Panel 10F:	The European Parliament One Year after Enlargement
Saturday, 2 April, 10:45 a.m. - 12:30 p.m.





Anticipating the European Constitution:
Parliamentarization or Re-nationalization ?

Wilhelm Lehmann,? Simon Schunz*



Abstract

Since the entry into force of the Treaty of Maastricht and up to the adoption of the draft constitu-
tion by the IGC in June 2004, the European Parliament has acquired growing legislative influ-
ence, redefining its relationship with the Council and modifiying the balance of powers among 
the three institutions, arguably to the detriment of the Commission. In contrast, a number of new 
provisions of the constitution, especially the "presidential" innovations, are designed to increase 
the Member States' influence. Only few areas of shared sovereignty are added, important fields 
of activity are left untouched or appear to be shifted under executive domination. This is particu-
larly manifest in foreign and macro-economic policy. Furthermore, the accession of ten new 
Member States, introducing new decision-making dynamics and enhanced socio-cultural and 
socio-economic diversity, combined with the historically novel coincidence of a liberal-
conservative Commission and a Parliament dominated by liberal-conservative groups, could re-
duce legislative proposals with redistributive or harmonizing ambitions. Borrowing instruments 
from both historical institutionalism and liberal intergovernmentalism, we analyse selected insti-
tutional novelties of the constitution which will transform the future functioning of policy-
making in the Union. In particular, the focus of the EU's activities could increasingly shift from 
the legislative to the executive domain, which raises the question of how, in which policy fields, 
and with which institutional interplay the Union will probably carry out its tasks under the new 
provisions in the foreseeable future, with rather limited resources.





Contents


1.	INTRODUCTION	3
2.	METHOD	5
2.1.	Choice of instruments	5
2.2.	Institutions and policy-making powers: two analytical dimensions	6
3.	THE GENESIS OF THE EUROPEAN CONSTITUTION	9
3.1.	Preparation of a key player position: France	9
3.2.	Institutional decisions of the Convention and the IGC	10
3.3.	Negotiation strategies	11
4.	INSTITUTIONAL ARCHITECTURE AND POLICY-MAKING AFTER THE 
CONSTITUTION	17
4.1.	Assessing the new institutional arrangements	17
4.1.1.	Supranational or intergovernmental?	17
4.1.2.	Executive leadership or stronger legislation?	17
4.2.	Constitutional politics, rational self-interest and policy reform	19
4.2.1.	Functional and symbolic visibility	19
4.2.2.	Growing diversity	21
4.2.3.	Policy preferences of the member states	23
4.2.4.	Preferences of the Commission and the European Parliament	24
4.3.	Policy-making after the Constitution: three scenarios	25
5.	CONCLUSION	29




1.	Introduction

In many ways, 2004 can be considered as a crucial year for the European Union (EU), with the 
accession of ten new member states in May, the election of an enlarged European Parliament 
(EP) in June, and the adoption of the Constitutional Treaty  by the Intergovernmental Confer-
ence (IGC) in October. At the same time, the rather limited enthusiasm surrounding the celebra-
tions on the 1st of May and the difficulties encountered before the final approval of the heads of 
state and government for the new Constitution revealed some potential future problems. Not only 
will the new and, with the exception of Poland, exclusively small member states have to be fully 
integrated into the existing structures of the Union, but the integration project as a whole is put to 
a major test in what is prone to become a lengthy ratification process with an open ending for its 
new Constitution.
As the ultimate product of what has been termed the "post-Nice process", the latest treaty revi-
sion has fallen short of the hopes many ambitious integrationists had linked to it. While the Con-
stitution does not represent the "establishment act" of a new (federal) Union, it still comprises 
some considerable changes, including remarkable institutional novelties, such as the creation of a 
President of the European Council. These new institutional arrangements - once they will have 
come into force -, the proliferation of small member states and the socio-economic diversifica-
tion that this brings about, as well as the novel co-existence of a liberal-conservative Commis-
sion and a Parliament dominated by liberal-conservative groups, set the stage for major altera-
tions in the future functioning of the policy-making procedures within the Union.
One of the central points raised on each of the past treaty revisions concerned their potential im-
plications for the "inter-institutional balance" within the EU political system. For decades, the 
ever-recurrent divide between supranationalism and intergovernmentalism played a prominent 
role in the assessment of treaty changes. This terminology proved to be very efficient in enabling 
a better understanding of the traditional "balancing act"  the EU had to perform between the rep-
resentation of national or territorial interests, on the one hand, and "European" or functional in-
terests on the other. Generally spoken, intergovernmentalists believe that the European Union is 
best conceived as a union of sovereign states, whereas supranationalists hold that only a high de-
gree of autonomy of the European institutions and shared responsibility of all actors involved in 
the integration process guarantees an efficient and legitimate functioning of the Union. Many of 
them see a federal-like structure as the most desirable endpoint of the EU's evolution.
This type of ready-to-use interpretation has been contested for two reasons: With each reform 
process, treaty revision has become a more complex and thus laborious exercise, due to the 
growing number of actors and issues involved, and the difficulties arising from this in finding 
sufficient compromises. Hence, the solutions found were never easy classify. At the same time, 
treaty reform must be regarded as a "continuous" and cumulative process , which reached its lat-
est peak in the post-Nice process. It is thus insufficient to assess modifications to the institutional 
architecture (the "polity") of the EU without also considering changes in day-to-day politics 
when the new rules have to be implemented.
In previous treaty reforms, changes to the institutional architecture of the EU had often been 
beneficial to the European Parliament, which gained considerable legislative rights in the course 
of a relatively short period of time. Analysts claim that this extension of the Parliament's rights 
often represented a reaction to substantial transfers of sovereignty from the national to the supra-
national level, as a means of compensating for the identified legitimacy deficits resulting from 
these transfers.  The consequence was - in many cases - a strengthening of the role of the Par-
liament in day-to-day politics, and thus an ambitious legislative agenda driven forward by coop-
erative efforts of the Commission and the EP.
By convening a Convention on the Future of Europe, the range of actors involved in treaty re-
form was largely extended, to the point that the work this body conducted resembled in many 
ways that of a parliamentary assembly. In drafting a Constitution, the Convention exceeded its 
original task of preparing the following Intergovernmental Conference. The long and often pain-
ful process of elaborating a compromise that would fit all participants´ preferences proved to be 
a major challenge, as the rifts were numerous: between old and new, small and big member 
states, integrationists and intergovernmentalists, and ideological right-left cleavages.
While the changes that the Constitution will bring about seem once again favorable for the EP - 
considering for instance the fact that the EP will be able to elect the President of the Commis-
sion, that the new law-making procedure has been extended to further areas and that it will have 
more influence on the agriculture budget - serious concerns have been raised if these improve-
ments do not come at too high a price for the supranational institutions. As vigilant participants 
of the Convention, like the Belgium Foreign Minister and longtime MEP Karel de Gucht, al-
ready pointed out during the ongoing deliberation process that what might seem like a strength-
ening of the Community method could in fact turn out to weaken the Commission, and hence, 
very probably, the EP. Even before the new mode of electing the Commission President was de-
cided, De Gucht touched on the question of whether the "symbolic legitimacy" associated with it 
could also be interpreted as reducing the powers of this body in the long run.  He identified a 
trade-off between this institutional innovation and the creation of a President of the European 
Council, in his view a post that could really become a symbol of the EU. With other changes, 
this "intergovernmental coup d´état" could sustainably damage the role of the Commission and 
the legislative efforts of the EP would also fade away in many domains. Similarly to de Gucht's 
concerns, EU scholars have also been drawing attention to the fact that the Commission might 
lose some of its potential.  Some even ask if we must expect "the end of the Community 
method." 
This brief overview of what we see, potentially, as one of the main problems concerning the an-
ticipated coming into force of the new Constitution provides the framework for the following 
analysis: the new constitutional arrangements seem to provide for a veritable shift from the "leg-
islative" to the "executive" or, in other terms, from "low politics" to "high politics". In addition, 
the socio-economic and geographical transformations of the EU over the past years will have a 
further impact on the level of ambition prevalent in European policy-making, especially in the 
macroeconomic and redistributive areas. Against this background, will we witness a trend of re-
nationalization? Or will the "Parliamentarization" path advocated by Joschka Fischer in 2000 
prevail? More generally, will the changes in the polity of the Union provide for more suprana-
tional or rather for more intergovernmental policy management?
In our attempt to provide some answers to these questions we shall proceed in the following 
way: in section 2, we outline the method and framework for our analysis in two steps. First, the 
basic features of intergovernmentalism and supranationalism will be briefly revisited and sup-
plemented by introducing a distinction between changes affecting legislative and executive pow-
ers. In part 3, we will discuss selected changes in the institutional structure of the EU and deline-
ate how these came into being in the course of the post-Nice process and the Convention debates. 
The relationship between "constitutional talk" and political legitimacy will also be briefly 
touched upon. Part 4 outlines the preference structure of selected member states, based on an 
analysis of their socio-economic situation and its effects on attitudes towards the EU in the popu-
lation. In section 5, we will then develop three scenarios of how institutional and preference 
changes might impact on the future day-to-day policy-making of the Union, again taking into 
consideration the political situation and increasing diversity of an EU of 25 member states. In the 
conclusion, the most plausible scenario will be summarized in view of the question of what kind 
of Europe we can expect and whether the "tried and true" distinction between supranationalism 
and intergovernmentalism can still serve as a device for analysis.

