助成

Institute forInternational Policy Studies
・Tokyo・

IIPS International Conference“Enlargement and Future of Europe 2002”
Tokyo, 12-14 November“European Convention and Future EU Scenarios”
byProfessor Katsuhiro SHOJI
Department of International and Business Law
International Graduate School of Social Sciences
Yokohama National University, Japan

12-14 November 2002
ANA Hotel, Tokyo
IIPS
Enlargement and Future of Europe 2002
The 1st session: “Enlargement and Future of Europe”, 12 November 2002
Issues:Future prospects of EU enlargement
Prospects of Future of Europe (Giscard d’Estaing Convention)

European Convention and Future EU Scenarios

Professor Katsuhiro SHOJI
Department of International and Business Law
International Graduate School of Social Sciences
Yokohama National University, Japan

European Convention and Future EU Scenarios*
Professor Katsuhiro SHOJI
Department of International and Business Law
International Graduate School of Social Sciences
Yokohama National University, Japan

1. Introduction: Background of Debate on Future EU
European Integration is said to have been based on the so-called “Monnet method”
which means a gradual process of integration on a project-based approach in theeconomic area, with no mapping out of the final goal, other than “an ever closer union
among the peoples of Europe”.
To prepare for enlargement, the European Union is now in the process of putting
their house in order, taking into consideration the achievements made so far like apatchwork. The aim is to overhaul the European Union in the light of subsidiarity,
democracy and efficiency, without launching any new project such as a Common
Market, an Internal Market or an Economic and Monetary Union, except for anenlargement project planned in 2004.
The Nice Treaty, which will enter into force soon, focuses only on the institutional
reform for enlargement, without any substantive objective launched, but it was
criticized for diplomatic negotiation behind the closed door, lacking transparency. The
Member States, conscious of the limits of reforming the EU through an IGC only,
decided to convene a Convention to make it carry out the preparatory work, inspired by
the successful adoption by the first Convention of the Charter of Fundamental Rights.
The “Declaration on the future of the Union” annexed to the Nice Treaty set out the listof such questions as allocating competence based on subsidiarity, an incorporation of
the Charter of Fundamental Rights into a Constitutional Treaty, a simplification of theTreaties and enhancing the role of national parliaments.
Following the Nice treaty, the Laeken Declaration1, adopted by the European Council＊ This paper was rewritten on 24 November 2002.
1 “Laeken Declaration on the Future of the European Union”, AnnexⅠ, Presidency2

on 14 and 15 December 2001, identified many questions which would be posed to theConvention. This Declaration enumerated not only the questions related to the list in
the above-mentioned Declaration, but also added new questions on the institutions,
namely the Commission, the Council and the European Parliament.
These questions are, for example, “How can we increase the democratic legitimacy
and transparency of the present institutions?”, “How can we improve the efficiency ofdecision-making and the workings of the institutions in a Union of some thirty Member
States?” etc2. These questions suggest that the institutional reform achieved by the
Nice is modus vivendi, i.e. only provisional.
According to the Laeken Declaration, the Convention “will draw up a final document
which may comprise either different options, indicating the degree of support which
they received, or recommendations if consensus is achieved 3 ”(emphasis added).
Although “the final document will provide a starting point for discussions in theIntergovernmental Conference, which will take the ultimate decisions 4 ”, if theConvention succeeds in adopting recommendations in the final document by consensus
in a democratic process, the Member States at the next IGC will be forced to accept
them. This is why the Convention has decided to submit a draft Constitutional Treaty5
to the European Council held on 20 and 21 June 2003 in Greece.

2.

The European Convention (See Figure 1)
The Table 1 shows the composition of the European Convention, which includes

representatives of the national parliaments of the Member States and of the candidate
countries as well as members of the European Parliament. The Praesidium made up of
12 members shown in the Table 2, is set up to provide the impetus for the Convention’s
proceedings and to prepare draft agendas for plenary sessions.

Conclusions, Laeken European Council, 14 and 15 December 2001, SN 300/01,

http://europa.eu.int.
2 Ibid., p. 5, 6.
3 Ibid., p. 8.
4 Ibid.
5 As a legal analysis on this issue, see Koen Lenaerts and Marlies Desomer, “Bricks fora Constitutional Treaty of the European Union: Values, Objectives and Means”,

3And the Convention has set up ten Working Groups, shown in the Table 3. All thechairpersons of the Working Groups are also members of the Praesidium. Up to now,
six of the ten Working Groups have adopted each final report containing
recommendations. The remaining Working Groups are scheduled to report back by theend of this year. On the other hand, the issues on the institutional reform, which aremost sensitive, are not dealt with by any working groups, but will be debated inplenary.
The recommendations of the Working Groups are not binding upon the Convention.
But if they are approved at the plenary session, they will be recorded and if views on
the recommendations diverge among the members of the Convention, they will beconsidered subsequently within the Praesidium, which is then to make proposals toreconcile those views. In this way, the conclusions of the plenary debate on the Working
Groups’ recommendations are to be the building bricks used to achieve the end product,i.e. the recommendations of the Convention6.
On the other hand, Giscard d’Estaing has presented an outline of a future EU
Constitutional Treaty to the Convention at its plenary session on 28 and 29 October.

