Delegates from member-states, national parliaments, and the European Parliament met over the course of the last year at a European Convention to work on the draft of a new Constitution for the EU which is now being debated by ministers and, in some form, will probably be adopted during the term of next year's Irish Presidency. Today we publish the first of a series of joint articles by a former president and two former prime ministers, France's Valéry Giscard D'Estaing, who also served as president of the Convention, and two of its vice-presidents, Italy's Giuliano Amato, and Belgium's Jean-Luc Dehaene.
The article, which is running today in at least a dozen of Europe's major dailies, from Le Monde to Frankfurter Allgemeine, Denmark's Politiken, Austria's Der Standard, Poland's Gazeta Wyborzcka, and Italy's La Reppublica, deals with the critical and difficult issue of how to reconcile two constitutional imperatives: the equality of states, no matter what size, and the equality of citizens.
The title of the series, The European Convention Papers, is a conscious allusion to the publication in the New York press in 1787 and 1788 of the Federalist Papers, 85 essays by Alexander Hamilton, John Jay, and James Madison writing under the pen name "Publius".
They were attempting to promote the various rationales of the American Constitution which had just been drafted in Philadelphia by the Constitutional Convention.
Hamilton, who, with Madison, was a member of the Convention, opened their series with the words "After an unequivocal experience of the inefficiency of the subsisting federal government, you are called upon to deliberate on a new Constitution for the United States of America."
Today Europe's citizens are offered the same challenge.
The debates of the Convention have often been presented to public opinion as reflecting a clash of interest between Europe's most and least populous states, or, as they are described, large and small states.
This analysis sought to give credence to the idea that the large states are acting in concert to curb the rights of small states in order to submit them to decisions imposed by a directoire of the EU's most populous states - Germany, France the UK, and Italy, to be joined eventually by Spain and Poland.
It is a contention that merits serious and objective assessment. To ignore the issue would be a mistake that could risk a long-term poisoning of the Union's internal relationships. And it is an issue that requires more than good intentions or superficial declarations of intent.
Let us start with two observations. Firstly, the reality is that the EU brings together states of widely differing sizes, from Germany, the Union's most populous with 82.5 million citizens, to Luxembourg, currently the smallest, with 450,000 inhabitants, but soon to be replaced by Malta with 340,000. Such a range of populations is substantially bigger than that in comparable structures, most notably the USA. And it is a difficulty which Europe's construction must take into account.
Secondly, the problem has really only arisen recently. In the first decades of European construction the issue was not raised. Luxembourg was one the six founding member-states and played an important part in the process. It has played host to a number of Community institutions such as the Court of Justice and the European Investment Bank. Twice, in the persons of Gaston Thorn and Jacques Santer, it has held the presidency of the Commission. And the subsequent enlargement, which brought in one larger state, the UK, and two smaller, Denmark and Ireland, did not give rise to arguments between large and small states. So it is largely a new problem that has to be seen in the context of the current development of the Union.
The EU's most recent adherents have difficulty admitting that which European practice has long taught the long-standing member-states, and even the Eurosceptics in their midst: participation in the European project requires a compromise between strictly national interests and the rules necessary to operate together at a European level.
That compromise is found in the reconciliation of two contradictory notions of equality: the equality of states and the equality of citizens. No more can one conceive of a Europe which failed to acknowledge the rights of states, than one in which the dogma of the equality of states resulted in a fundamental inequality between citizens. Sooner or later the winds of democracy would sweep away institutions so conceived.
Hence the approach of the Convention. There are three key areas which impinge on the relationships between member-states, and specifically between the more and less populous: in the definition of what the Union may do, its "competences"; in its decision making; and in the method of appointment of its political representatives.
The first is critical to preserving the identity of states and to defining the issues for which they alone are responsible, and which, therefore, are immune to pressure from fellow member-states. Such competences are identical for each member-state, small or large.
Competences which are conferred on the Union are defined in the constitutional texts of the Union. These are all individually endorsed by all member-states freely. And, surprisingly, we note that this issue, although central to defining the future of the Union, did not appear to be a major preoccupation of the delegates to the Convention, and not least those from smaller countries. If they really feared that the large states would dominate the agenda, they had there an opportunity to apply the brakes.
In terms of competences, therefore, there is no discrimination between member-states on the basis of their size.
In relation to decision making, it is helpful to recall the structures. To be agreed proposals from the Commission, the body charged with reflecting the common good of the Union, must be endorsed by both the European Parliament and then the Council of Ministers.