2.	Method

By examining at the same time the role and impact of institutions on the European polity and of 
the internal socio-economic situation of the member states on their policy-making preferences, 
large parts of this paper draw on the insights of both institutionalist  and liberal intergovernmen-
talist approaches. 
2.1.	Choice of instruments
European politics as well as academic work on European integration have been deeply impreg-
nated by the dualism between supranationalism and intergovernmentalism, which has often taken 
the form of a normative antagonism getting in the way of positive analysis. Hence both academ-
ics and practitioners have repeatedly tried to avoid simplifying polarization by establishing and 
describing a continuum each point of which corresponds to a particular set of institutions and 
power relations. For one, Sir John Kerr, secretary-general of the Convention on the Future of 
Europe and former head of British diplomacy, is said to adhere to the view that the dichotomy 
between supranationalism and communitarisation, on the one hand, and intergovernmentalism 
and national sovereignty, on the other, are figments of the past which are not helpful to describe 
and build the new Europe. On the other hand, the two extremities of the spectrum of power allo-
cations, even more their commonly known labels, still play an enormous role in the politics of 
European constitution building, not least in the debates preparing the referenda on the treaty es-
tablishing a European constitution. To this day, they are among the most often used arguments 
for drawing voters to one side of the fence or the other. 
This paper attempts to make use of the instruments offered by liberal intergovernmentalism and 
historical institutionalism to interpret some of the institutional novelties agreed by the Conven-
tion and the Intergovernmental Conference (IGC) because we think that each approach has its 
particular field of application. While intergovernmentalism goes far to explain the bargaining 
background of the "constitutional moments" of the EU's history, institutionalism contributes 
most to the analysis of the day-to-day evolution of European policy-making and the inter-
institutional balance, for the simple reason that "Treaty rules regarding the manner in which the 
Community institutions arrive at their decisions are not at the disposal of the Member States" . 
We use, however, a "light" version of liberal intergovernmentalism because we think that some 
of the demands it makes on negotiators are unworkable in real life. Hence, due to a lack of un-
derstanding of the long-term consequences of certain institutional innovations, sometimes results 
are accepted or compromises agreed which do not even come close to maximizing negotiators' 
individual interests.  We realize that our approach is exposed to the N=1 problem: one cannot 
exclude historical accident as an influence on certain outcomes. The paper will therefore be an 
idiographic rather than nomothetic exercise.
We define Parliamentarization as the ambition to establish and the gradual evolution towards a 
system of government at the European level with a strong priority-setting and policy-planning 
input from the EP, a system that in a way would resemble mutatis mutandis parliamentary de-
mocracy in a nation-state. One important condition for such a system is a Commission which is 
able to pursue its legislative agenda-setting and regulatory powers effectively and which is under 
political control of the EP. For the moment, such a system has only partially evolved because the 
interinstitutional relations between the three main European institutions are not determined by 
political majority or by a clear institutional hierarchy.  We are of course cognizant of the fact 
that, contrary to the way it is often portrayed in the literature, the Council of ministers is a deeply 
supranational institution which contributes to the Europeanisation of member states' policies. 
Still, the outcomes of its decisions are mostly the expression of the lowest common denominator 
of national interests, even in areas subject to qualified majority. Since the institutional position of 
the Commission is very dependent of the decision rules prevalent in the (European) Council and 
the powers and policies attributed to it,  the analysis of such institutional changes made in the 
constitution, including changes concerning the executive or "presidential"  side of the institu-
tional triangle, will be an important part of the paper.
2.2.	Institutions and policy-making powers: two analytical dimensions
Two modes of policy-making correspond to the traditional distinction between supranationalism 
and intergovernmentalism. Table 1 opposes their core conceptions in an ideal-type manner. The 
main criterion that distinguishes the supranational "Community method" approach from the "in-
tergovernmental" approach to policy-making is the importance they attribute to the decisive ac-
tors in the process: whereas in intergovernmental reasoning, sovereign member states represent 
the main decision-makers, providing efficiency and democratic legitimacy, in Community 
method Europe the supranational institutions are considered to be important actors which enjoy 
autonomy vis-à-vis the member states. In contrast to these ideal-typical models, features of both 
policy-making modes co-exist in political reality, "rendering the Union a unique amalgam of su-
pranational and intergovernmental elements." 
The applicability of the old divide between the supranationalist Community method and inter-
governmentalism to recent developments of EU integration has been challenged mainly on theo-
retical grounds. Some analysts claim that it is no longer suitable to assess complex and diverse 
policy-making processes and procedures on the basis of this dichotomy.  Others go even further 
in saying that the underlying ideological assumptions about the finalité politique represent a sig-
nificant obstacle for scientific analysis.  Whereas for integrationists, the European Union is 
bound to become a federation, intergovernmentalists hold that it will always represent a mere 
association of states or - to employ a term coined by Ipsen - a "Zweckverband".  Observing the 
evolution of the EU through each of these lenses - from the point of view of what it should be 
like - could, thus, represent a significant hindrance to a balanced analysis of the integration proc-
ess. Alternative theoretical approaches, such as multi-level governance or network analysis, have 
therefore been brought forward.   
When analyzing EU policy-making process(es), some scholars distinguish between legislative 
and executive powers. Taking the EU for what it is (instead of what it is supposed to be), they 
analyze systematically what impact changes to the institutional architecture have on the legisla-
tive-executive relations in the Union. True enough, the concept of political powers in the EU 
might yet seem diffuse, as no clear separation, let alone "balance of powers" - in the sense we 
know from democratic nation-states - has so far emerged between the European institutions. 
Nevertheless, combining the classical dichotomy of supranational/intergovernmental with this 
analytical tool provides us with a systematic approach to map treaty modifications along paths 
that can be relatively clearly delineated for a certain period of time.
Legislative power can formally be defined in a rather simple manner as "the making of EU laws 
and EU framework laws".  More difficulties arise when it comes to accounting for the term ex-
ecutive power. As Craig points out, we "can nonetheless identify a core set of tasks that are 
commonly undertaken by the executive branch of government."  He cites the planning of "the 
overall priorities and agenda for legislation", the responsibility for foreign affairs and defense, an 
"important say in the structure and allocation of the budget", and responsibility for the effective 
implementation of agreed policy initiatives and legislation.
Policy-making in the EU has been based on a multiplicity of legislative and executive proce-
dures.  As a general rule, legislative powers can be said to be shared powers: the right of initia-
tive lies with the Commission, the EP and the Council interact as co-legislators. Considerable 
differences exist, however, in the degree of power: in co-decision, the EP and the Council oper-
ate on an equal footing. In other procedures, for instance those applied in non-Community mat-
ters, the Council continues to retain full control over legislative powers. 
Executive powers can also be considered as shared powers: even if we do not count the advisory 
bodies and agencies, "no fewer than three institutions can and do lay claim to exercising execu-
tive (...) authority within the EU: the Commission, the Council and the European Council."  
While the "execution of European decisions remains the prime responsibility of national (...) au-
thorities", over time, according to Crum, "typical pan-European executive tasks arose as well as 
a need to coordinate the implementation efforts."  These tasks have traditionally been fulfilled 
by the Commission or agencies like Europol. Furthermore, the comitology system allows the 
Council and Member States to supervise the administrative acts of the Commission. 
Being not formally separated, the relation between the two branches is not completely transpar-
ent. Furthermore, each treaty reform has produced changes in their relationship. Still, the distinc-
tion between legislative and executive powers serves the purpose of assessing major treaty re-
forms without being exclusively confined to the ideological traps of traditional integration para-
digms. A comparison of the results of this type of analysis to the list of elements established 
above (table 1) will thus allow us to draw conclusions on the nature of the political dynamics to 
expect in the future EU: a strengthening of legislative powers, particularly in the socio-economic 
field, would point to further Parliamentarization, whereas a reinforcement of executive powers 
probably implies a tendency of re-nationalization.


On every question of construction, carry ourselves back
 to the time when the Constitution was adopted, 
recollect the spirit manifested in the debates,
and instead of trying what meaning may 
be squeezed out of the text, or invented against it, 
conform to the probable one in which it was passed.
Alexis de Tocqueville

3.	The Genesis of the European Constitution
3.1.	Preparation of a key player position: France
Anticipating the European Constitution is certainly not an easy task. However, we can avoid a 
good deal of speculation by relying on a systematic approach. Our exercise of anticipation will 
be based on assumptions propagated by historical institutionalism.  In the specific case of treaty 
reform, an analysis of how the new institutional arrangements were brought about can help us 
understand how they were intended. Hence, a brief, but careful examination of the historical con-
text of the original drafting of the new Constitution can facilitate its interpretation. In order to 
understand key player positions we have first to consider the evolution of institutional thinking 
in member state governments.
The median player position under unanimity is often the position that is closest to the one arrived 
at at the end of a negotiation if a strong incentive to find a compromise exists. With respect to 
the Convention, it is probably safe to say that the bargaining priorities developed by the French 
government over a number of years after the ratification of the Amsterdam treaty come very 
close to the this position.  They can be summarized as follows: (1) stronger leadership in the 
form of a permanent president of the European Council; (2) transformation of the Council and 
the Commission into a European government through better synchronization of their activities 
and closer cooperation; (3) creation of a foreign affairs Council, possibly chaired by the Presi-
dent of the European Council; (4) increasing focus of the Commission on its political tasks, ad-
ministrative responsibilities being delegated to agencies, and political accountability not only to 
the European Parliament but also to the European Council; (5) right of the European Council to 
dissolve the European Parliament and election of a certain percentage of MEPs through transna-
tional party lists; (6) extension of enhanced cooperation to the common foreign and security pol-
icy; (7) gradual separation of legislative and executive functions, partially through better coop-
eration between the European and national parliaments; (8) a European "judicial area" with 
common effective instruments; (9) a simplified revision procedure for non-constitutional provi-
sions of the treaty.  This list is interesting in two respects: firstly, it already contains most of the 
major conflicts to surface during the convention and the IGC; secondly, it shows that about half 
of these priorities were attained in the negotiations.
According to Gray, convention President Giscard d'Estaing had four objectives at the beginning 
of the deliberations: a reduction in the number of Commissioners; a strengthened European 
Council; an increased role for national parliaments; and abolition of the rotating Council Presi-
dency.  This rather selective choice from the French catalogue of priorities demonstrates Gis-
card's well known bias towards the presidential side of the institutional framework. Again, it is 
instructive to compare this purported list of personal objectives with the final treaty provisions.
Most preferences of other key players could be easily mapped along different positions along the 
dimensions constructed by the Quermonne report. Whereas Germany traditionally tended to rein-
force the European institutions (Commission and Parliament) and the classical Community 
method, the UK has been relatively consistent in its preference for loose coordination among 
member states. However, in both governments, the need fore more (executive?) leadership, if not 
for a European government, was increasingly perceived, thus creating a common interest with 
France. In addition, the question of better representation of its population size in the Council had 
become a "red line" of sorts for Germany.
3.2.	Institutional decisions of the Convention and the IGC
Changes to the institutional architecture of the EU constitute the central points of the new consti-
tutional provisions. Together with a few other topics (e.g. the debate on a reference to the Chris-
tian roots of Europe) they figured among the issues that were most controversially debated dur-
ing the post-Nice process. As a matter of fact, some institutional issues were not ultimately set-
tled until the end of the IGC 2004. While 90 percent of the Convention proposals remained un-
changed , some important modifications that the heads of state and government made to the 
draft concerned the institutional architecture of the EU. Two innovations seem to stand out: the 
Convention created the post of a European Minister for Foreign Affairs, appointed by the Euro-
pean Council by qualified majority with the agreement of the President of the Commission.  Re-
sponsible for carrying out the Union's external policy as a whole, he or she will exercise a 'two-
hatted' role, chairing the Foreign Affairs Council and also serving as Vice-President of the 
Commission. Secondly, while the European Council is to become a full institution, the revolving 
presidency will be replaced by a permanent presidency.  The "President of the European Coun-
cil" will be elected by qualified majority of its members for a renewable term of two and a half 
years. 
Other than that, some important agreements were reached on the functioning of the Council of 
Ministers.  The meetings of special formations of the Council will be split into two parts, one 
devoted to legislative deliberations (in public), the other one to non-legislative deliberations.  
The highly controversial question relating to the definition and the sphere of application of quali-
fied majority within the Council was not resolved until the very end of the IGC 2004. As regards 
its definition, the formula finally adopted is still based on the double majority principle devised 
by the Convention.  The thresholds have however been raised: 55% of the member states in-
cluding at least 15 states and 65% of the population. When a Commission proposal is not re-
quired or when a decision is not adopted on the initiative of the Minister for Foreign Affairs, the 
qualified majority required will be enhanced: 72% of the Member States representing at least 
65% of the population. Qualified majority voting (QMV) will become the general rule. 
As far as the Commission is concerned, the final agreement provides for one Commissioner per 
member state until 2014.  From then on the body will consist of a number of members corre-
sponding to two thirds of the number of states, chosen on the basis of equal rotation. The politi-
cal role of the President of the Commission , elected by the EP, will be reinforced. 
Concerning the European Parliament, the Convention's proposals were confirmed by the IGC. 
Its legislative role will once again be enhanced and it gets important new budgetary powers as 
well as functions of political control and consultation.  It will elect the President of the Euro-
pean Commission on a proposal from the European Council, taking into account the results of 
the EP elections. It will also approve the Commission as a whole. Some other minor modifica-
tions concern the ECJ. 
3.3.	Negotiation strategies
Ever since the early attempts of treaty revision in the EU, institutional reform has represented a 
difficult task. This has become especially evident in the development of the specific form of EU 
arithmetics surrounding the allocation of votes in the Council of Ministers. At the same time, dif-
ferent reform objectives have often been connected. Changes in the threshold of QMV entailed 
adjustments to the number of representatives in the EP, just to cite one example. Even though 
this tendency of issue-linkage remains strong, in the following section we would like to concen-
trate on two of the most fundamental innovations among the institutional changes mentioned, 
namely on the "trade-off" de Gucht had identified between, on the one hand, the election of the 
Commission President by the EP and, on the other hand, the creation of a President of the Euro-
pean Council. Secondly, we would like to touch upon the coming about of the European Foreign 
Minister. How did the Convention "produce" these solutions? 
In our attempt to retrace some of the core debates of the Convention concerning institutional re-
forms we will take a closer look at the preferences and activities of the key actors involved in the 
process, i.e. the representatives of the biggest member states (Germany, France, Britain, Italy) 
and some smaller states (e.g. Benelux), representatives of the supranational institutions (MEPs, 
Commissioners), and at the role played by the Presidium and its Secretariat during the delibera-
tions. This choice reflects the main contests appearing in the Convention, between large and 
small states, on the one hand, and intergovernmentalists and integrationists on the other.

