Jean Monnet Center at NYU School of Law


B. The new Treaty

It proved impossible to dissipate this atmosphere of conflict before the summit opened. Despite Jacques Chirac's tour of the capitals and intense bilateral contacts between the main interested parties, differences remained as wide as ever. In particular, there was no movement on the three most controversial issues.42 Reassuring statements claiming there was a definite political resolve to reach substantial conclusions barely concealed the inflexible stances adopted in the various capitals, giving the Heads of State and Government little apparent room for maneuver.43

Stepping up the pressure, perhaps with a view to cushioning the blow of a mediocre result or to proclaiming an unexpected victory should an opening appear at the last minute, President Prodi declared on the eve of the summit that the chances of success were mixed. Tensions ran high, made all the keener by the anti-globalisation activists who were demonstrating in force, turning Nice into a kind of rerun of Seattle.

To complete the picture, Germany and Italy, followed by other Member States, immediately announced that they were asking for a formal commitment by the fifteen Member States to convene a new IGC in 2004 to discuss the EU's constitutional problems, thus, to some extent, anticipating that the Nice summit would end in failure or at the very least yield unsatisfactory results.

On Saturday 9 December 2000, three successive Presidency papers were rejected and the summit had to be extended to run into Sunday. A number of bilateral meetings failed to bridge the gap between the different positions. It was then suggested that the question of the Commission's composition be deferred to a later date, after the accession of a substantial number of new Member States, and that the number of MEPs be increased to 738 to satisfy all sides, while discussions on the weighting of votes in the Council were completely deadlocked, France having thwarted Germany's goal of a dominant position, and the smaller countries having openly denounced their larger counterparts as seeking to form a leading cartel and reduce the smaller countries' role in the decision-making process.

However, failure would have had disastrous internal effects at a time when the euro was on the launch pad and would have undermined the confidence of the applicant countries in the integration process. Pressure was mounting on all sides.

On Sunday morning, the European Council's conclusions on the remaining items on its agenda were already on the Internet, but the compromise on amendments to the Treaty was still outstanding. The discussions were forced on through Sunday night. At that time, several leaders felt it might all end in failure. Deliverance came at 4:30 am on Monday 11 December after a marathon summit, lasting four days, the longest in history.
The outcome was greeted by the Heads of State and Government as a major victory for the European ideal and a significant step forward in the integration process, whereas President Prodi said it fell short of the Commission's ambitions.

The press, reflecting European public opinion, described it as a vast horse-trading exercise, highlighting the conflicting interests of the main players. Several members of the European Parliament gave similar reactions.

But everyone seemed to be relieved, including the applicant countries, for whom failure would have been worse than a bad result.

Let us now take a closer look at that result. First, however, it is important to understand that, because it is not yet known exactly when and in what order the applicant countries will join the EU, the new definition of qualified majority within the Council, as well as the new composition of the Commission and the new distribution of seats in the European Parliament are determined by the treaty of Nice for a Union of 15 Member States. The treaty restricts itself to setting out the principles and methods for changing this system as the EU grows: they are listed in the Protocoll on Enlargement and attached declarations, which establish a gentlemen's agreement between the current Member States for their common position during the coming negotiation procedures. But the real number of seats in the European Parliament for the new Member States, the number of votes allocated to them within the Council, and particularly the qualified majority threshold applicable in the future, will all be legally determined in the subsequent accession treaties.

1. Extending the co-decision procedure and qualified majority voting

The French Presidency had made substantial progress in this field, which was one of the keys to the success of the IGC. Its efforts were not entirely misguided either, as this issue turned out to be less complicated than the composition of the Commission or, especially, the weighting of votes in the Council.

The IGC's task here was to distinguish between policy areas where decisions can be taken by qualified majority voting and others which cannot be developed without the agreement of every individual Member State. In this respect it soon became obvious that provisions could be divided into two groups: of the 75 remaining cases where the Treaty still required unanimity, all the Member States agreed that consensus must continue to be the rule in about 25; in the other 50 cases both the Portuguese and the French Presidencies considered that unanimity should and could be replaced by qualified majority voting.

During the last months of the negotiations, it was established that, among these articles, there were five sensitive areas where the transition to qualified majority voting was particularly important for an enlarged Union, but would be difficult for certain delegations to accept. The relevant provisions concerned the coordination of social security schemes for cross-border workers and minimum requirements in social policy (Articles 42 and 137), visas, asylum and immigration issues (Article 67), the taxation question (Article 93), the services and industrial property aspects of the common commercial policy (Article 133) and the financing of economic and social cohesion policy (Article 161).

Specific requests on particular issues from a number of Member States meant that this list could get unacceptably longer. However, substantial progress was made on most of the overlapping demands (the use of specific declarations helped defuse the situation), so that the final negotiations concentrated on the five key questions.

But here the situation very quickly became extremely tight, with the UK refusing outright to abandon national sovereignty to such a far-reaching extent, more specifically in taxation and social security, while France had its traditional problem of commercial policy exemptions for culture and the less developed countries wanted to retain a final say on the financing of economic and social cohesion policy.

In these circumstances, it is not surprising that the final compromise represents the lowest common denominator.

Despite strong pressure from the Commission, Italy and Belgium, the UK argued strongly that taxation and social security matters were for national governments and parliaments and not suitable for qualified majority voting, even though the compromise proposals covered only indirect and company taxes and were aimed at smoothing free movement between countries. Finally, the IGC decided not to amend article 42 TEC concerning the coordination of social security systems and to retain the unanimity requirement for all treaty provisions relating to taxation (articles 93, 94 and 175 TEC). The UK also successfully opposed ending the veto on measures to combat fraud against public finances, which the Presidency had shifted from the tax heading to customs.

