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COPYRIGHT 2008 Georgetown University Law Center
I. INTRODUCTION: COMMUNITY METHOD AND DEMOCRATIC
DEFICIT IN THE EUROPEAN UNION A. The Community Method B. The Democratic Deficit II. THE EU's TREATY FRAMEWORK AND THE TREATY OF LISBON A. The EU's Currently Applicable Treaty Framework B. The Treaty Establishing a Constitution for Europe C. The Treaty of Lisbon 1. The Negotiation of the Treaty of Lisbon 2. The Structure of the Treaty of Lisbon III. BETWEEN A SUPRANATIONAL AND AN INTERGOVERNMENTAL ENGINE OF THE INTEGRATION PROCESS A. The European Commission as the Supranational Integration Engine 1. The European Commission as an Independent Institution 2. The European Commission's Exclusive Right of Legislative Initiative B. The European Council as the Intergovernmental Master of the EU's Course 1. The European Council as an Intergovernmental Institution 2. The European Council's Duty to Define the EU's Political Priorities IV. BETWEEN MAJORITY VOTING AND NATIONAL VETO RIGHTS IN EU DECISION-MAKING A. Decision-Making on the Revision of the EU Treaties B. Decision-Making by the European Council C. Decision-Making by the Council of Ministers 1. The Definition of Qualified Majority Voting 2. The Use and Extension of Qualified Majority Voting V. BETWEEN THE SUPRANATIONAL AND THE INTERGOVERNMENTAL PERSONIFICATION AND REPRESENTATION OF THE UNION A. The President of the European Council B. The Presidency of the Council of Ministers C. The High Representative for Foreign Affairs and Security Policy D. The President of the European Commission VI. BETWEEN THE CONSTITUTIONAL PROTECTION OF THE SMALLER MEMBER STATES AND INTERGOVERNMENTAL POWER POLITICS A. The European Commission as the "Representative" of the Union's General Interest B. The Weighting of the Votes in the Council of Ministers VII. BETWEEN TECHNOCRATIC AND PARLIAMENTARY GOVERNANCE A. The European Parliament and the Treaty of Lisbon 1. The Composition of the European Parliament 2. The Powers of the European Parliament B. The National Parliaments and the Treaty of Lisbon 1. European Inter-Parliamentary Cooperation 2. The Powers of the National Parliaments in EU Decision-Making VIII. PROPOSALS FOR THE FUTURE DEVELOPMENT OF THE EU's INSTITUTIONAL BALANCE A. The EU in a Process of Permanent Reform B. Proposals for Restoring the Community Method 1. Reinforcing the Role of the European Commission 2. Abolishing the Remaining Veto Rights in EU Decision-Making 3. Returning to Qualified Majority Voting on the Basis of Weighted Votes 4. Requiring the Consent of the European Parliament for Treaty Revisions IX. CONCLUSION
I. INTRODUCTION: COMMUNITY METHOD AND DEMOCRATIC DEFICIT IN THE EUROPEAN UNION
On December 13, 2007, the Heads of State or Government of the European Union (EU) signed the Treaty of Lisbon. (1) Once it is ratified by all 27 EU Member States, the Lisbon Treaty will provide the Union with a new institutional basis that is aimed at "enhancing [its] efficiency and democratic legitimacy ... as well as the coherence of its external action." (2) The Lisbon Treaty sets the framework that will guide the decision-making process of the world's most successful peace and integration project since the end of the Second World War. (3) With a population of 493 million inhabitants, the EU is a leading actor in the international arena. (4) Its internal institutional structures have a profound effect on the EU's external policies in such areas as trade, investment, environment, labor standards and human rights. (5) In view of its relevance for lawyers and policy-makers within and outside the EU, the following pages will provide a systematic analysis of the EU's new institutional structure following the Lisbon Treaty.
The Union's institutional framework can--in the wording of Professor Alberta Sbragia--be called, a "balancing act" between the representation of the interests of the Member States, the representation of the political will of the citizens, and the representation of the general interest of the Union. (6) The national interest of the Member States is expressed via the European Council and the Council of Ministers. (7) The Member States are represented in those institutions by their Heads of State or Government and by other members of the national governments. (8) The political will of the citizens is expressed at EU level by the directly elected Members of the European Parliament. (9) The general interest of the Union is represented by the European Commission, a technocratic college that must act in complete independence from the Member States. (10)
The following pages examine the main changes brought by the Lisbon Treaty to the existing balance between these political institutions and assess the impact of the new Treaty provisions on the representation of Member States, citizens, and the general interest of the Union. This analysis will be carried out against the background of two key concepts in the debate on the EU's institutional future: the "Community method" and the "democratic deficit."
