Three Weeks to the IGC

Written by Andrew Duff MEP and published in Financial Times Online - www.ft.com on Fri 24th Oct 2003

Three weeks into the Intergovernmental Conference (IGC) on the draft Constitution, what, if anything, has happened? The conference has met twice at heads of government level and three times at ministerial level. The Italian presidency has sent out questionnaires to all twenty-eight member states participating in the IGC, plus the European Commission and Parliament. A rather good web site has been set up by the Italians which seems to publish most of the relevant written material. An official working group led by the redoubtable Jean-Claude Piris of the Council secretariat has published an interesting commentary on the Convention's final draft constitutional treaty, with some useful suggestions for legal clarification.

The working methods are revealing. Questionnaires tend to crystallise positions and are not therefore conducive in reaching consensus. Their usefulness in the present circumstances is even less than normal because we already know a great deal about what the member states want in and from the Constitution by virtue of their participation in Valery Giscard d'Estaing's Convention. If the Convention was successful it was because of the richness of the dialogue which marked its proceedings. Positions had to be explained before a critical audience and could be, and were, challenged. In the end, all were complicit in the package deal achieved in the Convention. None found it perfect. All made compromises, but only a handful of Muscovites and the UK Tories rejected the outcome of the Convention as the basis for an agreement at the IGC. At the IGC, on the contrary, there has so far been little to no genuine dialogue. The contrast with the Convention could not be more striking.

Lack of substantive argument is an inevitable consequence of the enlargement of the Union. With the best will in the world, and the most skillful chairmanship, a tour de table of the thirty parties participating at the IGC will not take less than two and a half hours. What with the disruption caused by travel delays, public demonstrations, media interruptions and family photographs, these meetings, particularly at summit level, are not destined to succeed in bridging serious gaps in mutual comprehension or in brokering deals. Instead the temptation is for the national governments to fall back on the 'patriotic' or sovereignty issues to establish who's where in the pecking order. These are the very same issues which proved so intractable at the Nice IGC in 2000: the size and shape of the Commission, the share-out of seats of the Parliament, the apportionment of voting weight in the Council and access to the presidency of the Council. Sadly, it is that old agenda which is already dominating the IGC. Much else that the IGC could be doing to improve on the work of the Convention, and to consolidate the consensus, is not being done.

The worst squabbling concerns the question of the qualified majority threshold in the Council. Here, Spain and Poland, which did well out of the Treaty of Nice, are trying to resist the acceptance by the IGC of the Convention's proposal to equate a qualified majority vote as half of the member states representing three-fifths of the population of the Union. To most of the Convention, this relatively simple double majority is a great improvement on the complex triple key formula of Nice. In both arithmetical and political terms the difference between the two is, at best, marginal. The Convention proposes that countries representing 40 per cent of the population will have to be assembled in order to block legislation, compared to 38 percent under Nice. The fact is that Spain and Poland on their own cannot comprise the blocking minority even under Nice. On the other hand, Germany and two other of the larger states (France, Italy and the UK), acting together, can already stop any controversial proposal under the Nice provisions. Were it not for impending domestic elections in Spain and Poland, this controversy could and should be swiftly suppressed by the IGC.

Next on the critical list comes the organisation of the Commission. Here Romano Prodi was the first to challenge the package deal reached by the Convention which suggested a Commission, after 2009, of 15 full members and 10 non-voting members to be arranged according to a decision of the European Council (acting by consensus) that respected the principles of equal rotation and demographic and geographic balance. In making this proposal, the Convention was doing no more than building on a provision of the Treaty of Nice that says that, once the Union has grown to 27 member states, the European Council should take a decision (by unanimity) to reduce the size of the Commission.

Much heat has already been generated on this issue by the IGC. It is to be hoped that the presidency will come forward quickly with the bones of a compromise between Nice and the Convention. For example, an increase in the size of the future Commission to 18 would ensure that, in a Union of 27, each nationality would be represented in every other Commission. In addition, the status of the junior Commissioners could be re-examined. They could, for example, be granted the right to vote on three strategic issues: the draft multi-annual strategic programme, the annual legislative programme and any decision to sue a member state in the Court of Justice for a constitutional infringement. Keep the juniors - President Prodi calls them dismissively 'stagiaire Commissioners' - away from budgetary decisions as well as routine management, and the two-tier system might work quite well. Many smaller, and new, member states are canvassing instead for a large Commission in which all member states are equally represented. But that option is simplistic. In a Union of 25 a simple majority in the Commission could be achieved by 13 members coming from countries representing under 11 per cent of the Union's population. How could that be acceptable to the larger member states? Joschka Fischer, from Germany, who wants to stick to the Convention package, has floated the idea that the larger member states should retain two Commissioners, presaging, absurdly, the prospect of an eventual Commission of 31 and more members.

For the IGC to succeed in bringing Europe's constitution to birth, the Italian presidency must show itself to be tough, canny and creative. It must insist that Nice cannot be picked at selectively. The Laeken Declaration of 2001 was a clear rejection of the spirit of Nice. The subsequent Convention, having considered all the options for change, hit upon the best solutions going, the optimum compromise at the present phase of European integration. Any government that wants to be make headway at the IGC must come up not just with their own preferred solutions but with proposals that command a larger consensus than that arrived at by the Convention.

Early political agreement on Parts One and Two of the Constitution - that is, the main constitutional articles and the Charter of Fundamental Rights - will permit the IGC to make great progress on Part Three - the policy chapters - and Part Four - the controversial revision and entry into force provisions.

The Italians should ditch the device of the catalogue of questions, and ask just one or two of each government leader: have you read the Constitution properly? Do you think there is sufficient congruence between all four parts? Or are you willing to admit the possibility of constitutional failure and political crisis?

Unless Silvio Berlusconi and his team rapidly demonstrate such robustness and agility, it will be time for those conventionnels excluded from the IGC to reconvene. M. Giscard would surely be willing to preside over a one day joint meeting of the former members of the Convention drawn from national parliaments and the European Parliament. It was he, after all, that wanted just such a parliamentary congress as a feature of the Constitution whose job it would be, on this occasion, to shame Europe's governments into action.