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01 July 2003

If measured against the questions raised in the Laeken Declaration of December 2001, the answers offered by the Convention on the Future of Europe cannot be considered satisfactory. However, Laeken is not the only benchmark for assessing the Convention's achievements. In fact, the new body was set up also in order to give some extra momentum to the continuing reform process of EU institutions by (a) involving the European citizens more directly and (b) countering, or just softening, the mutually paralysing effects of intergovernmental conference (IGC) negotiations, as shown in Amsterdam and Nice.
It now seems fair to say that the Convention has not been greatly successful in its opening up to civil society: interest in its debates and proceedings has been highest among a limited group of activists and experts, but quite modest on the European street. Conversely, the Convention has been reasonably successful in its reforming effort. It could probably have gone further if it had decided to be less consensual internally. By doing so, however, it would have weakened the legitimacy of its end result, thus opening the door to substantial revisions by the ensuing IGC. To a certain extent, the Praesidium has managed -- especially since some acting EU foreign ministers joined the ranks of the `Conventionals' - to merge or blur the two formats, thus transforming the Convention into a sort of pre-IGC and occasionally playing the one off against the other. As a result, the outcome is not entirely satisfactory for anyone (which may not be a bad thing after all) but can hardly be called into question now -- bar a few marginal adjustments -- by the very ministers who have just subscribed to it.
The area in which all this is most evident is notably the Common Foreign and Security Policy (CFSP). First, lacking consensus on a more ambitious reform, the future creation of a double-hatted EU `Minister for Foreign Affairs' bodes well for the necessary coherence of the Union's external action: while the institutional set-up is bound to remain fuzzy, intra-EU turf battles and bureaucratic bottlenecks are expected to be reduced to the physiological level, while visibility, speed and effectiveness are likely to increase. Furthermore, this is one reform that could be foregone already next year by appointing one and the same person as both High Representative and Commissioner for External Relations: while he would not yet be endowed with all the powers enshrined in the new Constitutional Treaty, it will once again be difficult for the other actors to oppose his strengthening having accepted it in the Convention. Similarly, the broader definition of the old `Petersberg tasks' (Art. III-205) and the inclusion of an explicit solidarity clause (Art. III-226) are bound to widen the scope of common policies in this and other fields.
By contrast, the convoluted Art. III-196 on decision-making -- as released right before Thessaloniki -- displays all the roadblocks that still slow down or impair CFSP. One can count up to four different modalities for taking `European decisions', none of which is entirely clear but for the primacy of the unanimity rule (that includes qualified abstention), from which only few predetermined derogations are envisaged (and further limited, in turn, by the possible claim of `vital and stated reasons of national policy'). True, CFSP is not primarily about legislation, for which majority voting is indispensable. In its domain, consensus increases legitimacy, and action cannot be imposed on reluctant member states. The Conventionals, however, could have gone further in limiting the crude veto right of individual member states, especially in an enlarged EU, for instance by making `super'-qualified majority voting as now defined in Art. I-24 -- at least 2/3 of member states + 3/5 (4/5 in an earlier version) of the overall population -- the general rule `unless the Council decides otherwise' and/or specifying eventual derogations. This would de facto preserve the right of member states to block certain decisions but also force them to build minimal alliances to do so. It is worth noting that, even for `matters having military or defence implications', the reaffirmed unanimity rule is then dispensed with in Art.III-207 (the armament agency) and, potentially, also in Art. III-208 (`structured' cooperation based on `high' military capabilities).
Finally, taken together, Arts. III-206/209 and III-226 entail at least five potentially different formats and scenarios for flexibility, that is, for policy arrangements including only some, not necessarily all member states. On the one hand, this creates confusion. On the other, it keeps the door open to various, competing and even opposite developments. Paradoxically, therefore, those articles meet the key requirement of a Constitutional Treaty worthy of the name, namely the provision of `enabling' rather than restrictive clauses. And this may well turn out to be the main achievement of the Convention in the CFSP domain.