Working under the Presidency of Valéry Giscard d'Estaing the Convention has ended with a remarkable achievement. This is all the more remarkable given the contradictory demands of governmental representatives of the present and new Member States, not to mention the problem of arriving at a consensus between the 105 members of the Convention. The diversity of opinions and concepts failed to win out over the unanimous desire to agree on a draft with a good chance of consensual support. This was achieved under the masterly chairmanship of Valéry Giscard d'Estaing thanks to the support of national members of parliament and the awakening conscience of governmental representatives to the common interest.
A first observation hits one in the eye: the text is long and complicated, in spite of the efforts of its drafters. So it does not meet the criteria of legibility and transparency. Along with the succinct and clear articles on the institutions sprawl long and technical pieces on the Court of Justice, the internal market and common policies. The result is a disequilibrium, the text being difficult to read when it should be succinct, clear and comprehensible to the European electorate. The principles governing the distribution of competences and operational responsibility should stay, whilst the more detailed definitions and rules on the common policies, which can vary according to political majorities, should be moved in the form of basic laws to an annex to the central text of the Constitution. It should be the same for the CFSP (Common Foreign and Security Policy) and for the Charter of Fundamental Rights. Without modifying the balance of powers and without making the text easier to understand, the impact of its central message to the citizens would be at stake. These changes would enable the present text to be retained, one part being the European Constitution as such, concise, simple and readable, the other consisting of an annex containing the basic laws, protocols and the Charter of Fundamental Rights.
The Preamble is concise and forceful. Apart from the absence of the regions, many positive points should be appreciated: the primacy of Union law, its legal status, and the distribution of Union competences, which clarify the respective roles of the Union and the Member States. As could be expected, shared competences extend over the largest number of areas. A second positive feature is the flexibility clause of Art. 17 which, as in the Rome Treaty, foresees the unforeseeable. A third concerns the general method: (the Union) shall exercise in the Community the competences they (the Member States) confer on it.
The single institutional framework does not exclude a diversity of roles but also provides for the decision-taking process of the institutions and the place of the Commission in areas of Community competence, as those of the CFSP and the CSDP (Common Security and Defence Policy). In the long run, this diversity could give rise to malfunctionings in the Union and an artificial separation between economic and social operations, and sovereign, or pre-eminently political ones. More especially, as the single currency and the co-ordination of economic and budgetary policies straddle these areas of competence, the Union is subject to tensions and differentiated speeds, in particular those arising from the Monetary Union and Schengen. Certainly the role given to the European Minister of Foreign Affairs should contribute to a more coherent and harmonious functioning of these areas of high policy. However the Iraqi war has revealed the impact that these divisions between Member States can have on the solidarity and capability of the Union. The observation that the Union is torn apart between the communautaire and intergovernmental approaches does not seem to have lost its pertinence. To this axis of tensions now has to be added a difference of conceptions and attitudes accentuated by the enlargement to 25 members. The Union is seeking an effective and coherent framework. It can well be asked if the draft Constitution adequately responds to this.
As for the institutions, progress has been uneven. The European Parliament emerges strengthened from the Convention, thus bringing a more democratic dimension to the Union. Apart from the legislative and budgetary functions and its powers of control over the Commission, it will henceforward elect the President of the European College. In this way it consolidates its authority. It exercises a power of initiative through the Commission, it receives petitions, it nominates the European mediator and has the power to set up commissions of enquiry. This panoply of instruments which brings it closer to the citizens, remains incomplete failing the power to hold auditions allowing it to examine the heartbeat of society.
The leading innovation concerns the President of the European Council elected by qualified majority. The President directs and animates the work of the European Council, assures the preparation and continuity of its work in co-operation with the President of the Commission, based on the work of the General Affairs Council. In addition, it works to facilitate cohesion and consensus within the European Council. It represents the Union in its external relations at the level of Heads of State or Government regarding common foreign and security policy, without prejudice to the competences of the Union's Ministers of Foreign Affairs. Here one could add: "nor those of the President of the Commission". Indeed, frequent meetings require the presence of the two Presidents and that of the Foreign Minister. All the more so as foreign policy has an important economic dimension, while in its turn security goes far beyond the narrow concept of military security and tends also to involve economic, social, cultural as well as scientific and technological activities.
Even if the European Council prefers to act by consensus, voting as such is not excluded: qualified majority is foreseen for the election of the President and simple majority for the adoption of rules of procedure. The confidence acquired through the practice of collaboration should allow the European Council in the future to widen the use of qualified majority voting.
