The European Convention: Bargaining in the Shadow of Rhetoric

Abstract

The European Convention on the Future of Europe was initially presented as a turning point in the history of European integration. This article argues that, although its composition was broader, its process more transparent and its rules more flexible than classic intergovernmental conferences, the Convention was not Europe's Philadelphia. Since it took place under the shadow of the IGC and under a leadership especially sensitive to the positions of big member states, the Convention reproduced, by extension, the logic of intergovernmental bargains. Nevertheless, some of the Convention's outcome – the most formal aspects of its draft treaty with less predictable distributional consequences – can be explained by the ‘social norm’ of constitutional deliberation conveyed by its president and supported by a majority of its members.

Notes

This was the leitmotiv of the discourses made during the Convention's inaugural session, on 28 February 2002. This argument was echoed in many editorials in the next days.

• Although two members of the EP had been nominated as members of the ‘Westendorp group’ which prepared the negotiation of the 1996–97 IGC. The MEPs themselves acknowledged that this minimal form of participation did not give them the opportunity to influence the outcome, since this group only identified ‘questions’ and ‘options’ and all decisions were left to the IGC.

• In 1994, before the former enlargement, some MEPs had also suggested the EP should threaten to refuse its ‘assent’ to the treaty changes to force the governments to adopt the reforms they advocated (Bourlanges-Dury report 1994), but they could not form a majority within their own assembly. Their threats were thus far from credible.

Research on previous treaty changes conclude that the influence of the Commission and of the EP on IGCs simply cannot be demonstrated. See (Pollack 1997). For undemonstrated hypothesis about the role of ideas and institutions, see the special issue of the Journal of European Public Policy 9/1 (2002).

Apart from the weight of an implicit constitutional doctrine which states that charters of rights should be written by representative assemblies, not by diplomats, this point was also built on the fact that, in 1989, the EP had adopted a ‘declaration of EU rights’ and launched the debate on the codification of these rights, until then only present in the Court's jurisprudence.

The support for the participation of national parliamentarians in EU politics had been very broad in France since the early 1990s, ranging from the left to the right and as strong in the two heads of the executive as in the Parliament. This can be seen as a projection of France's own constitutional model (where the Senate indirectly represents the sub-units). On this issue, see Costa and Latek 2001.

These concessions were, on the one hand, a definition of ‘social rights’ as principles rather than fully justiciable rights, and on the other hand the so-called ‘horizontal clause’ defining the scope of this charter's legal validity and designed to avoid the extension of EU competences through jurisprudence about rights.

Jospin's speech on the future of the EU in May 2001 only came after a long period of hesitation and was generally interpreted as a ‘Euro-shy’ or even Eurosceptic vision in the French press. However his party was generally more pro-European than him and largely supported the constitutional prospect.

Treaty of Nice, Declaration 23.

Interview with Louis Michel, Belgian Minister for Foreign Affairs, 29 May 2001.

In a speech before the EP in July 2001, M. Verhofstadt refused to associate himself with the most enthusiastic claims for a new constitutional convention made by MEPs. In the same period, he gave interviews to the international press where he argued that he favoured a ‘third way’ between federalism and intergovernmentalism, and he met Tony Blair several times.

This term was used in Coreper circles in the months leading to Laeken to refer not only to the status of potential Convention output, but to the length of time to elapse between it and an IGC, etc.

On 21 September 2001, at the Extraordinary European Council of Brussels, Louis Michel clearly mentioned some governments’ reluctance: ‘Le résultat de la Convention sera présenté sous forme d'options, ce qui devrait rassurer tous ceux qui redoutent de se voir forcer la main’, adding ‘S'il ne dépendait que de moi, on irait encore beaucoup plus loin, croyez-moi, que des propositions.’ (The outcome of the Convention will be presented as options, which should reassure all those who fear to be coerced into acquiescence. If it were up to me, we'd go much further, believe me, than these propositions’.)

Oct. 2001, declaration after the informal European Council in Gent.