The President of the European Council
Even though the Presidium as well as most members of the Convention attempted to keep the 
institutional topic out of their initial debates,  it loomed over the deliberations from the begin-
ning. While government representatives had remained rather silent in the first stages, they re-
vealed to become extremely active when (what they considered to be) the "real" power issues 
were at stake. In a skillful assault at setting the agenda on these topics, the Prime Ministers of 
Great Britain and Spain, Blair and Aznar, in collaboration with French President Chirac sug-
gested the appointment of a permanent or semi-permanent President of the European Council as 
early as spring 2002.  Three purposes were attached to the creation of a permanent presidency: 
Enhancing the effectiveness of the work of the European Council, guaranteeing its continuity, 
and, thirdly, what Peter Hain, the British Minister for Europe, explained like this: Having 
"someone President Bush would get on the phone to, [his] legitimacy being that [he is] responsi-
ble to elected heads of government."  This jointly voiced idea - "a meeting of minds"  rather 
than a formal proposal - played an important role in the further debates on institutions in the 
Convention. It was the notion of a single, powerful president that incited multiple reactions. In 
their memorandum of June 2002, the Benelux countries, anxious to avoid domination by the lar-
ger states, stressed that "any alternative to the present system must respect the principle that the 
member states are equal." 
The Convention did not formally tackle the topic of institutional reform until January 2003. Only 
days before the scheduled debate, a joint Franco-German proposal was tabled, outlining a fairly 
clear picture of what the two countries imagined the institutional design of the Union to look 
like.  Calling for a stronger role of the Commission and the Community method, it proposed at 
the same time a permanent Presidency of the European Council, yet with a shorter term of office 
than suggested by the British government. In retrospective, this document can be said to have 
been crucial for the further institutional debate within (and also outside of) the Convention. The 
main reason for this was the unexpected transformation that the German government's position 
had undergone by joining the camp of those in favor of a permanent presidency. Beforehand, the 
creation of a permanent president had never been on its agenda.  How did this considerable shift 
from earlier positions come about?
Drafting a joint paper demanded a considerable effort from both the French and the German side. 
They could only achieve it on the basis of an "agreement not to disagree."  The final result re-
sembled, as Jacques Delors rightly remarked, rather to "un compromis par addition qu'une 
proposition originale, au prix d'un effort d'ailleurs difficile de synthèse."  A common analysis 
holds that this synthesis was only possible because the German government traded in its support 
for France's wish to install a permanent chair of the European Council for the acceptance of the 
French government to have the Commission President elected by the European Parliament. To-
gether with the reinforcement of the role and power of the Commission President, the Germans 
believed that this deal would strengthen the effectiveness of the two institutions and at the same 
time promote the legitimacy of the Union as a whole. Furthermore, the German government put 
a lot of emphasis on the establishment of a "double majority" for votes in the Council of Minis-
ters, according the country with the largest size of population more influence than before.
The proposals came nevertheless as a surprise to many, inciting quite different reactions.  They 
were discussed at length during the plenary session of the Convention on January 20th and 21st, 
2003. The debate focused above all on the role of the European Council presidency. A vast ma-
jority of the speakers pleaded against the Franco-German initiative, mainly arguing that a poten-
tial rivalry between the President of the Commission and the newly to be created post of a Presi-
dent of the Council might damage the coherence of the EU institutional set-up. In spite of the 
open opposition, Convention President Giscard demonstrated his support for the Franco-German 
proposals. Although MEP Maij-Weggen had confronted him with numbers exposing the major-
ity/minority relations during the debate - she had counted 64 speakers who were against the pro-
posals, 12 who spoke in favor of it and 15 who had remained undecided  -, his conclusions after 
two days of debate focused to a large extent on the achievements of the European Council , un-
masking his genuine intentions. This debate left its mark on the Convention. The discussions 
soon circulated primarily around what - in the meantime - was referred to as the "President of the 
Union" in the media. As time went by, some smaller member states  as well as Commissioners  
renewed their opposition. Luxembourg Prime Minister Juncker spoke for many when he articu-
lated his criticism: "We don't need a Council president who congratulates the American president 
on his birthday." 
The first draft articles on the institutional set-up Giscard proposed in April 2003 revealed that he 
had not taken too much notice of these criticisms. Consisting mainly of his personal ideas on the 
EU institutional architecture, inspired largely by the Franco-German proposals, the draft articles 
had not at all been agreed with the other Presidium members.  This initiative illustrated what the 
final stage of the Convention was to look like. In a real last-minute "hustle", the ideas that had 
been put forward by the large member states were restated by the President and successively wa-
tered down by the majority of Conventionnels that defended rather supranational approaches. On 
the final days, lengthy negotiations involving Giscard and a few other key players within the 
Presidium led to a compromise on the institutional set-up.  Although these conclusive "bargain-
ing" sessions can hardly be retraced in detail, the ultimate outcome gives a hint at the arduous 
work that had to be accomplished. The all but coherent final result was largely determined by the 
method deliberatively chosen by Giscard. 
In his final conclusion on the Convention, Gray claims that the institutional package ultimately 
adopted "was not really the result of the Convention method", but rather of a joint effort of the 
three biggest member states, France, Germany and the UK, facilitated by a favorable duo: the 
President of the Convention, Giscard, and his collaborator Sir Kerr, head of the Convention Se-
cretariat and former British permanent representative.  If we put the pieces of the puzzle to-
gether, strong proof can be found that the agenda-setting power of Britain, France, and Spain had 
set the stage early enough to influence the rest of the institutional debate within the Convention, 
which then focused to a large extent on the proposed "President of the Council". The debate in-
tensified after the Franco-German initiative, which can for some reasons be seen as the decisive 
event in the institutional reform debate, as it ultimately led to the final adoption of the proposal. 
When Germany joined the camp of the supporters of a permanent presidency, it assisted in an 
effort of undermining one important feature of the commonly agreed long-time approach to 
European integration : the attempt to avoid any disequilibrium between smaller and larger 
states. Until then, institutional reform had followed the guiding principle that no permanent 
presidency should be established in order not to allow the big member states to appoint a person-
ality in support of their preferences, thus potentially violating the rights of the small countries. 
The Franco-German proposal broke with this tradition. By agreeing to it, Germany weakened the 
negotiation positions of the smaller states as well as the supranational institutions. Concerning 
the institutional debates, the former often found themselves on the defensive. Although holding 
heterogeneous positions on many other issues, they tried to form coalitions in order to fight back 
the proposals of the intergovernmental forces. 
The German acceptance of the creation of a permanent presidency of the European Council did 
not come "for free". It was part of the described deal that included France's agreement of the 
election of the Commission President by the EP and of a "double majority" for votes in the 
Council. This deal, however, was rather beneficial to the ABC coalition. The UK and Spain, 
which had initially not favored the election of the Commission President, rather easily bowed to 
this trade-off, counting on a continuing loss of power of the Commission. For his country, Prime 
Minister Blair proclaimed that the creation of a permanent chair for the European Council "will 
(...), in practice, shift authority from the Commission to national Governments."  France also 
agreed to it without any problems. The "federation of nation-states" approach French President 
Chirac propagated actually fit splendidly with the outcome of the institutional reform.  This 
conception included not only the strengthening of the European Council and the Council of Min-
isters as the "clé de voûte"  of the institutional system of the EU, but also the reinforcement of 
the Community method, and of the supranational institutions.  Pursuing these quite different 
aims, the French were in a position to reach agreements with British representatives on the Euro-
pean Council as well as with the Germans or Dutch  when it came to strengthening the Com-
mission. Not free of ambiguities or even "plain contradiction", the hybrid approach found suc-
cessively more supporters in the Convention , among them seemingly the President of the body 
himself. Furthermore, it had a sufficiently integrative effect, helping to bridge the gap between 
more integrationist and more intergovernmentalist views. Ably wandering between these two 
worlds, France appears "[i]n many ways, (...) to have been especially successful at the Conven-
tion in achieving many of its key goals."  
In contrast to the British, French and Spanish, the German government has to ask itself - to cite 
de Gucht once again - if it did not trade in a "symbolic legitimacy" of a potentially weakened 
Commission President for a Council President that might become the "real symbol of Europe's 
Union".  Did the German negotiators simply underestimate the possible consequences of their 
deal with the French? Or did they - in an instance of re-nationalization - really undergo a sub-
stantial change from a traditionally (and rhetorically) supranational stance to a more intergov-
ernmental approach, which also included the demand for double majority in order to strengthen 
its role in supranational law-making within the Council of Ministers? 

The Minister of Foreign Affairs
Contrary to the creation of a President of the European Council the desire to improve the exter-
nal representation of the EU had been evoked before the start of the Convention. One of the 
questions raised in the Laeken declaration asked "How is synergy between the High Representa-
tive and the competent Commissioner to be reinforced?"  It was restated in the mandate of the 
Convention Working Group on "External Action" , inciting quite different reactions. Despite 
the fact that the mandate included a number of different issues concerning decision-making or 
the goals and scope of EU external action, much of the heated discussions of the group  was 
dedicated to the institutional challenge of how the desired "synergy" effects were to be brought 
about. 
The final report of the group identified four different options, reflecting the cleavage between 
supranationalists and intergovernmentalists.  They differed with regard to the locus of loyalty of 
the person responsible for foreign policy. A first option proposed the strengthening of the High 
Representative, a second one the full merger of the two posts into the Commission. As the final 
report mentioned, for "a considerable number of members this option would represent the most 
effective solution to overcome the challenge of coherence and consistency in external action. At 
the same time they noted that it might not be attainable at this stage, as there was no consensus 
among Member States to turn foreign policy into an exclusive/shared competence."  For this 
reason, the majority of the group finally supported a compromise solution that bridged the gap 
between the first and the second option. It recommended the exercise of both offices by one per-
son, who could carry the title of "European External Representative". The original idea can be 
traced back to Commissioner Michel Barnier who explained: "I mean he would be vice-President 
of the Commission but, unlike his colleagues, he would be accountable to the Council. Europe 
would finally have a single face and a strong voice for its citizens and for the rest of the world."  
The fourth option foresaw the creation of the post of a "EU Minister of Foreign Affairs", who 
would be placed under the direct authority of the President of the European Council and would 
combine the functions of High Representative and Commissioner.
The slight majority in favor of option three determined the outcome of the further debates on this 
topic. It was reinforced - once again - by the Franco-German proposals. The compromise solu-
tion finally adopted after further controversies  strongly resembled the Working Group propos-
als. 
This example shows an element of institutional reform that had been dealt with at an early stage 
of the Convention, without too much influence by the Presidium. The result reflects the main 
cleavages. With "competitive functions embodied in a single person, the Minister, with loyalties 
to at least three different constituencies (President of the European Council, the Foreign Minis-
ters whom he is to chair and the (...) Commission where he is a Vice President)"  will have to be 
a "schizophrenic workaholic", as Sir John Kerr ironically noted. 
All in all, this account of the genesis of two of the institutional reforms within the Convention 
underlines the complex nature of the process. Nevertheless, we derive an approximate idea of 
how the reforms were brought about, and - more importantly yet - how they were intended by 
some of the key actors involved in the reform process. The way the negotiations were conducted 
point to a certain extent to notions of "re-nationalization", as every member state attempted to 
promote its proper interest before thinking of "European" interests. While the results seem, in 
conclusion, to resemble in many ways the French idea of a federation of nation states, this 
evaluation does not yet say much about the effects the new rules will have in practice. The ques-
tion that remains to be answered is: how will the new institutional structures function in political 
reality?


