The unseen hand in treaty reform negotiations: the role and influence of the Council Secretariat

Abstract

The Council Secretariat is the unseen hand in treaty reform negotiations – highly influential but also overlooked. This article highlights the significance of this neglect, and more generally the problems with using crude either–or dichotomies on whether EU institutions matter. A leadership model is first developed that explains when we should expect EU institutions such as the Council Secretariat to matter vis-à-vis governments. It is hypothesized that the context of the specific negotiation and the leadership strategies employed by EU institutions determines their level of influence over treaty reform outcomes. The negotiation of the Treaties of Amsterdam and Nice are then investigated. It is found that even the most intergovernmental bargaining forum in the EU is not a purely intergovernmental affair. Evidence is produced that shows that the Council Secretariat has played an influential role in recent treaty reform negotiations. While the Secretariat played a more marginal role in the 2000 IGC, and had only moderate influence over outcomes, the Council Secretariat was very influential in the 1996–97 IGC owing to a combination of its high level of expertise, its reputation among governments of being a trusted assistant, its privileged institutional position, and its skilful use of pragmatic and behind-the-scenes instrumental leadership strategies.

Keywords:

• Council Secretariat
• EU institutions
• IGC leadership model
• treaty reform
• 1996–97 IGC
• 2000 IGC

Acknowledgments

The author would like to thank Thomas Christiansen, Ole Elgström, Finn Laursen, Jonas Tallberg, Adriaan Schout, William I. Zartman and two anonymous referees for insightful comments on previous versions of this article. Further, without the assistance of numerous EU and national civil servants, this research would not have been possible. Finally, I would like to thank Sammy Crawford for careful proofreading of the final draft of the article.

Notes

The official name of the Council Secretariat is the General Secretariat of the Council of the European Union.

A notable exception is Christiansen (2002)

See Eckstein (1975) for more on the use of a least likely case selection strategy.

Bargaining costs are here defined as both the transaction costs of the negotiations, and the information costs of acquiring information prior to or during a negotiation.

Moravcsik’s arguments here are more subtle, for he argues that the provision of entrepreneurship to solve potential collective action problems is cheap and easy relative to the gains of most forms of international co-operation. He then argues that we can therefore proceed as if bargaining costs were zero (Moravcsik 1999a, 1999b).

See Stubb (2002) on IGC negotiations. See Pollack (1997, 2003) for more on daily EU policy-making negotiations. For more on boundedly rational actors in international multilateral negotiations more generally, see Midgaard and Underdal (1977); Hampson with Hart (1995); Hopmann (1996); Simon (1997)

For the magnitude of the task, see the papers published by the European Parliament in the 1996–97 IGC. For example, European Parliament (1996a, 1996b). The author has found evidence supporting this contention in research conducted in foreign ministerial archives.

Moravcsik (1999a: 279) makes the point that actors with incentives to withhold information from one another would also have incentives to withhold it from an EU institutional actor. However, as will be seen below, the Secretariat is often used as a sounding board and confidant for member state positions and proposals in IGC negotiations. See below for more.

The distinction between perceived acceptability and excessive partiality is an invisible red line, but the effects of crossing this are often very evident.

Most prominently, Zartman (2002). See also the work by Garrett, Tsebelis, Pollack and Tallberg within the EU context.

Young terms this ‘entrepreneurial’ leadership. Other forms of leadership include structural leadership, which involves translating material leadership resources into influence.

See Lipsius (1995); Charlemagne (1994) for the Secretariat’s preferences in the 1996–97 IGC. See Piris (1999) for the 2000 IGC. See also Beach (2002); Christiansen (2002); Westlake (1999) for more.

Interviews with present and former Council Secretariat officials, Brussels, May 2001, January 2002 and February 2003.

Ibid.

One former Secretariat official in an interview appropriately called the Secretariat the Council ‘Negotiating’ Secretariat.

Interview with former Council Secretariat official, Copenhagen, January 2002; interviews with national civil servants, Brussels, May 2001 and April 2002, and London, February 2002.

Interview with former Council Secretariat official, January 2002.

Interview with former Council Secretariat official, January 2002; national civil servants, Brussels, May 2001 and April 2002, and London, February 2002.

