Deepening and Widening EU

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ReviewInternational Political Science

DOI: 10.1177/01925121020230030022002; 23; 235International Political Science Review

Bruno De WitteEuropean Union

Anticipating the Institutional Consequences of Expanded Membership of the

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Anticipating the Institutional Consequences ofExpanded Membership of the European Union

BRUNO DEWITTE

ABSTRACT. The coming Eastern enlargement of the European Union isseen by governments of the present member states, and by EUinstitutions, as threatening the EU institutional systems capacity to act,more so than any of the preceding enlargements. This article exploresthe origins of this concern, examines the way the EU states have sought toaddress it by means of treaty reforms (the last of which was agreed by theNice European Council of December 2000), and addresses some otherinstitutional challenges that should be dealt with before enlargementoccurs.

Keywords: EU Challenges EU Deepening EU Enlargement EUInstitutions EUWidening

Introduction

The European Union does not have a stable institutional system. During the lasttwenty years, in particular, the EU went through a period of almost continuouswidening and deepening, which left its mark on its institutional mechanisms. The

wideningconsisted of an expansion of membership, from nine member states in1980 to 15 in 1995. The accession of new states affects the functioning of theinstitutional system in several ways. The new states are represented in the institu-tions of the Union (the main ones being the Council of Ministers, the Commission,the European Parliament, and the European Court of Justice). Accession of newstates makes the overall number of members of each institution grow, with the riskof exceeding the appropriate size allowing for effective intra-institutionaldeliberation. In addition, accession of new states has a specific impact on thefunctioning of the Council of Ministers, the Unions main decision-making bodycomposed of representatives of member state governments. The Council decidesaccording to two modes, depending on the policy area: unanimity or qualified

International Political Science Review(2002), Vol 23, No. 3, 235248

0192-5121 (2002/07) 23:3, 235248; 023896 2002 International Political Science AssociationSAGE Publications (London, Thousand Oaks, CAand New Delhi)

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majority voting (QMV). It is clear that unanimous decision-making becomes moredifficult to achieve with increasing numbers of national delegations possessing aveto power. Qualified majority voting (QMV), on the other hand, is based on a

mathematical formula whereby states are given a number of votes in remoteaccordance with their population, and decisions are carried when they areapproved by a given percentage (somewhat more than 70 percent) of the total vote.So, accession by new states to the Union does not necessarily make qualifiedmajority decision-making more difficult (the new states are given a number ofadditional votes, but the percentage needed for a qualified majority can be keptconstant), but it complicates the game of coalition-building. The addition of newstates also means, in most cases, the addition of new official languages of the Union,which creates higher translation costs and forms a new source of communicationfailures in the decision-making process. Each new member state also brings newpractices of political and administrative culture, which again complicates (at least

in a first period of adaptation) the informal patterns ofEU decision-making.However, this process of widening has been accompanied by a deepeningof theintegration process. Successive reforms of the European treaties which took placein 1986 (Single European Act), 1992 (Treaty of Maastricht), and 1997 (Treaty ofAmsterdam) all led to an extension of the scope ofEU policy (at times, as inMaastricht, a very dramatic extension indeed), which was sometimes accompaniedby the creation of new institutions or organs, such as the European CentralBank and the Committee of the Regions, which were created by the MaastrichtTreaty. More generally, these three revision treaties introduced reforms in theinstitutional system. In the areas of internal market and social regulation, therewas a marked shift away from unanimity towards qualified majority voting in the

Council and a major increase in the role of the directly elected EuropeanParliament, which developed into a co-legislator with the Council. In other areasofEU policy, such as a common foreign and security policy, and justice and homeaffairs, the institutional approach was rather different, with decision-makingpower concentrated in the hands of the Council and with its decision-makingmode being that of unanimity rather than majority voting.

So, when looking at these two decades of widening and deepening incombination, it appears that the threat to the EUs institutional capacity that couldprima facie result from increasing numbers of member states was addressed insome areas of European policy-making by easing the conditions for makingdecisions, but this did not happen in other policy areas. Institutional reform

continued to be a constant preoccupation for the states and for the EU institutionsthemselves all through this period, and new urgency was lent to thispreoccupation when a new process of enlargement, of an unprecedented scale,was set in motion in the mid-1990s. This article addresses, in a synthetic way, thequestions of how the internal institutional reform of the European Union becameclosely connected to its new eastern enlargement, how the two successiveintergovernmental conferences leading to the Treaty of Amsterdam (1997) andthe Treaty of Nice (2000) grappled with this question, and whether the EUsinstitutional system, once the Nice reforms have been put into place, will be ableto cope with an enlargement of the Union from 15 to up to 27 member states.

