The Convention on the Future of Europe- bringing democratic legitimacy to the EU? -

Masters Thesis

Aalborg University

European Studies

October 2008

Mikael Ballegaard Gotfredsen

&

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Julie Klingberg Plambek

Om demokrati…

Naar to, tre eller flere – muligvis et helt Folk – skal træffe en Afgørelse om Fremtiden eller fastlægge Love for deres indbyrdes Samkvem, kan man være nogenlunde sikker paa, at der vil opstaa Uenighed. Mennesker er forskellige, lever under forskellige Kaar, har forskellige Interesser; derfor vil de ogsaa drømme forskelligt og have forskellige Ønsker.

Der opstaar saaledes Konflikter, store og smaa imellem hinanden. Afgørelsen skal imidlertid træffes, og Loven skal fastlægges; derfor maa man finde en Løsning paa Konflikten: I det store og hele findes der kun to Veje til at finde denne Løsning:

1) man kan slaas sig til Rette, hvilket vil sige, at det bliver den stærkestes Vilje, som raader; saaledes gaar det til i Junglen; ofte er det imidlertid vanskeligt at se nogen væsentlig Forskel paa Menneskers og Jungledyrs Optræden.

2) man kan tale sig til Rette, hvilket vil sige, at man gennem en »sam«tale mellem de stridende Parter søger at faa Sagen alsidig belyst, og at de samtalende Parter virkelig bestræber sig for – det maa ikke glemmes – gennem Samtalen at naa til en rigtigere og rimeligere Forstaaelse af Konfliktens Problem.

Dette er Demokrati.

Hal Koch, ’Ordet eller Sværet’, Berlingske Aftenavis 12. september 1945.

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Abstract

In its efforts to increase the democratic legitimacy of the multi-level political system of the European Union, the European Council in December 2001 adopted the Laeken Declaration, hereby establishing a ‘Convention on the future of Europe’. Based on the rather ambivalent and open mandate of Laeken a rather broad representation of both EU- and state-centric actors aimed at creating a draft Constitution that would pave the way for the subsequent Intergovernmental Conference (IGC).

The Convention-model ensured a platform for democratic deliberation, at least compared to that of the traditional IGC, in which bargaining and utility-maximising take a central role. Based on the theories of democratic deliberation and liberal intergovernmentalism, and focusing solely on the model behind the Convention - i.e. the structure and process that shaped and constituted the Convention’s drafting process - this paper seeks to establish whether the Convention brought democratic legitimacy into the process behind drafting the Constitution for Europe.

From the empirical findings of the analysis on the two different models behind the Convention and the Intergovernmental Conferences of Amsterdam and Nice, the conclusion is that the Convention did bring democratic legitimacy into the process of drafting the Constitution. The conclusion is primarily based on the Convention’s deliberative procedural form, its transparency, and its rather strong representation which, in comparison to the IGC-model, provides it with a legitimacy advantage.

However, based on Kelstrup’s model of different dimensions of legitimacy, it is concluded that neither of the two models single-handedly can be characterised as sufficiently democratic legitimate. But as the set-up in the Laeken Declaration combines the two models, and as the Convention-model is found to hold more democratic legitimacy than the IGC-model, the overall conclusion that the Convention-model did bring legitimacy into the drafting-process holds its validity.

Key words: Democracy, legitimacy, democratic deliberation, liberal intergovernmentalism, Convention, IGC

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Table of Contents

Section Page

1.0. Introduction 1

2.0. Methodology 3

2.1 Motivation and research question 3

2.2 Thesis focus 4

2.3 Subject relevance 5

2.4 Method and structure 6

2.5 Empirical considerations 8

2.6 Limitation and considerations 9

3.0. Conceptualisation 10

3.1 The democratic deficit 10

3.2 Liberal democracy 11

3.3 Legitimacy 18

3.4 The relationship between democratic deliberation and legitimacy 22

4.0. Theory 23

4.1 Theoretical considerations 23

4.2 Democratic deliberation 25

4.2.1 Critique of democratic deliberation 31

4.3 Liberal Intergovernmentalism 33

4.3.1 Critique of Liberal Intergovernmentalism 36

4.4 Theoretical alternatives 38

4.4.1 Neo-functionalism 38

4.4.2 Rational Choice Institutionalism 40

4.5 Theories of democracy 41

4.5.1 Representative democracy 41

4.5.2 Participatory democracy 42

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5.0. Empirical Overview 43

5.1 The preconditions 43

5.2 The 2001 Laeken European Summit 45

5.3 The Convention on the Future of Europe 47

6.0. Analysis 50

6.1 Analysis of the Convention-model 50

6.1.1 The open mandate of Laeken 50

6.1.2 The President and the Presidium 53

6.1.3 Representation 58

6.1.4 First stage: Listening 60

6.1.5 Second stage: Deliberation in working groups 64

6.1.6 Third stage: Drafting 67

6.1.7 Conclusion 70

6.2 Analysis of the IGC-model 73

6.2.1 The mandate of the IGC 73

6.2.2 Actors and representation 75

6.2.3 The role of the European Parliament 77

6.2.4 Bargaining and preference formation 78

6.2.5 Transparency 80

6.2.6 Conclusion 81

7.0 Conclusion 82

8.0 Bibliography

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1.0 IntroductionThe incentive behind the European integration process, the causes for cooperation, and the

question of how the different varieties of cooperation in the past are to be explained has been

subjects for intensive debate throughout the past five decades. Every step within this process has

had its own specific objectives, which accordingly has transformed the EU into a complex set of

institutions. Together these institutions form a unique trans-national political system that

exercises direct and indirect influence on a majority of political issues within its member states.

Though the occasional lacks of public support in regards to treaty reforms or integration projects

e.g. in Denmark, Sweden Ireland, France and the Netherlands may be considered as minor

integrational setbacks, it has to be recognized that the legitimacy of the EU, and consequently its

policies, pose a genuine problem for the future success of the EU – at least in the eyes of the

general public.1 The level of recognition is underlined by the fact that the question of the EU’s

legitimacy is one of the main arguments of political opponents of the EU, and the sole political

foundation on which some political groups and organizations have been shaped. Additionally, the

poor electorate participation in the elections to the European Parliament (EP) may also be seen as

a result of dissatisfaction and low trust in the EU and its institutions.

Closa and Fossum establish that there are different opinions vis-à-vis the magnitude of the EU’s

problems of legitimacy, but as they state: “In formal terms, however, the Union has inadequate

channels for popular participation and accountability and there are democratic limitations to the

Union’s institutional and procedural designs, all of which add arguments in support of a

legitimacy deficit2”. Accordingly, the main aspect of the EU’s democratic deficit derives from a

divergence between the competences of the EU and its institutions, as well as the way the EU in

general operates and functions on the one hand, and its channels and structures for formulating

and implementing its policies on the other hand.3

1 Closa, Carlos & John Erik Fossum (2004a):‘Constitution-Making and Democratic Legitimacy in the EU’, Oslo: ARENA, p. 3. 2 Ibid. 3 Maurer, Andreas (2003): ‘Less Bargaining - More Deliberation The Convention Method for Enhancing EU Democracy’, Internationale Politik und Gesellschaft, International Politics and Society, 1/2003, p. 2.

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In its efforts to increase the legitimacy of the multi-level political system the European Council in

December 2001 adopted the Laeken Declaration hereby establishing a “Convention on the future

of Europe [the Concvention]4”. Dippel5 has inspired Reh and Scholl in their broad definition of a

constitutional assembly, as “an elected body acting under the commission of and beside an

existing legislative body for the sole and express purpose of drafting or revising a constitution

afterwards to be presented to the people for their approval or rejection6”. Reh and Scholl point

out that this definition cannot be linked to closely to the term ‘convention’ e.g. considering the

Convention for the Charter of Fundamental Rights of the European Union, which did neither

draft or revise a constitution nor act under a commission of an existing legislative body.

However, the definition manages to identify the essence and key aspects of the Convention for

the future of the EU, as to why it will be utilized in this paper. The close link between a

constitutional assembly and the Convention is also acknowledged by Closa, who states that “next

to being an institutional arena for expertise and an embedded diplomatic conference, the

Convention also has traits that comply with the notion of a special-purpose assembly, a sort of

constitutional assembly7”.

The Convention, which was a continuing process from 2002-2003, aimed at creating a draft

Constitution for Europe. The Council’s decision to establish the Convention was a

groundbreaking and innovative way of thinking in terms of drawing up treaties in the EU. The

arguments behind setting up the Convention, its composition, as well as the overall framework

and the criteria for success are evident aspects that the EU, on the one hand, had to try to seek

new ways of legitimizing yet another treaty (constitution) to the European populations, and, on

4 Sjursen, Helene (2004), p. 244.5 Dippel, Horst (2003): ‘Conventions in Comparative Constitutional Law’.6 Reh, Christine and Bruno Scholl (2005): ‘The Convention on the Future of Europe: Extended Working Group or Constitutional Assembly?’, p. 10. 7 Closa, Carlos (2004): ‘The Convention method and the transformation of EU constitutional politics’ in Erik Oddvar Eriksen, John Erik Fossum & Augustín José Menéndez (ed.) ‘Developing a Constitution for Europe’, London: Routledge, p. 202.

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the other hand, underlined the need for structural and institutional improvements of an enlarged

EU i.e. clear out the leftovers of the Nice treaty.8

As indicated by Closa and Fossum the EU’s internal and external problems after Nice stand as a

crucial outline of the need for reform: “To many analysts and observers the Nice Treaty process

was evocative of the clash between the need for a new and clarified foundation for an enlarged

EU with 25 plus Member States on the one hand, and the limitations inherent in the purely

aggregative and piece-meal problem solving approach of IGCs (Intergovernmental Conferences),

on the other9”. The opening remarks at the Convention by the Spanish prime minister at the time,

Mr. Jose Maria Aznar, who was speaking on behalf of the Council, also refer to the outcome of

Nice as the ‘point of no return’, stating that “Nice is the reason why we are here today 10”, and

“the new stage calls for new forms of operation and deliberation in order to create more

Europe11”. As will be stressed in the following section, the IGCs and the procedure of bargaining

pose a central element of interest in this paper, as it - from a starting-point - stands out as the

opposite of one of the core elements of the Convention i.e. democratic deliberation.

2.0 Methodology

2.1 Motivation and research question

From the Laeken Declaration of the Future of the European Union it is clear that one of the

central elements in the debate on legitimacy in the EU is the procedure of the Intergovernmental

Conferences (IGCs). According to Closa and Fossum the establishment of the Convention

indicates the member states’ willingness to try a new and more open way of building up a

constitutional treaty based on deliberation instead of bargaining.12 As Magnette puts it: “As [the

Convention] had been created to prevent the forms of sub-optimal bargaining that were supposed 8 Closa, Carlos & John Erik Fossum (2004a), p. 4. 9 Ibid. 10 Magnette, Paul (2004): ‘When does deliberation matter? Constitutional Rhetoric in the Convention on the Future of Europe’ in Deliberative Constitutional Politics in the EU, (ed.) Carlos Closa & John Erik Fossum, University of Oslo, Centre for European Studies, Oslo: ARENA, p. 211.11 Ibid. 12 Closa, Carlos & John Erik Fossum (2004a), p. 11.

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to be inherent in the process of intergovernmental negotiation, many members argued, the very

raison d’être of this Convention was to forge an alternative method13”. Maurer too recognizes that

the rationale behind the Convention method i.e. deliberation could lead to “a future model for a

more democratic set up of the EU14”.

In a number of ways the Convention-model contributes to an increase of the level of legitimacy:

Firstly, its composition of a wide representation of member of national governments and

parliaments, as well as representatives from the supranational European institutions, a president,

and observers such as the European Ombudsman and social partners, stands in contrast to the

rather slim governmental representation at the IGCs. Secondly, the public scope of the

Convention-model ensures a platform for democratic deliberation compared to that of the IGCs

where bargaining takes a more central role. Thirdly, the Convention was set up to be a task-

oriented forum focused on producing long-term results, and its members participated primarily as

representatives of the Convention – and not their national member states. Fourthly, the decision-

making method was by consensus rather than by unanimity or majority vote in order to ensure

that a small group of representatives could not hold out against an agreement unless certain

demands were met.

As the model behind the Convention was constructed with the sub-objective of making the

process of drafting a Constitution for Europe both democratic and transparent,15 we find it both

relevant and interesting to look into whether or not this was actually the case in regard to the

process behind the Constitutional Treaty. Hence, this thesis is in no way focused around neither

the substance of the treaty itself nor around the treaty’s final destiny. This work is focused solely

on the Convention-model - i.e. the structure and process that shaped and constituted the

Convention’s drafting process. Accordingly, the research question is the following:

Did the ‘Convention on the future of Europe’ bring democratic legitimacy into the process

behind drafting the Constitution for Europe?

13 Magnette, Paul (2004), p. 211.14 Maurer, Andreas (2003), p. 2.15 Laeken Declaration of the Future of the European Union.

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2.2 Thesis focus

As mentioned above, this thesis is focused on the process of the drafting and what took place in

this respect, as to why the specific content of the final constitutional draft in itself is of no interest

to the analysis. This also means that the content of this work acknowledges Bellamy’s16

perception that the Convention is not solely to be judged by its ability to influence what a future

Europe is to look like (outcome) – but also from its structure of governance (process).

Furthermore, the thesis is founded on a deliberative approach, as it is perceived that the

legitimacy of the Convention-model is dependent on the factor of democratic deliberation. Or put

differently, legitimate constitution making can only arise from the public deliberation of the

member states’ delegates, a process defined as “[…] a rational exchange of arguments seeking to

reach a common good […]17”.

2.3 Subject relevance

Europe has undergone a remarkable development throughout the past fifty years. And for just as

long, politicians, scientists and populations have tried to comprehend this development. However,

a consideration of the European development is of little relevance, if the EU does not play the

dominant role within this reflection. Narrowing it down even further, it is here the perception that

the very essence of this EU-development is shaped from the EU-treaties – hereby the way in

which these treaties are created. As Norman articulates it, “knowing ‘how’ the European Union’s

draft constitutional treaty came about is crucial to understanding the ‘what’ of its contents.”18

Meanwhile, this development has been dominated by much disagreement on the level of

legitimacy in the European (integration) process in specific – and the level of democracy in

general. Additionally, throughout the past decades, the EU has had a relatively substantial

16 Bellamy, Richard (2004): In Lynn Dobson & Andreas Follesdal ‘Political Theory and the European Constitution’, London: Routledge, p. 74.17 Magnette, Paul (2004), p. 211. - The concept of deliberation will be discussed in further details later on in this paper. 18 Norman, Peter (2003): ‘The Accidental Constitution – the story of the European Convention’, Brussels: EuroComment, p. 5.