3.

Current Results
First of all, on 23 September, the Working Group on Subsidiarity adopted therecommendations: first, reinforcing the taking into account and the application of theprinciple of subsidiarity by the institutions participating in the legislative process(i.e.
the European Parliament, Council and Commission)during the drafting andexamination phase of the legislative act, including the idea of a “subsidiarity sheet”
containing in any legislative proposal; second, setting up an "early warning system" ofa political nature, intended to reinforce the monitoring of compliance with the principleof subsidiarity by national parliaments; third, broadening the possibility of referral to
the Court of Justice for non-compliance with the principle of subsidiarity7.

European Law Review, Vol. 27, No. 4, 2002, pp. 377-407.
6 Summary Report on the Plenary Session – Brussels, 3 and 4 October 2002, CONV

331/02, the Secretariat of the European Convention, Brussels, 11 October 2002, p. 1,
http://european-convention.eu.int.
7 Conclusions of Working Group Ⅰon the Principle of Subsidiarity, WGⅠ15, CONV
4

Then, on 1 October, the Working Group on legal personality of the Union adopted thefollowing recommendations: first, a single legal personality for the Union, replacing theexisting legal pesonalities of EC/Euratom and, second, merging the Treaties into asingle text with a possible abolition of the "3-pillar" structure8.
During the plenary session on 3 and 4 October, the debates were made, first, on the
final report of the Working GroupⅢ on legal personality of the Union and, second, on
the report of the Working Group on subsidiarity. The Convention endorsed theconclusions of both Working Groups. But, while there was broad consensus on all therecommendations on legal personality, there was less consensus on some of therecommendations of the Working GroupⅠon subsidiarity, although, on the whole, there
was a clear tendency towards giving some power back to the Member States, i.e. thenational parliaments, on the basis of the principle of subsidiarity9.
The issue of subsidiarity is inextricably linked to that of the role of the national
parliaments. The Working GroupⅣ on this issue recommended: first, ensuring thescrutiny of governments’ action in the Council; second, that the Council should act inpublic in all cases where it exercises its legislative functions; third, that theCommission should transmit all legislative proposals simultaneously to national
parliaments, the European Parliament and the Council; fourth, that a mechanism
should be set up to allow national parliaments to convey early on in the legislative
process their views on the compliance with subsidiarity and, lastly, that the Convention
should examine the idea of a Congress involving both national parliaments and theEuropean Parliament10.
In this connection and in the context of the role of the national parliaments, Giscard
286/02, the Secretariat of the European Convention, Brussels, 23 September 2002,
http://european-convention.eu.int.
8

Final Report of Working Group Ⅲon Legal Personality, WGⅢ16, CONV 305/02, theSecretariat

of

the

EuropeanConvention,

Brussels,1

October

2002,

http://european-convention.eu.int.
Summary Report on the Plenary Session – Brussels, 3 and 4 October 2002, op. cit., p.
4, 5, 10.
10 Final Report of the Working GroupⅣon the Role of National Parliaments, WGⅣ17,
CONV 352/02, the Secretariat of the European Convention, Brussels, 22 October 2002,
95

d’Estaing had proposed setting up a “Congress of the peoples of Europe”, meeting oncea year, which would gather members of national parliaments and the European
Parliament. It would be in charge of holding confirmation hearings for key EU posts,
consultation on EU enlargement, deciding on greater powers for the EU institutions
and hearing annual reports by the presidents of the Council and the Commission11.
This idea was inserted into the preliminary draft Constitutional Treaty presented on
28 October.
On 22 October, the same day when the Working GroupⅣ on the role of national
parliaments adopted its report, the Working GroupⅡon the Charter of Fundamental
Rights/the European Convention on Human Rights(ECHR) also adopted the following
recommendations: first, an incorporation of the EU Charter of Fundamental Rights in
a form which would make the Charter legally binding and, second, the creation of aconstitutional authorisation enabling the Union to accede to ECHR.
During the plenary session on 28 and 29 October, when the debates were made, first,
on the report of Working GroupⅣon the role of national parliaments and, second, on
the report of Working GroupｎⅡ on the Charter/ECHR. Concerning the report on therole of national parliaments, broad support for its report and recommendations was
revealed among the members of the Convention. However, some doubt was cast on theidea of a Congress, since creating such a new institution could further complicate theinstitutional architecture of the Union 12 . And, concerning the report on theCharter/ECHR, full endorsement was expressed by the President after the debate13.
On the other hand, the Working Group on Economic Governance submitted its report
adopted on 21 October to the plenary session on 7 and 8 November. The report includes
the following recommendations, which are very modest:-the current structure, whereby exclusive competence for monetary policy within
the Eurozone lies with the Community, exercised by the ECB and competence for
economic policy lies with the member States, should be maintained;

