ECSA Review Forum: Analyzing the Treaty of Nice

Written especially for the ECSA Review (14: 2), Spring 2001, pp. 1, 3-11.
Copyright 2001 European Community Studies Association. May be reproduced for classroom use.
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IN DECEMBER 2000, THE European Council met under the leadership of the French Presidency to complete the negotiation of the Treaty of Nice, which was intended to reform the institutions of the Union and prepare them for eventual enlargement to the candidate countries of the east and south. The conduct of the 2000 IGC has been chronicled in detail by Desmond Dinan and Sophie Vanhoonacker in the pages of ECSA Review (Dinan and Vanhoonacker 2000, 2001), and the Commission has made both the text of the Treaty and much of its preparatory documentation publicly available on the Europa Web site (European Commission 2001a, 2001b). In this expanded ECSA Review Forum, five ECSA members and two guest authors look back at the 2000 IGC, analyze the provisions of the Nice Treaty, and look forward to the post-Nice agenda, which has already begun with the launching of a new, "constitutional" debate on the future of the Union.
- Mark A. Pollack, Forum Editor

The Treaty of Nice: Neither Triumph nor Disaster
Peter Ludlow

THE FINAL STAGES OF the European Council meeting in Nice were a shambles. Everybody was exhausted. Neither politicians nor officials were quite sure what had been agreed. Recriminations were hurled about like shares on a falling market.

Recollected in tranquillity, however, the meeting and the Treaty that it produced do not seem to have been so bad after all. Nice was far from being a triumph-particularly for the French Presidency. Nor, however, was it a disaster. Four observations must suffice:

1. The Treaty of Nice was bound to be modest.
The core business consisted of the issues that the European Council could not agree on at Amsterdam in June 1997. Other questions were added to the agenda as the IGC progressed. None of them could however be compared with the stuff from which the Single European Act and the treaties of Maastricht and Amsterdam were made. As the meeting at Nice confirmed, heads of government and state can invest even relatively trivial issues with dramatic potential. For all the sound and fury that surrounded their endeavours, however, the questions that they addressed remain relatively unimportant.

2. The bad news from Nice was largely the result of poor chairmanship.
The mood amongst many if not most of those who had been involved in the IGC prior to Nice was moderately optimistic as the Council began. The opening day at Nice itself confirmed the impression that the wind was set fair. The European Conference with the 13 candidate countries plus Switzerland left everybody including the Turks feeling satisfied. The first session of the Council proper was quietly productive, particularly regarding enlargement, where Italian Prime Minister Giuliano Amato succeeded in persuading his colleagues to commit themselves to the aim of completing the process in time for the first candidates to enter before the European Parliamentary elections of 2004.

From then on, however, the meeting began to disintegrate, as the Presidency lost control. Many participants highlighted the malign impact of French domestic politics (see also George Ross' essay below). Prime Minister Lionel Jospin passed the buck to President Jacques Chirac: Chirac would never move unless he was convinced that Jospin was implicated: the French delegation as a whole spent much of the time holed up in their bunker afraid to leave for fear that anybody who did would lose out.

Prime responsibility for the disorderly proceedings, however, undoubtedly lay with Chirac. His misjudgments included: fixation with formal parity between Germany and the other three large states; the decision to give the Spaniards everything they wanted before the negotiations started, thereby destroying any rational basis for the reallocation of votes and skewing the arithmetic at every subsequent point in the proceedings; a serious underestimation of the determination of the small states to safeguard their position; and above all the apparent desire to be all things to all men. As one veteran observed: "This wasn't a negotiation at all. Chirac conceded ground whenever he was pressed. X doesn't like QMV in this article: delete it. Y wants this: let him have it."

The end of the meeting was entirely appropriate. Nobody knew what the final deal was, because the Presidency had shifted its ground so often.

3. The Treaty is nevertheless useful.
As far as the "Amsterdam leftovers" were concerned both the large and the small states could claim success. On the reweighting of votes, the current system which would have reduced the share of the six largest states from 55% to 42% in a Union of 27 was amended to give the large states just under 50%. This figure was nevertheless significantly lower than the 55% that the French Presidency proposed at the beginning of the proceedings, thanks to robust resistance by the small states led by Portuguese Prime Minister Antonio Guterres. In addition to a higher than expected share, the small states also secured acceptance of the principle that there can be no qualified majority which does not have the support of a majority of states.

Amongst the other "winners" in this part of the negotiation, which overshadowed everything else, are Germany, whose larger population was acknowledged through the introduction of the discretionary demographic criterion plus special treatment regarding the allocation of parliamentary seats; Spain, which got everything it wanted before the negotiations began; Poland, which thanks not least to loud offstage noises, rode in on Spain's coat tails; the Dutch, who now have one more vote than Belgium; and Luxembourg and therefore Cyprus, who were beneficiaries of a Portuguese move to ensure that Benelux had more votes than Spain.

Obvious "losers" were Romania, which despite a population which is one third larger than the Netherlands' has only one extra vote; Malta, which is left in a category all of its own at the bottom of the list; and Latvia, Slovenia and Estonia, which are put on the same level as Cyprus and Luxembourg. The biggest losers of all, however, were Turkey and France, the former because, despite its candidate status, it does not figure at all on any list, and the latter, because by insisting on formal parity with Germany, it was forced to allow the introduction of a demographic criterion into the definition of the blocking minority, plus significantly more parliamentary seats for the Germans. Not to mention a huge loss of face as the negotiations stumbled from one disaster to another.