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amount of IGCs - especially since 1990.19 In the eyes of many observers an indication that

something was not functioning properly – last of which “Nice finally achieved messy

compromises on the issue of the intergovernmental conference20”. Thus “beneath the surface, the

ideas of what constituted the Union were in flux and had been for some years21”. These factors

combined caused for a thirst for renewal during the beginning of this decade, a renewal that came

in the shape of the 2002 Convention on the future of Europe, which, within the EU, appeared as a

new and innovative way of treaty-making.

Given the fact that the Convention was established in order to create a new and more open debate

on EU-development, and given the fact that this openness was supposed to strengthen the EU’s

democratic image, the obvious question is whether this actually ended up being the case. A

question which appears relevant in relation to the ongoing debate on EU-development – not least

because it is relevant to elaborate on whether the drafting method in question appears as being the

best way to draft EU-treaties in a future respect. Especially as a number of scientists, hereunder

Norman,, finds that: “Compared with past intergovernmental conferences, the Convention was

remarkably transparent22”.

In short: The chosen subject and research question are relevant because the future development of

Europe is an ongoing discussion, which enjoys an enormous attention from politicians, scientists,

and populations both in and outside the EU. And within this discussion the fact that the

Convention was established in order to bring more democracy, and ultimately more legitimacy,

into the EU, makes it interesting to determine whether that was actually the outcome.

2.4 Method and structure

19 Adler-Nissen, Rebecca & Rasmus Vanggaard Knudsen (2005): (2005): ’Forenet i mangfoldighed?:   EU’s forfatningstraktat i demokratiteoretisk perspektiv’, København: Jurist- og Økonomforbundets Forlag, p. 35. 20 Norman, Peter (2003), p. 15.21 Ibid., p. 7.22 Ibid., p. 4.

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The formulation of this thesis’ research question - did the ‘Convention on the future of Europe’

bring democratic legitimacy into the process behind drafting the Constitution for Europe? -

makes it evident that a foundation for comparison is required in order to be able to properly

answer the question - and thereby also create a fix point for the analysis, in order to be able to

‘measure’ the level of legitimacy. The most obvious foundation for comparison is the IGCs, as

these, during previous treaty reforms and revisions have constituted the platform of treaty

reformation. Moreover, in terms of structure and process the IGCs may also be regarded as the

Convention’s counterpart - an aspect that is considered only to intensify the analysis’ objective.

In dealing with the question of which of the Convention or the IGC-model is the most democratic

founded Torreblanca accordingly states: “Comparing IGCs and the two Conventions [also

referring to the Convention on the Charter for fundamental rights) meet the most dissimilar

requirement for case-study research, so it would be interesting23”.

As two IGCs prior to the Convention, Amsterdam and the Nice, have been submitted to strong

criticism – which was also what primarily intensified the broad wish and support for a new

structure/model – these are utilized as the main source for comparison vis-à-vis the Convention.

The analysis will primarily be based on the criteria of ideal deliberation and democratic

legitimacy set up by the theoretical framework and the conceptualisation of democratic

deliberation, liberal democracy and legitimacy. These criteria will be used as parameters for

measuring the level of democratic legitimacy.

The method of the analysis is to compare the structure and process of both the Convention and

the IGCs accounted for above, including the basis of preference formation and its initial

significance for the end result in terms of level of democratic legitimacy.

Structure

In regard to the structural foundation the thesis consists of four main parts:

23 Torreblanca, José Ignacio (2004): ‘Comment on “The Convention Method for Enhancing EU Democracy”’’ by Andreas Mauer in Deliberative Constitutional Politics in the EU, (ed.) Carlos Closa & John Erik Fossum, Centre for European Studies, University of Oslo, Oslo: ARENA, p. 358.

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The first section consists of a conceptualisation, from which it is explained in what way

we interpret - and thus from which criteria - definitions of democracy and legitimacy, and

hence how these are perceives vis-à-vis the following analyses. The purpose of this

section is to provide the reader with a better understanding of the concepts, and

additionally to elaborate on how these are utilized and referred to throughout the analysis.

The second part introduces and discusses the theories of democratic deliberation and

liberal intergovernmentalism, which have ultimately been perceived as the most relevant

theories vis-à-vis the research question.24 The theoretical framework developed from this

second part is utilized to shape the analyses of the Convention and IGC-model described

in the forth section.

The third part is a fairly brief and primarily historical introduction to the subject and its

main focus areas. Not only in terms of the historical aspects but additionally the current

political situation within the EU. This is considered necessary for the understanding of

our choice of focus. And so, the intention is for the reader to gain a general insight into

the background for this thesis, as well as the core elements within it, in order to develop

the understandings necessary in relation to the following sections.

The fourth section is split into two underlying sections of analysis. In this way, the section

aims at discussing and analysing what is considered essential aspects of firstly the

Convention-model, and secondly the IGC-model. The aim is to create a foundation for a

comparative conclusion in which the research question will be answered.

Based on the above mentioned foundation the first part of the analysis focuses on the

Convention-model i.e. structure and process. After an elaboration on the essential aspects

of the model the analysis will look more closely into each individual stage of the

Convention-outline i.e. the listening stage, the analysis stage and the drafting stage. By

looking into each of these stages the objective is two folded; on the hand we wish to

analyse the level of deliberation throughout the process, and thus ultimately encounter for

the level of democratic legitimacy, and on the other hand we wish to build up a

24 For an elaboration of theoretical alternatives, please see page 24ff.

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compatible platform for an assessment of whether or not the Convention brought

democratic legitimacy into the process behind the constitutional draft.

Accordingly, the second part of the analysis will be concentrated on the IGC-model. In

order to ensure a compatible platform for the conclusive assessment, the focus areas in

this part of the analysis will to the highest extent possible correspond with the areas and

fix- points of analysis of the Convention-model. This part of the analyses will be

conducted primarily through the theory of LI, as several aspects of this theory, as

elaborated on in the latter, are considered relevant to the analysis of the IGC-model.

Lastly, the fifth section is a conclusion in which we compare the empirical findings from

the two sections of analysis, which is ultimately to function as an answer to the research-

question.

2.5 Empirical considerations

The empirical foundation of this thesis is primarily based on two types of sources. Firstly, it is

based on discussions, analyses and observations of a large number of national and international

scientists etc. These sources have two main purposes. Firstly, they are to function as sources of

new knowledge and inspiration to the work behind this thesis. Secondly, they are utilized through

quotation and references in order to strengthen and/or verify arguments throughout the paper.

This work in this paper includes references from empirical material attained from the EU’s own

web-sites, meaning that this type of source is based on the EU’s own interpretations and

descriptions. This is in no way expected to lower the quality of - or the level of trust in the

source(s). However, one may have certain reservations towards utilising these sources

unquestionably, as they might appear somehow one-sided, however, when it comes to factual

circumstances, this material leaves no reason for mistrust. We have ultimately decided to base

our work on secondary data i.e. data, which already exists. This is primarily due to our perception

that this data source of existing literature has proved sufficient in both magnitude and variation

from a large variety of sources. As an example, Norman for one has attended close to “all plenary

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sessions of the Convention25”.

Alternatively, we could also have chosen to produce our own empirical foundation e.g. through

interviews. However, in reference to the above mentioned aspects, we have ultimately decided to

conduct our thesis on the grounds of an extensive number of secondary sources, which we have

regarded as sufficient.

2.6 Limitation and considerations

The subject in question calls for several possible analytical perspectives. However, as mentioned,

the thesis intends to focus on the process rather than the product (constitutional draft), as the

paper is shaped from the perception that the process in this specific regard is the core determiner

of the final product. And as we – all ratification obstructions set a side – acknowledge the draft,

we recognize the product in a broader sense. Hence, it is the product’s foundation i.e. the drafting

process that we find interesting, as this in some respect may contribute to determining whether or

not an acknowledgment of the product can be democratically justified.

There exits a range of equally relevant theories to choose from when discussing democracy and

legitimacy through the scope chosen within this work. However, we have chosen to has operate

with only a few substantial theoretical indicators for democracy, which will be utilised in depth

throughout the analysis.

The thesis acknowledges the clear distinction between former IGC treaty settlements and the fact

that the Conventions’ work was categorised as a constitutional treaty. However due to the fact

that this work is concentrated on the Convention’s drafting development through structure and

process in specific, there has been found no need to determine or even discuss this circumstance,

as it is perceived as having no relevance to the work in question.

25 Norman, Peter (2003): ‘Note on Sources’.

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3.0 Conceptualisation In order to analyse and discuss democracy within the EU, in this case the structure and process of

the Convention vis-à-vis the level of democratic legitimacy, it is necessary to outline some pre-

conditions and perceptions of the central concepts that contribute to an understanding of how

these are used throughout the analysis. Thus, in the following we will give a short

conceptualisation of the concepts of liberal democracy, legitimacy, and the relationship between

democratic deliberation and legitimacy respectively.

3.1 The democratic deficit

More or less during the EU’s entire existence the nature of the democratic cooperation has been

greatly debated. The criticism has focused around a so-called ‘democratic deficit’, which some

identify as a core problem of the EU-cooperation. According to critics, this lack of a democratic

anchoring has not only taken place on the very top-level within the EU-framework, but also on

the national level related to the implementation of EU-directives.26 Here the processes are

described as lacking transparency, and institutions, such as the Council and the Commission,

make decisions behind closed doors, which in principle means that the public does not have the

possibility of controlling neither the decisions that are made at this level nor the politicians who

make them. Accordingly, Hix and Follesdal describe the democratic deficit as partly an “increase

in executive power and a decrease in national parliamentary control27”, where “the European

Parliament is too weak28”, as to why “the EU is simply ‘too distant’ from the voters29”. Moreover,

according to Levinson, “A democratic deficit occurs when ostensibly democratic organizations or

institutions in fact fall short of fulfilling what are believed to be the principles of democracy30”.

Hence, according to Mitchell, the EU’s democratic deficit “is largely due to the EU’s institutional

architecture, which […] permits little input from the European public sphere. Compounding this

26 See e.g. Hix, Simon (2005): ‘The Political System of the European Union’, (2nd edt.), New York: Palgrave Macmillan. 27 Hix, Simon & Andreas Follesdal (2005): ‘Why There is a Democratic Deficit in the EU: A Response to Majone and Moravcsik’. European Governance Papers (EUROGOV) No. C-05-02, p. 4.28 Ibid., p. 5.29 Ibid., p. 6.30 Levinson, Sanford (2007): ‘How the United States Constitution Contributes to the Democratic Deficit in America’, 55 Drake L. Rev. 859, 860.

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situation is the informal nature of negotiations that often take place among and within the key

policy-making bodies of the EU, leading to a poorly transparent, and sometimes unpredictable,

policy-making process31”.

On the other hand, however, it is recognised that there is a number of respected scientists, which

are not in line with this perception. Hence, a notable amount of literature from international EU-

scientists such as Moravcsik (2004/2002), Harste (2003), Wind (2003) Hug (2002), Kelstrup

(2001) and Lord (2001) are all reluctant towards the democracy deficit literature.32 Moravcsik,

who is considered among the most controversial critics to the democratic deficit perception, not

only questions the validity of a discussion on an EU democratic deficit, but simply rejects the

postulation of such as “EU decisions closely approximate the general practice of most modern

democracies. The EU’s democratic deficit is a myth33”.

Nonetheless, we support the claim, that there is a reason to discuss a democratic deficit within the

EU-system. Therefore, this thesis is developed and structured from the perception that there is

fairness to the claim that the EU to some extent may suffer from a democratic deficit.34 This

approach seems relevant, as the very creation of the Convention was founded on that same

belief.35 Additionally, the fact that “the volume of academic books and articles on the ‘democratic

deficit’ in the European Union (EU) is now huge and continues to grow36” helps strengthening

the validity of utilising this approach.

3.2 Liberal Democracy

31 Mitchell, Jennifer (2005): ‘The European Union’s “Democratic Deficit”: Bridging the Gap between Citizens and EU Institutions’, PhD candidate at the Polish Academy of Science, March 2005.32 Adler-Nissen, Rebecca & Rasmus Vanggaard Knudsen, (2005), p. 17ff.33 Moravcsik, Andrew (2003): ‘The EU ain’t broke’, Prospect, March 2003, pp. 38-45, p. 45.34 Eriksen, Erik Oddvar & John Erik Fossum (eds.), (2000): ‘Democracy in the European Union: Integration through deliberation?’, London: Routledge.35 EUROPA (2005): The internet portal to the EU. ’Resultatet af Det Europæiske Konvent’.36 Hix, Simon & Andreas Follesdal (2006): ‘Why There is a Democratic Deficit in the EU: A Response to Majone and Moravcsik’, Journal of Common Market Studies, Vol. 44, No. 3, September 2006, pp. 533-562, p. 3.

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Throughout the EU development the issue of democracy and the EU’s basis of legitimacy have

been highly debated.37 According to Kelstrup, liberal democracy, as a concept, is very difficult to

explain both in general and theoretical terms.38 This is primarily due to the fact that there exits

many different variants and perceptions of democracy, and of how democratic institutions are to

be shaped. That in mind democracy may be defined as the “institutionalisation of a set of

procedures for the control of governance which guarantees the participation of those who are

governed in the adoption of collectively binding decisions39”.

Maurer supports this definition by arguing that the EU throughout the past decades has made an

effort to set up representative governance structures in which institutions try to accumulate a

public need for participation, and at the same time carry out one of their main purposes i.e.

making collectively binding decisions.40 Maybe even more interesting, Maurer’s observation

seems to be closely link to the ‘democratic life of the EU’, which the draft Constitution

characterises as both representative and participatory democracy.41 The draft Constitution’s

article 45 accordingly focuses on the principle of representative democracy and establishes that42:

1. The working of the Union shall be founded on the principle of representative democracy.

2. Citizens are directly represented at Union level in the European Parliament. Member States are

represented in the European Council and in the Council of Ministers by their governments, themselves

accountable to national parliaments, elected by their citizens.

3. Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken

as openly as possible and as closely as possible to the citizen.

4. Political parties at European level contribute to forming European political awareness and to expressing

the will of Union citizens.

37 Moravcsik, Andrew (2004b): ‘In Defence of Democratic Deficit: Reassessing Legitimacy in the European Union’ in Integration in an expanding European Union – Reassessing the Fundamentals, (ed.) J.H.H. Weiler, Iain Begg & John Peterson, Oxford p. 138, Closa, Carlos and John Erik Fossum (2004): ‘Constitution-Making and Democratic Legitimacy in the EU’ in Deliberative Constitutional Politics in the EU, (ed.) Carlos Closa & John Erik Fossum, Centre for European Studies, University of Oslo, Oslo: ARENA, p. 3. 38 Kelstrup, Morten (2001): ’Demokratisk Union’, Europabevægelsen, published by Europabevægelsens tænketank Ja til Europa, p. 14. 39 As cited from Markus (1998): ‘Democracy and Government in the European Union’ in Democracy and the European Union, Andreas Follesdal & P. Kosloswki (ed), Berlin: Springer, p. 47. 40 Maurer, Andreas (2003), p.2.41 Norman, Peter (2003), p. 382.42 Ibid.

