Harvard Law School

Jean Monnet Chair
Professor J.H.H. Weiler

Harvard Jean Monnet Working Paper (Symposium)

This paper is a part of contributions to the Jean Monnet Working Paper 
No.7/00, Symposium: Responses to Joschka Fischer

Dietmar Nickel

Maintaining and Improving the Institutional Capacities of the Enlarged European Union

Harvard Law School    Cambridge, MA 02138

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© Dietmar Nickel 2000

Harvard Law School
Cambridge, MA 02138 
USA
Maintaining and Improving the Institutional Capacities of the Enlarged European Union**
dietmar nickel*
The current Inter-governmental Conference (IGC), due to wind up at the European Council meeting in Nice, has the explicit mandate to prepare the European Union for the expected enlargement.

What does the EU need in order to be prepared? You would probably expect a civil servant of the European Parliament to offer—or try to sell you—the European Parliament’s expectations and requirements as set out in its resolution of 13 April 2000. There are, naturally, other approaches to the issue. Here is one that I recently heard: change the legal basis for the adoption and revision of the financial regulation from unanimity to qualified majority voting, and turn the agriculture budget from compulsory into non-compulsory spending, and you will obtain the necessary financial margins for enlargement. I must confess I can see the charm of this proposal. There are even people who think that all these proposals—even those put forward by the European Parliament, were they to be adopted—would not be sufficient. And indeed, even the more radical reformers cannot figure out what it will mean for the Union to be enlarged by twelve or more new Member States, to increase both its current population and its current territory by a third. This will by no means be an enlargement comparable to the previous ones.

Is it useful to try to address this problem at this stage? We all know the kind of answer which the IGC is likely to produce. We all know that it will fall far short of the solutions, reforms, revisions, and ideas required. But what will it, actually, produce?

a)	a decision on the number of Commissioners and some arrangements with regard to the internal structure of the Commission;
b)	a re-weighting of votes of the Member States in the Council and an adaptation of the definition of qualified majority;
c)	a certain increase in the number of legal bases providing for qualified majority;
d)	and, in addition to these so called left-overs from Amsterdam, probably something on re-enforced co-operation, the monitoring of fundamental rights and values, the judicial system, but probably nothing on defence policy despite the fact that this will be the really important item on the Nice agenda.

One can therefore conclude that the future shape of Europe will have to be decided upon later and this means that it will be decided together with the future Member States. This is certainly appropriate because what matters is not how difficult decision-making can be when a considerably increased number of participants is involved—what matters is that the applicant states have a chance to contribute in a constructive manner to defining the future European house. The diktat of the acquis in the enlargement negotiations should not be matched by a diktat on the future structure of the European Union.

So, there will be further steps to take after Nice. When? In 2004 it would seem, from listening to Chancellor Schroeder.

But (1) in which direction? and (2) how?
1.
Some of the issues which will be on the agenda are already well-known. There is the idea, based on the work carried out by the European University Institute in Florence, of splitting the Treaty in two. To have a first part which contains all the provisions at constitutional level and then a second part with all the remaining rules would, of course, be an important step towards an EU constitution, especially if the revision procedures for these two parts differ. Another item could well be the Charter on Fundamental Rights, provided that it is not already integrated into the Nice Treaty. Then, there is the wish expressed by the Germans to have a new catalogue of competences. Finally, the most dynamic policy field in European politics nowadays is probably Security and Defence. Despite this, however, there seems to be little intention to translate these developments into treaty changes in Nice. Were it not for reasons of constitutional hygiene at least, the next IGC would have to introduce a developed security and defence scheme into the Treaty. So far, it looks as if these items are going to be the future left-overs from Nice. There are, however, other issues which, in my view, are the real challenges of the 2004 appointment. The most important one is, of course, the future institutional set-up for what, by then, will be a partially enlarged Europe. An idea of Europe’s future institutional structure was given by Joschka Fischer in his by now famous Humboldt speech of 12 May 2000.

The German Minister for Foreign Affairs has, in the recent past, held a number of speeches on the future of the EU, for example, one at the European Parliament on 12 January 1999 in his presentation speech for the German Presidency of the Council and another on 20 January 1999 at the National Assembly in Paris. These speeches were of the more orthodox kind and thus received nothing but praise. The Humboldt speech is certainly breaking new ground, in the sense that we can see and hear somebody thinking aloud without necessarily coming to a convincing conclusion. Naturally, this explains why the criticism concerning the Humboldt speech was much stronger.