As far as the common commercial policy is concerned, the final deal was to allow, in principle, the broader area of trade in services to be decided by qualified majority, but only after accepting exemptions for France in culture and audiovisual services. The new text of Article 133 was settled after hours of talks between the French and other delegations. This agreement follows ten years of campaigning by the Commission to obtain greater freedom to lead negotiations for the EU in trade in services. The final compromise includes the negotiation and conclusion of international agreements in the area of trade in services and the commercial aspects of intellectual property. These agreements are concluded by qualified majority, except when they include provisions for which unanimity is required for the adoption of internal rules, or when the agreement concerns an area on which the Community has not yet exercised its responsibilities. In addition, the agreements related to the harmonisation of cultural and audiovisual services, education services, social and health services continue to be the subject of responsibility shared with the Member States.

The overall compromise therefore appears to meet in part the Commission's demand that exceptions be kept to clearly defined areas, with minimum effect in other sectors. It is worth noting here that the draft Treaty presented at the beginning of the summit included an attached Protocol on the participation by the European Community and its Member States in the work of the WTO under Article 133(4).44 This text essentially codified existing practice, but also helped define the respective roles more sharply, particularly in areas where responsibility is shared and the Commission had always requested more clarity. However, this useful text was not included in the final draft.45

The unanimity rule was also retained in the more controversial areas of migration and asylum, while the less developed countries succeeded in keeping their veto on the financing of the Structural Funds, at least until 2007. The IGC only decided that a major part of the visa, asylum and immigration policy would be adopted in the future under the co-decision procedure without specifying this later date. As far as the cohesion policy is concerned, the introduction of the qualified majority voting from 1 January 2007 was decided, provided that the multiannual financial perspective for 2007 and beyond and the corresponding interinstitutional agreement had been adopted by that date.
This means that, despite being poorer, the new countries that join will have very little say here in future-another sign that the cohesion of the Community is giving way to a less homogenous Union, where newcomers must make part of the sacrifices that are needed themselves, if they are to take up their place alongside more advanced partners. While it may be feasible in budgetary terms to reach unanimous decisions sharing out resources more equitably among ten or even fifteen Member States, it will no doubt be virtually impossible to do the same in a Community of 30 or more Member States. The larger the family, the harder it is to stick together.

In the end, qualified majority voting was introduced in only 27 provisions-of varying degrees of significance-out of the 50 initially proposed by the Commission and the 75 cases where the unanimity rule still prevailed in the Treaties. The co-decision procedure will be applicable for only seven provisions that change over from unanimity to qualified majority voting (articles 13, 62, 63, 65, 157, 159 and 191). The IGC was, however, unable to extend the co-decision procedure to legislative measures that already come under the qualified majority rule, like the agriculture or the trade policies.

If the extension of qualified majority voting in connection with the co-decision procedure was the benchmark of success at the Nice summit, we cannot claim that the results match up to the ambitions of the French Presidency or of the advocates of closer integration and more effective institutions. For his part, President Prodi has been very critical of the narrow-minded attitude that prevailed at Nice in this respect.46

2. Weighting of votes in the Council

It emerged very quickly that weighting of votes would be the thorniest issue in the whole negotiations, as the new weightings would form the basis for the future balance of power-all the more so since the decision taken here would affect the applicant countries, prefiguring the plausible alliances after enlargement of the EU.

Up to now, the system has proved sufficiently representative and balanced: the size of the qualified majority has varied from 67% with the six founding Member States, to 70% with ten Member States; now, with fifteen Member States, it is 71.2%. Decisions have always had to gain the support of a large majority in terms of population and at least half of the Member States, while the blocking minority required to stop any decision could be obtained only by the three Member States with the largest population or by a larger group of smaller Member States.

However, none of the proposals on the table appeared to offer the same guarantees in an enlarged Union. This situation, already complicated at the outset, was further aggravated by Germany's ambition to ensure predominance over the other large countries on the strength of the effects of reunification, by the Spanish and Dutch aspirations to improve their respective positions between the larger and smaller countries, by the determination of all the large countries to offset the possible loss of a Commissioner through better representation in the Council, and by the concern of the small countries to safeguard a certain degree of influence in the decision-making process.

When the summit opened, the questions on the table included the following difficult choices: a) should the treaty lay down that a qualified majority must always encompass a majority of Member States (the position supported by the ten Member States with the smallest populations)? b) What would be the size of the blocking minority, given the fact that the larger Member States wanted it kept at the present level, which can be attained by the three of them working together? c) Should the present groupings of Member States be retained in the event of reweighting, or more flexibility introduced to the system in order to differentiate further between larger and smaller Member States? And finally, d) which model and which figures should form the basis for an agreement?

The simple dual majority proposed by the Commission and supported by the smaller Member States, a plan to adapt the present system -with a significant change of balance in favour of the larger Member States-and three intermediate Presidency proposals were all rejected. Several Member States (Belgium, Sweden, Greece, Netherlands, Portugal and Finland) tabled specific proposals, but there appeared to be deadlock until Sunday evening. When France tried to take advantage of its Presidency to conclude a deal that favoured the large countries, its proposal was strongly rejected by some of the smaller Member States: the Portuguese Prime Minister António Guterres called it an institutional coup d'état and Belgium even threatened to veto the entire final package.