http://european-convention.eu.int.
Future EU: Key Issues, 21/10/2002,
http://www.euactiv.com/cgi-bin/cgint.exe/?targ=1&204&OIDN=500716 .

11

Summary Report on the Plenary Session – Brussels, 28 and 29 October 2002, CONV
378/02, the Secretariat of the European Convention, Brussels, 31 October 2002, p. 3-6,
http://european-convention.eu.int.
13 Ibid., pp. 7-12.
12

6

-

there is a need for improved coordination between the economic policies of theMember States and economic policy cooradination should be reinforced;-

the importance, in the light of enlargement, of amending Article 10(2) of the ECB
statutes relating to the working methods of the ECB's Governing Council;-

budgetary and financial coordination of the Member States with the objective ofmonetary stability as a basis for sound economic growth is of utmost concern;-

the competence of the Union in the area of fiscal policy as set out in Articles 93, 94
and 175 TEC should be maintained;-

no measures should be taken which would prevent the possibility of informal
discussions among finance ministers of the Eurogroup, the ECB and theCommission;-

the effectiveness of the current informal arrangements for representing theEurozone in international organisations should be improved14.
Then, on 31 October, the Working Group on Complementary Competences adopted

the final report, which submitted the recommendations to the plenary session on 7 and
8 November, as follows:-

the term "supporting measures" should be used, instead of the term"Complementary Competences";-a future Treaty should comprise a separate title devoted to all issues ofcompetence and the reference to “an ever closer Union” in TEU Article 1 should be
rephrased or clarified;-A basic delimitation of Union competence in each policy area should be part of afuture Treaty;-

supporting measures apply, in principle, to policy areas where the Member States
have not transferred competence to the Union;-

matters of supporting measures should be: employment, education and vocational
training, culture, public health, trans-European networks, industry, research anddevelopment;-

supporting measures authorise the Union to adopt recommendations, resolutions,guidelines, programmes, and other legally non-binding act as well as legally

Final Report of Working GroupⅥ on Economic Governance, WGⅥ17, CONV 357/02,
the Secretariat of the European Convention, Brussels, 21 October 2002,
http://european-convention.eu.int. Concerning the debate on this report at the plenary
session, see Summary Report on the Plenary Session－Brussels, 7 and 8 November
2002, CONV 400/02, the Secretariat of the European Convention, Brussels, 13
November 2002, pp. 1-8, http://european-convention.eu.int.
14

7

binding decisions other than regilations and directives, with some exceptions;-exclusive competence and shared competence and those areas should be defined in
the future Treaty in accordance with existing jurisprudence of the Court of Justice;-an explicit text stating that all powers not conferred on the Union by the Treaty
remains with the Member States should be inserted into a future Treaty;-

the essential elements of the national identity(TEU Article 6(3)) should include
fundamental structures and essential functions of the Member States, notably theirpolitical and constitutional structure, including regional and local self-government,
their choices regarding language, national citizenship, territory, legal status ofchurches and religious societies, national defence and the organisation of arms
forces;-the reference to "an ever closer union" in TEU Article 1 should be rephrased orclarified in order to avoid the impression that future transfer of competence to theUnion remains in itself an aim and objective of the Union-

TEC Article 308 should be maintained to provide a necessary flexibility with
unanimity in the Council15.
During the plenary session on 7 and 8 November, the debates were made, first of all,on the report of Working GroupⅥ on Economic Governance and, then, on the report on
Working Group Ⅴ on Complementary competences. In the plenary debate on theformer report, while there was consensus on maintaining the current allocation of thecompetence in the Economic and Monetary Union, the need economic and social
objectives in the new constitutional treaty and giving the Commission the power toissue an initial warning on the implementation of the Broad Economic Policy
Guidelines directly to the Member States concerned, no consensus was reached on theother issues like the idea of formalizing the Eurogroup16.
When the plenary debate was made on the report on Complementary competences,disagreement was expressed with the Working Group’s proposals such as using the newname “supporting measures”, rewording the expression “an ever closer union”,
inserting in the new constitutional treaty a separate title covering all matters relating

