NICE TREATY.

The fall of the Berlin Wall at the end of 1989, together with the prospect of greatly enlarging the European Union (EU) to the east, led to a series of additions to the treaties that had founded the European Communities. The deeper goal of integrating European nations remained constant, yet reform of the various existing institutions proved problematic. While a consensual view held to the necessity of seriously modifying the decision-making process, divergence of national interests and visions continually postponed anticipated reforms. Successive accords—the Maastricht Treaty in 1991, the Amsterdam Treaty in 1997, and the Nice Treaty in 2000—all confirmed the failure of the proposed reforms while announcing the need for further revision.

The Intergovernmental Conference (IGC) that brought into being the Nice Treaty had as its almost exclusive goal postponing implementation of the 1997 Treaty of Amsterdam, which, in a "protocol on the institutions with the prospect of enlargement of the European Union" had announced plans to call for "a comprehensive review of the provisions of the treaties on the composition and functioning of the institutions." Consequently, at the opening of negotiations to discuss the prospects of membership for an initial group of countries in central and Western Europe, the Helsinki European Council Summit of 10–11 December 1999 had convened an IGC to review treaties on four key issues: size and composition of the European Commission, the weighting of votes in the Council, extending the use of voting by qualified majority, and reform of the rules governing enhanced cooperation.

DIFFICULT NEGOTIATIONS IN A TENSE ATMOSPHERE

Negotiations began on 14 February 2000 with a special effort at transparency and openness, in response to sharp criticisms after previous meetings of the IGC. They were to be relatively short, lasting under ten months, thanks to a specific agenda and familiarity with the institutional issues and the much-discussed intention of enlarging the union. But transparency and celerity concealed a less flattering reality. After some three hundred hours, negotiators could not agree on the principal items on the agenda. Most of the decisions were taken during the summit of the Nice European Council, the longest in its history, 7–11 December 2000. In addition, the treaty provided for a new IGC in 2004, to be charged with resolving the remaining unanswered questions, which included apportioning jurisdiction between the European Union and the individual nations, the status of the Charter of Fundamental Rights, simplification of treaties, and the role of national parliaments.

The negotiators' problems may be explained in great part by the nature of their mandate. Unlike their predecessors, they were not content to merely apply numbers to the decision-making process, or to modify the institutional balance. They debated the place of member states in the different institutions of the EU and for the first time had to modify the balance of power initially ratified by the Treaty of Rome in 1957. Negotiators were thus led to openly defend the positions of their home countries. In addition, the debate did not benefit, as previously, from pairs of allied states—indeed, France and Germany seemed like a married couple on the verge of divorce—nor from the skill of the successive presidents of the European Union. Overall, negotiations for the Nice Treaty were dominated by anguish vis-à-vis the enlargement of the EU and also by the negotiators' determination to "limit the damage" to their own nations.

MINIMAL REFORM OF INSTITUTIONS

According to the protocol on institutions annexed to the Treaty of Amsterdam, the Nice Treaty was to handle essentially institutional reforms. However, these reforms failed to fulfill the goals set for them.

Modification of the balance of power in the Council for adopting decisions by a qualified majority was the first objective. The voting system ratified by the Treaty of Rome in 1957 depended on elaborate calculations to set the number by which a blocking minority could succeed in voting down proposals and also on a subtle balance among "small," "medium," and "large" member states. This method was proportionately recalculated each time the EU was enlarged. With the prospect of numerous new countries, however, it became clear that this method would no longer be practical.

In consequence, negotiators first considered a system that required a double majority of both member states and populations, proposed by the commission. But deep disagreements returned the discussion to options closer to the existing system; in any event, the principle of a simple majority of member states was retained. Fiery debates took place around the importance of using demographic criteria in weighting votes. Agreement was reached only at the cost of great complexity that did not square with the idea of a clear mechanism for apportioning votes, and which included all sorts of compensations. The question of a threshold for the qualified majority—earlier fixed at 71 percent of the votes—also provoked angry discussion. One protocol planned to increase the threshold figure to 72.3 percent in a union of twenty-five members, then to 73.9 percent in a union with twenty-seven member states. In addition, representatives of the larger states obtained a "demographic net" by which a member state can request that the qualified majority represent at least 62 percent of the union's population.

The second objective of the IGC was to limit the size of the European Commission. Various propositions were presented, from a drastic reduction in the number of commissioners to retention of the status quo. Because of persistent disagreement, revision was minimal. The Nice Treaty planned that, beginning 1 January 2005, each member state would have only one representative on the European Commission (EC), the five larger states losing their second representative. The treaty also provided that when the number of member states reached twenty-seven the number of commissioners would be inferior to the number of member states, but it did not specify how such a change might be implemented.

