Select Committee on European Union Eleventh Report


THE 2000 INTER-GOVERNMENTAL CONFERENCE

PART 3: THE MAIN AGENDA ITEMS

19. The Portuguese Presidency Report (PPR) which was discussed and approved at the Feira European Council provides the framework for the rest of the work of the IGC. We have also followed it as a structure for this part of our report.

THE PORTUGUESE PRESIDENCY REPORT

20. The PPR is in two parts. The first part sets out the main agenda items, summarises the state of discussions on each one, and attempts to define the main options open to the Conference. The second part sets out draft texts, and more detailed analyses of the options, with statistical tables, etc. The Presidency's covering note states explicitly that the second part "merely involves contributions to the discussion … which cannot be regarded as formal proposals binding on the present or future Presidency or on the other delegations."

21. The agenda as set out in the PPR includes the following items:

The three issues listed above are often referred to as "the Amsterdam Triangle" or, less politely, as "the Amsterdam leftovers".

  • The European Parliament (allocation of seats in an enlarged Union and the legislative role of the EP)
  • The Court of Justice and the Court of First Instance
  • The other Institutions

      (a) The Court of Auditors

      (b) The Economic and Social Committee

      (c) The Committee of the Regions

  • Closer Co-operation, or "flexibility"
  • "Other Issues"

      (d) Revision of Article 7 of the EU Treaty

      (e)Procedure for establishment of the Community's position when decisions having legal effect are taken in bodies set up under international agreements

22. The PPR notes that institutional reform has to be coupled with "changes in the working methods of the institutions which do not necessarily require amendment of the Treaties". It states that these internal reforms "should be continued actively beyond the end of the current IGC so that the new Member States can be smoothly incorporated into the Union."

23. The PPR also notes that two major initiatives are proceeding in parallel with the work on the IGC. The first is the preparation of a draft Charter of Fundamental Rights of the European Union. This issue has been examined by Sub-Committee E (Law and Institutions) of this Committee. Their report was agreed by the Select Committee on 16 May[17] and debated in the House of Lords on 16 June[18]. The second issue is the definition of a common security and defence policy, which is under consideration by Sub-Committee C, who will report before the Summer Recess.

24. The work on the Charter of Fundamental Rights is proceeding according to the procedures and timetable laid down in the Cologne European Council Conclusions, which provide that a draft of the Charter shall be prepared by a body composed of representatives of the Heads of State and Government and of the President of the Commission as well as of members of the European Parliament and national parliaments, with observers from the European Court of Justice and from the European Court of Human Rights. This body ("the Convention") is to present a report to the Nice European Council in December 2000. At that point:

    "The European Council will propose to the European Parliament and the Commission that, together with the Council, they should solemnly proclaim on the basis of the draft document a European Charter of Fundamental Rights. It will then have to be considered whether and, if so, how the Charter should be integrated into the treaties."

25. As we said in our recent report on the Charter[19] an essentially political act, such as a proclamation, would not close any of the gaps that currently exist in Community law in the protection of fundamental rights within the European Union and accession by the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is what is needed. That is the issue which should be on the agenda of the IGC[20].

26. As far as the development of the common European Security and Defence policy is concerned, a working document submitted to the Feira European Council records the opinion of the Council Legal Service that the conclusions of the Cologne and Helsinki European Councils regarding Security and Defence policy

    "can be implemented without it being legally necessary to amend the Treaty on European Union. However, such amendments would be necessary in order to transfer the Council's decision-making powers to a body made up of officials, or to amend the Treaty's provisions regarding the WEU. Furthermore, it is for Member States to determine whether amendments to the Treaty would be politically desirable or operationally appropriate.

    The Presidency suggests that the issue of Treaty revision should continue to be examined between the Feira and Nice European Councils".

27. The PPR also includes a list of items which will not be considered (or will not be considered further) at the Conference. This is reproduced in Appendix 5 to this Report. We do not consider these issues further, although we have received evidence on some of them, which is included in the Minutes of Evidence.

28. The substantive agenda items are considered in more detail in the remainder of this part of our Report.

The "amsterdam triangle" of issues

29. The three issues which make up the "Amsterdam Triangle" (the Commission, weighting of votes in the Council, extension of QMV) are described by the PPR as complete package. The PPR notes that "the overall balance can only be evaluated in the context of a comprehensive solution at the end of negotiations … the result is that this report cannot record formal agreement at this juncture on any of the points under discussion … some positions are still fairly divergent, since the final deadline is still too far ahead to be a source of pressure."