In its turn, the Council of Ministers undergoes a number of innovations. Jointly with the European Parliament, the Legislative Council exercises legislative and budgetary functions. It consists of one or two Ministers per country, depending on the subject to be discussed. Certainly, it is a step towards the formation of a second legislative Chamber, the Council of States. However, ambiguity is not wholly removed, the General Affairs Council perpetuating a certain confusion of powers.
One small step consists of a new system of equal rotation for the Presidency for periods of at least one year, which takes account of European political and geographical equilibria and the diversity of Member States. One exception: the Foreign Affairs Council is permanently presided over by the European Minister of Foreign Affairs.
Unanimity is demanded as regards fiscal policy, as well as in cases expressly provided for by the Constitution, notably for CFSP and CSDP. It is a Damocles sword even more threatening in a Union of 25. From which the need for a flexibility clause allowing progressive resort to a qualified majority vote. Beyond the simple majority, the new qualified majority is supposed to enter into force from 2009. This implies the majority of Member States representing at least three-fifths of the Union's population, in cases where the Council takes position on a proposal from the Commission or the Minister of Foreign Affairs of the Union. On the other hand, in the absence of such proposals, the qualified majority will require the vote of two-thirds of the Member States. This distinction corresponds to a traditional practice based on the idea that the proposal incorporates a guarantee that the interests of the small and medium-size states will be protected and that the general equilibrium, notably among the large Member States, will be taken into account. In addition, the proposals of the Commission engage its responsibility before the European Parliament.
In its traditional role the European Commission promotes the general European interest as a whole, takes initiatives, keeps a watch on the application of joint decisions and represents the Union, with the exception of matters covered by the CFSP. Taking account of experience, the Constitution confirms that a legislative act can only be adopted on a proposal of the Commission, except in special cases. Contrary to the general rule, the other acts are adopted on a proposal from the Commission only when it is explicitly provided by the Constitution. In order to ensure, in the future, more efficacy and democratic control an evolutionary clause could prevent a continuous succession of reforms.
The importance of the Commission is testified to by the debate arising over its composition and the strengthened authority of the President. Without calling into question its independence and its high level of competence, which form the basis of its authority, contradictory demands fuel the discussions regarding its being composed of 15 members from 2009: the President, the Union's Minister of Foreign Affairs, Vice-President, the 13 European Commissioners chosen according to an "equal rotation system" indiscriminately among the Member States. So as to preserve the general equilibrium, each of the successive Colleges should reflect the whole demographic and geographic gamut of the Union's Member States. In the same spirit, the President of the Commission will choose the non-voting Members coming from all the other Member States.
This formula is intended to simultaneously guarantee the efficacy, the competence and the authority of the Commission. It aims to avoid neglecting certain countries while providing for an increased familiarity with a more diverse Union, creating a core of 15 decision-takers supported by 10 other members with the right to speak but not to vote. The question that remains is to know if this equal position of the States in the allocation of Commission members does not risk weakening the Commission. Indeed, the members from Malta will be present as often as those from Germany, the two countries with the maximum disparity in terms of population. The insistence on equality in rotation embodies the underlying idea, purveyed by the media, according to which Commission members are "representatives" of their countries. And yet, the independence of the Commission is the keystone of the European institutional system.
The solution proposed by President Prodi consists of having one member per country, but in compensation for the unwieldiness of the 25-member Commission, in setting up a sort of ministerial cabinet of seven, each of whom would preside over a group bringing together a series of sectors. Although this would be a concession to the need for equality, this formula would leave a margin of choice for the leaders of the sub-groups and would allow an allocation of responsibilities taking account of competence. As a result, while maintaining its contacts with all the Member States, the Commission would be well-placed to operate effectively, with a strengthened political authority prefiguring a European government.
Independently of the formula adopted by the IGC, the essential point is that the choice of Commission members and the allocation of their responsibilities should be made with uppermost the criteria of a high level of competence and of sound knowledge, but also of influence and European commitment. In order to carry out its role of federator, the Commission should be able to count on political personalities of high-standing. Past experience of the Commissions demonstrates the central role played by the personalities who have led the European Colleges: such figures as Monnet, Hallstein, Davignon, Delors have strongly influenced the building of Europe. In view of this lesson from European history, shouldn't the President of the Commission be granted a wider margin of manoeuvre?
