Tema Europeana

The European Union Constitutional Treaty:
quest for efficiency and effectiveness?
 

SORIN DENCA

The debate surrounding the European Union Constitutional Treaty has been and continues to be a contentious one firstly because it represents a major project for the future of the EU. Secondly, the debate raises major questions about the inter-institutional balance of power within an extended Union and on the distribution of power between the Union and the member states (Nugent & Paterson, 2004, p.100). Within this general debate, the specific issue of whether the EU would be more efficient and effective under the new Constitutional Treaty provisions has been an important one.

The purpose of this article is to examine this possibility. I will not take into consideration the debate about the ratification process, which is a separate subject, but about the efficiency and effective functioning of the EU, in the case of a ratified Constitutional Treaty, alone. The topic, nonetheless, is a complex one, starting for instance with what is the meaning of concepts likes ‘efficiency’ or ‘effective functioning’, and continuing with how the efficiency can be measured. We must also consider what criteria allow us to appreciate whether the EU will be more efficient than today under the new Constitutional Treaty clauses.

Some scholars describe efficiency in terms of time length between a Commission proposal and a Council decision (Schultz & Konig, 2000). Others take into consideration not only the speed but also the volume of the legislation adopted (Golub, 1999). Although such approaches could say something about efficiency in quantitative terms, they do not tell us anything about the overall performance in qualitative terms, for example, is the EU’s decision-making machinery an efficient one or not? (Neyer, 2004, p.22). A clearer definition was issued by the European Commission through its White Paper on Reform. Efficiency refers to “the challenge of ensuring maximum results with limited resources” (European Commission, 2000, p.8) which is the economic meaning of the concept of efficiency (Egeberg, 2003, p.134). In another document of the European Commission, the White Paper on Governance, the term ‘effectiveness’ encompasses the fact that ‘policies must be effective and timely, delivering what is needed on the basis of clear objectives, an evaluation of future impact and, where available, of past experience’ (European Commission, 2001, p.10).

I will argue that the Constitutional Treaty will not increase ‘significantly’ the efficiency and effective functioning of the Union, because it does not represent a major shift compared to the previous Treaties. This main feature of the EU Constitutional Treaty is the effect of national preferences aggregation, defended by member states during the Convention and Intergovernmental Conference.

Therefore, this paper will comprise three sections. Firstly, I will attempt to understand what the current relation is between the decision-making process and the EU’s efficiency and effectiveness. Secondly, I will examine briefly the national positions exposed during the negotiation process. Finally, I will analyze the decision-making mechanism as it is envisaged by the Constitutional Treaty.

How efficient and effective is the EU’s decision-making mechanism?

Analyzing the EU decision-making process, Neill Nugent considers that ‘what is distinctive about the EU … is the sheer range and complexity of its processes: a host of actors, operating within the context of numerous EU and national institutions, interact with one another on the basis of an array of different decision-making rules and procedures’ (Nugent, 2003, p.332).

An exhaustive and comprehensive analysis of the decision-making process and its implication on the efficiency and effective functioning of the EU raises a lot of problems, from this perspective, and even if one takes into consideration the most important institutions involved in this process alone, the challenge is not less difficult.

The existing analyses lead to different results and explanations for the efficiency of the decision- making mechanism. For instance, by examining the number of EU directives adopted between 1974 and 1995, Jonathan Golub found that, contrary to the common opinion that the introduction of qualified majority voting system has increased the efficiency of decision-making process, the empirical data suggested that there is no such evident relation. Thus, during 1987-1992 the majority voting had a positive effect on speed but no more than during 1979-1983 because the decision-making process was constrained by additional parliamentary procedures and by the delayed and legislative backlog. After the Single European Act and later on Maastricht, the increased involvement of the Parliament further encumbered the legislative process (Golub, 1999, p.759). The explanation offered by Golub rests on the ‘emergence of a veto culture’ that went hand in hand with the expansion of qualified majority voting.

Analyzing the time lag between Commission proposal and Council decision, Schultz and Konig asserted that the EU’s institutional reform significantly affected the efficiency of the decision-making process in four ways, the use of qualified majority voting decreases the proposal-decision time lag, the involvement of the Parliament increases the time lag, the time lag is longer in the case of core EU policies than in case of other policies and, finally, Directives have longer time lag than Regulations or Decisions (Shultz & Keonig, 2000, p.665).

