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Law Essay on the European Union Treaty

"What institutional challenges has the recent enlargement to 25 Member States presented to the EU, and to what extent did the Treaty of Nice successfully address those challenges? Is the Treaty Establishing a Constitution for Europe an improvement on the status quo?"

EU Essay Introduction

On May 1st 2004 the European Union admitted ten new Member States, raising its membership from fifteen to twenty-five. As Baroness Rawlings quite rightly said in the House of Lords:

"[Enlargement] has also served to bring into sharp relief the structural and economic challenges facing the EU today..." (Lords Hansard Text for 9.3.2005, at Column 807)

It is these challenges and the measures designed to combat them which will be the subject of this essay.

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2. The Challenges

In 2000, when the Treaty of Nice was signed, it was obvious that a Commission of thirty members would crumble under the weight of its own inertia at a time when its effectiveness was more important than ever. The number of Commissioners, and how they were to be nominated was therefore a challenge posed by enlargement.

Providing strong, effective and strategic leadership was seen as a major challenge post-enlargement. Continuity and consistency in the EU's leadership was seen as essential in the new order. The burden upon the state holding the presidency would be significantly heavier and the differences in culture between countries leads to a new Presidential style every six months. The leadership issue was equally important in the Commission, and enlargement, combined with the disgrace and en masse resignation of the Santerre Commission in 1999 ensured this issue was top of the agenda at Nice.

With the advent of a twenty-five state Union, reform of the decision-making process within the Council was crucial. Without it, it was feared that the EU would grind to a halt at a time when it was going through a massive change and needed to maintain its momentum. The perceived solution was to extend the system of Qualified Majority Voting (QMV) to as many areas of decision-making as possible, keeping unanimity only where absolutely necessary; the challenge was what would constitute a Qualified Majority.

Membership of the European Parliament was also an issue. To allocate MEPs on the basis agreed in earlier Treaties would have seen the Parliament (like the Commission), balloon into an oversized body, subject to inaction. The challenge here was how to add to the current number whilst reducing each member's overall share of seats.

The ECJ was massively overworked, with a large backlog of cases, a situation that would only become worse. The EU's effectiveness relies on the resolution of legal challenges to EU law; easing the Courts' burden whilst speeding up its dispatching of cases was the resulting challenge.

3. Meeting the Challenges: The Treaty of Nice (2000) and the Draft Constitutional Treaty

Alex Warleigh referred to the Nice IGC as:

"a bitter summit with a poor new treaty." (p. 90, Warleigh)

The extent of horse-trading and compromise on every issue of merit led to a treaty that pleased nobody (the Irish public even went as far as to reject it in a referendum). Its sheer inadequacy led to the almost immediate creation of the Convention which produced the Constitution; a clear sign that Nice failed.

Even an issue as straightforward as Commission membership was not fully resolved at Nice. It was clear that no Member State would surrender all their Commissioners, but a sensible first step was taken, with one Commissioner per Member State being the agreed number. A Commission of twenty-five was not going to be much more effective than a Commission of thirty, but it was the most that could be unanimously agreed. The Draft Constitution went further; whilst the Commission's membership would remain at 25, it would be two-tiered, with fifteen commissioners granted full voting rights, and the remaining ten having none. A system of rotation would ensure regular representation by a voting member. This was a much-needed improvement to the cumbersome Commission produced by Nice.

Leadership was a nettle not really grasped at Nice, although the Santerre debacle did prompt an extension of the powers of the Commission President, allowing him to be a real leader of the Commission, with the power to shuffle portfolios. The issue of the Council Presidency was in no way resolved at Nice, the inadequate and inconsistent nature of a rotated presidency changing from a six, to a twelve-year cycle. The Draft Constitution took a radical approach, putting the Presidency in the form of one person, someone who can embody the Union, as well as plan and deliver a consistent, long term strategy. The president would serve a two-and-a-half renewable term, chair the Council of Ministers and set the Union's agenda. It would also relieve the pressures on Member States imposed by the presidency. Jack Straw referred to this measure as:

"... a key institutional reform...Rotating the presidency made sense where the EU had six members. With 25, and soon to be more; it is now a recipe for member states to lose their grip." (Straw, 2004)

Of course, the counter-argument to this is that it takes the ability to set the agenda away from the Member States. However, in a flat choice between a state of flux and some sense of permanency, the latter is to be preferred, and the draft constitution creates this; Nice does not.

To deal quickly with the issues of the Parliament and ECJ. Sensibly, the Constitution caps the number of MEPs at 732, with Germany being compensated for the loss of weighted votes in Council by a much higher number of seats than any other nation. Nice sensibly extended the CFI's jurisdiction, a measure kept in the Constitution, with the ECJ's one judge per member state rule ensuring an increase in judges not enough to cope with the increased case load that ten new countries will bring. Realistically, more judges are needed to speed up the process. Neither treaty does this.

QMV was one issue where Nice unambiguously made matters worse. Both the weighting of votes and the triple majority system itself made decision-making far more complex than it needed to be, with Spain and Poland receiving a disproportionately high number of votes. In order to win a vote, a coalition would have to be assembled, with each member going through the hundreds of permutations that would permit it to pass a measure. Since the whole point of QMV was to make decision-making easier, this addition at Nice can only be seen as a disaster brought on by member state intransigence. What the constitution does is make QMV less qualified, doing away with the weighting system, allowing votes to be won by a simple majority of Member States, which must represent around 60% of the Union's population. This makes voting a matter of politics and not mathematics, and the emphasis on population brings a certain level of democratic legitimacy to the whole process.

Nice solved almost none of the EU's institutional problems. Yataganas refers to it thus:

"The amendments made to the Treaty [at Nice] are more like a patchwork that is just large enough to cover the new Member States than an orderly and rational arrangement designed to ensure the consistency and effectiveness of the European institutions." (Yataganas, 2001)

Nice even threw up some new problems, which the Draft Constitution was designed to solve. It is more than "a simplification of the existing forest of interlocking treaties" (Macshane, 2005), it is a genuine attempt to reform the structure and institutions of the EU and grease the wheels of the Union by streamlining the Commission and simplifying the decision-making process in the Council. It does what Nice failed to do: improves on the status quo to meet the challenges posed by enlargement.

Length: Approx. 1000 words (excluding quotes, subtitles footnotes and bibliography).

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