THE SIZE AND COMPOSITION OF THE COMMISSION

30. The Commission is currently made up of twenty Members, two each from France, Germany, Spain and the United Kingdom, and one from each of the other Member States. If the pattern of appointments to the College of Commissioners is unchanged, there is a risk, as the Government has pointed out, that this will lead to "an unwieldy Commission, in which the responsibilities of Commissioners are fragmented"[21]. Lord Brittan of Spennithorne described some of the problems faced by the present Commission of twenty Members where, on important issues, every member felt obliged to contribute, and thus discussions became "intolerable". He considered that the optimum size for the Commission was no more than 20 to 25, which was about the size of most effective Cabinets in "the vast majority of countries" (Q 118). The French Ambassador in London, HE M. Daniel Bernard, argued that the Commission of 20 Members has reached "a limit beyond which the efficiency of its work is bound to suffer" (Q 228).

31. The PPR sets out two options for the Conference. The first is to move to one Commissioner per Member State. This would involve the four countries with two Commissioners giving up one of their posts. The second - more radical - option set out in the PPR is to move to a system where the number of Commissioners is limited, however many Member States there are in the Union.

32. The PPR makes it clear that the first option is favoured by most delegations, and this was confirmed by those witnesses with first-hand experience of the negotiations. Sir Stephen Wall, UK Permanent Representative to the EU confirmed that "a majority of our partners are very attached to one Commissioner per Member State. Many of them argue that this is not for the protection of national interests but so that there is somebody who understands each national position in the College of Commissioners" However, he confirmed the Government's view, stated at the outset of negotiations in the White Paper, that "we are not going to move to one per Member State unless there is a very satisfactory deal on the reweighting of votes." (Q 407).

33. Professor Helen Wallace pointed out the dangers of having one Commissioner per Member State:

    "The proposal that every Member State should have one and "its" Commissioner risks distorting the role of the Commission and pushing it towards being a body in some sense "representative" of the Member States, the core function of the Council. This might well neither help the Commission to reform itself into a high-quality collective agency nor facilitate the work of the Council as the core representative body." (p 33)

34. M. Bernard told us that this view is also held by the French and German Governments, who consider that a ceiling of 20 should be set on the number of Commissioners because "the idea that Commissioners are representative of their country should be rejected as it is contrary to the Treaty of Rome" (Q 228).

35. Mr Elmar Brok, MEP, one of the European Parliament's representatives to the IGC thought that the outcome would be a compromise, whereby every country would keep a Commissioner, but the Commission President would have a strengthened role. There would be a de facto division of the Commission into senior and junior posts, and the President would have the power to give posts to Commissioners and take them away, in a similar way to the "reshuffling" which takes place from time to time in most governments. This would be a way of recognising good performance. Mr Frank Vibert, Director of the European Policy Forum, considered that the Commission might, in future, be composed of "boards" of five or seven dealing with key portfolios. He considered this to be desirable, as it would avoid important portfolios becoming "personalised" with one Commissioner (Q 3).

36. The views of the applicant states have been taken into account in the Conference, and without exception they favour one Commissioner per Member State. The Hungarian Ambassador in London, HE Mr Gabor Szentivanyi, told the Committee that "at the present state of development of the Union, every Member State should be able to have a Commissioner". He was in favour of restructuring the College, but on condition that there was no two-tier Commission, and that the "collegial nature of decisions should be preserved." (Q 515). This might be achieved by a system of senior and junior commissioners and the creation of "cabinets of commissioners", provided that "a fair system of rotation is ensured" (Q 516).

37. The PPR sums up the options for the internal reform of the Commission being considered by the Conference as follows:

  • Increasing the powers of the President, by giving him particular responsibility for directing the Commission's general policy line and more authority vis-à-vis the other members (casting vote, allocation of portfolios etc.)
  • Creating additional posts for Vice-Presidents, (currently a maximum of two - Article 217 EC) to bring their number up to 6 or 8 in all, to co-ordinate the Commission's activities in different areas
  • The possibility of "Commissioners without portfolio" who would be assigned co-ordination tasks or given special responsibilities by the President (PPR, p 14).