A. The Community Method
The Community method refers to the institutional system that was created by the Treaty of Paris establishing the European Coal and Steel Community (ECSC), the Treaty of Rome establishing the European Economic Community (EEC) and the Treaty of Rome establishing the European Atomic Energy Community (Euratom). (11) The Community method can be seen as a reaction to the intergovernmental diplomacy in Europe before and immediately after the Second World War. (12) In the immediate post-war period, the intergovernmental method gave rise to the Organisation for European Economic Cooperation (OEEC) and the Council of Europe. (13) They never reached their full potential: the transfer of sovereignty was excluded from the outset and important decisions were subject to their members' paralyzing right of veto. (14)
Via the Community method, the European Communities succeeded in "breaking the intergovernmental deadlock on European integration." (15) This was due to the supranational elements that characterize the Community method and make it different from the working practices of traditional international organizations. (16) As far as the Union's political institutions are concerned, the supranational characteristics of the Community method of the 1950s can be summarized as follows:
* The European Commission was designed as the motor of the European integration process, with the duty to act in the interest of the entire Community, independently from the Member States. (17) The Commission was granted the exclusive right to propose new Community law; (18)
* The Council of Ministers was set up as the institution directly representing the governments of the Member States. Its decisions could--in certain policy fields--be taken by qualified majority voting instead of unanimity. (19) Where qualified majority voting applied, the Member States lost their veto right. (20) Under qualified majority voting, even those Member States that voted against a particular decision were obliged to implement it in a correct and timely manner; (21)
* The representation of the Community towards the outside world was the task of the European Commission. (22) It was the Commission that personified the Community and had to maintain the appropriate contacts with international organizations and conduct international negotiations on behalf of the Community; (23) and
* To mark a structural break with the traditional power politics of the classic intergovernmental international organizations, the Community's founders attached particular importance to the protection of the smaller Member States. (24) While Franco-German reconciliation was the Community's key objective, this was not to take place at the expense of the smaller partners. (25) By giving the exclusive right of initiative in the legislative process to the European Commission, Community law-making was expected to start from the general interest, not on that of one or a few large Member States. (26) Furthermore, the smaller Member States were, in relative terms, overrepresented in the weighting of the votes in the Council of Ministers. (27)
The entire Community method was based on a strong belief in the cumulative sagacity of institutions. (28) Jean Monnet, the man who inspired the creation of the European Coal and Steel Community, was fond of quoting Swiss philosopher Henri Frederic Amiel: "[e]ach man begins the world afresh. Only institutions grow wiser; they store up their collective experience; and, from this experience and wisdom, men subject to the same laws will gradually find, not that their natures change but that their behavior does." (29)
In view of the importance that Monnet attached to getting the institutional framework right, he urged the negotiators of the ECSC's Treaty of Paris not to saddle the embryonic Community with the shortcomings of traditional intergovernmental institutions. (30) Although the Treaty of Paris succeeded in establishing a highly innovative institutional framework, the supranational aspects of the Community method came under attack from the start. (31)
In legal terms, the intergovernmental dimension of the European construction was particularly reinforced by the changes and additions that were included in the Treaties of Maastricht (1992), Amsterdam (1997) and Nice (2000). (32) The many ad hoc compromises that were incorporated into the Treaties during the 1990s created an institutional regime that hangs somewhere between the strong foundations of the Community's original integration method and the intergovernmental influences of the past decade. (33) As a result, the Union's decision-making framework is characterized by a permanent constitutional tension:
* between a supranational and an intergovernmental motor of the integration process;
* between decision-making efficiency and national veto rights;
* between the supranational representation and personification of the Union and its representation and personification under Member State control; and
* between the protection of the smaller Member States and traditional power politics.
Parts III thru VI will systematically assess the impact of the Lisbon Treaty on each of the above-mentioned dimensions of the EU's permanent institutional debate.