Institutional Agenda of the New Enlargement Process

The numerous international agreements of various kinds concluded since 1989

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between the European Union and the countries of Central and Eastern Europehave all set up their own, modest institutional machinery. Thus, under theEurope Agreements which were signed with ten countries of Central and

Eastern Europe, an Association Council was established between the EuropeanUnion and each of its partners, in the framework of which the original packagedeal laid down in the Agreement is gradually being extended and updated. TheseAssociation Councils act, as it were, as institutional satellites of the EuropeanUnion. The EU institutions, as yet unencumbered by the direct participation of thecandidate countries, continue to develop new regulatory policies, the content ofwhich is then transposed to the applicant countries either by means of decisions ofthe Association Council or simply through their voluntary reception of the acquiscommunautaire (the laws and policies of the EU). This situation, in which theEuropean Union can unilaterally define (and constantly modify) the body of ruleswhich the applicant states have to accept, will come to an end with the conclusion

of the accession negotiations when the applicants, or at least some of them, jointhe Union. They will then be direct actors in the EU institutions on a par with thepresent 15 member states.

The most important of these EU institutions (the Commission, the Council ofMinisters, the European Parliament, and the European Court of Justice) wereconceived in the 1950s for a European Community of six member states. Thedivision of powers between these institutions has been changed several timessince. However, their composition and internal organization have not beenradically modified since those early days. The ineluctable question is whether thisinstitutional framework, conceived for a small international organization, andalready coping uneasily with the increased membership and growing agenda of

the Union, will be able to function at all when the membership drasticallyincreases to, eventually, 27 or more states.There is, thus, a sword of Damocles hanging over the future of the EUs

governing capacity. Political awareness of this problem was shown when theprincipled decision to launch the enlargement process was taken. When theCopenhagen European Council, in June 1993, formulated the now famousconditions under which candidate countries would be admitted, it specified thataccession would depend not only on the political and economic performance andstate of preparation of the candidate states, but also on the EUs state ofpreparation, more particularly of its institutional structure: The Unions capacityto absorb new members, while maintaining the momentum of European

integration, is also an important consideration in the general interest of both theUnion and the candidate countries (European Council, 1993).This intra-EU condition for accession now appears to be fulfilled, at least

according to the heads of state and government of the EU countries. At the NiceEuropean Council of December 2000, they agreed on the text of the Treaty ofNice and stated, in an annexed Declaration on the Future of the Union, that withratification of the Treaty of Nice, the European Union will have completed theinstitutional changes necessary for the accession of new Member States (NiceDeclaration, 2001, point 2). At the time of writing, this process of ratification ofthe Nice Treaty by each of the 15 member states has barely started, and the Irishratification seems seriously compromised after the No vote in a popular

referendum on 7 June 2001. However, whatever the fate of the Nice Treaty, thecandidate countries have now received the assurance that their EU accessiondepends on their own economic and political performance, and on the

DEWITTE: Consequences of Expanded Membership of theEU 237



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willingness of the EU states to recognize the quality of this performance, but nolonger on the question whether the Union itself manages to put its own house inorder. That housekeeping exercise, so the Nice Declaration tells them, has now

been successfully completed.Some doubt could be cast on this optimistic perspective by the fact that the verysameDeclaration on the Future of the Unionlaunches a new round of public debateon EU institutional reforms whose scope is unprecedentedly large as it is dealingwith no less than the delimitation of powers between the European Union andthe member states, the incorporation of a bill of rights in the European treaties,the role of national parliaments in the European institutional system, and thequestion of democratic legitimacy in the Union. In fact, as was made clear bysubsequent events (particularly by the ardently pro-integrationist position taken inthe spring of 2001 by leading German politicians such as President Rau andChancellor Schrder), the whole EU institutional system is up for review and

reform. However, the Nice Declaration emphatically added that this debate onfuture EU treaty reform shall not constitute any form of obstacle or pre-conditionto the enlargement process (Nice Declaration, 2001, point 8).

Yet, this reassuring official scenario should not stop anybody from wonderingwhether the Nice Treaty has really created the optimal institutional conditions forincorporating a large group of new states into the European Union. Politically, thisquestion no longer seems to matter. Only a spectacular crisis in Nice, caused bytotal failure to agree on any kind of treaty reform, might have stopped theenlargement process in its tracks. But the fact that the reform is half-hearted andmay fail to solve foreseeable problems of institutional malfunctioning does notseem to matter much. One can conclude from Nice that, even more than before,

the policy of Eastern enlargement appears to be safely locked in and effectivelyshielded from the fallout of the tough bargaining on internal reforms(Schimmelfennig, 2001: 76). This political consensus among EU governmentsleaves open the question whether the rather modest institutional reforms agreedat Nice will equip the European Union with the practical capacity to act afterenlargement. There is, in fact, a striking contrast between the bold way in whichsuccessive European Council meetings have opened the way for accessionnegotiations with an ever growing number of states (without awaiting the approvalof the member state parliaments for these momentous decisions), and their verytimorous approach to the question of internal reform of the European Union,where heads of government have constantly invoked the real or imagined

reservations of their national parliaments or domestic public opinion as ajustification for blocking some sensible institutional reform proposals.This wavering attitude to institutional reform may be explained, to some extent,

by the fact that the challenge of enlargement is not yet palpable, nor has itsmagnitude been clearly defined. In assessing the degree to which the EUinstitutions will be sufficiently adapted to the coming enlargement, once theTreaty of Nice has been ratified, and the extent to which further reforms will benecessary, there is one important variable which remains uncertain: that of thescope and timing of the various waves of enlargement. It goes without saying thatthe accession, in a first round, of only three or four countries could be more easilydigested by the EUs institutional system, particularly if the accession of a further

wave of countries were to be considerably delayed. However, the negotiators of theNice Treaty operated, and rightly so, with the prospect of a mid-term expansion to27 membersthat is, accession of all candidate countries except Turkey. In the