First of all, let me say how pleased I am that the German Minister for Foreign Affairs, even if he was not speaking in that capacity, is involved personally in reflecting on the future of European integration. He certainly is committed to a degree which goes well beyond the involvement of most of his colleagues.

The speech came at an interesting moment, 12 May being very close to Schuman day, and almost exactly three months after the opening of the IGC. It has been correctly remarked that Joschka Fischer wanted to play down expectations with regard to the outcome of the IGC. It has become very clear that the current IGC will not go very much beyond the very limited agenda it started off with. At the same time, Joschka Fischer is also putting the current IGC into perspective. This is his major achievement. He is the one who has focused people’s attention on the question of the future of the European Union, and he is the one who has been able to impose a debate revolving around the idea of an EU constitution; something which, for years, had been reserved to academic circles like ours, and has finally come to the fore of political debate. Just remember that President Chirac felt obliged to give an answer on the same level, using the same categories of thought, and to conclude in favour of a European constitution. Consider also the sudden spate of constitutional drafts, this time coming mainly from France.

Joschka Fischer used, and made other people accept, a word such as ‘finalité’. A few years ago, this would have been considered just another ‘F’ word.

I am not going to proceed with a detailed analysis of the speech, but there is one paragraph that I would like us to look at together:

And this means nothing less than a European Parliament and a European government which really do exercise legislative and executive power within the Federation .… This will only be possible if this European Parliament actually brings together the different national political elites and then also the different national publics.

In my opinion, this can be done if the European Parliament has two chambers. One will be for members who are also members of their national parliaments. Thus, there will be no clash between national parliaments and the European Parliament, between the nation-state and Europe. For the second chamber, a decision will have to be made between the Senate model, with directly-elected senators from the Member States, and a chamber of states along the lines of Germany’s Bundesrat. In the United States, every state elects two senators; in our Bundesrat, in contrast, there are different numbers of votes.

Similarly, there are two options for the European executive or government. Either one can decide in favour of developing the European Council into a European government, i.e., the European government is formed from the national governments, or—taking the existing Commission structure as a starting-point—one can opt for the direct election of a president with far-reaching executive powers. But there are also various other possibilities between these two poles.
Looking Through a Glass, Darkly
These were not Mr Fischer’s last words and this is why there should be no final judgement on the proposals made.

Let me just raise a few questions, the first of which is the wish to parliamentarise. The institutional framework of the European Union starts with a description of a European Parliament with two chambers...

One will be for members who are also members of their national parliaments…

…This is the situation that I experienced when I started to work for the European Parliament. Members were elected to a national parliament and then delegated from there to the European one. Mr Fischer does not talk about delegation, so he does not exclude the possibility that there could still be direct elections to the European Parliament, which, after all, was one of the major achievements in European institutional history. In this case, the necessity to be a member of a national parliament would just be a qualifying factor, but what would be the result? Contacts between national parliaments and their relation with national governments would be closer, provided that the Members of the European Parliament had the time to look after their obligations in the national parliaments. Would this be feasible? It is more than doubtful. Firstly, is it conceivable that a national parliament (The House of Commons, The Bundestag, The National Assembly of France, etc.) could replace their influence in legislation by a delegation, be it as representative as it can? Secondly, there are also practical considerations to take into account. The non-directly elected European Parliament suffered from the absence of entire national delegations whenever there was an election at national level, or some national crisis that required their presence in the national parliament. Before 1979, this did not do very much harm. The then European Parliament had almost no legislative powers and was not subject to any specific requirements concerning voting majorities, with the vote on the budget being the one exception. The situation already today—and we are not yet in a fully parliamentary system—is entirely different. The European Parliament is co-legislator on an equal footing with the Council for probably the majority of legislative business. This certainly means that it bears a totally different responsibility. Just think of the need to gather the support of the majority of the members of the house, in order to assert Parliament’s prerogatives in second reading, and perform this within strict deadlines. To be an MEP today is a 24-hour full-time job. Were we to support Mr Fischer’s proposal we would either end up with a European Parliament failing to make efficient use of its prerogatives, or we would deprive national parliaments of their European components. In both cases, the intended objective would be missed.

For the second chamber, a decision will have to be made between the Senate model … and a chamber of states along the lines of Germany’s Bundesrat…

…Both models are well known. Admittedly, they work in very different systems. The most remarkable thing for me is that Mr Fischer avoids creating a more complicated and cumbersome situation, which would exist if such a model was applied to the existing structure. He avoids the creation of a third parliamentary chamber by abolishing the Council’s legislative functions. This is simply revolutionary. Since 1958, the Council has retained almost all legislative power and only since Maastricht has it partly shared it with the European Parliament. The Council has, of course, always had executive powers as well. In one of the two options for the EU executive put forward by Mr Fischer, these powers could be maintained.