Verhofstadt indicated this immediately after having announced the agreement on the Convention, in Gent in October 2001, in a discussion with MEPs: ‘Er is dus een discussie ontstaan over de vraag of dat nu een consensustekst is dan wel een tekst met opties. Het antwoord is zeer eenvoudig. Dat zal alleszins mijn antwoord zijn binnen enkele weken als wij in Laken samen zijn. … Is er geen consensus in de schoot van de conventie, dan vind ik uiteraard dat de opties moeten worden weergegeven. Niet op een neutrale manier, maar wel op een manier waarbij duidelijk wordt aangegeven wat de meerderheidopties zijn, wat de minderheidsopties zijn, wat eventueel de individuele optie is van eén lid van de conventie.’ (We will, thus, have a discussion on whether this is now a consensus text rather than a text with options. The answer is very simple. This will be my answer in a few weeks when we will be together in Laeken … If there is no consensus within the Convention, then I find it natural that the options must be expressed. Not in a neutral fashion, but in a fashion through which it can be understood clearly what the majority options are, what the minority options are, what, should the occasion arise, the individual options of a member of the Convention are.)

The Laeken declaration states that ‘The Convention will consider the various issues. It 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.’

This text, prepared by two academics (Franklin Dehousse and Koen Lenaerts, the latter also being, at that time, the Belgian member of the Court of first instance) had been discussed by a ‘Wise committee’ composed of Giuliano Amato, Jean-Luc Dehaene, Jacques Delors, Bronislaw Geremek and David Miliband. Mr Verhofstadt insisted that the mandate should be as open as possible and ‘without taboo’ and he hoped the support of this prestigious and multinational group would give additional authority to the Belgian presidency's proposal.

Chirac's choice was driven in part because he thought the second Convention had to be chaired by a French person, since the first Convention had been chaired by a German and in part because he hoped Giscard would not interfere in the French presidential election after having been nominated. The five countries opposing him supported the candidature of a more ‘federalist’ leader, like Dehaene, Delors or Amato. Others criticised the choice of Giscard, without supporting another candidate (Sweden, Denmark). The Belgian presidency had hoped that the Convention would be chaired by one of the members of its ‘Laeken men’ group but instead proposed the final compromise in light of the deadlock at Laeken: Giuliano Amato and Jean-Luc Dehaene – members of that group and supported by the small countries – would be nominated as vice-presidents.

One could argue that, in the European Convention as in most other forums of negotiation, the actors were not equal, so that other forms of negotiation based on an asymmetrical distribution of resources – such as intimidation, cunning and manipulation – could be used too. We believe this is true, but Elster's condition of equality should not be understood in strict terms: in this body, as in many other modern forums, the ‘social norm’ of civility limited the resort to these behaviours.

Since all the member states had been given the same number of seats and, in the absence of a system of weighting votes, a majority could have represented a very small minority of European population. Moreover, the mixed composition of the body rendered a system of weighted votes impossible. Hence the rule, laid down by the Laeken declaration, according to which the final decision had to be taken by ‘consensus’. Giscard never really clarified this rule, only stating that ‘consensus does not mean unanimity’. Most conventioneers understood that a consensus would be reached if the final draft was accepted without major opposition in each of the components. In June 2003, the draft treaty was considered as adopted ‘by consensus’, despite the opposition of a group of 13 conventioneers and alternates who issued a ‘minority report’, and despite the explicit reservations of at least four government representatives (Spain, Poland, Austria, Portugal).

In most states, one of the two national parliamentarians was drawn from the opposition. But this does not mean that they did not defend national interests. The British Conservative MPs, for example, were more critical than the representatives of the government, and this helped them play on the ‘domestic’ constraint.

The change in the EP's attitude, which softened its traditional hostility towards the involvement of national parliaments in the EU game in their last report on this subject (Napolitano report 2002) influenced the position of the countries which traditionally support the EP – such as the Benelux, Germany and pre-Berlusconi Italy. But this shift of preference was already observable before the Convention.