13

Article 46 of the draft constitution focuses on the principle of participatory democracy and

establishes that43:

1. The Union Institutions shall, by appropriate means, give citizens and representative associations the

opportunity to make known and publicly exchange their views in all areas of Union action.

2. The Union Institutions shall maintain an open, transparent, and regular dialogue with representative

associations and civil society.

3. The Commission shall carry out broad consultations with parties concerned in order to ensure that the

Union’s actions are coherent and transparent.

4. No less than one million citizens coming from a significant number of Member States may invite the

Commission to submit any appropriate proposal on matters where citizens consider that a legal act of the

Union is required for the purpose of implementing the Constitution.

5. A European law shall determine the provisions for the specific procedures and conditions required for such

a citizens’ initiative.

The constitutional draft thus clearly states which perceptions of the democratic tradition establish

the nature of the EU. By accepting that the Convention is legitimised by the criteria set up in the

tradition of liberal democracy it is important to note that that ‘the people’ accordingly are the

only justifiable source for legitimising political authorities.44 Hence, it may be determined that the

Convention has a ‘form of legitimacy’ in which representation of the people is of vital

importance. The representation of the Convention and its compositional efforts to bring the

European people closer to the process of drafting a Constitutional treaty, may thus serve as a way

to understand how liberal democracy is used and considered throughout the analysis.

An essential aspect for the common conceptualisation of liberal democracy is its idea of people

representation.45 Vis-à-vis people representation, Mill, who according to Held “largely set the

course of modern liberal democratic thought46”, views representative democracy as the only

43Ibid., p. 383.44 Beetham, David & Christopher Lord (1998b): ‘Legitimacy in the European Union’ in A. Weale & M. Nentwich (ed.) Political Theory and the European Union – Legitimacy, Constitutional Choice and Citizenship, London: Routledge, p. 16. 45 Held, David (2002): ‘Models of Democracy’, (2nd edt.), Oxford, Polity Press, p. 79.46 Held, David (2006): ‘Models of Democracy’, (3rd edt.), Oxford, Polity Press., p. 79.

14

attractive system in ensuring qualified expertise and accountability in a political administration.47

One of the central claims in Mill’s argumentation is his distrust in the judgement and sentiment in

the public, as to why he advocates for a representative form of government, in which leaders who

have the acquired knowledge and expertise make decisions.48 In his classic ‘Capitalism,

Socialism and Democracy’ from 1942 Shumpeter too argues along this line, evidently arguing

that there does not exit any alternative ways of organising democracy besides a system of liberal

democratic representation: “Democracy does not mean and cannot mean that the people actually rule in any obvious sense of the terms 'people'

and 'rule.' Democracy means only that the people have the opportunity of accepting or refusing the men who are to

rule them. But since they might decide this also in entirely undemocratic ways, we have had to narrow our definition

by adding a further criterion identifying the democratic method, viz., free competition among would-be leaders for

the vote of the electorate.49”

Accordingly, Dahl and Held argue that representative liberal democracy has shifted the general

though of democracy away from the direct popular participation.50 As Dahl argues, “institutions

of representative democracy removed government so far from the direct reach of the demos that

one could reasonably wonder, as some critics have, whether the new system was entitled to call

itself by the venerable name of democracy51”.

Vis-à-vis the representation that took place in the Convention it e.g. consisted of representatives

from the national governments and parliaments, representatives from the officially involved

institutions e.g. the European Parliament and the Commission, as well as representatives from

many different NGOs. The representation was wide and thus clearly an essential part of the idea

behind the establishment of the Convention and the constitutional drafting process.

47 Mill, John S. (1951): ‘Considerations on Representative Government. In Utilitarianism, Liberty, and Representative Government’, (ed.) H. B. Acton. London: Dent. 48 Ibid.49 Schumpeter, Joseph A. (1992): ‘Capitalism, Socialism and Democracy’, (5th edt), London: Routledge, p. 284.50 Dahl, Robert A. (1989): ‘Democracy and Its Critics’, New Haven and London: Yale University Press & Held, David (2006). 51 Dahl, Robert A. (1989), p. 30.

15

One of the primary intentions behind the composition of the Convention was to make EU-citizens

feel more in touch with the general EU-debate, and in this way bring forward a higher level of

citizen-support than had been the case through previous IGCs. Until this point in time, EU-treaty

reforms and revisions had been established through IGCs, which in principle had ‘only’ enjoyed

the legitimacy of the EU’s member states. Therefore, one of the objectives behind the Convention

was for it to draft a treaty that would enjoy the legitimacy of both member states and its

citizens.52 Additionally, it was very clear from the beginning of the process that the Convention’s

work was to be transparent and take place in full openness to further enhance the citizen’s

devotion to and acknowledgment of the project - this too may be seen as a clear wish for

enhanced representation.

Kelstrup establishes that there exits many different perceptions of liberal democracy.53

Accordingly, he points out that the term democracy is used in a variety of different contexts,

however not all are fully justified. This is exemplified by an argument that though democratic

decisions are made by compromises and mutual consideration this does not mean that such a

form of decision-making is based on democratic considerations.54 Correspondingly, Kelstrup

argues that it is accurate to link democracy with openness and transparency, but it is also

important to note that these only represent individual elements of the democratic tradition.55

Another example may be taken from Cohen and Sabel, who stress that “deliberation, understood

as reasoning about how to best address a practical problem, is not intrinsically democratic56”. All

of the above examples initially seem to correspond to the issue of democracy vis-à-vis the

Convention.

Within the on-going process of democratising the EU, two established perceptions of liberal

democracy might be regarded as dominating: The state-centric (intergovernmental) and the EU-

52 European Parliament (2003): ‘Draft report on the draft Treaty on the European Constitution and EP opinion on the convocation of the intergovernmetal Conference (IGC)’.53 Kelstrup, Morten (2001). 54 Ibid.55 Ibid.56 Cohen, Joshua & Charles Sabel (2003): ‘Sovereignty and Solidarity: EU and US’. In Governing Work and Welfare in a New Economy: European and American Experiments, (ed.) J. Zeitlin & D. M. Trubek, Oxford: Oxford University Press, pp. 249-270

16

centric (supranational).57 The following brief discussion of these two perceptions has the

intention of clarifying one of the focus-areas within the analysis, namely to emphasize why it is

deemed interesting to compare the level of democratic legitimacy in the composition of the

Convention on the one hand, and in the IGCs on the other hand. Whereas the IGCs consist of a

very narrow governmental representation that participates in a process of bargaining build on

predetermined policy preference, and with the purpose of gaining self-interested advantages, the

Convention had a very wide representation, amongst other including representatives from the

EU’s supranational institutions, and was aimed at reaching a consensus by a process of

democratic deliberation. Thus, in terms of structure and process the IGCs may be regarded as the

opposite of the Convention, as well as the state-centric perception may be regarded as the

opposite of the EU-centric perception of liberal democracy. The distinction between the IGC-

model and the Convention-model, and thus to a certain extent the difference between the state-

centric and the EU-centric model, was initially emphasized by the President of the Convention,

Giscard d’Estaing, who urged the members of the Convention to “embark on our task without

preconceived ideas, and form our vision of the Europe by listening constantly and closely to all

our partners58”, and added that “the members of the four components of our Convention must not

regard themselves simply as spokespersons for those who appointed them59”.

In the state-centric perception, the EU’s democratic legitimacy is indirect, which means that it

diverts from the legitimacy, which the participating actors, the states, carry. The rationale is that

the treaties hold legitimacy, as these derive form agreement between the democratic member

states. This in mind, it is noted that the treaties’ legitimacy is dependent of the legitimacy of the

member states’ governments.60

57 Kelstrup, Morten (2001) & Friis, Lykke (1999): ’EU og demokrati - den dobbelte nødvendighed’, in Jørgen Goul Andersen et al. (red.): Den demokratiske udfordring, Magtudredningen, København: Hans Reitzels Forlag, pp. 280-299. 58 d’Estaing, Valéry: (2002): Introductory speech by President V. Giscard d’Estaing to the Convention on the future of Europe, 28 February 2002.59 Ibid.60 Kelstrup, Morten (2001).

17

According to the state-centric perception of democracy, the intergovernmental system of the EU

has to be maintained or extended on order to increase the level of democracy. One of the

arguments is the so-called ‘no-demos thesis’61, which argues that democracy is provided by a

people (demos), and as a European people do not exist it is essential that democracy at EU level

is based indirectly on the legitimacy in the member states.

The EU-centric perception of liberal democracy argues that applying more so-called

‘parliamentarian democracy’ on EU-level will extend the EU’s democratic legitimacy.62 The

democratic legitimacy that derives from parliamentarian democracy is characterised as direct

legitimacy, and amongst other based on direct elections and a wish for an increase of the powers

of the European Parliament.

The two opposing perceptions briefly described assume two different paths of liberal democracy,

and thus two different perceptions of the criteria for enhancing democracy at EU-level.

Equivalent for both though is the foundation in the ‘Westphalian system’, and accordingly the

perception that democracy is bound to ‘the state’. However, the EU-centric model endorses the

creation of a state on the EU-level.63 At this point, it is important to note that the EU is not a state

but a political system.64 The EU can be regarded as a political system consisting of unified

institutions, rules and decision-making procedures, which may give it some attributes of a state,

but it is however not equivalent to a state. According to Kelstrup65 and Weiler66, this is mainly

because, in comparison to the EU’s national member states, it is not possible to determine a

European people (demos), a common and geographically sovereign political EU-community, a

common electorate, a common identity, a common language, history and or culture. Nor does the

EU have a Head of State or put differently: “The EU does not derive its authority directly from its

61 Weiler, Joseph H.H. (1995): ‘Does Europe need a constitution? Demos, Telos and the German Maastricht decision’, in European Law Journal 1, 3, pp. 219-256, (p. 219).62 Kelstrup, Morten (2001).63 Kelstrup, Morten (2001).64 Hix, Simon (2005), p. 10ff. 65 Kelstrup, Morten (2007): ‘European Integration as a Challenge to Political and Democratic Theory’ (Oct. 2007), slide 16.66 Weiler, Joseph H.H. (1995).

18

citizens but rather from its Member States67”. Though despite the fact that most perceptions of

democracy take their starting-point in ‘the state’, political systems are able to follow and adjust to

democratic criteria.68 This makes it ‘legitimate’ for us to refer to e.g. democratic deliberation

within the EU and the Convention.

From the brief discussion of the two dominating perceptions of the liberal democratic tradition it

becomes clear that with each perception follows a different strategy for bringing more democracy

to the EU. Whereas the state-centric model turns the EU into what may be referred to as an

international organisation, where democracy diverts from the legitimacy of the member states,

the EU-centric model turns the EU into what may be referred to as a federal system or an

individual democratic state. Kelstrup argues that both models mentioned above are insufficient in

that they create a ‘democratic dilemma’.69 The choice, on the one hand, to base democracy on

that of the member states, which, according to Kelstrup, means that important decisions on the

EU-level will not be controlled by democratic political structures, or, on the other hand, to form

democracy at EU-level as if it was an independent state, and thus potentially challenge the

democracy of the member states.70

Kelstrup argues that when discussing democracy at the EU-level it is important not to directly

link the state and democracy per se. On the contrary, the main focus should be on finding

strategies that contribute to the process of democratising the EU though adopting neither of the

mentioned perceptions of liberal democracy. An interesting aspect in Kelstup’s way of thinking is

his suggestion to a possible solution to this so called ‘democratic dilemma’, which to a certain

extend meet the conditions behind setting up the Convention in the first place: Kelstrup suggests

an establishment of political authorities that goes beyond the nation state, and the setting up of

democratic criteria for the way in which such political authorities should act. Kelstrup

additionally emphases that indirect legitimacy is not adequate for these political bodies.71

67 Piris, Jean-Claude (2000): ‘Does the European Union have a Constitution? Does it need one?’ Harvard Jean Monnet Working Paper 5/00, p. 24. 68 Hix, Simon (2005) p. 10ff. 69 Kelstrup, Morten (2001) 70 Ibid.71 Ibid.

19

3.3 Legitimacy

Another relevant concept that needs to be defined is legitimacy and conceptualised, which

Maurer and Weiler describe as a:

“generalized degree of trust of the addressees of the EU’s institutional and policy outcomes towards the emerging

political system. A political system which is entitled to limit national sovereignty and which is enabled to take

decisions directly binding the residents of its constituent Members without the prior and individual assent of each

national government requires more than the formal approval of founding treaties and their subsequent

amendments72”.

In relation to this definition, Maurer points out that it requires the compliance of the minorities to

recognize the decisions taken by the majority, and that the decisions decided on by the majority

have to derive from a common approval of the system, in which the decisions are taken.73

As Maurer notes, and in line with the previously mentioned focus of liberal democracy, an

important aspect to recognize in regards to legitimacy is that “the system and its institutions must

be aware of the risk that the public attitude towards it can shift from some kind of a permissive

consensus or benevolent indifference to fundamental scepticism74”. This particular characteristic

may to some extent be able to explain certain aspects of - and incentives behind - the EU’s

integration process.

The notion of public attitude - indirectly as well as directly - is also recognised by Lord as a

potential reason, among others, as to why one might expect the question of legitimacy to be a

critical problem for the EU: “It [the EU] is a new and unfamiliar political system; it has substantial powers to go into the nooks and crannies of

member societies; its rules over-ride those made by national institutions; it takes decisions that affect ordinary lives;

it demands sacrifices, sometimes with uncertain long-term reward; it takes from some in order to give to others; it

72 Ibid.73 Ibid.74 Ibid.

20

affects deeply held values, including basic feelings of identity; and it is a large political system that often seems

physically distant to its citizens.75”

Despite the fact that the question of legitimacy holds potential problem areas for the EU it may

also, as argued by Beetham, “by helping to promote compliance and cooperation, […] enhance

the order, stability and effectiveness of regimes76”.

According to Kelstrup, legitimacy has many different forms, and is influenced by and dependent

of social and historical conditions.77 This in mind, Kelstrup and others put forward certain

perceptions of the criteria behind democratic legitimacy: Beetham and Lord e.g. argue that

legitimacy in liberal democratic societies is a multi-dimensional concept that consists of three

different elements: Legality, normative justifiability, and legitimation.78 These elements are also

adopted by Kelstrup79 in his conceptualisation of legitimacy, and will form the basis of how

legitimacy is considered in the analysis, as to why these will briefly be described now.