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Nice tables setting out the future weighting of votes in the Council of Ministersand the allocation of seats in the European Parliament, all 27 states were takeninto account. It is, therefore, this hypothesis of a mid-term enlargement with 12

additional member states that is the basis of discussion in the following pages.Further growth, beyond these 12 countries, is clearly not to be excluded. Apartfrom Turkey, half-hearted promises of membership were made by the EU in thewake of the Kosovo crisis to the states of the western Balkans; and Ukraine willprobably want to knock on the EUs door as well. Accession of one or more of thesecountries would increase even further the institutional challenge for the EuropeanUnion.

Dealing with Numbers

There have been earlier debates on the consequences that enlargement of the

European Union would have on its internal operation. Already at the time of thefirst enlargement, with the UK, Denmark, and Ireland, there was considerableanxiety that the addition of these three newcomers would negatively affect thefunctioning of the European Communities institutions. Similar concerns wereexpressed when Greece joined and, later in the 1980s, Spain and Portugal. From1989 onwards, with the immediate prospect of the accession of Finland, Sweden,and Austria (and also Norway, according to expectations at that time), and thelong-term prospect of the accession of a host of other countries further east, itbecame fashionable to put the future of the European Union in terms of adilemma between deepening and widening (for one of the first uses of theseexpressions, see Wallace, 1989).

At the time of enlargement with Austria, Finland, and Sweden, there were someskirmishes about the need to adapt the EUs institutional rules (Goebel, 1995:11171140), but this did not grow into a major concern. However, the prospect ofaccession of a dozen new member states, whether in subsequent batches or all inone go, raised a major institutional challenge, the central component of whichgradually became defined by the European governments, in a rather simplisticway, as dealing with numbers (Wallace, 2000: 179). If membership of an extra 12states were accomplished through a mechanical adjustment of the existinginstitutional rules (as had been the case, by and large, with previous enlargements),it would cause a major increase in the absolute numberof members of the principalEU institutions: it would lead to a European Parliament of close to 1000 members

(as compared to 626 today), to a European Commission of some 35 members (ascompared to 20 now) meeting around the table for their weekly Wednesdaymorning sessions at which all its formal decisions are taken, and to a Council ofMinisters with 27 delegations deliberating on legislative texts, subject, in manycases, to the requirement of reaching a unanimous agreement. Mechanicaladjustment would also lead to an awkward issue ofrelative numbers, in that it wouldcreate a major imbalance between the voting power, within the Council, of thesmall and large countries, to the detriment of the latter.

The Intergovernmental Conference (IGC) which led to the adoption of theTreaty of Maastricht (1992) did not address these questions. But the TurinEuropean Council of 29 March 1996, when formally launching the post-Maastricht

Intergovernmental Conference, was quite explicit about the importantconsideration to be given to the effects of enlargement: The Union must alsopreserve its decision-making ability after further enlargement. Given the number




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and variety of the countries involved, this calls for changes to the structure andworkings of the institutions (European Council, 1996).

During that Intergovernmental Conference, which took place for most of 1996

and half of 1997, and which was to lead to the adoption of the Treaty ofAmsterdam, there gradually developed a triangle of sensitive enlargement-relatedinstitutional questions which were considered to be intimately linked, so that acompromise could only emerge, it appeared, on a package covering each of thesethree issues: the size and composition of the Commission; the weighting of thevotes of states when acting within the Council of Ministers; and the extension ofqualified majority voting (rather than unanimity) to further fields of EU policy.According to a close observer of the Amsterdam European Council, a settlementthere and then of these sensitive institutional questions was not beyond the reachof the heads of government (McDonagh, 1998: 193). Instead, they gave up duringthe final hours of the summit, and postponed a decision on these points; they

agreed instead on the text of a Protocol to the newly agreed treaty of Amsterdam,in which they expressed a commitment to resolve the outstanding institutionalissues at a follow-up treaty revision conference, the date of which was, however, notfixed (Sedelmeier, 2000: 224).

