The Treaty of Nice and the Convention on the Future of Europe
The Treaty of Nice only partially prepared the EU for its significant enlargements to the east and south on 1 May 2004 and 1 January 2007. Therefore, as part of the conclusions to the Laeken European Council meeting in December 2001, EU leaders established the European Convention on the Future of Europe – an effort to produce a new legal basis for the EU in the form of a treaty establishing a Constitution for Europe. Following ‘no’ votes in referendums in two of the Member States, this treaty was not ratified.
Treaty of Nice
The Treaty of Nice, which amended the Treaty on European Union (TEU) and the Treaties establishing the European Communities and certain related acts, was signed on 26 February 2001 and entered into force on 1 February 2003.
A. Objectives
The conclusions of the December 1999 Helsinki European Council meeting required that the EU be able, by the end of 2002, to welcome as new Member States the applicant countries that were ready for accession. Since only two of the applicant countries were more populous than the Member State average at the time, this meant that the political weight of countries with smaller populations was due to increase considerably. The Treaty of Nice was therefore meant to increase the efficiency and legitimacy of the EU institutions and to prepare the EU for its next major enlargement.
B. Background
A number of institutional issues had been addressed by the EU intergovernmental conferences (IGCs) of Maastricht in 1992 and Amsterdam in 1997, but were not yet satisfactorily resolved. These issues, which became known as the ‘Amsterdam leftovers’, included the size and composition of the Commission, the weighting of votes in the Council, and the extension of qualified majority voting. On the basis of a report by the Finnish Council Presidency, the Helsinki European Council decided at its December 1999 meeting that an IGC should deal with these ‘leftovers’ and all other changes required in preparation for the enlargement.
C. Content
The resulting IGC opened on 14 February 2000 and completed its work in Nice on 10 December 2000, reaching agreement on the institutional questions and on a range of other points, namely a new distribution of seats in the European Parliament, more flexible arrangements for enhanced cooperation, the monitoring of fundamental rights and values in the EU, and a strengthening of the EU judicial system.
1. Weighting of votes in the Council
Taking together the system of voting in the Council, the composition of the Commission and, to some extent, the distribution of seats in the European Parliament, the 2000 IGC concluded that the main imperative was to change the relative weighting of the Member States’ votes in the Council – a subject no other IGC had addressed since that of 1956-1957, which had led to the Treaty of Rome.
Two methods of defining a qualified majority were considered: a new system of weighting (modifying the existing one) or the application of a dual majority (of votes and of population) – the latter solution having been proposed by the Commission and endorsed by Parliament. The IGC chose the first option. The number of votes was increased for all Member States, but the share accounted for by the most populous Member States decreased: previously 55% of votes, this fell to 45% when the 10 new members joined in 2004, and to 44.5% on 1 January 2007. These changes were accompanied by the introduction of a demographic ‘safety net’: a Member State may request verification that the qualified majority represents at least 62% of the total population of the EU. If it does not, the decision subject to the vote cannot be adopted.
2. The Commission
a. Composition
Since 2005, as stipulated by the Treaty of Nice, the Commission’s College of Commissioners has comprised one Commissioner per Member State. The Council has the power to decide, acting unanimously, on the number of Commissioners and on arrangements for a Member State rotation system, ensuring that each College of Commissioners reflects the demographic and geographical range of the Member States.
b. Internal organisation
The Treaty of Nice provides the President of the Commission with the power to allocate responsibilities to the Commissioners and to reassign them during his or her term of office, as well as to select and determine the number of Vice-Presidents.
3. The European Parliament
a. Composition
The Treaty of Amsterdam had set the maximum number of MEPs at 700. In developing the Treaty of Nice, the European Council thought it necessary, with an eye to enlargement, to revise the number of MEPs for each Member State. The new composition of Parliament was also used to counterbalance the altered weighting of votes in the Council. The maximum number of MEPs was therefore set at 732.
b. Powers
Parliament was enabled, as were the Council, the Commission and the Member States, to bring a legal challenge to acts of the main decision-makers leading the EU’s administration – in Parliament’s case, the Council or the Commission – or the European Central Bank on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law matter relating to its application, or misuse of powers.
Further to a proposal by the Commission, the Treaty of Nice amended Article 191 TEU to form the operational legal basis for the adoption, under the co-decision procedure, of regulations governing political parties at EU level and rules on their funding.
Parliament’s legislative powers were increased through a slight broadening of the scope of the co-decision procedure and by requiring Parliament’s assent for the establishment of enhanced cooperation in areas covered by co-decision. Parliament must also be asked for its opinion should the Council adopt a position on the risk of a serious breach of fundamental rights in a Member State.
4. Reform of the judicial system
a. The Court of Justice of the EU
The Court of Justice of the EU (CJEU) was empowered by the Treaty of Nice to sit in a number of different configurations: in chambers (where it consists of three or five judges), in a Grand Chamber (11 judges) or as the full Court. The Council, acting unanimously, may increase the number of Advocates-General. The CJEU retained jurisdiction over questions referred for a preliminary ruling, but it was enabled, under its Statute, to refer an increased range of actions or proceedings to the General Court – which, before the December 2009 entry into force of the Treaty of Lisbon, was the Court of First Instance.
b. General Court
The powers of the General Court were increased to include certain categories of preliminary ruling, with the possibility of judicial panels being established by unanimous decision of the Council. All these operating provisions, notably on the powers of the Court, were thereafter set out in the amended Treaty establishing the European Community (TEC).