The Constitution confirms the practice of consultations with concerned interest groups and the general public, thus strengthening their proximity to the decision-taking centres. The preparation of the directive on chemical products is an example of the divergent pressures of industry and environmental protection organisations. At the institutional level the Economic and Social Committee and the Committee of the Regions are spaces of participation. The latter, consisting of regional and local elected members, is destined to a political future in so far as it is able to reduce the distances between the institutions of the Union and local collectivities. Each in its own way responds to the need for consultation and proximity.
The principal weakness handicapping the Constitution remains the cleavage, even the ditch, separating Community affairs from a common foreign, security and defence policy. In these sovereign spheres the Commission can act via the intermediary of the European Minister who, furthermore, can make proposals in the name of the Commission. In this way the door is open to more responsibility before the European Parliament. But there remains none the less the case that on sensitive matters consensus is an imperative. The President of the European Council and the European Minister presiding over the Foreign Affairs Council have the task of promoting consensus. This will in turn contribute to keeping the decisions within the institutional framework and to avoiding their being by-passed by resorting to such external channels as the letter of the Eight, that was written to support the Iraqi war. If it is admitted that the only instance capable of conducting a real common foreign policy is the European Council, the role of its full-time President and of the European Minister will help to bring about a Union foreign policy, at the same time limiting the domination of the Big Countries which tend to prefer extra-Community actions. The Community framework will allow the small and medium-sized Member States to make their voices better heard and have some influence over the decisions. The essential goal is strengthening the role of the Commission in the preparation and follow-up of decisions of the European Council. Is it necessary to recall that long experience shows that the Commission is the best guarantor of the common interest and the democratic equilibrium within the Union?
Flexibility enabled significant progress in the past, witness the Euro and Schengen. At the outset a tacit clause has made provision for enhanced co-operation, according to which a group of member countries can decide to go ahead as a sort of avant-garde or pioneering core group with the approval of the others and on condition that the door is left open for them. It would thus assume the role of pioneer aspiring to attract in its wake those member countries hitherto lacking the will or the means to participate from the outset. It is a promising approach for the future.
On the other hand the procedure for approval and ratification of the European Constitution appears to be in contradiction with the spirit of flexibility. Indeed this procedure requires unanimity at two levels: on the adoption of the draft Constitution, and then at the time of ratification by the Member States.
This requirement goes even beyond the conditions of entry for international intergovernmental organisations. Should only one of the however-many Member States refuse, two possible scenarios arise: the Constitution is dead in the water or the States which have ratified it set up a sub-group equipped with a new Constitution. The national referenda make the unanimity requirement even more difficult to attain: for example, another negative vote from Denmark or Ireland would distort the democratic rules in the entire Union. Clearly, a minimum proportion of the Union's citizens voting negatively in one of these countries could block the wishes of the millions of voters or parliamentary majorities favouring the Constitution. The decisive choices for the future that the Convention was designed to make are not always clear. Often they represent compromises between Community desiderata and intergovernmental pressures. A balance seems to be outlined between the European Council and the Commission, between their two Presidents who, while respecting a division of responsibilities, are condemned to close collaboration. And, in its turn, the European Minister of Foreign Affairs builds a bridge between the intergovernmental institutions and the Commission. In addition, wearing his Vice-President of the Commission's hat, he can make proposals in the name of the latter to the European Council, thus opening the way to parliamentary responsibility as regards the CFSP. This represents an uncertain step towards the democratisation of the Union.
The Iraqi war has opened up a fissure between present and new members which has affected the cohesion of the Union. In the light of this experience and under the pressure of European public opinion, the wounds are healing, witness the meeting of the three, Germany, France and the United Kingdom. Owing to their responsibilities and political weight, their leadership in the sphere of the CFSP is unavoidable; but it would be better accepted if it was exercised within the European Council and with the support of other Member States. With the present international disorder, more than ever the USA, NATO and the UN need a United Europe as a contribution to stability and equilibrium. This is the mission of the Union in the world, which is working for a return to multilateralism and the emergence of new regional and world powers. These profound changes facing us pave the way for regenerating the UN on the basis of respect for federal principles and dialogue between cultures. Apart from the attraction that the Union has for its neighbours, it is developing a vast network of partnerships and associations making recourse to its "soft powers", to the dialogue based on respect for different identities, as well as voluntary participation. This outlook confers the adoption of the European Constitution all its significance in this decisive moment for the future of the world.