Legality, as the first element of legitimacy, covers the administration of rules, laws and treaties,

and may be considered a basic demand for a political system that strives to take democratic

legitimate decisions according to the rules applying.80 The second dimension of legitimacy,

normative justifiability, concerns the question of whether the different forms of rules and

decisions applied in a political system e.g. in terms of participation, representation and

accountability, are accepted as democratic.81 Or as Beetham argues: “A given power relationship

is not legitimate because people believe in its legitimacy, but because it can be justified in terms

of their beliefs.”82 Regarding the third element of legitimacy, Kelstrup speaks of legitimation as

the part of legitimacy that refers to the consent of authorities and decisions.83 Legitimation

accordingly reflects whether the population accepts decisions; if this is not the case and the rules

75 Lord, Christopher (2000): ‘Legitimacy, Democracy and the EU: when abstract questions become practical policy problems’, Policy Paper 03, p. 4. 76 Beetham, David (1991): ‘The Legitimation of Power’, London: Macmillan, p. 35.77 Kelstrup, Morten (2001).78 Beetham, David & Christopher Lord (1998b), p. 15ff. 79 Kelstrup, Morten (2001).80 Ibid.81 Ibid.82 Beetham, David (1991), p. 11.83 Kelstrup, Morten (2001).

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or decisions decided on are breached or simply not accepted this must be regarded as a lack of

legitimation.84 Examples of measuring legitimation may be through the participation level in

elections or in the results of referendums. Legitimation may be viewed as both indirect and

direct: Whereas direct legitimation is the result of the consent from a broad scale of the people

e.g. in elections, Kelstrup establishes that indirect legitimation is linked to the recognition of

other relevant actors.85 He exemplifies this with the fact that the EU today is fully acknowledged

by individual states, while the member states’ populations from time to time show a limited

support to the EU, which indicates that the EU is still based primarily on indirect legitimation.

Yet, Kelstup notes that the EU has increased its direct legitimation e.g. through the direct

elections to the European Parliament, as well as in regards to the different initiatives to bring the

EU closer to its citizens.86

On the basis of the above-mentioned elements of legitimacy, Kelstrup, inspired by Beetham’s

conceptualisation of legitimacy, has put forward a model of the different dimensions of

legitimacy.87 Though Kelstrup in this model brings forward additional elements to the

conceptualisation of legitimacy these do not alter the initial essence of Beetham’s

conceptualisation, as the model is build on the three mentioned elements i.e. legality, normative

justifiability, and legitimation. Kelstrup has divided the element of normative justifiability into

two parts; one referred to as input legitimacy the other to output legitimacy. Whereas input

legitimacy is concentrated around the justifiability of political authorities, by which legitimacy is

reached through identity and justifiable criteria for common values, on the one hand, and

‘political democratic organising’, referring to justifiable criteria for representation and

accountability, on the other hand, output legitimacy evolves around the justifiability of the

actions taken by the authorities.

84 Ibid.85 Ibid.86 Ibid87 Kelstrup, Morten (2006): ’EU’s politiske system: Teorier og Problemer’. Afslutning,Time 14, den 13. december 2006.

22

Different dimensions of legitimacy88

1

Normative justifiability

5

If the focus of this paper is placed within the model it becomes obvious that the legitimacy of the

Convention is primarily centred on input legitimacy: This primarily in view of the Convention’s

composition and process, as reflected in the focus on representation and deliberation, which both

correspond to the element of what Kelstrup refers to as ‘political democratic organising’. Closa

also notes this structural emphasis on input legitimacy in his analysis of the Convention method.89

88 Kelstrup’s model has been freely translated into English. 89 Closa, Carlos (2004), 183ff.

Input legitimacy (Justifiability of political authority)

2 3

Identity and justifiable criteria for inclusion in the political community

Political democratic organising – justifiable criteria for representation and accountability

Output legitimacy (justifiability of authority actions)

4

Decisions and outcomes are deemed acceptable

Legality (Compliance with the rules applying)

Legitimation (Official support either by direct consent (from citizens) or by indirect consent from other legitimate authorities)

23

3.4 The relationship between democratic deliberation and legitimacy

As democratic deliberation constitutes the core foundation of the Convention method, and as the

thesis’ primary objective is to examine the level of legitimacy in the Convention process, it is

necessary to conceptualise on the relationship between democratic deliberation and legitimacy.

As mentioned above, the Convention’s representation and initial environment for deliberation

points towards a strong emphasis on input legitimacy. This argument is also intensified by the

obvious lack of output legitimacy exemplified by the fact that the Convention did not hold a

direct mandate neither any form of competences to make biding decisions; it was merely a body

that were to bring forward recommendations to the following IGC. Looking aside representation

as a part of what Kelstrup, in his model of different dimensions of legitimacy, refers to as the

‘political democratic organising’, the central aspect within the framework of indirect legitimacy

vis-à-vis democratic deliberation, is accountability. Accordingly, we need to define this concept:

On the one hand there seems to be a broad variety of different and rather wide-ranging concepts

that are utilised in defining accountability. Behn90 and Bovens91 accordingly refer to concepts as

transparency, responsiveness, and integrity. On the other hand Bovens (and Pollitt92 et al.) also

utilises a rather narrow conceptualisation defining accountability as “a social relationship in

which an actor feels an obligation to explain and to justify his or her conduct to some significant

other93”. This paper will follow the narrow definition, which seems to correspond to the process

of democratic deliberation, as both evolve around the elements of social interaction and

discourse.

Accordingly, we may establish that the central aspect within the process of democratic

deliberation - i.e. a rational exchange of arguments - generates accountability and accordingly

indirect legitimacy. This argument is also utilised by Mauer who, in accordance with the theory

of democratic deliberation, states that “legitimacy is established by means of free and open

90 Behn, Robert D. (2001): ‘Rethinking democratic accountability’, Washington DC: Brookings Institution Press, p. 3ff. 91 Bovens, Mark (2006): ‘Analysing and assessing public accountability. A conceptual framework’, European Governance Papers (EUROGOV), No. C-06-01, p. 8.92 Pollitt, Christopher (2003): ‘The essential public manager’, London: Open University Press/McGraw-Hill, p. 89. 93 Bovens, Mark (2006), p. 9.

24

debate […]94”. As previously mentioned, Mauer emphasises that it is the consensus that, as a

result of a deliberative process, generates legitimacy95 - i.e. the compliance of the minorities to

recognize the decisions taken by the majority is required. According to Mauer, “this kind of

linkage between process and legitimacy fits the democratic structure of the European Union

[…]96”. This particular aspect is in line with the previously mentioned conceptualisation of

legitimacy, in which Beetham contributed by establishing that “a given power relationship is not

legitimate because people believe in its legitimacy, but because it can be justified in terms of their

beliefs97”.

In her critic of Magnette’s analysis of the constitutional rhetoric in the Convention98 Sjursen also

manages to describe the relationship between democratic deliberation and legitimacy in a very

straight forward way: “Although deliberation is often thought of merely as a mode of decision-

making, it is also - and probably most importantly - a principle of democratic legitimation99”. As

pointed out by Closa, the relationship between the two was also emphasised by president

d’Estaing, as he argued that the legitimacy of the Convention amongst others derived from the

procedure of the Convention i.e. democratic deliberation.100

4.0 Theory

4.1 Theoretical considerations

Theories and models within our problem field are substantial in magnitude and has caused for

careful consideration. However, after having undergone a range of possibilities, e.g.

representative and participatory democracy, neo-functionalism and rational choice

institutionalism101 the analysis of the Convention-model is based on our conceptualisation of

94 Maurer, Andreas (2003), p. 495 Ibid.96 Ibid.97 Beetham, David (1991), p. 11.98 Magnette, Paul (2004).99 Sjursen, Helene (2004): ‘Comment on “When does deliberation matter? Constitutional Rhetoric in the Convention on the Future of Europe’ by Paul Magnette, in Deliberative Constitutional Politics in the EU, (ed.) Carlos Closa & John Erik Fossum Centre for European Studies, University of Oslo, Oslo: ARENA, p. 244.100 Closa, Carlos (2004). 186ff.101 See also alternative democracy theories in the latter.

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liberal democracy and legitimacy as well as the theory of democratic deliberation, whilst the

analysis of the IGC-model is based on the theory of LI.

There exist many different versions of the democratic deliberation theory.102 The two most

prominent schools are considered to be the ones of John Rawls and Jürgen Habermas.103 One of

the aims shared by both schools is that of securing a strong relation between democracy and

liberalism.104 According to Mouffe, Rawls e.g. declares that his “ambition is to elaborate a

democratic liberalism, which would answer to the claim of both liberty and equality105”. This

paper will primarily focus on the school of Rawls, in which in particular Joshua Cohen will be

utilised.

As for democratic deliberation, the field of democracy and legitimacy are subject to many

different perceptions depending on the interpretation of the specific theory or model – and the

conception of democracy, as well as legitimacy in general.106 Democratic deliberation puts an

important weight on the fact that every outcome is determined by the process – a perception that

corresponds well with the background for this thesis, and to why the subject is considered

relevant. Thus an element that is central for the choice of democratic deliberation vis-à-vis the

drafting processes of the Convention, and to whether this process is actually to be perceived as

democratic and legitimate. This aspect is also identified by Kelstrup, who states that “the

connection between democratization and legitimacy is also interesting by referring it to the

question of deliberation (and ‘deliberative democracy’) 107”. In this context, it is necessary to look

into the relationship between democratic deliberation and legitimacy, which will be outlined in

the section on conceptualisation.

102 Mouffe, Chantal (2000): ‘Deliberative Democracy or Agonistic Pluralism’ Political Science Series 72, internetsource: http://www.ihs.ac.at/publications/pol/pw_72.pdf, retrieved on July 6, 2008.103 Ibid.104 Ibid.105 Ibid.106 Kelstrup, Morten (2004): ’Forfatningstraktaten, Konventet og EU’s demokratisering’, Økonomi & Politik, 2004, Vol. 77, No. 1, pp. 2-13.107 Ibid., p. 4

26

As will be dealt with later, LI may be categorised as an integration theory. However, as the thesis

is concentrated on legitimacy and democracy throughout the given process, it is not the theory’s

integrational aspects that are of interest to this work. Instead, the intention is to utilise LI to try to

illustrate and explain some of the mechanisms within the process of IGC treaty drafting,

wherefore LI is utilised due to its explicit focus on intergovernmentalism as a core element of the

EU - including inter-state bargaining and preference formation as important aspects within the

IGCs.

4.2 Democratic deliberation

Rational argumentation with the purpose of persuading actors by means of ‘the better argument’

is the main starting-point of democratic deliberation. According to Sebeok, argumentation may

be defined as “a process in which someone tries to convince someone of something by citing

evidence and drawing, or suggesting, inferences from this evidence and from other beliefs and

assumptions (hypotheses)108”. To further clarify this process Sebeok defines ‘inferences’ as “a

semiotic process in which from something given (the premises), or something else (the

conclusion) is derived on the basis of certain relations between premises and conclusion109”. Thus

the level of rationale in the justification depends on how close the link is between the premises

and the conclusion – the closer the link is the more useful the justification will be for the

deliberation.

Consequently, in deliberation decision-making has to be subsequent of debate and discussion in

order to facilitate the formation and revision of preferences. For the success of deliberation it is

therefore essential that a majority of actors do not aim at pushing through fixed self-interested

preferences, as these has to participate in the rational-based debate with the minority, and thus

ultimately be ready to make a compromise, as a result of ‘the force of the better argument’.110 As

a restricting element vis-à-vis pushing through self-interested preferences Elster points out that

108 Sebeok, Thomas A.(ed.), (1986): ‘Encyclopedic Dictionary of Semiotics’, Berlin: Mouton de Gruyter, p. 51ff. 109 Sebeok, Thomas A. (ed.), (1986), p. 51.110 Maurer, Andreas: (2003), p.4.

27

publicity demands that politicians take into serious consideration two social norms that put strong

pressure on them to argue instead of bargain, as well as to refrain from using self-interested and

dishonest arguments. Elster’s focus on social norms will be elaborated on further down in this

section. Correspondingly, Höreth argues that the open form of the Convention, as well as the

solidarity and responsibility of its members, causes a similar restricting effect on the participants’

urge to push forward selfish agendas:

“The openness of the Convention supports the necessity for the Convention members to persuade with the quality of

their arguments […] no one is able to push unilaterally his own preferences at the cost of the others without

threatening the success of the whole Convention. As no one wants to be responsible for a total failure, no one is

playing a real power game by flexing his political muscles.111”

It is important to note though that self-interested preferences are not excluded in the deliberate

process – but according to the theoretical platform of the discourse ethics that form democratic

deliberation they have to be supported by rationale argumentation, which is compatible with or

contributes to the common good.112 The common good may refer to the utilitarian concept

understood as the solution benefiting the majority of people113 or, as pointed out by Rawls114,

refer to the difference principle by which the common good is when the least advantaged in a

society are benefited.

The theory of democratic deliberation stresses a close link between process and outcome: The

outcome of a deliberative process may be rendered democratic legitimate if – and only if – the

process leading to the result has been free and open, based on rational argumentation, and if it has

been conducted between equals.115 It is though important to stress that the process behind the

debate in it self does not create legitimacy. The final outcome also has to be accepted by all 111 Höreth, Marcus (2003): ‘From arguing to Bargaining Again – A Comment on Andreas Mauer’, Internationale Politik und Gesellschaft, Internationl Politics and Society.112 Steenbergen, Macro R. et al. (2003): ‘Measuring Political Deliberation: A Discourse Quality Index’ in Comparative European Politics, 2003. 1. Palgrave Macmillan Ltd., p. 25ff.113 Mill, John S. (1998) ‘Utilitarianism’, Oxford: Oxford University Press.114 Rawls, John (1971): ‘A Theory of Justice’ Cambridge’, MA: Belknap Press of Harvard University Press.115Cohen, Joshua (1989b): ‘Deliberation and Democratic Legitimacy’, in Alan Hamlin & Phillip Petit, (eds.), The Good Polity, Blackwell, p. 23 [Reprinted in Contemporary Political Philosophy: An Anthology, eds. Robert Goodin & Philip Pettit, Blackwell: 1997; Deliberative Democracy, eds. James Bohman & William Rehg, MIT Press: 1997, pp. 74-75; Democracy, ed. David Estlund, Oxford: Blackwell;2002).]

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participants, as well as it has to be rational and a solution to the problem that initially led to the

deliberation.116 In the ideal deliberation procedure Cohen stresses that “there is a need to decide

on the agenda, to propose alternative solutions to the problems on the agenda, supporting those

solutions with reasons, and to conclude by setting on an alternative117”.

For a comprehensive overview of the elements included in an ideal process of deliberation Cohen

points out some central concepts outlined below. It is important to note that these elements may

be used to describe the very ideal form of deliberation. Habermas e.g. acknowledges that real

political debates in most cases are far from this ideal type of deliberation, which is likely never to

be reached.118

Elements of ideal deliberation:

Participants are free and only bound by the results of the deliberation and the

preconditions set up for the process. Thus when considering argumentation and points of

views there should be no constrains from any preset or previous norms or requirements.