B. The Democratic Deficit
In addition to the constitutional tensions between the proponents of the original Community method and those favoring an intergovernmental Europe, the EU's process of institutional change has, since the 1970s, also been characterized by the struggle against the so-called "democratic deficit." (34) The term was invented by Professor David Marquand, a former Labour Member of the British House of Commons (1966-1977) and later an adviser to European Commission President Roy Jenkins (1977-1979). (35) In a book entitled Parliament for Europe, Marquand lamented that the European "Parliament has had too little weight to play more than a decorative role" in the Community's political process. (36) Throughout the book, he argued for a substantially increased level of "Parliamentary accountability" in the Community. (37) Since the first direct elections of the European Parliament in 1979, its role in the EU's political process has gained significant weight. (38) Nevertheless, the persistent accusations of an EU "democratic deficit" have not disappeared. (39) Part VII will therefore examine the Reform Treaty's changes in light of the long-standing tension between technocratic governance and democracy in EU decision-making. As the Reform Treaty is unlikely to be the last stage in the Union's constitutional development, Part VIII appropriately ends this article with a number of suggestions for further institutional change.
II. THE EU's TREATY FRAMEWORK AND THE TREATY OF LISBON
Before entering into a detailed assessment of the institutional consequences of the Lisbon Treaty, it is necessary to first introduce the EU's current Treaty framework and process of change.
A. The EU's Currently Applicable Treaty Framework
After multiple attempts to achieve European unity manu militari (through military means), the EU established a unique project to foster European integration manu legis (through law). (40) It is based on a series of Treaties concluded by the Member States in accordance with the basic principles of public international law. (41) These Treaties encompass the grand political compromises that were essential to establish the original European Communities of the 1950s and the subsequent European Union. (42) According to the European Court of Justice, "the EEC Treaty, albeit concluded in the form of an international agreement, none the less constitutes the constitutional charter of the Community based on the rule of law." (43) The Court has consistently held that the EU Treaties have established a new legal order with its own institutions, decision-making mechanisms, and enforcement powers "for the benefit of which the [Member] States have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only the Member States but also their nationals." (44)
The basic Treaties establishing the ECSC, EEC, and Euratom have been subject to many revisions. (45) These include the Treaty of Maastricht that created the European Union. (46) One of the Maastricht Treaty's major shortcomings was the lack of in-depth institutional reform to provide the EU with the decision-making efficiency to achieve its new goals in such areas as common foreign and security policy and cooperation in justice and home affairs. (47) Moreover, its negotiators failed to anticipate the institutional adaptations that would be necessary to provide a positive response to the accession request of the Central and Eastern European countries, following the breakdown of the Iron Curtain. (48) To proceed with the institutional reform process, the Maastricht Treaty was followed by further negotiation sessions leading to the Treaties of Amsterdam and Nice. (49) The revision of the EU Treaties at Amsterdam and Nice was seen as disappointing, even by the Heads of State or Government. (50) Instead of creating a coherent structure, the negotiators settled for a series of ad hoc compromises. (51) In the absence of an agreement on the EU's long-term institutional development, a composite legal patchwork emerged. (52) Former European Commission President Romano Prodi summarized this outcome as a series of "constructive ambiguities" in the form of "subtle protocols and increasingly complex formulae." (53)
The Treaty revisions at Maastricht, Amsterdam and Nice were revisions negotiated within the framework of Intergovernmental Conferences (IGCs). (54) An IGC is a conference of representatives of the governments of the Member States. (55) Its task is to determine the amendments to be made to the existing Treaties. (56) An IGC works by unanimity (or common accord), according to the rules of traditional intergovernmental diplomatic conferences. (57) The outcome of an IGC is a Treaty that incorporates the amendments on which agreement exists between the negotiators. (58) The amendments can enter into force only after being ratified by all the Member States in accordance with their respective constitutional provisions. (59)
B. The Treaty Establishing a Constitution for Europe
