Negotiating the future of europe - an analysis of the convention's procedural arrangements

Table of Contents

Preface

A. Introduction

B. The Convention Method
Defining an IGC
The Legal Background
The Interactive Relationship between an IGC and the Council
How to approach an IGC
IGCs in a theoretical perspective
Setting and Procedural Arrangements of former IGCs
The first circle of IGCs: 1950 - 1957
The second circle of IGCs: 1985 - 2000
IGC 2004 and the twin examples of the Convention on the Charter of Fundamental Rights and the Convention on the Future of Europe
The Convention on the Charter of Fundamental Rights
The Future of Europe – Debate
The Convention on the Future of Europe
What makes the Difference?
Negotiation Process
Traditional Style vs. Convention Method
Future Prospects of the Convention Method

C. Conclusion

Bibliography

Appendix

Preface

The dissertation will focus on the Convention on the Future of Europe which was launched in March 2002 and which is operating the task to prepare the next Intergovernmental Conference (IGC) in 2004. Main issues on the Convention’s working plan are a draft constitution and the preparation of EU institutions for the enlargement.

Given that the Convention has started its work in March 2002 and will approximately end in Spring / Summer 2003, its work is still in progress. That is why it would be difficult to write on the outcome and either predict or judge its success. That is why the focus lies on the procedural arrangements within the Convention Method and explicitly not on its content. Therefore the dissertation will deal, in general, with the negotiation process. In detail, the focus will examine the Convention’s kind of procedural arrangements, the operative mode and the working method or in short: the Convention Method and its difference compared with former IGCs and their preparing groups.

Thus, the dissertation’s main part is build on four parts: The first chapter will set up a definition for an IGC while considering various perspective from legal over formal via practical to theoretical. Then, the second chapter will introduce the history and the task of IGCs and their preparing groups by looking at the setting, procedural arrangements and the mandate, whilst in the third chapter, both conventions, the Convention on the Charter of Fundamental Rights and the Convention on the Future of Europe in the scope of the IGC 2004 will be studied. Then in the final fourth chapter, the key question of “What makes the difference?” will be discussed. Further key questions that fall into the scope of the negotiation process touches to what extend the kind of negotiation process influence the outcome, the harmonization of actors’ position as well as actors’ behaviour. Moreover it will be investigated due to which factors the actors’ communication ability can be influenced. Furthermore in this context, the European Union’s underlying ambiguous structure will be examined under the aspect of Intergovernmentalism vs. Supranationalism.

After having completed this dissertation, I would like to thank my supervisor Prof. Jörg Monar for his encouragement to write on such a current topic.

Additionally, a huge thanks belongs to the Working Group “European Convention” in the Secretariat of the European Affairs Committee of the German Parliament which offered me the opportunity to complete an internship to look beyond the Convention’s official stage.

A. Introduction

It has been more than 50 years since the slogan of an “ever closer Union” leads the European Union’s integration. After a successful start of integration with the European Coal and Steel Community^[1] up to the present day, the pursuit of this aim has undergone different stages including periods that pushed closer integration as well phases of stagnation; but never the idea of a common and expanding European Union^[2] has been lost off sight. With the prospect of a soon enlarged EU with up to 27 Member States, the EU had to face a new challenge from the mid-late 1990s: to prepare the EU for enlargement while guaranteeing a functioning institutional structure and to ensure that the Union is fully supported by its citizens. Since it is European Council’s task, as soon as amendments to or a reform of the Treaties needs to be made, an Intergovernmental Conference^[3] is to be launched to provide the corresponding decisions. Hence, as IGCs are used to initiate preparatory groups to facilitate their work to take the political controversy out of European Council meetings, it can be supposed that those preparatory committees influence the direction taken by an IGC - even if any preparatory body remains complementary to an IGC and the final decision-making power stays with the Heads of State and Government gathered in such an IGC.