A compromise was found in a kind of triple majority: for a decision to be adopted it must have the agreement of the majority of the total number of the Member States, between 71 and 74% of weighted votes and, if a Member State so requests, 62% of the total EU population.47 It was also agreed that, after the successive waves of accessions, the requisite percentage of weighted votes will increase to a maximum of 73.4%, which means that three large Member States and one small State will be able to oppose a decision that has the support of all the others.48

While it is true that everyone was-more or less-satisfied, the decision-making process has now become more cumbersome, with the way left open to many different alliances, which could in the end make quite a difference.49 One cannot help but notice that in a more German-influenced Europe (including Poland, the Czech Republic, Hungary and the Baltic States), Germany's relative weight will increase considerably, despite its parity of votes with the other major countries, in particular France. This is perhaps where we can find the roots of the final compromise. Despite the drawbacks, this fiddling with the weighting of votes can be said to be the only real decision of the Nice Summit and the only real breakthrough with a view to enlargement. It is not by chance that the greatest satisfaction with the final compromise was expressed by the applicant countries.50

3. Composition of the Commission and its political accountability

Right from the start, the dilemma was whether to reduce the number to one Commissioner per Member State or to establish a Commission with fewer members. Delegations were divided between these two options, the ten smaller Member States being more comfortable with the first, and the five larger Member States preferring the second.

As expected, the smaller countries resisted to the end, not only holding on to their own member of the European executive, but also refusing to give in to proposals for a hierarchy among them.

In these circumstances, a third compromise option appeared to be emerging: introducing a Commission with fewer members after a transitional period when the status quo would be preserved. Thus, when the next Commission took office in 2005, it would consist of one Commissioner per Member State and, subsequently, for example in 2010, the numbers would be reduced in parallel with the introduction of a rotation system in which all Member States would be on an equal footing.

In the end the chosen solution was to set a ceiling to be applied at a later date, while retaining the status quo up to 2005. What happens afterwards is not altogether clear: it appears that from 2005 the larger Member States will lose their second Commissioner and all Member States, old and new, will have one Commissioner each until their number reaches 27. From then on, the number of Commissioners will be cut and a system of egalitarian rotation will be installed amongst all the Member States.51 However, neither the size of the reduction nor the detailed arrangements for rotation have been laid down, which means that this question will be settled only after a future IGC or by the unanimity of the Council. One way or another, a definitive ceiling for the Commission's membership must be decided after 2010.

In addition to these changes to the Commission's membership, the IGC reached agreement on a number of measures concerning the organisation of its internal proceedings, and in particular to strengthen the President's powers in order to guarantee the consistency and effectiveness of the Commission's decision-making. The President may now reshuffle portfolios during the term of office, appoint Vice-Presidents and ask a Commissioner to resign, albeit after obtaining the collective approval of the Commission (Article 217).

It is unclear whether these measures can offset the loss of effectiveness arising from the increase in the number of Commissioners, even if only temporary. It is worth noting that, at the request of the smaller Member States, proposals on the President's power to lay down the political guidelines to be followed and the re-evaluation of the role of Vice-Presidents in supervising and coordinating entire policy areas were abandoned in favour of greater collective responsibility of the institution.

We should note too that a proposal allowing the Commission to ask for a vote of confidence in the European Parliament was quickly discarded as a step too far towards giving the Union institutions a parliamentary structure. However, such a procedure would have rationalised the political accountability of the Community executive, which has suffered a rough ride with the recent resignation of the Santer Commission-another opportunity missed.

On the other hand, the overall success in applying qualified majority voting to appointments was extended at the last minute to include that of the Commission President, ensuring that a single country can never again block such an appointment, as the UK did with Jean-Luc Dehaene in 1994. This is undoubtedly a positive step, but there is no guarantee that a majority appointment will help boost the legitimacy and prestige of the Commission President and thus enable him or her to play a more effective role of primus inter pares than provided for in the present Treaties.

4. Composition of the other institutions

The plat de résistance here was the European Parliament. In the end, the Amsterdam ceiling of 700 had to be raised. To keep all sides happy, the number of MEPs will now be limited to 732, and Germany will have the biggest representation (99 seats). The composition of Parliament will change from the next European elections in June 2004, with reductions in the number of seats in all Member States (total reduction from the current 626 to 535) except Germany and Luxembourg, which will retain their present numbers (99 and 6 respectively).52 This judicious arrangement was the outcome of very lively exchanges between all the partners, with the applicant countries having their own supporters inside the negotiating room.53
As the likelihood is that new Member States will enter the EU during the 2004-2009 term of office, and that as a result additional MEPs will be elected in these countries, it is anticipated that the maximum number of 732 seats may be temporarily exceeded in order to accommodate MEPs from the countries which will have signed accession treaties after the 2004 elections. This means that an additional arrangement should be necessary after the termination of the enlargement process, if the ceiling of 732 MEPs must be respected. The final figures are based primarily on each country's population, with a certain bonus for the smallest countries to allow for the representation of all political tendencies.
The lively discussions on this subject, which were even tougher than those on the composition of the Commission, illustrate the growing importance of Parliament in the EU decision-making process. In this respect, it must be emphasised that, in essence, membership size in Parliament was used to counterbalance the position in the Council. This highlights not only the defensive attitude of the Member States, but also the increasing role of the Parliament/Council tandem in the production of European legislation and a diminishing of the respective role of the Commission.

