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The Intergovernmental Conference 2003/2004

Institutional questions

The composition of the European Parliament
The Council configurations and their presidency
Decision-making in the Council
The Legislative Council
The composition of the Commission
The role of the Minister for Foreign Affairs of the Union
The scope of qualified-majority voting and the bridging clauses


An examination of the final text adopted on 18 June 2004 reveals that the IGC essentially followed the proposals made by the Convention and confirmed its suggestions for renovating and clarifying the institutional framework.
A number of changes should nevertheless be pointed out.
The main provisions that the Convention proposed on the institutions were amended, especially the composition of the Commission , the voting arrangements in the Council , the scope of qualified-majority voting and the minimum number of members in the European Parliament .

THE COMPOSITION OF THE EUROPEAN PARLIAMENT

The Convention proposed that the total number of seats should be 736, four more than the number set by the Treaty of Nice . It also suggested an allocation rule under which the representation of citizens would be degressively proportional, with a minimum threshold of four members per Member State.

For the small Member States, the minimum threshold of seats in the European Parliament is a fundamental issue because it is directly linked to their demographic representativeness. That is why many of them were in favour of a higher minimum threshold than the one proposed by the members of the Convention.
An informal agreement took shape fairly quickly on an increase in the minimum threshold of seats. A proposal was made as early as the Naples conclave to raise the minimum threshold of members to five and to increase the number of members above 736. Although the discussions on these numbers were not highly controversial, they continued throughout the negotiations, and it was not until the European Council of 17 and 18 June 2004 that brought the IGC to a close that a compromise was found.

The IGC decided to increase the maximum number of members to 750. Each Member State will be entitled to a minimum of six and a maximum of 96 members.
As suggested by the Convention, the final number of members allocated to each Member State on the basis of degressive proportionality, will be decided by the European Council, acting unanimously, before the European elections of 2009.

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THE CONFIGURATIONS OF THE COUNCIL AND THEIR PRESIDENCY

The draft Constitutional Treaty foresaw that all the configurations of the Council of Ministers would be chaired by the representatives of the Member States under a system of equal rotation for a period of at least one year, apart from the presidency of the Foreign Affairs Council, which would continue to be chaired by the Minister for Foreign Affairs of the Union.
The Convention did not adopt the details of this system of rotation, but proposed that they be established by a European decision adopted unanimously by the European Council, taking account of the political and geographical balance and of the diversity of the Member States.

A consensus was soon reached on the general principle of rotation at the head of the Councils of Ministers and of a collective presidency.
However, there was considerable hesitation about the details of this system: there was considerable discussion under the Irish Presidency about the number of countries (three or four) and the duration (between six months and two years).

The IGC moved away from the Convention's proposals, opting for the principle of a presidency by a group of Member States for the various configurations of the Council (except for the Foreign Affairs Council, chaired by the Minister for Foreign Affairs).
The text of the Constitution nevertheless continues to foresee a system of equal rotation between the Member States, the details of which will be laid down by a decision of the European Council adopted by qualified majority. The IGC agreed a draft decision that will be adopted as soon as the Constitution enters into force and that foresees a system of team presidency, as follows: three Member States for a period of 18 months, allowing each Member State to chair all the configurations for a period of six months, with the assistance of the two other Member States and on the basis of a common programme. These two "vice-presidencies" would make it possible to ensure greater continuity of action of the presidency, which would become more collegial as a result.

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DECISION-MAKING IN THE COUNCIL

At the end of its work, the Convention proposed an entirely new system of qualified-majority voting that did away with the system currently in force (allocation of votes to the Member States and definition of a qualified-majority threshold). This proposal was designed to replace the current formula by a double majority system: 50% of the Member States and 60% of the population of the Union. The Convention foresaw that this new system would apply from 2009 onwards.

The definition of the qualified majority for decision-making in the Council was the most difficult question to resolve for the IGC, and it remained the major sticking point throughout the negotiations.
Certain States opposed the solution proposed by the Convention, especially Poland and Spain.
From the start of the negotiations, these two countries took a strong position in favour of the weighting of votes by country, as defined in Nice in 2000 . Neither of them wished to give up the advantages obtained at that time, for this gave them greater weight than their actual demographic size (27 votes, as opposed to 29 for the most populous countries).
The Italian Presidency was unable to make a concrete proposal by the end of its six-month period. However, it proposed several options, which were presented informally to the delegations:

- preservation of the system laid down by the Treaty of Nice;

- establishment of a rendez-vous clause;

- agreement on the principle of the double majority, but with modified thresholds;

- preservation of the Convention's proposal.

