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The Intergovernmental Conference 2003/2004

Negotiations under the Italian Presidency

Preparatory phase

The participants
The method of work
The role of legal experts

Opening procedure

Opinion of the Commission
Opinion of the European Central Bank
Resolution of the European Parliament
Opinion of the Committee of the Regions
Opinion of the European Economic and Social Committee
The Council's decision to open the conference

Meeting in Rome: the formal opening of negotiations

The first ministerial meeting
The second ministerial meeting
The Brussels European Council, October 2003
The third ministerial meeting
The fourth ministerial meeting
The fifth ministerial meeting: the Naples "conclave"
The call for a compromise
The sixth ministerial meeting
The Brussels European Council

On 18 July 2003 in Rome, the Chairman of the European Convention, Valéry Giscard d'Estaing, presented the "draft Treaty establishing a Constitution for Europe" to the Italian Presidency of the European Union (EU). In order to complete the EU's reform process, it was now necessary to formally open a Conference of representatives of the governments of the Member States, the "Intergovernmental Conference" (IGC).

The IGC was officially convened on 4 October 2003 at the meeting of Heads of State or Government in Rome. On the basis of the Convention's conclusions, negotiations between the Member States were conducted under the Italian Presidency by the Ministers of Foreign Affairs at six working meetings. The Heads of State or Government met at the opening of the Intergovernmental Conference in Rome and at the European Councils in October and December.

The IGC restricted itself to the most basic issues and therefore avoided having to renegotiate the entire text proposed by the Convention. While negotiations were initially to have been completed at the European Council in December under the Italian Presidency, disagreements between Member States, in particular over the future voting system in the Council, meant that it was not possible to reach a consensus at that stage. The European Council therefore requested the Irish Presidency to continue consultations.

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Article 48 of the Treaty on European Union (EU Treaty) provides that the Commission or any Member State may submit to the Council proposals for the amendment of the Treaties on which the Union is founded. The Article also describes the procedure to be followed: after consulting the European Parliament (EP), the Commission and, where appropriate, the European Central Bank (ECB), the Council must deliver an opinion in favour of convening an IGC. The Conference is then formally convened by the President of the Council.

The Chairman of the Convention had presented the draft Constitutional Treaty to the European Council in Thessaloniki on 20 June 2003, which had considered it to be a "good basis for initiating" the ICG. Seeking to gain from the positive impetus provided by the Convention, and despite the reservations expressed by some countries wishing to be given more time to examine the draft Constitution, the European Council asked the Italian Presidency to launch the procedure set out in Article 48 of the EU Treaty.

On 1 July 2003, therefore, the Italian Presidency made a formal request to the Council that the IGC be convened. As recommended at the Thessaloniki European Council, the Presidency pointed out that it intended to conclude negotiations in December 2003 so that the new Treaty could be signed as soon as possible after 1 May 2004 (date of enlargement to 10 new Member States), but before the European elections of June 2004.

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The participants

With regard to the organisation of work, this IGC was different from the previous ones. Given the length of the preparatory work carried out by the Convention, it was held only at the highest policy level, i.e. by Heads of State or Government, assisted by their Ministers of Foreign Affairs. In contrast to previous IGCs which led to the Treaties of Maastricht, Amsterdam and Nice , no meeting of government representatives or civil servants was planned initially.

At ministerial level, two representatives of the Commission, Commissioner Michel Barnier, then, following his departure from the Commission, his colleague António Vitorino, participated in the work. The European Parliament was fully involved in the work through its two representatives: MEPs Klaus Hänsch and Iñigo Méndez de Vigo (replaced by his colleague Elmar Brok in November). All three were active members of the European Convention.

At Head of State or Government level, the Commission was represented by the President of the Commission himself, Romano Prodi, and the European Parliament by its President, Pat Cox.

The acceding countries participated fully in the negotiations, the Treaty of Accession having been signed well before the launch of the IGC. The term "Member States" used in this summary also refers to the ten countries acceding at that time. The governments of the three candidate countries, Bulgaria, Romania and Turkey, were able to take part in the IGC as observers.

