The European Convention 2002/2003: Lights and Shadows

Paolo Ponzano
Professor of European Governance at the European College of Parma; Secretary General of the European Movement Italy; Deputy Representative of the European Commission in the 2002/2003 Convention

Seventeen years after the holding of the European Convention chaired by Valéry Giscard d'Estaing and on the eve of the European Conference on the Future of Europe proposed by President Macron (which should begin its work in early 2021 under the Portuguese Presidency), it seems useful to reflect more objectively on the value of the method used and the overall outcome of its work.

This reflection could be useful in order to give a positive orientation to the work of the future Conference and at the same time avoid repeating the procedural errors that influenced the results of the 2002/2003 Convention on the institutional structure of the European Union.

First of all, it is necessary to avoid conditioning the judgement on the basis of an expectation that could not come true: that the European Convention could produce the miracle of the best known historical precedent, i.e. the Philadelphia Convention which gave rise to the Federal Constitution of the United States of America.  The "miracle" of Philadelphia was not only to have produced an exemplary constitutional system that is still valid today, but also to have gone beyond its official mandate and to have given birth to a federal constitution that could have come into force – as it actually was – with the ratification of a majority of three quarters of the participating states (nine out of thirteen). Philadelphia thus achieved what could be called today the "constitutional rupture" between the mandate received – which required the unanimous agreement of all states – and the final result, which gave rise to a new autonomous political entity (the American federal state) whose legitimacy would result from the majority accession of the confederate states.

The European Convention too went beyond the mandate it received, as it produced the complete text of the "Treaty establishing a European Constitution" and not just a report containing the responses to the mandate received from the Laeken European Council. However, the Convention did not – and could not – produce a constitutional text of a federal nature comparable to the American Constitution.  This impossibility stems not only from a different historical situation (the former English colonies in America had common cultural and linguistic roots, which the European nation states do not have), but also from a very different composition of the two Conventions. In Philadelphia, the participants were divided between defenders of the sovereignty of the confederate states and supporters of a new – and strong – federal power. In Brussels, very few of the Convention participants could be considered as supporters of a federal state in Europe, just as few of them belonged to the category of "Eurosceptics", defenders of the restitution of the European Union's competences to the nation states (the minority declaration drawn up by the Danish parliamentarian Bonde – critical of the results of the Convention – has gathered only ten or so adherents from the Convention participants).  Rather, the European Convention had to choose between two models of integration already present in fifty years of the European Communities' history: on the one hand, the Community model characterised by the joint exercise of state powers delegated to the Community institutions and exercised by the latter on the basis of principles invented by Jean Monnet or progressively introduced into the Community Treaties (the European Commission's power of legislative initiative, majority voting in the Council and the European Parliament's power of co-decision).  On the other hand, the intergovernmental model introduced by the Maastricht Treaty for the common foreign and security policy and, in part, for judicial affairs.  In other words, the Convention had to choose between extending the Community method to the Union's other areas of activity (a position essentially defended by the European Commission, the European Parliament and the more "integrationist" States), and maintaining a dual institutional structure that limited the Community method to the Union's internal policies and enshrined the intergovernmental method for the more sensitive areas, such as foreign and security policy, defence and certain aspects of judicial cooperation.  The prospect of creating a state or a federal union in Europe was therefore a priori excluded ("the United Kingdom will never be the Baden-Württemberg of Europe", according to a British representative).

However, many Convention participants had the ambition to "re-examine" the institutional functioning of the Union in order to introduce important improvements and simplifications to the current Community model.  Vice-President Amato had indicated from his first speech the ambition to thoroughly review the Union's decision-making mechanisms inspired by the constitutional principles of the separation of powers ("Montesquieu has never visited Brussels").

The European Convention achieved its best results when it used the debates in six working groups, later eleven, on the main political issues addressed in its work.  The method of the working groups allowed the Convention participants to propose new solutions and to reach broad agreement after examining the experiences already made by the European Union, and verifying with experts from the various sectors the legal and political feasibility of the proposed solutions.  The main successes of the Convention (the incorporation of the Charter of Fundamental Rights into the Treaties; the simplification of the instruments and decision-making procedures; the new institutional figure of the Minister for Foreign Affairs, with dual legitimacy vis-à-vis the Commission and the Council; the new mechanisms for cooperation in European defence matters; the new system for monitoring the application of the principle of subsidiarity; the extension of the Union's powers in the field of judicial cooperation; the Union's single legal personality, etc.) have all been achieved thanks to the proactive drive of the working groups and the wide-ranging debate between them, the Praesidium and the plenary session.  The same cannot be said, however, of the solutions introduced by the Convention to the role of the EU institutions.  For example, no working group has examined the practical functioning of the European Commission, or the problem of the six-monthly rotation of the Council.  It is difficult to avoid the impression that President Giscard d'Estaing already had his own solutions to the main institutional problems in mind, or that he intended to discuss them with the Heads of Government (in particular of some Member States) rather than "take the temperature" of the Convention according to the method followed for the problems entrusted to the working groups.  Confirmation of this orientation can be found in the numerous interviews and statements made by President Giscard d'Estaing on the creation of a "Congress" of European and national parliamentarians, the impossibility of maintaining the six-monthly rotation of the Council Presidency, or the broad composition of the European Commission.  This attitude of President Giscard d'Estaing coincided with a negotiation phase of the work of the Convention, much more similar to that of an Intergovernmental Conference than to the working method of a Convention (documents published by the various governments, participation in the works of the Foreign Ministers of the large countries). A confirmation of this development was the plenary debate on 20/21 January 2003. On this occasion, as a Dutch delegate (Mrs Maij-Weggen) pointed out in detail, three-quarters of the Convention participants were against the Franco-German proposal to create a more stable President of the European Council (appointed for two and a half years and with a renewable mandate of up to five years).  This was not considered truly representative by the President of the Convention, on the basis of the principle that one could not arithmetically count the number of delegates for or against, but that their "weighted specific weight" had to be taken into account. This approach, although justified by the disparity in representation within the Convention (where Luxembourg had the same number of national representatives as Germany), nevertheless confirmed the intention of the President of the Convention to take greater account of some opinions than others, regardless of the outcome of the plenary debates.  This preconceived orientation of Giscard d'Estaing in favour of the positions defended by some "big" member states on institutional problems led to the formation of a common front of "small" and "medium" member states ("the Smalls Revolt"), which resulted in the common position of the latter during the meeting of Heads of Government in Athens on 16 April 2003.  The insistence of the "small" countries on the principle of the equality of States in the new institutional architecture (a principle which postulated the maintenance of one Commissioner per Member State, and/or the equal rotation of States in the Presidency of the Council) confirmed the President of the Convention in his conviction that the opposite principle of the equality of citizens within the institutions of the Union should be introduced into the Constitution.