Furthermore, actors participating in a process of ideal deliberation believe that they can

act from the results, as a specific decision has been reached through their deliberation,

which is deemed as a sufficient reason for complying with it.119

Deliberation is reasoned i.e. participants have to state a reason for their position whether

putting forward proposals, or supporting or criticising others’. Habermas expresses that

“assertions should be introduced and critically assessed through the orderly exchange of

information and reasons between parties120”. Given a broad commitment to solve

differences of opinion through free deliberation in an environment of equals the main

purpose is to try to make other participants accept a proposal despite initially contrasting. 116 Maurer, Andreas (2003), p.4117 Cohen, Joshua (1989b).118 Steenbergen, Macro R. et.al. (2003), p. 44. 119 Cohen, Joshua (1989b), p. 17ff.120 Habermas, Jürgen (1992): ’Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats’, Franfurt am Main: Suhrkamp [as cited from: Macro R. Steenbergen et.al. (2003) in Measuring Political Deliberation: A Discourse Quality Index’ in Comparative European Politics, 2003. 1. Palgrave Macmillan Ltd, p. 25].

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Thus argumentation and not power should form the basis for persuading others or as

argued by Habermas: “No force except that of the better argument is exercised.121”

Whether or not a proposal is to be accepted or not depends on the argumentation behind

it.122

All participants are both formally and substantively equal; formally as the rules regulating

the deliberative procedure do not single out individuals; substantively as neither power

nor resources contribute to an individual’s chances of contributing to the ideal process of

deliberation.123 Thus everyone with deliberative capacities has an equal standing during

the ideal process of deliberation.

According to Cohen the object of an ideal process of deliberation is to reach consensus as

a result of a rationale-based debate124 – or as expressed “to find reasons that are persuasive

to all who are committed to acting on the results of a free and reasoned assessment of

alternatives by equals125”. Cohen emphasizes that even ideal deliberation does not set up

any guarantee for a consensus. Though deliberation implies that decisions are based on

‘talk-centric’ rather that ‘vote-centric’, as pointed out by Bohman and Rehg126, cases

where consensus cannot be obtain is concluded by means of a form of majority voting.

This fact though does not reduce the conflicting elements between deliberate and non-

deliberate forms of collective decision-making. Cohen points out that the institutional

consequences are most likely to differ from each other depending on the form of the

collective choice, which is most likely also the case of the outcome of a vote among

actors committed to the ethics of deliberation and thus to finding solutions that are

persuasive to all versus the outcome of a vote taken without any consideration of the

above mentioned elements.127

121 Habermas, Jürgen (1975): ‘Legitimation crisis’. Boston: Beacon Press, p. 108.122 Cohen, Joshua (1989b), p. 17-34.123 Ibid.124 Ibid., p. 23.125 Ibid.126 Bohman, James & William Rehg (1997): ‘Introduction’ in J. Bohman & W. Rehg (eds.) Deliberative Democracy: Essays on Reason and Politics, Cambridge MA: MIT Press, pp. ix-xxvii.127 Cohen, Joshua (1989b), p. 17ff.

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As Cohen points out a characterisation of the ideal procedure of deliberation can be used to

account for the way in which collective decision-making in principle ought to differ from e.g.

bargaining when it, on the one hand, comes to how deliberation explicit focuses on promoting the

common good, and on the other hand, how this contributes to the process of shaping and

developing the aims of the actors participating in the process.128

Elster states that “public discussion tends to promote the common good129”, and manages to

further elaborate on Cohen’s claim that deliberation explicit focuses on promoting the common

good: By making closed decision-making forums and processes open and transparent to the eyes

of the public, political actors have to take two social norms into consideration, which force them

to deliberate instead of bargaining.130 Besides the norm of rational argumentation, which e.g.

stands in contrast to threats and log-rolling, Elster also points to the unselfishness norm, which is

characterised by the justification that “politics is public in nature, as it is used to solve common

problems131”. By this logic deliberation contributes to restricting possible public criticism, which,

in public debates, may be related to self-interested argumentation, by openly explaining and

justifying political positions with or against other rational arguments.132 As Elster, Fossum also

notes this reflection:

“While aggregation [of interests] may reflect only base preferences, and bargaining may only reflect actual

resources and may yield suboptimal solutions, deliberation transforms preferences and compels actors to give

reason for why they seek a particular outcome, regardless of their resources […] In such a perspective, democratic

legitimacy does not stem from the aggregation of the preferences of all, but from the deliberation of all.133”

128 Ibid.129 Elster, Jon (1986): ‘The market and the Forum: Three Varieties of Political Theory’ in J. Elster & A. Hylland (ed.) Foundations of Social Choice Theory, Cambridge: Cambridge University Press, p. 113.130 Naurin, Daniel. (2004) ‘Transparency and legitimacy’ in L. Dobson & A. Follesdal (ed.) Political Theory and the European Constitution, London: Routledge, p. 140. 131 Elster, Jon (1998): ‘Deliberation and Constitution Making’, in J. Elster (ed) Deliberative Democracy, Cambridge: Cambridge University Press, p. 102.132 Ibid.133 Fossum, John Erik (2000): ‘Constitution-making in the European Union’ in Democracy in the European Union: Integration through deliberation?, (ed). Erik Oddvar Eriksen & John Erik Fossum, London: Routledge., p. 18.

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Accordingly, deliberation includes both an in- and output aspect i.e. a possibility of expressing

own arguments as well as receiving arguments from other participating actors. Thus deliberation

may contribute to identify the better alternative, as well as improve the basis of which opinions

are founded. Furthermore, it is clear that in order for the deliberation process to be successful

ultimately some actors have to alter views in order to reach a final agreement.

Acoording to Elster; “there are certain arguments that simply cannot be stated publicly. In a

political debate it is pragmatically impossible to argue that a given solution should be chosen just

because it is good for oneself. By the very act of engaging in a public debate – arguing rather

than bargaining – one has ruled out the possibility of invoking such reasons134”. In this sense the

social norms associated with the theory of deliberation tend to launder political debates – a point

also noted by Miller in his statement that the theory of deliberation “relies upon a person’s

capacity to be swayed by rational arguments and to lay aside particular interests and opinions in

defence to overall fairness and the common interests of the collectivity. It supposes people to be

to some degree communally orientated in their outlook135”.

As noted, deliberation is often set opposite of bargaining in order to better explain and define its

nature. Whereas deliberation is build on the exchange of views, which may improve the basis on

which opinions are founded and thus move the actors standpoint, Eriksen and Fossum emphasise

that bargaining encourage a process of

“give-and-take, pork barrelling, log-rolling etc. that does not change opinions, necessitates learning or enlargement

or refinements of perspectives. In a way it signals that the discussion has come to a standstill - a deadlock. It also

indicates that the parties have accepted an outcome, but not because it is an optimal outcome. They accepted it

because of the resources and power relations involved. Each participant would ideally like another and better

outcome for themselves, but can live with the agreement that has been obtained136”.

134 Elster, Jon (1986), p. 112.135 Miller, David (1992): ‘Deliberative democracy and social choice’, Political Studies 40 (special issue: Prospects of democracy), pp. 54-68.136 Eriksen, Erik Oddvar (2000): ‘Deliberative supranationalism in the EU’ in Democracy in the European Union. Integration through deliberation? (ed.) Erik Oddvar Eriksen & John Erik Fossum, London and New York: Routledge, p. 60.

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In his definition of deliberation Magnette also differentiate between deliberation and bargaining:

“The classical dichotomy opposing bargaining based on a narrow defence of stable preferences,

and deliberation defined as a rational exchange of arguments seeking to reach a common good

[…]137”. If we turn to a definition of an IGC it seems - at least from a starting-point - as the

opposite of a Convention in terms of representation and method. The Convention’s chairman,

Giscard d’Estaing, has defined an IGC as “an arena for diplomatic negotiations between Member

States in which each party sought legitimately to maximize its gains without regard for the

overall picture138”. In his introductory speech to the members of the Convention d’Estaing made

the role and function of the Convention clear by defining it, as “[…] a group of men and women

meeting for the sole purpose of preparing a joint proposal. The principle underlying our existence

is our unity139”. In comparison with the official brief, as laid down in the Laeken Declaration, the

objective outlined by d’Estaing seems more ambitious and determined. The Laeken Declaration

e.g. states that “it will draw up a final document which may comprise either different options,

indicating the degree of support which they received, or recommendations if consensus is

achieved140”. The open mandate of Laeken, as well as d’Estaing’s power to interpret and

conclude on the agenda and the procedure, will be dealt with in detail during the analysis of the

Convention.

The above-mentioned distinction between, on the one hand, bargaining and IGCs and, on the

other hand, deliberation and the Convention will serve as a starting-point for the analysis, as a

way to approach the main research focus of this paper i.e. whether or not the Convention brought

legitimacy into the process behind drafting the Constitution for Europe.

4.2.1 Critique of democratic deliberation

In the following we will present a brief overview of some of the most dominating points of

critique to the theory of democratic deliberation.

137 Magnette, Paul (2004), p. 211.138 Ibid., p. 212.139 d’Estaing, Valéry: (2002): Introductory speech by President V. Giscard d’Estaing to the Convention on the future of Europe, 28 February 2002.140 Laeken declaration on the future of the European Union.

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According to London numerous theorists seems to view the ideal process of deliberation as “just

that – an ideal141”. He refers to what seems to be a main argument for the critics of democratic

deliberation i.e. that the theory lacks a more “practical and realistic approach to contemporary

democratic ills142. In his effort to identify specific points of critique to the theory, London refers

to nine different claims.143 The most prominent of these seem to be 1) that the theory cannot

ensure a basis for fundamental liberties144, 2) a group that participate in a process of deliberation

"tends to maintain esprit de corps by unconsciously developing a number of shared illusions and

related norms that interfere with critical thinking and reality testing145, and 3) the claim that

groups have a tendency to move in a fixed direction, and as London argues thus consequently

“enforcing some monolithic set of collective values and shutting the door on alternative

viewpoints or minority issues146”.

Alexander agrees on these central points in his critique of democratic deliberation.147

Characterising the theory as a model of democracy that tends to be anti-pluralistic, elitist and

oppressive he emphasizes that democratic deliberation “provides a mechanism for establishment

and maintenance of hegemony rather than other goods usually associated with democratic

government (such as equality, pluralism, liberty)148”. Alexander’s description of democratic

deliberation as elitist is a point of critique also mentioned by Fraser and Butler149, who argue that

access and participation in a public process of democratic deliberation is not a universal right, as

it is based on a value system determined by the elite.

141 London, Scott (1995): ‘Teledemocracy vs. Deliberative Democracy: A Comparative Look at Two Models of Public Talk’. Journal of Interpersonal Computing and Technology, Vol. 3, N.o 2 (April 1995).142 Ibid.143 Ibid.144 See Cohen, Joshua (1989a): ‘The Economic Basis of Deliberative Democracy’, Social Philosophy and Policy, Vol. 6, No. 2 (Spring 1989), pp. 25-50, p. 37.145 Irving, Janis L.(1982): ‘Groupthink’, Boston: Houghton Mifflin, p.35146 London, Scott (1995).147 Alexander, Marcus (2002): ‘A Brief Critique of Deliberative Democracy: Why It’s Undesirable and How to Limit It’, p.1.148 Ibid. 149 Fraser, Nancy (1997): ‘Heterosexism, Misrecognition, and Capitalism’, Social Text, 15 (Nos. 3 and 4), pp. 279-289, & Judith Butler (1997): Merely Cultural. Social Text, 15 (Nos. 3 and 4), pp. 265-277. M. Cooke (2001): Meaning and Truth in Habermas’s Pragmatics. European Journal of Philosophy, 9(1), pp. 1-23.

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Though stressing that his critique does not lead to a rejection of the argument that democratic

deliberation is a “mechanism for legitimacy150”, Alexander focuses his criticisms on two central

elements of democratic deliberation i.e. the theory’s demand for reason (rationality) and its

assumption of the existence of a common good.151

Referring to Cohen’s criteria of the ideal procedure for democratic deliberation, Alexander

describes these as radical, as deliberation, on the one hand, is accordingly not based on

individuals’ interests and private preferences but on a conception of a common good, and, on the

other hand, as deliberation ultimately should be apolitical.152 As already mentioned though, self-

interested preferences are not excluded in the deliberate process – but they have to be supported

by rationale argumentation, which is compatible with or contributes to the common good.153 The

critical question in relation to this issue, as put forward by Alexander, is therefore whether to

keep pursuing this aim despite a conclusion or a belief that one common good does not exit or

simply cannot be achieved through democratic deliberation. Further more, Alexander argues that

Cohen’s claim that collective rationality is achieved through reason is ultimately an assumption

that self-interested preferences are irrational, undesirable, unimportant, or aligned with the

common good from the start.154 According to Alexander, the critique is accordingly based on the

question of whether “individuals will deliberate freely, equally, and according to reason if their

individual preferences were irrational, undesirable or unimportant to start with155”.

In Cohen’s article ‘Deliberation and Democratic Legitimacy’156 he responds to four different

points of critique – referring to them as “natural objections [to democratic deliberation]157”. One

of these concerns the above mentioned objective that deliberation cannot ensure a basis for

fundamental liberties – referred to by Cohen as ‘injustice’. In his treatment of democratic

deliberation Cohen considers the ideal of democracy, as the basic ideal for a political conception.

150 Ibid.151 Ibid.152 Ibid. 153 Steenbergen, Macro R. et.al. (2003), pp. 25-26.154 Alexander, Marcus (2002), p. 3. 155 Ibid.156 Cohen, Joshua (1989b).157 Ibid.

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He though argues that some might discard this conception, as the ideal of democracy “is not

suited to the role of fundamental political ideal because its treatment of basic liberties is

manifestly unacceptable158”. According to Cohen these fundamental liberties consequently

depend on the will and judgements of a given majority, and ultimately could bring democratic

legitimacy to political decisions that restrict basic liberties of individuals.159 However Cohen

responds to this point of critique by arguing that basic liberties such as free expression comprise a

specific requirement for making democratic deliberation possible in the first place.160

Referring to both the issue of the common good and rationality (and fundamental liberties)

Smith161 notes that a lack of consensus-producing reasons ultimately evokes some form of

majority procedure, and that Majoritarianism is often criticised for its lack of ability to account

for the minority. The point of critique vis-à-vis rationally is also dealt with by Rocheleau, Fraser

and Baumeister162, who stress that it is very unlikely that democratic decisions have ever been

based solely on a rationale debate and a consensus, but on the other hand they have been based on

own-interests and struggles for power. Following this line Heyting et. al.163 and Mouffe164

emphasise that the cultural diversity of values and interests in a deliberative forum excludes the

capacity to reach a consensus and engage in “ideal” rationality. Lastly Fish may be mentioned in

this respect as he, as referred to by Brady, “denies the possibility of agreement through the public

exchange of reasons165”.