Other gains for Parliament include the Statute for MEPs and financing for political parties at the European level, despite a declaration stating that this implies no transfer of powers to the Community and does not affect the application of national constitutional rules (Article 191). Supporters of the sovereign State are haunted by the specter of the emergence of European political forces that transcend national political divisions.

By contrast, the protection of the Community's financial interests and the creation of a European Prosecutor, issues of great concern to Parliament, were not even backed by a small group of Member States. Parliament's main disappointment, however, was the poor progress in extending qualified majority voting in connection with the co-decision procedure and the refusal to grant official status and binding legal force to the Charter of Fundamental Rights. Some predict that this may be a reason for rejecting the Nice Treaty, and some Member States are linking acceptance of this issue with their ratification procedures. We do not believe that things will reach that point.

As for the rest of the institutions, things were much easier, although this facility in obtaining results must be seen against the fact that it was the most "generous" solutions which were adopted.

For example, the Court of Auditors will comprise one member per Member State and the Economic and Social Committee and the Committee of the Regions will each have 344 members, with an absolute ceiling of 350, the highest number ever envisaged during the negotiations.54 The two bodies' consultative powers now extend to the measures in the social security field required to provide free movement under Article 42 EC. The Treaty also lays down that members of the Committee of the Regions must hold an electoral mandate and that their presence on the Committee must end when their term of office ends (Article 263).

5. The future of the European Union's Court system

Despite the importance of the Court system-particularly with a view to increased federalism and during the transitional period-which leaves judges a wide margin of discretion, this was one of the least controversial chapters in the negotiations. Agreement was reached fairly quickly, and the IGC came to a conclusion even before the European Council meeting. The amendments made are numerous and significant, further highlighting the merits of the consensus.

The main novelty is the elevation of the Court of First Instance (CFI) to a court enjoying widespread powers. Its jurisdiction has been extended not only as regards actions brought directly-it now covers virtually all such actions-but across all areas of Community litigation, including part of the procedure for references for preliminary rulings, which is seen as the core of the European system of constitutional case law. Under Article 255 EC, the jurisdiction of the CFI becomes the rule, save in cases reserved for the European Court of Justice (ECJ) in accordance with its Statute, or where the CFI itself refers a case to the ECJ on its own initiative because that case-for example a reference for preliminary ruling-calls for a decision in principle likely to affect the unity or consistency of Community law. The CFI also takes on the role of an appeal court for decisions by the judicial panels set up under Article 225a.55

Given the increase in the CFI's powers and in order to relieve it of specialised cases (particularly actions brought by officials), Article 225a provides for the creation, based on a right of initiative shared between the Court and the Commission, of specialised judicial panels, which will operate as junior courts within the hierarchy of the European judicial system.

Another novel feature is the inclusion in the Treaty (Article 229a) of a clause allowing the creation of judicial bodies in specialised areas, by unanimous decision of the Council and after ratification by the Member States, starting with Community industrial property rights (European patent disputes). This alleviates the CFI's concerns regarding these very technical cases, which already promise to generate a rather heavy workload, and points the way towards a system for scrutinising the legality of other specialised rules that may be laid down, perhaps in the near future, by new independent agencies established in other fields of a highly scientific and technical nature (e.g. air, maritime and food safety).56

Finally, the number of judges in the ECJ is the same as the number of Member States (Article 221). Meanwhile, to prevent its structure from becoming too cumbersome, the ECJ may sit either in chambers (five judges) or in a Grand Chamber (the size of which is set by the Statute at eleven judges) or, in exceptional cases, in plenary session. Judges serve for a six-year renewable term and are appointed by the Council acting by qualified majority, after consulting the European Parliament, on the basis of proposals from each Member State. By contrast, the number of Advocates General is limited to eight (Article 222), although the Council may increase this number by unanimous decision.

The CFI is composed of at least one judge from each Member State and may be assisted by Advocates General if the Statute so provides (Article 224). This illustrates the CFI's vocation, which is to become a court concerned with examining facts and equipped with the resources to fulfill this task, in comparison to the ECJ, which must remain a high court with a restricted composition, more along the lines of a federal supreme court.

Another interesting innovation is that Council will now approve the rules of procedure of both the ECJ and the CFI by qualified majority rather than unanimity (Article 223), thus facilitating the internal organisation of their work.

A similar and even more interesting new development is that the Statutes of the ECJ and the CFI are to be laid down in a separate protocol, to be adopted by the Council acting unanimously, based on a right of initiative shared between the Court and the Commission. Only Title I of the Statute (on the status of judges and advocates general) will still come under the deliberations of the Heads of State and Government in amending the Treaties. This may herald a new way of revising certain provisions of primary law more easily following a scission of the Treaties into two parts.57

Last but not least, Parliament has obtained two long sought-after prerogatives: an extension of its right to bring court actions direct-on a par with the Member States and the other Institutions (Article 230)-and the power to ask the Court for an opinion on the compatibility with the Treaty of an international agreement (article 300 par.6). These amendments, which follow directly from Maastricht and Amsterdam, have given a massive boost to Parliament's role as a real co-decision-maker in the Community's decision-making process.

These changes can only be welcomed. They will give the judicial branch of Community authority added confidence and greater effectiveness in tackling the challenges it faces not only in the run-up to enlargement, but also at the dawn of a new era of constitutional turbulence, in which the Court will very probably be called on to play a real role in the division of powers between the Member States and the institutions, and between the institutions themselves, in accordance with the principles of subsidiarity and the separation of legislative, regulatory and executive power.