The European Parliament represents the totality of European citizens. And, as with all democracies, whether federal or not, its membership must be proportional to population size. That principle is enunciated in the Constitution, with the proviso that a minimum representation of four is guaranteed to protect the smallest states. Parliament votes by simple majority and, to be enacted, European laws must garner such a majority.
Legislation is then passed on for subsequent approval by the Council of Ministers which performs the functions of a second chamber, akin to a Senate.
It would have been possible to structure the Council as a second chamber on the model of the Bundesrat in Germany, with representation from all the Lander. That option, the three authors' preferred, was not, however, agreed by the Convention. It could have provided an elegant answer to the problem of differing-sized states, but the Convention backed the status quo under which the legislative function at the Council is performed by member-state ministers.
Then the problem which remains to be resolved is that of the method of voting in the Council. From the inception of the Community that has been based on a system of weighting: 10 votes for the larger states, five for the middle-ranking, and two for the smallest. At that stage the large states had a comfortable majority, but successive enlargements, involving predominantly middling and small states, saw a change in the system. In a Europe of 25 the six most populous states will represent 74 per cent of the population of the Union but, under the current weighting system, would only have 53 per cent of the votes.
The Convention sought a formula that would be fair to large and small: for the large states, by enshrining the rule of the majority of citizens; for the small states, by requiring that no decision could be taken against the wishes of a majority of the member-states. This is known as the "double majority" system and wasboth recommended by the Commission in its November 2002 submission and backed by the European Parliament. The Constitution defines it in the following way: "Such a majority shall consist of the majority of member-states, representing at least three fifths of the population of the Union."
This formula would ensure that European legislation could not be adopted against the wishes of the small and middle-ranking states who have a large majority in the Council, nor without the backing of one or more of the large states who would be a necessary part of any 60 per cent population majority.
The formula has the merits of requiring a coalition of large and small states for the passage of any law. Far from setting them against each other, the approach invites them to seek out solutions that are mutually acceptable. To avoid legislative gridlock, however, the formula can only be taken so far.
And, because the formula relies on population size it also does away with the "golden rule" which had since the inception of the EEC guaranteed voting equality between France, Germany, and Italy.
The double majority system does pose problems to two of the most populous states [Ed. - Spain and Poland] because it moves away from the weighting agreed in the Treaty of Nice. Their concern, it would appear, is less to do with the efficiency of qualified majority decision making, and more to do with the ease with which a coalition could be put together to block Commission proposals.
Yet, despite such reservations, the use of the double majority appears to the majority of delegates to the Convention to enshrine the double legitimacy of the Union, a Union of citizens, and a Union of states.
In this context it is important to underline the role of an institution whose role is often misunderstood or underestimated in European debates: that of the European Court of Justice. The Court, the Constitution provides, "shall ensure respect for the law in the interpretation and application of the Constitution". Moreover Article 28 of the Constitution requires that the "Court of Justice shall consist of one judge from each member-state". All member-states, whatever their size, are therefore guaranteed equal treatment in the application and interpretation of the Constitution.
The last source of concern of some small states is the fear that their nationals will be frozen out of key EU jobs. A study of the way the Union currently functions should, however, dispel such concerns: the elected President of the European Parliament is an Irishman (Pat Cox). And when it came recently to the appointment of a vice-president of the European Central Bank the job went to a Greek. History suggests that often the candidates of the smaller states are the best placed to take on the top jobs of the Union. In the last four European Commission presidencies, the job has gone twice to nationals of large states and twice to those of small ones. The first president of the European Central Bank was also from a small country.
What then of the proposed President of the European Council? The Constitution provides that he/she would be elected by the members of the Council by qualified majority. In an election in which the Commission plays no part, that means that a successful candidate will need to get the support of two thirds of member-states, 17 out of 25, representing three fifths of the population of the Union. The small and middle-ranking states would have the power to reject any nomination that does not suit them and the large states will be unable to impose a candidate of their choice.
Claims that there is a fundamental clash of interests between large and small states, we believe are shown by our analysis to be based on a simplistic and hasty reading of the dynamics at the heart of the Union. With time other sorts of alliances, geographical, ideological, or based on common financial interests, will emerge and then dissolve.
At different times votes will bring together different combinations of states.
And, we are convinced, the voice of democracy will be heard more and more vociferously in this process, to the point where, in due course, power in the European Union, over matters that concern the Union exclusively, will pass to the citizens of Europe themselves.