APPENDIX 4
Memorandum submitted by Professor Helen
Wallace
1. The new Intergovernmental Conference
(IGC) has been opened with a narrow, or "focused", agenda
of the so-called Amsterdam "left-overs". These comprise:
the composition of the college of Commissioners; the weighting
of votes in the Council of Ministers; and possible extensions
to qualified majority voting (QMV). This cluster of issues is
essentially all to do with the representation of member states
in the existing and enlarged European Union (EU). This agenda
does not address wider issues about the good governance of the
EU in terms of either its democratic performance or its effectiveness.
2. Some of the questions of good governance
do not require treaty reform, but rather sustained practical efforts,
in particular to improve the functioning of the Commission and
the Council. Public attention is more focused on the potential
for reforms to the Commission. The functioning of the Council
is less well understood by those outside, since the Council is
a more arcane and private institution, in spite of the efforts
made to improve its transparency. It can be argued with some justification
that the malfunctioning of the Council is just as much responsible
for some of the deficiencies in the workings of the EU as a whole
as are the problems within the Commission. Reforms to the Council
need to include an onslaught on the segmentation of the Council
into so many separate compositions and lines of responsibility.
These militate against "joined-up" government and make
for poor coordination of the Council's work. In addition the fact
that so much of the Council's decision-making actually takes place
below the level of ministers makes it hard to achieve visible
transparency and demonstrated accountability. The new impulses
to develop a Common European Security and Defence Policy (CESDP)
are welcome in their substance, but will make it even harder for
the General Affairs Council (of foreign ministers) to coordinate
on other areas of EU work. In addition it should be noted that
the explosion of new Council work is especially around the development
of the area of freedom, security and justice, often called justice
and home affairs (JHA), the province in the UK of the Home Office
and the Lord Chancellor's Department.
3. The Amsterdam "left-overs"
do little to address directly the issues relating to the functioning
of the Council. In so far as there is a bias in the declared focus
to the IGC agenda it is towards concentrating attention on the
role of member states in the system. This rather leaves it to
the member states themselves, or the current governments of the
member states, to shape the development of the process—for
good or for ill.
4. Some other issues may well creep on to
the IGC agenda. These could well include:
(i) extensions to the powers of the European
Parliament in tandem with any extensions to QMV in the Council
(a logical corollary of QMV);
(ii) practical reforms to the Court of Justice
and the Court of First Instance, to deal with the substantial
and increasing workload of litigation (a welcome development);
(iii) the results of efforts to develop the
new CESDP, including changes to the Western European Union, to
the extent that they might imply treaty modification;
(iv) a discussion of flexibility, or enhanced
co-operation' as an apparent means to enable a vanguard group
of member states to pursue new areas of policy co-operation, especially
in an enlarged EU; and
(v) potentially the Charter on Fundamental
Rights, should its drafting lead to heavyweight propositions for
treaty incorporation.
5. Of these (i) and (ii) are in themselves
fairly straightforward. Also (iii) could be a sensible way forward,
provided that discussions on institutional procedures do not get
in the way of the important discussion of substance, and provided
that recognition is given to the consequential workload for foreign
ministers. It becomes increasingly unrealistic to expect foreign
ministers to carry the load of co-ordination the rest of EU business,
and in any case there is a drift towards the European Council,
ie prime ministers, as primary co-ordinators. The two tricky issues
are those in (iv) and (v).
6. Do these reforms add up to a coherent
and productive way forward? Do they address some of the challenges
of improving the governance of the EU? Would they equip the EU
better to deal with the undoubted challenges of a much enlarged
membership? It is hard to answer any of these questions positively.
To situate this "not convinced" point of view in context,
a few remarks are needed on the current functioning of the institutions.
The college of Commissioners was not designed as an institution
to "represent" states, but as an institution to provide
collective and independent guidance on EU policy development and
management. The Council of Ministers does not explicitly vote
all that often. Implicit voting is much more the practice, as
a tool of building consensus and persuading individual governments
to consider the collective concerns of the EU as a whole. There
is simply no evidence for small member states ganging up on large
member states; coalitions are built on issues and approaches which
cut across the membership of the EU. As the British Government
now regularly notes, it is extremely unusual for the British Government
to be outvoted in the Council. There may well be a few areas where
QMV could be introduced to replace current unanimity provisions,
but there are only a very few where this is likely to be persuasively
advocated, though taxation issues represent a particularly controversial
example. Hence it is not evident that the Amsterdam left-overs
make for an agenda that addresses all that much of the working
reality of the EU institutions.