4.3 Liberal Intergovernmentalism

158 Ibid.159 Ibid.160 Ibid.161 Smith, Stacy (1997): 'Democracy, Plurality, and Education: Deliberating Practices of and for Civic Participation', Bates College.162 Rocheleau, Jordy (2003): ‘The Politics of Critical Theory: Discursive Proceduralism and Its Discontents’. Social Theory and Practice, 29(1), 137-157. A. T. Baumeister (2003). Habermas: Discourse and Cultural Diversity. Political Studies, 51, pp. 740-758, and N. Fraser (1992). Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy. In C. Calhoun (ed.), Habermas and the Public Sphere. Cambridge: MIT Press.163 Heyting, Frieda, B.Kruithof & E. Mulder (2002): ‘Education and Social Integration: On Basic Consensus and the Cohesion of Society’. Educational Theory, 52(4), pp. 381-396.164 Mouffe, Chantal (2000). 165 Brady, John S. (2006): ‘Incorrigible Beliefs and Democratic Deliberation: A critique of Stanley Fish’ in Constellations, Vol. 13, No. 3, Oxford: Blackwell Publishing Ltd. , p. 1.

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Liberal Intergovernmentalism (LI) derives from Intergovernmentalism, which again is related to

Realism. Common for all three theories is that they were reactions to the neofunctionalistic

perception of the constant diminishing of the role of the nation state in regard to European

integration.166 In stead, these theories focus on how both the integration process and its pace are

determined by the individual member state.167

As for Intergovernmentalism, for many years dominated by Stanley Hoffmann168, the perception

is that integration is only to take place if and to the extent that individual actors (national

governments) allows it and are to gain from it.169 Hence, the European system is to a large degree

dominated by national anarchy. Therefore, Intergovernmentalism focuses on the national state as

the key actor in integration relations, which will continue to defend own interest – especially in

regard to high politic areas such as security, defence and foreign policies.170

From this version of Intergovernmentalism, Andrew Moravcsik developed his own perception of

the theory: Liberal intergovernmentalism. All though almost half a decade after Hass’ first

presentations of the neofunctionalistic viewpoint, LI was (also) seen as a direct response to the

theory of neofunctionalism171 as “[…] liberal intergovernmentalism departs in assuming [… that]

interstate bargaining reflects intentional state action on the basis of relative power rather than

supranational entrepreneurship, and […] provides a clear theoretical starting point for explaining

delegation to supranational institutions172”.

Much in line with ‘classic’ Intergovernmentalism, the primary perception is that (European)

integration – or development - is only possible to the extent that it complies with the intentions

and goals of the individual member states. This implies that it is the national governments that are

166 Nugent, Neill (2003), p 482.167 Ibid.168 Hoffmann was a dominant supporter of and front figure to Intergovernmentalism from the mid 60ies and all the way into the 90ies (Nugent, Neill, (2003): The Government and Politics of the European Union (fifth edt.), New York: Palgrave Macmillan, p. 482.)169 Nugent, Neill, (2003), p. 482.170 Ibid.171 Friis, Lykke (2003a), p. 18ff.172 Moravcsik, Andrew (2005b): ‘The European Constitutional Compromise and the neofunctionalist legacy’, Journal of European Public, pp. 349–386,12:2 (April 2005), p. 358.

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set to control the speed and degree of this development.173 Furthermore, according to LI

bargaining is a core element within the EU sphere, where, according to Moravcsik, “interstate

bargaining outcomes are decisively shaped by the relative power of nation-states174”.

According to Hix, LI divides the EU decision-making process into two stages:175 First of all, there

is “a ‘demand’ for European integration from domestic economic and social actors - and, as in

neofunctionalism and the liberal theory of international relations - these actors have economic

interests and compete to have these interests promoted by national governments in EU decision-

making.176”

Secondly, Hix argues that “EU policies are ‘supplied’ by intergovernmental bargains, such as

treaty reforms and budgetary agreements177” and;

“as in intergovernmentalism, states are treated as unitary actors and the supranational institutions have a limited

impact on final outcomes. In contrast to the classic realist theory of international relations, however, Moravcsik

argues that state preferences are driven by economic rather than geopolitical interests, that state preferences are not

fixed (because different groups can win the domestic political contest), [and] that states’ preferences vary from issue

to issue [….178”.

As opposed to Hoffmann, Moravcsik focuses on three specific components in dealing with LI.

First, there is the consideration of ‘rational state behaviour’, which determines that the individual

state centres its actions on whichever criterions that are regarded as necessary in achieving its

individual goal(s).179 This as the “European integration resulted from a series of rational choices

made by national leaders, who consistently pursued economic interests180”.

173 Friis, Lykke (2003a), p. 18ff.174 Moravcsik, Andrew (1998b): ‘The Choice for Europe - Social Purpose and State Power from Messina to Maastricht’, New York: Cornell University Press, p. 7.175 Hix, Simon (2005), p. 16.176 Ibid.177 Ibid.178 Ibid.179 Nugent, Neill (2003), p. 482.180 Moravcsik, Andrew, (1998b), p. 3.

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Secondly, LI describes “a liberal theory of national preference formation181”, which “draws on a

domestic politics approach to explain how state goals can be shaped by domestic pressures and

interactions182”. Hence, “governments cooperated when induced or constrained to do so by

economic self-interest, relative power, and strategically imposed commitments183”. Initially, a

central element of LI is that national state preferences are not predetermined on a national level.

Instead states are expected to act rationally vis-à-vis preferences and interests, which are defined

within the domestic arena. Hence, it is the varying pressure from domestic groups, which

consequently determines and or defines foreign policy goals. Meaning that the individual state’s

preferences are unsettled, wherefore these may change during negotiations at the EU-level.184

Thirdly, LI focuses on national governments as the key components/actors in the bargaining

game between nation states. Hence, it is the specific goal to be obtained from the specific

bargaining that is the dominant driving force for the individual national government.185

Hereby it becomes clear that, according to the LI-approach, it is the individual governments’

incentive to obtain a certain goal, which creates the foundation for its international actions. At the

same time, it is the rational behaviour of each state, which is to determine its actions on the

international bargaining scene as, according to Moravcsik, “governments negotiated agreements

on this basis, with supranational officials playing an epiphenomenal role. And they delegated to

international institutions in what was largely a rational and controlled way186”.

Hence, this develops into a two-level game between the supranational sphere on one side, and the

nation states on the other - all focused on their own individual bargaining and goals. As state-

preferences are diversified in different policy issues, it is these national governments’ individual

desire to reach a certain goal that is the real determiner for the actual development. Thus,

181 Nugent, Neill (2003), p. 482.182 Ibid.183 Moravcsik, Andrew (1998b), p. 5.184 Moravcsik, Andrew (1993b).185 Nugent, Neill (2003), p. 482.186 Moravcsik, Andrew (2005b), p. 358.

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according to Moravcsik, “the integration process did not supersede or circumvent the political

will of national leaders; it reflected their will187”.

It is the above elaborated elements of the LI theory, which are considered the most relevant to

this thesis. As the IGCs are created from national actors, it is significant to elaborate on the

influence that this circumstance has had on the processes within them.

4.3.1 Critique of Liberal Intergovernmentalism

Though having chosen to utilise LI, the paper recognises that the LI theory is not without its

critics, wherefore some of the most dominant elements of this criticism is to be shortly elaborated

on in the following. Firstly, the LI approach has been criticised for having too narrow a focus.

According to Nugent, Moravcsik is considered to “focus too much on ‘historic’ decisions and not

enough on more commonplace and routine decisions188”. Hence, sceptic scholars suggest that the

theory tend to ignore day to day politics. As Thomson and Hosli express it, the LI theory seems

to be “more concerned with the large milestones in the process of European integration, rather

than with day-to-day decision-making189”. Pierson supports this view, as he finds that LI appears

insufficient as its focus is too narrow. Hence, Pierson argues that considering the development

over a period of time, offer more information on the process than what is the case if only

intergovernmental conferences are considered, as these are only part of the process.190

Critics also suggest that LI put too much focus on economic concerns, and thereby fails to

acknowledge that the EU is much more than the two-level polity that Moravcsik’s suggests.

Instead, the perception here is that European integration is not dominantly motivated by

economic concerns, as suggested from the LI theory, but that politics and economics can not be

separated.

187 Moravcsik, Andrew (1998b), p. 4.188 Nugent, Neill (2003), p. 483.189 Robert & Madeleine O. Hosli (2006): ‘Explaining Legislative Decision Making in the European Union’, Cambridge: Cambridge University Press, 2006, 1-24, p. 7.190 Pierson, Paul (1996): ‘The Path to European Integration: A Historical Institutionalist Analysis’, Comparative Political Studies, Vol. 29, No. 2, pp. 123-163, p.127.

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Nugent argues that LI focuses too much on “the formal and final stages of decision making and

pays too little attention to informal integration and the constraints that such integration imposes

on the formal decision-makers191”. Additionally, according to Nugent, critics argue that

“insufficient attention is paid to the ‘black box’ of the state […which] according to Foster […]

means that liberal intergovernmentalism provides an inadequate account of how governments

choose their policy options192”.

Lastly - and according to Nugent the most ‘commonly voiced criticism’ - Moravcsik’s

understating the importance of supranational institutions have caused for severe criticism, as

many critics find that LI severely “understates the influence exercised in the European integration

process by supranational actors such as the Commission and the EJC, and transnational actors

such as European firms and interest groups193”. Furthermore, Nugent suggests that “Moravcsik’s

portrayal of the Commission as exercising a role of little more than a facilitator in respect of

significant decision making has attracted particular criticism, with numerous empirically based

studies claiming to show the Commission does exercise an independent and influential decision-

making role194”, and hence that it can have an influence on policy outcomes.

Nonetheless, within the content of this thesis, the theory is still perceived as a suitable

supplement for parts of the analysis. However, as will be seen in the following sections of

analysis LI is only utilised throughout the analysis of the IGC-model, as the perception is that it is

this model’s set-up that is best equipped for undergoing an analysis on the basis of LI as the

elements considered most relevant in this context, as elaborated above, fits very well with

numerous aspects of the IGC-model. This furthermore means that the LI-criticism elaborated on

above is not an obstruction in relation to this thesis’ analysis, as the usage of LI does not conflict

with the above raised criticisms.

4.4 Theoretical alternatives191 Nugent, Neill (2003), p. 483.192 Ibid.193 Ibid.194 Nugent, Neill (1999): ‘The Government and Politics of the European Union’, New York: Palgrave Macmillan, p. 510ff..

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As previously mentioned, several theories have been considered in reference to the thesis’

research question. Most relevant among these considerations where ultimately neo-functionalism

(NF) and Rational Choice Institutionalism (RCI) which are both elaborated on below.

4.4.1 Neo-functionalism

The first of the considered theories is NF, within which Ernst B. Haas defines political integration

as “the process whereby political actors in several distinct national settings are persuaded to shift

their loyalties, expectations, and political activities towards a new centre, whose institutions

possess or demand jurisdiction over the pre-existing national states195”.

As opposed to Intergovernmentalism, NF describes the European integration process as being

primarily ‘political’. Additionally, the theory argues that the political elites are the essential

driving force behind the European integration.196

Moreover, Haas argues that ‘spillovers’ play a substantial role to successful EU-integration. From

this perception a large focus is put on the importance and significance of spillover effects, which

are regarded as core elements to the integration process.197 Haas divides the spillover conception

into three different categories: Functional, cultivated and political.

Functional spillover paying attention to how the industrial sectors’ mutual problems can only be

solved by cooperation, which will over time spread to other industries/sectors, which will thereby

become involved in the process.198

195 Haas, Ernst B. (1958): ‘The Uniting of Europe. Political, Social and Economic Forces 1950-1957’, London: Stevens and Sons, p. 16.196 Nugent, Neill (2003): ‘The Government and Politics of the European Union’, (5th edt.), New York: Palgrave Macmillan, p. 479ff.197 Friis, Lykke (2003a): ’EU fra fundament til konvent - den store europæiske ombygning’, København: Gyldendal, p.15ff.198 Nugent, Neill (2003), p. 479.

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The concept of cultivated spillover focuses on how central EU institutions, e.g. the Commission,

are positioned in such a way that they are able to deliberately explore and develop common

European interests – creating further extents of European integration.199

The political spillover describes a development where cooperation in one political field will

create consensus for cooperation in other and larger fields over time: Hence national elites will

‘move’ their loyalties from the national to the supranational sphere, as it becomes the general

conception that their interests are best met and nurtured through supranational cooperation and

development.200

Thus, in broad terms, it was the fact that NF places a large focus on the elites’ acts and attitudes,

which was considered in reference to this thesis. This was deemed interesting in particular vis-à-

vis specifically the analysis of the Convention-model as the perception here is that the

Convention, though shaped differently from the IGCs, was however still composed by the

European elites. The Convention, despite how high the expectations to create a constituency with

newly discovered levels of democratic EU-involvement, must still, however, to some extent is

considered as being elitist. Therefore, the theory’s conception that European integration is to a

great extent based on the interest and loyalties of the European elite(s) was to some degree

perceived as relevant to this project. This both in relation to the general process of the

Convention in itself and in relation to the last part of the process, which came to involve the

national political elites’ sudden interest to the finishing part of the project.

Thus, NF appeared worth considering e.g. in reference to whether the Convention’s composition

conflicts with this thesis’ perception of legitimacy. Moreover, the fact that NF has been criticised,

e.g. due to its emphasis on the importance of elites and elite-bargaining, made the theory worth

considering.201 However, as NF does not focus on legitimacy as such, it was deemed inadequate.

4.4.2 Rational Choice Institutionalism

199 Friis, Lykke (2003a), p. 17ff.200 Nugent, Neill (2003), p. 479.201 Jones, Bryan D. (2001): ‘Politics and the Architecture of Choice: Bounded Rationality and Governance’, Chicago, IL: The University of Chicago Press, p. 45.