Final Report of Working GroupⅤ, WGⅤ14, CONV 375/02, the Secretariat of theEuropean Convention, Brussels, 31 October 2002, http://european-convention.eu.int.
Concerning the debate on this report at the plenary session, see Summary Report on
the Plenary Session－Brussels, 7 and 8 November 2002, op. cit., pp. 10-14.
16 Summary Report on the Plenary Session – Brussels, 7 and 8 November 2002, op. cit.,p. 1-8.
15

8

to competence and a “basic delimitation of Union competence”, the ban on using
legislative instruments in the context of complementary competence and including
policy areas like social policy or research in the list of complementary competence areas,
while there was broad consensus on maintaining Article 308 as a “flexible clause” with
unanimity in the Council17.
The other four Working Groups are due to report back by the end of this year. Table 4shows the questions considered by those groups. And a Working Group on a “Social
Europe” will be created, since, in the plenary debate on 7 November, there wasconsiderable support for it18.
Meanwhile, Mr. Giscard d’Estaing presented the preliminary draft Constitutional
Treaty19, drawn up by the Praesidium, to the plenary session on 28 October 2002. This
draft is only a skeleton outline, but there are important proposals made in it, tilting
the balance towards more integration with some intergovernmentalism, as follows:-“Treaty establishing a Constituting for Europe” consists of two parts, i.e. Part One:
Constitutional Structure and Part Two: Union Policies and their Implementation;-a single legal personality, replacing the existing ones;-

options for a new name: European Community, European Union, United States ofEurope or United Europe;-

voluntary withdrawal;-

explicit reference to “certain common competences on a federal basis” and “theprimacy of Union Law”(emphasis added);-

the list of the categories of Union competence(exclusive, shared, etc.) with clear
descriptions of the different instruments for the exercise of each competence;-a concept of “dual citizenship”, composed of national citizenship and European
citizenship;-reference to “participatory democracy”;-

recognition of the role of National Parliaments in monitoring subsidiarity;-

establishing a “Congress of the Peoples of Europe”;-

the Presidency of the European Council, the Presidency of the Council and thePresidency of the Commission, appointed in each procedure, which is left open;

Ibid., pp. 10-14.
Ibid., pp. 6-8.
19 Preliminary Draft Constitutional Treaty, CONV 369/02, the Secretariat of the17
18

European Convention, Brussels, 28 October 2002, http://european-convention.eu.int.
9-

maintaining the Commission’s monopoly of initiative;-

leaving open the issues, such as the size of the Commission and the voting rules of
the Council including the definition of the qualified majorities; the role and future
rank of the High Representative for CFSP, representing the Union in international
relations (a new post of EU foreign secretary to be created20?)
At the plenary session on 28 and 29 October, it was noted that “the architecture of

the future Treaty was favourably received” 21 . The Praesidium will submit to theConvention the texts drawn up in the light of the plenary debates in the beginning of
200322.

4.

Progress outside the European Convention (See Figure 1)
In the meantime, outside the Convention, some progress was made, which does not

require Treaty amendments23. The Seville European Council adopted the following in
its conclusions:-adoption of the rules for the preparation, conduct and conclusions of theproceedings of the European Council24

Convention to Discuss First Outline of EU Constitution, 28/10/2002,
http://www.euractiv.com/cgi-bin/cgint.exe/?targ=1&204&OIDN=1504154 .
21 Summary Report on the Plenary Session – Brussels, 28 and 29 October 2002, op. cit.,p. 13 and Summary Report on the Plenary Session – Brussels, 7 and 8 November 2002,
op. cit., p. 8-9. See also A Constituion for the Union, 14/11/2002,
http://www.euractive.com/cgi-bin/cgint.exe/2426987-409?1100=1&204&OIDN=250756&
t...; Stanley Crossick and Giovanni Grevi, Strengthening the Foundations of theEuropean House, 08/11/2002,
http://www.euractive.com/cgi-bin/cgint.exe/2426987-409?1100=1&204&OIDN=250740&
t...; The Deutsche Bank Research, EU Convention: Preliminary Draft Constitutional
Treaty: “Basic Structure” Includes a Few Surprise, 12/11/2002,
http://www.euractive.com/cgi-bin/cgint.exe/2426987-409?1100=1&204&OIDN=250743&
t... .
22 Summary Report on the Plenary Session – Brussels, 7 and 8 November 2002, op. cit.,p. 9.
23 According to Presidency Conclusions, Laeken European Council, 14 and 15
December 2001, op. cit., p. 1, para. 4, “In parallel with the proceedings of theConvention, a certain number of measures can already be taken without amending theTreaties. In this context, the European Council welcomes the Commission’s white
paper on governance and the Council Secretary-General’s intention of submitting,
before the European Council meeting in Barcelona, proposals for adapting the Council’s
structures and functioning to enlargement The European Council will draw theoperational conclusions drom it at its meeting in Seville.”
24 “Rules for Organising the Proceedings of the European Council”, Annex Ⅰ,
20