Several observers blamed the negotiation method in the diplomatic IGC format for the confusing outcome of the negotiations at Nice. (60) To improve the openness and transparency of institutional reform and involve a greater number of political actors than at IGCs, the Heads of State or Government decided, in December 2001, to convene a Convention on the future of Europe. (61) The Convention, which started its work in February 2002, was composed of fifteen representatives of the Heads of State or Government of the Member States (one from each Member State), thirty representatives of national parliaments (two from each Member State), sixteen members of the European Parliament, and two members of the European Commission. (62) The candidate countries were represented in the same way. (63) In addition, the Convention was attended by three observers of the Economic and Social Committee, three observers of the European social partners, six observers from the Committee of the Regions, and the European Ombudsman. (64) Former French President Valery Giscard d'Estaing was appointed as Chairman of the Convention and former Italian and Belgian Prime Ministers Giuliano Amato and Jean-Luc Dehaene as Vice-Chairmen. (65)
The Convention succeeded in adopting--by consensus--a draft Treaty establishing a Constitution for Europe. (66) The draft was submitted to the President of the European Council on July 18, 2003. (67) The Convention prepared, but did not replace, the traditional IGC. (68) After a year of tough bargaining among the Member States, the "IGC 2004" arrived at a political agreement at the Brussels European Council of June 18, 2004. (69) The Treaty Establishing a Constitution for Europe was formally signed in Rome on October 29, 2004. (70) All elements of the EU's primary law were incorporated in one of the Constitution's four parts:
* Part I dealt with the EU's general objectives, competences, and institutional framework; (71)
* Part II incorporated the Charter of Fundamental Rights; (72)
* Part III contained more specifics on the EU's internal and external policies and functioning; (73) and
* Part IV dealt with the EU's general and final provisions such as the procedure for revision. (74)
Although it was signed, the Constitution never entered into force. (75) While eighteen Member States successfully ratified the Constitution, it was voted down by referendums in France and the Netherlands. (76) In France, the referendum was held on May 29, 2005. (77) With a turnout rate of sixty-nine percent, fifty-five percent voted "no". (78) The actual text of the Constitution motivated only a fifth of the "no" voters. (79) The domestic unemployment situation in France was given as the main reason for the "no" vote. (80) The Dutch referendum was held on June 1, 2005. (81) With a turnout rate of sixty-three percent, sixty-two percent voted "no". (82) Among the "no" voters, twenty-eight percent indicated that their key motivation was the internal economic and social situation in the Netherlands, twenty-three percent voted "no" because of their negative overall opinion of the EU, and a further twenty-one percent stated that they specifically opposed the text of the Constitution. (83)
C. The Treaty of Lisbon
1. The Negotiation of the Treaty of Lisbon
In reaction to the results in France and the Netherlands, the European Council of June 16-17, 2005 called for a period of reflection to enable a broad debate in each of the Member States. (84) Under the leadership of German Chancellor Angela Merkel, and in line with the plans of the newly elected French President Nicolas Sarkozy, the European Council adopted a detailed mandate for a new IGC. (85) The "IGC 2007" started its work on July 23, 2007. (86) The European Council had made clear that the IGC was due to "complete its work as quickly as possible, and in any case before the end of 2007, so as to allow for sufficient time to ratify the resulting Treaty before the European Parliament elections in June 2009." (87) Thanks to the unprecedented level of detail in the political mandate, the negotiations could focus mainly on technical and legal aspects. (88) The IGC was conducted under the overall responsibility of the Heads of State or Government, assisted by their Ministers of Foreign Affairs. (89) A representative of the Commission was allowed to participate in the Conference. (90) The European Parliament was closely associated with and involved in the work of the Conference with three representatives. (91) Secretariat support for the Conference was provided by the General Secretariat of the Council. (92) In line with this instruction, the IGC completed its political work in October 2007. (93)
Before it could be signed, the new Treaty was subject to a revision by the lawyers-linguists. (94) They notably verified that all language versions were identical. Following this verification, the Treaty was formally signed by the governments of the Member States on December 13, 2007. (95) Subsequently, the Lisbon Treaty was submitted for ratification in accordance with the respective constitutional requirements of the Member States. (96) It is concluded for an unlimited period and will enter into force on January 1, 2009, or, failing that, "on the first day of the month following the deposit of the instrument of ratification by the last signatory State to take this step." (97)
2. The Structure of the Treaty of Lisbon
The Lisbon Treaty incorporates most of the innovations of the Constitution, but its overall format is different. (98) Instead of replacing the existing EU Treaties (as the Constitution was supposed to do), the Lisbon Treaty merely contains amendments to the existing agreements. (99) Furthermore, in contrast with the Constitution, the Lisbon Treaty does not make any reference to such state-like symbols of the Union as the flag, the anthem, or the motto. (100) As the French newspaper Le Monde correctly stated: "the symbols disappear, the substance remains." (101) It seemed that, by abandoning the constitutional terminology and incorporating the amendments in the already existing EU Treaty framework, the Heads of State or Government aimed at avoiding new referendums, and hoped that the Lisbon Treaty could be approved via parliamentary ratification. (102)