They shared this role with the Commission in the Single European Act IGC, but have enjoyed a monopoly since (Christiansen 2002).

Interviews with two Council Secretariat Legal Services officials, Brussels, May 2001 and February 2003.

Based upon research undertaken in national foreign ministerial archives.

It must be noted that within the small/larger member state cleavage, there were also disagreements between France and Germany, and Belgium and the Netherlands regarding whether to maintain their parity of Council voting weights.

Letter from the Chairman of the Reflection Group to its members, Madrid, 23 May 1995, SN 2488/1/95 Rev 1.

See points 6 and 8 of the document.

Interview with Commission official, Brussels, April 2002.

CONF/3812/96. The Secretariat proposed a significant strengthening of the European Parliament by giving it a right of initiative, and also extending co- decision – reforms which would have weakened the institutional power of the Commission while maintaining the same level of power in the decision-making process for the Council of Ministers.

SN/639/96 (C 31).

Also interview with Council Secretariat official, Brussels, May 2001.

See the writings of the head of the Secretariat’s Legal Services, Jean-Claude Piris, under the pseudonym Lipsius (1995)

Based on interviews with officials in the Council Secretariat, Brussels, May 2001, and a national civil servant, Brussels, April 2002.

Interview with national civil servant, Brussels, May 2001.

Stubb goes so far as to say that the Council was not only an ‘advocate’ of flexibility, but also became the ‘judge’ of the form of flexibility embodied in the final Treaty (1998: 218).

See also joint Franco-German letter in December 1996 (Agence Europe, Europe Daily Bulletins, No. 6871, 11/12/96); and European Parliament (1996b: 27). According to Stubb, the member states favouring CFSP flexibility in November 1996 were Belgium, Finland, France, Germany, Italy, Luxembourg, the Netherlands and Spain.

See SN 639/96 (C 31), Article F quater TEU (Dispositions institutionnelles).

See, for instance, the suggested wording produced by the Secretariat in Note 27 of 26 April 1996, which states that the ‘most straightforward option’ is full legal personality (CONF/3827/96). Interview with two national civil servants, London, February and April 2002.

This advocacy led the Irish diplomat Bobby McDonagh in jest to present Piris with a T-shirt with the caption ‘The Legal Personality of the Union’ during the IGC. Interview with IGC participant, Brussels, May 2001.

Then numbered Article 113 of the EC Treaty.

Interview with national civil servant, London, February 2002; and Council Secretariat official, February 2003.

CONF 3912/97.

Interview with national civil servant, London, February 2002; and Council Secretariat official, February 2003.

Interviews with national civil servants who took part in the 2000 IGC, Brussels, May 2001 and April 2002.

Interviews with national civil servant, Brussels, May 2001 and April 2002; Commission official, Brussels, April 2002, national civil servant, London, February 2002.

Interview with national civil servant, Brussels, May 2001.

Interview with Commission official, Brussels, April 2002.

Interview with national civil servant, London, February 2002.

Interviews with national civil servants, Brussels, May 2001 and April 2002.

Interview with national civil servant, London, February 2002.

Article 181a EC was inserted into the Treaties, which gave a specific legal base to these policies coupled with QMV.

Interviews with national civil servant, Brussels, May 2001 and April 2002; and Commission official, Brussels, April 2002.

Schout and Vanhoonacker, forthcoming; Gray and Stubb (2001: 11); interviews with national civil servant, Brussels, May 2001 and April 2002.

Interviews with national civil servant, Brussels, May 2001 and April 2002; Commission official, Brussels, April 2002.

Interview with national civil servant, London, February 2002.

Interview with Commission official, Brussels, April 2002.

Interview with Commission official, Brussels, April 2002.

Interviews with national civil servants, London, February 2002; and Commission official, Brussels, April 2002.

Interviews with national civil servant, London, February 2002; and national civil servant, Brussels, May 2001 and April 2002.

Interviews with national civil servant, London, February 2002; and Commission official, Brussels, April 2002.

Interviews with national civil servant, Brussels, May 2001 and April 2002.

Interviews with national civil servant, London, February 2002; and national civil servant, Brussels, May 2001 and April 2002; Christiansen (2002: 48).

Interview with national civil servant, London, February 2002.