Although the two analyses produced different results on the efficiency of decision making process, both of them led to the conclusion that the European Parliament affects the length of the decision-making process. However, it is not very clear whether the decision-making mechanism under the current treaties has a positive influence on the efficiency and effective functioning of the EU, different analyses giving contradictory results. The efficiency and effectiveness does not depend on the institutional arrangements alone but, in many cases, on the national preferences of the member states involved in the decision-making process.

The national preference as driving forces in shaping the EU Constitutional Treaty

Andrew Moravcsik defined national preferences as an ordered and weighted set of values placed on future substantive outcomes …that might result from international political interaction’ (Moravcsik, 1999, p.24). This means that the results of political bargaining depend more on the previous institutional choice, for instance the option to adopt decisions by majority rather than unanimity. The Constitutional Treaty might be seen in this context as the outcome of a negotiation process in which a variety of policy actors have tried to shift the EU’s institutional path in the direction that suits their substantive preferences (Devuyst, 2004, p. 2).

In order to assess the tendency of national preferences in connection to the institutional reform, it is useful to utilize a scale-index ranging from communautaire to intergovernmental positions. A synthesis of national positions was elaborated by the Irish Institute of European Affairs. According to this, the Benelux states and the European Commission have the most obvious communautaire approach. Greece, Finland and Ireland have a quasi-communautaire position, and Austria, Portugal, Sweden, Denmark and Italy a quasi-intergovernmental one. France and Germany are considered as having an intergovernmental-federal vision while Spain and United Kingdom are fully intergovernmental in their preferences (Institute of European Affairs, 2003). The communautaire, i.e. supranational, preferences envisaged an elected Commission by the European Parliament or directly, a reduction in the number of commissioners, a rotating presidency of the Council, no permanent chair for each council, public meetings, no full presidency for the European Council, and an extension of co-decision procedure. The opposite register, i.e. intergovernmental, favoured the current procedure to elect the Commission’s president, by the European Council with the Parliament approval and it agreed the downsizing in the number of the Commissioners. Meanwhile, it was unfavourable to making completely public the Council’s works. The team presidency for the Council, and full time president of the European Council, appointed by head of states, are other themes supported by the intergovernmental group of states. Summarizing all these positions mean more governmental control and the European Council as source of leadership.

The Constitutional Treaty and the decision making mechanism

One of the main goals of the Constitutional Treaty was to increase the efficiency and effectiveness of the decision-making mechanism against the background of the extensive enlargement. However, finally, the text encompasses many safeguard clauses shaped to preserve a high degree of Member States control over the decision-making process. Clauses like veto-rights and blocking options should hamper the dynamics of decision-making (Devuyst, 2004, p.4).

Council of Ministers
One of the most important changes (and a contentious one during the negotiations) brought by the Constitutional Treaty is the new decision-making system within the Council. The new clauses create two basic regimes, one that is to apply before 1 November 2009, and the other after this date (Dashwood & Johnston, 2004, p.1493). The Nice Treaty provided a threshold for qualified majority in the case of an EU with 15 member states at 169 votes out of 237 (71.31%) while in an enlarged EU (27 Member States), the qualified majority was set at 258 votes out of 345 (73.91%) and the blocking minority at 88, rising to 92 with the accession of the twenty-seventh Member State. Supplementary, a Member State could calls for the verification of qualified majority required to adopt a decision (the threshold is at least 62% of the total population of the Union). These three majority (threshold of weighted votes, majority of Member States and 62% of the population of the Union) established by the Treaty of Nice were replaced by a double majority which, apparently, helped simplify the whole process. The Constitutional Treaty provides that qualified majority ‘shall be defined as at least 55% of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65% of the population of the Union. A blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained’ (Art. I-25 CT). The same article provides that ‘when the Council does not act on a proposal from the Commission or from the Union Minister for Foreign Affairs, the qualified majority shall be defined as at least 72% of the members of the Council, representing Member States comprising at least 65% of the population of the Union’.

Part of the decision-making mechanism, the ‘enhanced cooperation’ is not a novelty, because it is an innovation of the Amsterdam Treaty. Due to the strictness of the conditions required, the enhanced cooperation was never used. The Constitutional Treaty changes the minimum number of participating Member States, from the current eight out of fifteen to one-third of Member States (Art. I-44).