In practice, the Lisbon Treaty contains two main clauses:
* Article 1 incorporates amendments to the existing Treaty on the European Union (TEU); (103) and
* Article 2 includes the amendments to the present Treaty establishing the European Community (TEC). (104)
Upon the entry into force of the Lisbon Treaty, the Treaty establishing the European Community will be renamed the Treaty on the Functioning of the Union (TFU). (105) This is the consequence of the decision by the negotiators to replace the word "Community" throughout the existing Treaties with the word "Union." (106) As such, the Union--which shall have a legal personality--replaces and succeeds the Community. (107) The Treaty on the European Union and the Treaty on the Functioning of the European Union shall, together, constitute the Treaties on which the Union is founded, and both have the same legal value. (108)
III. BETWEEN A SUPRANATIONAL AND AN INTERGOVERNMENTAL ENGINE OF THE INTEGRATION PROCESS
To ensure the dynamism of the European project, the founders of the European Communities emphasized the need for a European institution that would function as the real engine of the integration process. (109) For Jean Monnet, the architect behind the creation of the ECSC and its supranational High Authority, it was essential that this institution would be independent from the national interest of the individual Member States and would work on the basis of the general interest of the entire Community. (110) However, from the start of the European Communities, the supranational philosophy of Monnet has been challenged by an intergovernmental strategy. (111) This has resulted in the creation of the European Council as the motor of European cooperation under direct control of the Member States. (112)
A. The European Commission as the Supranational Integration Engine
1. The European Commission as an Independent Institution
The Treaty of Paris establishing the ECSC conceived of the High Authority as the Community's independent and supranational engine. (113) Monnet, the High Authority's first President, expressed the constitutional philosophy behind the institution as follows:
The independence of the Authority vis-a-vis governments and the sectional interests concerned is the precondition for the emergence of a common point of view which could be taken neither by governments nor by private interests. It is clear that to entrust the Authority to a Committee of governmental delegates or to a Council made up of representatives of governments, employers and workers, would amount to returning to our present [intergovernmental] methods, those very methods which do not enable us to settle our problems. (114)
The High Authority, consisting of nine independent members appointed by the six Member State Governments, was the ECSC's central decision-making institution). (115) It had the duty to ensure that the objectives set out in the ECSC Treaty were attained. (116) From the very start, however, some of the Member States insisted on the creation of a Council of Ministers to exercise political control over the High Authority's decisions. (117) After the failure of the supranational European Defence Community (EDC) in 1954, the negotiators of the Rome Treaties establishing the EEC and Euratom obtained an early consensus not to extend the ECSC High Authority's impressive decision-making powers to the EEC and Euratom Commissions. (118) Instead, decision-making was left in the hands of Member State representatives, within the framework of the Council of Ministers. (119) The Council's decision-making powers were counterbalanced, however, by the European Commission's exclusive right of legislative initiative and its duty to act as the guardian of the Treaties. (120) The European Commission has its seat in Brussels, although a small number of departments are located in Luxembourg. (121) Under the currently applicable Treaties, the College of Commissioners includes one national of each Member State. (122) The College of Commissioners is assisted by a staff of 32,000 officials. (123)
2. The European Commission's Exclusive Right of Legislative Initiative
The Lisbon Treaty confirms that the European Commission's basic institutional mission is to act in the Union's general interest, in full independence from the governments of the Member States. (124) It also restates that Union legislative acts may, in principle, only be adopted on the basis of a Commission proposal. (125) The Commission's exclusive right to take the initiative in the EU's legislative process was designed to ensure that the starting point for legislative discussions would be the general interest of the EU, not that of individual Member States. (126) As Professor John Temple Lang has correctly emphasized, the exclusive right of initiative was to provide a safeguard for the interests of minorities that might be harmed by qualified majority voting in the Council on new policy measures. (127) As a corollary, it was to help protect the smaller Member States against the dominance of the larger Member States. (128)