Before, however, the dissertation will reach its aim to examine how the preparatory work of an IGC is conducted the most appropriate by comparing the recently applied Convention Method to prepare the forthcoming IGC 2004 to other preparatory committees of previous IGCs, it is essential to develop an understanding for the sensitised and highly political topic of the IGC negotiation process. Therefore one has to remember two different historical heritages: first, if the contemporary EU is perceived as a still ongoing project, then, its development from its historical background, the originally invented and economic influenced ECSC as the starting point, needs to be thought of. Second, the exercise of IGCs did also appear before its articulation in the Treaty of Rome. Even if it was not exactly expressed in the term of an “Intergovernmental Conference” as will be shown later, the intergovernmental principles included in the nowadays practice of the IGC negotiation process were already given. In both cases it can be assumed that the EU project itself and the project of IGC, even being highly political, are initially anchored in the economic project and only with the Convention on the Charter of Fundamental Rights and the actual Convention on the Future of Europe a turning point away from strong Intergovernmentalism has been reached. Although, to contrast the practiced Intergovernmentalism, the use of federal principles does not requires the creation of a federal state, the still being in progress Convention on the Future of Europe seems to be a chance to open the intergovernmental behaviour towards supranational practice since the approach taken now will determine the distribution of power and legitimacy probably for the next decades.

By considering these aspects, the dissertation will then, presumably, proceed in the following steps: the first step will be, prior to the examination of the setting and procedural arrangements of previous IGCs and the future IGC 2004 and their preparatory committees, to set up a definition for an IGC. In this context, various aspects need to be considered like legal provisions, formal arrangements, practical experiences as well as the theoretical perspective. Then, in the second step, the focus changes to former IGCs themselves. Here, the IGCs procedural organization will be investigated by looking particularly at the preparatory groups that had been installed. In detail, arrangements like the composition of the body, the working method, the rules of procedure as well as the mandate will be screened. Hereafter, the same categories will be applied again in the third step while checking the forthcoming IGC 2004 preparatory group, also known as the Convention on the Future of Europe. Nevertheless, against this background, two additional categories demand their attention. First, due to the Convention on the Future of Europe’s parallelism to the previous Convention on the Charter of Fundamental Rights, it can be assumed that they are bound together whilst considering their organizational similarities since they are both characterized by the so-called “Convention Method”. So it will be essential to examine the first Charter-Convention before approaching the second Convention on the Future of Europe. Second, in addition, to be aware of the political environment surrounding the Convention and the upcoming IGC 2004, the Future of Europe-debate which had started with the famous speech given by the German Foreign Minister Joschka Fischer in May 2000 will be included, too.

The fourth and final step will then provide the discussion by bringing the two different kinds of preparatory committees, the traditional ones and the recently applied Convention Method, together. The debate’s underlying questions will concern how the preparatory work has been conducted in general and if the Convention Method can be an successfully applicable approach for any other future IGC due to its highlighted difference. Since, as it has been emphasized before, an IGC is an immense political project, the way the preparatory work is arranged relates every time to the issue of the distribution of power within the EU’s framework. Although all preparatory formations share common features, it is in their difference where indications of the power constellation can be found. For example, it is not only the group’s composition but foremost the body’s leadership in which influences the working process. Further indication factors refer to the style the preparatory negotiation process is driven and what consequence it has on the actors’ behaviour like communication ability and the harmonization, optimisation and adaptation of incoming positions. Hence, can the actors’ attitude be transformed? Fundamental in this context is the way to approach the EU and its exercise of power: should it remain traditionally intergovernmental or should more Supranationalism be dared?

Thus, the dissertation’s outcome should provide an analysis of the Convention’s procedural arrangements from a political angle and under the aspect of a future EU that aims to become more transparent, democratic authorized and effective.^[4]

B. Main Part: The Convention Method

In retrospect - from the first steps of the ECSC in the early 1950s until today - a total sum of eight IGCs can be counted with a future ninth IGC scheduled to take place in 2004.