It should be remembered, however, that in federally structured states (e.g. the United States or Germany) the principle of equality of citizens cannot take precedence over that of equality of states. The fact is that after the meeting in Athens, the President of the Convention proposed a draft article on the role of the institutions which was essentially in line with the position of the "big" Member States (creation of a stable President of the European Council, abandonment of the six-monthly Presidency of the Council, reduction of the number of European Commissioners to 15).  With this proposal, modified only in part by the Praesidium, the President of the Convention shifted the centre of gravity of the negotiations in favour of the Franco-German tandem, and consecrated the definitive shift from the convention method to the classic negotiating method of an Intergovernmental Conference.  This explains why the compromise subsequently reached by the Convention on institutional problems was a classic Intergovernmental Conference compromise: the concession made by the "small" countries by accepting the stable President of the European Council was "compensated" by the proposal of a European Commission composed of 15 members with the right to vote, to which, however, all Member States would have equal access on equal terms (egalitarian rotation).  It would be difficult to say that this "transactional" solution between small and large States was based on an objective examination of the functioning of the Commission (which shows, for example, that the Commission decides by majority voting only in very rare cases, estimated at between 1% and 2% of the decisions taken in the oral procedure). It is not for nothing that this solution has not been taken up in the Lisbon Treaty.  An additional confirmation of the Convention's progressive shift into the negotiating methods of the Intergovernmental Conferences is the Convention's final result on majority voting.  At the last two plenary sessions in July 2003, a large majority of Convention participants had requested the extension of majority voting in the areas of taxation, foreign policy, anti-discrimination measures, social policy and also for the future revision of certain provisions of the Constitution.  Despite the existence of such a majority, the only changes made by the Praesidium and endorsed by the plenary were the restoration of unanimity for the conclusion of trade agreements on cultural diversity and that of national competence to determine the quotas of immigrants that each Member State decides to admit to its territory.  These two decisions - requested, for the most part, by France and Germany - were intended to "armor" the future decisions of the Intergovernmental Conference on majority voting, giving early satisfaction to the requests of the two "big" Member States.  A similar reasoning applies to the failure to switch to the majority rule for taxation and foreign policy, which would have been opposed during the Intergovernmental Conference with the veto of the United Kingdom.

Another unsatisfactory result of the European Convention was the procedure followed for consulting civil society and its most representative organisations on EU policies. In fact, the Convention did not wish to discuss the substance of the policies enshrined in the Treaties, which is why the consultation of civil society organisations in this area made no sense. Furthermore, the representatives of the NGOs consulted by the Convention were in most cases 'officials' resident in Brussels and not the real representatives of NGOs working on the ground in the different Member States. For this reason, the day of the consultation of civil society organisations, moderated by Vice-President Dehaene in Brussels, went down in history as "Brussels speaks to Brussels". It is to be hoped that the forthcoming Conference on the future of Europe will substantially innovate the consultation of civil society organisations by involving them in the work of the Conference and encouraging the organisation of genuine "transnational" debates between NGOs that are truly representative of European citizens.

Finally, national governments should not forget that the adoption of a strict Constitutional Treaty, in the absence of majority review mechanisms, will always make hover over future Treaty changes the "sword of Damocles" of the unanimous agreement of at least 27 member states (doubled by the need for constitutional referendums in some countries). The negative outcome of the popular referendums on the Constitutional Treaty in France and the Netherlands in 2005 should now require the adoption of new procedures for revising the Treaties, such as, for example, the adoption by the European Parliament - legitimised for this purpose by its role as the privileged representative of European citizens - of a draft European Constitution that would be submitted directly to the national parliaments for final ratification or to a pan-European referendum (with the clause that the Constitution would enter into force only in those countries that would receive the favourable vote of their national parliaments or of their citizens in the pan-European referendum).