The representative quality of EU treaty reform: a comparison between the IGC and the convention
2004; Taylor & Francis; Volume: 26; Issue: 3 Linguagem: Inglês
10.1080/0703633042000261616
ISSN1477-2280
AutoresJohannes Pollak, Peter Slominski,
Tópico(s)EU Law and Policy Analysis
ResumoAbstract This article assesses whether the Convention on the Future of Europe is more representative than the traditional way of Treaty reform by IGCs. The concept of representation is analysed and five dimensions are specified. By applying these dimensions both to IGCs and the Convention the article concludes that the setting‐up of the Convention has led to a more balanced representation based not only on a broader presence of representatives but also on proper authorisation, room for manoeuvre and voting rights as well as an improved degree of responsiveness. The Convention was thus more appropriately reflecting the compounded pluricentric system of European governance. In all these aspects, the Convention is by no means perfect but still a considerable improvement to an IGC. Keywords: Convention on the Future of EuropeIntergovernmental Conferencerepresentationdemocracy Notes Correspondence Address: * Johannes Pollak, Austrian Academy of Sciences, A‐1040 Vienna, Prinz Eugen Strasse 8/2. Email: johannes.pollak@oeaw.ac.at BVerfGE 89, p. 155. (Maastricht Decision of the German Constitutional Court). It is beyond the scope of this article to deal with the question whether an IGC really reorganises the treaties or whether it merely codifies changes which already occurred in the 'valleys' of constitutional reform between IGCs. Christiansen & Jørgensen (Citation1999); Christiansen, Falkner & Jørgensen (Citation2002). European Voice 6/46, 2000: 1. European Voice 6/46, 2000: 1. European Voice, 6/46, 2000: 1; Agence Europe, 13 December 2000; ibid., 10 January 2001 CitationDeloche‐Gaudez 2001; CitationPernice 2001. See http://www.auswaertiges‐amt.de/www/de/infoservice/download/pdf/reden/2000/r000512a.pdf (accessed 10 August 2004). For an overview over the academic follow‐up debate see Joerges, Mény & Weiler (Citation2000). CitationCraig (1999), p. 23 ff. e.g. Maurer (Citation2003b); Scholl (Citation2003). Shaw (Citation2003a), p. 57. Contrary to wide‐spread public perception, IGCs are more than just meetings of the Heads of State and Government and also include a lengthy preparatory phase in so‐called Reflection Groups comprising mainly senior civil servants. As recent IGCs have shown, however, the most crucial and controversial decisions are made in the early hours by the Heads of State and Government. Coultrap (Citation1999), p. 108. Of course, this definition includes various institutional requirements and implications, such as the necessity of free, fair and periodical elections, freedom of expression and alternative sources of information, which cannot be addressed in this paper. See e.g. Dahl (Citation2000), pp. 85 ff. This phrase is borrowed from Michael Saward's definition of democracy as a "necessary connection between public policy and popular preferences". Saward (Citation1998), p. 51. Andersen and Burns (1996), p. 238. Weiler (Citation1999). Benhabib (Citation1996); Elster (Citation1998), p. 8. Eriksen & Fossum (Citation2000), p. 16; Christiansen, Jørgensen & Wiener (Citation1999). Bellamy & Castiglione (Citation2000), p. 70 ff. It goes without saying that deliberation is by no means free of bargaining. But we support the view articulated by Eriksen & Fossum that an institutional arrangement can be inclined to encourage interest‐based bargaining or to encourage arguing‐based deliberation. Eriksen & Fossum (Citation2000), p. 17. Schmidt (Citation2002). Voegelin (Citation1991), p. 17. Hogan (Citation1970), p. 289. Heinz Eulau (Citation1978), p. 31. Similar statements can be found in e.g.: G. Leibholz (Citation1966), p. 25, C. J. Friedrich (Citation1968), p. 221, G. Loewenberg (Citation1972), p. 12. Matthews & Valen (Citation1999); Miller et al. (Citation1999); Müller & Saalfeld (Citation1997); Klingemann et al. (1994); Przeworski et al. (1999). Bingham Powell (Citation2001). Manin (Citation1997), p. 236. Sartori (Citation1987), p. 30. Schmitt (1957), Fraenkel (Citation1968), Leibholz (Citation1966), Pitkin (Citation1967) and Voegelin (Citation1991). Recent studies: e.g. Shaw (2002), p. 13. Pitkin (Citation1967), p. 8. The dimensions are borrowed from O'Neill (Citation2001). The dimension 'epistemic values' was replaced by 'expertise'. Leibholz (Citation1966), p. 27. Adams quoted in Peek, G. A. (Citation1954). Phillips (Citation1995), p. 176. Voet (Citation1998), p. 100. Butler (Citation1999), p. 4 and 8. O'Neill (Citation2001). Pitkin (Citation1967), p. 39. Carl Friedrich tries to overcome the dichotomy between imperative and free mandate by admitting that "it is quite impossible