7. Indeed it can be argued that this declared
agenda might cause more problems than it resolves. Thus, for example,
the proposal to accept that each member state should have one
and "its" Commissioner risks distorting the role of
the Commission and pushing it towards being a body in some sense
"representative" of the member states, the core function
of the Council. This might well neither help the Commission to
reform itself into a high-quality collective agency nor facilitate
the work of the Council as the core representative body.
8. Similarly the proposed alterations to
voting weights in the Council (whichever of the various formulae
emerges as the favourite) might serve more to polarise views in
the Council than to facilitate constructive consensus-building.
It seems rather obvious that all member states need to be reassured
that the system works equitably and even-handedly, rather than
by the pressures of the larger countries to coral the smaller.
This issue becomes even more important as and when new countries
join the EU.
9. Thus as regards the composition of the
Commission and the reweighting of votes in the Council, it is
hard to conclude that these would add up to qualitative improvements
other than at the margins. And on some readings the "nationalisation"
of the Commission and a more polarised practice of vote-taking
in the Council could be harmful.
10. Possible extensions to QMV take us on
t different territory. There are relatively few areas of EU policy-making
that lend themselves to QMV, beyond those where QMV is already
the established rule. Disputed areas include taxation and parts
of the subject matter of the area of freedom, security and justice.
Both are tricky for the UK and concern areas where there are current
and/or recent examples of controversy. In both areas we should
note that some other governments also have inhibitions about QMV,
and hence that there is no reason to suppose that the British
need to be isolated. As a broad operating principle one might
commend that framework decisions on new policy areas remain subject
to unanimity, while in well-established areas QMV might be acceptable
for detailed policy implementation.
11. However, two different considerations
need to be brought into play. One concerns how far the EU agenda
should be loaded with new policy commitments at all, beyond those
currently in view. There are strong grounds for arguing that the
malfunctioning of both the Council and the Commission are the
result of overload in both institutions. In any event in a much
enlarged EU (whenever that occurs) the case will be even stronger
for not overloading the system while trying to incorporate successfully
new member states. The other consideration concerns the currently
expanding areas of EU policy. Most of these (EMU, CESDP, JHA and
the Lisbon agenda) are subjects that do not fall into the traditional
Commission-Council format of decision-making. On the contrary
they rely on the careful building up of new areas of expertise
and linkages for both institutions, whether to take on delicate
new functions (CESDP or JHA), or to take on the benchmarking role
envisaged for employment and social policies. In both of these
sets of domains, non-treaty reforms seem much more relevant than
treaty changes.
12. The poisoned chalice in the offing is
flexibility. This has two potential sets of difficult consequences,
quite apart from the evident difficulties in the Amsterdam, IGC
in finding formulae that could be made to work sensibly. One danger
is that flexibility becomes a vehicle for extensive opting out
of collective regimes by one government after another. Thus a
reform ostensibly designed to facilitate initiatives might turn
out to be the driver of a large wedge between the real insiders
and the rest. The UK has no interest in the development of mechanisms
that create first and second class member of the EU. The second
danger is that flexibility is used as a tool to deny the new member
states a real voice in the EU process. This is not a good basis
on which to accept new member states unaccustomed to the give-and-take
of constructive consensus-building. The much-quoted argument that
the central and east European countries will not be fully operational
members of the EU risks becoming in a counter-productive way a
self-fulfilling prophecy. Mechanisms of inclusion seem much more
important than mechanisms of exclusion. In this context the Commission
proposal that enhanced co-operation might be pursued with as few
as a third of the member states seems an improvident suggestion.
13. The discussion of the Charter on Fundamental
Rights is still at too early a stage for its shape to have become
clear. Given both developments in and vis-a"-vis Austria
and the envisaged arrival of central and east European member
states in the EU, we should expect a lively discusssion on ways
of embedding fundamental rights more thoroughly into the ET treaty
framework.
This subject therefore needs a more extended
discussion within the UK.
14. More generally as regards enlargement,
the Amsterdam left-overs do not provide a prescription for managing
better a much enlarged EU. Indeed it could be argued that some
versions of their potential consequences (eg on flexibility) might
work with the opposite effect. On the other hand, those who support
enlargement have no interest at this stage in a protracted institutional
debate around inappropriate and ill-thought out propositions.
Hence a very modest set of reforms this year is probably the least
worst outcome, and indeed it would be no disaster if some of the
Amsterdam left-overs continued to be left aside.
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