To carry out this task reliably, the European court system needs not only adequate material resources, but also-and primarily-greater legitimacy in the eyes of the public, which can be achieved only through the quality, constancy and consistency of its case law. The Court's authority must not be watered down in a multipolar European judicial system that is difficult for the public to comprehend. It is therefore important for the ECJ to establish as quickly as possible, in accordance with the declarations attached to the relevant Treaty provisions, a clear breakdown of responsibilities between itself, the CFI and the new European judicial bodies. This breakdown must serve the administration of justice, an increasingly complex and technical affair, but above all it must safeguard the ECJ's constitutional nature and its vocation to become the Supreme Court of the United States of Europe. We are convinced that, irrespective of the final outcome of European integration, and particularly in view of the uncertainty over the nature of that outcome, the ECJ will long be called on to play a crucial role in preserving the Community bond and driving forward the common enterprise, with due respect for the rule of law.

6. Closer cooperation and flexibility

This issue was the one where most progress was made during the negotiations. A gradual easing of attitudes that were at first hesitant or downright hostile led to a broad consensus, marking clear progress over the achievements at Amsterdam (Articles 40 and 43-45 TEU).

A number of smaller and medium-sized Member States that were initially suspicious of an initiative emanating essentially from their larger counterparts-followed by the founding members of the Union-were gradually won over to the movement in the hope that it might help them consolidate a relative advantage over the applicant countries, which would in any case be relegated to a second or third "division" for an indeterminate period after accession. "Since we are heading for a less homogenous Community, let's at least be in the leading group" seems to have been the argument that won the day. This shows the different paths that lead to closer cooperation and also highlights the inherent difficulties in applying the arrangements in practice.

Nevertheless, the step was taken, with fewer problems than might have been expected at the start of the negotiations, enabling the French Presidency to redraft in November the relevant provisions of the Amsterdam Treaty in sixteen clauses numbered from A to P and divided into four categories: 1. The general principles governing the whole mechanism (A-F), 2. Clauses applicable in the context of the EC Treaty (G and H), 3. Clauses applicable under Title VI of the EC Treaty (JHA) (clauses N-P) and 4. Clauses which may be applicable under Title V of the Union Treaty (CFSP) (clauses I-M).58

However, during the endgame of the negotiations, Tony Blair persuaded the French Presidency to remove defense from proposals on closer cooperation. This question formed part of the final compromise, but was also the subject of deep disagreement during discussions on the independence of Europe's military capabilities vis-à-vis NATO, with France and Germany pleading in favour of an independent European military force, in opposition to the UK.59 As a result, clauses I to M apply only to the other fields falling under the second pillar, i.e. for the implementation of a joint action or a common position. Consequently, enhanced cooperation of this kind cannot be used for issues that have military implications or which affect defense matters. The authorisation for closer cooperation in these areas is given by the Council after receiving the opinion of the Commission, particularly on their consistency with the EU's common policies. In spite of the fact that the Council decides by qualified majority, each Member State may ask that the matter to be referred to the European Council for a unanimous decision, the so-called emergency brake clause.

In the general clauses, it is worth pinpointing two important new developments: the minimum number of Member States required to instigate closer cooperation is established at eight, and unanimity is no longer necessary for the mechanism to be set in motion. Other provisions stipulate that the acquis communautaire must be respected, that areas where the Community has exclusive powers must be preserved, that the internal market must not be affected, and that the mechanism must be open to all Member States (clause A). The other clauses lay down that closer cooperation may be engaged only when it has been established that it is impossible to follow the normal procedures provided for in the Treaty (B), that the participation of the greatest possible number of Member States must be encouraged (C), that the relevant operational expenditures should in principle be borne by the participating countries (E), and that consistency with Union policies must be guaranteed (F).

As regards closer cooperation under the EC Treaty, the transition to majority voting is offset by the possibility for any Member State to refer a question to the European Council before the Council of Ministers takes a decision (G). Furthermore, when closer cooperation concerns an area that comes under the co-decision procedure, the assent of the European Parliament is required.

Extending the mechanism to the second and third pillars was more problematic, in particular its introduction to matters falling under the common foreign and security policy, which was still on the agenda for Nice, but, as we have seen, was eventually dropped as far as defense matters are concerned.

Two other points were discussed at the summit: the possible exclusion of certain matters from the scope of closer cooperation (e.g. internal market and cohesion policy issues), and the role of the Commission and Parliament when closer cooperation is triggered or non-participating Member States seek to join it. Under point (e) of clause A, closer cooperation must undermine neither the internal market nor economic and social cohesion. Clause G guarantees the Commission's right of proposal and Parliament's right to be consulted, although in matters relating to the second pillar, the Commission merely gives an opinion, while Parliament is simply informed (clause K).

In the end, the "closer cooperation package" appears to be fairly well balanced. It ensures that the EU will not stagnate by, on the one hand, allowing Member States who so wish to advance, subject to certain conditions, while guaranteeing the others the right to be able to join the leading group. By preserving the Community framework and the cohesion effort, the closer cooperation mechanisms appear capable of keeping Europe on track towards ever-tighter integration, while allowing each country to go along this route according to its own rhythm and special needs.