In fact, only one month after the entry into force of the Amsterdam Treaty(which took place on 1 May 1999), the European Council of Cologne agreed thata new Intergovernmental Conference, which it directed to concentrate its effortson the three institutional left-overs of Amsterdam, was going to convene in early2000. The Commission and the European Parliament called upon governments touse this opportunity for a more comprehensive reassessment of the institutionalmachinery of the European Union, but to no avail. The Intergovernmental

Conference (IGC) of 2000 had, like the previous one of 199697, the overarchingambition of preserving the efficacy of the EUs institutional machinery after theupcoming massive expansion of its membership. Unlike in Amsterdam, though,this ambition was not mixed with other reform aims: the agenda of the IGC of 2000was deliberately limited to the three institutional left-overs from Amsterdam, asif a negotiated solution of these three issues were the only key to a successfulinstitutional adaptation to the coming enlargement. By focusing on theserelatively narrow questions, negotiations quickly became reduced to bargainingover relative power, instead of constructive compromise in the common interest(Best, 2001: 2). In the end, the Treaty of Nice embodied a compromise agreementon each of these three Amsterdam left-overs; and it also decided, less

controversially, several measures to facilitate the working of the European Court ofJustice in view of its growing workload, as well as a modification of the regime ofcloser cooperation which was also inspired by the pending enlargement of theUnion. I will, in the following pages, make some brief comments about the variousinstitutional adaptations which the Treaty of Nice did decide; I will then drawattention to some institutional adaptations which were noton the Nice agenda andare, therefore, still to be faced in the years between now and the accession of thefirst group of new member states.

Membership of the Commission

The European Commission was created as a collegial body, meaning that alldecisions of any political relevance must be taken by the Commission actingcollectively, at one of its weekly meetings. The gradual increase in the number of




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commissioners, after each enlargement, made this collegial interaction morecumbersome, increased the scope for internal conflicts and misunderstandings,and made it increasingly difficult to find sufficiently weighty and consistent policy

portfolios for each of them. With the latest round of enlargement, the number ofcommissioners rose to twenty, which was considered as a limit beyond which theoperation of the Commission would become very problematic. Various options forreform were considered in the academic debate and in the IGC negotiations, bothin 199697 and in 2000. The status quo solution, whereby a future Europe of 27would have 33 Commission members (with the six larger countries continuing tohave two members rather than one), was rejected by all and the choice wasnarrowed down to two basic options (see discussion by Bar Cendn, 2000). Themore conservative option, strongly supported by all the small states, was to keepjust one commissioner for each member state, whether large or small, so that thepresent number of twenty members would rise only after more than five additional

states had joined the Union. Supporters of this option thought it vitally importantfor the Commissions authority that it should continue to be seen as representingand acknowledging the interests of all member states; they admitted that thisoption would eventually render the Commission rather unwieldy, but submittedthat problems of organization and policy streamlining could be overcome bygiving greater authority to the president over his or her fellow commissioners.

The alternative option was to abandon the principle that each member stateshould have at least one national in the Commission and to reduce its member-ship to a fixed and manageable number (twenty at most, but preferably less), whilesetting up a rotation system: all the member states would have their predeter-mined turn to appoint members of the Commission, but not all would be

represented at the same time. At the Nice summit, agreement was reached on theprinciple that, when the Union consists of 27 states, the number of members ofthe Commission shall be less than the number of member states, but the specificform which this reduction of numbers will take was left unclear.

Decision-making in the Council of Ministers

Within the Council of Ministers, the voting mode depends on the policy area inwhich the EU acts; technically, it depends on the legal basis for a given measure,that is, the Treaty article defining a certain objective or a certain field of action forthe EU institutions. This Treaty article also indicates the formal procedure to be

followed for adoption of the measures, including the decision-making modewhich the Council of Ministers must adopt, whether by unanimity or by a qualifiedmajority.

It seems to be a plausible hypothesis that, as the number of member states ofthe EU increases, and therefore also the number of national delegations takingpart in the work of the Council of Ministers, the efficiency of decision-making inthat body will be adversely affected. An increase in the number of member statesraises transaction costs among them, if only because the tour de tableat the start ofeach Council meeting takes up ever more of the available time. It also raises thelikelihood of there being diverging preferences about policy outcomes, as well asthe likelihood of a veto by one country in those cases where the Council must

decide by unanimity. However, contrary to expectations, statistical analysis showsthat the accession of Greece, Spain, and Portugal had no effect on the decision-making speed. This result leads the author of this analysis to predict that a much




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larger Council, eventually including Central or Eastern European states, might notface the insurmountable collective action problems that many have predicted,regardless of whether or not majority voting rules are extended to the few

remaining areas of treaty competence governed by unanimity (Golub, 1999: 760).One reason for this paradoxical conclusion is that the Council rarely votes andthat attempts are systematically made by the Commission and the Councilpresidency to reach a consensus among all delegations, irrespective of whether themeasure can be adopted by qualified majority or requires unanimity.

