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Ms. Sylvie GOULARD

Consultant for the Policy Planning Staff, Ministry of Foreign Affairs, Paris Researcher at the Centre d'Etudes et de Recherches Internationales CERI, Paris

BEYOND THE TREATY OF NICE: MORE LEFT-OVERS OR NEW UNION?

Lecture in the Cicero Foundation Great Debate seminar "The French Presidency and the Treaty of Nice - EU Reforms or European Vanguard?", PARIS, 16 November 2000

First of all, I would like to thank the Cicero Foundation for inviting me today. I was asked to speak on the goals of the French Presidency in preparing the treaty of Nice, but before that, let me introduce myself : I am a French career diplomat and have been working for the policy planning staff of the Quai d'Orsay since 1996, in charge of European matters and, in particular, of our very close relationship with the German PPS, the Planungsstab.

I was specially involved in the Franco-German study on The European Union with 30 members and more, along with Martin Kremer, who is one of the speakers of this seminar and to whom I give my best regards. I still work for the Ministry of Foreign Affairs as a consultant but, now, as a fellow doing research at the CERI, the think tank of Sciences-Po, my point of view will be personal, not official.

Now, let us come back to the purpose of today's meeting. As I said, I was asked to speak on the goals of the French Presidency. I shall try to explain those goals and also say a few words (when possible) on the current positions of the different states at the present stage of the discussion, even though no one can exactly foresee the result of such a negotiation before it is finished... This will be my first point.

But it is impossible to speak about the treaty of Nice now, without taking into account the long term perspective and the already opened debate on the future of the EU: beyond the treaty of Nice, what do we need? What will enlargement mean from an institutional point of view? What about a constitution, a vanguard? This will be my second shorter point, because I don't want to interfere with the next speeches.

I. What Are the Goals of the French Presidency?

All the current members of the EU face a dilemma :

- on the one hand, there is an obvious need for institutional reform: as it is, the old institutions of the Rome Treaty, conceived for only six states, are having trouble getting ahead. As you all know, the citizens want Europe to be more democratic, more efficient. Whatever the future number of member states and wherever the borders of the EU will be, everybody knows that a deep-going reform is necessary. This reform is in the interest of the current member states, it is also in the interest of the candidate members: after all the efforts they make to swallow the acquis communautaire, they have the right to join an efficient union which is able to decide in a democratic way.

- on the other hand, nobody wants to postpone enlargement. As long as there is no consensus on the content of a deeper going reform, being too ambitious could delay the arrival of new members.

The main goal of the French Presidency is to conciliate both priorities. I can sum it up very simply: no status quo, no delay. The goals are modest, because the most important thing is to avoid a deadlock and move ahead. As I'm sure you are all aware: this is a very tough job!

The need for institutional reform was already recognized by the twelve in Corfou, in 1994...The Dutch Presidency leading the former IGC did a very good job, but faced also very tricky matters. On the most difficult points of the agenda, in particular on the size of the Commission and the weighting of votes, the member states have only agreed on a protocol annexed to the treaty which oblige them to negotiate again...

The present agenda was defined in Cologne in June 1999 and in Helsinki in December 1999, where the states decided to focus on three main points :
- the size and composition and the Commission
<- the weighting of votes within the Council
- the extension of the field of qualified majority.

During the last months, two more points have been added : the enhanced cooperation and, after the sanctions against Austria, the modification of article 7 of the treaty (violation of rights and principles).

Let's have a look at these 3+2 main items of the agenda.

Size and Composition of the Commission

1.1.Let me begin with one of the most controversial, the size and composition of the Commission.

In Amsterdam, the French government defended a vigorous pro-Commission position (10 or 12 commissioners maximum). It is still aiming - if possible - at reducing the whole number of commissioners. Inspired by the French conception of intérêt général, it believes that a strong Commission is a small one, which is able to decide collectively and to defend the common interest of the EU. The supranational Commission doesn't actually have the same logic as the Council, in which each state has to be represented. The French government would prefer a Commission of below 20 members: that means that France could even accept a rotation principle, which might exclude, for a certain period, the presence of any French member.

As you all know, it is difficult for the so-called small states to give up their commissioner. One understands the very good reasons why, from their point of view, they don't want to move: they have to feel present in the core of Europe, their populations have to accept the European decisions. From a technical point of view, it is important for example that the different resorts of the Commission know all the legal systems and political situations existing in the EU.

On the other hand, if the Commission does not remain a supranational, efficient body, the EU could suffer. It might even fall under control of the biggest countries or become a intergovernmental kind of organization. Would it be good for the small states? Just have a look at the very different attitudes of the Council and of the Commission during the Austrian crisis. I am personally convinced that the Commission has better respected the spirit of the treaties than the fourteen states. The latest trends in the field of defence are also rather worrying...