However, prior to looking closer at the IGCs' history and future to examine their common as well as their distinctive features which is expressed clearest in the approach taken by the Convention Method, it is essential, in the first chapter, to propose a definition for an IGC. After having tried to provide a satisfactory answer to the given question, the setting and procedural arrangements of previous IGC will be researched in the second chapter, followed in the third chapter by an investigation of the Convention Method analysing the twin examples of the Convention on the Charter of Fundamental Rights and the Convention on the Future of Europe in the context of the upcoming IGC 2004. It will only be thereafter in the fourth and final chapter that the distinct particulars of the Convention Method will be brought into discussion. Hereby the main focus will challenge the Convention Method’s difference compared with former IGCs’ preparatory committees and call into question the Method’s transferability to a future IGC process working method as it has been mentioned in the introduction. Likewise, attention will be given to the EU’s basic structural background between intergovernmental and supranational settings.

Defining an IGC

To produce a suitable and understandable definition for an IGC, it is necessary to inquire into the following issues: What is an IGC in legal terms? Does any Treaty legally provide it? How does the Council function in general and where to implement an IGC in particular? How can IGCs be approached? And what theoretical framework can be used best to describe the IGC process?

The legal background

From a legal point of view, a clear definition of an IGC is given in Article 236 of the Treaty of Rome^[5], which came into force on January 1st, 1958, and which was later replaced by Article N in the Treaty of the European Union^[6] in 1992. Since the 1999 Treaty of Amsterdam^[7] it is to be found under Article 48 of the TEU in the consolidated version in the TA. The original Article 236

Treaty of Rome stipulates that an IGC is “a conference of Representatives of Governments of the Member States” that “shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to those treaties”.

Although the legal explanation leaves room for relatively wide interpretations, as this chapter will show below, it is helpful to consider the practical experiences made. Hence, those experiences that fall into the scope of an IGC refer to different arrangements mainly organised before the IGC itself is launched. Thus, to be able to understand the whole process preceding and accompanying an IGC, it is crucial to research the interplay between an IGC and the Council. Therefore the functioning of the Council needs to be scrutinized^[8].

The Interactive Relationship between an IGC and the Counci1

Due to its two-sided character, the Council of the EU represents the Member States’ interests on the one hand, and on the other hand exercises the decision-making of the EU. The Council as an institution acts on various working levels: the most of the basic technical work is done through some 250 committees working groups made up of civil servants from the Member States which are implemented and directed by the COREPER, the Joint Committee of Permanent Representative of the Member States to the European Union in Brussels.^[9][10] The COREPER consists of two parts: while COREPER II stands for the meetings of Member States’ Ambassadors to the EU, COREPER I gathers the Ambassadors' deputies. It is COREPER I that agrees on the working groups which are staffed by national officials from the Member States. COREPER’s task in general is to prepare the work of the Council and foremost to prepare the Council of Ministers' meetings as well as the European Council meetings. In the pre-negotiation work that happen partly within the COREPER II, the Ambassadors try to agree beforehand on the forthcoming issues in the next Council meeting by representing and negotiation national positions. Once an issue has been negotiated, it will be dealt as a socalled “A-Point” at Council meetings. Issues that are still left open, however, are declared “B-Points”. Those points are still to be negotiated by the Ministers or Heads of State and Governments. COREPER I as well as COREPER II meets once a week with COREPER II being responsible for 15-20% of the business while COREPER I handles 70% of the overall business^[11]. The remaining 10 – 15% are then negotiated in the Council of Ministers.

Thus, the Council of Ministers' meetings then operate in different combinations of national ministers depending on the affairs dealt with. All in all up to 10 different Council of Ministers exist, for example the General Affairs Council for the Foreign Ministers or the ECOFIN Council for Economic and Ministers of Finance. The frequency of Council meetings fluctuates with the urgency and number of topics that need to be decided upon, however, the Foreign Ministers usually meet once a month as the General Affairs Council. When the Heads of State and Government together with the Foreign Affairs Ministers meet, which happens usually twice per year, then this is a “European Council” – the definite decision-making body of the EU. Conversely, it has to be acknowledged here that the term “European Council” in the form of the heads of State and Governments plus their Foreign Affairs Ministers was invented and established at the meeting of heads of State and Government in Paris in 1974. Slightly differing to the actual practise that evolved of two annual European Council meetings plus extra-sessions, it had then been decided to meet three times per year plus extra-sessions.