Although the composition of the European Parliament was not on the IGC's agenda, a new arrangement had to be considered in view of the coming enlargement of the EU, but the process had to be purely technical. During the summit at Nice, however, the French presidency decided to extend the negotiations to the European Parliament in order to reach an agreement on national voting weights on the Council of the EU. The upshot did not reflect any kind of objective rule but only obscure transactions; some states—notably Greece, Portugal, and Belgium—obtained a number of votes superior to other more populous candidate states. Finally, the number of seats in the European Parliament, with 25 members, came to 732 in spite of the Treaty of Amsterdam's limit of 700. According to the membership treaty for new member states, institutional reforms to apply 1 January 2005, including the composition of the Commission and the rules concerning qualified majority vote, were officially put into force 1 November 2004.

Other reforms on the agenda were less problematic and less criticized. The Nice Treaty clearly facilitated recourse to rules of enhanced cooperation as established by the Treaty of Amsterdam. This would enable member countries seeking greater integration in specific areas but meeting resistance on the part of other members, to cooperate more narrowly within the framework of the Union. The Nice Treaty reduced to eight the required number of states that must be willing to cooperate and suppressed the veto power of the other member states, while increasing the number of areas concerned.

Negotiators also had to examine the possibility of extending the use of the qualified majority vote. The treaty extended it to about thirty new provisions; the progress was perceptible, but the list was heterogeneous and excluded important policies such as taxation, social policy, right of political asylum and immigration, and economic and social cohesion. The treaty also addressed reforms concerning issues not initially on the agenda, such as modifying the appointments procedure for the president of the European Commission and reinforcing his or her authority and leadership. The treaty also increased the power of the European Parliament, notably by extending the procedure of co-decision, and it also changed the sharing of jurisdiction between the Court of Justice and the Court of First Instance while allowing the creation of specialized judicial panels. Finally, it reinforced the defense and security policy.

A TREATY ABOUT TRANSITION?

Although it facilitated enlargement of the European Union, the Treaty of Nice was from the very beginning considered a preamble to more significant reform. The "Declaration on the Future of the Union," an appendix to the treaty, provided for a new ICG, to convene in 2004, that would seek solutions to a variety of outstanding issues. These included delimitation of power-sharing between the EU and member states, the status of the Charter of Fundamental Rights, simplification of the treaties, and the role of national parliaments in the wider European context. Specialists in European integration, journalists, and representatives of the institutions concerned—the European Commission and European Parliament, first among many—openly criticized the treaty's lack of breadth and particularly its inability to ensure adequate institutional functioning once the enlargement took place. Critics denounced in particular the reinforcement of interstate logic in the composition of the Commission and the European Parliament. They also deplored the negotiators' failure to provide the EU with a political system that was more efficient, democratic, and open.

The IGC in 2000 and the European Council of Nice symbolized the lack of direction and the crisis of European integration. The absence of clear objectives, narrow defense of national interests, and negotiators' inability to simplify the decision-making process were only several of many problems. There was also the tendency to put off numerous decisions, sharp exchanges, and resurgence of old conflicts between nations, and organized media leaks, among other issues. The limited results of the IGC meeting in 2000, together with the deep divisions provoked there and in the open, had at least the virtue of persuading the representatives of member states to consider a revision of the revision process itself in order to draft a more ambitious text—indeed, a European constitution. These failures, far more than the numerous interventions on the part of the European Parliament or the federalist movements, prodded the national leaders to convene a "Convention on the Future of Europe" the task of which was to enable the constitutional debate to break out of its strictly intergovernmental framework. By 2006 the outcome was by no means clear.

See alsoEuropean Commission; European Constitution 2004–2005; European Parliament; European Union; Maastricht, Treaty of.

BIBLIOGRAPHY

Dashwood, Alan. "The Constitution of the European Union after Nice: Law-Making Procedures." European Law Review 26 (2001): 215–238.

Galloway, David. The Treaty of Nice and Beyond: Realities and Illusions of Power in the EU. Sheffield, U.K., 2001.

Melissas, Dimitris. Perspectives of the Nice Treaty and the Intergovernmental Conference in 2004: Center of European Constitutional Law, Athens 2001. Baden-Baden, Germany, 2002.

Muñoz, Rodolphe, and Catherine Turner. "Revising the Judicial Architecture of the European Union." Yearbook of European Law 19 (2000): 1–93.

Pescatore, Pierre. "Nice—Aftermath." Common Market Law Review 38 (2001): 265–271.

Shaw, Jo. "The Treaty of Nice: Legal and Constitutional Implications." European Public Law 7 (2001): 195–215.

Olivier Costa