On the composition of the Commission, the outcome was significantly different from what had generally been expected after Amsterdam, where small state insistence on the principle of one Commissioner per member state appeared immovable. The new Treaty safeguards the principle for the time being, but provides for a break when Union membership finally reaches 27. Credit for this must go in part to Chirac, who to the consternation of his small state colleagues raised the stakes at Biarritz in October. The principal reason for the small states' change of front was undoubtedly however the prospect that the Union will eventually have significantly more than 27 members. Their readiness to concede was also made easier by the fact that when a rotation principle is eventually introduced, all member states will be treated on the basis of equality.

On qualified majority voting the result was predictably mixed. Expectations were higher on the eve of the Nice meeting. The final outcome was however significantly better than many if not most insiders had anticipated when the IGC began. British Prime Minister Tony Blair insisted that taxation remains a no go area and thwarted a Danish attempt to broker a compromise on social policy. German Chancellor Gerhard Schrvder and Chirac muddied the waters on Justice and Home Affairs, and Chirac and Greek Prime Minister Costas Simitis held their ground on certain aspects of Article 133, which deals with trade in services. Simitis also blocked extension of QMV to external assistance policies which might benefit Turkey (and therefore ipso facto other potential members).

There were however some positive features, and a few pleasant surprises. Thanks not least to energetic lobbying by Trade Commissioner Pascal Lamy, assisted at the Council table itself by Finnish Prime Minister Paavo Lipponen, the Commission got just about everything that it could reasonably have hoped for under Article 133 (see Meunier and Nicolaodis essay below). The Commission was also favored by the incorporation of the Lex Prodi-covering the powers of the President within the Commission-and, more surprisingly, by the introduction of QMV in connection with the appointment of the President and his colleagues. Had this system been in force in 1994, John Major could not have thwarted the candidacy of Jean-Luc Dehaene. Overall, with approximately 40 new provisions for QMV out of a possible list of around 75, the result was not bad, particularly as everybody shared the Commission's view that upwards of 20 items were off limits.

Over and above the Amsterdam leftovers, there were a number of other useful amendments, including new provisions regarding enhanced cooperation (see Philippart essay below), reform of the European Court of Justice, improved procedures under Article 7 (the article that was behind the Austrian affair in 2000), and an updating of Articles 17 and 25 to take account of ESDP developments including the virtual demise of WEU and the need for guidelines regarding operational responsibility in crisis management.

4. The most important outcome of Nice is, however, that unlike Amsterdam it finished.
There is a post-Nice agenda, but there are no Nice left-overs. As a result, there is no formal impediment on the Union's side to enlargement and the way is open to a "constitutional" debate, with which the candidates will be associated and which will culminate in another IGC in 2004 (see the essay by Bruno de Witte below).

Almost all the candidate countries were well pleased with Nice. With good reason. The European Conference on the first morning, the normal European Council and even the IGC all testified to the fact that enlargement is not only going to happen, but is going to happen rather soon. Having approved the Commission's strategy, which aims to make the conclusion of negotiations with the candidates who are ready possible by the middle of 2002, and Amato's proposal that the aim should be to have the first group in by the time of the next Parliamentary elections in June 2004, the Union has de facto adopted a timetable, even though the official line is still that this is not the case. The seriousness of the commitment is confirmed-and to a certain extent explained-by the transformation of the atmosphere regarding enlargement that was such a notable feature of the Brussels scene in the second half of 2000. The Council also decided to revamp the European Conference to include countries that it defined as "potential members," including in addition to the Balkan states, mention of whom is now routine, the EFTA countries. As Ukraine too was mentioned in an exchange between Chirac and Austrian Chancellor Wolfgang Sch|ssel, prospects for a Union of 35 members or more cannot be dismissed.

Nice also paved the way for a long overdue "constitutional" debate. The proximate reason was Chancellor Schrvder's need to satisfy the Ldnder that their concerns about the lack of clarity regarding the distribution of powers between the various levels of government would be taken up. The post-Nice agenda is also however an acknowledgement of much wider unease throughout the Union about where the whole process is going and who is in charge of what. The 1998 Vienna Council's decision to call for a Millennium Declaration was an early response. The miserable document that eventually emerged only confirmed however the lack of any clear thinking let alone consensus at the top.

Success is not of course guaranteed this time round, especially as 2004 is so close. A great deal will therefore depend on how the process is organized and how the agenda is defined.

As far as the former is concerned, some kind of Convention now appears inevitable. This is not in principle a bad thing. There are however two caveats. The first is that the objective of agreement by 2004 will disappear in smoke if those concerned believe that they can or should reinvent the wheel. We have a system which, for all its faults, is grounded in experience and logic. Which leads to the second point. At the core of the system is the European Council. Suggestions that the heads of state and government should somehow be marginalized are as misguided as they are impracticable. Whatever is agreed will only become reality if they sanction it, which means in the final analysis that they must somehow or other be identified with the process throughout. One solution would be to appoint one of themselves as President. Giuliano Amato's name is already circulating and it would be difficult to think of a better one.

The agenda sketched out at Nice is brief and will doubtless grow. The single most important missing item is however already obvious. Unless and until those involved attempt to define the structure of executive power in the EU system, efforts to make the latter more accountable are doomed. The omens are not good, as the ludicrous dispute between "intergovernmentalists" and defenders of the "Community method" illustrates all too clearly. We need a new language which takes account of the complex reality that has emerged by necessity rather than accident, let alone design. A beginning-but only a beginning-could be made if, under the chairmanship of a member or former member, the Convention would acknowledge that the European Council, whose membership and practices reflects the curious blend of intergovernmentalism and supranationalism which is the hallmark of the system as a whole, is more than ever the cornerstone on which everything else depends.

Peter Ludlow is Founding Director of the Center for European Policy Studies in Brussels; this article is based on a much longer analysis published elsewhere (Ludlow 2001).