None of these options was acceptable to all States and, when the Irish Presidency took over, there was still complete disagreement.
The Irish Presidency took the view, after the March meeting of the European Council , that an agreement could be reached on the basis of the principle of the double majority.
As this principle had de facto been agreed, the percentages defining the majority still had to be set in such a way as to satisfy all the delegations.
This issue remained at the centre of discussions until the June European Council. The various thresholds were discussed again on an informal basis without a proposal from the Presidency. Very many suggestions were made: certain States wanted to see the same figure being used for the population and the States (e.g. 55/55 or 60/60), whereas others suggested that the gap between these figures should not be more than 10% more than those proposed by the Convention. Yet others wanted to include the following special clauses to facilitate a compromise:
- not counting abstentions as votes against;
- ensuring that a minimum number of States was needed to obtain a blocking majority, regardless of the size of their population;
- ensuring that a blocking minority represented at least 12-15% of the population;
- foreseeing a mechanism based on the Ioannina compromise, which allows for further negotiations where there is a very narrow majority.

On the eve of the June European Council , the Presidency published its proposals, based on thresholds of 55% of the Member States and 65% of the population. It also mentioned the possibility of including special clauses, especially concerning the minimum number of Member States for a blocking minority and the Ioannina clause. The proposal not to count abstentions as votes against was abandoned.
In the end, it was only after very intense debate between the Heads of State or Government that a consensus was reached.

As proposed by the Convention , the Council will decide, from 1 November 2009 onwards, on the basis of the double majority of Member States and populations, as the expression of the twofold legitimacy of the Union.
The principle of the double majority, on which considerable doubt was cast during the discussions, has thus been preserved, but at the cost of the adjustment of the thresholds and the introduction of greater complexity.
Accordingly, the IGC decided to raise the thresholds: the qualified majority is reached with 55% of the Member States representing 65% of the population. There are also two additions to these new thresholds that had not been suggested by the Convention:

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THE LEGISLATIVE COUNCIL

The draft Constitutional Treaty proposed a reorganisation of the work of the various configurations of the Council of Ministers , introducing two new configurations: the Legislative and General Affairs Council and the Foreign Affairs Council.
The establishment of the Legislative Council under the General Affairs Council was a major innovation that highlighted the legislative powers of the Council of Ministers.

Only two delegations were in favour of keeping a single Legislative Council, which meant that it was soon decided to abolish it.

One of the first compromises adopted by the Italian Presidency concerned the abolition of the single Legislative Council and the re-establishment of all the current specialised meetings of the Council. With this abolition, the text of the Constitution reverts to the situation that currently applies, whereby the legislative functions are distributed between each of the Council configurations. However, the text of the Constitution nevertheless took over the Convention's proposal to divide each of these meetings into a legislative part, to be open to the public and broadcast, and a non-legislative part, whose deliberations would take place behind closed doors.

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THE COMPOSITION OF THE COMMISSION

The Convention proposed a fairly original solution involving a college with fewer members (15) from 1 November 2009, to be supplemented by non-voting Commissioners from the Member States that had no national representative in the streamlined college. A system of equal rotation between the two groups of Commissioners was to be introduced.
Under this system, European Commissioners with and without voting rights were to work together without a clear definition of their respective tasks.

The Italian Presidency sought to clarify the role of the non-voting Commissioners through the questionnaire that it distributed to the delegations in October 2003 . In spite of the efforts to simplify this system, it proved to be too complex and was definitively abandoned by the Irish Presidency in favour of the system based on the Treaty of Nice, with one Commissioner per country.

In order to reach this compromise, it was necessary to overcome the differences between "large" and "small" countries. Thus, the least populous nations insisted on being represented in the Commission and supported the principle of one Commissioner per Member State. The same was true of the new Member States, which took the view that the Commission had to reflect the greater diversity of the enlarged European Union. The Commission had also made it clear that, in order to be effective and credible, it had to have one fully-fledged member per country.
The "large" Member States feared that they would find themselves in the minority in a Commission made up of one Commissioner per country. They also stressed that a Commission of 27 or more members would be hard to manage.

As soon as a "Nice-type" solution (keeping one Commissioner per Member State until a given date and then reduction in the size of the Commission) was informally adopted, the discussions concerned the date on which this changeover was to take place and the number of Commissioners in the streamlined Commission. Three options were discussed for the date of the changeover to a streamlined Commission: the Convention's proposal for an entry into force in 2009, a postponement until 2014 or the introduction of a "rendez-vous" clause. Several options were proposed for the number of Commissioners in the streamlined Commission: a reduction to 15 or 18 Commissioners or a reduction to two thirds of the number of Member States, a dynamic system making it possible for each Member State to be represented in two out of three Commissions.