It is true that the closer cooperation mechanisms will usher in what has variously been termed a two-speed, à la carte or "variable geometry" Europe. It is also true that such arrangements may affect the Community method, which until recently was based on the need for everyone to go down the same road together. We might say that the old argument over "widening versus deepening" has been decided, with enlargement taking priority and concerns about the perfect cohesion of the whole edifice being left aside-at least for the moment. We may fear that in so doing the Community is heading towards a free trade area rather than a political Union. This is plausible, but we should not rule out a certain degree of optimism: the same fears were voiced when the first opt-ins and opt-outs were introduced, but were not borne out by the facts. In the end, these mechanisms operated like a locomotive pulling the latecomers in the desired direction, and may be that closer cooperation will have the same effect. The institutional framework offers the necessary guarantees, and the change of mind of several small Member States points in that direction.

Only the future can answer this question. In any event, given the political necessity of eastward enlargement and doubts over the long-term goals of European integration, closer cooperation appears as a more reasonable and calculated risk than as a retrograde step in that process.60 Furthermore, closer co-operation could be considered a materialization of the constitutional tolerance principle.61

7. The Charter of Fundamental Rights

This issue is related to the discussion on democratic values and the proposed amendments to Articles 6 and 7 TEU. Article 6 states that the EU must respect fundamental rights, as guaranteed by the ECHR signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States. Under article 7, the Council may penalize a Member State if he has seriously and persistently breached fundamental rights, but there is no provision for any mechanism to prevent infringements of those rights. Following the traumatism of the Austrian experience, the IGC decided to add to article 7 TEU a provision aimed at preventing infringements of human rights. The Council, acting by a majority of four-fifths of its members, after receiving the assent of the European Parliament and having heard the Member State concerned, may decide that there is a clear risk of a serious breach of the fundamental rights or freedoms on which the EU is based. The Council may send appropriate recommendations to that State. The initiative for such decisions can come from one-third of the Member States, the Commission, or the European Parliament. The ECJ only reviews the factual conditions of the procedure (Article 46(f)).
No doubt that is a very carefully drafted procedure, in order to accommodate the sensibilities of all Member States.

It had been proposed that a reference be included in Article 6 to the Charter of Fundamental Rights of the European Union, which was proclaimed and officially signed in Nice on 7 December by the Presidents of Parliament, the Council and the Commission. But the majority of Member States preferred to go no further than this solemn proclamation. So for the time being the Charter merely has the status of a declaration.

The Charter of Fundamental Rights is in our view an important issue, even though it has not yet been officially included in the Treaty. We shall therefore make some brief comments on it.

At the Cologne summit in June 1999, the Heads of State and Government agreed on the need, at the present stage of the EU's development, to establish a Charter of fundamental rights in order to make their overriding importance and relevance more visible to the citizens. They also decided to set up an ad hoc body composed of representatives of various constituent institutions in order to draft the charter.

The precise make-up of this body, known as "the Convention", was determined at the Tampere European Council in October 1999. It had a unique composition of representatives from the Member States, the Commission, the European Parliament and national parliaments.

Its proceedings were also unique: sessions of the Convention were open to the public and all preparatory proceedings were made available on the Internet.62 Hearings were held with the Ombudsman and with representatives of the Economic and Social Committee, the Committee of the Regions, civil society in general and the applicant countries.63 The ECJ and the Council of Europe took part in the proceedings as observers.

The Convention held its first meeting on 17 December 1999. On 26 September 2000 the various groups considered that the draft Charter was acceptable to all parties and on 2 October the Chairman, Roman Herzog (former President of the Federal Republic of Germany), submitted the draft for the Biarritz European Council, where it was unanimously approved by the Head of Governments on 14 October.

The Charter consists of a preamble and 54 articles divided into seven chapters: dignity (1 to 5), freedoms (6 to 19), equality (20 to 26), solidarity (27 to 38), citizens' rights (39 to 46), justice (47 to 50) and general provisions (51 to 54).

It is not our intention to analyse the content of the Charter. However, one point worth mentioning is that it was drawn up as if it were destined to form part of a real European constitution, something which is always a possibility. Against the background of the Treaty negotiations at Nice, it is even more interesting to take a brief look at the divisions which emerged during its drafting and adoption.

First of all we find two camps-those countries wishing to go further down the road to the political integration of the EU and arguing staunchly for the Charter to be formally included in the Treaty, and those who reject any idea of introducing a constitution and hence prefer the text to have a purely declaratory status. In the end, the latter view prevailed, the problem for all sides being one of visibility rather than substance, particularly since the more federalist Member States, such as Germany, feared that the Charter might encroach on their own constitutional powers.

At the same time, many observers warned of the danger of having the protection of human rights in the EU set in stone at a level lower than that already guaranteed, notably by the ECJ, which takes on board existing standards in all the Member States.

Furthermore, several organisations representing civil society protested strongly about the Charter's shortcomings, particularly as regards social rights, the dangers posed by new technologies and safeguards for linguistic, religious and cultural differences.

In this context two major questions were raised and resolved in the Charter's general provisions: its scope, and the level of protection offered.

On the first question, Article 51 states that "The provisions of this Charter are addressed to the institutions and bodies of the Union...only when they are implementing Union law." More specifically, the second paragraph provides that "This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties."

In an explanatory text on the complete draft of the Charter, we read that "...Article 51... seeks to establish clearly that the Charter applies primarily to the institutions and bodies of the Union, in compliance with the principle of subsidiarity. (It) is only binding on the Member States when they act in the context of Community law."[Emphasis added].64
Leaving to one side the general difficulty in applying subsidiarity in texts of a constitutional nature, there is a real question of interpretation here arising from the terms "implement", used in the Charter, and "act", used in the authentic commentary on the provisions. Clearly the first term is more restrictive than the second. In its decisions the ECJ has consistently held that human rights should be taken into account by the Member States not only when transposing Community law in their own legal systems, but also when they act in the framework of Community law.65 Despite a slightly different wording in a more recent case,66 previous decisions must still be considered valid.67 Should we conclude then that the Charter could affect this case law?