France's European Tour of Duty, or Caution -- One Presidency May Hide Another
George Ross

RESPECTABLE PROGRESS WAS MADE on matters like defense, but the big story of the 2000 French EU Presidency was the Nice Treaty. At best the Nice deal lets the EU enlarge in a grumpy mood faced with large unanswered questions. Virtually all the issues on the Nice table involved redistributing something important among member states and everyone had something to lose and little to gain. It was no accident that smaller countries balked at increasing the clout of bigger ones in the Council. Giving Germany greater weight than France in the Council involved France renouncing Franco-German equality dating from the very beginnings of the EU. QMV could not be introduced for the broad range of matters that the general good seemed to require because each member state had something different to protect. Postponing substantial change to the Commission and other institutions was inevitable because everyone knew prior to Nice that the Germans wanted another IGC on constitutional matters for 2004. The Draft Charter of Rights may or may not have an important future. The most significant progress at Nice was facilitating "enhanced cooperation" although to what end no one was letting on beyond providing an escape hatch if enlargement clogs EU arteries.

We should not have expected much from Nice. Nonetheless virtually everyone has disparaged the French Presidency. In the beginning, during the brief debate after Joschka Fischer's speech in May, there were grandiose French words, but by the end there had been no grandiose achievements. The French Presidency was badly disorganized, prompting strong negative comparisons with the preceding Portuguese efforts. Setting up the simplest of meetings involved dozens of difficult phone calls. Generating papers was nightmarish. When Jacques Chirac toured the capitals prior to Nice he cajoled and jawboned his colleagues to make concessions without proposing any himself. Perhaps most important, the French-German "couple" emerged in tatters from the French Presidency, underlined by Chancellor Schrvder's public France-bashing.

The French Presidency does leave us with a nice social science problem set. On the one hand it is easy to "explain" Nice through a logic of EU member states pursuing their interests in a context where there were few incentives to make new sacrifices for Europe. On the other hand, those who organized Nice did a mediocre job and it could be argued that this was significant to the mediocre outcome. Post hoc, one can build an almost irrefutable case for the first analysis. Yet it is hard to believe that the flaws in the French Presidency did not make a difference. Would it have been possible to transform what turned out to be a deadlock into a more productive occasion?

What is most remarkable about the French Presidency (EU) is that its shape was largely determined by the French Presidency (France). The 1958 constitution of the French Fifth Republic, designed for Charles de Gaulle in the midst of a national catastrophe, endowed the President with unusually broad prerogatives, particularly in foreign affairs, at the expense of parliament and parties. As long as the incumbent and the parliamentary majority were from the same political camp-as they have been for much of the time since 1958-the French President could pursue international courses that might have been electorally risky for other leaders. The record shows that this mattered a great deal. French Presidents from de Gaulle through Mitterrand played switchpoint roles for European integration, from empty chairs to Maastricht, with important stops at the Hague Summit, the European Monetary System, the Fontainebleau European Council and EMU. Yet there was built-in variable geometry in this Constitution. When President and parliamentary majority come from different sides of the political spectrum the entire situation changes. President and Prime Minister then become political rivals. With the Prime Minister a potential President, the sitting President has to fight for his political life.

This situation of "cohabitation" explains a great deal about the 2000 French EU Presidency. In turn, it may be that the French Presidency of the EU was a-perhaps missed-switchpoint for the EU. Those who did not follow French TV during the second of half of 2000 should flash back to 1998 and the stadium scene when the French won the World Cup. The cameras focused initially on Jacques Chirac, but before one could blink Lionel Jospin was beside him. During the French Presidency and at Nice they looked permanently bound at the waist. But bound by what? Both want to be elected President in the Spring 2002 elections and the French EU Presidency was a step each had to negotiate prior to their campaigns.

The most recent cohabitation began in spring 1997 when Chirac dissolved a Parliament where he had a huge majority and ended up with a government, led by Jospin, of the "plural Left." Jospin's government has done well enough since then to threaten Chirac's re-election prospects. Thus during the strange French EU Presidency of 2000 neither proto-candidate could afford to allow anything to happen that might jeopardize their electoral prospects. Simultaneously each hoped that the other would make some costly political gaffe over Europe. Jacques Chirac, justifiably renowned for his changeability, lack of vision, and erratic commitment to Europe, was particularly vulnerable. For Chirac the EU Presidency unhappily coincided with rolling revelations of scandals from his prior career as mayor of Paris involving the illegal usage of illegal campaign financing, payoffs from contractors for the city, stuffed ballot boxes and big favors for his cronies. Chirac's most notable speech during the French Presidency thus had nothing to do with Europe. It was rather a television address to the nation redolent of Richard Nixon's "I am not a crook" pleadings.

Chirac's position was complicated even more by troubles he faced with feuding clans and rampant euroscepticism in his own decomposing center-right political camp, including from some who were quite prepared to resort to extreme right appeals to gain advantage if the President stepped out of line on Europe. Chirac could not afford any risks. This meant that France could not be seen giving an inch on any of its traditional positions. This was demonstrated, for example, in France's responses to the Joschka Fischer's ringing federalist speech, just before the Presidency began. Rather than welcoming Fischer's new ideas, Chirac's response to the Bundestag proposed an intergovernmental "pioneer" group presumably using enhanced cooperation to take the integration lead (a directoire?). It could also be seen throughout the IGC on the complicated issue of rebalancing votes in the Council to recognize Germany's new importance.

Lionel Jospin had to proceed differently. He had first of all to avoid upstaging the President, who had the constitutional right to play the leading role and who, Jospin could hope, might play it badly. He also had to avoid controversial statements on Europe. Hence a Lionel Jospin who was physically omnipresent during the French Presidency but completely silent to the point where very few had any idea what his positions on Europe were. Typical of this Jospinite posture, Hubert Vedrine, Jospin's very grey technician foreign minister, responded to the Fischer speech by announcing that everyone would be better off if they would stop giving grandiose speeches and got on with the difficult immediate tasks on the table.

