional debate we are commenting. When the Union will be of around thirty, the smaller states fear they'll lose their relative power inside the institutions, while the larger want to prevent a majority of small countries from outvoting the demographic majority the five large member states represent. During the IGC 2000, this cleavage has been at stake about the size of the Commission. While the larger countries wanted to reduce the number of commissions to preserve its efficiency and its collegiality, the Smaller insisted in keeping one Commissioner per member state. The result has been that once the Union has 27 members, it will discuss how to reduce the number of Commissioners below the level of 27, which doesn't sound like a clear-cut solution… For the reweighing of the vote, it is to recall that the voting which is still prevailing today has been fixed in the 1972 Accession Treaty. Having in prospect the accession of a large number of States with little demographic weight, the large member states have requested that the voting should be reweighed. The compromise hardly reached in Nice has consisted of a reweighing from 10 to 29 votes for the five large Members while medium-sized demographically countries of around 10 millions inhabitants like Belgium, Greece, Portugal have shifted from 5 to 12 votes and Netherlands (15 millions) 13. What has characterized the Nice negotiations is that the delegations have focused more on how to reach the blockade minority than to how to make a qualified majority easier. Even if the Nice Treaty has not been succeeding in adapting the whole institutional system to the global challenge of the next enlargement, it would probably be proven illusory to think that what has been achieved in Nice could easily be suppressed.
The Nice Declaration on the future of the Union has already opened the way to the post-Nice debate. It has scheduled for 2004 a new Intergovernmental Conference (IGC) which will deal with the following four items: the delimitation of the competences between the EU/EC and the States which could lead to a EU competence catalogue; the role of the national Parliaments in the EU that is usually seen in terms of control of the national European policies but that some would like to extend up to the creation of a second European Chamber composed of members from the national Parliaments (solution which is hardly to prevail); the integration of the Charter of the Fundamental Rights into the Treaty, which would give a binding effect to the Charter and would reinforce the constitutional character of the Treaty too; the redrawing of the Treaty which could operate a distinction between the fundamental provisions of constitutional kind and the more contingent ones. This last issue could lead to a shift in the denomination of the basic Treaty from Treaty to Constitutional Pact, a sui generis calling on which it will probably be compromised. The Laeken Declaration of December 2001 will define the method to handle the four items debate. It has already been agreed that a trilateral Convention of 62 members (15 from the Council, 15 from the European Parliament, 30 from the national Parliaments and 2 from the Commission) will sketch options which will be submitted on a non-binding way to the IGC which is foreseen for 2004 but that some would like to see inaugurated in 2003.