Institutional design in the treaty of nice

Common Market Law Review

Volumn 38, Issue 5, 2001, Pages 1095-1124

  Bradley, Kieran St C ^a  

^a NONE

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EID: 0035617824     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: 10.1023/A:1012926802973     Document Type: Article

References (89)

1. The institutional provisions are set out in the Community Treaties, though the outer pillars contain their own procedures and voting rules.
2. See e.g. Brugmans, L'Idée européenne (De Tempel, Bruges, 1970), p. 167.
3. De Schouteete, "Guest Editorial: The Intergovernmental Conference", 37 CML Rev., 845, 852.
4. Olsen, in Joerges, Mény and Weiler (Eds.), What Kind of Constitution for What Kind of Polity? - Responses to Joschka Fischer Robert Schuman Centre for Advanced Studies, European University Institute / Jean Monnet Chair, Harvard Law School, available at http://www.jeanmonnetprogram.org/papers/00/symp.html, p. 164.
5. Olsen, loc. cit.
6. Olsen, for example, warns against excessive ambition in institutional reform (in the wider sense), a defect from which the Nice IGC did not notably suffer. He does, however, offer some practical tips for would-be institutional gardeners (op. cit., pp. 173-179).
7. The declaration invited the Member States to agree on the "necessary legal basis for fixing the number of members of the European Parliament", though this was already provided in Art. 138(3) EEC (now Art. 190(4) EC).
8. See Council Decision 93/81/Euratom, ECSC, EEC, O.J. 1993, L 33/15; the increase in the number of seats was primarily intended to take account of the unification of Germany, though all but the three smallest Member States benefited from the increase.
9. For convenience, "the Amsterdam Protocol".
10. More precisely, Art. 1 of the Protocol on the enlargement of the European Union annexed to the Treaty of Nice ("the Enlargement Protocol").
11. With notable delicacy, the House of Lords Select Committee on the European Union sought to get away from this expression which it considered "impolite" (The 2000 Inter-Govemmental Conference, Eleventh Report 1999-2000, HMSO, London, 2000, para 21). Its alternative suggestion, the "Amsterdam triangle", was, however, far from fortuitous; the IGC is known to be a place where high-flying ideas disappear without trace or explanation.
12. Published for information in O.J. 2001, C 80, and also in booklet form as ISBN 92-824-1997-0.
13. New Art. 7(1) EU.
14. Yataganas, The Treaty of Nice: The Sharing of Power and the Institutional Balance in the European Union - A Continental Perspective Harvard Jean Monnet Working Paper 01/01, Harvard Law School 2001, section B.4; European Parliament, The Draft Treaty of Nice - first analysis, 10 Jan. 2001.
15. Yataganas, The Treaty of Nice: The Sharing of Power and the Institutional Balance in the European Union - A Continental Perspective Harvard Jean Monnet Working Paper 01/01, Harvard Law School 2001, section B.4; European Parliament, The Draft Treaty of Nice - first analysis, 10 Jan. 2001.
16. See Johnston, "Judicial Reform and the Treaty of Nice", 38 CML Rev., 499-523.
17. Tizzano, in Quadri et al., Commentario sul Trattato CECA (Milan, Giuffrè, 1970) Vol. I, p. 163.
18. See generally Bar Cendón, "The number of Members of the Commission: A possible reform" in Best et al. (Eds.), Rethinking the European Union - IGC 2000 and Beyond (EIPA, Maastricht, 2000), p. 77.
19. Tizzano, op. cit. supra note 16.
20. Now Art. 205(2), second subparagraph, EC.
21. For a brief period, the High Authority had two Luxembourg nationals and one Belgian.
22. The Euratom Commission had five members, one from each of the Member States excluding Luxembourg.
23. This would have allowed Belgium and the Netherlands (and, under one proposal, Luxembourg) two Commissioners each to the three members per large Member State. Art. 32 of the Merger Treaty, allowing a Commission of 14 members for a transitional period, was small compensation indeed.
24. The report did not look ahead to a Community larger than twelve Member States.
25. Report to the European Council by Biesheuvel, Dell and Marjolin, October 1979, p. 67.
26. Though only as a second best option to reducing the Commission to one member per Member State (op. cit., par. 47, p. 13).
27. Art. 4(1), Enlargement Protocol.
28. The "Big Five" are France, Germany, Italy, Spain and the United Kingdom; the "Big Four" is the Big Five, minus Spain, and the "Big Six" will be the Big Five plus Poland.
29. Art. 4(4), Enlargement Protocol.
30. Art. 4(2), Enlargement Protocol.
31. Joint Declaration, O.J. 1995, L 1/221; Decision 95/2, O.J. 1995, L 1/220.
