Pre-cooking the European Constitution? The role of government representatives in EU reform

ABSTRACT

This paper sheds light on an unexplored phase and a neglected actor in EU constitutional politics: the preparation of Treaty reform by the Group of Government Representatives. Striving to explain whether and under which conditions constitutional decisions in Europe were de facto taken by officials, the paper proceeds in three steps. First, possible functions of preparation in complex negotiations are conceptualized and two conditions for effective preparation are proposed: a preparatory body's issue and process resources as well as consensual pre-agreement. A second section introduces the role of government representatives in preparing EU reform, checks their collective resources against the criteria developed in section 1 and assesses their preparatory agency as strong. Third, I analyse the effectiveness of preparing for Amsterdam, using the negotiations on free movement and flexibility as plausibility probes. The analysis demonstrates that officials play a key role even in the bastion of high politics that is Treaty reform, where the final European Council is only the ‘tip’ of a long-term negotiation process.

Keywords:

• Flexibility
• free movement
• Group of Government Representatives
• Intergovernmental Conferences
• negotiation
• preparation

Acknowledgements

Harry Bauer, Adrienne Héritier, Gemma Mateo, Chris Reynolds, Helen Wallace, the two editors and an anonymous referee provided very helpful comments on an earlier version of this paper. I owe special thanks to Patricia Colot, Mark Gray and Véronique Warlop from the European Commission for their continuous support, to my interviewees for generously sharing their information with me, and to Philippe de Schoutheete for answering my numerous queries on Amsterdam.

Notes

1 Although negotiation theorists have studied ‘pre-negotiation’, they understand it as the phase of getting parties to the table prior to actually launching an international conference (Gross Stein 1989). Related research in European studies focused on agenda-setting and implementation rather than decision-making, on the leeway of supranational institutions, and on decision styles and role perceptions in COREPER and EU Committees.

2 The paper's scope disallows me to link my argument with the two related debates on socialization and principal–agent theory. Suffice it to say here that I am not trying to show that GoR members were socialized into a European identity, but how they used some of the conditions tested in socialization research – in particular frequent and repeated interaction – as resources for effective preparation. Neither does the paper explore the reasons for delegating preparation or potential ‘shirking’ or ‘slippage’ by the GoR: it only looks at how an encompassing collective mandate to prepare is fulfilled once delegation has taken place.

3 See Beach (2005) for a similar resource typology, Haas (1992) for a related argument on epistemic advice and Lewis (1998, 2000) for a discussion of familiarity in COREPER. The set of resources can also be linked with the ‘three cs’ (capacity, concern, contracting environment) developed in international relations to explain the effectiveness of regimes (Keohane et al. 1993).

4 Strictly speaking, the Convention would fall into the category of the RG, had it not been for its broad composition, political clout and public profile. The Convention's stronger role was not least reflected in the explicit decision against convening a representatives' group in 2003 for fear of unravelling the Convention's package (ND4 2006).

5 For reasons of data accessibility, my universe consists of the post-Maastricht IGCs. The 2003/04 IGC is, however, excluded as HSG delegated preparation to Foreign Ministers and to occasional meetings of ‘Focal Points’ (see note above).

6 A former chief negotiator from a ‘small’ member state, for instance, argued that ‘the size of a country matters more at European Council level than below. You don't contradict Helmut Kohl or John Major easily, or François Mitterrand. But I have no problem with contradicting my German or British colleague at my level’ (ND2 2006).