The problem is that the so-called large countries - like France, but France is not alone - are not perfectly reliable in their defence of the Commission... After having criticized Brussels and its technocrats during decades, after having sent good or less good commissioners, their sudden love sounds a little bit strange...

Where are we so far ?

At the latest stage of the negotiations, after the informal meeting of Biarritz, a step-by-step procedure seems to be a possible one :
- the solution of one state/ one commissioner would only be temporary
- the states would agree in Nice that, after a certain time, the number of members of the Commission will be blocked below the number of the states. A rotation principle will enter into force automatically, without new negotiations.

If the concessions on the weighting of votes permit that the big accept to give up their second Commissioner, one can imagine that the result of Nice could be:
- until 2005, the present Commission remains as it is
- from 2005 to 2010, in the next Commission, there is one commissioner for each state
- after 2010, the number is reduced to 20 commissioners with a rotation principle.

Another scenario could be to decide that the membership of state number X modifies the rule (without fixing dates). But first of all, it is not easy to determine the right number (would it be 20? 25? 27?). Furthermore it could make this membership more difficult, even if this state has nothing to do with the deal itself ! That is the reason why the French government would prefer a provision of the treaty giving only a time-table, in accordance with the beginning of the mandate of the future Commissions.

If there is no agreement of a reduced number of commissioners, France would at least support a reshaping of the Commission (by creating deputy-commissioners for example) and a modification of the working methods.

The Weighting of the Votes in the Council

1.2. Now let's address the second crucial issue : the weighting of votes in the Council.

At the present time, a decision is adopted when it gets 62 positive votes (on a total amount of 87, i.e about 70 % of the votes). The 5 largest countries dispose of 10 votes, others countries of less (2 for Luxemburg for example). Why do we have to succeed in "reweighting" the votes?

It is a very important issue for two reasons:

- first of all, the EU is very often criticized because its decisions are considered not democratic enough. In a democracy the people has to be fairly represented. Because of the previous enlargements, there is a serious unbalance between the people represented and the amount of votes. Let me give you just a few figures:
- with 6 members, 70 % of the votes, represented 87% of the population of the EC
- with 15 members, it represents only 58% of the whole population of the EU, while the minority to veto a project represents only 14% of the citizens.

- second reason, the future number of members will oblige us to extend the field of qualified majority voting in order to avoid deadlocks. Furthermore, the next members are all (except Poland and Turkey) small or medium sized-countries. The risk of increased heterogeneity is real.

Of course, I can reassure you, the over-representation of the small states will remain one the principles of the EU, which is, since the origin, partly, a Union of states. But in order to improve the acceptance of the decisions, a new balance has to be found, in a fair measure, between the size of the population and the number of votes.

If you take figures reflecting the economic or financial weight of the member states, the future gap between "small" and "large" countries, "payers" and "receivers", will be even more significant. The present problem of legitimacy is rather going to grow in the next decades than to be spontaneously resolved.

France supports a certain "reweighting" of votes without changing the present rules. The Commission, as you know, could at the contrary go along with a dual majority: to be adopted a law should get a majority of votes from a majority of countries. Some countries have been supporting this second option (Germany for example or Ireland), which presents the great advantage to be simple. But, according to the French government - and I am personally convinced, it is true - a dual majority could have negative effects in an enlarged EU: it permits too easily negative coalitions of states, against a policy, without permitting to build a positive majority.

As far as the "reweighting" is concerned, many proposals are on the table: a qualified majority voting above 58% of the population (almost all the large countries), or about 58% (status quo). Some small countries even want to put it under 58% (until 50%), which seems absolutely unrealistic but may be tactical. To sum it up, everything is still open.

Furthermore, this debate is taking place without stressing the future demographic growth of the EU. At the present time, Germany's population is already 82 million, France 60, Turkey 64. Within 20 years, Germany's population will be reduced to 80 million, France will be up to 62, Turkey to 84. In 2050, Turkey is first with 100 million, Germany has only 73 and France only 60. During the same period, Italy could loose 20 million inhabitants! (according to UN figures). You might disagree with such and such figure I give you, or argue that immigration is going to change the balance of demography. I am ready to discuss this, but who puts the long-term perspective in the discussion ?

What kind of solution should we prefer if we - France and Germany, but also the Netherlands, Belgium, Italy and all the other states which joined more than a business club - if we want to keep a certain influence on the EU? Who is going to be the beating heart of the new Union? Who is going to lead it, not in an hegemonic way of course, but in the common interest? Until now, more or less, France and Germany have prepared compromises acceptable by a large number of partners, accepted by a large part of the total population (France and Germany have together 140 million citizens). I know that such an approach can irritate some partners but don't forget where the EU comes from ! The EEC was created in order to prevent war between France and Germany. It is a political project, based on an economic integration, not only a single market, not only a single currency, not only a matter of business. That's the reason why it has to remain a partnership between states which are considered as equal. I invite you to read again the Mémoires of Jean Monnet who had a very interesting discussion with Adenauer in April 1951. The two big men foresee the possible evolution of both countries, France loosing its empire, Germany being unified. Both agree on the idea of a permanent equal partnership, in order to show that the readiness to cooperate is more important than the size or the power of each partner.