The IGC, in principle, is nothing but such a European Council meeting: nevertheless it is different, too, because its objective, as Article 236 Treaty of Rome stipulates, is to focus on treaty amendments or treaty reform. Since the IGC therefore is basically a conference in the shape of the European Council but is launched only every few years on a separate initiative agreed on at a regular European Council meeting, an IGC can be formally characterised as negotiations between Member States’ governments that take place parallel and outside the framework of the EU’s regular procedures and institutions.

Anyhow, after having looked at the legal and formal arrangements an IGC is embedded in, both factors do not refer to practical provisions of an IGC. For that reason, it is necessary to meet the practical access to an IGC.

How to approach an IGC

However, an IGC possesses, when focusing on the practical perspective, more unique characteristic criteria. Altogether there are four distinguishing factors for an IGC^[12]: First, the convening of the IGC has been previously scheduled through a Council decision as examined above. Second, the objective was set beforehand and concerns the revisions of earlier treaties. Third, national adaptations to past treaties influence the IGC decision-making process and finally, political declarations and statements that have been made prior to or after the IGCs helped to shape future agendas. A further point which counts into the list of criteria is that most of the detailed work is done by expert officials and under the guidance and co-ordination of the Council’s Secretariat General and Presidency.

A different approach suggests to examine the European Council meetings held to date along three categories: legal, specific and constitutional.^[13] Whereas all European Council meetings ever held can be judged under their legal dimension and some had a more specific objective, only what fits in the constitutional framework is commonly acknowledged as an IGC. According to its constitutional manner, only an IGC, in return, corresponds with the provisions made in Article 236 of the Treaty of Rome.

In sum, for an adequate comprehension of the legal definition of the term “Intergovernmental Conference” as provided by Article 236 of the Treaty of Rome, all three approached accessed need to be borne in mind. These "widened and deepened" analysing categories can, then again, be taken as this paper’s working definition.

By counting the number of constitutional IGCs that took place in the EU’s history and having fulfilled the set up five criteria, in total eight IGCs can be identified. As a matter of fact, the official website of the European Institutions^[14] counts only six previous IGCs by leaving out the IGCs which aimed to establish an “European Defence Community” in 1951-52 and the 1953-53 IGC which negotiated a Draft Treaty for an European Political Community. Accordingly it can only be assumed that these two IGCs were filed as “failures” because they did not complete their objective aim to sign a treaty at the end of the negotiations.^[15] Moreover it needs to be recognised that they preceded the Treaty of Rome, which can be taken as the official beginning of European integration.

Therefore another question has to be discussed briefly: While the Treaty of Rome and its already examined Article 236 on the legal definition of an IGC came into force in 1958, what status in general do the IGCs preceding that date, namely the IGCs on the ECSC, the EDC and the EPC and the Rome Treaty itself, have in consequence. Or can they simply be summarised and identified under the umbrella term of “IGC” in accordance to the corresponding features? In academic literature as well as on the earlier mentioned website, the Treaty making processes within the European framework have been recognised and also categorised as IGCs since they correspond with the given practical criteria like long-term preparatory phase or the announced aim to set up a treaty. Although these four conferences might have happened in context to each other but they were not initially set up together under the aim of a single Community; something that happened with the Treaty of Rome and the declaration of the “European Communities” in 1957. However, when speaking of the EU’s past and the problematic history of the IGCs before the Treaty of Rome, it seems to be allowed to speak of a total sum of eight IGC up to the present day.