10

-

reduction of the number of the Council formations from 16 to 9
General Affairs and External Relations
Economic and Financial Affairs
Justice and Home Affairs
Employment, Social Policy, Health and Consumer AffairsCompetitiveness(Internal Market, Industry and Research)
Transport, Telecommunications and Energy
Agriculture and Fisheries
Environment
Education, Youth and Culture25-

opening Concil meetings to the public when the Council is acting in accordancewith the procedure for codecision with the European Parliament(during the initialand final stages of the procedure only)26
But the Seville European Council failed to agree to split the General Affairs Councilin two: General Affairs Council and External Relations Council, owing to the oppositionof Austria, Benelux, Greece and Portugal, and instead they agreed to create a new“General Affairs and External Relations Council” 27 . And the Spanish proposal tointroduce majority voting during European Council meetings was rejected28.
On the other hand, according to Mr. Stanley Crossick, Director and Founding
Chairman of the European Policy Centre, “the Decisions at the Seville Summit that theCouncilestablish

multiannual

strategic

programmes

andannualoperatingprogrammes should not have been taken and could be a further erosion of the role of
the Commission and also an unreasonable exclusion of Parliament”29. This argument

Presidency Conclusions, Seville European Council, 21 and 22 June 2002, SN 200/02, pp.

19-21, http://europa.eu.int.
“Measures concerning the Structure and Functioning of the Council”, AnnexⅡ,
Presidency Conclusions, Seville European Council, 21 and 22 June 2002, op. cit., p. 22,23.
26 Ibid., p. 25. The Danish Presidency will submit a report on the present system of
six-monthly rotation of the Presidency to Copenhagen European Council on 12 and 13
2003 (Presidency Conclusions, Seville European Council, 21 and 22 June 2002, op. cit.,
p. 2, para. 5).
27 Future EU: Institutional reform, 11/10/2002,
http://www.euractiv.com/cgi-bin/cgint.exe/2026855-686?targ=1&204&OIDN=500693 .
28 Ibid.
29 Stanley Crossik, Seville Summit – Creeping Council Influence at Commission’s
Expense, 03/07/2002,
25

11

shows that there is some danger that the internal reforms of the Council and even of
the Commission could bypass recommendations which will be made by the Convention.
The Commission has been also in the process of its internal reform. At the press
conference pre-Seville in Brussels on 18 June 2002, the Commission President,
Romano Prodi, keeping in mind the provisions on the Commission in the Nice Treaty30,
has presented a general outline of the Commission’s internal reform, to be
implemented in 2004.
First, Mr. Prodi referred to the reorganisation of the Commissioner’s areas of
responsibility, due to be ready by the end of 2003, as follows:“Commissioner’s areas of responsibility will be recognized around tasks that are
essential to the functioning of the Union. Work will be prepared by groups ofCommissioners responsible for a general policy area, mirroring the changes that arelikely to be made to the structure of the Council.
After thorough consultation of my fellow Commissioners I shall designate a number
of Vice-Presidents from among them to supervise each group of areas. Each
Vice-President will work closely with two or three Commissioners depending on thescope of the fields covered“.31
Second, the Commission President mentioned the rationalizing the Commission’s
decision-making process, as follows:“While fully complying with the principle of collegiality we have to modernize theway decisions are made and prepared. Under my leadership the Vice-President will

http://www.euravtive.com/cgi-bin/cgint.exe/1982595-545?714&1tain015=2&1014=epc96
Article 217 of the Treaty of European Community , which is amended by the Nice
Treaty, stipulates that:“1. The Commission shall work under the political guidance of its President, whoshall decide on its internal organization in order to ensure that it acts consistently,
efficiently and on the basis of collegiality.
2. The responsibilities incumbent upon the Commission shall be structured andallocated among its Members by its President. The President may reshuffle theallocation of those responsibilities devolved upon them by the President under his
authority.
3. After obtaining the approval of the College, the President shall appoint
Vice-President from among its Members.
4. A Member of the Commission shall resign if the President so requests, after
obtaining the approval of the College.”
31 Romano Prodi, Speaking Points concerning the Seville European Council,
SPEECH/02/290, Brussels, 18/06/2002, http://europa.eu.int.
30

