Valéry Giscard d’Estaing, president of the European Convention, rightly described the convention as a great collective enterprise, with the task of drawing up – for the first time in the history of Europe – a pan-European constitution. Giscard was speaking at the ceremony in Aachen on May 29 at which he was awarded the Charlemagne Prize.

But after fifteen months of intensive work in and around the convention, a big question remains. Is it an assembly of the citizens or an assembly of the institutions of Europe that is going to propose the first text for a European constitution to the heads of state and government in Thessaloniki on June 20? The first full draft – presented by the praesidium of the convention on May 26 – takes up the idea of “the will of the citizens and States of Europe” (in Article I, “Establishment of the Union”). The preamble – proposed by the president – speaks, on the other hand, of the conviction that “while remaining proud of their own national identities and history, the peoples of Europe are determined to transcend their ancient divisions, and, united in an ever closer fashion, to forge a common destiny”.

The first draft of the future European constitution goes a long way towards meeting the demands of the representatives of the peoples of Europe and their countries, i.e. the heads of state and government. The representatives of the sovereign, of the people in its national identity, evidently remain very conservative and distrustful of the citizen of Europe and “his” European institutions. The latter are probably going to have to wait for some time in the real power questions, because it does not look as if the more progressive forces in the convention will be able to alter the tenor in the final weeks.

It is hence not surprising that, in a European Union that will in future have legal personality, the European Council (in the composition of the heads of state and government) is also demanding to be one of the Union’s institutions. Designed in 1974 under Helmut Schmidt, Germany’s chancellor at the time, and Giscard d’Estaing, then president of France, as a strategic steering body without institutional character, the European Council is to become a formal, decision-making institution: “Except where the Constitution provides otherwise, decisions of the European Council shall be taken by consensus.” “The European Council shall elect its President, by qualified majority, for a term of two and a half years, renewable once.” “Taking into account the elections to the European Parliament, the European Council, deciding by qualified majority, shall put forward to the European Parliament its proposed candidate for the Presidency of the Commission.” “The European Council, deciding by qualified majority, with the agreement of the President of the Commission shall appoint the Union’s Foreign Minister.”

After lengthy negotiations in the convention and despite several hundred proposed amendments, the praesidium has, for the present, included in the first draft of the constitution the unchanged, original proposals regarding the division of power among the institutions (Title IV). One should not be misled, though, into thinking that the proposal inevitably means the large member states will dominate in the question of appointments to top positions. It has happened often enough that a candidate from a small country proved more acceptable than one from a big country. Decisions on key appointments are ultimately more a question of the basic political direction in European policy than a question of the dominance of individual countries or of large countries over small ones.

It is also proposed that co-decision procedure (qualified majority: majority of member states and at least three-fifths of the population of the Union) between the European Council of Ministers and the European Parliament be applied to an additional 34 policy areas, i.e. 70 in total. With this, t he member states open up further to the designs of the so often criticised “Brussels bureaucracy”. This implies a considerable curtailment of the scope for political action at the national level and thus harbours the risk of latent potential for conflict (e.g. in competition and industrial policy, take-over directive) with national governments in the event of their being constantly overruled by “European” decisions. The criticism will primarily hit the European Commission, the guardian of the treaties, which has the monopoly to initiate European legislative proceedings.

The enlargement of the European Union to 25 members in May 2004 will be an enormous political challenge to the European institutions since decision-making will become even more difficult in a Union that will be very heterogeneous, both economically and socially. The proposal that the number of members in the European Commission be limited to the president and, at most, 14 other commissioners is therefore to be welcomed. Alongside them, there could be delegated members. It would have been better to apply this to the appointment of the next Commission in autumn 2004 instead of waiting, as now planned, until 2009.

It will be interesting to see how the instrument of “enhanced cooperation”, which has been taken up again, will develop in future. It was introduced in the Amsterdam Treaty and altered by the Treaty of Nice. In principle it is a “last resort” when a measure cannot be implemented by the Union as a whole. While it has not been used in the past, in a Union with increasingly diverse member states it could become a foundation stone for an (open) core Europe. The 15-member EU already has wide experience of areas in which “the objectives […] cannot be attained within a reasonable period by applying the relevant provisions of the Treaties”. Member states could enhance their cooperation (providing at least one-third of the states are brought together) not only in sensitive areas such as foreign and security policy or taxation, which will mostly continue to require unanimous decisions, but also in all areas for which the Union and the member states share competence. However, this path still requires the assent of the other member states: “Authorisation to proceed with enhanced cooperation shall be granted by a decision of the Council, acting by a qualified majority on a proposal from the Commission and after obtaining the assent of the European Parliament.” Will this enable some of the member states to attain qualitative objectives (e.g. harmonisation in the single market) in areas in which the Union as a whole fails for years to make progress on the basis of qualified majorities or co-decision procedure?

It is disappointing that something similar cannot be done in the coordination of economic policy. Here, the European Commission – with its “Recommendation on the Broad Guidelines on the Economic Policies of the Member States and the Community” – remains underrepresented in the institutional power structure. “The Member States shall coordinate their economic policies within the Union”, and they will continue to reserve for themselves the right to interpret the extent of their coordination in this area. Systematic involvement of the Eurogroup (the ministers of the member states that have introduced the euro) in this process would be appropriate, but the opportunity has probably been missed.