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The method of work

During the summer, the Member States examined the Convention's proposals, the final outcome being presented to the Italian Presidency in Rome on 18 July. It then became clear that some points would be problematic for one or more Member States and that they would have to be discussed again during the IGC.

In order to facilitate work and channel the flow of information, the Member States appointed contact points ("focal points"). These civil servants, who played mainly an administrative role, proved to be vital to the smooth running of the negotiations.

In order to be better prepared for discussions at ministerial level, the Presidency sent a series of questionnaires to the delegations before the official opening of the IGC, summarising the Convention's proposals and setting out the wishes of the national delegations.

The replies to document CIG 9/03 (Documents CIG 10/03 to CIG 35/03) can be found under the heading Documents from delegations on the IGC website.

A third questionnaire concerning the Commission and the future Minister of Foreign Affairs was sent before the second ministerial meeting .

Throughout the negotiations, the Presidency remained in close contact with the delegations and organised bilateral meetings virtually non-stop. At policy level, the President of the European Council, the Italian Prime Minister Silvio Berlusconi, and the President of the Council, the Italian Minister for Foreign Affairs Franco Frattini, met their European counterparts outside official meetings, notably during a "tour of capitals".

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The role of legal experts

The legal and linguistic aspects of the draft Constitutional Treaty prepared by the Convention still required thorough examination to ensure that there were no omissions or ambiguities which might present a legal risk. Since these aspects were not strictly related to policy, the Presidency decided to call upon the services of a group of legal experts, chaired by Mr Piris, Director-General of the Council Legal Service. The working party comprised representatives from the Member States, the Commission and Parliament and observers from the three candidate countries.

The Working Party of Legal Experts began by re-reading the draft Constitution on the basis of a document drawn up by the Council Legal Service, which included the full text of the Convention, plus legal comments and observations.

The Working Party also examined the provisions of the Accession Treaties amending the existing Treaties after each enlargement, in order to identify the provisions which should be retained and those which had become obsolete in the meantime (transitory measures, etc.). Similar work was carried out on the protocols and declarations annexed to the Treaties during previous IGCs.

Some of the points raised by the delegations during the negotiations required legal and technical clarification. For this reason, on 4 November, the Presidency proposed that the terms of reference of the Working Party of Legal Experts be extended so that drafting problems not related to policy could be clarified and progress would be more rapid.

At the end of November, the Working Party presented its results in document CIG 50/03. This contained the draft Constitutional Treaty after examination of purely editorial and legal aspects. It served as a basis for the IGC negotiations. Addendum 1 was produced after examining the protocols and annexes to existing Treaties and the protocols drawn up by the Convention.

The Working Party continued its work and in 2004 published two addenda concerning amendments made by the Treaties of Accession and Declarations. Corrigenda were added to these documents. All the documents are available on the IGC website .

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Opinion of the Commission

On 17 September 2003, the Commission formally delivered its opinion concerning the convening of the IGC. It welcomed the result of the Convention, which it considered should constitute "the basis for the work of the IGC", whose task should therefore be to "improve, clarify and finalise the draft Constitution". However, the Commission made several suggestions concerning a limited number of points which could be improved.

These points related in particular to new proposals concerning the size and composition of the Commission, the extension of the scope to which qualified majority voting should apply, simplification of the procedure for amending the future Constitution, in particular the provisions concerning EU policies and the coordination of economic policies, in particular for countries in the euro-zone.

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Opinion of the European Central Bank

Pursuant to Article 48 of the TEU, the ECB must be consulted if the Convention proposes changes in the field of monetary policy. With its opinion, the ECB approved the Convention's proposals and proposed several amendments, including a reference to price stability as one of the Union's objectives and the specific reference in the text of the Constitution to the independence of national central banks.

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Resolution of the European Parliament

On 24 September, the European Parliament adopted a resolution constituting its formal opinion prior to convening the IGC. It acknowledged the effectiveness of the method of amending the Treaties through the Convention and called on the IGC to approve the draft without altering the basic balance of the Convention's proposal. Although the Parliament was not satisfied with all the details, it did not wish to see it called into question.