In this context Chirac's bullying of other member states, particularly smaller ones, to give in on key questions while France itself was demonstrably unwilling to give anything in exchange becomes understandable, if difficult to forgive. It also explains why the French had trouble getting anything organized and the bad and circuitous preparation of papers and meetings. Everything had to be done by two different, mutually suspicious teams whose main goal was not to make the French Presidency a success but to trip each other up where possible. It thus took time and dense consultation to get two armed camps to reach one conclusion about anything European.

European-level considerations have always been strategically central for Fifth Republic Presidents, and French Presidents have arguably been the most important architects of European integration. The 2000 EU Presidency, however, occurred at a moment when considerations of domestic political strategy completely overshadowed European matters. Perhaps not much more could have been achieved than Nice actually did. This does not mean that the French Presidency was but a harmless portrait of EU stalemate, however. French power and influence in European matters has been on the wane, symbolized by the strong shift towards English as the EU lingua franca. The failings of the 2000 Presidency have accelerated these processes. When they were powerful, the French were never loved even when they were feared. After Nice they are loved and feared much less. More tangibly, Franco-German relations may be at their worst point since the very beginnings of European integration. The 2000 French Presidency coincided with desire on the part of German leaders to play a larger public role commensurate with the real weight of Germany in Europe. French obduracy, haughtiness and unwillingness to deal, in this context, probably reinforced German determination to make its own way, if need be without or against the French, in the future. With enlargement and the eventual inclusion of Great Britain in EMU the EU's political life will change and the Germans will be less constrained to work through the French because of the availability of other partners to achieve what they want. It will take energy and lucidity on the part of the French to minimize the damage done, but the French are unlikely to be capable of either for some time. The Presidential election is still a year off and the campaign will be bitter. Chirac is still under fire for past scandals and surrounded by political sharks awaiting opportunities to attack him. Moreover, Chirac has always been a volatile character willing to take exaggerated positions when he needs to fight his way out of corners. Jacques Chirac therefore is unlikely to be a very useful European leader in the immediate future. What Lionel Jospin really thinks about Europe is still unknown, although he has promised make a major statement on Europe once the dust has settled from the March 2001 local elections. Jospin is a thoughtful and shrewd politician, but his situation is also difficult. If he decides to play it safe by avoiding controversy it will not help either to restore French credibility or to advance the European cause. If he decides to be bolder it might provide Chirac with the incentives to answer in the nationalist and populist terms that he is wont to use, thus turning the French debate on Europe in an even more unproductive direction and perhaps getting Chirac reelected. The French EU Presidency was no aberration, therefore. France's position in Europe is changing and there is likely to be more turbulence ahead.

George Ross is Hillquit Professor in Labor and Social Thought and Director of the Center for German and European Studies at Brandeis University, and Senior Associate, Minda de Gunzburg Center for European Studies, Harvard University.

The New Provisions on "Closer Cooperation": A Call for Prudent Politics
Eric Philippart

IN ORDER TO WIDEN and deepen, the EU had to design new solutions accommodating diversity. One of them consisted of "opt outs," "opt ins" and "opt ups" granted on an ad hoc basis for specific policy areas. Preoccupied by the multiplication of this (unorthodox) differentiation in the rights and obligations of member states, the Florence European Council agreed in June 1996 on the need to "institutionalize" flexibility, i.e. to establish general rules for such solutions. The concept of "closer cooperation" also emerged in the middle of a 1996 intergovernmental conference (IGC) battered for months by the obstructive strategy adopted by the UK Conservative government. To a large extent, the first objective of its main proponents was therefore to design a device allowing to get around "recalcitrant" member states and deepen integration inside the EU framework. Treaty reforms being decided by unanimity, this objective had to be reconciled with the demands of those who saw themselves as potentially unable or unwilling to participate in new developments. What was eventually inserted in the Amsterdam Treaty, therefore, was a highly constrained mechanism for intra-EU closer cooperation, operational only in non-conflictual situations.

Two years later, a small number of players resolved to revisit the issue of closer cooperation in the next IGC, culminating in the Treaty of Nice. After much initial reluctance, the member states decided to relax the preconditions and triggering procedure of the mechanism. Whereas closer cooperation was one of the most controversial parts of the Amsterdam package, the heads of state and government had to spend but a few minutes in Nice to agree on its revision.

What can explain this swift change in attitudes? What is the potential of the revised mechanism? In order to answer these questions, it is useful to examine the respective preferences of three groups of member states-the "willing," the "unwilling," and the "unable"-and ask how the respective demands of these groups were met in Amsterdam and Nice (Philippart and Sie Dhian Ho, 2001b).

For the willing (and able) member states, the common aim at both Amsterdam and Nice was to be recognized as a kind of vanguard, whose policies are meant to be eventually extended to the rest of the Union. Within the willing group, however, a sub-group of member states place greater emphasis on effectiveness, maintaining in addition that closer cooperation should not require the approval of non-participants, that it should start on a small scale if necessary, and that its scope should be rather large. Moreover, non-participants should be excluded from the deliberation of the group and the vanguard should be free to decide who can join and when. By contrast, those more preoccupied with the risk of fragmenting the EU have a preference for a consensual triggering procedure, a high participation threshold, a restricted scope of application, some form of involvement of the unable in the deliberation, and an open-door approach.

As for the unwilling (and able), they insist on the defensive and restrictive features listed above, as well as on the clear recognition of the permanent nature of their non-participation and, for some of them, and on their right to cooperate outside the EU framework.

