A constitution for Europe: where is the real debate?

Kirsty Hughes
22 September 2002

Europe’s constitutional convention should by now be halfway through its job of redesigning and reinventing the European Union (EU). But amidst the ever-growing mountains of paper and reports, is the convention really getting to grips with the key issues? In particular, does its failure to address head-on the key debate – that between advocates of ‘integration’ and ‘intergovernmentalism’ – represent a clever strategy to promote new ideas and eventual consensus, or does it risk allowing the convention to be sidelined by the member states, who are currently dominating many of the key areas of debate?

The convention chairman, Giscard d’Estaing, is anyway regularly suggested to be too close to the big member states, especially France and the UK. But powerful though Giscard is, he is by no means in complete control of the politics of the convention. He is frequently challenged from the floor of the convention. At a recent meeting, some convention members accused him of selective listening – their comments lost in what one MEP called a ‘communications Bermuda Triangle’.

But beyond the complex internal political dynamics of the convention, much of the real debate is taking place outside the convention in a parallel dialogue with and between member states. This debate is already well advanced, in particular on the fundamental questions of where political power and control will lie. Nor is it a coincidence that some of the larger member states are so far dominant in this debate. The debate over political power in the enlarged EU in the end will come down largely to a battle between the large and small countries.

This is not to deny that the convention is hard at work and important proposals are beginning to emerge from its ten working groups. And leaving some of the key questions to the end may be the best way to avoid premature divisions while pushing for compromise issue by issue. Or it may be a deliberate tactic by Giscard with the aim of eventually imposing a specific, as yet unknown, blueprint. But it also risks leaving too much space to the external member state debate, which could end up dominating the convention’s political debate – or worse, ignoring it.

Simplify, simplify – but how?

The period to the end of the year will be critical in showing whether the convention can take the lead. Certainly, its working groups are undertaking an unprecedented reassessment of the decision-making processes and instruments of the EU.

The first working group to report wants the convention to support a significant new role for national parliaments in controlling subsidiarity. This might suggest a tendency to give power back to the nation states. But the second group to report has called for the EU to have a single EU legal personality. This, per se, does not change the balance of power between the institutions but it clears the ground legally for a much stronger single EU voice and role internationally.

And the convention also clearly supports a major simplification of the EU’s incoherent and labyrinthine legislative processes. One of the clearest routes to this aim is to extend the co-decision powers of the European Parliament so that it legislates equally with the Council of Ministers across the board. A stronger European Parliament coming out of the convention would be one more step in a more federalist/integrationist direction.

Ideas are also gaining ground of a new Congress composed of national MPs and MEPs – though with varying views of its actual role. A stronger role for both national parliaments and the European Parliament could both help to overcome the democratic deficit and to promote simplification.

The big countries manoeuvre

But none of these ideas addresses the central integrationist versus intergovernmental question. Indeed, amidst all its work, the convention has mostly studiously ignored the central question of the relative roles and power of the European Commission and the Council in running the EU. And the big member states, with the UK in the lead, have moved speedily into this unoccupied territory in the debate.

The UK has even gone so far in its attempts to pre-empt the convention as to commission and endorse a draft constitution (published in mid-October) from a British lawyer (Alan Dashwood), which is deliberately and explicitly anti-federal and pro-intergovernmental. This incorporates the idea first put forward by the UK and France earlier in the year of having a new position – an EU president of the European Council.

While attracting support from Spain and Italy, this proposal has been bitterly attacked by the smaller countries and by the Commission, with trade Commissioner Pascal Lamy leading the critics. Lamy suggests it would result in the Commission becoming simply a secretariat – an implicit UK goal though publicly much denied. France is floating ideas of guaranteeing that the president would first come from a small country to win the opponents over. Meanwhile, integrationists have responded by calling for the election of the European Commission President – possibly by the new Congress of MPs and MEPs.

Germany is crucial here and since the recent elections it is beginning to show its hand. Joschka Fischer, strengthened in his position as foreign minister after the German elections, is making clear that the Commission must not be weakened and is due to produce a strategy document in the coming weeks. Of particular significance is the announcement last week that Fischer will now represent Germany in the convention. This is probably the most important change that could happen among all the 105 members of the convention. Fischer’s political weight and dynamism, together with his strongly integrationist views, will mean that Germany has full weight in the convention for the first time – and not least will challenge the strong political position Peter Hain, UK minister and convention representative, has built up.

Although, Germany has indicated it may support the idea of an EU President (in reports of an informal dinner with Commission president Romano Prodi), it has also emphasised that this could not go ahead without also strengthening the Commission. This German position could raise the possibility of electing both Commission and European Council presidents, although democratising the Commission is anathema to the UK.

Reform and silence

While this debate moves ahead it has yet to be directly discussed on the floor of the convention. Indeed the question of the relative powers of Commission and Council has come to the forefront only once, in the convention’s first discussion of European foreign policy – with a predictable split between those who support the Commission’s idea of having a single foreign policy supremo based in the Commission (merging Javier Solana, the Council High Representative, into Chris Patten, the external relations Commissioner – something Solana himself opposes and Patten is at best doubtful on) and those, led by Peter Hain, who insist on the primacy of the Council and the member states.

But in the external debate on foreign policy, important new French ideas are now emerging of doing exactly the opposite – ‘merging Patten into Solana’, as the Brussels shorthand goes; and thus strengthening the Council’s foreign policy position. This would be potentially much more acceptable to the UK. Once again the external debate among the ‘bigs’ is moving forward.

Nor has the convention yet tackled other key issues such as the size of the Commission or the weighting of Council votes. New German ideas are emerging – outside the convention – to tackle the smaller countries’ reluctance to give up a Commissioner by proposing to share out Commission posts together with a chair of individual Council posts in one big deal (so that each country gets something). This would result in a balance between a smaller, stronger Commission and a stronger Council, through abolishing the six-month rotation of posts.

The convention did have a brief, unscheduled discussion of whether the Commission’s sole right of initiative in Community legislation should be shared with Council and Parliament. Such a move could seriously undermine the Commission. But no conclusions were forthcoming as this issue is not yet scheduled for full formal discussion.

Other important areas yet to be tackled include the question of what to do with the role of the veto in an EU of twenty-five countries. Preliminary discussions suggest the convention will support a considerable extension of qualified majority voting. Ironically, this may find more favour than previously among the big countries since it will help them to centralise control in the Council without the difficulties that could be posed by a string of small country vetoes.

Meanwhile, the EU’s heads of government already agreed other Council reforms at the Seville summit in June, again pre-empting the convention – with Germany and the UK bringing forward joint proposals. As a result the number of Council formations has been cut, some legislative sessions will be held in public, and the European Council has asserted its leading role in determining the strategic work programme of the Union. But where is the convention debate – it should be calling strongly for all legislative sessions to be public and not just a token few, and for a clear role for Commission and Parliament in strategic planning, but for now these debates are off the agenda.

The time to lead is now

So far the UK’s activism in putting forward policy ideas is proving effective in shifting the external debate in the direction the UK favours, building up the strategic role of the Council and downgrading the role of the Commission. But Germany is now waking up and the new government is showing real focus, after its prolonged election campaign. And no one should expect Joschka Fischer to be in sympathy with many of the UK’s proposals.

But amidst all this jockeying for position by the ‘bigs’, where is the convention? The convention urgently needs to take back the initiative here. Much is at stake in all these discussions. But too much of the debate is happening in the corridors of power around the big member states. The convention now must force these debates into the open and show that it can take the lead. There are strong and differing views within the convention. But in the end consensus will not be found by avoiding the debate.

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