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Opinion of the Committee of the Regions

Acting on its own initiative, the Committee of the Regions adopted proposals aimed inter alia at consolidating the progress made in the draft Constitution with respect to the constitutional recognition of the EU's local and regional dimension.

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Opinion of the European Economic and Social Committee

Acting on its own initiative, the European Economic and Social Committee adopted a position at its meeting of 24 and 25 September on the negotiations within the IGC. The Committee supported the general balance of the draft Constitutional Treaty, but recommended that those taking part in the IGC detail and clarify certain points in such a way as to increase the trust and involvement of the general public and civil society organisations.

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The Council's decision to open the Conference

Following the favourable opinions of the Commission, the European Central Bank and the European Parliament regarding the convening of the IGC, the General Affairs Council gave the official go-ahead for the IGC at its meeting on 29 September 2003. The date of the first meeting was scheduled for 4 October 2003 in Rome. It was also decided at that meeting that the Parliament would be involved in the work.

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The Heads of State or Government met in Rome, where the founding Treaties were signed, for the official opening of the Conference. A general policy discussion and exchange of views on the negotiations took place at that meeting. In addition, the final procedural matters relating to the IGC were adopted.

In a declaration entitled the "Declaration of Rome", they reaffirmed the importance of the process of integration and the need to adopt a constitutional text which represented a vital step in the process aimed at "making Europe more cohesive, more transparent and democratic, more efficient and closer to its citizens."

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The first ministerial meeting - 4 October 2003

The opening of negotiations by the Heads of State or Government was followed by the first working meeting of Foreign Affairs Ministers. The Presidency produced a document containing replies from the delegations to the questionnaires on the Legislative Council , the formations of the Council and its Presidency. It served as a basis for the discussions at the first meeting. The Presidency noted that the majority of delegations had been opposed to a Legislative Council. With regard to the formations of the Council, the Presidency put forward several options for a possible compromise.

On the basis of these discussions, the Presidency published a few days later specific proposals concerning the Presidency of the Council and its various formations. It contained the following proposals: abandonment of the Legislative Council and a proposal for a Protocol containing the basic provisions on the organisation of the Council Presidency.

After the meeting on 4 October, the Presidency also published the IGC indicative timetable. This also included an invitation to delegations to submit, before 20 October, any non-institutional questions they wished to be raised at the IGC. However, the Presidency called upon delegations to have a degree of self-discipline in order to limit the number of these issues to the strict minimum.

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The second ministerial meeting - 14 October 2003

Prior to the second meeting of the IGC, the Italian Presidency had sent delegations a new questionnaire concerning the Commission and the future Minister of Foreign Affairs.

Some Member States wished to amend the Convention's proposals relating to the Commission. The Italian Presidency attempted to evaluate the possibility of reaching a compromise by addressing a series of specific questions to the delegations.

It was also necessary to clarify the status of Minister for Foreign Affairs . On the basis of document CIG 2/03 which was distributed before the opening of the IGC, the Presidency had raised questions concerning the status of this Minister within the two institutions ("double-hat"), in particular with regard to the principle of collegiality existing within the Commission.

In addition to these two topics, the discussion which had begun on 4 October on the rotating presidencies of the Council's formations was also resumed at the Conference. In order to prepare for the European Council of 16 and 17 October in Brussels, the Ministers dealt with other institutional questions, including the composition of the European Parliament, the European Council and its President and the contentious issue of the definition of qualified majority. The working dinner was devoted to issues relating to defence, in particular structured cooperation and the solidarity clause.

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The Brussels European Council - 16 and 17 October 2003

The European Council meeting was organised into two parts: the first dealing with the IGC and the second with European Council dossiers. During the first afternoon, the Heads of State or Government discussed institutional questions prepared by the Foreign Affairs Ministers at their previous meeting: the composition of the European Parliament, the role of the European Council and its President and calculation of qualified majority. Defence issues were dealt with at the Conference over dinner.