In the past, issues strongly supported and opposed by approximately equal coalitions, always led to non-decisions. Although as we will discuss below, ‘constitutional deliberation’ is supposed to overcome divisions about values as actors engage into mutual persuasion – contrary to bargains, which are supposed to leave the initial preferences unaffected, there are cases where even ‘conventioneers’ can only agree to disagree. See (Holmes 1988) and (Sunstein 2001).

The preamble of the draft treaty mentions ‘the cultural, religious and humanist inheritance of Europe’ but this is a modest concession to those who required a much more explicit reference to Christianity.

On this negotiation, see Magnette and Nicolaïdis 2003.

Peter Hain, Interview in the European Affairs Committee of the House of Commons, 25 March 2003.

The reason why they will make concessions in this case is obvious. In some instances, they make concessions on some points because they believe, on the whole, their gains are superior to their losses. But even in the absence of such an incentive, they can be induced to make concessions: as the possibility to leave the EU is very limited, and as they need to preserve their reputation to remain efficient in later negotiations, the governments have no other choice.

The ‘horizontal clauses’ defining the scope of the Charter and making clear that it only applies to EU law and institutions, and cannot be used to expand EU competences, were redefined. Moreover, the ‘Commentary’ of the Charter written by the Presidium of the first Convention, initially considered as deprived of legal force, was mentioned in the treaty; this was seen as a means to narrow the scope of interpretation by the Court. Although several members denounced this concession, seen as a legal heresy because a text written by a non-deliberative body will be imposed upon the Court, they accepted it, making clear that they saw this as ‘the price to be paid to get the Charter in the treaty’.

The Nice treaty adapted the former system of weighting votes to the enlarged EU. But the need to take into account the difference of population of the states made the system very complex, with nine categories of states and a majority defined by a threshold of 255 on 345 votes. This is the reason why a large majority supported the idea that this system should be replaced by a simpler ‘double majority’, meaning a majority of states representing at least three-fifths of the population.

While confirming it accepted the final draft, the representative of the Spanish government confirmed they still disagreed with this point. After the end of the Convention, the Spanish Prime Minister Jose Maria Aznar repeated in the press that he intended to renegotiate this point under the IGC. He maintained this position until the end of the Italian presidency, contributing to the failure of the Brussels Summit on 12 December 2003, as France and Germany were not ready to renegotiate this aspect of the draft treaty.

This argument was often used to reject Giscard's idea of creating a ‘Congress’. It also served against other suggestions made to strengthen the role of national parliaments, as for example on the question of the control of subsidiarity. The same argument was often raised when the reform of the presidency of the Union was discussed, in order to avoid the creation of a new President of the European Council. See notably Miko Kiljunen (Finnish socialist MP), Plenary session, 24 April 2003.

CONV 162/02, 24 July 2002, p.2.

CONV 50/02, 15 May 2002, pp.2–3.

A Eurosceptic member like the Conservative MP David Heathcoat-Amory used it to require less integration: ‘the acquis communautaire must be included in any simplification drive. It is no good again promising simpler measures for the future unless we tackle the complexity of the past at the same time’ (Plenary session, 12 Sept. 2002), while the federalist French MEP Alain Lamassoure used the same label to promote more integration: ‘Il s'agit d'une proposition qui est inspirée par cette volonté de simplicité qui nous a animée et qui devrait, en dépit d'une apparence paradoxale, être de caractère consensuel. Il s'agit de supprimer totalement la procédure de l'unanimité’ (Plenary session, 5 Dec. 2002).

The fact that the Presidium did not include all the member states (five were missing) somewhat diminished the legitimacy derived from representativeness. There was also some scepticism as to what ‘hat’ Presidium members actually wore: was Gisela Stuart representing the EP or the British, or Michel Barnier representing the Commission or the French?

At the time of writing (December 2003), the Irish presidency had still not announced its plan concerning the negotiation on the Convention's draft treaty.

To be realistic, contrary to other recent constitutional debates such as that of South Africa or in East and Central Europe, very few actually witnessed the proceedings directly, except for students and the media in the salle d'ecoute or the aficionados listening in on the webcast.