Member States are the masters of the treaty. This is a fundamental constitutional principle of European integration. Depriving the Council, which is the institution representing the governments of the Member States, of its legislative role is an entirely new idea, and would certainly put a bomb under the traditional integration structure. Is this intended? Or is this only a reflection of Mr Fischer’s well-known dislike of the Council’s proceedings?

There are two options for the European executive or government. Either one can decide in favour of developing the European Council into a European government: or—taking the existing Commission structure as a starting-point—one can opt for the direct election of a president with far-reaching executive powers…

…Article 4, paragraph 2, TUE, reads, ‘[T]he European Council shall bring together the Heads of State or Government of the Member States and the President of the Commission. They shall be assisted by the Ministers for Foreign Affairs of the Member States and by a Member of the Commission….’ What would happen if Mr Fischer’s first option were to be applied? When Mr Fischer explains that in this case the European government would be based on national governments, surely he is not referring to the Heads of State and Government? Probably not—because we cannot imagine a Head of State or Government being part of the European executive, involving him or her from dawn to dusk with European governmental functions. The next question concerns the President of the Commission in his capacity as a Member of the European Council. What will happen to him in this option—or has he just simply been forgotten?

As for the second option, namely, the direct election of a president with far-reaching executive powers, this is a well-known idea. The election does not seem to be linked in any way with the European Parliament polls, and thus deprives the European Parliament of at least part of its appointment functions, which have been the subject of discussions on future developments. There seems to be a very strong influence coming from the US model. The idea of parliamentarisation has been given up in favour of a strong executive.

There is no explanation at this stage of the links to be established between the directly-elected president of the executive and national governments. This again raises the question of what will be the future of the masters of the treaty.

The questions raised by the Humboldt speech should not necessarily be answered at this stage. As already indicated, Mr Fischer has engaged in a long-term discussion and reflection. The Humboldt meditations were not his last words. Indeed, we had the opportunity to see how his thoughts had developed when he attended a public meeting of the Committee on Constitutional Affairs of the European Parliament in Strasbourg on 6 July last. A number of important developments in Mr Fischer’s views can be observed. With regard to the future government, he now comes out in favour of a directly-elected President, whose Commissioners would be coming from national governments. He explains his choice by making explicit reference to the American model in the years between 1776 and 1789. To make it even clearer, he is against an indirect election by the European Parliament, because in this case the president would be too weak(?!). In his opinion, the indispensable combination between community and national principles, between democracy and respect of the national states can be attained only by directly electing the President and by recruiting Commissioners from the governments of the Member States. The Commission as it is today—according to him—is merely the depository of the Community values stemming from the Treaty and lacks the legitimacy which is derived from national level. This future government would thus find its constitutional legitimacy through the direct election of its President. Another way of achieving this could be the use of electors, along the lines of the US presidential election. In this case, the legitimacy of the government would find its origins in the Council as a body representing its different national components.

The parliament would consist of two chambers: one directly-elected (and there is no longer any mention of membership of a national parliament as necessary qualifying requirement) and the other (a senate) made up of members of national parliaments. The German model of the Bundesrat with representatives from the national governments does not seem to be sufficient for Mr Fischer.

We see that the number of options has been narrowed down—with one element of continuity: national governments would no longer have any share in legislative powers. Furthermore, the question concerning the legitimacy and the efficiency of a chamber composed of delegations of national parliaments remains on the table.

There seem to be two driving forces behind Mr Fischer’s vision: one is his conception of the Monnet method. To his understanding, the Monnet method has become the victim of its own success and has already been overtaken by Maastricht. This is revelatory: Mr Fischer understands the Monnet method as an enterprise started by technocrats who have no idea about the final objective. From this assumption, it is only too normal that somebody claiming to know what the ‘finalité’—the objective—should be considers the method outdated. It has already been shown that this conception of the Monnet method is erroneous. Maybe, Mr Fischer is confusing the day-to-day muddling-through method with the Monnet method. There is another reading of the Monnet method which disappears entirely in Mr Fischer’s approach. This particularly concerns the role of the Commission as a supra-national organ, committed to the protection of the interests of the Community or Union, independent, having an exclusive right of initiative, the possibility of blocking draft legislation if it disagrees with the direction it is taking, the role of the guardian, and the driving force of the Treaty. All of this, in Fischer’s conception, seems to be forgotten. Is this the understandable result of his misconception of the Monnet method or, worse, is it intentional? 