The purpose of the meeting was not to obtain specific solutions to the points discussed, but to come up with broad guidelines for continuing negotiations at ministerial level. The Presidency had at this stage intended to continue the bilateral consultation phase, without making public its specific proposals.

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The third ministerial meeting - 27 October 2003

The Presidency had prepared three separate documents for this meeting.
Two dealt with non-institutional issues (including economic and financial matters) and the scope of qualified majority voting. These documents included subjects which the delegations still wished to discuss. The third document related to a new proposal for the Council Presidency and its various configurations.

In the document relating to non-institutional issues, the Presidency referred to all the questions still unresolved, including the preamble, the values and objectives of the Union, the Charter of Fundamental Rights, finance and the budgetary procedure, economic and financial policy, justice and home affairs, external relations, amendment of the Treaties and numerous points relating to other policies of the Union. Overall, the Presidency counted 91 points raised by one or more delegations.

With regard to economic and financial matters, the Ministers for Economy and Finance had challenged some of the Convention's proposals at their informal meeting in Stresa in September. The changes requested by the ECOFIN Council related in particular to the European Parliament's powers in the adoption of financial perspectives and the financial regulation and those of the Commission in implementing the excessive deficit procedure.

With regard to the scope of qualified majority voting , the Presidency pointed out that some delegations wished to maintain the balance obtained by the Convention, while others wished to extend qualified majority voting to other areas or suggested a return to unanimity in sensitive areas. Some delegations were also opposed to bridging clauses.

With regard to the Council Presidency and Council formations, the Presidency revised its first proposal to take into account delegations' comments. The proposal for a collective presidency was thus maintained.

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The fourth ministerial meeting - 18 November 2003

The Presidency had prepared two documents for the IGC meeting on 18 November, relating to the future Minister of Foreign Affairs and the procedures for amending the future Constitutional Treaty.

The Presidency had prepared amendments to the Convention text relating to the Minister for Foreign Affairs in order to address the concerns expressed at the meeting of 14 October . The proposed amendments included the independence of the future minister, possible resignation and coherence between the CFSP and external relations.

The Convention had already anticipated the possibility of a lighter amendment procedure, in particular for bridging clauses. Given the divergence of opinions among the various delegations, the Presidency proposed giving a greater role to national parliaments in applying such bridging clauses. With regard to amendment of the future Treaty, it proposed introducing a lighter revision clause applicable only to certain parts of the Constitutional Treaty.

During the meeting, the positions of the delegates drew closer over the status of the Minister for Foreign Affairs. A substantial proportion of the delegations supported the Presidency's proposals. With regard to Treaty revision, the discussion focussed mainly on bridging clauses. The Presidency's proposal concerning the "nihil obstat" procedure (authorisation if no national parliaments object) seemed a step in the right direction.

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The fifth ministerial meeting: the Naples "conclave" - 28 and 29 November 2003

In preparation for the ministerial discussions at the Naples Ministerial Conclave at the end of November, the Presidency had published a document containing its thoughts on the matters under discussion. The Presidency presented proposals for Articles in the Addendum to that document. These two documents provided a sort of interim review of the situation and provided the basis for the discussions in Naples.

In its proposal, the Presidency wished to remain faithful to the Convention's draft Constitutional Treaty and to retain the main balance. In order to meet the approval of the Member States and to clarify certain points, it made use of statements which did not fundamentally change the text, but which opened the door to a compromise.

For those areas in which it was not yet possible to draw conclusions, the Presidency described the situation and outlined a solution whenever possible. No proposal was made at that stage concerning the qualified majority voting system in the Council.

After an initial round of discussions, the Presidency thought that the Member States' reaction was positive on the whole. The subjects dealt with included the Union's policies, but also the Constitution's simplified amendment procedure. During the conclave, the Presidency distributed two amended proposals concerning economic, social and territorial cohesion and tourism.

Defence policy was the main subject of discussion at dinner on the first day. Following the trilateral meeting between Germany, France and the United Kingdom on the eve of the conclave, the three countries presented new proposals on methods of structured cooperation. An agreement in principle was reached, in particular on structured cooperation and the mutual defence clause.

