Since the entry into force of the Treaty of Maastricht and up to the adoption of the draft constitution by the IGC in June 2004, the European Parliament has acquired growing legislative influence, redefining its relationship with the Council and modifiying the balance of powers among the three institutions, arguably to the detriment of the Commission. In contrast, a number of new provisions of the constitution, especially the “presidential” innovations, are designed to increase the Member States' influence. Only few areas of shared sovereignty are added, important fields of activity are left untouched or appear to be shifted under executive domination. This is particularly manifest in foreign and macro-economic policy. Furthermore, the accession of ten new Member States, introducing new decision-making dynamics and enhanced socio-cultural and socio-economic diversity, combined with the historically novel coincidence of a liberal-conservative Commission and a Parliament dominated by liberal-conservative groups, could reduce legislative proposals with redistributive or harmonizing ambitions. Borrowing instruments from both historical institutionalism and liberal intergovernmentalism, we analyse selected institutional novelties of the constitution which will transform the future functioning of policy-making in the Union. In particular, the focus of the EU's activities could increasingly shift from the legislative to the executive domain, which raises the question of how, in which policy fields, and with which institutional interplay the Union will probably carry out its tasks under the new provisions in the foreseeable future, with rather limited resources.
1. Introduction 3
2. Method 5
2.1. Choice of instruments 5
2.2. Institutions and policy-making powers: two analytical dimensions 6
3. The Genesis of the European Constitution 9
3.1. Preparation of a key player position: France 9
3.2. Institutional decisions of the Convention and the IGC 10
3.3. Negotiation strategies 11
4. Institutional Architecture and Policy-making after the Constitution 17
4.1. Assessing the new institutional arrangements 17
4.1.1. Supranational or intergovernmental? 17
4.1.2. Executive leadership or stronger legislation? 17
4.2. Constitutional politics, rational self-interest and policy reform 19
4.2.1. Functional and symbolic visibility 19
4.2.2. Growing diversity 21
4.2.3. Policy preferences of the member states 23
4.2.4. Preferences of the Commission and the European Parliament 24
4.3. Policy-making after the Constitution: three scenarios 25
5. Conclusion 29
In many ways, 2004 can be considered as a crucial year for the European Union (EU), with the accession of ten new member states in May, the election of an enlarged European Parliament (EP) in June, and the adoption of the Constitutional Treaty1 by the Intergovernmental Conference (IGC) in October. At the same time, the rather limited enthusiasm surrounding the celebrations on the 1st of May and the difficulties encountered before the final approval of the heads of state and government for the new Constitution revealed some potential future problems. Not only will the new and, with the exception of Poland, exclusively small member states have to be fully integrated into the existing structures of the Union, but the integration project as a whole is put to a major test in what is prone to become a lengthy ratification process with an open ending for its new Constitution.
As the ultimate product of what has been termed the "post-Nice process", the latest treaty revision has fallen short of the hopes many ambitious integrationists had linked to it. While the Constitution does not represent the "establishment act" of a new (federal) Union, it still comprises some considerable changes, including remarkable institutional novelties, such as the creation of a President of the European Council. These new institutional arrangements - once they will have come into force -, the proliferation of small member states and the socio-economic diversification that this brings about, as well as the novel co-existence of a liberal-conservative Commission and a Parliament dominated by liberal-conservative groups, set the stage for major alterations in the future functioning of the policy-making procedures within the Union.
One of the central points raised on each of the past treaty revisions concerned their potential implications for the "inter-institutional balance" within the EU political system. For decades, the ever-recurrent divide between supranationalism and intergovernmentalism played a prominent role in the assessment of treaty changes. This terminology proved to be very efficient in enabling a better understanding of the traditional "balancing act"2 the EU had to perform between the representation of national or territorial interests, on the one hand, and "European" or functional interests on the other. Generally spoken, intergovernmentalists believe that the European Union is best conceived as a union of sovereign states, whereas supranationalists hold that only a high degree of autonomy of the European institutions and shared responsibility of all actors involved in the integration process guarantees an efficient and legitimate functioning of the Union. Many of them see a federal-like structure as the most desirable endpoint of the EU's evolution.