12

prepare the decisions to be taken by the Commission. They will meet at least once aweek to prepare the meeting of the College and to take decisions that the College has
authorized them to take.
The full Commission will continue to meet once or twice a month to set the politicalpriorities and plan the work.
All decisions in principle will be taken by the College, as well as those it is required
to take under the Treaties. The Vice-presidents supervising groups of Commissioners
will take on an increasingly important rile in implementing political priorities anddecisions”32.
This internal reform, while the principle of the collegiality is emphasized, implies
that the Commission will be divided into an inner cabinet of senior Commissioners(Vice-Presidents) and an outer circle of junior Commissioners33.
If this reform is carried out not in 2004 but as early as possible, because therelevant provision will be entered into force soon, and the present College of 20
Commissioners can prove to be efficient and effective by the time the next IGC isconvened, the argument made by the smaller countries could gain ground that theCommission should continue to be composed of one national from each Member State,
acting at the same time in the general interest and as a spokesman of his/her own
country, although the Nice Treaty provides that after the 27th country accedes to theEU, the number of the Commissioners shall be less than the number of the Member
States, based on a rotation system34.
Mr. Giscard d’Estaing, President of the Convention, is acting also outside theframework of the Convention. He has been making lots of contacts with politicalleaders of the Member States. But his way of doing things is criticized. Mr. Peter
Norman, a journalist of the Financial Times, said “He has tended to concentrate on
meeting big country leaders” and “ Giscard’s bilateral meetings are less transparent”35.
And Professor Jean-Victor Louis, Free University of Brussels, warned about his
32
33

Ibid.
Future EU: Institutional Reform,

http://www.euractiv.com/cgi-bin/cgint.exe/2026855-686?targ=1&204&OIDN=500693 .
Article 4 (2) of the Protocol on the enlargement of the European Union, which isannexed to Treaty on the European Union and to the treaties establishing theEuropean Communities by the Nice Treaty.
35 Peter Norman, The European Convention: the End of the Beginning, paper
34

13

behaviour, as follows:“The risk, that has somewhat materialized, and was not to be feared during theelection of the Charter [of Fundamental Rights], is that the President would play apersonal role, through his contacts with Governments, ‘en marge’ of the Convention
and through the launching in the public of personal initiatives that have not beentested before within the Convention.”36

5.

Institutional Reform
The most sensitive issue is the institutional reform of the EU. The Convention has

not discussed this issue yet, but the debate is moving forward among Member States,
outside the Convention.
Various ideas have been aired particularly by the political leaders of the big
countries. They are, for example, a permanent President of the European Council withthe six-month rotating presidency abolished, the Commission with its President electedby the European Parliament, and, merging the functions of the External Relations
Commissioner and the High Representative for CFSP.
The key question is: In which direction will the institutional balance tilt? ; Whichinstitution will lead the EU: the European Council and the Council guided by the big
countries or the Commission acting independently in the general interest?
The British Prime Minister, Tony Blair, expressed his view that the present systemof the rotating presidency should be abolished and that, instead, the Member Statesshould appoint a past or serving head of government or state to be a full-time EU
President, whose function would include chairing the European Council, supervising
the delivery of policy decisions by the European Council and representing the EU
externally37.
The French President, Jacque Chirac, also advocated the idea of a permanent EU
presented at Keio University, Tokyo, Japan, on 9 June 2002, p. 8.
Jean-Victor Louis, The Reform of the Treaties and the Convention, paper presented
at Keio University, Tokyo, Japan, on 7 November 2002, p. 7.
37 High Representative Solana Skeptical about Proposals for EU President, 16/10/2002,
http://www.euractiv.com/cgi-bin/cgint.exe/?targ=1&204&OIDN=1504074 .
36

14President on the same line38, which is also backed by Spain and Italy39.
By contrast, the small countries and the candidate ones are against the proposal for
an EU President, because they think that it will be a threat to their interests. Those
countries prefer to be represented by a strong Commission elected by the European
Parliament40.
And Javier Solana, High representative for CFSP, expressed doubts whether
appointing an EU President would really create a single voice for Europe41.
On the other hand, The German Chancellor, Gerhard Schröder, took the middle
stance between the other big countries and the small countries, saying that he would
support the plan for an EU President, under the condition that it did not undermine
the work of the European Commission. At the same time, he supported the idea that
the Commission President should be reinforced and be elected by a majority vote in theEuropean Parlament42.
The position of the Commission has not been clearly defined yet. However, the

38

Ibid.

Future EU: Key Issues, op. cit.
High Representative Solana Skeptical about Proposals for EU President, op. cit.
41 Ibid. He made several suggestions for a more effective EU foreign policy:(1)External representation should be delegated by the Council to the Highrepresentative; (2)The High Representative should be empowered to present proposals
in his own right; (3)A permanent chair for the External Relations Council isnecessary(the High Representative could be this permanent chair); (4)Unanimity of25(or more) on every foreign and security policy issues will make decision making very
difficult, therefore majority voting should be considered; (5)Pooling of diplomatic
resources for the collective goals of EU foreign policy should be considered (Ibid.).
42
Schöderbacks
strongEU
President,
11/10/2002,39
40

http://www.euractiv.com/cgi-bin/cgint.exe/?targ=1&204&OIDN=1504049.