32. "Ireland will not lose Commission seat 'for 130 years'", Irish Times 26 May 2001; the calculation is possibly based on the necessity for unanimity in the Council for the adoption of the rotation system.
33. Respectively O.J. 2001, C 40/411, COM (2000) 771 final, and CONFER 4810/00.
34. Judgment of 12 Dec. 2000, 531 U.S. - 2000.
35. See e.g. Case 297/86, Confederazione Italiana Dirigenti di Azienda v. Council, [1988] ECR 3531.
36. Adapting the institutions to make a success of enlargement, COM(2000) 34, p. 12.
37. O.J. 1999, L 252/41 and O.J. 2000, L 308/26; the new rules entered into force on 1 Jan. 2001.
38. See para 10 of the Framework Agreement on relations between the European Parliament and the Commission, O.J. 2001, C 121/122, 124.
39. The disgraced Santer Commission remained in office a full six months before it was replaced.
40. The collective character of the Commission has always been reflected in its rules of procedure (see Art. 1, O.J. 2000, L 308/28); see also Case 5/85, AKZO v. Commission, [1986] ECR 2585, para 30, and Case C-137/92 P, Commission v. BASF and others, [1994] ECR I-2555 paras. 62-78. On the latter see the note by Toth in 32 CML Rev., 271-304 at 293-296.
41. The simple majority originally applied for the adoption of a small number of legislative acts; a few vestiges of this approach remain (e.g. Art. 284 EC).
42. Qualified majority is also provided for in the outer pillars of Union activity, albeit in limited circumstances (see e.g. Arts. 23(2) TEU and 34(2) EC).
43. While the Commission does enjoy a number of autonomous legislative powers, these are very limited ratione materiae (see in particular Art. 86(3) EC).
44. Art. 250 EC; see also A.G. Lenz in Case 45/86, Commission v. Council, [1987] ECR 1493, 1505 (para 32).
45. Cited in Lambert, "The Constitutional Crisis 1965-66", IV JCMS (1966), 195, 214. De Gaulle also took a side-swipe at the European Assembly on the grounds that its members were not elected for their European duties, though at the same time he and his government consistently impeded any moves to direct elections.
46. See now Art. 11(1) of the Council's rules, O.J. 2000, L 149/25.
47. Weiler, "The Transformation of Europe", 100 Yale Law Journal (1991), 2403, 2453-2463.
48. O.J. 1994, C 105/1, amended by the Council Decision of 1 Jan. 1995 adjusting various institutional provisions to take account of Norway's non-accession, O.J. 1995, C1/1.
49. See De l'Ecotais, "La pondération des voix au Conseil de ministres de la Communauté européenne", (1996, No. 398) RMC, 388, 393.
50. Financial Times, 12 Dec. 2000.
51. By an impressive 2.2% in the case of Spain, and 0.75% for each of the others.
52. A qualified majority of 169 votes requires the Big Five, plus the votes of any three remaining Member States (excepting the four smallest Member States): at present, the Big Five need the support of two of the Member States with 5 votes (Belgium, Greece, the Netherlands and Portugal) and one with 4 votes (Austria or Sweden).
53. According to the European Parliament's figures, Germany, the United Kingdom, France and Italy have, respectively 21.9%, 15.8%, 15.7% and 15.4% of the population, though each has only 12.24% of the votes in the Council (op. cit. supra note 14).
54. It is proposed that the Czech Republic and Hungary, with populations slightly larger than Portugal, should have 20 seats while Portugal would have 22.
55. Exact figures vary from one commentator to another. Yataganas gives 75 as the number of articles currently requiring unanimity, 50 as the number examined at the ICG, and 27 as the number of provisions in which unanimity was replaced by qualified majority (op. cit. supra note 14, part B.1). For the European Parliament, the figures were respectively about 70, 45 and 35. See also Dashwood, "The Constitution of the European Union after Nice: Law-making procedures", 26 EL Rev. (2001), 215, 225-231.
56. It also, for that matter, went further than the European Free Trade Association which was established later. See H. Wallace, "Flexibility: A tool of integration or a restraint on disintegration?" in Neunreither and Wiener, European Integration After Amsterdam - Institutional Dynamics and Prospects for Democracy (OUP, Oxford, 2000), p. 176.
57. Olmi in Abad et al., A Community of Twelve (De Tempel, Bruges, 1978), p. 77, citing Maurice Schumann, 2 Dec. 1969.
58. Portugal and Spain (1986) preceded by the Single European Act (1985); Austria, Finland and Sweden (1995) preceded by the Maastricht Treaty (1992).
59. Though heavily criticized at the time by Pescatore ("Some critical remarks on the 'Single European Act'", 24 CML Rev. (1987), 9-18), recourse to this facility, even in its expanded form in Art. 95(4) to (9) EC, has been very sparing.