to draw a hard and fast line between agents with definite instructions or mandates and representatives empowered to attend to a general task. An elected body may and usually will be both a set of agents from different interests, and a representative group determining the common interest" (Friedrich (Citation1953), p. 303). Departing from a similar point of view, Beyers & Trondal (Citation2003) have dealt with various institutional settings under which (member‐state) representatives operate and worked out how they are influenced by them. In political reality, however, it is usually clear what the will or the interest of the represented is. This problem becomes even more salient if we bear in mind that a representative might sometimes represent more than one person or group which can lead to a series of conflict rooted in the different or even conflicting interest. Beyers & Trondal (Citation2003), p. 4. John Kincaid (Citation1999), p. 35. Pitkin (Citation1967), p. 232 ff. O'Neill (Citation2001), p. 6. Manin (Citation1987), p. 357. Sartori (Citation1987), p. 29. Dahl (Citation2000), p. 37. Sunstein (Citation2001). Cohen (Citation1997), p. 74 ff. Saward (Citation2000), p. 5. Eriksen & Fossum (Citation2000), p. 20 ff.; Mansbridge (Citation1998). Maurer (Citation2003c), p. 167. European Commission (Citation2000), p. 4. David Galloway (Citation2001). Hoffmann (Citation2002), p. 5; Closa (Citation2003), p. 1. Moravcsik (Citation1998), p. 3. Gray (Citation2000), p. 266. Gray (Citation2000), p. 266 ff.; CitationGray & Stubb 2001, p. 7. Taking a similar stance, Falkner claims that supranational institutions like the European Parliament and the Commission as well as European level social partners may enjoy — at least — a certain degree of influence. Falkner (Citation2002), p. 3; (Citation2002a), p. 112. Conversely, Liberal Intergovernmentalists argue, with regard to the Treaty of Amsterdam, that neither European Commission nor European Parliament provided significant influence on the final results. Moravcsik & Nicolaidis (Citation1999), p. 70. The history of European integration already knows several proposals to include EU institutions during the IGC including a right of assent for the European Parliament. But so far all attempts to widen the participation in an IGC have not found acceptance among the member states. See, for example, the report by the so‐called Dooge Committee suggesting the formal inclusion of the Commission as well as the European Parliament. Or the Luxembourg Presidency Draft Treaty on the Union of 18 June 1991. Gray (Citation2000), p. 266; Gray and Stubb (Citation2001), p. 7. See the Helsinki European Council 10 and 11 December 1999 — Presidency Conclusions. Gray & Stubb (Citation2001), p. 7. Legally speaking, the Treaty amendments do not enter into force until all member states 'in accordance with their respective constitutional requirements' have ratified them. This implies that a national constitution may allow ratification of EU Treaties without parliamentary approval. Lenaerts & Desomer have shown that under UK constitutional law the government is free to ratify Treaties without the assent of the parliament. (Lenaerts & Desomer (Citation2002), p. 1229.) However, the European Parliamentary Elections Act (1978) calls for an act of the UK parliament in those cases where the European Parliament gains more rights. Giscard d'Estaing (Citation2002), p. 14 Reh and Wessels (Citation2002), p. 26. For the difference between bargaining and arguing see Risse (Citation2000). Similarly, CitationEriksen (2000, p. 60) states that "[t]he problem of bargaining and voting procedures is that they encourage a process of give and take, pork barrelling, log‐rolling etc. that does not change opinions, necessitates learning or enlargement or refinement of perspectives … Arguing, in comparison then is marked by a change of views, by the way the discussion helps to mould preferences and to move standpoints." Gray (Citation2000), p. 273. Laeken Declaration — The Future of the European Union by the European Council, 15 December 2001, SN 273/01. The meetings of the Forum including their preparation and post‐processing have been financed by the Convention's budget. Additionally, the Convention's Secretariat has been entrusted with organising the activities and the set‐up of an internet site of the Forum (CONV 9/02; Schmuck (Citation2003), p. 164. Lenaerts and Desomer (Citation2002), p. 1238. This holds true even after some governments replaced their representative by foreign ministers (France, Germany, Greece, Slovenia, Latvia; see also the promotion of the Spanish representative to foreign minister), by the minister of Europe (Ireland) or other prominent figures (Netherlands). It goes without saying that this development, which started in July 2002, signalled the growing