Finally, the interests of unable (and willing) member states are best served if they are involved in the definition of the policy developed by the group cooperating more closely, if catch-up instruments are established, and if non-participants can decide for themselves when they are ready to join in. Short of that, the system should at least include: the preservation of the acquis; procedures and institutions of the EU (which presupposes inter alia that closer cooperation is an instrument of last resort); the right to veto the launch of closer cooperation and to monitor its development; the obligation for the group cooperating more closely to involve a large number of member states and to be open to late-comers on the basis of objective criteria; and the protection of the interests of non-participating member states by independent institutions.

With the Treaty of Amsterdam, the willing obtained the constitutional recognition that there was no longer an absolute obligation for the EU to progress at the pace of the slowest member state. Besides this major satisfaction, some elements could be interpreted as an indirect recognition of their "vanguard" status (cf. the possibility to be financed by the EC budget). For the rest, however, the demands of the sub-group of willing insisting on effectiveness were dramatically ignored. This contrasted with the relative success at Amsterdam of the unwilling group, whose demands for a more restrictive mechanism were all met, except for the discretionary right to opt-in. As for the unable, if none of the strongest inclusive features they asked were satisfied, most of the conditions listed in their second-best formula (those overlapping with the positions defended by the sub-group of willing keener to preserve the cohesion of the Union) were taken on board. This strong bias in favor of the proponents of the status quo was not really surprising. When negotiating positions are very divergent and only one party (the willing) is really interested in a successful outcome, that party has to make most of the concessions. The extent of the concessions, however, varies with the other parties' vulnerability to pressure. In the present case, the unable were more vulnerable than the unwilling.

Impressed by the restrictiveness of the formula, many post-Amsterdam comments referred to closer cooperation as a dead-born child. It was, however, clear that the Amsterdam compromise was but a first step and that there was certainly room for a revision of the provisions. Acclimatization of decision-makers to new mechanisms invariably requires time. The member states' preferences, furthermore, are not static. By the end of 2000, most of the unable were convinced that they would necessarily look more able after enlargement. Some of the traditionally unwilling were keener not to be portrayed as systematic opponents. Most importantly, having secured the inclusion of so many restrictions and blocking mechanisms in Amsterdam, the unable and unwilling were also in a position to meet some of the demands of the willing without taking too many risks for themselves.

As a result, the 2000 IGC approved the suppression or relaxation of some of the more draconian enabling conditions, as well as the use of closer cooperation in the second pillar (albeit limited to the implementation of joint actions and common positions). More importantly, as far as the first and third pillars were concerned, the unwilling and the unable gave up their veto in favor of a new, but still very demanding, triggering procedure. They probably reckoned, rightly so, that it would be easy enough to find a blocking minority against any controversial projects. The unable conceded in addition to lower the participation threshold from a majority of member states to only eight of them. If one reckons that, after the coming enlargement, the Amsterdam threshold would have meant their automatic inclusion in any group cooperating more closely, this was a substantial concession. On closer examination, however, this concession was relatively cheap. Indeed, as long as closer cooperation has to be authorized by a qualified majority, most, if not all, current unable countries should be in a good position to trade off their vote against their inclusion. Their change of attitude was also determined by a key reassurance against the possible use of closer cooperation to set up a club of selfish rich: the Treaty of Nice states explicitly that the proposed cooperation should not undermine economic and social cohesion established in accordance with Title XVII of the TEC.

All in all, with the Treaty of Nice, the EU is now equipped with a reasonably operational mechanism for closer cooperation. Indeed, preliminary attempts to make use of closer cooperation have shown that many pre-conditions are less restrictive than expected. The services of the Council and the Commission have, for instance, adopted a rather liberal interpretation of the "last resort" or the protection of the acquis. For a number of important areas such as environment, justice and home affairs, taxation and other flanking measures of monetary policy, closer cooperation can now function as a "laboratory" for the EU. The willing can "experiment" with new policies and regimes which could eventually be of interest for the entire Union. The others can wait for the first results, before deciding to join the experiment or not. It also offers the possibility to establish "large sub-systemic" closer cooperation--i.e., focusing on a topic interesting only a sub-group of member states.

For most of the key components of the "ever closer Union" model, the changes introduced in Nice are neutral (Philippart & Sie Dhian Ho, 2001a). Combined with the persistent absence of catch-up mechanism, however, the lowering of the participation threshold could undermine the principle of the single institutional framework. Fragmentation induced by closer cooperation remains the main danger for the current EU model. Prudent politics should therefore preside over its use.

Eric Philippart is Research Associate at the National Fund for Scientific Research, Belgium, Associate Professor, Universite Libre de Bruxelles, and Visiting Professor, College of Europe in Bruges.

Trade Competence in the Nice Treaty
Sophie Meunier and Kalypso Nicolaidis

THE NICE SUMMIT IS unlikely to be remembered as a French success in the story of European integration. The French presidency has been widely criticized for failing to put the interests of the Union above its own national interest and, as a result, for failing to produce a clear and elegant revised treaty. In doing so, however, one could argue that France succeeded in what really mattered to her: holding the bottom line on issues of vital national interest. As is well known, this was true for the relative voting weights of France and Germany. This was also true on the question of trade competence. As a result, the new compromise eventually reached on trade in the late hours of the Nice negotiations is another fascinating example of the EU's propensity for "evolutionary pragmatism" (cf. Moravcsik and Nicolaodis 1998).