Nevertheless, the preparatory work preceding the IGCs’ analysis would be incomplete without researching the IGC’s theoretical surrounding, as the following paragraph will do now.

IGCs in a theoretical perspective

Thus to analyse these IGCs which, on one hand will share the common features examined earlier, and which, on the other hand, will show particular differences, a set of analysing criteria needs to be proposed. This task can be completed satisfactorily by including applicable theories. Hence, this excursion would allow then drawing parallels to important key features that the IGCs might share or in which they might differ from each other.

One of the theories used to approach IGCs is known under the name of “Intergovernmentalism” as the term of “Intergovernmental Conference” suggests in-word. Andrew Moravcsik has in the past decade modified this theory, which builds on mainstream realist international relations theory, in his “Institutional Intergovernmentalism” approach^[16]. An opposing approach, which does not perceive the nation states as the most important forces towards integration can be found in the theory of Neofunctionalism, developed in the 1950's by Haas and later carried out by Lindberg and others.^[17] Whilst the intergovernmental approach tries to explain more the way in which IGC negotiations are conducted, Neofunctionalism focuses foremost on the shaping of the agenda, the approach taken and the outcome of an IGC. Whereas intergovernmental theory highlights intergovernmental behaviour exercised on all levels of negotiations to express national preferences, Neofunctionalism bases on the assumption of spillover, suggesting that a successful preintegration determines the negotiations. In addition, neofunctionalists believe in the limitation of national sovereignty, which, in consequence, bypasses intergovernmental behaviour in the aim of a transfer of loyalties.^[18] In contrast, intergovernmentalists argue that a nation state would allow only limited transfer of powers to keep the maximum sovereignty. This means that the outcome of negotiations always equals the lowest common denominator.

Being well aware of the fact, that none of them can exclusively explain IGC negotiations and their environment, it seems plausible to combine them. This is possible, because even though they appear mutually exclusive in terms of their claim of who or what drives European integration, they focus on different empirical levels.

[...]

^[1] Hereinafter abbreviated “ECSC“

^[2] Hereinafter referred “EU”

^[3] Hereinafter abbreviated “IGC”

^[4] Although those catchwords named are discussed intensively at present, a closer examination will be left out since the dissertation’s focus lies on the procedural arrangements of IGC preparatory committees and not on their content. Nonetheless they are mentioned for reasons of completion.

^[5] The term “Treaty of Rome” is referred every time when the “Treaty establishing the European Economic Community” is meant; the formal term when speaking of the signed treaties in Rome in 1957 therefore must be “Treaties of Rome”.

^[6] Hereinafter abbreviated „TEU“

^[7] Hereinafter abbreviated “TA”

^[8] For deeper insight into the Council’s functioning see Helsinki Presidency Conclusions Annex III: An effective Council for an enlarged Union

^[9] For detailed information of working procedures of the COREPER see Article 19 “Council’s Rules of Procedure”; available on the Council’s website http://ue.eu.int

^[10] For a deeper insight see R. Lepsius: The European Union as a Sovereign Association, p. 214/215

^[11] Data adopted from S. Hix: The Political System of the European Union, p. 68.

^[12] Compare to U. Sverdrup: An institutional perspective on treaty reform, p. 123-127 and to B.Smith: Politics and policy-making at the 1996-97 European Union Intergovernmental Conference, p. 15

^[13] For further details see B. Smith, Chapter 1

^[14] www.europa.eu.int

^[15] For further information of the IGCs 1950-51 and 1953-54 see particularly R.T. Griffiths, p. 58/59 and B. Smith, Chapter 1

^[16] For a complete explanation see A.Moravcisk: A Choice for Europe

^[17] As referenced in B.Smith p.29-35 and F.Laursen/S.Vanhoocker, p.229-234

^[18] The main quota of Neofunctionalism deals with the explanatory phrase „form follows function“, believing that, e.g. in European integration, a need for deeper integration will create the necessary support. For more on Neofunctionalism see S. Hix, p. 14-16