At the present stage of negotiations, the possible new weighting in favor of Germany is considered in Paris as a political question. It is indeed for the above mentioned reasons, linked to the spirit of the institutions, not for reasons of prestige or national pride. France has perfectly accepted the difference in the number of seats in the European Parliament. Such a change was logical because in this assembly, the citizen are represented, not the states.

Moving to the third point, I must admit that it is as crucial as the two previous ones.

Qualified Majority Voting

1.3. Let me indeed say a few words on the extension of the field of the QMV.

At the present time, about 70 articles still require unanimity. The aim of the present discussion is to prevent deadlock, to facilitate the decision making process. What is actually important in an EU with thirty members, i.e. with a double number of internal political situations, a double number of coming elections, to sum it up, a double number of democracies... It's not whether or not such and such country is outvoted, but whether we can come to projects without being blocked by one or two countries. See the status of the European society needed by so many merging enterprises, blocked by a minority, or the need for more fiscal harmonization.

It is very difficult to make a presentation of the present stage of the discussion. A few months ago, I would have said that the goal of the French government was to reverse the principle: majority voting as the rule, unanimity as exception. It was actually the official message. Unfortunately, the more the discussion goes on, the more the exceptions develop...To be honest, it is very difficult to make an evaluation of the possible result of the IGC on this issue. I can just try to fly over the articles and give you some examples: to be optimistic, let us begin with a positive note. There is some progress in the social field (article 42 on social security for workers f. ex), even if some countries are still reluctant on such or such point (some could accept it for EU workers but not for the ones coming from third states; others want to exclude students; a third accepts it as long as child care isn't concerned etc.). Article 137 is also cut in slices. In France, we say "saucissonner": some could accept the QMV on some paragraph (working conditions), others on other ones (non discrimination between men and women), a third group on the whole but with a restriction... As far as the third pillar is concerned (Part IV of the treaty, article 61 and following), it is more complicated because of the time-table adopted in Amsterdam (QMV is foreseen five years after the entry into force of the treaty). The decisions adopted in Tampere during the autumn of 1999, have to be implemented. This field is a sensitive one: in France: the constitution was modified in order to ratify this treaty. In Amsterdam, the German Länder didn't accept the immediate QMV. The possible package deal isn't clear yet; on taxes (art 93), in particular on environmental taxes, the compromise is probably very difficult to find. It is still considered as a problem to be solved at a political level, no more at a technical level one.
- on article 133-5, dealing with the external competences in the field of services and intellectual property, the very big issue of the new economy, the French Presidency has made various constructive proposals in order to reach an agreement, but has still some problems with some delegations such as... the French one. France is not isolated, but, of course, the cohabitation doesn't help our heads of government and state to be flexible. In this field, the solution might be either a step-by-step approach or the introduction of a protocol to the treaty putting some restrictions. On the articles on the cohesion, as expected, the countries which benefit from the funds want to keep their control; the others are more flexible. Even on the issue of non discrimination - the most politically correct one - there is at this stage no agreement. Funny debate after the Court of Justice took last winter the decision Tania Kreil, opening the way to the Bundeswehr for women, against the prescriptions of the German constitution. In all the discussion on QMV, some states seem to forget that if they don't agree on their own, the judge will do it for them.

As you see, my colleagues are going to be very busy before Nice and in Nice. I really enjoy to be a research fellow for a while...

Enhanced Cooperation

More seriously, let uss move now to the two less problematic issues: enhanced cooperation and article 7.

1.4. On enhanced cooperation, the discussion goes ahead. There is a certain agreement between the states on the necessity of reforming the provisions of the treaty, even if there are some differences on certain points:
- do we need a list of the fields of cooperation that are excluded (the single market for example) or only a general sentence to make sure that a group of states is not going to play against the interests of the whole Union?
- should the European Council remain the last body to be asked in case of disagreement ?
- do we need a minimum number of participating states ? If yes: eight or more, or less ?
- what role the Commission has to play when an enhanced cooperation is launched?
- does the European Parliament has a say?
- what about the CFSP ?

A lot of questions remains open. Even though, according to many delegations, an agreement seems possible. Is this the case because no one gives precise examples of possible enhanced cooperations...?

1.5. The last point is not really easy to tackle: after the sanctions against Austria at the beginning of the year 2000, which showed how difficult it is to wait until the human rights are in danger to react, some states and the Commission want to add a kind of early warning procedure in the treaty.