5. Legislative procedures
Although a considerable number (27) of new policies and measures now required qualified majority voting in the Council, co-decision was extended to only a few minor areas (covered by former Articles 13, 62, 63, 65, 157, 159 and 191 TEC); for matters covered by former Article 161 TEC assent was now required.
6. Enhanced cooperation
Like the Treaty of Amsterdam, the Treaty of Nice contained general provisions applying to all areas of enhanced cooperation and provisions specific to each of the three EU ‘pillars’ – or competencies – established by the Treaty of Maastricht: the European Communities pillar, the Common Foreign and Security pillar, and the Justice and Home Affairs pillar. Whereas the Treaty of Amsterdam provided for enhanced cooperation under the first and third pillars only, the Treaty of Nice encompassed all three pillars.
The Treaty of Nice made further changes: referral to the European Council ceased to be an option, the concept of ‘a reasonable period of time’ was clarified, and the assent of Parliament was now required in all areas where enhanced cooperation related to a question covered by the co-decision procedure.
7. Protection of fundamental rights
The Treaty of Nice added a paragraph to Article 7 TEU to cover cases where a patent breach of fundamental rights has not actually occurred but where there is a ‘clear risk’ that it may occur. The Council, acting by a majority of four fifths of its members and after obtaining the assent of Parliament, determines the existence of the risk and addresses appropriate recommendations to the Member State in question. A non-binding Charter of Fundamental Rights of the European Union was proclaimed.
D. Role of the European Parliament
As with earlier IGCs, Parliament was actively involved in preparations for the IGC held in 2000. In its resolutions of 18 November 1999 on the preparation of the reform of the Treaties and the next Intergovernmental Conference and its resolution of 31 May 2001 on the Treaty of Nice and the future of the European Union, it provided its views on the conference agenda and its progress and objectives. Parliament also expressed its opinion on the substance and judicial implications of the Charter of Fundamental Rights of the European Union. Parliament insisted that the 2000 IGC should be a transparent process, involving European and national parliamentarians and the Commission, as well as input from ordinary people, and that what it produced should be a constitution-type document.
Convention on the Future of Europe
A. Basis and objectives
In accordance with Declaration No 23 annexed to the Treaty of Nice, the Laeken European Council meeting of 14 and 15 December 2001 decided to organise the Convention on the Future of Europe to bring together the main parties concerned for debates and discussions on the future of the EU. The objectives were to prepare for the next IGC as transparently as possible, and to address the four main issues concerning the further development of the EU: a better division of competences; the simplification of the EU’s instruments for action; increased democracy, transparency and efficiency; and the drafting of a constitution for the EU’s citizens.
B. Organisation
The Convention comprised a chair (Valéry Giscard D’Estaing), two vice-chairs (Giuliano Amato and Jean-Luc Dehaene), 15 representatives of the Member States’ heads of state or government, 30 members of the national parliaments (two per Member State), 16 Members of the European Parliament and two Commissioners. The countries that had applied to join the EU also took part in the debate on an equal footing, but could not block any consensus that might emerge among the Member States. The Convention therefore had a total of 105 members.
The Convention was guided by its Praesidium, comprising, in addition to the chair and vice-chairs, nine members of the Convention and an invited representative chosen by the applicant countries. The Praesidium had the role of lending impetus to the Convention and providing it with a basis on which to work.
C. Outcome
The work of the Convention on the Future of Europe comprised: a ‘listening phase’, in which it sought to identify the expectations and needs of the Member States and the EU’s citizens; a phase in which the ideas expressed were studied; and a phase in which recommendations based on the essence of the debate were drafted. At the end of 2002, 11 working groups presented their findings to the Convention. During the first half of 2003, the Convention drew up and debated a text which became the draft Treaty establishing a Constitution for Europe.
Part I of the draft Treaty (59 articles) and Part II (Charter of Fundamental Rights; 54 articles) were laid before the Thessaloniki European Council on 20 June 2003. Part III (policies and functioning; 342 articles) and Part IV (general and final provisions; 10 articles) were presented to the Italian Presidency on 18 July 2003. The European Council adopted this text on 18 June 2004, retaining the basic structure of the Convention’s draft, albeit with a considerable number of amendments. The proposed treaty was approved by the European Parliament in January 2005, but was then rejected by France (29 May 2005) and the Netherlands (1 June 2005) in their national referendums. As a result of two ‘no’ votes in referendums in two of the Member States, the ratification procedure for the treaty establishing a Constitution for Europe was not completed.
D. Role of the European Parliament
The impact of MEPs during the work of the Convention on the Future of Europe was seen by most observers as decisive. Thanks to several factors, including their experience of negotiating in an international environment and the fact that the Convention was meeting on Parliament’s premises, MEPs were able to leave a strong imprint on the debates and on the proceedings of the Convention. They were also instrumental in the formation of political families comprising MEPs and national MPs. Parliament thus achieved a considerable number of its original aims, and most of that achievement is now safeguarded in the Treaty of Lisbon.
This fact sheet is prepared by the European Parliament’s Policy Department for Justice, Civil Liberties and Institutional Affairs.
Mariusz Maciejewski