The

main

roles of the Commission are to make legislative proposals as the sole initiator in theCommunity sphere, to implement the policies adopted as an executive, to watch theobservance of the Member States’ obligations under the EC Treaty and to supervise
state aids and competition. If the President of the Commission is elected by the
majority of the European Parliament, then the Commission will not be independentand the roles of watching and supervising will have to be played by anotherindependent institution.
15

Commission President Romano Prodi rejected the Franco-British proposal for theEuropean Council President to be elected for five years instead of the current system ofa six-month rotating Presidency.43.
The Trade Commissioner Pacal Lammy also criticised the idea of an EU President.
He said, in a speech at the Brussels Free University on 14 October, “This change would
certainly be to the detriment of the Commission, which would be transformed into an
administration serving the Council” and “ only the Commission, because it is pluralistic
in terms of nationality, culture and political allegiances, can hope to represent thegeneral interest”44.
As for the idea of merging the functions of the External Relations Commissioner andthe High Representative for CFSP, the Commission proposed, in the Communication on“A Project for the European Union”, that “the High Representative/the Commissioner
for External Relations should be chosen by joint agreement by the President designateof the Commission and by the Council at Head of States and Government level,
specifically to perform this task under the authority of the President of theCommission”45(emphasis added).
In short, this idea is to merge “Solana” into “Patten”, while the opposite idea of
merging “Patten” into “Solana” is emerging from France, which would be acceptable to
the United Kingdom46.

6.

Concluding Remarks
One can think that the European Union will be streamlined along the lines definedby the Convention, such as enhanced application of the principle of subsidiarity with noCommission’s “Future EU” Plans under Fire, 15/11/2002,
http://www.euractive.com/cgi-bin/cgint.exe/2426967-325?1100=1&204&OIDN=1504271&... .
43

44

Ibid.

Commission of the European Communities, Communication from the Commission: A
Project for the European Union, COM(2002) 247 final, Brussels, 22.5.2002, p. 14,
http://europa.eu.int.
46 Kirsty Hughes, Where is the Real Debate in the Future of Europe? , Centre forEuropean Policy Studies, 17/10/2002,
http://www.euractiv.com/cgi-bin/cgint.exe/?targ=1&204&OIDN=250673.
45

16

strict

catalogueofcompetence,

reinforced

roles

of

national

parliaments,aConstitutional treaty with a human rights catalogue, simplified legislative procedures,a single legal personality and a stronger single voice, if the governments of the Member
States accept such recommendations at the next IGC.
On the other hand, the main battle will be fought between the big and small
countries around the role of the Commission played in the Community method. The
Commission occupies the core position in the Community method, given the monopolyof the right of initiative exercised in the light of the general interest.
The Community method means “a system whereby the Commission - the institution
representing the general European interest - has a monopoly on initiating legislation,i.e. presents proposals for legislative acts, and the Council - an institution comprising
representatives of the Member States governments and the European Parliament representing the people of Europe – adopt these acts in codecision”. “In particular, theCouncil votes by qualified majority, with unanimity being required if it wishes toamend the Commission’s proposal”47.
The idea is floating that the monopoly of the right of legislative initiative by theCommission should be abolished and that this right should be shared with the Council
and the European Parliament48. This would be a serious blow to the Commission. And
this would also be against the interests of the minority Member States (usually thesmall countries), because the initiatives by the Council and the European Parliament
would reflect not the general interest but the interest of the majority (usually the big
countries) in the voting within those institutions.
In addition, if the right of initiative is given to the Member States, the consequences
might be much more harmful, since “in the case of national initiatives, the minority
Member States do not have the protection which results from the Commission’s consent.
Their protection lies solely in the need for a unanimous decision”.49

Contribution from Mr. Barnier and Mr. Vitorino, members of the Convention: “theCommunity method”, CONTRIB 80, CONV 231/02, the Secretariat of the European

47

Convention, Brussels, 3 September 2002 (05.09) , p. 3,
http://european-convention.eu.int.
48 Future EU: Key Issues, op. cit.

Contribution from Mr. Barnier and Mr. Vitorino, members of the Convention: “theCommission’s right of initiative”, CONTRIB 79, CONV 230/02, the Secretariat of the49

17The more the qualified majority voting in the Council is extended coupled with thecodecision with the European Parliament which decides by majority voting, the morenecessary the Commission’s right of initiative will be to protect the minority Member
States in the light of the general interest.