The story of the trade competence debate leading up to Nice is well known and revolves on the distinction between exclusive and mixed competence (see Meunier and Nicolaodis 1999, 2001). In theory, mixed competence in trade simply means that delegation of authority is granted on an ad-hoc basis for negotiation purposes rather than once and for all. Individual member states retain a veto both through unanimity voting in the Council (at the mandate and ratification stage) and through ratification by their own national parliaments. They also retain the right to engage in bilateral negotiations with third countries. Under exclusive competence, a vote in the Council stands as ratification (although in practice, the difference has been blurred by the informal practice of agreement by consensus). While Article 113 of the Treaty of Rome granted exclusive competence to the EC on external trade matters, this state of affairs became contested with the introduction of so-called new trade issues--services and intellectual property--in the Uruguay Round (1986-1993). A majority of member states, fearing loss of control in these sensitive areas, argued that Article 113 was never meant to cover them in the first place. Analytically, it is hard to concur. The whole point of the Uruguay Round was to widen the scope of what has traditionally been understood as "trade." And the whole point of "Europe 1992" was to "extend" the internal market to services. But politics has its own logic. And in this case, the European Court of Justice took the "cautious" route by arguing in its 1994 ruling that only "crossborder" trade in services--that is one of the modes of services delivery--counted as traditional trade and therefore fell under exclusive competence (Court of Justice 1994).

Since 1994, therefore, the "trade competence" ball has been in the camp of high level politics. The question was intensely debated in the run-up to the Amsterdam summit where member states contemplated the option of expanding the scope of exclusive competence while at the same time introducing an unpalatable list of exceptions. In the end, they adopted a temporary fix: a short amendment to Article 113 (renumbered 133) allowing for future expansion of exclusive competence to the excluded sectors through a unanimous vote of the Council. This could be done on an ad-hoc basis without requiring an IGC.

Yet, it quickly became clear that the Amsterdam compromise was not sustainable. Since 1997, the extraordinary boom in trade in services, the chaos surrounding the WTO meeting in Seattle in 1999, and the prospect of imminent enlargement of the EU all contributed to calls for revisiting the trade competence issue. Moreover, streamlining of voting procedures on trade fell within the basic premise of the Nice IGC-the extension of qualified majority.

Players and Positions
We have argued elsewhere that national positions on trade competence were based both on political considerations reflecting a country's stance on the general question of division of sovereignty in the Union and the role of the Commission; and on economic or sectoral considerations whereby pro-free trade advocates tend to prefer exclusive competence which limits the veto power of protectionist groups, with exceptions due to individual countries' sectoral concerns (e.g., Greece and Denmark on maritime transportation, Germany on air transportation, France on audiovisual, public service and health policy). At Amsterdam, as in Nice, France was the most vocal opponent of exclusive competence--it did not trust the Commission to defend Europe's Maginot line against Hollywood. Its camp had shrunk significantly since Amsterdam, down only to Spain and to some extent Portugal.

Unsurprisingly, at Nice as at Amsterdam, the Commission was the strongest advocate of "communitarization"-ironically through the voice of its French trade commissioner, Pascal Lamy. It was supported by Finland, Sweden, Italy and the Benelux countries, and more quietly by Germany, Denmark and the UK. The UK government's position, in particular, was key in that this is the country in the EU with the highest stakes in trade in services. While it had progressively overcome its distrust of the Commission and favored an expansion of exclusive competence, it was at the same time extremely concerned with the so called "reverse ERTA" problem, in reference to the ECJ jurisprudence on the issue which linked internal and external competences. The concern was to prevent external commitments from driving the internal agenda in areas of the internal market where the Community had not completely pre-empted the field through harmonization or mutual recognition (e.g. banking or the professions).

On the non-governmental front, the Commission tried, with moderate success, to rally support from the business sector. At the same time, it was loudly criticized by the new post-Seattle players-NGOs such as ATTAC and the Observatoire de la Mondialisation, or the dedicated audiovisual pressure group, "red alert on 133."

Options and Final Compromise
Could there be a compromise between the "maximalist" option, which would communitarize all trade in services and intellectual property, and the "minimalist" option which would retain the "mixed competence" status quo except for the issues included in a list (the "negative list" approach)?

Over the course of the IGC, it became clear that a way forward would be to distinguish between two separate components of the negotiations: a) whether to "communitarize" competence; b) to the extent that (some or all) competence would be transferred to the Community level, whether to preserve unanimity voting. The introduction of this distinction was the crucial move which opened up the possibility for a compromise.

The final agreement reflects the bargaining dynamics of the negotiation. There was a general momentum at Nice to expand QMV, and article 133 was to be no exception. The general rule for trade in services will now be exclusive competence (Article 133.5). Even then, unanimity will be required for "provisions for which unanimity is required for the adoption of internal rules or where it relates to a field in which the Community has not yet exercised the powers conferred upon it by this Treaty by adopting internal rules." At the same time, exceptions to exclusive competence were kept to a minimum and carved out under a "positive list" approach. First and foremost, the concept of "mixed competence" developed by the Court in its 1994 jurisprudence is now enshrined in the Treaty as a new legal category. Particularly noteworthy is therefore the black-on-white inclusion of the "cultural exception" clause in Community law, with cultural and audiovisual services falling under shared competence alongside education, social and human health services. In addition, transport remains under a separate legal basis (Title V and Article 300) that some have referred to as "mixed competence." Finally, intellectual property is also divided in two components: "commercial aspects of intellectual property" fall under exclusive competence and all other aspects of intellectual property are shared. But the Council can decide by unanimity that the provisions relevant to exclusive competence can be extended to the latter-a last echo of the defunct Amsterdam compromise.

Sophie Meunier is Visiting Research Fellow and Lecturer in Public and International Affairs at Princeton University. Kalypso Nicolaidis is University Lecturer at St. Antony's College, Oxford.