4.	Institutional Architecture and Policy-making after the Constitution
4.1.	Assessing the new institutional arrangements 
4.1.1.	Supranational or intergovernmental?
The approach to institutional reform chosen by the Convention (Presidium) revealed three main 
points: First, despite the importance of leadership or the creation of a European government in 
preparatory documents, "creating a unified, coherent executive or administrative power was not a 
very important consideration, perhaps not a consideration at all."  While the debate about the 
pros and cons of a Presidency of the European Council took up a lot of the already limited time 
frame of the Convention, the final package was not really coherent, neither in properly circum-
scribing the tasks of this President nor in terms of the creation of a "balance of power" worthy of 
this appellation. Things did not change with the IGCs. Second, institutional reform represented 
to a large extent a quest for influence and power. Member states representatives wanted to pre-
serve and promote their countries´ interests through favorable institutional arrangements. Also, 
the results reflect other tensions within the Convention. The ambiguity of the constitutional pro-
visions leaves space for interpretation. What the Convention and the IGC installed de jure might 
not completely determine what the institutions will de facto do. 
A number of other reforms do not fit in this pattern. The European Foreign Minister, e.g., consti-
tutes a rather hybrid figure, attached to both the Commission and the Council. The same will ap-
ply to the European External Action Service, which is also to be attached to both institutions.  
As already pointed out, the ambiguity of the reform effort seems to correspond quite well to the 
concept of a "federation of nation-states", which somehow (unintentionally?) bridges the gap be-
tween the two classical approaches to integration. This concept, however, is not a convenient de-
vice for analysis of how the interaction between the EU institutions will function once the new 
Constitution will be in practice. 
In sum, this attempt of classifying the main institutional reforms does not provide us with a suf-
ficiently clear concept of the newly created "institutional balance". In order to transcend this in-
terpretation we would therefore like to turn to our second device for a systematic analysis based 
on the distinction between legislative and executive powers, taking the catalogue established 
above as a starting point.

4.1.2.	Executive leadership or stronger legislation?
With the new Constitution, legislative powers will continue to lie with three institutions: the 
Commission as the initiator, the Council of Ministers, and the European Parliament. The Euro-
pean Council - as is quite redundantly stated in Article I-21.1 - will not exercise legislative 
rights. Generally spoken, legislative powers shall remain shared powers. While the field of su-
pranational legislation has been extended , important areas not covered by the new "legislative 
acts" remain. The supranational institutions will remain without real influence in foreign and de-
fense policy, and some important fields within the area of Justice and Home Affairs, including, 
for instance, criminal law matters.
When examining the allocation of executive powers in the Constitution, on the other hand, we 
can conclude  that (1.) Concerning the planning of the overall priorities and the legislative 
agenda, the wording of the new Constitution strengthens the role of the European Council to a 
considerable extent, assigning it to "define the general political directions and priorities thereof" 
(Art. I-21.1).  At the same time, its new "President" will be - legally - in a position to "drive 
forward" the agenda of the EU (Art. I-22), which in turn implies that this task will have to be 
shared with the President of the Commission. The Commission as a whole keeps its executive 
functions in this area (Art. I-26). (2.) As far as the second archetypical task of an executive, the 
responsibility for foreign affairs and defense, is concerned, this remains largely with the Euro-
pean Council and the Council of Ministers. The former is to determine the main objectives in 
CFSP and defense matters, while the latter will have to implement the guidelines set out.  The 
newly created Minister for Foreign Affairs will also exercise executive functions, but (s)he will 
work on the basis of a mandate of the Council (Art. I-28.2). (3.) Responsibility for the effective 
implementation of agreed policy initiatives and legislation will generally lie with the Council of 
Ministers and the Commission.
All in all, executive powers will remain shared powers with the Constitution, but the inclusion of 
new actors involved in the policy-making process is bound to alter the balance between the three 
institutions exercising executive functions. On paper, the executive role of the European Council 
has been clearly enhanced, whereas the role of the Commission has remained more or less un-
changed. However, the election of its President by the EP, and the reinforcement of his role 
within the Commission college, point to an overall strengthening of the head of this suprana-
tional body. The Council of Ministers, finally, seems to lose some of its executive capacities, re-
sembling in some ways - judging the wording of the Constitution - more to the "executive's ex-
ecutive" than to a component of the executive that operates on an equal footing with the Euro-
pean Council and the Commission.  One new element that stands out is the creation or solidifi-
cation of three different posts potentially to be occupied by persons who could become the "face" 
of the Union: the Presidents of the European Council and the Commission, and the Minister for 
Foreign Affairs. The all but clear balance that these key actors will have to find in their interrela-
tionship will be decisive with regard to who will be perceived as the "chief executive" by the EU 
population or other countries.
In summary, this latest institutional reform effort seems less concerned with a general clarifica-
tion of the legislative-executive relationship or the circumscription of a single locus of executive 
power than with enhancing the effectiveness of each single institution, leaving the legislative 
powers mostly unchanged, but creating "executive (...) processes (...) a whole order of magnitude 
more messy" than they had already been before.  The resulting confusion regarding the execu-
tive powers comes as no surprise when reconsidering the way the reforms were brought about. 
The focus of the institutional reforms on the creation of strong "lighthouse" figures as described 
in the previous section favored - at least on paper - the strengthening of executive powers to the 
detriment of the legislative.  
This result improves our understanding of the institutional reform outcome: Although the reform 
is in itself far from coherent, its evaluation on the basis of a "balance of power" perspective at 
least illustrates that - in comparison to some previous treaty reforms - considerably more empha-
sis was put on the strengthening of the executive than on the legislative. Assessing the institu-
tional package deal of the post-Nice process solely on the basis of text exegesis tells us, how-
ever, only one part of the story. It is the necessary condition for our exercise of "anticipating the 
Constitution", but insufficient if left by itself. While de jure the new Constitution seems to pro-
vide for a stronger executive, it all depends on how the opportunity structures offered by the new 
provisions will be used by the institutions in practice. Let us therefore turn to some thoughts 
about the potential impact that the new provisions might de facto have.

4.2.	Constitutional politics, rational self-interest and policy reform
In our attempt to "anticipate the Constitution" we have so far briefly discussed the institutional 
reform process and assessed its outcome on the basis of the framework lied out at the beginning 
of this paper. We will now turn to the question of what the inter-institutional balance might look 
like in practice, i.e. once the Constitution has come into force. Our anticipation will draw on two 
different reasonings: first of all, we will outline the general political framework, which sets the 
lines of maneuver for policy-making in the EU now and in the medium term. Since the applica-
tion of the Constitution will be influenced by a panoply of norms, case law, principles, interpre-
tations, usages and practices, the political preferences of the member state governments as well 
as the European institutions will be as important as the institutional outcomes discussed above 
for the anticipation of future developments in the inter-institutional balance. As a matter of fact, 
the "lines of maneuver" will depend heavily on the willingness of the member state governments 
to furthermore share their sovereignty. This willingness, in turn, relies on the policy demands 
that the EU citizens articulate vis-à-vis their respective governments.
For obvious reasons, we cannot analyze separately the political preferences of each member 
state. This would be a whole research agenda of its own, depending on the policy field. We will 
therefore proceed in two steps: firstly, we will give a short description of some of the political 
priorities found at present in important member state governments, which will most probably 
become the dominant doctrine in the Council in the upcoming future. Secondly, we will present a 
few observations on the likely future policy agenda of the Commission and the Parliament. 
Bringing liberal and institutionalist reasoning together, this part of our paper will thus provide 
answers to the following questions: How will the changing policy preferences of the member 
states influence the way the EU conducts its policies? And - on the background of the general 
political framework - in which way will the incentives laid out by the constitutional arrange-
ments be used by the EU institutions? 
4.2.1.	Functional and symbolic visibility
Jacques Delors, like many others, has repeatedly stressed the importance of the European Union 
being "visible" for its citizens.  By being visible it slowly creates the sentiment of adherence 
and common destiny which is the foundation for further integration steps. Two forms of visibil-
ity can be distinguished: symbolic and functional visibility. Symbolic visibility was at the heart 
of the constitutionalisation of the Union: the Charter of fundamental rights, declaration No. 23 of 
the Nice treaty, the Laeken declaration and many of the solemn declarations made by political 
leaders in the wake of Joschka Fischer's Humboldt speech of May 2000 all were attempts to 
bring the Union closer to its citizens. Perhaps the most unfathomable aspect of this evolution is 
that it ended a 40-year old principle not to address openly the question of finality.  Under the 
Luxembourg compromise it was patently clear that any move to spell out how far one should go 
with European integration would lead to a complete standstill of European policy-making and, a 
fortiori, treaty revision. Later on, the Maastricht and Amsterdam IGCs were masterpieces of how 
to avoid profound questions concerning the political long-term objectives of European integra-
tion even though creating a political union as a counterpart of monetary and economic union was 
part of the official agenda. For a very long time in EU history, "the dynamics of the integration 
process [were] more important than its destination." 
With the advent of constitutional politics the benefits of the former functional sub silentio ap-
proach are confirmed in many ways. While there is a plethora of multi-level theories in both le-
gal and political science, most of them evade rather than solve the main problem of any federal 
system, the resolution of conflicts between norms and the establishment of a hierarchy of provi-
sions. In politics, radical positions that would have been considered unacceptable a few years 
ago are now part and parcel of the debate.  If such academic or political propositions gained 
more ground the implementation of European legislation would increasingly depend on the po-
litical consent of the member governments or national courts.  As one author has noted, many 
'no-demos' and multi-level theories ironically propose "to limit sovereignty in favor of sover-
eignty, cut back democratic accountability in order to protect democracy, and undermine the le-
gitimacy of law to conserve the legitimacy of law." 
As we have seen above, Jacques Delors' emphasis was on functional visibility, particularly as 
concerned the display of projects financed by the structural funds. However, there are other as-
pects of functional visibility. For some time, EU citizens did indeed see increasing practical 
benefits of Union citizenship: passports were not needed anymore for intra-European travel, with 
border controls later being completely removed between the Schengen states; pensions and even 
payments related to unemployment were directly transferred by the authorities to other member 
states without major problems (except, perhaps, inflated bank charges); environmental EU direc-
tives could be instrumentalised to block unpopular road projects; scholars found supplementary 
sources to finance their research, students discovered new exchange schemes funded by the EU; 
and reimbursements of medical treatments in other countries could be refused by national health 
insurances only under quite restrictive circumstances.
With the completion of the single market and its associated legislation, this trend seems to have 
come to a halt. In recent years, new tangible results are harder to see for EU citizens. On the con-
trary, there are a number of developments which can possibly impinge in a negative way on their 
daily life: enlargement puts less qualified jobs at risk or leads to lower salaries in sectors affected 
by new competition; price differentials in important products such as cars are extremely slow to 
disappear; in new technologies such as cellular phones, which in theory should be an emblematic 
instrument to remove obstacles for transnational communication, just as they have made disap-
pear distance related pricing within member states, attractive offers are mostly limited to the na-
tional network; as with car prices, the Commission treads slowly and carefully when tackling 
extravagant roaming charges; and while the Euro's inflationary effects do not appear in the offi-
cial statistics they are clearly felt by citizens when spending their disposable income, e.g. in rec-
reational activities.
If new EU policies are enacted, they are not necessarily welcomed by a majority of citizens: 
small violations of the traffic code will soon be prosecuted across EU borders; a trans-border in-
formation system on bank accounts and capital interest payments will soon become effective; 
sensible public health regimes, such as the recent directive to limit small particle pollution in in-
ner cities, may lead to unpopular measures, e.g. barring car traffic. Finally, long-established "Eu-
ropeanised" services are faded out: on some international railway lines there exist today different 
booking and price systems which make it difficult simply to switch trains, something unheard of 
for decades and comparing unfavorably to the old days of the Trans-Europa-Express (TEE); 
most postal authorities have now stopped to charge the same price for domestic and EU letters, a 
policy that had been applied by most member states, and even beyond the EU, since the late 
1950s.
These considerations may at first sight appear trite but we contend that they may influence citi-
zens' perceptions of Europe's legitimacy (or, at least, its added value) as much as a new cata-
logue of fundamental rights or a constitutional text.  As there is a clear trend in many member 
states to let the people decide on the ratification of the treaty this perception becomes vitally im-
portant. For the purpose of our analysis, the problem has to be approached along the lines de-
fined by liberal intergovernmentalism: member state governments are predominantly interested 
in their reelection (although the importance of "principled commitments"  and other "idiosyn-
cratic" factors  are by no means denied), which makes them pay attention to the general senti-
ment towards the EU in the population and thus determines their own Euro-attitudes. This ap-
plies not only to "constitutional moments" such as the current ratification procedure but also to 
day-to-day policy making. The latter aspect explains the wide swings in attitude shown by some 
member state governments towards critical issues such as the stability pact or the services direc-
tive presented by former Commissioner Bolkestein.