And there should be a system of “double

simple majority” in the Council, proposed by the Commission, which means a simple
majority of Member States and a majority of the total population of the EU. Such a
procedure is so democratic and transparent that the legitimacy of the EU would bebeyond any doubt if it were adopted.
Mention should be also made of enhanced cooperation. The Nice Treaty has theprovisions on enhanced cooperation which reformed the Amsterdam version to makemuch it easier to launch such cooperation and extended such a possibility to the field of
the CFSP. Professor Christian Lequesne, Deputy-Director of Centre d’Etudes etRecherches Internationales (Paris, France), is in favour of making enhanced
cooperation more workable, but against the idea of a “core Europe” within an enlarged
EU, composed of a limited number of the Member States moving towards morefederalism. Instead, he advocates developing ‘functional’ enhanced cooperation
stipulated in the Nice Treaty50. However, such ‘functional’ enhanced cooperation on acase by case basis would not necessarily guarantee the forming of a center of gravity
towards more integrationist Europe in a diversified Union.
A “core Europe” should be formed in the economic field, because cooperation in thefield of external action, defence or police cannot avoid being developed on a more or lessintergovernmental basis. Rather, the present author sees the possibility in the EMU.
In 1990 “the Statement by the Deutsche Bundesbank on the establishment of an
Economic and Monetary Union in Europe” says, ”In the final analysis, a Monetary
Union is thus an irrevocable joint and several community which, in the light of pastexperience, requires a more far-reaching association, in the form of a comprehensive
political union, if it is to prove durable”. A centre of gravity might be an enhanced
Eurogroup inside the EMU, with more integrated economic policies including social
security and taxation, although there is no indication of such a move, as is shown inEuropean Convention, Brussels, 3 September 2002 (05.09), p. 3,
http://european-convention.eu.int.
50 Christian Lequesne, Future Prospects of EU Enlargement, paper presented at the
IIPS International Conference “Enlargement and the Future of Europe 2002”, ANA
Hotel, Tokyo, Japan, on 12-14 November 2002, p. 4.
18very modest recommendations of the Final report of Working GroupⅥon Economic
Governance.
Lastly, two scenarios could be thought on the future of the Union. One is a moreintergovernmentalist EU dominated by big countries, with an permanent EU President,a High Representative/External Commissioner in the Council and a small College of
the Commission(which does not necessarily reflect intergovernmetalism but is
proposed by big countries). In this scenario, the monopoly of the right of initiative of
the Commission might be abolished and shared with the Council and/or the Member
States. The other is a more integrationist (or more supranational) EU favoured bysmall countries, with a Commission President elected by the European Parliament, aHigh Representative/External Commissioner in the Commission and the Commission
composed of one member from each Member State (which is supported by smaller
countries) 51 . The monopoly of the right of initiative of the Commission would bemaintained.
At any rate, the trend seems to be that the balance would shift more towards thefirst scenario. The casting vote could be in the hands of Germany. In this connection,interesting enough, Mr. Fischer is said to represent the German Government at theConvention and produce a strategy paper on the future of Europe, arguing in favour ofa stronger Commission52. The story will be continued.

On this issue, see John Temple Lang, “How Much Do the Smaller member States
Need the European Commission? The Role of the Commission in a Changing Europe”,
Common Market Law Review, Vol. 39, No. 2, 2002, pp. 315-335.
52 Joschka Fischer to represent German government at EU Convention, 13/10/2002,
http://www.euractive.com/cgi-bin/cgint.exe/?targ=1&204&OIDN=1504095.
51

19

[Postscript]
1. The present author had an opportunity to visit Bruxelles between 1 and 7
December 2002 (in order to participate in the 6th ECSA-World Conference on 5-6
December 2002) and had an interview with Mr. Jean-François Brakeland,
Administrateur principal, Task Force Avenir de l’Union in Secrétariat général of theCommission on 2 December.
According to him, (1) the Working GroupⅦ on External Action has decided torecommend that the HR for CFSP and the Commissioner responsible for external
relations should be merged into a “European External Representative” as full memberof the Commission while having a separate mandate from the Council for CFSP issues.
The present author thinks that a person having such a post might tend to face more
towards the Council than towards the Commission and prejudice the authority of theCommission President. My view was shared by him.
(2) And he criticised the idea of an permanent EU President as only cosmetic andmaking the institutional framework more complicated. Such a role would be played by
the above-mentioned post of a “European External Representative”. The Presidency as
chairpersons of the European Council and the Councils should remain on the present
rotation system.
2.

Meanwhile, on 4 December, the Commission adopted the communication “Fro theEuropean Union: Peace, Freedom, Solidarity” on the institutional architecture(Brussels, 4.12.2002, COM(2002) 728 final). The impact of this document on theConvention remains to be seen for the present.

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