However, one may well wonder whether this strongly ingrained practice willcontinue to hold in a very much larger and politically diversified Union. Theformal veto power wielded by each country might well become a much moreunpredictable and obstructive weapon than it is today. At any rate, theCommission, the European Parliament, and the most pro-integrationist countries(Benelux and Italy) pleaded, during both the Amsterdam and the Nice

negotiations, for a systematic move to qualified majority decision-making for allordinary legislative business of the Union. They proposed to keep unanimityonly for decisions of constitutional importance (including revision of thetreaties). In the end, the Treaty of Nice decided only some limited changes on thispoint. A further shift to qualified majority voting (QMV) was decided, but it willaffect only relatively minor policy areas, because many countries (including theUK, Germany, France, and Spain) each had their own impeccable reasons forinsisting on unanimity in policy areas that they considered to be in their vitalinterest.

Distribution of Voting Power in the Council of Ministers

As qualified majority voting is now the main mode of Council decision-making(and will become slightly more so with the Treaty of Nice), the weighting of thevotes by each country becomes increasingly important. The weighting system wasoriginally introduced, in 1951, for the European Coal and Steel Community,which had only six member states. The formula adopted then was to grantBelgium and the Netherlands twice the number of votes of Luxembourg, and thethree larger member states (France, Germany, and Italy) twice the number ofvotes of Belgium and the Netherlands, creating a 4:2:1 ratio in voting strength.The qualified majority was set at 12 out of 17 votes, which was just over 70 percentof the total number (Westlake, 1999: 91). This crude allocation of votes, which

bore only a dim resemblance to the actual population of each country, proved tobe very stable. Both the proportions between categories of states, and the overallthreshold of just over 70 percent, were confirmed when the EEC was created in1957 and at each enlargement round afterwards. Newcomers were fitted into theexisting scheme (for instance, the UKwas given the same number of votes asthe three large founding states, and Greece the same number as Belgium and theNetherlands) and new intermediate categories were created for countries situatedin between: for instance, Spain was fitted between the large and the small group,and Denmark and Ireland between the small and the very small. What did change,of course, was the overall size of the coalition of states needed to reach a qualifiedmajority. Also, as there were more small than big countries among the newcomers,

the relative power position of the large states, taken as a group, graduallydeteriorated. The relative voting power of each individual large state alsomathematically diminished with each new accession.1 This phenomenon became




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quite clear with the addition, during the last round, of three smallish countries,Austria, Finland, and Sweden. The large states, from then on, took the line thatanother semi-automatic adjustment of votes on the occasion of the future eastern

enlargement would be altogether unacceptable and that, instead, an overallreallocation of votes should take place which would make these more closelyproportional to the population figures of the various groups of countries.

It could hardly be contested that the voting arrangements in the Council wereindeed getting seriously lopsided. In the present system of QMV, the minimumshare of the overall EU population represented by a possible winning coalition isaround 58 percent (a majority which is not very much qualified in this respect),and it would, if extrapolated to a Europe of 27, go down to 50 percent. The figuresare even more striking when looked at from the other end, namely that of thecomposition of a blocking minority (that is, the minimum coalition required toprevent the others from assembling a qualified majority). The minimum share of

the population formed by a blocking minority coalition formed of only small statesis now 13 percent and would go further down, among the 27, to a mere 10percent.2

However, reallocation of votes for the benefit of the larger states was not theonly possible remedy for this distorted situation. An easier and more transparentalternative solution was put on the negotiation table, both in Amsterdam and inNice, and received the backing of a large number of (mainly smaller) memberstates. This alternative option was to transform the present weighted-voting systeminto a system of double majority, in which Council decisions would have to bebacked by a simple majority of member countries (8 out of 15 today, 14 out of 27in a future EU) and also (at the same time) by a number of countries that together

form a majority of the EU population. In this way, the political weight of the largerstates would have been duly accounted for, in a straightforward and easilyexplained manner, directly derived from accepted principles of democraticrepresentation in divided-power systems. The fatal flaw of this option was, nodoubt, that it would have put an end to the equal influence in Council decision-making which, today, the four major member states possess. By the increasedimportance given to actual population figures, the double-majority system wouldhave given Germany more voting power than to France, Italy, or the UnitedKingdom, which seemed politically unacceptable. Therefore, a reweighting ofactual votes for each present and future member state proved to be the onlyattainable solution at Nice. It will lead to a complex system, bewildering to many

citizens, in which the national delegations in the Council of the EU-of-27 willtogether control 345 votes (ranging from 29 votes for each of the four largestcountries down to 3 for Malta), and in which 258 of these votes will be theminimum threshold for forming a qualified majority.3 This means that apercentage of 74.8 of the total vote will be required for the adoption of Councildecisions, which is a small increase of the presentQMV percentage, a surprisingresult for a treaty reform which was supposed to enhance the EUs institutionalcapacity to act.

