When on 20 June Giscard dEstaing delivers the report of his Convention to the European Council summit in Thessaloniki, Greece, the governments can congratulate him and his 206 fellow conventioneers for having achieved what they themselves failed to do at Amsterdam and Nice: looking beyond vested interests to re-conceive the foundations of the EU. This is an unlikely achievement. While some more ambitious ideas have certainly been lost in the process, the conclusions of the Convention clearly outline the road the Union will have to travel in the decade to come and lay down the institutional basis required for that venture.
At the basis of the Conventions achievement lies the move to constitutionalise the Union in a single, integrated and logically organised Treaty. This Treaty provides the Union with a single legal personality; it tears down the former policy pillars; it reduces the number of instruments and decision-making procedures available in the Union; and it encapsulates the Charter of Fundamental Rights.
No trade-offs between institutions
However fundamental these reforms may be, most of the attention has eventually focussed on the Conventions take on the Unions institutions and the division of power between them. Remarkably, the Convention has succeeded in what initially appeared as no more than a rhetorical mantra: strengthening the Union by strengthening all its institutions simultaneously, rather than some at the expense of others.
This strengthening is embodied in five significant institutional advances.
First, the European Council is strengthened by formalising it as a European institution and replacing its rotating presidency by a permanent president with a term of two-and-a-half years.
Second, the Council of Ministers is bound to benefit from the reinforcement of the coordinating role of the General Affairs Council and a clearer distinction between legislative and executive tasks.
Third, the European Parliament is strengthened by its recognition as full co-legislator: the co-decision procedure (where Parliament and governments legislate together) is made the standard legislative procedure of the Union.
Fourth, the Commission is strengthened by the extension of its power of initiative (in particular in the area of justice and home affairs), by the general recognition of its driving role in the Union, and the reduction of the size of the college. It may also have got a foot in the door of European foreign policy if it manages to accommodate the newly established European Minister for Foreign Affairs among its number (who will however also maintain a special, direct relationship with the inter-governmental Council).
Fifth, national parliaments have been strengthened by receiving full information rights and a new early warning mechanism that provides them with direct access to the Unions legislative process.
Compromises on timing, not substance
What is also remarkable is that none of these reforms takes the form of the messy compromises of earlier Treaty re-negotiations (demonstrated ad absurdum by the inexplicable and unprincipled division of voting shares in Parliament and Council agreed on in Nice).
Many of the compromises made in the Convention are not in the substance, but rather in the fashion and timing of their introduction. A prime example is the proposal to delay until at least 2009 abandoning the complex Nice formula for qualified majority voting in the Council in place of the clear, concise formula of a majority of member states representing three-fifths of the Unions population. The Convention allows the European Council to postpone this moment for at most three years after 2009.
Similar enabling clauses have been inserted to allow in due course a reconsideration of the composition of the European Parliament, and to move from unanimity decision-making to qualified majority voting in the Council in specific policy fields (most notably the Common Foreign and Security Policy). But an important question that the Convention leaves unresolved until a future stage is whether a shift needs to be made in the Unions resources from member state contributions to a direct European tax.
Giscard: genius from the top down?
Giscard dEstaings demeanour is often described as haughty, but he deserves much of the credit for this successful result. Aided by his vice-chairs, Giulio Amato and Jean-Luc Dehaene, and the head of his secretariat, Sir John Kerr, Giscard has masterminded the Convention.
Early on, he decided to leave the most contentious issue, the institutions, to the final stages of the Conventions work. He insisted on fostering a Convention spirit by first debating certain more technical issues (legal personality, subsidiarity, instruments) and the substance of various policy areas.
As a consequence, the debate on institutions evolved mostly outside of the Convention. When, by the end of April 2003, Giscard eventually published his concrete institutional proposals, they turned out to challenge the Nice status quo at almost every institutional point. Most notably, he proposed to replace the rotating presidency by a permanent European Council president, raising accusations that Giscard was only listening to the bigger and more inter-governmentally oriented member states.
However, Giscard also challenged the composition of the Commission and the European Parliament and, most notably, the definition of a qualified majority in the Council; these proposals are by no means inherently in favour of the bigger member states and the inter-governmental character of European cooperation. In the event, they have been developed into the widely-welcomed compromise that now makes up the Conventions conclusions.
Looking back, there appears one major downside to Giscards strategy. The institutional proposals may be well-founded, but the way they were introduced failed to instil a sense of strong ownership among the Conventioneers. On other issues, such a sense of ownership was fostered in smaller-scale working groups. Even if Giscard was probably right in judging that working groups on the institutions were unlikely to achieve a firm agreement, they might have outlined the pros and cons of the different options and paved the way for agreements to be reached.
The sense that, in the end, some of the institutional agreements are less owned by the Convention as a whole and rather the result of a well-imposed compromise will be significant when the ensuing Intergovernmental Conference (IGC) starts its work. The IGC has to turn the work of the Convention into a definite new Treaty text. Those issues that the Convention settled only at the last, with its deadline in sight, are most likely to be the first to be challenged by the governments: in particular, the redefinition of the qualified majority voting system. Still, these negotiations now take place against the default background of the Convention conclusions, rather than that of the mess left after Nice.
Union government and other leftovers
The Convention, however its achievements are judged, has also shown that it is not yet time to negotiate the finality of the European Union. Three issues turned out to be too far-reaching to be discussed at this point.
First, integration of the Unions executive tasks now divided between Commission, Council and European Council under a single institutional framework (a Union government) is yet to come onto the agenda. On a lower level, the formalisation of soft policy instruments, such as the Open Method of Coordination, and a clarification of their relation with the binding instruments, has yet to be attempted. This is likely to become a burning question in a larger, more diverse Europe.
Second, the question of a less cumbersome way for the Union to evolve and respond to new challenges remains unanswered. A light Treaty revision procedure not requiring national ratification, but a supermajority in the Council and assent by a majority or super-majority in the European Parliament, has been mooted; but it does not form part of the Conventions conclusions.
Third, democratisation of the Unions executive most likely through a move towards a presidential system chosen directly by the citizens or through an electoral college has been discussed around the Convention. But it, too, is absent from the conclusions. At some time in the future, each of these leftovers are bound to irrupt onto the agenda and require another Treaty overhaul.
