Do Conventions provide a democratic means for the revision of Treaties?

Published on April 10, 2003

Story by

petra zeinhofer

Translation by:

anna morrissey

European integration has come to a decisive point in its development. On the 28th February 2002 the Convention on the future of Europe got underway. For the first time in the history of treaty reform, it was not the representatives of the Member States' governments who called the shots behind closed doors, and via a marathon of negotiations, deciding what is best for the citizens of Europe. An assembly called a Convention, which was composed of Members of Parliament, Commission experts and government representatives were involved in the thorough analysis of the European Institutions and their functions.. The work of this convention was to form the basis of the tasks of the next Inter-Governmental Conference (IGC). The composition of the Convention speaks for itself : the parliamentary component is the most important, and probably more so than its weight in numbers. A democratic method of preparing for the revision of the Treaties was chosen.

This was not the first Convention to be established at the European level. One could claim that the Convention on the development of the Charter of Fundamental Rights was its predecessor.. Nevertheless the task of the former was more of a revelation than its actual creation, and it was more a task of compilation than innovation. Why then did we re-apply this formula in order to prepare for the revision of the Treaties? The answer is to be found in the failure of the mechanisms which had previously been employed..

Nice : Raison d'être of the Convention

In general, one should note that the previous IGCs (Member state summits for the revision of the founding Treaties) had two points in common : Alterations were made step by step and they took place with increasingly shorter intervals. At the end of an IGC, the next one was announced. One could therefore assert that the Treaties were in a constant state of revision. However, the last IGC's, especially the ones in Amsterdam and Nice, did not produce the results that were hoped for. Such disappointment therefore favoured the creation of the Convention. As Jose-Maria Aznar remarked at the inaugural session of the Convention, "Nice was the reason that we are here today."

The European Union is currently preparing the for the fifth reform of its Treaties to happen in under twenty months. A new method was developed for this exact purpose. What was the classic method? According to article 48 of the Treaty on European Union (TUE), the Treaties are revised by common agreement at an IGC, composed of member states. The amendments come into force after having been ratified by all Member states, conforming to their respective constitutional rules. This particular part of the revision process has not changed. What has changed with the creation of the Convention, is the phase of the preparation of revision. In the past, the IGC were prepared by groups of advisers, experts, or by discussion groups. Let us examine these three methods of preparation. The groups of advisers were often comprised of highly-skilled individuals, with well-known experience in the field of European practices. A commissioner or ex-commissioner could be called upon to join the group in an individual capacity. The group members were not held accountable by national interests, and were subsequently free to make realistic and original proposals. One of these groups of advisers, headed by Jean Luc Deheane in 1999 produced invaluable results regarding the future direction of the EU.

A group of experts was convened when it was necessary to find a solution to one of the technical questions. However, these experts were in no position to make political decisions..

Finally, the IGC which adopted the Single European Act of 1987 (SEA) was prepared by the Dooge Commission, composed of governmental representatives. The IGC of 1996 was also planned by such a commission , and this time went by the name of a 'discussion group', under the supervision of Carlos Westendorp. This commission was not only made up of government representatives, but also featured members of the Commission and the European Parliament. The discussion group identified the subjects on which a consensus could be formed and produced a clear and realistic agenda.

The discussion group could be justly considered as a predecessor to the current Convention. If it were more limited in its numbers, the composition of the discussion group would be more like that of the Convention. Three of the four categories of the members of the Convention (governmental representatives, members of the national parliaments, of the Commission and of the EP) were represented at the heart of the Westendorp discussion group. It was therefore much more than a simple 'governmental' discussion group.

None of these methods can however be a substitute for the IGC. The Convention itself does not have the power to make the final decision. In actual fact, this decision must only be made by the representatives of the governments of the Member states. The Convention will generate a final document which will take the form of a project for a single constitutional treaty, built upon the basis of the Treaty on the European Communities and the Treaty on the European Union, and which should be presented by the president of the Convention before the European Council. This final document will serve as a starting point for the discussions held by the IGC, which will then result in the final decision.

An Ambiguous Relationship with the IGC

What then, is the legal nature of the Convention? From a legal viewpoint, it is easier to consider what the Convention ISNT as opposed to what it actually IS. It is definitely not a sort of intergovernmental conference. In fact, its relationship with the IGC is fairly peculiar : On the one hand it constitutes a method of planning for the IGC and is therefore connected to the latter ; On the other hand, it breaks the long tradition of classical amendments. Its relationship with the IGC can therefore be classed as ambiguous.

Even if it were to be become institutionalised, the Convention would not be a European institution in the normal sense. There are five institutions, the Council of Ministers, the Commission, the Parliament, the Court of Justice (ECJ) and the Court of Auditors. The committee of the Regions and the Economic and Social Committee are not institutions, even though they can be seen as institutionalised. One can therefore conclude that the Convention, like the EU, is sui generis, which is to say that it represents something that has never before existed.

One can also qualify the structure of the Convention as somewhat ad hoc, put in place for a limited period, normally a year. This corresponds well with the definition given by President Valéry Giscard d'Estaing who commented during the inaugural session: " A Convention is a group of men and women who meet with the sole aim of finding a common position."

Whatever way we look at it, and whichever definition we decide upon, the Convention needs to be institutionalised. It would be an additional element of legitimacy to benefit European construction.

Story by

petra zeinhofer

Translated from La Convention, méthode démocratique pour la révision des Traités ?