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According to Vivien A. Schmidt, there exist four basic ‘new institutionalist’ approaches, where

rational choice institutionalism (RCI) is among the older new institutionalist approaches.202

According to Schmidt, RCI “focuses on rational actors pursuing their interests and following

their preferences within political institutions, defined as structures of incentives, according to a

‘logic of interest’203”. Moreover, Rosamond suggests, that RCI perceives institutions as “formal

legalistic entities and sets of decision rules that impose obligations upon self-interested political

actors204”. Hence the argument here is that the political actors have clear policy preferences when

going into a given negotiation process taking place within a given institution. This furthermore

suggests that any ‘surrender’ of competence by member states to institutions has to be recognised

as an intended and calculated compliance of sovereignty from the perception that this act will in

the end be beneficial, and hence outweigh the costs.205

A claim which is supported by Smith, who describes how RCI conceives rational actors as having

fixed preferences, and that these actors calculate strategically in order to exploit their own

preferences, as for these actors, institutions represent structures, which reduce any uncertainties

that may appear from the diversity of individual issues or preferences. Or put differently, the

underlying principle of RCI is that the institutions are utilised as fora that help achieve a given

political outcome, which is shaped from certain preferences. The actors’ preferences, however,

are formed outside the institution where the negotiations are to take place.206

Whilst the individual actors pursue policy goals, as closely related to their own preferences as

possible, policy outcomes from negotiations may be sub-optimal.207 Meaning that instead of

accomplishing an optimal solution, which may favour the preferences of one particular actor at

the expense of others, the end result is instead a compromise between different preferences.208

202 Vivien A.(2006): ‘Give Peace a Chance: Reconciling Four (not Three) “New Institutionalisms”’, paper presented for presentation for the Annual Meetings of the American Political Science Association (Philadelphia, PA, Aug. 31-Sept. 3, 2006), p. 1.203 Ibid.204 Rosamond, Ben (2000): ‘Theories of European Integration’, New York: Palgrave, p.115.205 Ibid., p.116.206 Schmidt, Vivien A.(2006), p. 2.207 Schmidt, Vivien A. (2006), p. 2.208 Hall, Peter A. & Rosemary Taylor (1996): ‘Political Science and the Three New Institutionalisms’, Political Studies, 44(5), pp. 936-957, p. 945.

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The negotiations become a process where all actors need to let something go in order to gain

something else, as no actor wishes to agree on something, which only completely meet the

preferences of one - or some (other) - actors’ preferences. Thus, the main thought within RCI is

that actors reflect and act rationally in their effort to obtaining own preferences, wherefore

preferences may ultimately be moderated from the beginning of a negotiation process until the

end of a negotiation process.

In reference to the above, RCI has been considered especially due to its focus on national

preferences, and the fact that member states perceive international (institutional) involvement as a

calculated risk, meaning that these only engage in international negotiations if they expect to gain

from it. RCI accordingly seems to be able to theoretically contribute to the analysis, but

eventually the theory was not included. 

4.5 Theories of democracy

There exist several varieties of theories of democracy. In the following, we will elaborate on two

of these, as they appear relevant vis-à-vis our point of focus.

4.5.1 Representative democracy

Representative democracy may be described as a kind of democracy where citizens delegate

authority to a number of elected representatives. Or in other words, through open elections the

citizens within a nation state elect a smaller number of people to represent them, hereby making

this number of people representatives and hence giving these the authority to make decisions on

behalf of these citizens who have elected them. In this way the citizens are to have secured that

the elected representatives act in the interest of the electors.209 Still, these are free to do so every

way the see fit. This sort of democracy is the most common in today’s world where most if not

all modern democracies are, at the national level, regarded as representative.210

209 Australian Government Homepage: Victorian Electronic Democracy   : Glossary (July 28, 2005): http://www.parliament.vic.gov.au/SARC/E-Democracy/Final_Report/Glossary.htm, Retrieved on September 17 2008.210 Ibid.

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The representative democracy may include certain deliberative democracy measures or aspects. It

does in no way reject deliberation as being an important factor to democratic government

structures. On the contrary, officials within this government structure have the possibility to

deliberate on complex public issues.211 In other words, the theory shows support for the

perception that the political power is in the hands of a smaller group of qualified people - the

political elite – which then make the political decisions.

While the representation within specifically the IGCs may have it upon them to serve their

national citizens interests, neither the representatives of the Convention nor the IGCs have been

directly elected to do so in reference to treaty creation. Put roughly, the representation within the

Convention have been pointed out by ‘EU-insiders’, whilst the representation within the IGCs

consists of Heads of State and Government and additional government representatives.

Additionally, the very incentive behind the Convention was to make the EU more open to the

public – meaning more people, politicians, interest groups (and civilians), were to have influence

on the decisions that were made, i.e. an effort to replace previous IGCs’ elite-based

representation with a more ‘people-oriented’ and boarder group. This aspect does not appear

entirely in line with our perception of representative democracy. On these grounds we have

ultimately chosen to disregard representative democracy, as this in itself is not perceived as

sufficiently adequate for explaining democracy within the given problem field.

4.5.2 Participatory democracy

As opposed to representative democracy, participatory democracy is more focused on the fact

that processes are to be carried out through a constituency, which is founded on an extensive

level of participation. Put differently, participatory democracy is to be regarded as a process that

emphasizes the broad participation (decision making) of these constituencies in the operation of

political systems.212

211 United States Government Homepage: ‘Defining Democracy’, internet source: http://usinfo.state.gov/products/pubs/whatsdem/whatdm2.htm, retrieved on September 26, 2008.212Australian Government Homepage

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According to Wampler, Governments e.g. tend to initiate participatory institutions when for

instance the governing through representative democratic institutions is not able to provide

adequate service in an area, or when “significant sectors of the population are stymied in their

efforts to influence government officials or political outcomes213”. Hence, in opposition to

traditional representative democracies, which are sometimes to limit citizen participation to

voting, meaning that actual governance is left to politicians, participatory democracy focuses on a

strengthening of participators role.214 This form of democracy aims to create a link between the

political and the civil society, by attempting to create opportunities for all members within a

political group, in order to create influential contributions to decision-making.215 Therefore, it can

also be said that participatory democracy is regarded as representative, whereas representative

democracy is not necessarily regarded as participatory.

5.0. Empirical Overview

5.1 The preconditions

The 2002 Convention for the drafting of a new treaty for Europe was not the first of its kind. In

1999 the EU-countries established a Convention on the Charter of Fundamental Rights216, on a

German initiative, and with Convention meetings taking place from late 1999s until the autumn

of 2000.217

As a dominant deviation from previous treaty reforms the EU-Charter was negotiated through an

open ‘Convention’ parallel to the 2000 IGC on the drafting/preparative work of the Nice Treaty.

And due to the general notion of the 2000 IGC being a flop in regard to solving the problems that

would arise as a result of the upcoming EU expansion, combined with the perception that the

213 Fung 2005; Barber 1984; Abers 2000; Fung and Wright 2003; Avritzer 2002 in Wampler, Brian (2008): ‘Grafting participatory governance onto representative democracy and existing state institutions: “Explaining outcomes via political society and civil society lenses”’, paper presented at the annual meeting of the ASPA 2008, p. 2.214 Wampler, Brian (2008)215 Ibid.216 Charter of Fundamental Rights of the European Union, internet source: http://www.europarl.europa.eu/charter/pdf/text_en.pdf217 Closa, Carlos & John Erik Fossum (eds.) (2004b): ‘Deliberative Constitutional Politics in the EU’, Oslo: ARENA, p. 334.

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Convention had been successful in its Charter work, the creation of a new (2002) Convention was

decided upon.218

The 1999 Convention was the first of its kind in EU context, and its composition was quite

unique as it, compared to the IGCs, “was open and participative in nature219”. Moreover, as

expressed by Closa and Fossum, it “brilliantly combined representative democracy with

participatory forms of democracy and unparalleled access to the process of European decision-

making220”. And despite criticism221, such as a lack of transparency in the drafting process,

secretarial dominance, and a relatively short working-timeframe, among others, the Charter was

proclaimed in December of 2000 from the generally surprising notion that the Convention had

agreed upon the Charter relatively quickly.222

Hence, apart from the American source of inspiration, the Philadelphia Convention, it was this

1999 experience, which, according to Friis and Biering, “constituted a challenge to the elite-

oriented and secretive mode of fashioning system change through the IGCs223”, which was the

true inspiration behind the establishment of the 2002 Convention. Also, since the Charter

compromise had been achieved with no formal vote224 – or a combination of this aspect and the

“failure in Nice225”. As prior to the establishment of the 2002 Convention, whenever fundamental

EU-regulations - the treaties - were to be changed, this was to take place at an intergovernmental

conference (IGC).226

218 Beach, Derek (2003): ’Konventet bedre end regeringskonferencen’, in Udenrigs, 4-2003, pp. 21-27, København: Det Udenrigspolitiske Selskab, p. 21.219 Closa, Carlos & John Erik Fossum (eds.), (2004b), p. 334.220 McCrudden, Christopher (2001): In Closa, Carlos and John Erik Fossum (eds.), 2004: Deliberative Constitutional Politics in the EU, Oslo: ARENA, p. 10.221 Closa, Carlos & John Erik Fossum (eds.), (2004b), p. 344ff.222 Friis, Lykke & Peter Biering (2005): ’Forfatningstraktaten – Europas Philadelphia?’, Danmark: Lindhardt og Ringhof, p. 27.223 Ibid..224 Closa, Carlos & John Erik Fossum (eds.), (2004b), p. 334.225 Adler-Nissen, Rebecca & Rasmus Vanggaard Knudsen (2005), p. 41.226 Isaksen, Susanne, Ole Toft & Jens Bødtcher-Hansen (1998): ’Amsterdam-traktaten: Forberedelse, forhandling og resultat’, København: Schultz.

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The IGC that took place in 2003, following the 2002 Convention, was the eight substantial

government conference since 1952 – where as many as four of them had taken place since

1990.227 Hence, it was the experience from previous treaty settlements – the Nice Treaty228 from

2000 being the latest example – which had made it obvious that the next EU treaty should be

‘prepared’ completely different than the previous ones.229 At the same time, the European

Parliament was pressing for a ‘new way’ of drafting the next treaty. Not only because it would

reflect increased openness, but also because it was to strengthen the parliamentarians’ possibility

to gain influence.230

The same could be said for the Commission who, along with the Parliament, “until then, had been

excluded from treaty changes231”. During IGCs the Parliament is merely an observatory body232 -

whereas a Convention would equip parliamentarians with actual influence as part of the

representation.233

5.2 The 2001 Laeken European Summit

When the former German foreign minister, Joschka Fischer234, in 2000 took the stand at the

Humboldt University in Berlin, it marked the beginning of the formation of the Convention for

the Future of Europe. In his speech he pointed out that the time had come for a new debate on EU

goals and consequently to agree upon a constitutional treaty. And even though Fisher held this

speech as a private person, the message got through loud and clear all over Europe, and during

the following months several EU-politically related speeches touched on the subject.235 This

became the stating point for a grand debate among European leaders about which direction the

227 Adler-Nissen, Rebecca & Rasmus Vanggaard Knudsen (2005), p. 35.228 The Nice Treaty was for various reasons not considered a success: The negotiations were extremely long, the text gave rise to doubts in regards to interpretation, and all in all the IGC resulting in the Nice Treaty had not been able to establish solutions, which were satisfying to all participants. (Adler-Nissen, Rebecca & Rasmus Vanggaard Knudsen (2005), p. 37.229 Friis, Lykke & Peter Biering (2005), p. 27.230 Ibid., p. 224ff.231 Magnette, Paul & Kalypso Nicolaïdis (2004): ‘The European Convention: Bargaining in the shadow of Rhetoric’, April 2004, published in: West European Politics, p. 3.232 According to Magnette, Paul & Kalypso Nicolaïdis (2004).233 Friis, Lykke & Peter Biering (2005), p. 225.234 Fischer, Joschka (2000): ‘From Confederacy to Federation: Thoughts on the Finality of European Integration’, Speech by J. Fischer, 12. May 2000, Humboldt University in Berlin.235 Friis, Lykke & Peter Biering (2005), p. 30.

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EU was to be steered in, and what the real European vision actually was. The debate took place at

the same time as the IGC on the Nice Treaty236, and “as has become customary at the end of

ICGs, it was decided at the December 2000 Nice summit to make provision for another ICG, to

be convened in 2004237”, as pointed out by Nugent.

Meanwhile, it was in 2001 that the aim on a new treaty for Europe was truly brought to life, as

the mandate for the EU-Convention was established through the Laeken-declaration in December

2001.238 And due to the fact that the 1999 Convention was considered a successful initiative in

terms of European policy making, “the Laeken European Summit in December 2001 decided to

use the Charter-model as the foundation for subsequent treaty changes through the establishment

of a Convention239”. This meant that European Heads of State and Government requested a

Convention to draw up a new treaty for Europe240, and hence, the first Convention ever to be

assigned the challenge of preparing a new treaty for Europe prior to the 2004 ICG was a

reality.241

The subjects to be addressed by the Convention were set out in ‘the Laeken Declaration on the

Future of the European Union’242”. And thus, a substantial discussion paper, “Europe at a

crossroads243”, also known as the Laeken-declaration - which was basically a load of as much of

60 questions - was handed to the Convention prior to the beginning of the process. 244 This was to

function as a ‘problem formulation’ to the Convention.245 And as a clear sign of the direct linkage

to the 1999 Convention, the principle of consensus-building, which arose from that same

Convention was written in the 2002 Convention’s draft rules of procedure, which also settled that

representatives of the candidate states could not prevent such consensus.246

236 Adler-Nissen, Rebecca & Rasmus Vanggaard Knudsen (2005), p. 43.237 Nugent, Neill (2003), p. 516.238 Beach, Derek (2003), p. 22.239 As cited by Closa, Carlos & John Erik Fossum (eds.), (2004b), p. 337.240 Friis, Lykke & Peter Biering (2005), p. 8.241 Adler-Nissen, Rebecca & Rasmus Vanggaard Knudsen (2005), p. 13.242 Nugent, Neill (2003), p. 517.243 Laeken declaration on the future of the European Union.244 Brown, Tony (2004): ‘Achieving Balance: Institutions and Member States’, London: The Federal Trust for Education and Research.245 Friis, Lykke & Peter Biering, (2005), p. 34.246 Closa, Carlos & John Erik Fossum (eds.), (2004b), p. 339.

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At first, the mandate for the EU-Convention’s discussions was relatively modest, as it mainly

consisted in the ‘challenge’ of discussing the most substantial or important problems related to

the future EU development, as well as to examine a variety of potential solutions.247 However,

when the Convention began its work, the more modest goals were replaced by a far more

ambitious target goal; replacing existing EU-treaties with just one substantial constitutional

treaty.248 Hence, the Convention issues ended up covering a “broader range than those identified

in the Nice Declaration and made it possible for the Convention to consider almost any matter

relating to the functioning of the Union249”. Additionally, the Declaration thoroughly considered

the problem of the democratic deficit and the sense of powerlessness among EU-citizens that had

been part of the EU-debate for years.250

Both the set up and the Laeken-declaration was, however, a clear sign that the national

governments were in no way on the same page in regards to what the succeeding

intergovernmental conference, dealing with the Convention’s proposition, was to result in.

Meaning that there was far from a clear or/and joint vision on what the final product was to

contain.251

5.3 The Convention on the Future of Europe

Nonetheless, hosting former French president Valéry Giscard d’Estaing as President of the

Convention, the Convention on the Future of Europe opened on the 28. February 2002 A choice,

which was, to many, regarded as a controversial preference - both due to his age (76), but also

due to his positions (during his time in government d’Estaing had been among the founders of

summit meetings).252 Worth mentioning in this context is perhaps that d’Estaing was indeed to

make himself stand out later on in the Convention’s drafting process due to his more or less

247 Beach, Derek (2003), p. 22.248 Ibid.249 As cited by Nugent, Neill (2003), p. 517.250 Wind, Marlene (2003): ’Den stille revolution - mod en europæisk forfatning’, København: Forlaget Politiske Studier, p. 4.251 Friis, Lykke & Peter Biering (2005), p. 35.252 Friis, Lykke & Peter Biering (2005), p. 37.