This type of ready-to-use interpretation has been contested for two reasons: With each reform process, treaty revision has become a more complex and thus laborious exercise, due to the growing number of actors and issues involved, and the difficulties arising from this in finding sufficient compromises. Hence, the solutions found were never easy classify. At the same time, treaty reform must be regarded as a "continuous" and cumulative process3, which reached its latest peak in the post-Nice process. It is thus insufficient to assess modifications to the institutional architecture (the "polity") of the EU without also considering changes in day-to-day politics when the new rules have to be implemented.
In previous treaty reforms, changes to the institutional architecture of the EU had often been beneficial to the European Parliament, which gained considerable legislative rights in the course of a relatively short period of time. Analysts claim that this extension of the Parliament’s rights often represented a reaction to substantial transfers of sovereignty from the national to the supranational level, as a means of compensating for the identified legitimacy deficits resulting from these transfers.4 The consequence was - in many cases - a strengthening of the role of the Parliament in day-to-day politics, and thus an ambitious legislative agenda driven forward by cooperative efforts of the Commission and the EP.
By convening a Convention on the Future of Europe, the range of actors involved in treaty reform was largely extended, to the point that the work this body conducted resembled in many ways that of a parliamentary assembly. In drafting a Constitution, the Convention exceeded its original task of preparing the following Intergovernmental Conference. The long and often painful process of elaborating a compromise that would fit all participants´ preferences proved to be a major challenge, as the rifts were numerous: between old and new, small and big member states, integrationists and intergovernmentalists, and ideological right-left cleavages.
While the changes that the Constitution will bring about seem once again favorable for the EP - considering for instance the fact that the EP will be able to elect the President of the Commission, that the new law-making procedure has been extended to further areas and that it will have more influence on the agriculture budget - serious concerns have been raised if these improvements do not come at too high a price for the supranational institutions. As vigilant participants of the Convention, like the Belgium Foreign Minister and longtime MEP Karel de Gucht, already pointed out during the ongoing deliberation process that what might seem like a strengthening of the Community method could in fact turn out to weaken the Commission, and hence, very probably, the EP. Even before the new mode of electing the Commission President was decided, De Gucht touched on the question of whether the "symbolic legitimacy" associated with it could also be interpreted as reducing the powers of this body in the long run.5 He identified a trade-off between this institutional innovation and the creation of a President of the European Council, in his view a post that could really become a symbol of the EU. With other changes, this "intergovernmental coup d´état" could sustainably damage the role of the Commission and the legislative efforts of the EP would also fade away in many domains. Similarly to de Gucht's concerns, EU scholars have also been drawing attention to the fact that the Commission might lose some of its potential.6 Some even ask if we must expect "the end of the Community method."7
This brief overview of what we see, potentially, as one of the main problems concerning the anticipated coming into force of the new Constitution provides the framework for the following analysis: the new constitutional arrangements seem to provide for a veritable shift from the "legislative" to the "executive" or, in other terms, from "low politics" to "high politics". In addition, the socio-economic and geographical transformations of the EU over the past years will have a further impact on the level of ambition prevalent in European policy-making, especially in the macroeconomic and redistributive areas. Against this background, will we witness a trend of re-nationalization? Or will the "Parliamentarization" path advocated by Joschka Fischer in 2000 prevail? More generally, will the changes in the polity of the Union provide for more supranational or rather for more intergovernmental policy management?
In our attempt to provide some answers to these questions we shall proceed in the following way: in section 2, we outline the method and framework for our analysis in two steps. First, the basic features of intergovernmentalism and supranationalism will be briefly revisited and supplemented by introducing a distinction between changes affecting legislative and executive powers. In part 3, we will discuss selected changes in the institutional structure of the EU and delineate how these came into being in the course of the post-Nice process and the Convention debates. The relationship between "constitutional talk" and political legitimacy will also be briefly touched upon. Part 4 outlines the preference structure of selected member states, based on an analysis of their socio-economic situation and its effects on attitudes towards the EU in the population. In section 5, we will then develop three scenarios of how institutional and preference changes might impact on the future day-to-day policy-making of the Union, again taking into consideration the political situation and increasing diversity of an EU of 25 member states. In the conclusion, the most plausible scenario will be summarized in view of the question of what kind of Europe we can expect and whether the "tried and true" distinction between supranationalism and intergovernmentalism can still serve as a device for analysis.