eu constitutionalisation - EUROPEUM Institute for European Policy

Chapter 6: A ‘saut constitutionnel’ out of an intergovernmental trap?4. PROCEDURES AND INSTITUTIONSThe following analysis of the procedures and institutions with regard to theCommon Foreign and Security Policy in the TCE is divided into two parts:In the first part, the respective general CFSP provisions will be analysed.The second part deals separately with the special provisions for security anddefence. This separation takes into account the dynamic development ofthe European Security and Defence Policy since its creation in 1999, representinga salient part of the Common Foreign and Security Policy.4.1. Procedures and institutions: CFSP4.1.1. Decision-making rules: the perennial controversy on QMVDespite intensive controversy in and around the Convention and to a lesserdegree in the IGC, the TCE has only marginally amended the rules for decision-making(Art. III-300) and has thus failed to achieve a major breakthroughto increase internal efficiency. A Franco-German project had proposedto “make decisions in the field of CFSP generally by qualified majority“³⁴.However, this initiative to water down the principle of unanimity met withresistance by a number of representatives especially from governments, aboveall from the United Kingdom, behind which others did not need to voice theiropposition³⁵. The deep rift over the participation in the Iraq war generallyreduced the propensity to accept majority voting. In view of unclear majoritiesmore and more governments became risk averse; the worry of being outvoteddue to low “policy conformity”³⁶ spread in many capitals. Consequently, thetext continues to state that “European decisions … shall be adopted by theCouncil of Ministers acting unanimously”(Art. III-300 (1)).In addition to a small number of complex existing derogations (see Art. III-300 (1) and (2)) the new UMFA is offered a complicated opportunity to putforward a proposal for voting by qualified majority but only on a “specificrequest” from the European Council (Art. III-300 (2b)). Also with theselimited openings the hurdle is kept high: even after a unanimous decision34) Contribution by Joschka Fischer and Dominique de Villepin to the Convention, [own translation],CONV 489/03, http://register.consilium.eu.int/pdf/de/03/cv00/cv00489de03.pdf; (German version) orCONV422/02, http://register.consilium.eu.int/pdf/fr/02/cv00/00422f2.pdf (French version) [23.11.2005].35) See e.g. JOPP and REGELSBERGER (2003) p. 556, THYM (2004), p. 11.36) See for the term KOENIG–ARCHIBUGI (2004), p. 143.208Chapter 6: A ‘saut constitutionnel’ out of an intergovernmental trap?by the European Council, every member state can reject a majority vote“for vital and stated reasons of national policy” (Art. III-300 (2)). In order tosupport the fundamental concern of nation states, the document reiteratesthat even these limited possibilities for QMV do not apply to “decisionshaving military or defence implications” (Art. III-300 (4)).The Convention’s proposal for these decision-making rules document thevictory of diplomats in general and of intergovernmentalist views morespecifically: not only have former intergovernmental conferences missedthe opportunity for increasing the efficiency of the procedures, but so hasalready the Convention, even in a different composition from that of diplomaticconferences. In the case of diverging opinions over external actionsof limited scope and minor impact, the constitutional treaty might haveprovided a constitutional option to overrule minority positions of memberstate governments.To a certain extent, the document takes note of such suggestions: through anempowering clause, the European Council “may unanimously adopt a Europeandecision stipulating that the Council of Ministers shall act by a qualifiedmajority” (Art. III-300 (3)) provided though that not a single national parliamentdoes make its opposition known (Art. IV-444 (3)); generally excludedare again “decisions having military or defence implications” (Art. III-300 (4)).Through such a ‘passerelle’ the heads of government would circumvent theneed to have these revisions formally ratified in each member state.In contrast to the basic red line, voting with qualified majorities was extendedto the nomination procedures for the fulltime President of the EuropeanCouncil and of the Foreign Minister, which might help to achieve a fasterconsensus.4.1.2. The institutional architecture:towards personalisation and politicisation4.1.2.1. Familiar trendsThe Convention had considerably redesigned the institutional architectureof the CFSP (see graph 1); in major features this work has been reconfirmedby the IGC.209