Moreover, many delegations stressed the need not to lay down rigid rules in the Treaty covering all the details of the composition of the Commission.

The IGC decided that the Commission would be made up of one Commissioner from each Member State until 2014 (rather than 2009, as proposed by the Convention).
After that, the Commission will be streamlined and be made up of a number of Commissioners corresponding to two thirds of the number of Member States on the basis of a system of equitable rotation.
The European Council will be able to change this number by a unanimous decision.

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THE ROLE OF THE MINISTER FOR FOREIGN AFFAIRS OF THE UNION

The establishment of the post of Minister for Foreign Affairs is one of the main innovations introduced by the members of the Convention. They envisaged that this new figure would perform the functions that are currently the responsibility of the High Representative for the Common Foreign and Security Policy, "Mr CFSP", and the Commissioner for external relations. This Minister for Foreign Affairs would therefore be answerable to both the Commission and the Council.

The establishment of the function of the Minister for Foreign Affairs was discussed at some length in the IGC. Many delegations expressed doubts about the hybrid nature of this figure, who would come under both the Commission and the Council. Moreover, certain "small" countries were even reticent to entrust the presidency of the external relations Council to this new Minister, as suggested by the members of the Convention. Other Member States questioned the very term of "Minister", preferring the title of "secretary-general for foreign affairs".

These risks of a setback were all removed by the end of the Italian Presidency.
The role of the Minister was the subject of a questionnaire from the Presidency in October 2003 that was designed to clarify certain points: Will the Minister have the right to vote in areas that do not come within his sphere of responsibility? Does his status in the Commission mean that he is subject to the same rules on resignation as his colleagues?
The status of the Minister was gradually clarified, and the national delegations agreed to maintain this function in almost identical form.

The Italian Presidency made a second suggestion concerning the powers conferred on the future Minister for Foreign Affairs. It suggested introducing the possibility of qualified-majority voting whenever the Council acts on a proposal from the Minister for Foreign Affairs.

The major innovation of the establishment of a post of Minister for Foreign Affairs was kept. The IGC made no really significant change concerning this post. It made just one adjustment: if the European Parliament adopts a motion of censure against the whole Commission, the Minister will be given special treatment since he will have to "resign from the Commission" but could remain in the Council pending the formation of a new Commission.
In addition, given the opposition of certain delegations, the proposal from the Italian Presidency concerning qualified-majority voting was not accepted in the end.

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THE SCOPE OF QUALIFIED- MAJORITY VOTING AND THE BRIDGING CLAUSES

One of the most important innovations of the Convention concerns " the bridging clauses ", which allow the Council to decide, unanimously, to apply qualified-majority voting and/or the ordinary legislative procedure (co-decision) in a given area.
As far as the scope of qualified-majority voting is concerned, the members of the Convention proposed extending it to cover about twenty more provisions, especially in the area of justice and home affairs.

The Italian Presidency made the following proposal concerning the bridging clauses: the use of a bridging clause will not be possible if one of the national parliaments issues an objection (the "nihil obstat" formula). This proposal makes it more difficult to use the bridging clauses than in the Convention's solution, under which the national parliaments were only to be kept informed. This form of words was accepted in the end, despite the opposition of certain delegations, which asked for a higher number of national parliaments (one third) so that the vote of approval by the European Parliament would not be subject to the potential veto of just one parliament.

As regards the extension of qualified-majority voting beyond the proposals made by the Convention, a number of delegations were broadly in favour, whereas others definitely wanted to maintain unanimity in sensitive areas (taxation, external policy). Some of the Member States even suggested re-introducing the veto for social security and for criminal law, which was a step backwards in relation to the Convention's proposals. Accordingly, an "emergency brake" procedure was proposed in these two areas. It gave the members of the Council the possibility of suspending a procedure if "the fundamental principles of the legal or social security system of a Member State" were affected.

The Constitution reduced the effectiveness of the bridging clauses by introducing a new condition for their implementation: the possibility for just one national parliament to block the decision of the European Council and prevent the move to qualified-majority voting and/or the ordinary legislative procedure.

Apart from certain specific provisions, unanimity was kept in the area of taxation and, in part, in the areas of social policy and the CSFP. Moreover, the laws setting own resources and the financial perspective will be adopted unanimously.
In addition, the system of "emergency brakes" was kept in the area of judicial cooperation in criminal matters and the coordination of the social security of migrant workers. The IGC kept qualified-majority voting in these two areas but allows each Member State to request the organisation of a debate in the European Council.
New legal bases were introduced that will make it possible to apply qualified-majority voting to the principles and conditions for the operation of services of general interest, space policy, energy and humanitarian aid.

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