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The Convention endgame: beyond bad bargains?

Kirsty Hughes Giovanni Grevi
5 June 2003

We are now in the final lap of the Convention on the Future of Europe, with a compromise on the crucial institutional questions only due to be tabled one week before the end. Many doubt if a good compromise can be achieved at the last minute.

The convention’s May debate on the key institutional questions for the draft constitution left as many questions open at the end as at the start. The large majority of contributions were restatements of already known positions, highlighting again differences between larger member states on the one hand and smaller member states, the European Commission and European Parliament on the other.

This was more or less inevitable once the praesidium tabled draft articles that reflected the views of the larger member states, rather than reaching a consensus or compromise. Contrary to the successful approach adopted for the other major issues addressed by the convention – such as foreign policy or freedom, security and justice – no longer papers were put forward exploring the challenges faced by the current institutional structure and the options for change.

The result of this failure is that the real discussions, debates and potential deals have now vanished from the convention floor, and are taking place in corridors and behind closed doors. This behind-the-scenes discussion left the praesidium remarkably free in what amendments they choose to make in the revised version of the institutional articles produced at the end of May – and indeed, they could agree to make none.

Whether the convention will come to a final compromise over their institutional disagreements is as yet unclear. Listing different options is still a possible outcome. This would, however, pave the way for the inter-governmental conference to take over negotiations on the most sensitive institutional chapters.

No one believes that this would lead to any better result than what was achieved at Nice, which was widely regarded as a failure in equipping EU institutions for enlargement. On the other hand, if a poor bargain is struck at the last minute in the Convention, the outcome could be a messy compromise, failing once again to build the democratic, efficient institutions that the enlarged EU will so urgently need.

Bad bargains under discussion

Deep differences continue between large and small countries over retaining the rotating presidency or having a new full-time chair or president of the European Council. It is suggested that a compromise here may be based upon agreeing to have a full-time European Council president in return for retaining one commissioner per member state. This would be a ridiculous compromise for the smaller countries. It would in fact be a double weakening of the Commission: firstly, strengthening the institutional power of the European Council, and secondly, weakening the power and efficiency of the Commission by making it ever larger and more unwieldy.

Nor does such a compromise do anything for democracy and simplicity. The new European Council president – or chair – will be a former politician, with no current electoral mandate and no proper accountability to the European Parliament. Supporters, such as the UK’s Peter Hain, disingenuously suggest the new president will do no more than the job of the existing presidency. But a part-time job will become a full-time job; so considerable expansion of the role can be expected, together with potentially damaging and unwelcome turf fighting, not only between Commission and Council, but also with the new EU Foreign Minister.

Debates behind the scenes suggest that a number of convention members believe the permanent European Council chair is inevitable, and are resigned to constraining his or her role in a damage limitation exercise. Hence proposals, from Benelux among others, to let the Commission President chair the General Affairs Council; and the emphasis by some on the importance of the Commission preparing a multiannual agenda for agreement by the European Council.

Others hope that it may be possible to include a transition clause setting out the longer-run aim of having a single, double-hatted President of Commission and Council (an aim supported in the convention debate by George Papandreou). Damage limitation may be necessary. But it is not the most productive way to build a new transparent, efficient and democratic Union.

Leadership and accountability of the European Commission?

Prospects also look uncertain for a genuine increase in both the effectiveness and legitimacy of the Commission.

If a deal is struck which retains one commissioner per member state – many more than the number of relevant portfolios – then the possibilities of the Commission exercising effective joint leadership as a college will be correspondingly reduced. A still-undesirable but less-damaging option would be a two tier Commission, with only the first tier having voting rights. But it would still be unwieldy in size and tend towards the intergovernmental. Jacques Santer, for the Benelux, did suggest a possible compromise in the longer run of a smaller Commission with equal rotation across the member states. This would be the best possible outcome and should be fought for at the convention.