An even more serious question arises in paragraph 2, which confirms that the Charter may not have the effect of extending the powers and tasks conferred by the Treaties on the Community and the Union. It is true that the ECJ came to the same conclusion-for different reasons-in its opinion No 2/94 on the Community's accession to the ECHR, given at the Council's request. The Court feared an overlap between its own jurisdiction and that of the Court in Strasbourg, and in particular the intrusion of the latter in the interpretation of Community law.68 So the Charter solemnly enshrines the fact that it is not possible for the EU to have a human rights policy. Questions may be raised as to whether such a conclusion is justified.69

Fortunately, those who drew up the Charter, perhaps foreseeing the difficulties ahead, set a minimum standard in Article 52, which states that "This provision shall not prevent Union law providing more extensive protection." The problem arises in the relationship between the provisions of the Charter and those of the ECHR.70 In fact, to ensure the necessary consistency between the two instruments, it is laid down that, insofar as the rights of the Charter also correspond to rights guaranteed by the ECHR, their meaning and scope, including authorised limitations, are the same. The minimum-standard rule means that the Community legislator must comply with these standards without adversely affecting the autonomy of Community law or the ECJ. The meaning and the scope of the guaranteed rights are determined not only by the text of both instruments, but also by the case law of the two Courts and the prerogative of the Union to provide more extensive protection in this context.

If we add to this the very general way in which the provisions and clauses of the Charter have been drafted, we can conclude that the list is open to improvement in terms of both quantity and quality. Neither the national nor Community legislator is bound to exercise any power when it comes to protecting rights further and the prerogatives of Community judges are left similarly intact.

Finally, the transition to the Charter could have been costly, but, perhaps because of the contradictory aspirations of the different partners, it has been achieved with a minimum of pain. We do not wish to minimise the symbolic value of the document or the considerable effort by the authors in arriving at an outcome which may well constitute the best compromise acceptable to all, or the high profile it has given to the EU's shared values, by highlighting the sources of its political and moral legitimacy. We must now wait for its practical application. But one cannot help but think that many people will try to use the text, and particularly the preparatory work, as a pretext for limiting the scope of the fundamental rights set out in the Charter. Transparency also has a price...

At the end of the day, no one can deny that human rights and citizens' rights are adequately protected in Europe, given the existence of diverse (national and international) instruments. There was a gap in the way they were perceived at European level, which was filled by the Charter. "Politics without policy" could be its motto, since there can be no doubt that the EU must have a policy of protecting fundamental rights, not only outside but within its borders. With the Charter, we have to some extent put the cart before the horse. An internal Union policy would certainly be an additional guarantee for the protection of European citizens, particularly the most vulnerable (minorities). Giving its content constitutional status would thus be the last remaining stone to be placed on the Community edifice. By inverting the natural order of things, the Treaty of Nice has once again shown that the paths leading to European unification are mysterious!

8. Other issues

Apart from the main points, the Treaty of Nice also contains a number of secondary or subsidiary innovations, which we shall now briefly review in order to complete our overview of its content.

Special mention should be made of the conclusions of the European Council concerning the common European security and defense policy (a timetable was established for the introduction of a European military force), even though they are not entirely an integrant part of the new Treaty.71 It is worth noting here that the subparagraphs of Article 17 TEU alluding to the Western European Union (WEU) as an integral part of the Union and providing it with access to military operational capabilities, have been deleted. Apparently these matters have now been transferred direct to the framework of the EU Treaty. It is not clear whether the WEU is also incorporated in the Treaty or whether it has become obsolete and is set to disappear in the near future. In any event, what is clear is that defense matters are given a much more prominent place in the Treaty.
Nor should we lose sight of the fact that the Council will now appoint the Special Representative for the CFSP by qualified majority (fourth indent of Article 23(2)) and that there is also partial scope for deciding by a qualified majority on the conclusion of international agreements in areas of the CFSP and justice and home affairs where the same majority is required for the adoption of decisions or internal measures (Article 24 TEU). Finally, by giving some independent authority of decision to the political committee (body non provided by the Treaty), the Council proceeds to a major institutional innovation (Article 25.3).

Other important decisions at the summit dealt with the European Company Statute (in the pipeline for 30 years), the new economic and social agenda (with emphasis on coordination rather than regulation), maritime safety and the establishment of the European Food Authority (matters requiring a different regulatory policy based on the creation of independent agencies) and innovation policy (focused on the e-Europe Plan).

Last but not least, it was also decided that, following those summits which have been already scheduled, future European Councils will be held in Brussels. So, once the EU has reached 18 Member States, all summits will be held in the capital of Europe-a good decision, but not enough to compensate for the lack of Community spirit evident at Nice.

42 The last draft Treaty, presented by the Presidency on 6 December, included gaps on the composition of the Commission and Parliament and on the weighting of votes in the Council. It also put forward different options on a number of questions (taxation, social security). See doc. CONFER 4816/00 of 6/12/2000.