The EU Charter of Fundamental Rights
Grainne de Burca

ALTHOUGH THE "SOLEMN PROCLAMATION" by the Council, Commission and Parliament of an EU Charter of Fundamental Rights took place at the same time as the conclusion of the Intergovernmental Conference at Nice in December 2000, the initiative to draw up such an instrument and the actual process of drafting took place quite separately from the rest of the IGC, whose agenda was defined largely by the "Amsterdam leftovers" and the need to prepare institutionally for enlargement. The Charter initiative was a separate and, in retrospect, perhaps rather surprising move by the German presidency of the Union in 1999, in calling for the drafting of a bill of rights for the EU. The debate over whether the EC should accede to the Council of Europe's Convention on Human Rights had been running for many years, but the idea of a separate EC charter of rights had never attracted the same degree of attention or support.

What was agreed at the Cologne European Council meeting in 1999, however, was not presented as a radical or innovative step in the field of human rights protection at EU level, but rather as a consolidating and showcasing measure designed to demonstrate what the EU had achieved thus far. Rendering rights "as confirmed and defined by the jurisprudence of the Court of Justice" more visible to the citizen was the aim declared in the Cologne conclusions. And since the Court-buttressed over the years by supportive political declarations and eventually by the addition of Article 6 of the Treaty on European Union-had long declared the Community institutions (and the member states acting within the scope of Community law) to be bound by a broad range of fundamental human rights expressed in national constitutional traditions and in relevant international treaties, this mandate did not seem a particularly dramatic one. It was to be a consolidating and not a creative step, designed to garner a degree of public or popular legitimacy at a relatively low constitutional cost. In the European Council conclusions which established the procedure, throughout the entire drafting process, and in the provisions of the final document produced by the drafting body-the so-called Convention-it was repeatedly emphasised that this Charter would confer no new powers or competences on the European Union, and would not alter the division of powers and competences between the member states and the EU. This is a mantra increasingly to be heard in other EU contexts, reflecting statal anxiety over the perceived growth in the European level of government, but the effects of such juridical declarations in the face of strong countervailing impulses towards European policy expansion have shown to be, at best, uncertain.

As a way of further diluting the potential significance of this decision to call for the elaboration of a Charter, the question of its eventual legal status was deliberately separated from the drafting process, and was designated as a political decision to be taken by the European Council after the document was completed. This created an interesting ambiguity in the drafting process, since it was clear that the UK and other states were strongly opposed to the creation of a legally binding document whereas France and other states were in favor of such. The solemn proclamation by the three EC institutions, and the Declaration on the Future of the Union annexed to the Nice Treaty leaves the issue of the binding legal status of the Charter in something of a twilight zone until the 2004 IGC, when the question whether it should be incorporated into the Treaties will be addressed. Nonetheless, its uncertain legal status in the meantime does not mean that it will be without influence or interpretative effect, as evidenced by the fact two Advocates General of the Court of Justice have already-within weeks of its proclamation-made reference to the Charter and in one case also to the explanatory memorandum which accompanied the final draft produced, in their opinions to the Court. Whether or not incorporation of the Charter occurs in the context of the next round of Treaty revision, it seems very likely that its juridical and constitutional status will systematically be enhanced over the next few years.

The Charter of Rights, despite its current lack of binding legal effect and despite the assertions that it was intended not to introduce anything new into the EU legal order but simply to highlight what had already been achieved in the human rights field, is a significant instrument for a number of reasons. In the first place, it is not simply declaratory of the rights already existing in documents such as the ECHR and the social charters of the EC and the Council of Europe. A number of provisions refer to rights which are either differently formulated (e.g. the right to asylum), more broadly expressed (e.g. the rights of the child in relation to private institutions), distilled in a new form from case law of the Court of Justice (e.g. the right to good administration), or which refer to newer generation rights and protections (e.g. the prohibition on reproductive cloning of humans) which have only recently been the subject of international agreement amongst member states. The very articulation of certain interests as legal rights in a document of this nature, whatever the ongoing debate over its legal status and effects, will have significance for the future.

Further, the Charter is unlikely to have the kind of ossifying effect which some have suggested a written EU bill of rights might have. It is very unlikely that the Court of Justice, which has drawn for years on a broad range of "sources of inspiration" for the rights which it has deemed to be part of the legal heritage of the EU and to which member states and EU institutions are bound, will treat itself as confined strictly to the rights articulated in this Charter. If international legal instruments and the "common constitutional traditions" of the member states contain other values and other rights, then it is very likely that these will continue to be given some form of recognition by the Court of Justice in relevant contexts.

Finally, the drafting process itself, conducted as it was by a high-profile group of broadly representative political actors in an open and relatively deliberative manner, with full access to all documents and to minutes of meetings published on the Europa web server, was a highly significant aspect of the Charter of Rights initiative. Not only has the fact of such a process already attracted considerable attention and apparently earned a degree of respect for the results demonstrated in the Charter, but it has also arguably established a precedent for a potentially new and experimental type of constitutional revision process for the EU. The much-criticised IGC process, traditionally characterised by hard bargaining, intransparency and closure, is already to some extent under challenge from the broader, more accessible and more inclusive forms of procedure pioneered in the Charter context. This, in the final analysis, may be one of the most unexpected yet constitutionally significant consequences of the drafting of the EU Charter of Rights.

Grainne de Burca is Professor of Law at the European University Institute in Florence.

Apres Nice: Time for a European Constitution?
Bruno de Witte

DURING THE EUROPEAN COUNCIL meeting of Nice, in December 2000, the heads of state and government approved a "Declaration on the Future of the European Union." This Declaration was annexed to the text of the Treaty of Nice when the latter was signed, on 26 February 2001. Unlike the text of the Treaty itself, the "aprhs-Nice" declaration is not a legally binding document. It is another of these "rendez-vous clauses" which the member states of the European Union agree upon when adopting a reform of the European Treaties: each time, the reform compromise is not entirely satisfactory to all, so the commitment is made to look again at some unresolved issues on a future occasion. This time, the agreement is to launch "a deeper and wider debate about the future development of the European Union," which will go through several phases and end with a new intergovernmental conference on Treaty revision in 2004. Although the words "constitution" and "constitutional" are carefully avoided in the Declaration (these terms being unacceptable to some European governments), the post-Nice process is already widely known as the debate on a Constitution for the European Union.