On the principle, some states are reluctant. Everybody remembers that some countries involved in the sanctions, Denmark in particular, didn't share the view of the majority. Other countries are reluctant because of the enlargement: they think we give a wrong signal to them (UK).

I don't share this concern. The reform aims at preventing the very negative effects of an ad hoc reaction (one could say "overreaction"). If we believe that Europe is based on the respect of the rule of law, it is very important to conceive procedures which allow an action inside the framework of the treaties and, as I said above, prevent intergovernmental decisions. This might give the concerned state the right to be listened to and to defend itself. For the majority of states, the main issue is to determine who is able to act (Commission, EP, a certain number of states)?

As a conclusion of this first part, I would like to add a few optimistic words. As I said before, I speak for myself. I am not speaking on behalf of the French Presidency or making some publicity for it. I personally and frankly believe that some little progress has been made in the last weeks. Some proposals made on such or such point have permitted a little move: look, for instance at the Commission. The will to succeed in Nice is more present than a few months ago. In September, the hypothesis of a positive crisis was not completely excluded, in France and elsewhere. In my view, this is not more the case.

It does not seem that we are going to have a very good result in Nice. The logic of Nice is the old one, perhaps the wise one of the "petits pas", the step by step process. Last week, former Chancellor Kohl was in Paris. I had the pleasure to meet him and was very impressed by his serenity, by his acceptance of the step by step character of the negotiations. He sees the European integration as a process, as a train which is now on the right way. From his point of view, the speed of the train doesn't matter, as long as the direction is the right one. Does it mean that we have to begin a new IGC as soon as Nice is ratified? The present Chancellor Schröder has already mentioned the need for a new IGC in 2004.

I don't want to leave you without giving you some food for thought on the future institutional reform. Let us move to my very short second part.


II. Beyond the Treaty of Nice

As I just said, after the Nice treaty, we are going to have some more left-overs rather than a new Union. It was probably impossible to avoid as nobody wanted to delay the first coming memberships. How could we facilitate the birth of a new EU?

My "programme" for the future would consist of five points:

1. We need a new procedure to reform European law. The IGCs have shown their limits: if we go ahead with the same diplomatic methods, the same soft IGCs, we should at least, recognize publicly that we won't never reach more clarity, more transparence, more effectiveness. The result of diplomatic negotiations has to be obscure, in order to allow nationalistic comments when the delegations come back in their capitals. The compromises never correspond to the logic of supranational institutions, or to the needs of the EU, as long as they are compromises between states.

2. The new procedure should consist in starting a free debate on Europe in the parliaments of all the member states and the candidates which want to do so, and in the EP. Then, we would think about a coherent text, written by some delegates of the executives, along with some members of the national parliaments and the EP, experts and - why not ? - citizens (at least the associations or NGOs could be invited to make comments or proposals).
The model of the Charter could be used again, or another similar one. We should never accept to call constitution an ersatz of treaty, negotiated under the same conditions.

What we need is a new kind of act, adopted with all the legitimate representatives of the people, ratified within the framework of the EU, not in x national Parliaments, frustrated because they can only "take it or leave it". With thirty members, how long will the ratification process last ?
This revolution would be welcomed by the citizens. It would put an end to the fight between Europe and the nations, instead of giving the false impression of an EU built against the member states. If a vanguard appears, it will be easier to let it be tolerated by the others. It would have to remain open.

3. We would keep the current institutional framework which remains adapted to the nature of the EU, even if some reforms are necessary: as long as the Union remains a Union of states and a Union of citizens, we need bodies like the Council (representing the states), bodies like the EP (representing the citizens) and a neutral, supranational team (the Commission). Of course, it could be possible to improve the functioning of all of them: in creating a better link between the EP and the voters, in creating supranational lists for this election, in making the Commission more political, or in transforming the Council of Ministers in a kind of second assembly (for some matters, the Council could meet as a chamber of nations; in this case, the delegates of each state would come from the national parliaments). The primacy of the European rules should remain granted by the Court of Justice.

4. We should be ready to explain that enlargement is a big chance for all of us, the best way to stabilize the continent, if .... we are ready to pay the price for it: the institutional price, the financial price. Stability and success depend on our solidarity and our readiness to play a real collective game. We are not going to have a powerful Europe without putting in common the necessary means...1,27% of the GDP is ridiculous if you think in terms of "worldwide" power! As they say in America: Just do it!

5. We should take seriously the problem of keeping alive the cultural diversity of the broad EU. The ones who think that millions of very different people could do successfully together what they have to do, without knowing each other better, without investing much more money in education, without developing the learning of foreign languages, without integrating the cultural diversity in the conception of institutions, make a huge mistake. When two companies merge, "human resources" are one of the main concerns of the managers. That is the main reason why I firmly believe that a possible new conference after Nice couldn't only deal with the left-overs of the left-overs...

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