Jean Monnet Center at NYU School of Law



Nice was no picnic, the new Treaty emerging after a long and painful confinement. The worst was avoided, but public confidence in the integration process did not gain in strength. The results were meager and do not appear to match up to the challenges awaiting the Union. There are no technical leftovers from Nice, but neither were any historic decisions taken. The amendments made to the Treaty are more like a patchwork that is just large enough to cover the new Member States than an orderly and rational arrangement designed to ensure the consistency and effectiveness of the European institutions.

However, the task was not an easy one. Despite what appeared to be a purely functional agenda (to prepare the Union for enlargement), the real topic of the discussions was in fact the balance of power in Europe. Behind the esoteric jargon (the composition of the Commission and Parliament, the weighting of votes and closer cooperation) lies the fundamental question-which at this stage no one wants to ask in such terms-"Where does power lie in the EU and who exercises it?" or even more apt, "Where should power lie and who should exercise it?"

This question was easier to answer in a confined common market, but becomes increasingly difficult in an economic and political union of 27 partners. In this respect, having a restricted agenda of three functional items, without scope for relieving latent tensions, meant that the constitutional nature of the debate was overshadowed. Perhaps it might have been better to have placed the leftovers from Amsterdam in their proper context by incorporating them in a wider debate on the future of the Union, thereby broadening the scope of the final compromise and giving the real issues at stake in the negotiations a greater public airing.

Because of the choice of a limited agenda,72 the negotiations were often seen as a horse-trading exercise, where the prevailing principle was that of quid pro quo. For example, Germany gave up additional votes in the Council in return for 27 more MEPs than the other large countries, France had to give concessions on the common commercial policy to ensure parity with Germany in the decision-making process; the small Member States had to accept a reduction in their relative weight in the Council to safeguard their equal representation on the Commission, and so on. But appearances are deceptive-for behind the fight for parity of votes in the Council or 27 more seats in Parliament, the real issue at stake was the balance of power between Germany and France.
The struggle over equal representation on the Commission conceals a state of equilibrium between the smaller and larger countries. The horse-trading over the extension of qualified majority voting is a screen for the relationship between the governmental and supranational tendencies in the EU, while closer cooperation has to do with the possibility and utility of having a leading group or "Directory" in tomorrow's Europe. In short, what was stake was the division of responsibilities between the Union and its Member States, the detailed arrangements for exercising those responsibilities, and the sharing of power between the Union partners. We are therefore in the midst of an undeclared constitutional debate. How long will it last?

The Nice summit had all the ingredients-the tension, the long drawn-out discussions and the criss-crossing alliances-that are a feature of strategic negotiations.

Let us now look at the main lessons to be drawn.

In formal terms, little was achieved: we have already seen modest progress in introducing qualified majority voting in connection with the co-decision procedure. With the weighting of votes more complicated than ever, we can quite legitimately ask whether this arrangement is adequate for decision-making in a Union of 27 Member States. The very generous composition of the institutions, in particular the Commission, does not inspire optimism either. The status quo in the institutional balance does not contribute to reducing the democratic deficit or increasing the Community's legitimacy. Closer cooperation appears to be necessary to drive the locomotive forward, but the concerns about implementing such cooperation, leading to a less homogenous and less mutually supportive Europe, are well-founded, especially since, within the vanguard itself that will be created, the qualified majority system further reduces the number of Member States taking the final decision.

The institutions, and in particular the Commission, have been kept out of the major political decisions (defense), and the struggles over national representation in those institutions is a sign of Member States' mistrust of supranational decision-making procedures in general. The federal bond is still very weak and there is a very real danger of the Union's powers being fragmented. In general, the institutional balance did not suffer dramatic changes. The institutional status quo was preserved in Nice. I personally think that the empowerment of the European Parliament is very close to reaching its limits. The extension of its legislative competences is not the only and perhaps not the most adequate means to reduce the EU's famous democratic deficit. Restructuring the regulatory process and reshaping the hierarchy of norms could be a better path to democratize the European institutional framework.

Some progress was achieved in specific areas (e.g. the courts), but not enough to compensate the poor overall picture.