Explicit constitutional language has been shunned in the official European debate ever since the "depression" that set in in 1992-93, during the ratification phase of the Maastricht Treaty. This political down-curve is well illustrated by the fact that the resolution on the "Constitution of the European Union," patiently prepared by the European Parliament's institutional affairs committee since before Maastricht, was practically shelved in the EP's plenary session of February 1994. At the time of the Amsterdam IGC, there was a very wide-ranging debate on institutional reform, but the term "constitution" was strangely absent from the official debate, even in the statements adopted by the earlier champion of European constitution-making, the European Parliament. The modest goals which the European Council set, in 1999, for the most recent IGC could seem even less conducive to the use of constitutional language.

And yet, there was a sudden flourish, in 2000, of new designs for a European constitutional document; none of them took the form of concrete proposals for immediate adoption in Nice, but all were framed as longer-term projects filling the aprhs-Nice horizon. It is fair to say that this sudden constitutional urgency originates in Germany. Its re-emergence can be dated by two speeches of the German Foreign Minister Joschka Fischer. In his 12 January 1999 speech to the European Parliament (Bulletin der Bundesregierung 2/1999, p.9), Fischer called for a debate on the creation of a constitution for the European Union. At first, this debate seemed confined to Germany, with the contributions of several political heavyweights (President Rau, opposition leader Schduble, Minister of Justice Ddubler-Gmelin, etc.) and many academics. It led to one major European initiative, namely the decision taken by the European Council of Cologne in June 1999, on strong insistence of the German government, to set in motion the process of drafting the EU Charter of fundamental rights. But the general debate on the "European Constitution" did not really catch on outside Germany.

The Europe-wide diffusion of this German debate happened suddenly, and astonishingly quickly, with the second Fischer speech, held at the Humboldt University on 15 May 2000. Although its main theme was that of the "finality" of the European integration process, Fischer also reiterated the call for the adoption of a "constitutional treaty" (Verfassungsvertrag; for English text and reactions, see Joerges, Miny and Weiler, eds., 2000). The call was well received among political leaders of some other member states (in fact, the original Six!): most prominently by Chirac in his baffling speech in the Bundestag on 27 June 2000, but also by the Italian President Ciampi, by the Belgian Prime Minister Verhofstadt and by the Dutch government. The European Parliament, though worried by some of the concrete proposals made by either Fischer or Chirac, welcomed the use of constitutional language. It was happy to refurbish the constitutional language which it had dropped from its resolutions for more than six years, and to plead, once more, for a "constitutionalization of the treaties" (Duhamel Report and subsequent EP Resolution of 25 October 2000). Suddenly, at the end of 2000, an important part of the political elite of the EU seemed ready to undertake a saut qualitative from the messy legal reality of the EU as it is now, towards a system based on a constitutional document.

The questions to be addressed, according to the Nice Declaration, are, inter alia: the delimitation of powers between the EU and the member states, the legal status of the Charter of rights which had just been proclaimed a few days earlier, the "simplification" of the Treaties, and the role of national Parliaments. The words "inter alia" indicate that this is an open-ended agenda, the four items expressly mentioned being the common denominator on which all member states could, so far, agree to discuss and to put on the agenda of a new IGC in 2004.

The subjects mentioned in the Nice Declaration correspond quite closely to the themes mentioned in pre-Nice debate.

Apart from mentioning these substantive issues, the Nice Declaration also gives indications on the way the future "constitutional" debate should be conducted. There was a tendency, already before Nice, to consider that the intergovernmental conference mechanism, despite its pragmatic achievements in the last fifteen years, would be less appropriate for the drafting, and adoption, of a Constitution. This feeling was reinforced by the frustration which many of the participants of the Nice summit felt about the primitive way in which the final phases of IGC's are currently conducted. The "convention" mechanism, associating European and national parliamentarians to the drafting process, which was chosen perhaps unthinkingly by the member states for the purpose of drafting the Charter of Fundamental Rights, has rapidly emerged as an alternative route for the adoption of future Treaty reforms. The Nice Declaration firmly retains the basic rule that any reforms will eventually have to be agreed by an intergovernmental conference, but also states that this should be preceded by "wide-ranging discussions with all interested parties" (including even "university circles"!).

What is clearly not intended by the main players is a full-scale modification of the legal nature of the EU's founding instrument. The "constitution" advocated by Fischer, Chirac and the like would be a constitution between inverted commas! It can more precisely be identified as a constitutional treaty, that is, an international agreement that is distinguishable from the present European treaties by its content and, perhaps, by a particularly solemn procedure for its adoption, but would still be based on a collective decision by the member states, made in accordance with the relevant rules of public international law and within the limits set by their own national constitutions. There is, thus, no reason to expect a constitutional revolution in the years to come. It remains to be seen whether the Fundamental Rights Charter, even if eventually turned into a chapter of a constitutional treaty, would add much to the existing EU system of fundamental rights protection; whether it would be possible (as many politicians unthinkingly assume) to divide member state from EU/EC powers in a more straightforward and unambiguous way than today; and whether major innovations of the institutional balance and the decision-making process are desirable at all. In the end, the substantive changes from the present situation may not be that important at all. The main effect of the operation might well just be a greater degree of formalisation and clarification of the constitutional principles that characterize the EU system today.

Bruno de Witte is Professor of European Law at the European University Institute in Florence.


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