Interviews with national civil servant, Brussels, May 2001 and April 2002; Gray and Stubb (2001: 21). The Secretariat also perhaps had an interest in this outcome, as keeping summits in Brussels also allows the Secretariat to work on its home turf. The author thanks Thomas Christiansen for this point.

Interview with Commission official, Brussels, April 2002.

See e.g. Moravcsik (1998, 1999a, 1999b) ; Stone Sweet and Sandholtz (1998)

The idea of framework decisions was from Secretariat. Interview with Council Secretariat official, Brussels, May 2001.

Interview with national civil servant, Brussels, April 2002.

The Council Secretariat wrote the subsidiarity protocol without significant input from national delegates. Interview with Council Secretariat official, Brussels, May 2001.

Pushed for legal personality for Union despite opposition from France and the UK. Interviews with national civil servants, London, February and April 2002.

Interview with national civil servant, Brussels, April 2002.

Ibid.

Ibid.

The Council Secretariat was opposed to incorporation. Interview with national civil servant, London, April 2002.

Interview with national civil servant, Brussels, April 2002.

Brokered compromise between French and British positions, upgrading the post of Secretary-General of the Council Secretariat to be also the High Representative (interview with national civil servant, Brussels, May 2001).

Interview with national civil servant, Brussels, April 2002.

Ibid.

Interview with national civil servant, Brussels, April 2002.

Brokered compromise that no other actor except the Commission could have drafted, and in a situation where the alternative was no agreement. Interviews with Council Secretariat official, Brussels, May 2001; national civil servant, London, February 2002; Commission official, Brussels, February 2003.

Wrote lists of potential areas to be transferred to QMV and manipulated the numbers of articles. Interview with national civil servant, Brussels, April 2002.

Head of Legal Services wrote protocol on institutional change in the Amsterdam Summit. Interview with national civil servant, Brussels, April 2002.

The Council Secretariat drafted a non-paper (SN 639/96) that shaped the outcome on: conditions for its application; flexibility not applicable in the CFSP; and financial provisions (Stubb 1998: 199–200, 218–19; European Parliament 1996b).

Put forward proposal that was accepted as is by member states. Interview with Commission official, Brussels, April 2002; national civil servant, London, February 2002.

Interviews with national civil servant, Brussels, April 2002; Commission official, Brussels, April 2002.

Interviews with two national civil servants, Brussels, April 2002; Commission official, Brussels, April 2002.

Ibid.

Succeeded in getting Portuguese Presidency to take up issue in situation where no member state was pushing for it. Only one new legal base created, though. Interviews with national civil servants, London, February 2002, and Brussels, May 2001 and April 2002.

Interviews with national civil servant, Brussels, April 2002; Commission official, Brussels, April 2002.

Interviews with national civil servant, Brussels, April 2002; Commission official, Brussels, April 2002.

Secretariat put forward suggestively worded issue brief (SN 3068/00) which had no impact upon outcomes.

Secretariat wrote all the draft articles, often with little input from the French Presidency – Secretariat filled in the details, while also ensuring that a deal was reached by ‘ring fencing’ core areas of the acquis. Influential in sections on criteria and threshold for use, and voting. Interviews with Commission official, Brussels, April 2002; national civil servant, London, February 2002; Galloway (2001: 134); Schout and Vanhoonacker, forthcoming

Deputy Secretary-General wrote declaration on the venue at Nice Summit. Interview with national civil servant, London, February 2002.

Interviews with national civil servant, Brussels, April 2002; Commission official, Brussels, April 2002.

Assisted and advised the French Presidency in keeping issue open until the IGC end-game – blocking the emerging consensus around the Commission’s simple dual majority proposal. Interviews with national civil servants, London, February 2002, and Brussels, May 2001 and April 2002.

Interviews with national civil servant, Brussels, April 2002; Commission official, Brussels, April 2002.

Attempted to maximize the number of articles while taking account of national sensitivities; Galloway (2001: 101–11); Gray and Stubb (2001: 12); interview with Commission official, Brussels, April 2002.

Secretariat provided legal formula for Art. 133(6) EC which arguably no other actor other than the Commission could have provided in the Nice Summit – enabled France, Denmark and Greece to accept changes to common trade policy. Interview with national civil servant, London, February 2002; Galloway (2001: 106–9).