60. The Schengen Agreements also provided a good example of enhanced cooperation in action, in an area which was arguably within the competence of the Community.
61. The French term "coopération renforcée" remains unchanged.
62. Case C-170/96, Commission v. Council, [1998] ECR I-2763.
63. Art. 27c, second indent, TEU, cross-referring to Art. 23(2) TEU.
64. Pescatore, "Guest Editorial: Nice - Aftermath", 38 CML Rev., 265, 267.
65. Ibid.
66. I am grateful to Prof. Alan Dashwood for suggesting this angle.
67. Louis, "Le Traité de Nice", (2001) Journal des Tribimeaux, Droit Européen, 25, 26. Vignes compares the atmosphere in which the principal questions were debated at the IGC to "World Cup fever": "Nice, une vue apaisée", 445 RMCUE (2001), 81.
68. Louis, "Le Traité de Nice", (2001) Journal des Tribimeaux, Droit Européen, 25, 26. Vignes compares the atmosphere in which the principal questions were debated at the IGC to "World Cup fever": "Nice, une vue apaisée", 445 RMCUE (2001), 81.
69. Pescatore views the overall settlement as "a true disaster for France, by rendering manifest the end of fifty years of French leadership in European Affairs": "Guest Editorial", 269. He considers the voting agreement, however, to be "a fair deal, about which nobody can seriously complain", ibid.
70. Yataganas, op. cit. supra note 14 section B.3.
71. Michalski and Bertrand, "The Future of EU Institutions: Insights from the Scenarios Europe 2010 Project", in Best et al., op. cit. supra note 17, p. 291.
72. Petite, "The IGC and the European Commission" in Best et al., op. cit. supra note 17, p. 65; this conclusion does not take account of the possibility that Member States might have voted differently under different voting rules.
73. The reluctance of the smaller Member States to make further concessions on the composition of the institutions has, for example, been blamed for the fact that the Council decision in 2000 to appoint six new judges to the CFI to assist with its trade mark work has not been implemented.
74. De Búrca and Scott, "Introduction" in De Búrca and Scott (Eds.), Constitutional Change in the EU (Hart Publishing, Oxford, 2000), p. 1.
75. H. Wallace, op. cit. supra note 55, p. 175.
76. Louis notes, however, that the new Art. 43(b) EU will be the first express Treaty reference to this process: op. cit. supra note 66, p. 29.
77. Stubb, "Dealing with Flexibility in the IGC" in Best et al., op. cit. supra note 17, provides a good introduction to the subject, as well as a useful bibliography.
78. Stubb, op. cit. p. 154.
79. Seixas da Costa, "The Portuguese Presidency and the IGC" in Best et al., op. cit. supra, pp. 24-26; De Schouteete, op. cit. supra note 3, 847.
80. Seixas da Costa, "The Portuguese Presidency and the IGC" in Best et al., op. cit. supra, pp. 24-26; De Schouteete, op. cit. supra note 3, 847.
81. Adapting the institutions. . . , op. cit. supra note 35, p. 6. By "role", the Commission appears to have intended the respective representative function of each of the (political) institutions, viz., the citizens (Parliament), the national interests (the Council) and the interest of the Community per se (the Commission).
82. See on this process: "Editorial comments, Preparing for 2004. The post-Nice process", 38 CML Rev., 493-497.
83. Of which the speech by Joschka Fischer on 12 May 2000 is only the most noteworthy example: see Joerges et al. (Eds.), op. cit. supra note 4.
84. Vignes, op. cit. supra note 66, p. 82.
85. Galloway, The Treaty of Nice and Beyond (Sheffield Academic Press, Sheffield, 2001), p. 181; the author is not, however, entirely uncritical of the outcome at Nice (see e.g. p. 89 on the reweighting of votes, and Ch. 9 generally).
86. The Convention which drafted the EU Fundamental Rights Charter has been widely touted as a possible precedent, though its remit was (justifiably) rather more limited than that of an IGC.
87. See also the introduction to the White Paper on European Governance, COM (2001) 428, pp. 3 and 7-8, and Wouters, "Institutional and constitutional challenges for the European Union - some reflections on the Treaty of Nice", 26 EL Rev. (2001), 342.
88. See also the introduction to the White Paper on European Governance, COM (2001) 428, pp. 3 and 7-8, and Wouters, "Institutional and constitutional challenges for the European Union - some reflections on the Treaty of Nice", 26 EL Rev. (2001), 342.
89. See Maduro, "Europe and the Constitution: What if this is As Good As It Gets?", in Weiler and Wind (Eds.), Rethinking European Constitutionalism, forthcoming (also available at http://www.qub.ac.uk/ies).