4.2.2.	Growing diversity

Political Diversity 
At this point in time, the political diversity in the Union is rather marked: whereas three of the 
larger member states, Germany, Great Britain and Spain, are governed by Social Democrats, 
France and Italy, for instance, have conservative governments. More heterogeneity comes into 
play when we add the new and smaller countries to the picture. The resulting divergence of pol-
icy preferences not only affects the views on solutions of specific policy problems (e.g. the dif-
ferent approaches to foreign policy, or to transatlantic relations), but also the approach to the in-
tegration process as a whole. The diverging views about institutional reform explained above 
illustrate this point. They furthermore determine the willingness of the states to share their sover-
eignty. In sum, the political diversity within the EU complicates supranational policy-making 
and stimulates processes of re-nationalization.

Sociocultural Diversity
If "EU policy-making is a process of mutual learning, resting on mutual trust, in which ideas as 
well as interests shape the search for consensus" , profound changes to its over-all political, but 
especially to its cultural framework must be considered to have an important impact on the way 
these learning processes take place. The negotiations of the IGCs 2003 and 2004 have shown 
that - beyond the political differences - deeply historically rooted cultural perceptions existed, 
complicating the search for compromise. For instance, the Polish position during the final stages 
of the negotiations has been interpreted in this way. The fear of a European super-state threaten-
ing its only recently acquired independence lead to a hardened stance in order to preserve the 
thresholds concerning qualified majority voting in the Council established in the Treaty of Nice. 
As a result of this, the reform process almost collapsed. This behavior is likely to be reproduced 
in everyday policy-making.
Managing cultural diversity in a federal manner ("unity in diversity") can at this point in time not 
be considered as a valid option. The development of a common esprit communautaire or solidar-
ity among the different member states will certainly take some time.  The current diversity must 
thus be seen as a potential factor of slowing supranational policy-making down, equally favoring 
tendencies of re-nationalization in the near future.

Socioeconomic Diversity
The socioeconomic diversity of the Union has obviously increased with the latest enlargement. 
Integrating the incoming new members demands an enormous management effort, and consider-
able sums of money would have to be transferred. At the same time, some of the old member 
states have been undergoing important social and economic transformations, in the course of 
which they have accumulated high unemployment rates ever since the end of the 1990s. Whereas 
Germany or France display weak growth rates, other countries like Britain, Ireland or Spain are 
quite in the opposite situation. These differences in economic development put a strain on the 
solidarity within the Union. States shave to keep a tighter grip on their money, which clearly 
shows in the discussions about the new financial perspective. In a joint letter, the six net con-
tributors of the EU wanted the Union's budget to be capped at 1 per cent of the EU's gross na-
tional income (GNI) at the start of the next financial perspective in 2007. They stated that the 
Union's budget should be subject to the same "painful consolidation efforts" as their own na-
tional budgets. 
But the heterogeneity of situations also generally leads to a heterogeneity of policy preferences 
and solutions proposed to resolve the problems faced. Reform discussions within the different 
countries influence the positions that the governments take at the European level. Together with 
the overall budgetary problems, social reform discussions in Germany, for instance, have seem-
ingly altered the German government's attitude towards European integration. While the Euro-
pean Monetary Union was formerly intended as a mechanism to "impose German-style monetary 
rigor" on the other member states, it reveals to become a problem under the conditions of the 
current economic malaise.  In coalition with France, Germany therefore tries to influence the 
Euro group to adjust the criteria of the stability pact. 
The list of examples could be continued. While the EU member states are well aware of the fact 
that the problems they are facing demand a cooperative effort, they are unwilling to leave the 
important policy choices to the EU. Hence, mechanisms of flexible integration (e.g. the open 
method of coordination etc.) are given priority over supranational law-making. This furthermore 
reveals the leitmotiv of a growing willingness to protect the states' interests. Since structural 
changes are long-term processes, this tendency could become stronger in the upcoming years. 
Problems related to the socioeconomic diversity in the EU could lead to an increase of impor-
tance of the European Council, while the Commission will be the target of attempts of various 
governments to influence its policy choices. It will, however, still be needed to carry out impor-
tant coordinating functions. 
4.2.3.	Policy preferences of the member states
If we take a general look at the political priorities in most European states today, we find that 
they can be directly related to the problem of economic growth and job creation. Hence, the 
dominant policy program on the EU level is the Lisbon agenda which, despite attempts to in-
clude social policy and sustainable development aspects, focuses on the improvement of the 
regulatory environment for business and on policies which can be related to economic growth, 
such as research or education. However, most policies falling under these headings are predomi-
nantly national competences. The constitutional treaty will not change this.  
Fiscal restriction represents a core element of the member states´ strategies of coping with the 
problems related to growing unemployment rates. The consolidation of national budgets, how-
ever, demands a restriction of their contribution to the EU budget. The debates about the finan-
cial perspective could also be interpreted as an erosion of solidarity within the Union. As a third 
recent example of a more "protectionist" stance one can cite the reactions to the services direc-
tive presented by former Commissioner Bolkestein or the criticism of the Commission's REACH 
proposal (chemical substances risk assessment). 
Since citizens, for their part, perceive the position taken by their government with respect to im-
portant EU dossiers, and to European integration in general, a vicious circle of mutual rein-
forcement of Eurosceptic attitudes may be established. This might hold especially true for some 
of the new member states, as the debates on the ratification of the Constitution in countries like 
Poland or the Czech Republic already suggest. But the examples mentioned also point to the 
conclusion that some of the old member states once very much in favor of deeper integration 
have become more skeptical of European politics. The German government, for instance, has 
recently announced internally to block any EU proposal not in line with its interests until the 
next federal elections in autumn 2006. 
Ever since the beginning of the 1990s it can be observed that the application of the classical 
model of the Community method is not the solution preferred by member states and emphasis on 
legislation at the European level is reduced.  On the other hand, new, more flexible instruments 
have been introduced, but could not fulfill their promises (such as the Open Method of Coordina-
tion, extensively discussed and frequently hailed by academics as a the solution for sensitive 
policies such as the extension of the working life, flexibility of the employment market, the 
state's stake in the economy or the tax system).  
It follows that, at both the European and the national level, there is a clear tendency to decrease 
legislative activism, especially with an ambition of harmonization, to the advantage of deregula-
tion, mutual recognition and "lean government" strategies. One recent phenomenon substantiat-
ing this thesis is the increased importance given to regulatory impact assessment (RIA). Until 
recently a specialty of only a few member states, it has now become a practice destined to be in-
troduced at all levels and by all players participating in European policy-making. While RIA 
could also be used to clarify environmental or social impacts of planned legislation, the debate 
on the REACH directive clearly demonstrates that at least for the time being emphasis will be on 
the costs imposed on firms or governments.
On the other hand, areas belonging to the core of state responsibilities and impinging on citizens' 
liberties, such as internal security or immigration, are rapidly communitarised. They include and 
will continue to require a large number of executive regulation and inter-state cooperation to 
specify and implement the general legislation in this field. Similar concerns apply to areas in 
which progress has been declared necessary by citizens, such as foreign and defense policy, even 
though progress will be much slower there, despite the political emphasis given to CFSP in the 
constitution and in some ongoing implementing measures.

4.2.4.	 Preferences of the Commission and the European Parliament
Looking at the European institutions, a first observation to make is the concurrent dominance of 
conservative and liberal parties in both the Commission and the Parliament. 
At the beginning of its term, the Barroso Commission has tried to promote a liberal political pro-
gram, including an approach to the Lisbon strategy primarily targeted on economic growth, leav-
ing the social and ecological aspects aside.  The dominant policy program is the Lisbon agenda 
which, despite attempts to include social policy and sustainable development aspects, focuses on 
the improvement of the regulatory environment for business and on policies which can be related 
to economic growth, such as research or education. However, most policies falling under these 
headings are predominantly national competences. The constitutional treaty has not changed 
this.  Enlargement has increased pressure on business and citizens to adapt to more low-cost 
competition, thus further tilting the balance towards liberalization of social and economic poli-
cies. Differences between social democratic and conservative governments are relatively small. 
In any case, the are not easily ordered on a uni-dimensional scale. Policies preferred by the UK 
Labour Party may be more "to the right" than policies pursued by conservative governments in 
another member state. It follows that, on both the European and the national level, there is a clear 
tendency to decrease legislative interventions to the advantage of deregulation and "lean gov-
ernment" strategies. On the other hand, areas belonging to the core of state responsibilities and 
impinging on citizens' liberties, such as internal and external security or immigration, are rapidly 
communitarised. They include and will continue to require a large number of executive regula-
tion and inter-state cooperation to specify and implement the general legislation in this field.
As far as the EP is concerned, it seems quite probable that a certain consensus will develop with 
the Commission to look carefully at new legislative projects. The need for qualified majorities 
for certain decisions will continue to force the political groups to cooperate on many issues. 
However, the considerable share of seats of Eurosceptic groups, which generally are not avail-
able for such cooperation, has clearly increased the weight of the smaller groups. In the current 
political climate, the liberal group will probably profit more from this than the Greens or the in-
dependent left. Ambitious legislative efforts seem however to be strictly limited to internal mar-
ket policies, and will thus - as pointed out above - not include the fields that are presently con-
sidered to be the most important ones. 

4.3.	 Policy-making after the Constitution: three scenarios 
These observations on the "state of the Union" with regard to the factors influencing policy-
making give us a fairly clear indication of what the future could look like in the medium term. 
The prognosis seems rather bold: to sum it up, the enlarged EU generally seems to be heading 
towards less legislative and more executive efforts. 
While the Union tries to enhance its symbolic visibility by equipping itself with a "Constitution", 
it fails to provide the necessary policies to increase its functional visibility. As a result, support 
for the integration project diminishes. In quest for sufficient policy solutions, citizens either turn 
back to their member state governments or lose any expectations of political solutions to their 
problems. As these governments already encounter difficulties when they have to "sell" unpopu-
lar reforms to their voters, further engagement in EU affairs becomes even less explicable. In 
consequence, the overall attitude of and within the member states towards EU integration be-
comes more hostile. This effect of a declining willingness to share competences is reinforced by 
the proliferation of veto-players due to enlargement. Hence, growing socioeconomic, sociocul-
tural and political differences on the EU level incite the member states to opt for policy areas and 
decision-making mechanisms that allow for a substantial control of the EU policy-making proc-
ess.
Against this background, we would like to choose three possible scenarios of how the new inter-
institutional balance of the EU could function in the future and discuss them in further depth.  
Drawing on the identified conflict between the two potential "chief executives" of the EU, two of 
the scenarios include a notion of hierarchy, and the third one sees the European Council and the 
Commission and their respective presidents work on an equal footing. We can touch relatively 
briefly on the first two of the suggested scenarios, as they represent tendencies that come close to 
either one of the extreme positions of the supranational/intergovernmental dichotomy. The un-
derlying idea is that - though institutional novelties are to be introduced with the Constitution - 
there will be no tabula rasa situation. The future development will build upon the existing foun-
dations.
The third scenario, however, seems to involve a new sort of policy-making dynamics within the 
EU. It sees the Union at a "critical juncture" - where institutional re-design entails a new mode of 
governance in practice.  