The meeting held in the morning of 29 November dealt mainly with institutional questions. According to the Presidency, the Conference had made progress with regard to the Commission and the Minister for Foreign Affairs.

As for the most contentious issue, i.e. double majority voting in the Council, the Conference discussed the principle itself ( double majority proposed by the Convention or retention of the voting system provided for in the Treaty of Nice ) and the various proposals for amendment of States' thresholds and population necessary to adopt a legislative measure. The Presidency did not make any specific proposals. Finally, with regard to the sensitive issue of the Preamble, the Presidency restricted itself at this stage to gathering ideas and left it to the European Council to decide.

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The call for a compromise

During a meeting of former (European and National) Parliamentary members of the European Convention on 5 December 2003 in Brussels, the Chairman, Valéry Giscard d'Estaing, made an appeal to the IGC: "We would rather do without a Constitution than have a bad one". Also at that meeting, the Council President, Franco Frattini, reaffirmed that the Presidency "would not accept a low-quality compromise" but would continue to defend the draft proposed by the Convention.

The European Parliament as a whole also supported the draft proposed by the Convention, adopting a resolution on the IGC's work. It called on the Heads of State and Government to continue their efforts and overcome their differences in order to arrive at a balanced and positive result on 13 December.

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The sixth ministerial meeting - 9 December 2003

Only two items, defence and the budget, were on the agenda of this meeting. Following the agreement in principle on defence reached at the Naples Conclave, the Presidency had presented a new document, giving detail to that agreement in the form of articles.

The Presidency did not propose a compromise for budgetary questions. It wished to retain the solution proposed by the Convention, which had increased the powers of the European Parliament in the annual budgetary procedure.

During the meeting, the Ministers for Foreign Affairs were unable to reach a compromise on defence and budgetary questions. The wording of articles on mutual defence was still problematic, in particular for neutral countries which wished to avoid any automatic response. Likewise, with regard to the budgetary procedure, the positions between the various sides were still irreconcilable.

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The Brussels European Council - 12 and 13 December 2003

Three days before the European Council, the Presidency had made public its proposals in a document accompanied by two addenda. Addendum 1 contained proposals for Articles. Addendum 2, published only on the eve of the European Council, dealt with matters which were still unresolved: the preamble, composition of the Commission, qualified majority voting and the minimum number of seats at the European Parliament. The document did not contain any specific proposals, but suggested routes to explore in order to reach a final compromise.

The Intergovernmental Conference was to be preceded by the customary quarterly meeting of the European Council. Meticulously prepared, the meeting did not last beyond the morning of 12 December.

The Presidency recognised that the only real problem remaining was qualified majority voting in the Council. Its strategy was therefore to reach a compromise on this point above all, hoping that this would make it possible to easily resolve the other outstanding problems under negotiation.

The first meeting of the Intergovernmental Conference began in the evening with an initial round of discussions. The meeting was closed shortly afterwards to enable the Presidency to meet the delegations separately in "confessional" meetings. These meetings, which were strictly confidential, were to help the Presidency to decide where a possible compromise could be found. The bilateral meetings began during the afternoon and carried on late into the night.

"Confessional" meetings were also held during the morning of Friday, 13 December.
It was becoming clear over lunch that the delegations' positions on the issue of voting in the Council remained irreconcilable. Some delegations wished to retain the Convention's proposal, while others were in favour of the system established in the Treaty of Nice. Similarly, the informal proposals for possible changes to the thresholds for a qualified majority were not acceptable to everyone.

Faced with this deadlock situation, the Presidency therefore found itself unable to make a balanced proposal which was acceptable to everyone. It therefore remained for it to state that it was impossible to reach an overall agreement. The Intergovernmental Conference accordingly issued a statement, declaring that negotiations had failed and asking the Irish Presidency to continue consultations:

"The European Council noted that it was not possible for the Intergovernmental Conference to reach overall agreement on a draft Constitutional Treaty at this stage. The Irish Presidency is requested on the basis of consultations to make an assessment of the prospects for progress and to report to the European Council in March."

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