Comparing this new system with the previous one, an analysis of the Centre for Economic Policy Reform concludes that it will make it as easy for 25 or more member-states to agree on a measure as it was when the EU only had 12 members before 1995 (Centre for European Reform, 2004, p.2). The apprehension of Spain and Poland that a group of three biggest member states could oppose an initiative supported by all small and medium-sized member states followed to a threshold for blocking minority of at least four countries. Moreover, the Council would be forced to do its best in order to achieve a satisfactory solution in a reasonable time if a group of member states smaller than a blocking minority is opposed to the adaptation of a particular measure. This fact would have as a result all but a simplification of decision-making in the Council (Devuyst, 2004, p.4). From the perspective of the extension of the qualified majority voting system, the Constitutional Treaty reduces the number of the areas requiring unanimity. A total of forty-four policy areas entered under the qualified majority voting system but excepting the justice and home affairs, the majority of these are of minor importance (Centre for European Reform, 2004, p.2). The same was true in the case of qualified majority extension introduced by the Treaty of Nice, the thirty-seven new provisions covered by this being relatively uncontentious and not very significant political matters (Nugent, 2003).

Certain particularly provisions seems to be inserted, especially to facilitate the decision-making mechanism and further integration. For instance, Art. I-40 (7) provides that ‘European Council may, unanimously, adopt a European decision authorizing the Council to act by a qualified majority in cases other than those referred to in Part III’. According to Art. III-300 (4) this ‘shall not apply to decisions having military or defense implications’. But the Constitution reduced the effectiveness of this bridging clause providing for national parliaments to block the decision of the European Council.

One further transitional safeguard allows a group of member-states (equal to three-quarters of the usual blocking minority) to ask for reconsideration by the Council of a contentious measure “with a view to finding a compromise”. This mechanism, somehow similar to the so-called “Ioannina compromise”, already exists but has never been used (Centre for European Reform, 2004).

European Parliament
The reform of the European Parliament targeted the extension of powers in the Union’s decision-making procedures and the creation of a new system of distributing seats between the Member States to face the challenges of enlargement. The Constitutional Treaty’s answer (Art. I-20) for the second theme was to increase the number of members to 750 (minimum 6 maximum 96 per state) while the final number of members distributed on the basis of regressive proportionality will be decided by the European Council, acting unanimously, before the European elections of 2009.

The main feature of the recent history of the European Parliament is the constant growth of power consistent with consecutive treaty revision. Through the generalization of co-decision as the ‘ordinary legislative procedure’ the EU Parliament will be the Council’s equal partner in the policy areas where co-decision is the law-making procedure (Dashwood & Johnson, 2004, p.1483). As I have already illustrated above, it is disputable if the extension of co-decision procedure will determined an increase in term of decision-making efficiency and effectiveness. The positive aspect rest on the increased legitimacy of the policy making but, on the other hand, this is not necessarily reflected on the overall performance in the EU’s functioning.

European Commission
The most important changes regarding the European Commission, due to enlargement, were the number of commissioners and the election of the president.

The initial proposal of the Conventions shaped a system of commissioners with and without voting rights. This was rejected later in favour of a system based on a commissioner per states principle, similar to the Treaty of Nice system according to which, until 2014 the Commission will consist of one commissioner from each member state. After that, according to Art I-26 (6) ‘…the Commission shall consist of a number of members, including its President and the Union Minister for Foreign Affairs, corresponding to two thirds of the number of Member States, unless the European Council, acting unanimously, decides to alter this number’. It is not at all clear whether the European Council will use this open door to increase the number of commissioners but it is sure that this aspect was a necessary compromise to reach an agreement. The tough negotiation during Intergovernmental Conference clearly showed that member states are not willing to cease their right to appoint a commissioner. But the final form of the Constitutional Treaty brought an important change in the commissioner appointment procedure stating that member states make suggestions but it is up to the Council, by common accord with the President nominee, to adopt by qualified majority votes the list that will be subject of Parliament approval (Craig, 2004, p.13).

If the size of the Commission was a contentious one, not least was the case of the President of the Commission. The member states were not willing to give up the power to nominate the President. Thus, the only significant change was that the European Council has to take explicitly into account the result of the European election before proposing a candidate to the Parliament for approval (Art I-27). The result will not do much to enhance the legitimacy of the Commission (Craig, 2004, p.6).

European Council
The European Council is for the first time included in the EU institutional framework (Art. I-19). More than that, the Constitutional Treaty established a new function, namely the president of the European Council. The chair will be held for two and a half years. The main reason for this change seems to be the fact that in an enlarged Union, the task to prepare the meeting of European Council becomes more difficult for the head of state or government who has to manage simultaneously the six-months rotating presidency and the domestic mandate (Dashwood & Johnson, 2004, p.1491).