Adaptation of Other European Union Institutions

Alongside its long-suffering compromises on the three Amsterdam left-overs, theNice summit also agreed on new rules for the composition of the EuropeanParliament (a limited reshuffling of the number of members from each country




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took place here, as part of the compromise on changing voting weights in theCouncil) and of some of the lesser organs of the European Union: the Court ofAuditors, the Economic and Social Committee, and the Committee of the

Regions. Attention was also paid to two other institutions that, each in their ownway, play an important role in the EUs institutional concert: the European Courtof Justice, which was the object of considerable attention in the recentIGC andwhich will, as a result, be better equipped to deal with the challenge ofenlargement; and the European Central Bank, to the operation of which the IGCgave only very belated and superficial attention.

As regards the European Court of Justice (ECJ), the principle that there shall beone judge from each member state was confirmed for the indefinite future. Thisraises the same questions about balanced representation as for the Commission(one German judge as against three from the Baltic countries?), but expandingnumbers are perhaps less of a threat to the adequate functioning of the Court

than of the Commission, for, unlike the Commission, the ECJ will be able to splitup into small chambers of judges for deciding all except the most politicallysensitive judgments. The Nice Treaty, once it comes into force, will allow for morecategories of cases to be moved from the ECJ to the European Court of FirstInstance and to new judicial bodies that will hear appeals in special areas of thelaw that are of lesser importance for the general evolution of the European Union(such as employment disputes between EU institutions and their staff). As a result,the European Court of Justice will be left to consider only the more importantcases. The increased flexibility thus injected into the judicial architecture of theEU should allow the European court system to deal adequately and in a timelymanner with the increased workload resulting from enlargement, and enable the

ECJ to continue to give principled guidance to the legal and institutionaldevelopment of the European Union.With regard to the operation of the European Central Bank (ECB), on the

contrary, the Treaty of Nice has changed next to nothing. The main decision-making organ of the European Central Bank, the Governing Council, is presentlycomposed of the six appointed members of the Executive Board and the 12governors of the national banks of the countries in the Eurosystem. A majorexpansion of membership of the EU and hence, sooner or later, of the ECB,will affect the deliberative capacity of the Governing Council, in the same way as itwill affect the deliberation dynamics of European Commission meetings andplenary sessions of the European Court of Justice. But in the case of the ECB, it

would have the further effect of radically altering the proportion between thesupranational element, represented by the six members of the Executive Boardwho, in principle, take a common line inspired by the general European interestas they define it, and the national element represented by the governors ofthe member states central banks. It would make it more difficult for theExecutive Board to put together a winning coalition within the Governing Counciland would thereby make ECB decision-making generally more difficult (Baldwinet al., 2000: 3342). The 2000 IGC failed to give sustained attention to thisproblem, although a last-minute reference was inserted in the Treaty of Nice tothe effect that future changes in the composition of the Governing Councilwill no longer need to be decided at an intergovernmental conference, but in a

more straightforward manner, by a (unanimous) decision of the EuropeanCouncil; a solution of the question was thus postponed until a later unspecifieddate.




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Enlargement and Intra-Union Flexibility

In his William and Mary Lecture given in Leiden in September 1994, John Major,the then British prime minister, welcomed the enlargement of the Union to the

east and stated that the continuing growth in size and diversity of the Unionshould lead to greater la carte flexibility, whereby smaller groups of memberstates should be allowed to engage in cooperation in specific fields of commoninterest outside the main EU institutional framework (Major, 1994). Othercountries, particularly France and Germany, started canvassing the idea ofenabling smaller groups of states to cooperate withinthe institutional frameworkof the European Union. Many other governments saw both options as threats tothe cohesion of the Union, and to the principle of uniform rights and duties ofstates which had characterized the European integration process so far. Theconsensus that emerged during the 1996 Intergovernmental Conference, afterlong and extenuating negotiations, was that some mechanism of institutional

flexibility (or of, as it was eventually called, closer cooperation) should be put inplace, but that it should be encapsulated within the existing EU framework and bemade subject to rather strict conditions (Stubb, 2000; Wallace, 2000).

In fact, the conditions for closer cooperation imposed by the Amsterdam Treatywere so rigid that, only one year after the Treatys entry into force, and before thenew regime had even been tested in practice, the member state governmentsstarted a process of reviewing and, ultimately, redrafting of the relevant rulesduring the IGC that took place in 2000. Closer cooperation had not been on thenarrow official IGC agenda that was agreed by the Cologne European Council inJune 1999, but was put there by the Feira European Council meeting in June 2000.The general willingness to consider a reform of the closer cooperation regime

may have been inspired by the references made, in speeches by the Germanforeign minister, Joschka Fischer, and the French president, Jacques Chirac, heldshortly before Feira, about the possible need for creating a centre of gravitationor pioneer group outside the EU framework if a more flexible system of closercooperation insidethe EUwere not in place by the time of enlargement.

