Gawain Towler
The Convention on the Constitution is now entering its last phase, which must lead to the presentation of a Constitutional Treaty to the European Council of Thessalonika (June 20-21).
The shifting sands of alliance and influence
The first nine months of work in the Convention has given rise to a "revolutionary" dynamic. Particularly as the Convention regards itself as an authentic "constituent assembly". It works by consensus which is defined by its President Giscard d'Estaing, as "less than the unanimity but more than the majority". Thus there is no right of veto within Convention, as there can be within a Heads of Government meeting. However the praesidium of the Convention is anxious to create the conditions necessary to arrive at a consensus. Moreover, there is no equality within the Convention itself as the relative importance of individual members whether they are, for example a Member of European Parliament, of a marginal political group or the representative of the Government of a large Member State.
The dividing lines in the Convention are extremely varied due to shifting alliances, distinct positions being rare. Divisions related to institutional membership or the opposition between the big and small States appear clearly over inter-institutional affairs, in particular the presidency of the European Council, the Parliamentary Reform and the reduction in the number of independant Police forces, but they are not of systematic nature. Amongst MEPs, barring a few honorable exceptions, a quasi-federalistic will to extend the Community method has been engendered with plans to divide all power with the Commission. In the European Parliament most members have become loyal to the EU, this loyalty has become more important than historic national loyalties. The reverse is true of the national MPs who sit in the Convention. These are usually close to the positions defended by their governmental representatives (especially in the case of the British and the Scandinavians). The governmental representatives have tended to take a more powerful role in recent months, being in favour of the appointment of high level national figures in charge to Convention and of the discussion for topics like the Security and Foriegn policy, Defence or Justice and Internal Affairs, on which the governmental expertise is far stronger.
There are some traditional alliances, the "communitarianists" (the Benelux countries in particular), close to the Commission and the European Parliament, and others who are more resistant to more integration (British, Swedes, Danes, and sometimes the Irish). Most states have very variable positions according to whatever proposal is on the table. As for the applicant countries, until recently they have remained quiet, but are becoming more and more active, in in the debate about the design of the institutions.
Lastly, the Praesidium of the Convention plays a key role. It, and particularly its President, Giscard d'Estaing, is imposing its opinions. This tendancy is not without its critics in the Convention, but they mostly go unheeded. Given that there is precious little time for the Convention to finish its work the capture of the high ground by the Preasidium will grow apace.
All future debates will be held in full session of the Convention (where there is strict limitation of speaking time), giving the Preasidium the opportunity to check dissent - and within working groups. Only the most controversial or certain technical questions (as the reform of the Court of Justice) will be examined by "discussion circles" of ten members. Therefore the final compromises will largely emanate from the praesidium.
Provisional Results of the Convention
Already accepted points or those that are the subject of a broad consensus
The General Architecture
The "constitutional" nature of the coming treaty (the preliminary draft presented by praesidium is entitled "TREATY ESTABLISHING A CONSTITUTION FOR EUROPE ");
The creation of a single legal personality for the Union, putting an end to the duality European Union/European Community.
The abolishment of the Pillar structure of the EU - Originally designed at Maastricht to ensure that certain policy areas, justice, home affairs, defence etc remained exclusive national competances.
The integration of the Charter of the Basic Rights in the Treaty (being opposed by the British delegation) with some amendments to the articles specifying the range of powers of the Charter.
The integration of a legal base in the Treaty allowing the adhesion to the Union of the European Convention of Humans Rights (only France expressed opposition to this).
Instruments and procedures
A reduction in the number of legal instruments, such as - outline laws (current legislative directives), laws (current legislative payments), payments, decisions (general or individual), recommendations.
The enlagement in scope of the co-decision process (opposed by the British government) with strict and limited exceptions (France, only, mentioned the common agricultural policy);
The installation of an of early warning mechanism on matters that might affect subsidiarity which would alert national parliaments and give them the opportunity for them to to take cases to the European Court of Justice in defence of the principle.
Foreign Affairs and Defense
A European Minister for the Foreign Affairs drawing together the current functions of the High Representative (Javier Solana) and the Commissioner for External Relations. The Minister will control the Common Foreign and Security Policy (CSFP) and would be attached to the Council but meanwhile a Member of the Commission.
Defence - the introduction of a solidarity clause in regards of the fight against terrorisim.
The creation of a European Weapons Agency (procurement etc.).
Home Affairs and Justice
The introduction of a principle of mutual recognition of judicial decisions.
A broad extension of the qualified majority voting in the judicial sphere, co-decision and the role of the Court of Justice (while maintenance of the unanimity for the significant subjects - unspecified).
Convergence of the penal laws for the European crimes (particularly with serious transborder implications - again unspecified).
Economic Governance
The transfer from the Council to the Commission of responsibility to give early warning to a Member State which is found in situation of excessive deficit or fails to respect the main trends of European economic policy.
The maintenance of the Stability and Growth Pact, but without inserting it in the treaty, due to its primarily political nature.
Areas where there is broad agreement but with some room for manouvre
The General Architecture
Clearer distinction to enter the processes of the Council between its legislative and executive functions;
Instruments and procedures
The suppression of the distinction between obligatory and non-obligatory sections of the budgetary procedure (opposed by governments of Britian, France, Denmark, Ireland, Sweden and some national members of Parliament of the same States).
Broadening of of the majority qualified voting (QMV) in legislative fields (firm opposition from the British and some from the Spanish and the Swedish).
An extension of QMV to all the trade agreements, including intellectual property and services (with strong opposition from the French government, supported by the British government - for different reasons - with the extension EU competences to the audio-visual, cultural, educational, social and health sectors).
Foreign Affairs and Defense
The introduction of QMV into the field of the CFSP, barring Defence. Many members of the Convention from all Countries and institutions support this, but the report of the "Foriegn Affairs" Working Group of the Convention is careful to take into account British opposition.