38. The PPR records that discussions reveal "great willingness to move towards the above types of reform, with some preference for increasing the President's role and creating more Vice-Presidents". However, differences remain as to whether these changes should be incorporated in the Treaties, or should be left to the discretion of the Commission and its President. One of the problems with these proposals is that they might lead to a two-tier Commission, albeit one in which each Commissioner had exactly equivalent voting rights. The difficulty facing the Conference is well summed up in the ambiguous language of the PPR: "The majority of delegations felt that the emergence of a hierarchy should not under any circumstances result in two categories of Commissioners being created."

39. Some of the potential advantages and difficulties of such an arrangement were outlined by Lord Brittan of Spennithorne, a former Vice-President of the Commission. On the positive side, large portfolios could be more effectively handled by teams of Commissioners. In the area of external relations, for example, visitors to Brussels expected to see a Commissioner, rather than a senior official, and at present there is only one Commissioner whom they can see. On the other hand, there are delicate questions of status - "smaller countries would be extremely reluctant ever to forego a Commissioner, and extremely reluctant to relegate that Commissioner … to junior Commissioner". The possibility of junior and senior Commissioners with equal voting rights and differing points of view speaking against one another and voting differently was "a recipe for confusion, to put it mildly". He concluded that there was no painless way of achieving such a restructuring (Q 123).

40. The unanimous view of our witnesses is that the larger Member States will lose their second Commissioner, and that in future there will be one Commissioner per Member State. While it appears that this may be the outcome, we are not convinced that this is a desirable result. The Commission is already larger than is justified by the portfolios to be distributed or the tasks to be fulfilled. A larger Commission risks being neither credible nor efficient.

41. The argument that each Member State should have "its" Commissioner clearly has considerable support among the Member States and the applicant States. The justification generally given for this approach is that the presence of all of the Member States in the Commission is necessary, in order to ensure that the full range of national sensibilities is taken into account when policy is being decided. However, the EC Treaty states explicitly that Commissioners do not represent their State, nor do they represent the Government of that State. It requires Commissioners to be "completely independent in the performance of their duties", and states that they "shall neither seek nor take instructions from any government or from any other body". The Member States for their part undertake "not to seek to influence the Members of the Commission in the performance of their tasks" (Art 213.2). Regrettably, there is a tendency for these principles to be ignored in practice. It is the proper function of Governments, acting through their Permanent Representations in Brussels, to ensure that national interests and sensibilities are taken into account when policy is being decided.

42. A decision to move to a much smaller college of Commissioners would mark a clear break with the idea that Commissioners in some way represent national interests. It would also, in our view, promote a more efficient direction of the Commission's work. Unless this break is made now, we feel that there is no realistic prospect of it being made in the future, e.g. at the time of a further enlargement. For these reasons we consider that it would be very much better to limit the number of Commissioners, preferably to a number below 20.

43. If, however, the member Governments resist moving to fewer than one Commissioner per Member State, it will become even more urgent to re-organise the internal workings of the Commission. We regard it as essential that this is clearly accepted, and its fundamentals decided, before there is the final agreement on the question of one Commissioner per State. The working practices are already under severe strain in a Commission of 20. Lord Brittan of Spennithorne described the practice of "tours de table", where each Commissioner gives his view on the subject under discussion, as "intolerable". It can only become more so as the Commission is enlarged, and nears 30 Members. If the IGC agrees to allow the Commission to expand above 20 or so Members, it must consider how such a large body is to work efficiently.

44. We have considered several proposals for structural change, some of which may require Treaty amendment. The proposal that there should be an increased number of Vice-Presidents, in charge of major policy areas, assisted by teams of Commissioners, is one which clearly commands support in the IGC. If the Commission is to enlarge, we would be in favour of such a development. We would also favour the use of "boards" or "committees" of Commissioners to prepare topics for discussion at full meetings of the Commission.

45. One proposal which we do not favour is the appointment of "Commissioners without Portfolio" to co-ordinate developments affecting more than one policy area. We consider this as unlikely to work in practice. All of the Commissioners have equal status and voting rights, and it is difficult to see how clashes of interests between two Commissioners could easily be resolved by the involvement of a third Commissioner of like status. The problem of co-ordination of policy needs to be addressed in the organisation of the Commission's staff, and in particular addressing the present "vertical" division of the Commission into Directorates-General.

