EU: The EU Constitutional Convention: Will the Sinners Repent?
01 May 2002
Since the end of February, a (constitutional) Convention has been meeting regularly under the chairmanship of former President Giscard d’Estaing of France to consider the future of the EU. This would seem an ideal opportunity to consider the problems with the legitimacy, transparency, democratic and judicial control and human rights obligations of the EU, particularly as regards Justice and Home Affairs (JHA) matters. But the obvious problem is that national executives and the Council Secretariat that services them benefit from the lack of transparency and democratic scrutiny wihin the EU system. To what extent do they show signs of willingness to change their ways?
Background
The Convention is composed of delegates from the Commission, each current Member State’s executive, the European Parliament (EP) and all Member States’ national parliaments (including the national parliaments of all candidate Member States). It is due to meet until spring 2003 and then present its results to an EU summit meeting. Subsequently a new Intergovernmental Conference (IGC) will meet in 2003 and/or 2004 to consider amendments to the EU Treaties, to conclude before the next EP elections in spring 2004. This IGC will follow the official procedure for such IGCs, which essentially places all decision-making power in the hands of representatives of Member States, with considerable de facto participation of the Council Secretariat and Legal Service. But the IGC will doubtless take considerable account of the results of the Convention. So in principle it seems that the future of the EU will be influenced by a modestly wider range of participants than in the past, as it largely comprises people from the national and European Parliaments, as compared to the total domination of IGCs by national executives.
While the structure of the Convention is based on the previous Convention that met from 1999-2000 to draw up the “EU Charter on Fundamental Rights”, which was subsequently approved unamended by the EU institutions, it differs from the prior Convention in having participation from the candidate countries, a more distant attitude to civil society (see further below), a bigger and stronger Presidium and detailed rules of procedure, including the extensive use of working groups. Also it seems that Member States are paying greater attention to the workings of the Convention this time.
Originally, the next IGC was due to consider answers to four questions set out in a Declaration to the last Treaty amending the EU and EC Treaties, the Treaty of Nice, which has not yet been ratified. These questions concerned: the status of the EU Charter of Fundamental Rights; the role of national parliaments; a clearer division of powers between the EU and its Member States, including the principle of ’subsidiarity’ (taking decisions at the most optimal level within the EU); and the simplification of the treaties. Subsequently, the EU summit in Laeken in December 2001 adopted a “Laeken Declaration” which both established the Convention and set out a more detailed list of questions to consider.
At the moment it seems that the Convention is likely to conclude next spring by reaching as much agreement as possible on a relatively short “constitutional Treaty” including all the basic rules on the composition and functioning of the EU institutions, the division of power between the EU and its Member States, EU decision-making processes and the role of human rights in EU law. In principle this should be reached by consensus but this requirement may be fudged by not taking a formal vote or by presenting “options” on all or (more likely) some issues. A draft of this Treaty will likely be presented to spark discussions in late 2002.
The Convention to date
To date the Convention has held a number of plenary meetings examining the basic questions concerning the foundation of the EU and six working groups were set up this spring to report back this a