The second driving force concerns the role which the national parliaments want to play in the European construction. This goes back to growing frustration in various national parliaments, due to the fact that they discover that more and more issues are dealt with and decided upon at European level. And this also goes back to the myth of the democratic or legitimacy deficit. If one considers citizens’ involvement, there may well be such a deficit. But switching from one level of democratic representation to another does not solve the problem. And to seek the, as shown before, impracticable involvement of national parliaments by sacrificing national governments seems to be too high a price.

To do something about the frustration of national parliaments seems to be difficult if one follows the path chosen by Joschka Fischer. Maybe, the procedure to be followed for the next steps provides us with an opportunity:
2.
If there is something outdated in the Union’s way of evolving, it is probably not the Monnet method—at least, in the way I understand it—but in the treaty revision procedure, i.e., the so-called Inter-governmental Conference. The current IGC is the fourth IGC since 1985. In reality—from a political, not legal point of view—there has been one single IGC which has been interrupted from time to time in order to ratify its intermediate results. I have come to this conclusion, not simply because of the rapid succession in time of these Conferences, but also because of the links established between the IGCs. When, in Milan in June 1985, the Heads of State and Government convened an IGC by majority vote, they wanted to provide the Community with the instruments necessary for the realisation of the single market. The best expression of their expectations with regard to this IGC is the title of their final text: The Single European Act. But there was a trick to it. Commission President Delors had convinced the IGC to introduce Article 102(a) EEC, the second paragraph of which made it mandatory to have recourse to the procedure of the treaty revision (the then Article 236) for the establishment of a monetary union. Until then, it had been argued by some that the then Article 235 (now Article 308) was sufficient to do so. What seemed to be a step back at that time was the real starting point of a continuing IGC. It was this Article 102(a) which made the Maastricht conference necessary. Maastricht itself contained an appointment for the next IGC in 1996, because of the general feeling that the appropriate answers to the political union had not been found. Amsterdam created the so-called left-overs and thus the obligation to hold the current IGC, and now we are talking about the next appointment in 2004.

There is a decline in the quality of the IGCs. No doubt, the creation of the single market was a major development. No doubt, the same applies for the Maastricht creation of the monetary union. The following steps are more an effort to tidy things up. If Amsterdam was intended to create a political union, it did not achieve this objective, and without diminishing the importance of the so-called left-overs, the current one is even less ambitious. Despite this, we expect this same procedure to deliver a major qualitative step, to establish the European constitution, to put the final touches to the European house in 2004? The question is rhetoric. The current method of the IGCs is unworkable. 

But there is a new model on hand: consider the procedure for the establishment of a Charter on Fundamental Rights. The Convention operates with fifteen personal representatives of the Heads of State and Government, sixteen members from the European Parliament, one Commissioner and 30 representatives coming from the national parliaments. So, here is a model fully integrating national parliaments in the procedure for the establishment of a piece of the future constitution. There is no going back now. National parliaments will never again accept being only confronted with a new treaty negotiated exclusively between the governments, and being simply asked to ratify it.

Certainly, the Convention procedure for the charter could be improved. Especially the representation of the national parliaments could be looked at afresh. The number of thirty provides for two delegates per Member State. It does not relate to the different population sizes represented nor to the number of chambers involved (24). One could also question the capacity of the national parliaments’ delegation to work out a coherent line.

The idea of such an involvement of the national parliaments is certainly not the last word and, with regard to the IGCs, it might be even unrealistic. This would be sad, because, in such a case, we would go back to the misconception of the Monnet method—the muddling through. The results achieved in the permanent IGCs would be smaller and smaller.

This sounds pessimistic and is not justified if one considers the achievements of the last fifteen years: the single market, EMU, almost full parliamentary involvement in legislation, the by now realistic prospect of an area of security, freedom and justice, and the emerging common foreign security and defence policy.

Whenever I feel prone to growing pessimism, I go back to the comments made by the British observer at the mid-term session of the Messina conference, Mr Russel Bretherton. Before rising from the negotiating table, he said: ‘Gentlemen, you are trying to negotiate something you will never be able to negotiate. But if negotiated, it will not be ratified. And if ratified, it will not work.’ Compared to this, we have not done so badly.