In the Name of Simplification: Coping with Constitutional Conflicts in the Convention on the Future of Europe

• Published date: 01 July 2005
• Author: Paul Magnette
• DOI: http://doi.org/10.1111/j.1468-0386.2005.00269.x
• Date: 01 July 2005

European Law Journal, Vol.11, No. 4, July 2005, pp. 432–451.

© Blackwell Publishing Ltd. 2005, 9600 Garsington Road, Oxford OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

* Institut d’études européennes, Université libre de Bruxelles. Former drafts of and variations on this paper

were presented at conferences and seminars in Lille, Brussels, Bordeaux, Harvard, Oxford, Lyon, Birm-

ingham, Albarracin, Newcastle, Montreal, Berlin, Paris, Brussels, Oslo and New York during and after

the Convention. I received too many useful comments to remember them all,but would like to acknowl-

edge the very helpful criticisms of Olivier Beaud, Richard Bellamy, Dario Castiglione, Carlos Closa,

Olivier Costa, Renaud Dehousse, John Erik Fossum, Chris Lord, Anand Menon, Andrew Moravcsik,

Johan Olsen, Jo Shaw, Fritz Scharpf, Vivien Schmidt, and last but not least, my favourite co-author on

the Convention, Kalypso Nicolaïdis.

432 © Blackwell Publishing Ltd. 2005

In the Name of Simplification: Coping with

Constitutional Conflicts in the Convention

on the Future of Europe

Paul Magnette*

The creation of the European Convention gave rise to yet another academic dispute

on the logic of constitutional change in the European Union. Some argued that this

would be remembered as a turning point in the history of European integration: after

half a century of piecemeal and instrumental reforms, the EU seemed to have reached

its constitutional moment. A debate on the finalité politique would finally take place,

within a new framework that might well shape future changes. Executive officials and

diplomats could no longer ignore national parliamentarians and MEPs, and they would

be forced to argue, this time and in the future, in the eyes of the public. In turn, this

might compel them to agree on a more ambitious and comprehensive constitutional

settlement. Others, on the contrary, predicted that the Convention would be forced to

anticipate the intergovernmental conference that would follow, and that the govern-

ments that had reluctantly accepted this new process would prove able, in the course

of the negotiation, to bring it back under their control.

In this article, I will argue that these two lines of analysis can be reconciled. It is dif-

ficult to deny that the Convention was merely a new bargain among Member States,

governed by classic forms of mutual concessions, based on a narrow calculation of costs

and benefits. But the deliberative nature of the process should not be neglected either.

This Convention can be understood as an experience of ‘negotiation under the shadow

of rhetoric’: the vagueness of the mandate left some room for a more open and fluid

process than classic IGCs; and the symbolism associated with the creation of a

Convention conveyed a ‘constitutional ethos’ that favoured discussions moulded in

formalist terms. In this respect, the Convention strengthened the formalist patterns of

thought—which have been latent since the origins in the minds of politicians as well

July 2005 Constitutional Conflicts

© Blackwell Publishing Ltd. 2005 433

as judges and academics—counterbalancing the dominant instrumental style of the

negotiations.

In the first part of this paper, I will show that the Laeken mandate which created the

Convention was very open. It was the result of a compromise between Member States,

and it contained rules and procedures that made deliberation possible, if not certain.

In the second part, I will examine how the majority of the conventioneers have insti-

tutionalised a ‘deliberative setting’ in order to counterbalance the logic of bargaining.

In the third part, I will point to instances that show that rhetorical strategies con-

tributed to forge agreements. I will particularly insist on the importance of ‘practical’

and ‘logical’ ways of reasoning in this discussion, and on the importance of the

leitmotiv of ‘simplification’ as a means of showing under which conditions arguments

mattered.

I An Ambivalent Mandate

Although a number of political leaders described it as the victory of a new ‘constitu-

tional doctrine’, the Laeken Declaration, which created the Convention and raised a

long list of questions its members would had to address, was the result of a classical

intergovernmental compromise (Magnette and Nicolaïdis, 2004b).

Initially, the idea to set up a new Convention to pave the way for the IGC 2004, one

modeled on the Charter Convention, was supported by a very small minority of

the Member States. Only those who had an interest in it seemed to be enthusiastic. The

Commission and the European Parliament soon expressed their support for this

process, as this was their only chance to be associated with treaty changes. Germany

supported it merely for domestic reasons—Chancellor Schröder had an obvious inter-

est in promoting a European constitution, in a country where citizens remain strongly

pro-European, and championing the Convention process was a good way to compete

with the Christian Democrat opposition and come back to an issue largely monopo-

lised by the Green Minister for Foreign Affairs, Joschka Fischer. The position of the

smaller countries also corresponded to their interest: at Nice, they had realised that

IGCs remain governed by big bargains, where the large states are often able to impose

their views or at least to veto the proposals they dislike (Moravcsik and Nicolaïdis,

1999). A preparatory body that would put all the actors on an equal footing, deliber-

ate publicly, and include MEPs and commissioners offered the negotiators of the small

countries more possibilities to forge alternative coalitions and to reduce the impact of

the veto. The large states, on the contrary, Britain, France, and Spain particularly, were

rather reluctant to accept such a new process; they nevertheless acknowledged that they

had been unable, at Maastricht, Amsterdam, and Nice to revise the treaties as much as

was deemed necessary,and did not fully reject the idea that some changes to the process

could be helpful, provided they remained the masters of the treaties.

The Belgian Presidency,which had made the Laeken Declaration its top priority, had

to make tricky compromises to reach an agreement on the creation of a Convention.

Aware of the reluctance of the big states, Verhofstadt’s government insisted that this

Convention would only be a ‘preparatory body’, and that decisions about treaty reforms

would remain entirely in the hands of the governments. The least enthusiastic govern-

ments conceded that it was difficult to refuse a ‘broad debate’—especially as the Belgian

presidency had been clever enough to remain vague about its intentions—and

therefore tried to make sure that they could, in any hypothetical situation, control it

and reduce its impact. During the bilateral discussions with the Belgian presidency, they