To protect the European Commission's right of initiative as well as the Community's general interest, the original Treaty of Rome provided that the Council of Ministers needs unanimity to deviate from Commission proposals. (129) This is essential to the EU's institutional balance. (130) The exclusive right of initiative would be a mere illusion if Commission proposals could be easily amended without its agreement and participation. (131) To take into consideration the remarks by the Member States and facilitate decision-making by qualified majority voting, the Commission has the habit to alter its proposals before the Council formally proceeds with a vote. (132) The Commission then tries to present a compromise text that can be accepted either by consensus or qualified majority. (133)
Since the creation of the co-decision procedure for the adoption of EU legislation, an exception has been created that allows the Council--following conciliation with the European Parliament--to amend Commission proposals by qualified majority, but without Commission agreement. (134) This exception, which is confirmed by the Lisbon Treaty, is gradually undermining the Commission's central position in the EU's legislative process. (135) As the Parliament's Activity Report on co-decision underlined, "Parliament is now in direct contact with the Council and no longer needs the mediation and filtering role the Commission played in the past to communicate with the Council." (136) While the Commission is still present at all conciliation meetings and is often requested by the other institutions to help reconcile conflicting positions, witnesses of conciliation practice have observed that "the Commission sometimes feels in a clear position of inferiority, whereas the other two institutions enjoy an increased sense of solidarity which in turn serves to improve the chances of an agreement being found." (137)
In addition to confirming this co-decision exception, the Lisbon Treaty authorizes a number of other departures from the Commission's exclusive right of legislative initiative. (138) In contrast with the original Community method, legislation on judicial cooperation in criminal matters and police cooperation may be initiated by either the Commission or by a quarter of the Member States. (139) In the common foreign and security policy, the College of Commissioners no longer has the autonomous right to make foreign policy proposals for adoption by the Council, other than supporting those by the new High Representative of the Union for Foreign Affairs and Security Policy. (140)
The Reform Treaty also creates the possibility for a citizens' initiative. (141) It holds that one million citizens "who are nationals of a significant number of Member States" may invite the Commission to submit a proposal for a legal act. (142) The citizens' initiative complements the already existing provisions authorizing the European Parliament and the Council of Ministers to request the Commission to submit a proposal on matters on which it considers that a Union act is required. (143) The concrete application of the citizens' initiative will require further guidance in the form of implementing legislation or Court judgments. (144) While the citizens' initiative might provide an impetus for political debate among citizens at the EU-level, it also risks increasing the level of populism in EU politics.
B. The European Council as the Intergovernmental Master of the EU's Course
1. The European Council as an Intergovernmental Institution
Some Member States have never been enthusiastic about the Commission's independent right of initiative. (145) During the 1960s, French President Charles De Gaulle resented the way in which Walter Hallstein, the first Commission President, operated autonomously, as if he was the head of an embryonic European government. (146) As a proponent of intergovernmentalism, General De Gaulle held the view that only the highest representatives of the Member States possessed the necessary legitimacy to determine the future course of European cooperation. (147) He therefore took the initiative to organize summit meetings that brought together the Heads of State or Government of the Community's Member States. (148) The first of such summits took place in Paris in 1961. (149) In December 1974, the Heads of State or Government, on the initiative of French President Valery Giscard d'Estaing and German Chancellor Helmut Schmidt, decided to replace their periodic summits with more formal European Council sessions. (150) The European Council's existence was given legal recognition in the Single European Act of 1986. (151) Since the Treaty of Maastricht, the European Council has been institutionalised as the body that "shall provide the Union with the necessary impetus for its development and ... define the general political guidelines thereof." (152) Since 2004, the meetings of the European Council have usually taken place in Brussels. (153)
Although the European Council has been recognized in the EU's Treaty framework since the Single European Act, it does not, under the current legal regime, have the status of a Community institution. (154) Through the Lisbon Treaty, the European Council is given the formal status of a Union institution. (155) The Lisbon Treaty further confirms that the European Council shall consist of the Heads of State or Government of every Member State, together with the President of the European Commission. (156) It adds, however, that the European Council will also include a permanent and full-time President. (157) The High Representative for Foreign Affairs and Security Policy also takes part in the European Council's work. (158) When the agenda so requires,...
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