importance of the Convention in the eyes of the member states. Nonetheless, it did not change the polycentric composition of the Convention as such. Moreover, considering that foreign ministers were extremely involved in handling the crises in Iraq which resulted in "absenteeism and perfunctory appearances", the impact of the changes of the Convention's composition as such remains rather unclear (CitationNorman 2003, p.159). Shaw (2002), p. 12. Neither representatives from the national supreme courts nor from the European Court of Justice and the Court of First Instance were present in the Convention's proceedings although these institutions are objects of the Convention's deliberation. The same holds true for transnational party 'families' whose big groups (EPP, PES, ELDR and the Greens) held regular meetings providing an opportunity to exchange various ideas and preferences. Despite the fact that the party groups succeeded in producing joint contributions (e.g. CitationCONV 392/02; CitationCONV 761/03) the impact of the political families still remains unclear. For a slightly optimistic interpretation see Brown (Citation2003), p. 4; for a pessimistic one see Göler (Citation2003a), p. 8. European Council (Citation2001). See Art IV–7(2) Draft Treaty establishing a Constitution for Europe. European Council (Citation2001). See the three joint Franco‐German proposals presented by French Foreign Minister Dominique de Villepin and his German counterpart Joschka Fischer in the field of European security and defence policy (CONV 422/02), on an area of freedom, security and justice (CONV 435/02) and on Economic Governance (CONV 470/02). The role of the foreign minister as (sole) bearer of a contribution stemming from outside the Convention was even more evident in the case of the contribution by French President Jacques Chirac and German Chancellor Gerhard Schröder on the Union's institutional architecture (CONV 489/03). Similarly, the representatives of Belgium, the Netherlands and Luxembourg put forward a 'Memorandum of the Benelux: a balanced Institutional framework for an enlarged, more effective and more transparent Union' (CONV 457/02). See Art 6(4) Note on Working Methods (CONV 9/02). This does not mean that any representative was entitled to veto the final outcome, but that a 'significant' number of Convention members may have been able to prevent such a consensus. Interpreting what constitutes a consensus is up to the Praesidium which declares that a consensus has been reached. See Crum (Citation2004), p. 8. CitationEuropean Council (2001). Interestingly, the representatives of the then candidate countries had more or less the same status as the observers who were also allowed to be present in the plenary and the Working Groups, put forward proposals etc. For the rights of the observers see Art 3, 4, 6, 12, 13 and 15 Note on Working Methods (CONV 9/02). In political praxis, however, the chairmen tended to give a slight priority to full members over observers when allowing representatives to intervene. Dahl (Citation2000), p. 37. See also section 3.2.3 (Room for Manoeuvre). For a similar conclusion with regard to the drafting process of the Charter of Fundamental Rights see Maurer (Citation2003c), p. 180. Hoffmann (Citation2002), pp. 7–9; Føllesdal (Citation2002), p. 11. e.g. Matl (Citation2003). Göler (Citation2003), p. 27. EU Observer, 2 June 2003; 11 June 2003; Shaw (Citation2003), p. 14. Norman (Citation2003), p. 297 ff. Maurer (Citation2003a). According to Maurer, each member of the Convention participated on average in four online‐chats and thereby reached 270 citizens until March 2003. Maurer (Citation2003), p. 133 ff. Additionally, every member of the Convention took part in an average of sixteen public events a month. In stark contrast to the European Convention, the often cited Philadelphia Convention operated in total secrecy in order to ensure the tranquillity of the public and the freedom of speech of the single Conventionists. Lenaerts & Desomer (Citation2002), p. 1242. See http://www.europarl.eu.int/europe2004/index_en.htm (accessed 10 August 2004). Flash Eurobarometer (Citation2003). See http://www.europarl.eu.int/Europe2004/textes/verbatim_030710.htm (accessed 10 August 2004). Among the issues which may be debated in a possible next Convention are (a) election of the Convention presidency, (b) adoption of the rules of procedure (c) transparency and accountability of the Praesidium. See Art IV–7(2) Draft Treaty establishing a Constitution for Europe. e.g. de Witte (Citation2003). Additional informationNotes on contributorsJOHANNES POLLAK Footnote Correspondence Address: * Johannes Pollak, Austrian Academy of Sciences, A‐1040 Vienna, Prinz Eugen Strasse 8/2. Email: johannes.pollak@oeaw.ac.at
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