1.	The first scenario involves elements of hierarchy in a double sense. For one thing, the 
European Council would become the center of gravity of EU policy-making, to the det-
riment of the three other institutions. Its president would possess the necessary personal 
and political resources to emerge as the leading figure of the further integration process. 
Cooperating closely with the member state governments, this new "homme fort" of EU 
policy-making would enhance the coherence and continuity of the work of the European 
Council. For this purpose, he could rely on the current Council of Ministers bureaucracy. 
While the latter would thus become the "executive's executive", the Commission and its 
president would become more and more marginalized in two ways: for one thing, its ex-
ecutive role would be undermined by the European Council and its chair. Moreover, it 
would also lose its legislative capacities. Its area of maneuver would be limited to the 
fields of supranational policy-making, and thus to policy areas that have been endowed a 
decreased priority.
	Secondly, a shift from the "parliamentary path" to a focus on executive tasks would be 
observable, and thus a strong trend of re-nationalization. The overall weakening of the 
Commission would entail a weakening of the Community method as a whole, affecting 
also the legislative powers of the EP and the Council of Ministers. The EP would hardly 
exercise any control of the policies conducted by the European Council. 
	This implies that the idea of a "Union of states" takes the precedence over the notion of a 
"Union of peoples". This perspective resembles to a large extent intergovernmentalist 
views, as it is in line with the hopes and wishes that member states like Britain had at-
tached to the latest institutional reform efforts. On the other hand, it comes closest to sce-
narios integrationists like the Belgian Foreign Minister de Gucht had warned about dur-
ing the institutional reform process in the Convention.

2. 	The second scenario comprises quite the opposite. In this perspective, the regenerated 
Commission President would really be in the driver's seat. Being elected by the EP - and 
thus enjoying a greater (albeit indirect) legitimacy, he would be placed higher than the 
President of the European Council in the internal hierarchy of the EU institutions, possi-
bly leading one day to a single EU President.  Based on a strong support of the parlia-
mentary majority, he would possess an ambitious legislative agenda. At the same time, 
the Commission as a whole would determine the overall EU policy-making processes in 
accordance with the EP and the Council of Ministers. In close collaboration with the For-
eign Minister - at the same time Vice-President of the Commission - and due to his mem-
bership in the European Council, the Commission President would even have an impor-
tant say in EU foreign policy and the setting up of an external action service.
	In this scenario, the Commission would ultimately resemble a European government, ex-
ercising executive functions and initiating legislation in order to promote the European 
general interest. The position of the European Council would actually be weakened by 
the creation of a permanent Presidency , and thus run contrary to the intentions of the 
ABC proposal. The revival of the Commission would strengthen the Community method. 
While executive tasks doubtlessly become more important, the parliamentary path could 
also undergo a reinforcement. This scenario comes obviously closer to a supranationalist 
reasoning of how the future institutional balance could be arranged.

Though both scenarios represent a reinforcement of existing paths and thus, theoretically, seem 
possible, in the light of the current overall political framework little seems to point to the realiza-
tion of either one of them. 
Ad 2: Despite the fact that the Commission President has been strengthened on paper, the ques-
tion remains how much space of maneuver he will get in reality. In the current political context, 
in which member state governments try to get a grip on the crucial policy fields, his area of op-
erations will probably be rather limited. With regard to its executive functions, the Commission 
and its president will probably not be able to impede the loss of competences. Under the new in-
stitutional frame, they will surely have to share them with the European Council and the Council 
of Ministers to a larger extent than before. As far as its legislative role is concerned, a lot will 
depend on the willingness and ability of the member states acting as co-legislator in the Council 
of Ministers to find compromise solutions on proposals of the Commission. The diverging views 
currently held by governments will not create a climate facilitating compromise on European 
legislation on such contested issues as the Lisbon agenda or the European budget.
Ad 1: At the same time, the diverging political preferences outlined above will not necessarily 
strengthen the European Council and its president either. If the latter fails in coordinating the 
views of the various governments, member states might have recourse to the well-tried method 
of delegating executive tasks to the Commission and its president in order to get the policy solu-
tions wanted. 
In consequence, a lot seems to point to the fact that neither the European Council nor the Com-
mission (or their respective presidents) will manage to take the exclusive political leadership of 
the Union. The notion of hierarchy inherent in both the intergovernmental and the supranational 
scenario - making the EU look more like a presidential system, with either the President of the 
European Council or his counterpart in the Commission become the "President of the Union" - 
thus has to be dismissed. Neither the institutional provisions of the Constitution nor the probable 
political climate within the EU in the next years support this idea. Instead, it looks as if the two 
institutions will need to find a new form of cooperation. In conceptualizing this new type of in-
teraction, we might have to surpass the two existing paths. Let us therefore turn to a third sce-
nario:

3.	This option involves a strengthening of both the Commission and the European Council. 
The underlying idea is that the discrepancy between the existing institutional structure - 
with the Commission as the primary executive body - and the strengthening of the Euro-
pean Council that the new arrangements of the Constitution provide for causes a problem 
that can only be resolved by a cooperative effort of the two institutions, involving their 
respective heads. This task demands a redefinition of the current institutional balance. 
According to Lassalle and Levrat, the new bipolar equilibrium to be found would be 
based on the conviction that the Commission has always represented "la continuité de 
l´action publique européenne et l´intérêt général européen", and should continue to do 
so.  It disposes of the necessary prestige, administrative capacities and resources even a 
reinforced European Council cannot do without. While the national governments, regain - 
via the European Council - the control of decision-making processes by making extended 
use of mechanisms like the open method or other new modes of governance, the Com-
mission as the prime supranational institution would remain important in order to put 
these mechanisms into practice. So in fulfilling the executive tasks that enjoy a growing 
priority in contrast to legislative efforts, the two institutions would be intertwined, form-
ing a "double executive". Their Presidents would have to find a modus vivendi to work on 
an equal footing. While the President of the Council could concentrate on coordinating 
the member states´ preferences and on foreign policy issues, the President of the Com-
mission could stick with his traditional tasks. This alliance between the Commission and 
the Council would entail a weakening of the other EU institutions, the Council of Minis-
ters and the EP. While the former would not only lose its legislative capacities due to the 
diminished importance given to legislation, but also its role as an executive, the latter 
could lose influence through the decline of legislation-related Community mechanisms.

Out of the three scenarios presented here (cf. Table 2) this last one seems to be the most in line 
with the picture drawn of the overall political situation. It comes close to the "federation of na-
tion-states" perspective elaborated earlier. As intended by the French negotiators within the 
Convention, the locus of executive powers would be two-fold. At the same time, the "parliamen-
tary path" to European government would be abandoned.
All in all, both institutionalist and inter-governmentalist reasoning would arrive at very similar 
conclusions. While deregulation and liberalization would reduce the need for legislation, particu-
larly but not exclusively in the socio-economic and redistributive field, an increasing political 
weight of the European Council and a modified role of the Commission could further strengthen 
this adjustment. The (indirect) election of the Commission President by the European Parliament 
may offset this to a certain extent but its effects may be limited to political and budgetary control 
rather than legislative activism. Political control could perhaps even be extended, at least infor-
mally, to encompass some political influence on the European Council.


5.	Conclusion

Anticipating the future impact on European policy-making of new institutional provisions, yet to 
be ratified, demanded a two-fold effort: for one thing, our analysis was based on a broader his-
torical background. We delineated how the new institutional arrangements were brought about in 
order to interpret how they were intended. We then focused on the question of how the "written 
constitution" could translate into a "living constitution". Secondly, the liberal intergovernmental-
ist part of our analysis attempted to provide some insights on changing Euro-attitudes at the 
member government level in order to anticipate what the European Union could look like once 
its new rules of the game will have been put in place.
We have thus seen that intergovernmentalism offers instruments to analyze this "constitutional 
moment" in the EU's history, that historical institutionalism explains well the mechanisms of 
new supranational decision-making and its effects on the balance of powers between the institu-
tions as well as between institutions and member governments, and that even neo-functionalism 
may capture important aspects of how new policy domains appeared on the EU's agenda, espe-
cially in its "pre-constitutional" phase. The distinction between supranationalism and intergov-
ernmentalism (or "consortium model" ) may have fallen out of favor in European politics but 
this does not change the reality of political contests, where practical decisions over resources and 
their allocation are taken almost every day (at this moment, the design of the future European 
External Action Service is a telling example).
The point of departure for our analysis has been the contribution presented to the convention by 
Karel De Gucht. Essentially, De Gucht made four critical comments: he identified a loss of legis-
lative clout of the Commission with the expansion of the co-decision procedure, a proposition 
supported by at least some authors.  He warned that election of the Commission President by 
the EP could be a symbolic achievement entailing a further loss of practical power in the legisla-
tive process because the Commission may have less political acceptance among the heads of 
state.  He feared that a double-hatted foreign minister may start a process at the end of which 
citizens get the impression that all external relations are now intergovernmental. Finally, over-
crowding the Commission with commissioners from every member state, at least until 2013, 
could diminish the operational capacity to make collegial decisions. Our hypothesis has been that 
Parliamentarization requires an effective and independent Commission. As we can see that most 
of the decisions De Gucht warned the convention not to make have been adopted by the IGC, 
prospects for Parliamentarization as defined in this paper are not bright for the medium-term fu-
ture.
The written Constitution certainly offers inspiration for developments in both the supranational 
or the loose cooperation direction. Firstly, the "fusion of the treaties, the suppression of the pil-
lars, the generalization of co-decision and QMV in legislative matters, the incorporation of the 
charter, are important legal and symbolic changes, especially in the light of the resistance to 
change in these areas during prior IGCs."  Secondly, the political will entailed by the latest 
enlargement to emphasize less the formal parity of member states and to give more weight to 
influence based on demography has been implemented in the constitutional text. This could im-
prove decision-making if and when this quasi-majoritarian approach is accepted by the smaller 
member states and their citizens, a prerequisite for sufficient compliance and ownership of po-
litical decisions. It also increases the risk, however, that big member states are tempted to go it 
alone or to form a "directorate" or executive board. Finally, the high-level political contributions 
following the Fischer speech of May 2000 and preparing the ideological climate for the conven-
tion openly split, for the first time in the Union's history, previously joint objectives, i.e. integra-
tion, Parliamentarization and federalization.  The German position is of particular interest here: 
Germany has long favored formal Parliamentarization, while increasingly pursuing the objective 
of emptying or renationalizing certain integrated policies such as the CAP and reducing the Un-
ion's financial resources. Moreover, it apparently lost its preference to attribute new competences 
to the Commission or even tends to reduce existing ones.  Despite the cooperation of both 
countries in the convention, the French position was diametrically opposed to this in the past 
(preference for strong redistributive community policies without Parliamentarization at the Euro-
pean level). The constitution seems to have found a common understanding on these issues 
which is not a very clear avowal of Parliamentarization at the European level.
Our brief analysis of the Convention process also revealed a rather blurred picture of the out-
come of its institutional reform ambitions. While the first impression of a trend towards re-
nationalization, or at least increasing preference for executive decision-making, seems to hold 
true the institutional architecture nevertheless remains hybrid. Certainly, some prominent 
changes, such as the creation of the President of the European Council, the cementation of the 
second and, in some measure, the third pillar as primarily intergovernmental areas, the rein-
forcement of the role of national parliaments in the integration process, and the installation of 
various modes of flexible integration, involve an amplification of the intergovernmental mode of 
governance. On the other hand, some important supranational features have also been reinforced: 
a common legislative procedure has been created, the role of the EP was generally enhanced, and 
co-decision has been extended to further areas - these and other reforms provide for suprana-
tional policy-making mode in quite a few new areas.
In an institutionalistic perspective, we see contrasting trends. The Commission's weight can 
hardly be said to have increased because co-decision has been further extended and a number of 
other proposals strengthening its position have been abandoned early on in the convention's de-
bates (e.g., the Commission will not chair council formations, the number of its members will 
not be radically reduced and the proposal for a single EU presidency supported predominantly by 
the Commission never flew). Still, the internal management powers of the Commission President 
have been enhanced, as has been the role of the Commission in delegated legislation and imple-
mentation. As to the Council, the last enlargement numerically increases the difficulties to make 
decisions, at least until 2009, when the double majority rules of the constitution will bring the 
decision-making capacity back to the EU-12 situation. The relative power of member states in 
the Council, at least in statistical terms, will change considerably in favor of the big four, with 
Germany gaining more weight than the other three taken together.  As to the relative weight of 
the Council compared to the European Council, we find conflicting evidence in the literature, 
with some authors seeing it diminished by increased interference of the European Council in pol-
icy programming and foreign affairs,  others expecting an increased weight as the administra-
tive infrastructure of the European Council (which would imply a reduced role for the Commis-
sion). 
The general picture of the scenario outlined in part 4 is that the EU has arrived at a defining mo-
ment. Enlargement and the institutional provisions of the Constitution create a new situation that 
will entail a number of significant changes in the inter-institutional balance. Further enlarge-
ments are scheduled and will increase the socio-economic, cultural, and political diversity of the 
Union even more. Policy-making in the EU will thus have to be partially rethought. The diverg-
ing policy preferences of the member states have for the moment resulted in a more coherent and 
effective coordination by the European Council. At the same time, other decisions – for instance 
the increase at least of symbolic legitimacy of the Commission President - point to the fact that 
the member states seem well-aware of the continued importance of the Commission as an execu-
tive body. However, the trend toward less ambition in redistributive or harmonizing legislation 
will seemingly continue, thus diminishing the potential of the EU as a whole to demonstrate that 
its policies satisfy the rational self-interest of its citizens.
The "presidential" innovations of the constitution can be regarded as emblematic for the entire 
institutional package deal of the Convention and the IGC. Why is that so? The opposition of the 
two Presidents illustrates the overall interest of the different parties involved in the reform to ei-
ther promote the role of the European Council in order to enhance the effectiveness of the EU 
system or to strengthen the democratic legitimacy - aims that have been the guidelines of the 
whole institutional reform process. If we consider the constitution to give a presidential gradient 
to the European political system this could reinforce the impact of current political preferences. 
In other words, both institutionalist and inter-governmentalist reasoning would arrive at very 
similar conclusions. While deregulation and liberalization would reduce the need for legislation, 
particularly but not exclusively in the socio-economic field, an increasing political weight of the 
European Council and a modified role of the Commission could further strengthen this adjust-
ment. The (indirect) election of the Commission President by the European Parliament may off-
set this to a certain extent but its effects may be limited to political and budgetary control 
through the EP rather than legislative activism. However, political control at the European level 
could perhaps become more forceful, at least informally, with respect to the European Coun-
cil.  Nevertheless, to answer the leading question of this paper, in view of the institutional set-
up defined in the constitution the EU will remain a semi-parliamentary or pre-parliamentary po-
litical system. 