RE-WEIGHTING OF VOTES IN THE COUNCIL

46. The PPR describes the current system of weighting of votes, under which the number of votes of each Council member reflects the relative population of the relevant Member State, "not in absolute, linear terms but in accordance with a formula of highly digressive proportionality resulting from a political agreement, with Member States which have a more or less comparable population size placed in categories which have the same number of votes"

47. With each successive enlargement of the Union, new Member States have been placed in categories in accordance with the same principle. The necessary threshold to achieve a qualified majority, which has remained virtually unchanged through the years, is in the region of 71 per cent of the total votes. The current majority required is 62 votes out of a total of 87. It follows that 26 votes are required to block any piece of legislation.

48. As the Union has enlarged, the percentage of the total votes required to adopt or block legislation has remained roughly constant. But when population is taken into account, the picture becomes considerably more complicated. Under the present system of weighting, Member States with a smaller population have more votes than their size alone would justify. So, for example, Germany has 10 votes (or one vote per 8.2 million of population), the United Kingdom has 10 votes (or one vote per 6 million of population) while Luxembourg has two votes (or one per 200,000 of population). The combined population of ten of the current fifteen Member States is smaller than that of Germany. These States between them have 39 votes. At present, a minimum level of population of about 58 per cent is required for a proposal to be adopted. Following enlargement, if the present system remained unchanged, there is a theoretical possibility that states comprising a minority of the EU's population could outvote those states making up the majority. In the Government's view "this would negate democratic legitimacy in the Council[22]" . The combined population of the three Baltic States, for example, is comparable to that of Scotland. It is open to question whether their combined votes should be comparable to that of the United Kingdom.

49. The PPR sets out a range of options for reform. First of all, there is a choice between a dual-majority system and a simple reweighting of votes.

50. In a dual majority system, any vote would require two thresholds to be passed:

  • A number of Member States or weighted votes, and
  • A percentage of the total population of the Union.

51. The choices to be made within the dual majority system are

  • between a majority of Member States and a majority of weighted votes as the first threshold to be passed
  • If a majority of weighted votes is one of the thresholds, between maintaining the present weighting scale or reweighting in favour of the Member States with the largest populations.
  • The size of the majority required for the first and second thresholds. The Conference has considered proposals ranging between 50 and 60 percent of the population of the Union plus a minimum number of Member States (50 percent, a majority, or 60 per cent)

52. In a simple reweighting, of votes, the main choices to be made are between:

  • An essentially "political" approach, based on compensating Member States who will lose a second Commissioner
  • A purely arithmetical approach, aimed at securing agreement to a formula which will hold good for subsequent enlargements without the need for renegotiation.

53. The PPR states that there is a divergence of view between delegations on the approach to be adopted. But it records a degree of convergence on the basic principles which need to underlie a revised system:

  • Weighting must reflect the "dual nature" of the Union (a Union of States and of peoples)
  • There is a need for a system which is "equitable, transparent, efficient and easily understood"
  • To ensure legitimacy, a minimum population threshold of 50% is necessary.
  • There is a political link between this issue and the other aspects of the Amsterdam Triangle
  • The weighting system should not make it more difficult for the Council to take decisions.

54. The present system of weighting of votes is unbalanced in the degree to which it favours the smaller States. The inequity of the imbalance will become more and more apparent as the Union enlarges further, to include a larger number of States with smaller populations.

55. We believe that the Portuguese Presidency's statement of principles provides a good basis for further discussion. We would lay emphasis on the need for a system which is transparent and easily understood, and would favour a system of double majorities. Such a system would best reflect the dual nature of the Union, which is a Union of States and of peoples.

56. We believe that, in a double majority system, the first threshold should continue to be a weighted majority, as at present. But we believe that the relative weights of votes should be adjusted, to reflect more closely the populations of the Member States. If the conference decides to remain with a single majority system, then it will be even more important that voting weights are closely matched to population size. Most important of all, however, is that agreement should be reached in order that enlargement can go ahead.


17   EU Charter of Fundamental Rights, 8th Report, Session 1999-2000, HL Paper 67 Back

18   HL Deb, 16 June 2000, Cols 1849-1910. Back

19   EU Charter of Fundamental Rights. 8th Report, 1999-2000, para 154. Back

20   In the debate on the Report in the House on 16 June 2000, differing views were expressed on this matter (HL Deb, Cols 1849-1920). Back

21   White Paper, p.16. Back

22   White Paper, p. 18 Back


 
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