The new Commissioner/ European Minister of Foriegn Affairs in the Council to control all Foriegn Policy - opposition from the governments of Britain, Ireland, Denmark, Spain and Sweden.
An extension of the "solidarity" clause to areas beyond the fight against terrorism - opposition from Britian and the "neutrals".
The introduction of "reinforced co-operation" into the field of defence - opposition from Britian and the "neutrals".
Home Affairs and Justice
The strengthening of Europol and Eurojust with the introduction into the treaty of a legal base for an European Public Prosecutor is the subject of strong opposition principaly the British.
The creation of an European Justice Minister in the Council for the co-ordination of operational aspects.
Economic Governance
The strengthening of Eurozone governance through ECOFIN or using the principle of reinforced co-operqtion in the Council.
The unification of t representation of the Eurozone, after the entry of the new Member States in the EU - projected European Finance Minister.
The use of QMV for taxation issues affecting the internal market - strong opposition of the British and certain Scandinavians.
Aspects where there is no agreement at all
The General Architecture
Should there be mention of the goals of common policies in the preamble of a future EU Treaty?
The introduction of a defined list of respective EU/Nation State competances and of a clause dealing with national identities - the Germans, the British and the Scandinavians believe in strict definition while France, Italy, Spain, the Benelux countries, Greece, Portugal and Commission prefer a more flexible arrangement.
The way in which future amendments can be made to the Treaty.
The place of the Charter of Fundamental Human Rights in the treaty - whether it should be in the body of the text or in the appendix?
What happens to the Euratom Treaty? Should it be left intact, or out of the new Constitutional Treaty, or integrated in the part of the Constitutional Treaty relating to the policies?
Whether to mention religious values in the preamble of the Treaty, or even in the body of the future Treaty? A proposal of the MEPs and national MPs of Germany, Austria, Italy and Polish members of the centre right.
Whether there should be an escape clause in the Treaty to allow countries to leave the EU?
How the Treaty will entre into force with particular emphasis on the event of nonratification of the Treaty by a Member State.
How to enforce compliance to Treaty obligations.
Instruments and procedures
Should there be a creation of new legal acts/regulations to act as the legal space between the Treaty and Law, on the model of French Constitutional Law?
Whether to create a new layer of subsidiary Law to be adopted by the Commission where legislation has been delegated by National Parliaments to the Commission and by extension the European Parliament? In what policy areas this new catorgory might apply or whether it should exist at all are the subject of debates. The proposal is supported by the Commission, the European Parliament and some governments, it is fought by other governments including France and national MPs.
In the area of budgetary procedure whether the European Parliament should have a tax raising role as well as its current tax scrutiny role?
Should the recourse to the ECJ be extended to private citizens in respect of actions against the European Community?
Foreign Affairs and Defense
How should the CFSP and European defence be financed?
Should there be a clause of collective defense - a formal military alliance? Probably voluntary - opposition of the governments and national MPs of neutral and NATO countries.
Home Affairs and Justice
Should there be full development of an integrated system of border controls? Proposal supported by the French, German and Spanish governments.
Should there be an intergrated common policy on asylum and immigration?
Institutional Affairs
Should the President of the European Council be elected and full-time?
For, the governments and several MPs from France, Germany, Britiain, Spain, Italy, Poland, Denmark and Sweden, Giscard d' Estaing and Guilio Amato, and some French and German MEPs - against, everyone else.
Should the President of the Commission be elected by the European Parliament?
This has the broad support of MEPs, France and Germany, the Commission, the majority of the candidates countries and the small States, many others, particular the British, Polish and Spanish governments fear that this would lead to the increased politisisation of the Commission. The preference of Giscard d' Estaing and some convention members from Italy, Austria and the Czech Republic for a preselection of the candidates by the European Council. Another proposal comes from the Danish, Swedish, Portuguese, Irish and Maltese for an election by an electoral college including some of the national MPs.
Should there be a new Parliamentary Assembly or Congress?
This proposal is supported by the President of Convention, the representatives the French, British and German governments and some national MPs, but rejected by the many members of the Convention in particular the MEPs and the representatives of the small Member States.
How to reform of the presidency of the Council and its weighted voting?
This is traditionally opposed in order to maintain the current status quo primarily by small countries and a majority of the MEPs, but the large countries are in support of the idea to abolish the revolving Presidency. But there are also disagreements on what to replace it with either directly elected presidencies, institutions or by teams.
Should there be a full reform of the Commission, the famous Franco-German proposal, supported by members of the Convention?
Whether to let the President decide the composition of the college of Commissioners, which has oppostion from small Member States, supported by the Britain, or the abandonment of the current rule giving every nation a Commissioner or the proposal from Giscard d' Estaing, the Commission, France and Germany to create a two tier Commision, in the format of an inner Commission cabinet and junior Commissioners.
What happens next?
What is immediately obvious from how things stand today is how little of importance has been decided over the last year. Therefore how much has to be finalised in the coming few months before the July Intergovermental Conference in Thessalonika. The greatest danger is that as the Preasidium of the Convention garners more power and stifles debate they will be able to influence the outcome of these decisions in a dispraportionate fashion. The voices of individual members of the Convention are being squeezed (currently only 40 people are allowed to speak on any single issue - this sounds a fair number but they are only allowed to speak for a couple of minutes and normally spend the time congratulating the previous speaker).
It appears that at this rate the Constitution of the entire European Union will be decided upon by the representatives of the big four countries - Britain, Germany, France and Italy - and the Presidium of the European Convention. If this happens then the current malaise in the European Union will not be cured, far from it, it will be set in stone, rigid and uncompromising.
Gawain Towler is Co-Editor of The Sprout