General agreement was eventually reached, surprisingly easily (compared to thedifficult negotiations on the same subject during the previous IGC) on facilitatingrecourse to closer cooperation. The Treaty of Nice will, if and when it comes intoforce, allow for enhanced cooperation initiatives to be launched by a qualifiedmajority vote in the Council, except in common foreign and security policy wherethe consensus of all states will continue to be required. The substantive conditionsfor closer cooperation are also somewhat relaxed compared to the Amsterdamregime. Furthermore, the Treaty of Nice sets out to modify the critical mass ofstates required to launch a closer cooperation regime. Whereas under the presentrules established by the Treaty of Amsterdam, cooperation must concern amajority of member states, the Treaty of Nice modifies this into eight memberstates.4 This number corresponds, at the present time, to a majority of the states,so that the critical mass requirement will not, in practice, change until the firstenlargement of the Union. The significance of this reform is, therefore, that itshould facilitate closer cooperation after enlargement, and the reforms half-hidden agenda might well be that it will allow the present member states tocooperate more easily among themselves if and when the enlargement of theEuropean Union appears to dilute the integration ethos (Bribosia, 2001: 155).Still, the possibility thus created of systems of closer cooperation among a minority




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only of member states, but allowed to operate inside the framework of theEuropean Union, has some odd consequences (ibid.: 156): in a Union of 24 ormore member states, it will allow up to three closer cooperation groups to be

created in the same policy field, with all three being allowed to use the organs andmechanisms of the EU, which would inevitably affect its institutional cohesion.Even ifas one may hope will be the normal caseonly one closer cooperationgroup of eight or more states operates within a specific field ofEU policy, it wouldseem odd to have the European Commission and the European Parliamentexercising their normal decision-making powers in their normal composition(that is, with the participation of representatives of all the member states) andspending their limited time and financial resources on policy initiatives benefitingonly a minority of eight states. These oddities underline the fact that the decisiontaken in Nice to facilitate closer cooperation in an enlarged European Union,while it may possibly allow greater flexibility in the development ofEU policies

(and thereby to some extent compensate for the lack of clear-cut reforms on theother matters discussed at the recentIGC), also contains a danger of institutionalfragmentation and policy dilution.

Enlargement and Challenge for the Administrative Machinery

The questions on the official agenda of the two recent treaty revision negotiations(in 1996/97 and 2000) constitute only the superficial high politics part of theinstitutional response to the EUs large-scale enlargement. There is a more diffuse,but probably more daunting, side to the question of institutional adaptation toincreased membership, which relates to the functioning of the EUs administrative

machinery. Without going into detail here, I will just mention two elements of thatmachinery that will be crucially affected by large-scale enlargement: the operationof Council working groups and the Committee of Permanent Representatives, andthe language regime of the EU institutions.

There are hundreds of working groups composed of civil servants of themember states which assist the Council of Ministers in its legislative task.According to one calculation, up to 1000 national civil servants are present inBrussels on an average working day to participate in one of these meetings. Theydo the hard work of negotiating the nuts and bolts of draft legislation proposed bythe Commission. After further fine-tuning efforts at the higher level of theCommittee of Permanent Representatives, the ministers assembled in the Council

meetings can limit themselves to approving the compromises reached at theselower levels of the Council machinery or to striking the final political compromiseamong the alternative solutions offered to them. It is hard to envisage how theinteraction between these national teams at the lower echelons can meaningfullyproceed with up to 27 or more delegations placed around committee tables.Already, an often heard complaint is that an inordinate amount of time at thesemeetings is taken up by the presentation of the separate views of the 15delegations, with little time and energy left for efforts to have a constructivedialogue. A worsening of this situation can only be prevented by fundamentallyreconsidering the functioning of these committees, either by strengthening theguiding role of the Commission or that of the Council presidency, or by resorting

more often to entirely written proceedings. Whatever solution is to be adopted(and thinking on this matter has only started), the European Unions decision-making process will no longer be the same.




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Another preoccupying and entirely unresolved issue is that of the use oflanguages in the operation of the European Union. The number of officiallanguages stands, at present, at 11 and, in the Europe of 27 predicted by the Nice

Treaty, there will be an additional ten official languages (only Cyprus and,presumably, Malta, would not add an extra language). Indeed, recognition as anofficial EU language is such a highly symbolic political question that one cannotexpect even the smallest of the applicant countries to agree to renounce thatrecognition. Owing to the fact that the increase of one-to-one relations betweenlanguages rises exponentially when the number of official languages grows, therewill inevitably be considerable additional costs of translation and, even moreworrying, a further decrease in the possibility for genuine dialogue taking place inthe major meetings of the EU institutions. At the lower level of working groups andexecutive committees, and in the drafting of preparatory and consultativedocuments, the present practice of privileging English, French, and (to a lesser

extent) German as so-called working languages will no doubt have to bereinforced. But, as this is a very sensitive issue, no official plan on how to tackle thelinguistic clogging of the institutional machinery of the European Union has, asyet, been presented.