Table 1: Community Method vs. Intergovernmental Decision-Making: an Overview


COMMUNITY METHOD
INTERGOVERNMENTAL DECISION-
MAKING
Core Ideas
Shared responsibility - all actors intend to achieve a 
common good out of diverging individual interests
"European institutions enjoy political autonomy and 
authority"  in decision-making procedures
The European Union (EU) represents a "union of 
states" which bargain to maximise national interests
Sovereign member states can withdraw their  consent: 
European institutions are not independent
Main Actors
Commission: strong role in policy design/execution
Council, EP: legislation (in co-decision)
European Court of Justice (ECJ)
Sovereign member states in the European Council 
and in the Council of  Ministers decide and execute
Division of Powers
(Inter-institutional 
Arrangement)
Commission has monopoly for initiating legislative 
procedures
Council decides by QMV; amendments of Commis-
sion proposals only on the basis of unanimity 
EP is a full partner in legislative procedure via co-
decision 
States and EU institutions can take cases to the ECJ
Programmatic role for European Council; it usually 
decides by unanimity (veto power for each state) 
Commission shares right of initiative with member 
states  
EP can be consulted 
ECJ has no complete oversight
Effectiveness
Brought forth by involving all actors implied into 
decision-making process and reducing transaction 
costs
Maintained through cooperation of  sovereign states 
that possess a veto position
Democractic
Accountability
Achieved through a system of checks and balances - 
different actors control each other; EP establishes a 
direct link to European citizens
Guaranteed through cooperation of sovereign national 
governments controlled by national parliaments, as 
the EP is not representative
Transparency
Produced by implication of many different kinds of 
actors in policy-making processes and internal rules
Automatically given because national governments 
clearly identifiable as decisive actors



Table 2: Anticipating  the Impact of the Institutional Arrangements of the new Constitution - Three Potential Sce-
narios


1
Intergovernmental Scenario
2
Supranational Scenario
3
"Federation of nation-states" 
Scenario
Institutional balance
Strong European Council with a 
powerful President as "chief 
executive" of the EU;

Council of Ministers becomes 
"executive´s executive";

Limited role for the Commission 
and the EP
Strong executive and legislative 
role for the Commission; 


European Council weakened; 


Council of Ministers and EP 
remain co-legislators
"Double executive": European 
Council and Commission, each 
with a strong President

Council of Ministers loses execu-
tive and legislative capacities;

Role of the EP weakened
Predominant mode of govern-
ance
Intergovernmental Method
Community Method
New, more flexible modes of 
governance (Open Method, 
regulations, etc.)
Executive-Legislative Relations
Shift to executive
Shift to legislative or no changes 
in comparison to present situa-
tion
Shift to executive