The authors of the Treaty, aware of the meager outcome, tried to reassure the public and perhaps themselves by drafting a Declaration on the future of the Union, to be included in the final act of the Conference. After expressing measured satisfaction and emphasising the need for swift ratification with a view to enlargement, this text, which incorporates the main points of the German-Italian proposal on convening a new IGC, records the wish of the Heads of State and Government that there be "a deeper and wider debate about the future development of the European Union". Without using the words "constitutional" or "federal" on a single occasion, the Declaration announces a new IGC for 2004 and lays down its agenda and timetable. The questions to be dealt with are: the delimitation of spheres of competence between the Union and the Member States, the status of the Charter of Fundamental Rights, simplification of the Treaties, and the role of national parliaments in the European architecture.73 These problems are of course constitutional in nature. Indeed the Declaration acknowledges the "need to improve and to monitor the democratic legitimacy and transparency of the Union and its institutions, to bring them closer to the citizens of the Member States".

The timetable is also interesting, as it is the Belgian Presidency (the Member State showing more advanced federalist positions) that will be given the task of preparing a solemn declaration at the Laeken summit in December 2001 "containing appropriate initiatives for the continuation of this process".74 This Conference will "not constitute any form of obstacle or precondition to the enlargement process". On the contrary, those applicant countries, which have concluded accession negotiations with the Union, will be invited to participate fully in the Conference, while those which have not will be invited to take part as observers. All the ingredients for a constitutional proclamation are there: the issues, the size, the timing, the participants. We must not forget that in 2004, the European political scene will be radically different: Italy goes to the polls in 2001 to elect a new five-year parliament; there will certainly be an early election in the UK, with Tony Blair pressed by opinion polls and determined to expand his room for maneuver on Europe; in France, presidential and parliamentary elections in 2002 are likely to end the cohabitation of Chirac and Jospin-which had such a harmful effect on the clarity of its policy choices-in favour of the latter; and in Germany, Chancellor Schröder seems set for an easy victory in the autumn 2002 elections. With a reasonably solid euro, a military intervention force consolidated in 2003 and a British Prime Minister more disposed to play a leading part on the European stage rather than remain on the sidelines, negotiations to give the Union a constitutional dimension appear plausible.75

In fact, what was important at Nice was not so much the results obtained, but the new balance of power which emerged.

To my mind, the two main events of this summit were that the Franco-German axis, central to Europe's postwar era, is giving way to more fluid alliances based on individual issues, and that Germany itself is looking for a new leadership based on broader partnerships and pursuing a less intergovernmental agenda.

The divisions between the camps of smaller and larger countries, which were highly visible throughout the negotiations, seem to be more of a passing phenomenon. Once balance has been restored to the decision-making mechanisms, it is normal and to be expected that the smaller countries will forge alliances with the larger ones on specific questions, and according to their material interests. The North-South front which was already losing ground at this IGC, where it operated purely in order to maintain unanimity on the management of the Structural Funds, will be eroded further in the next six years, before disappearing altogether, as Greece too will soon reach 75% of the average level of the 15 Member States. With enlargement, a new front of less developed countries is on the horizon, but it is more likely to take the form of overlapping alliances with bigger countries, chiefly Germany, than become a static "bloc of poor countries", which in any case would be incapable of enlarging the "cake" or taking decisive action on how that cake is divided up. In any event, the relative reduction in the weight of the smaller countries in general and the transition of the former small countries to intermediate powers will hardly favour such a development.

Of course, the situation is far from stable. The Franco-German axis may pick up strength again76, if the UK remains outside EMU for a long time, and Germany's leadership may still have to wait if enlargement does not go to plan and the new members feel more comfortable in a multipolar Union than following in the wake of their big neighbour. It cannot be ruled out that, in a Union of continental dimensions, and assuming that the Balkans are stabilised fairly quickly, we shall see the formation of regional alliances bringing into play interests that are more geographical in scope.

What is certain is that the EU will soon be pondering the following dilemma: Since in any case we shall have a less homogenous Union after enlargement, is it better to use these four years to establish a more solid institutional structure in order to guarantee a minimum of cohesion (the constitutional option), or would it be preferable to let things develop on their own with the likely outcome that the Union will be much more like a free trade area taking one-off political initiatives (the intergovernmental option)? I believe the Nice Declaration on the future of the Union confirms that a majority of Member States choose the first option-for different reasons. This group, led by Germany (now the central power) followed by Italy, the Benelux countries and a number of other smaller countries (Portugal and Greece), is likely to increase in size and in strength after successive elections. New entrants will tend to line up alongside this group, not only out of affinity for Germany, but also because they understand that their interests will be better protected in a political Union (even a "soft" one), than in an economic area open to a degree of competition they cannot match or adopt.77

If all this is true, the question we must ask is how and on what timescale the Union should be given a limited constitution. The four areas covered by the Declaration constitute a prudent starting point. Whatever one may think of the usefulness of, say, inserting the Charter of Fundamental Rights in the Treaty78 or the ultimate goals of the European integration process, there is no doubt that simplifying the Treaties, spelling out the principle of subsidiarity and involving national parliaments in this process all represent considerable improvements on the present situation, and help to make the whole edifice more comprehensible and transparent without affecting its foundations.