Two major implications stem from these changes. First of all, it is recognized that the European Council plays a key role in driving further the integration process. In turn, this recognition has some consequences on EU system as a whole. The relation between the European Council, the Council of Ministers, the Parliament and the Commission will consolidate the role of the first as a leading force in setting the agenda and priorities and adopting the key decisions. Moreover, it reflects the intergovernmental essence of the EU political system.

The EU Minister for Foreign Affairs

It is far from certain if the position of Minister for Foreign Affairs, the so-called ‘double-hat’ merger, will increase the efficiency of the decision making process in the field of the EU external relations. What kind of competencies are related with the EU CFSP as long as this does not fall within none of the three categories of competences defined by the Constitutional Treaty, namely exclusive, shared or competence to support, coordinate or supplement action by the Member States (Cremona 2003; Wessels 2004). There are some doubts that the post-holder will be able to carry on all range of powers entrusted. Much will depend on the profile of the person who will hold the chair and the way in which the External Action Service will be set up (Missiroli 2004; Keane 2005). The new institutional architecture in the field of external relations will increase the executive power of the Commission compared to the actual dominant position of the European Council and the Council of Ministers (Craig, 2004, p.39) but this fact would create confused area of vague political responsibility, in which the Minister for Foreign Affairs might suffer from suspicion by both Council and Commission that this person is a ‘Trojan horse’ of the rival institution’ (Thym, 2004, p.21).

Conclusion

The main purpose of this article was to explore the relation between the decision-making process as independent variable and efficiency and effectiveness as dependent variables. At the same time, I intended to deliver an opinion on whether the Constitutional Treaty will increase the efficiency and effectiveness of the European Union. Nonetheless, the topic is a very broad one and could be addressed from various perspectives.

First, I aimed to understand what the relation between the decision-making process and the efficiency of the EU is. I have done this by looking at some quantitative analyses with different outputs and even contrasting results. This showed that some widespread opinions, for instance that the extension of qualified majority voting will increase the efficiency of decision making, might be false or not necessarily so evident.

Second, starting from the point that the national interests have played an important role during the negotiation of the Constitutional Treaty, I tried to examine national preferences in connection with major points of interest.

Third, I attempted to summarize the most important feature brought by the Constitutional Treaty in relation with the decision-making mechanism. To do this I looked at the more or less new features of the EU’s institutions and decision-making process. I observed that in many cases the Constitutional Treaty is not a major breakthrough compared to the previous treaties. This is because member states, and especially big states, preferred to maintain the status-quo rather than to move further too fast. This fact explains the important number of contentious and sensitive issues which are postponed. At the same time, the requirements for smooth functioning with 25 and more member states still imposed a number of changes. The most important is the case of simplifying the legislative procedure, for instance bringing together the consultation and assent procedure under the ’special legislative procedure’ while co-decision procedure is retained unchanged, becoming the ‘ordinary legislative procedure’.

’The EU … is a political, economic, social and legal hybrid that is characterized by a combination of federal, confederal, supranational and intergovernmental features’ (Burges, 2004, p.40). The Constitutional Treaty reflects the entire complexity and diversity of this framework, the competition and convergence of centripetal and at the same time centrifugal forces. The EU Constitutional Treaty does not create a European super-state but confirms the fact that member states grant the EU power to act in certain defined areas of policy (Centre for European Reform, 2004, p.8). With respect to certain points, the EU will be more effective under the new Constitutional Treaty provisions but this not an overall characteristic. Generally, the efficiency will be a sort of learning by doing process, not one given by the broader framework of Constitution. The emergency brake, the postponed sensitive issues, the opened windows of opportunity should affect the efficiency and effectiveness in a positive or negative sense. Even if the EU Constitutional Treaty is ratified, the decision making process will continue to be a complex and difficult one and the efficiency will depend on certain factors, affecting the developments of the whole system.

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SORIN STEFAN DENCA - Absolvent Facultatea de Drept ‘Simion Barnutiu’ din cadrul Universitatii ‘Lucian Blaga’ din Sibiu, promotia 2000. Masterand Scoala Nationala de Studii Politice si Administrative, specializarea Relatii Internationale si Integrare Europeana. Absolvent Programul Chevening Fellowship in Studii Europene, European Research Institute, Universitatea Birmingham, Marea Britanie.

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