? Administrator, policy department Citizens' Rights and Constitutional Affairs of the Secretariat-General of the 
European Parliament.
* Carlo Schmid Fellow at the above department. The views expressed here are exclusively those of the authors.
  In order to facilitate the legibility of this paper, the Constitutional Treaty will be referred to as "Constitution" in the 
rest of the text. 
  Alberta Sbragia 1993: The European Community: A Balancing Act, Publius: The Journal of Federalism. Vol. 23, 
No. 3, pp. 23-28.
  Ulf Sverdrup 2002, An Institutional Perspective on Treaty Reform: Contextualizing the Treaties of Amsterdam and 
Nice, Journal of European Public Policy, Vol. 9, No. 1, p. 132.
  Berthold Rittberger 2004, The Politics of Democratic Legitimation in the European Union, Nuffield College 
Working Papers in Politics, 2004-W4, p. 11 f.
  CONV 705/03, The European Commission: Countdown to extinction?, Contribution by Mr K. De Gucht, Brussels, 
28 April 2003, p.2. The text was later published in European Integration, 2003, Vol. 25 (2), pp. 165–168
  Cf. Sbragia, op.cit., p. 7. Deborah Lassalle and Nicolas Levrat 2004, Un triangle à quatre côtés : L'equilibre insti-
tutionnel et le conseil Européen, Journal of European Integration, Vol. 26, No. 4.  
  Lori Thorlakson 2003, The Draft Constitution on the European Union: The End of the Community method?, 
CONVEU 30 Conference Paper. [http://www.swp-berlin.org/common/get_document.php?id=712]
  Cf. Johan P. Olsen, James G. March 1998, The Institutional Dynamics of International Political Orders, Interna-
tional Organization, Vol. 52, No. 4, pp. 943-969; Mark Aspinwall, Gerald Schneider, eds., 2001, The Rules of Inte-
gration, Institutionalist Approaches to the Study of Europe, New York/Manchester.
  Cf. Andrew Moravcsik 1998, The Choice for Europe: Social Purpose and State Power from Messina to Maas-
tricht, Ithaca; Andrew Moravcsik 1993, Preferences and Power in the European Community: A Liberal Intergov-
ernmentalist Approach, Journal of Common Market Studies, Vol. 31, No. 4, pp. 473-523.
  On the situaton in the UK, see Brendan Donnelly, Constitution or Constitutional Treaty? Federal Trust Policy 
Commentary, February 2005.
  Koen Lenaerts, Marlies Desomer, New models of constitution-making in Europe: the quest for legitimacy; CMLR 
39, 1217-1253, p. 1222
  Andrew Moravcsik, Preferences and power in the European Community: a liberal intergovernmentalist approach; 
Journal of Common Market Studies 31, nr 4, 1993, pp. 473-524
  Olivier Costa, Le parlementarisme au-delà de l'État: le cas de l'Union européenne; in: O. Costa, E. Kerrouche, P. 
Magnette (ed.), Vers un renouveau du parlementarisme en Europe? Bruxelles 2004; pp. 271-294, 282
  George Tsebelis, Geoffrey Garett, The institutional foundations of intergovernmentalism and supranationalism in 
the European Union; International Organisation 55, no. 2, pp. 357-390
  Helen Wallace, Designing institutions for an Enlarging European Union; in: Bruno de Witte, Ten Reflections on 
the Constitutional Treaty for Europe, European University Institute 2003; pp. 85-105, 97
  Jan Rood, The Community Method and the Institutional Balance after the European Convention, in Anna Michal-
ski (ed.), The Political Dynamics of Constitutional Reform: Reflections on the Convention of the Future of Europe, 
The Hague 2004, p. 75.
  At this point, we remain reserved in our judgement about the utility of the supranationalism vs. intergovernmen-
talism divide or the necessity to revise it. In the light of the results of our proposed analysis, we will see at the end of 
this paper if we can find evidence for the claim that this device for analysis is no longer useful.
  Markus Jachtenfuchs, Beate Kohler-Koch, eds., 1996, Europäische Integration, Opladen, p. 17.
  Hans Peter Ipsen 1972, Europäisches Gemeinschaftsrecht, Tübingen.
  Cf. Gary Marks, Liesbeth Hooghe, Kermit Blank 1996, European Integration from the 1980s. State-Centric vs. 
Multi-level Governance, Journal of Common Market Studies, Vol. 34, No. 3, pp. 341-378.
  Art. I-33, Treaty establishing a Constitution for Europe, OJ C 310 of 16 December 2004; cf. Paul Craig, European 
Governance: Executive and Administrative Powers Under the New Constitutional Settlement, in Weiler and Eisgru-
ber (eds.), Altneuland: The EU Constitution in a Contextual Perspective, Jean Monnet Working Paper 5/04, p. 4, 
[http://www.jeanmonnetprogram.org/papers/04/040501-12.html].
  Craig, op. cit., p. 4.
  Ben Crum 2003, Legislative–Executive Relations in the EU, Journal of Common Market Studies, Vol. 41., No. 3, 
pp. 375-95, p. 376.
  George Bermann, Executive Power in the New European Constitution, in: Weiler and Eisgruber (eds.), op.cit. p. 1
  Crum, op. cit., p. 377.
  Cf. Paul Pierson 1998: The Path to European Integration: A Historical-Institutionalist Analysis, in Wayne Sand-
holtz, Alec Stone Sweet, eds., European Integration and Supranational Governance. Oxford, pp. 27-58.
  They are expounded in considerable detail in Jean-Louis Quermonne, L'Union européenne en quête d'institutions 
légitimes et efficaces ; Rapport du groupe de réflexion sur la réforme des institutions européennes, Commissariat 
général du plan, novembre 1999.
  Ibid., p. 147/48
  Mark Gray, The Convention's internal dynamic: leadership, alliances and lessons to be learned; in: A. Michalski 
(ed.), op.cit., p. 52
  Klaus Hänsch, EP member of the Convention Presidium, Ein kleiner Schritt für die Staats- und Regierungschefs, 
ein grosser Schritt für Europa - Die EU gibt sich eine Verfassung. Information to the Press, June 19, 2004, p. 1.
  Art. I-28, Treaty establishing a Constitution for Europe
  Art. I-21 and Art. I-22, Treaty establishing a Constitution for Europe
  Art. I-23, Treaty establishing a Constitution for Europe
  Art. I-24, Treaty establishing a Constitution for Europe
  Art. I-25, Treaty establishing a Constitution for Europe This system will apply as of November 2009. 
  Art. I-26, Treaty establishing a Constitution for Europe
  Art. I-27, Treaty establishing a Constitution for Europe
  Art. I-20, Treaty establishing a Constitution for Europe
  For a general assessment of the Draft Treaty see Yves Mény 2003, The Achievements of the Convention, Journal 
of Democracy, Vol. 14, No. 4, pp. 57-70. 
  Mark Gray, op.cit., p. 48 and pp. 53 ff.
  The idea became known as the "ABC proposal" (Aznar, Blair, Chirac).
  Agence Europe, Peter Hain sets out British ideas on European president, a presidential team and the role of 
Commission and parliaments,  28 June, 2002. 
  Philippe de Schoutheete 2003, The Debate on the European Council in the Convention, p. 4 [http://www.irri-
kiib.be/papers/deschoutheete_Integration.pdf].
  Benelux memorandum on the reform of the Council - The Hague, 4 June, 2002 
http://europa.eu.int/constitution/futurum/documents/other/oth040602_en.htm
  CONV 489/03: "Franco-German contribution to the European Convention concerning the Union's institutional 
architecture", submitted by Mr Dominique de Villepin and Mr Joschka Fischer, 16 January 2003.
  Cf. Convention Watch, "European Council and Council of Ministers", 1st issue April 2003 
http://eucon.europa2004.it/Watch1ed/Watch_A1.htm#D; In a letter on the reform of the European Council published 
by German chancellor Schröder and British Prime Minister Blair in February 2002, for instance, a permanent presi-
dency option had not been evoked at all. Cf. Joint Letter from Tony Blair and Gerhard Schröder to José María 
Aznar, on the reform of the European Council - London, Berlin 25 February, 2002.
  Renaud Dehousse, Andreas Maurer, Jean Nestor, Joachim Schild, 2003, La nouvelle architecture institutionelle de 
l´Union européenne: une troisième voie franco-allemande? Paris. p. 7. [http://www.notre-
europe.asso.fr/IMG/pdf/Etud23-fr.pdf]
  Jacques Delors, Remarques personelles, in : Dehousse et al, 2003, op.cit., p. 28.
  Cf. Agence Europe, Reaction largely positive from London, Rome and Madrid to Franco-German proposals on 
institutional architecture, which, moreover, leave some others perplexed, whereas certain advances are acknowl-
edged - Joschka Fischer emphasises difficulty of the exercise, 17 January, 2003.
  Intervention No. 2-057, 21 January, 2003 [ http://www.europarl.eu.int/europe2004/textes/verbatim_030121.htm]
  Intervention No. 2-064, 21 January, 2003 [http://www.europarl.eu.int/europe2004/textes/verbatim_030121.htm]
  Cf. CONV 646/03: Reforming the institutions - principles and premises, 28 March, 2003. Cf. Benelux: prise de 
position des Premiers et des Ministres des Affaires étrangères suite à la Contribution franco-allemande à la Con-
vention Bruxelles, 21 January, 2003.
  "This proposal is about transforming the European Council into the executive for adults, and the Commission into 
the executive for kids" - Antonio Vitorino, Reported in European Voice: Time for Union to make executive deci-
sion, 13-19 February, 2003, p. 9.
  Agence Europe, 17 January 2003 (see above).
  Cf. Gray, op. cit, pp. 48 f.
  Ibid., pp. 50 f.
  Ibid., p. 58.
  Paul Magnette and Kalypso Nicolaïdis 2003, Large and Small Member States in the European Union: Reinvent-
ing the Balance, Notre Europe, Paris, pp. 5-7.
  House of Commons, Hansard, 9 September 2003, column 173 - cited from Anan Menon 2004, Leading from be-
hind: Britain and the European Convention, Paris, p. 45.
  The "inventor" of this concept was Jacques Delors. See, for instance, Jacques Delors 2000, Europe needs an 
avant-garde, but..., CER Bulletin, Issue 14 [http://www.cer.org.uk/articles/issue14_delors.html]
  Dehousse et al., op.cit., p. 17. 
  Crum, op.cit., pp. 382 ff.
  Contribution franco-néerlandaise à la Convention: renforcement du rôle de la Commission, 25 March, 2003 
[http://www.diplomatie.gouv.fr/actu/article.asp?art=33644]
  Cf. Crum, op. cit., pp. 388 ff.
  Ulrike Guérot, Kirsty Hughes, Maxime Lefebvre, Tjark Egenhoff, 2003, France, Germany and the UK in the 
Convention - Common Interests or Pulling In Different Directions? Epin Working Paper No.7. Brussels. p. 12.
  De Gucht, op. cit., p. 3.
  On the German position within the Convention see also: Ulrike Guerot, Germany and the Convention on Europe's 
Constitution: On the way to federalism?, DGAP, 15 October 2002 
[http://www.epin.org/papers/NatDebandPositions/01_Guerot_germandebate.pdf]
  Laeken Declaration on the Future of Europe, p. 5.
  CONV 252/02, Mandate of Working Group VII on External Action, Brussels, 10 September 2002, p. 5.
  Cf. Working Documents of Group: http://european-convention.eu.int/dynadoc.asp?lang=EN&Content=WGVII
  CONV 459/02, Final report of Working Group VII on External Action, Brussels, 16 December 2002, pp. 19 ff.
  Ibid., p. 20.
  Agence Europe, Positions and opposing positions on key points of institutional reform just as the debate begins,  
13 December, 2002.
  For a summary of the debate: Giovanni Grevi, Daniela Manca, Gerrard Quille, A Foreign Minister for the EU - 
Past, Present and Future, WP 7/2003 [http://www.fornet.info/documents/Working%20Paper%20no%207.pdf], pp.4 
ff.
  Brian Crowe, Foreign Minister of Europe, February 2005, The Foreign Policy Centre, London 
[http://fpc.org.uk/fsblob/395.pdf], p. 4.
  Speech given by Sir John Kerr, Deutsch-Britische Gesellschaft e.V. Berlin und Brandenburg in cooperation with 
the Auswärtiges Amt and the "Institut für europäische Politik": Did the European convention succeed – and will its 
European constitution succeed?, 22.9.2003, Berlin (www.dbg-koenigswinter.de).
  Bermann, op. cit., p. 2.
  Art. III-296.3, Treaty establishing a Constitution for Europe
  Andreas Maurer 2003, Der Konvent, nationale Vorbehalte und die Regierungskonferenz, Part I, SWP Discussion 
Paper, Berlin, pp. 29 f. [http://swp-berlin.org/common/get_document.php?id=573]
  For a complete legal assessment: Cf. Craig, op. cit.
  By contrast, the currently valid treaty provisions state that the European Council is responsible for the "general 
political guidelines" (Art. 4 TEU).
  Art. I-40, III-295 and III-297.8, Treaty establishing a Constitution for Europe
  Bermann, op. cit., p. 9.
  Bermann, op. cit., p. 6.
  Cf. Lars Hoffman, Leading the Union - An Argument in favour of a dual EU presidency, The Federal Trust Online 
Paper 15, April 2003 [http://www.fedtrust.co.uk/uploads/constitution/15_03.pdf], p. 3.
  We claim that the opposition of the two presidents can be considered as emblematic for the entire institutional 
"package deal" of the Convention and the IGCs. The reason for this is that the example illustrates the overall interest 
of the different parties involved in the reform to either promote the role of the European Council in order to enhance 
the effectiveness of the EU system or to strengthen the democratic legitimacy on the other - aims that have been the 
guidelines of the whole institutional reform process. 
  Agence Europe, 5 March 2005
  Udo di Fabio speaks of the "golden silence, [...] particularly with respect to the state-like character of the EC ..."; 
see A European Charter: towards a Constitution for the Union; Columbia J of Eur Law 7, 2001, pp. 159-172, 160
  Jan Rood, op.cit., p. 76.
  Cf. Czech President Vaclav Klaus' appeal to revert to the pre-Maastricht stage of integration; Interview in Frank-
furter Allgemeine Zeitung of 15 March 2005.
  Michael Masepow, Die Finalität Europas im globalen Kontext: Integrationskonzepte und Pespektiven; WHI-Paper 
16/04, p. 18
  Masepow, op.cit., p. 25
  See von Bogdandy's discussion of rational self-interest as an alternative to "identity" (The European constitution 
and European identity: potentials and dangers of the IGC's Treaty establishing a Constitution for Europe); in: 
Weiler/Eisgruber, op.cit., 2004, p. 16.
  Daniel Halberstam, The bride of Messina or European democracy and the limits of liberal intergovernmentalism; 
p. 2; in: Weiler/Eisgruber, op.cit.
  Andrew Moravcsik 1993, op.cit., 494
  Wallace and Wallace, Policy-making in the EU, p. 523.
  Cf. Heather Grabbe, How enlargement will change the EU´s political dynamics and its foreign policies, in: Slovak 
Foreign Policy Affairs, Vol. V, No. 1, Spring 2004, pp. 63-74.
  France, Germany, Austria, UK, Netherlands, Sweden, Joint letter to Commission President Romano Prodi on new 
financial perspective, 15 December 2003. 
  Charlie Jeffery, William E. Paterson, Germany and European Integration: A Shifting of Tectonic Plates. In: West 
European Politics, Vol. 26, No. 4, October 2003, pp. 59-75, p. 64.
  Cf. website of the Federal Government, Schröder and Chirac: Stability Pact needs to be interpreted with an eye 
to growth, 9 March, 2005 [http://www.bundesregierung.de/en/-,10001.799530/artikel/Schroeder-and-Chirac-
Stability.htm]
  In fact, the rather unsystematic position of economic policy in separate article of the catalogue of competences in 
part I of the Constitution has been repeatedly criticised by legal academics and politicians.
  Cf. Le Figaro, Au terme de cent jours à la tête de la Commission - José Manuel Barroso, prisonnier du couple 
franco-allemand, 2 March, 2005 [http://www.lefigaro.fr/international/20050302.FIG0237.html]. International Her-
ald Tribune, Sharp EU division arises on services, March 4, 2005 
[http://www.iht.com/articles/2005/03/03/business/euecon.html].
  Focus, Rot-Grün - Weniger Europa, No. 7, February 2005, p. 15. 
  Jan Rood, op. cit., p. 78.
  According to the Deputy Secretary-General of Eurochambres "the open method of coordination is a disaster" 
(Agence Europe of 1 February 2005, item 1).
  Cf. Le Figaro, Commission cherche à affiner une doctrine libérale, 24 January, 2005.
  In fact, the rather unsystematic position of economic policy in separate article of the catalogue of competences in 
part I of the constitution has been repeatedly criticised by legal academics and politicians.
  Helen Wallace (op.cit., p. 97) has presented similar scenarios in the run-up to the IGC, when the exact terms of 
the institutional innovations were not yet known.
  Pierson, op. cit., p. 31 and pp. 45 ff.
  Cf. Simon Hix, Why the EU Should Have a Single President and How She Should be Elected, Paper for the 
Working Group on Democracy in the EU for the UK Cabinet Office, October 2002, p. 4.
  De Schoutheete, op. cit.,  p. 10.
  Lassalle and Levrat, op. cit., pp. 442 ff.
  Helen Wallace, op.cit., p. 97
  E.g., Charlotte Burns, Codecision and the European Commission: a study of declining influence? Journal of 
European Public Policy 11, no. 1, 2004, pp. 1-18.
  It has indeed been observed that "Member governments have indeed been willing to delegate significant policy or 
regulatory powers to a European body, but they have not done so by cumulative delegation to a single agency in the 
form of the Commission" (Helen Wallace, op.cit., p. 88). Moreover, a "logical corollary [of making the Commission 
more political] could be to hive off the regulatory functions and the operation of competition policy by delegation to 
function-specific regulatory agencies" (ibid., p. 93)
  P. Magnette, K. Nicola?dis, The European Convention: bargaining in the shadow of rhetoric; West European 
Politics 27, no. 3, 2004; p. 396
  Olivier Costa, op.cit., p. 286. For an analysis of the major constitutional pronouncements after Fischer see Crum, 
op.cit.
  As concerns the administrative situation of the future European External Action Service, the German government 
enters negotiations with the proposal to transfer trade and develpoment policy from the Commission to a new inde-
pendent EEAS (see Berlin fordert EU-Superapparat für Solana, Financial Times Deutschland, 18 March 2005, p. 16)
  Richard Baldwin, Mika Widgrén, Council voting in the constitutional treaty: devil in the details; unpublished 
manuscript, June 2004.
  Deborah Lassalle, Nicolas Levrat, op.cit., p. 438
  Peter Ludlow, The Barroso Commision: a tale of lost innocence; EuroComment Briefing Note 3.4; p. 38,39
  See the now well-established practice of the European political families to meet shortly before the European 
Councils, inviting MEPs and Commissioners to participate.
  Olivier Costa, op.cit., p. 288. Philipp Dann, European Parliament and Executive Federalism: Approaching a Par-
liament in a Semi-Parliamentary Democracy; European Law Journal 9, no. 5, 2003, p. 549
  Helen Wallace, William Wallace 2000, Policy-Making in the European Union, 4th ed., Oxford, p. 6.


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