43 The European press were unanimous in presenting this view in the ten days leading up to the summit.

44 See the "Draft Treaty of Nice", doc. CONFER 4816/00 of 6 December 2000.

45 See the "Treaty of Nice", doc. SN 533/00 of 12 December 2000. Provisional text before legal and linguistic revision. Final text SN 1247/01 of 30 January 2001. See also the recent Nice website,

46 See his speech to the European Parliament just after the summit on 12 December 2000.

47 Article 205(4) EC (new) is very complicated and was the object of additional negotiations after the global political compromise: it is sure that the five biggest Member States will have in the future 60% of votes compared with 55% at present. But the qualified majority threshold will be fixed in the successive accession treaties on the basis of principles determined by the Treaty of Nice, particularly by its specific declaration (doc.SN 533/1, p.82). This threshold has been fixed for the 15 EU at 169 votes out of 237 (i.e. at 71.31%, slightly above the current percentage of 71.26%). Subsequently, the threshold will change depending on the pace of accession, starting at a level lower than the current one and up to a maximum of 73.4%. But in a EU of 27 Member States, this percentage could rise to 73.91% of the votes.

48 In terms of figures, the situation before enlargement is as follows: Germany, UK, Italy and France 29 votes each, Spain 27, Netherlands 13, Belgium, Greece and Portugal 12 each, Sweden and Austria 10 each, Denmark, Finland and Ireland 7 each, and Luxembourg 4. After enlargement the total number of votes will be 345 and the newcomers (excluding Turkey) will have the following representation: Poland 27, Romania 14, Czech Republic and Hungary 12 each, Bulgaria 10, Slovakia and Lithuania 7 each, Latvia, Slovenia, Estonia and Cyprus 4 each, and Malta 3. Out of a total of 345 votes, the qualified majority is set at 258 votes and the blocking minority at 88, rising to 92 with the accession of the 27th Member State.

49 President Prodi made very severe comments before the European Parliament on that issue, saying that "The outcome was regrettable for two reasons: firstly, because it made a qualified majority more difficult, and a blocking minority accordingly easier, where the goal should have been the opposite in an expanding Union; secondly, because it has made decision-making even more complex, something that runs counter to the legibility and transparency for which the citizens have been calling."

50 See S. Wagstyl: "Future members welcome outcom." Financial Times, December 12, 2000, p.2.

51 Article 4 of the Protocol on the enlargement of the EU.

52 After enlargement to 27 countries (Turkey is not included in any calculation), Parliament's composition will be as follows: Germany 99, UK, France and Italy 72, Spain and Poland 50, Romania 33, Netherlands 25, Greece, Portugal and Belgium 22, Czech Republic and Hungary 20, Sweden 18, Austria and Bulgaria 17, Denmark, Finland and Slovakia 13, Ireland and Lithuania 12, Latvia 8, Slovenia 7, Luxembourg, Estonia and Cyprus 6, and Malta 5.

53 Curious to say that the Belgian Prime Minister claimed he would be elected more easily in Romania than in his own country! Anyway, these figures only represent the common position of the 15 during the accession negotiations. There is no doubt that the total number will change again, some of the candidate countries claiming equal treatment with the actual Member States.

54 For these two bodies, the membership is established as follows: Germany, UK, France and Italy 24, Spain and Poland 21, Romania 15, Netherlands, Greece, Belgium, Austria, Sweden, Portugal, Bulgaria, Hungary and Czech Republic 12, Denmark, Finland, Ireland, Lithuania and Slovakia 9, Latvia, Slovenia, Estonia 7, Cyprus and Luxembourg 6, and Malta 5. All these institutional changes are set out in a special Protocol on the enlargement of the European Union and attached declarations.

55 These new provisions are accompanied by declarations, in particular calling on the ECJ to lay down as soon as possible the exact conditions for bringing the new division of jurisdiction into effect.

56 It is amusing to note here that steps were taken to prevent a new battle over the sites of Community institutions by including in Article 220 a unilateral statement by Luxembourg undertaking not to claim the seat of any such judicial bodies.

57 See below, p.

58 In the final text the clauses were replaced by articles (for the TEU arts 27A-27E, 40-40B, 43-45 and for the TEC arts 11-11A).

59 The Americans also exerted strong pressure to this effect.

60 Many recent proposals deal with the management of the closer cooperation: P. Moscovici suggest a special Council of Ministers especially appointed to the European Affairs; thus J. Delors goes much further preferring a distinct Council of Ministers for the countries linked by a closer cooperation agreement and a common Commission to provide the necessary coordination between insiders and outsiders.

61 J.H.H.Weiler: Federalism and Constitutionalism: Europe's Sonderweg. Harvard Law School. The Jean Monnet Chair Papers, 2000.

62 More than 200 contributions were sent in by NGOs, associations and other players in civil society.

63 All these contributions are available on the IGC website. For the hearings with the applicant countries, see in particular doc. CHARTE 4390/00, CONTRIB 249 of 27 June 2000.

64 See, doc. CHARTE 4473/00 CONVENT 49 of the 11 October 2000, p.46.

65 Case 5/88 Wachauf (1989) ECR 2609. Case C-260/89 ERT (1991) ECR I 2925.

66 Case C-292/97, judgment of 13 April 2000, not yet published.

67 S. Koukoulis-Spiliotopoulos: De Biarritz a Nice: le projet de Charte des droits fondamentaux est-il bien articulé avec le droit de l'Union? Gazette du Palais, No 303-305, 29/31 October 2000, p.18.

68 Giorgio Gaja: Commentary in CMLR, 1996, p.973.

69 In his autumn 2000 lectures J.H.H.Weiler presented a convincing criticism.

70 The above-mentioned authentic commentary sets out a list of parallel provisions in the two instruments.

71 See the Declaration under Article 25 TEU.



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