The proposals for ‘electing’ the Commission President put forward by Giscard and colleagues are currently so weak that they would add little or nothing to the legitimacy of the Commission President and the Commission as a whole. The European Council proposes a single candidate: the Parliament can either rubber stamp them, no great democratic leap forward, or reject them, resulting in political crisis. If the Commission President receives no greater legitimacy, then it is not appropriate that he or she should have an entirely free hand in choosing his or her commissioners (with the sole guidance to take account of geographical and political balance).

A genuine election must still be argued for – both on grounds of democracy in the Union and to strengthen the Commission. There must be a genuine choice of candidates presented to the European public by European political parties during the electoral campaign for European election. The Parliament should then vote (a two-stage procedure can be envisaged, where only the two candidates who collected more votes at the first scrutiny would stand for election at the second vote), and the European Council could confirm the winner. One of the big risks in the behind-the-scenes bargain going on at present is that there is such a focus on the permanent president of the European Council and the number of commissioners that insufficient attention is paid to this key democratic issue.

Openness and efficiency in the Council?

The current stand-off over the role of the permanent President of the European Council is also limiting an effective and thorough debate over reform of the Council of Ministers. One proposal is for a team presidency of countries to operate below the permanent President of the European Council. But such a team presidency – though it gives the smaller countries some retention of rotation – will not add to clarity; nor will it provide the continuity that supporters of the permanent President idea stress. It would, moreover, lead to setting up a second ‘college’ of presidents in the council, parallel to the Commission and inevitably interfering with its tasks of agenda setting and coordination.

Another possibility is agreement on permanent chairs for the General Affairs Council (GAC) and the External Affairs Council (though there is disagreement over whether the proposed EU Foreign Minister should chair the latter), and rotating chairs for other Council formations. Again, this is a less than simple or clear solution. Most importantly, there is no agreement on who should take over the permanent chair of the GAC. This role is essential to boost the performance of the European Council by adequately preparing its work and following up its decisions.

Of considerable importance, but also unclear for now, is whether some sort of ‘bureau’ or board will be created around the permanent President – possibly made up of the team presidency, possibly made up of a subset of European Council members. This would also lead to a second Brussels-based executive rivalling and competing with the European Commission. Any proposal to this end should therefore be rejected.

In two other areas where the praesidium made important proposals for simplifying and democratising the operation of the Council, it is unclear if the convention will agree. While there is much support for opening up the Council when it is in legislative mode, a vital democratic reform, some, such as the UK, have indicated their strong opposition to a separate legislative Council. If there is not a separate legislative Council, there is a strong risk that the sectoral councils will not be fully opened up in a completely transparent and democratic way.

In the absence of a clear distinction between the legislative Council and executive Council formations, moreover, the separation of powers in the EU would remain blurred. That would prevent enhanced synergy between the Commission and executive Council formations in fulfilling executive tasks, and deprive the Union of the capacity for strategic agenda-setting and coordination across different policy domains.

On decision-making, the praesidium draft makes the important balanced and simple proposal of a system of double majority voting – requiring a majority of both populations and countries, with a three-fifths requirement on population. But a number are now strongly defending the opaque and complex Nice decisions on weighting of votes.

Keeping to the Laeken goals

Convention members should keep their courage in these final crucial weeks and not forget the main Laeken goals of creating a more democratic and more efficient enlarged Union. These goals can still be attained.

Proposals have been made by many convention members and in the wider debate that would allow the creation of a more efficient and legitimate Commission and a more efficient and legitimate Council. The risk is that through crude behind-the-scenes bargaining, and a failure to follow the more deliberative approach used successfully for the rest of the convention, a messy and bad compromise is reached.

An EU with three visible faces on the international scene – the President of the Commission, the President of the European Council and the EU Foreign Minister, with a large, unwieldy Commission with no increased legitimacy, and with a complex Council inadequately opened-up and simplified, would be a poor result indeed. This is the worst-case outcome. But Convention members have only a week to agree the answers that will still meet the Laeken goals and show that a successful positive outcome can be achieved.

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