Since complexity undermines legitimacy, simplifying the European institutional set-up can also help legitimise it.

We agree here with J.H.H.Weiler, who has constantly repeated his argument that the Treaties, and in particular their application and interpretation by the ECJ, already form a Constitution: "Europe has now such a Constitution. Europe has charted its own brand of constitutional federalism. It works. Why fix it?"79

It is true that in this unprecedented experiment involving the voluntary transfer of sovereignty by a large number of historically important countries, it is better to advance gradually, agreeing to adhere to a pact established at each step of the way rather than proclaiming some ultimate constitutional goal from the outset.

The essential thing seems to be to achieve successive individual objectives rather than rush headlong into an enterprise of dubious legitimacy and uncertain outcomes. To speak in pragmatic legal terms, a good Treaty is preferable to a bad Constitution.80

Public support for each step forward is also a vital parameter in this exercise-another reason why any initiative to draw up a constitution must be weighed up carefully. Otherwise we risk putting a brake on the integration process, rather than driving it forward.

The Treaty of Nice was certainly not a resounding success. But neither was it a total failure: it provides a minimal but adequate framework to proceed with enlargement, and gives the Union the wherewithal to consolidate the euro and establish a relatively strong international role, even in defense policy. It cannot be ruled out that the new US administration, which may be weak owing to doubts over its legitimacy as a result of the recent electoral saga, will allow the Europeans enough breathing space to consolidate their unity and assert their independence, on the basis of a strong economy and reliable and operational military capabilities.

The conditions seem to be right for using the next four years to improve the workings of the Union at all levels. There are several important things that need to be accomplished which do not require amendments to the Treaties: the internal reorganisation of all the institutions and a restructuring of the regulatory process to make it more comprehensible, more attractive and more effective in the eyes of the public are two vital preconditions for embarking successfully on any constitutional enterprise.

The IGC announced for 2004 could then quietly go about the task of simplifying the Treaties, free of any hidden agendas. If the EU's existing constitution becomes more visible to the public and its core-stripped of legislative or even regulatory matters-is made easier to revise, another important condition will be met for subsequently convening a real Founding Conference.

This IGC is neither the first nor the last. Nor will the next one already announced be the final step towards a model United States of Europe: as yet we know neither the exact number of States involved nor its geographical-let alone institutional-contours. European integration will be achieved by the Community method or not at all. Its final shape will be the product of a process of permanent constitutional development, in which the central factor in changing mentalities will be the sole obligation that all sides adhere to the pact concluded at each step of the way, leading onwards to increasingly advanced stages and to ever closer Union between the Member States.81

The merit of Nice has been once again to confirm this fact, which will perhaps be the old continent's greatest and most noble contribution to contemporary civilisation.

Cambridge, 8 March 2001. Xenophon A. Yataganas.

72 See above, p.

73 R. Prodi seems to have found the right formula to define the ongoing exercise, speaking before the European Parliament about a "debate on the re-shaping of the EU". Agence Europe, 14 February 2001, p. 4-5.

74 We need hardly point out here that Romano Prodi publicly praised the Belgian Prime Minister, Guy Verhofstadt, for demonstrating at Nice his country's role at the heart of Europe.

75 European experts speak already about a three-phase process: a) "open discussion", practically underway with the largest possible participation, b) "structured discussion", in which parliaments will have a central role alongside governments and the Commission, and would lead to the drawing up of a new treaty and c) "short and decision-taking IGC" that will not have to reopen the debate but to conclude. Ferdinando Riccardi in Agence Europe, 16 February 2001, p.1.

76 See, Daniel Vernet: Berlin souhaite convaincre Paris d'approfondir l'integration europeenne. Le Monde, 21/22 January 2001.

77 Jacques Santer: L'Europe apres Nice. Speech before the European Union of the Federalists, Brussels 23 January 2001.

78 See above, p.

79 J.H.H.Weiler: Federalism and constitutionalism..., op.cit.

80 As J. Delors declared recently, during a dialogue with President W. Havel. See, Le Monde, 2 February 2001.

81 See the current debate about the reshape of the EU. F.Riccardi: A look behind the news. Agence Europe, 7 March 2001.



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