Conclusion

When embarking on their recent intergovernmental conference of 2000, themember state governments expressed the conviction that a solution to threenarrow and rather technical institutional questions would yield considerable (atleast, sufficient) improvement of the efficiency of the EU institutional apparatus in

view of enlargement. Some sort of reform was eventually decided on these threequestions of Commission membership and structure, Council voting mode, andallocation of voting weights to each country within the Council. However, on eachof these three points, the solutions reached at Nice were either very timid orhighly questionable. The eventual reduction in the size of the Commission wasagreed in principle but the details still need to be worked out. There was only aslight shift from unanimity to qualified majority decision-making in the Council,leaving many opportunities for future blackmail by single dissatisfied states. Theoperation of qualified majority voting could have been made both simple anddemocratic by opting for a double majority system, but instead the weightingsystem was preserved and the actual allocation was revised in favour of the larger

states, but in a way which is not consistent and left bitter feelings among manydelegations to the IGC. Therefore, the official view, expressed in the Declarationon the Future of the Union annexed to the Nice Treatythat these weresuccessful institutional reforms that have duly prepared the Union for receivingup to 12 new membersis highly questionable. Misgivings about the reformprocess are compounded by the fact that the Union has not seriously addressedother particularly daunting, problems of administrative reform relating to theinternal functioning of the European institutions and to their day-to-dayinteraction with national (and regional) levels of government.

Notes1. For instructive tables on the history of the weighting of votes, and on the changes in the

relative strength of large and small member states, see Westlake (1999: 9697).




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2. These figures are drawn from Best (2001: 3).3. For a table summarizing the figures decided in Nice, see Best (2001: 4).4. Text of Article 43(g) EU Treaty as amended by the Nice Treaty.

References

Baldwin, R., E. Berglf, F. Giavazzi, and M. Widgrn (2000). EU Reforms for TomorrowsEurope. Centre for Economic Policy Research, Discussion Paper Series, No. 2623.

Bar Cendn, A. (2000) The Number of Members of the Commission: A Possible Reform?In Rethinking the European Union. IGC 2000 and Beyond(E. Best, M. Gray, and A. Stubb,eds), 77103. Maastricht: European Institute of Public Administration.

Best, E. (2001). The Treaty of Nice: Not Beautiful but Itll Do.Eipascope2001(1): 19.Bribosia, H. (2001). Les cooprations renforces au lendemain du trait de Nice. Revue

du Droit de lUnion Europenne, 111171.European Council (1993). European Council of Copenhagen (June). Conclusions of the

Presidency. Bulletin of the European Communities, 121993.European Council (1996). European Council of Turin (March). Conclusions of the

Presidency. Bulletin of the European Communities, 31996.Goebel, R. (1995). The European Union Grows: The Constitutional Impact of the Accession

of Austria, Finland and Sweden.Fordham International Law Journal, 18: 10921190.Golub, J. (1999). In the Shadow of the Vote? Decision Making in the European

Community. International Organization, 53: 733764.Major, J. (1994). Europe, a Future that Works (William and Mary Lecture, Leiden Town

Hall). Agence Europe, No. 6312, 10 September.McDonagh, B. (1998). Original Sin in a Brave New World. An Account of the Negotiation of the

Treaty of Amsterdam. Dublin: Institute of European Affairs.Nice Declaration (2001). Declaration on the Future of the Union (Annexed to the Treaty

of Nice). Official Journal of the European Communities, 10 March, C 80/85.Schimmelfennig, F. (2001). The Community Trap: Liberal Norms, Rhetorical Action, and

the Eastern Enlargement of the European Union. International Organization, 55: 4780.Sedelmeier, U. (2000) East of Amsterdam: The Implications of the Amsterdam Treaty for

Eastern Enlargement. In European Integration After Amsterdam: Institutional Dynamics andProspects for Democracy (K. Neunreither and A. Wiener, eds), 218237. Oxford: OxfordUniversity Press.

Stubb, A. (2000). Negotiating Flexible Integration in the Amsterdam Treaty. In EuropeanIntegration After Amsterdam: Institutional Dynamics and Prospects for Democracy Democracy(K.Neunreither and A. Wiener, eds), 153174. Oxford: Oxford University Press.

Wallace, H. (1989). Widening and Deepening: The European Community and the New EuropeanAgenda. London: Royal Institute of International Affairs.

Wallace, H. (2000). Flexibility: A Tool of Integration or a Restraint on Disintegration? InEuropean Integration After Amsterdam: Institutional Dynamics and Prospects for DemocracyDemocracy(K. Neunreither and A. Wiener, eds), 175191. Oxford: Oxford University Press.

Westlake, M. (1999). The Council of the European Union(revised edn). London: John Harper.

Biographical Note

BRUNO DEWITTE has been Professor of European Law at the European UniversityInstitute in Florence since March 2000. Before that, he was Professor of EuropeanLaw at the University of Maastricht. His research interests are in the fields of

European institutional law, and the interaction between European law andcultural diversity. ADDRESS: European University Institute, Via dei Roccettini 9,I-50016 San Domenico di Fiesole (FI), Italy. [e-mail: [email protected]]

http://ips.sagepub.com/

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