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obvious ‘personal’ agendas, as to which others, members of the Presidium included, felt strongly

offended.253

Along with the two Vice-Presidents, both former prime ministers, Giuliano Amato from Italy and

Jean-Luc Dehaene from Belgium, d’Estaing was (as an individual actor254) to lead the Convention

(the Presidency). Moreover, it was these three who formed the Convention’s Presidium along

side with other members of the Convention consisting of two Commissioners, Vitorino and

Barnier, two representatives of the European Parliament, two national parliament representatives

and (the government) representatives of the member states (three in all; Denmark, Spain and

Greece) holding the EU-Presidency during the Convention.255 The Presidium was to provide the

impetus for the Convention's proceedings.256 Hence, it had been appointed to play a central role

comparable to the one of the holder of the EU-Presidency during IGC negotiations,257 but

contrary to the Presidency, the Presidium’s primary role was as an agenda-setter in drafting

proposals of the constitution, which were then presented to the Convention.258

Apart from the Presidency and the Presidium, a Secretariat of the Convention was also

established. It was headed by appointed Secretary-General Sir John Kerr259, and its main function

was to support the Presidium and the Convention by giving assistance to Convention members in

all aspects of the Convention's work. Primarily by preparing discussion documents, drafting

reflection papers etc. Furthermore, the Secretariat assisted the President, the two Vice-Presidents,

and the Presidium.260

The Convention, which for a substantial part consisted of former European Heads of State and

Government, was in short shaped from representatives from the European and the national

253 Beach, Derek (2003), p. 25ff.254 Tsebelis, George & Sven-Oliver Proksch (2006): ‘The Art of Political Manipulation in the European Convention’, 13 June 2006, UCLA: Department of Political Science.255 Closa, Carlos & John Erik Fossum (eds.), (2004b), p. 339.256 European Convention website (Organisation). 257 Beach, Derek (2003), p. 22.258 Tsebelis, George & Sven-Oliver Proksch (2006)259 A former head of the British Diplomatic Service260 European Convention website (Secretariat)

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parliament(s), national governments, the new EU-member states as well as the EU-

Commission.261

More explicitly the composition of the Convention as a whole consisted of:

“15 representatives of the governments of the EU [one of each state (EU-15)], plus 13 of the accession candidate

countries governments, 30 national parliamentarians (2 per Member State) plus similarly 26 of the candidate

countries, 16 members of the European Parliament, and 2 members of the European Commission. Moreover the

European Ombudsman, social partners, the Committee of the Regions and the Economic and Social Committee have

official observers with speaking rights.262”

The Convention’s working process was to consist of three overriding phases: the listening phase,

the study/analysis phase, and the drafting/recommendation phase.263

The first phase, the listening phase, was intended to get all parties involved in touch with each

others. Hence, an open phase where “the Convention would ponder what Europeans wanted of

the Union at the start of the 21st century264”, which consequently “enabled the 105 Convention

members and their 102 alternates to learn to work together265”.

The second phase, the study phase, was indented to elaborate on the questions, which was raised

at Laeken as well as the more general challenges for the future EU.266

Not until these examinations had been fully obtained would the Convention be able to move

along to the third and last phase – the drafting phase, where the Convention was put in charge of

writing its recommendations/proposals for the forthcoming IGC.267

A clear vision behind the Convention was that the opening-up (in regards to e.g. open meetings

and documents being laid out on the internet) was to make European citizens involve themselves 261 Wind, Marlene (2003), p. 5.262 Closa, Carlos & John Erik Fossum (eds.), (2004b), p. 338ff.263 Tsebelis, George & Sven-Oliver Proksch (2006), p. 9.264 Norman, Peter (2003), p. 47.265 Ibid., p. 56.266 Norman, Peter (2003), p. 47.267 Ibid.

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in the debate.268 In other words, the establishment of the Convention was an attempt to deal with

the traditional processes in the EU, where European Heads of State and Government from all

member states, “sit behind closed drapes and determine the cooperation’s future269”. And it was

exactly on these grounds that far more interested parties became involved in the process than

what was normally the case.270

On June 13, 2003 – 15 months after the Convention had begun its work - it had succeeded in

finishing a complete draft for a European Constitutional Treaty, and the plan was hence for it to

replace existing treaties.271 The result became the Treaty establishing a Constitution for Europe,

which was signed in Rome on 29 October 2004. Meanwhile, even though the negotiations prior

to the 2004 signing were founded in the Conventional draft, the text was changed on decisive

points.272 However, as the text in itself is not relevant to this thesis’ research question, the subject

will at no point be discussed in further detail.

Still, to many supporters the treaty is for a long time to be considered as the EU’s most explicit

attempt to democratize itself and enhance the broad common acceptance273 - this probably first

and foremost due the very and broad acceptance that a new approach had been necessary. And as

noted by Friis and Biering “even though the Constitutional Treaty is hardly the last treaty in EU

history, one of its purposes is actually to put a temporary stop to this [read: the treaty debate]

debate274”, as the treaty, though not closing the debate on democratic principals in the EU due to

its broad formulations, sets the scene for a long period without the need for substantial changes in

the Union’s fundamental regulations/practices.275

6.0. Analysis

268 Friis, Lykke & Peter Biering (2005), p. 34.269 As cited by Wind, Marlene (2003), p. 5.270 Maduro, Miguel P. (2003), The Double Constitutional Life of Fundamental Rights, in Eriksen, Fossum & Menéndez (eds.) The Chartering of Europe, Baden-Baden: Nomos.271 Beach, Derek (2003), p. 21.272 Adler-Nissen, Rebecca & Rasmus Vanggaard Knudsen (2005), p. 13.273 Ibid., p. 14.274 Friis, Lykke & Peter Biering (2005), p. 22.275 Adler-Nissen, Rebecca & Rasmus Vanggaard Knudsen (2005), p. 14.

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6.1 Analysis of the Convention-model

This part of the analysis will focus on the Convention-model and its composition i.e. its structure,

and process. After an elaboration on these essential aspects of the model we will look more

closely into each individual stage of the Convention i.e. the listening stage, in which the views

and expectations towards the future EU were discussed, the analysis stage, in which the pros and

cons of the different proposals were put forward, and finally the drafting stage. The primary

purpose of this part of the analysis is to ‘measure’ the level of deliberation throughout the

Convention process, and thus ultimately the level of democratic legitimacy. In the analysis one of

the primary focus points will be the Convention’s President and Presidium and how these central

actors sought to lead the work and agenda of the Convention.

6.1.1 The open mandate of Laeken

According to Magnette, the set up of the Convention in the Laeken declaration was initially the

result of what is referred to as “a classic intergovernmental compromise276”. This is blueprinted in

the declaration where the many questions set up reflect both the state-centric and the EU-centric

perception of liberal democracy, and consequently, as argued by Magnette, “the Laeken

Declaration is the most open text ever adopted by the European Council277”. On the one hand, the

declaration e.g. states that “in coordinating the economic, financial and fiscal environment, the

basic issue should continue to be proper operation of the internal market and the single currency,

without this jeopardising Member States' individuality278”, and on the other hand, it asks “how

[…] should a more coherent common foreign policy and defence policy be developed?279”, and

“how can we intensify cooperation in the field of social inclusion, the environment, health and

food safety?280” Other examples that show how open the Laeken mandate actually was are seen in

the questions of whether the role of both the European Parliament and the Council should be

strengthened, and whether the President of the Commission should be appointed by the Council,

the European Parliament, or directly elected by the European citizens.281 276 Magnette, Paul (2004), pp. 206-207.277 Ibid., p. 209278 Laeken Declaration of the Future of the European Union.279 NOTE280 Laeken Declaration of the Future of the European Union.281 Ibid.

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The open mandate of the Laeken declaration is a clear sign that each member state succeeded in

including its own priorities in the declaration – an aspect also reflected in the Convention’s

working process, where the state-centric perception in particular becomes obvious: The

declaration clearly position that the Convention is a preparatory body for the following IGC, as

well as it establishes that the European Council is to be informed on the Convention’s progress,

“thus enabling Heads of State or Government to give their views […]282”. Additionally, the

Laeken mandate stresses that the final constitutional draft from the Convention will only provide

“a starting point for discussions in the Intergovernmental Conference, which will take the

ultimate decisions283”. As follows, the state-centric EU member states attached several ‘safety

features’ to the Convention, in order to ensure that its work did not alter the fundamental purpose

of that of the member states in the IGC that were to follow. As noted by Schönlau “[…] as in

other questions of the organisation of the Convention’s work, the Laeken mandate seems to have

aimed at a greater degree of control by the authors of the mandate (the heads of state and

government) over the Convention process, as opposed to the Convention’s self-regulation284”.

Accordingly, Magnette have characterised the intergovernmental compromise behind the Laeken

declaration and the Convention mandate as a classic example of what he refers to as “the

mechanism of resolution of conflicts through ambivalent agreement285”, or as Elster explains

“agreement based on preference differences and belief differences that cancel each other286”.

Following the above mentioned aspects, it seems obvious to assume that the Convention and its

composition in principle did not alter the general drafting process, as this was not different from

the way, in which the EU had drafted or revised treaties in the past i.e. by means of

intergovernmental bargaining. But as will be dealt with in further detail during the last part of the

analysis, in which we seek to compare the Convention-model with the IGC-model, and thus

determine whether the Convention brought democratic legitimacy into the process behind 282 Ibid.283 Ibid.284 Schönlau, Justus (2004a): ‘Time Was of the Essence: Timing and Framing Europe’s Constitutional Convention’, in Deliberative Constitutional Politics in the EU, (ed.) Carlos Closa & John Erik Fossum Centre for European Studies, University of Oslo, Oslo: ARENA, p. 253.285 Magnette, Paul (2004), p. 210.286 Elster, Jon (1998), p. 101.

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drafting the Constitution for Europe, the Convention’s deliberative form, as well as its broad

representation. initially brought along a legitimacy advantage.287 The advantage is that the result

of the Convention may be considered to hold the support of a significant part of both the civil

society as well as representatives of the European Commission, European Parliament, and the

national parliaments and governments. This was also the clear message from the Convention’s

President, Giscard d’Estaing, as he in his introductory speech stated that “[…] there is no doubt

that, in the eyes of the public, our recommendation would carry considerable weight and

authority if we could manage to achieve broad consensus on a single proposal which we could all

present288”. In this way the structure and process of the Convention seems to have made it

difficult for the European Heads of State and Government to simply reject the Convention’s draft

at the following IGC without providing a strong alternative that would be acceptable to all

governments. Considering the huge institutional questions at stake this may be regarded fairly

unrealistic.

The above mentioned aspect also seems to be one of the main conclusions in the European

Parliament’s resolution on the Convention’s draft, as it “urges the IGC to respect the consensus

reached by the Convention, to avoid negotiations on the finely balanced solutions obtained by the

Convention and to approve the draft Treaty establishing a Constitution for Europe without any

substantial changes289”. As a consequence of the Convention’s mentioned legitimacy advantage,

it may be assumed that the European Heads of State and Government had to make their influence

count through their representative during the process, as opposed to during the following IGC. To

a certain extent however, it is also deemed possible to affect the Convention’s process and

agenda through other channels e.g. the Convention’s president.

6.1.2 The President and the Presidium

The careful selection of former French President, Giscard d’Estaing, as President of the

Convention may also be considered as a vital ‘safety feature’. D’Estaing is known to have a state-

centric approach to the development of the EU, and it may thus have been considered very

287 Fossum, John Erik (2000), p. 122-288 d’Estaing, Valéry G. (2002). 289 European Parliament (2003), p.10.

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unlikely that he should suddenly change this way of thinking.290 Despite the fact that the

President, as well as the Vice-Presidents, officially only represented themselves, it is deemed

very likely that European Heads of State and Government sought influence through their choice

of President.291 Former Irish Prime Minister, John Bruton, who at the time was an elected

member of the Presidium from the National Parliaments component, supports this argument

stating that “the President […] conducted a series of bilateral meetings with Heads of

Government outside the Convention framework, and this sometimes led to fears that a parallel

one-man negotiation was taking place292”. Accordingly, Magnette points out that d’Estaing was

sometimes accused of favouring those views of the governments who had nominated him.293

The vital influence enjoyed by d’Estaing as President may be reflected in the fact that he pushed

forward the idea not to have any votings on the grounds that not all member states were equally

represented, as to which a majority in reality could represent a minority of the population. 294

Accordingly, the conclusions of the Presidium meeting on 22 February 2002 state that “members

of the Praesidium recognised that, given the non-homogenous character of the composition of the

Convention, it was not appropriate to resort to a vote. The Convention should aim at achieving a

consensus or, at least, a substantial majority295”. Furthermore, it was d’Estaing who established

the significance of a consensus - i.e. determined when a consensus had been reached - though still

refusing to define his perception of a consensus arguing that as soon as such a definition would

be put forward you would no longer have a consensus.296

290 Hoffmann, Lars (2002): ‘The Convention on the Future of Europe – Thoughts on the Convention-Model’, Jean Monnet Working Paper 11/02, New York: NYU School of Law, p. ii-19, p. 8.291 Stuart, Gisela (2003):’The Making of Europe’s Constitution’, London: Fabian Society.Sverdrup, Ulf (2001): ‘An Institutional Perspective on Treaty Reform: Contextualising the Amsterdam and Nice Treaties’, Presented at the 4th Pan-European conference of the ECPR Standing Group on International Relations, 8-10 September 2001, University of Kent at Canterbury, U.K. Panel 10-1: ‘Treaty Reform beyond Bargaining and Diplomacy’, ARENA Working paper 01/27, p.17.292 Bruton, John (2004): ‘The Convention On The Future Of Europe And Its Draft Constitution For Europe’, working paper No. 5 - 2004, Center for International Studies, Dublin: Dublin City University, p. 4.293 Magnette, Paul (2004), p. 215.294 Ibid., p. 213.295 Praesidium meeting conclusions (2002).296 Bruton, John (2004), p. 4.

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As the European Council had only specified that the result of the Convention should be reached

by a consensus this gave d’Estaing the right to determine when a consensus would be reached.

An example of d’Estaing’s control of consensus was e.g. seen during a plenary debate on the

‘democratic life of the Union’, to which a total of 335 amendments had been put forward by the

Convention’s members. The Presidium had put forward a draft article, which a large number of

the members opposed and some even wished for it to be deleted but d’Estaing overruled this

arguing that the amendments were not numerous.297 In other instances, d’Estaing seemed to make

an effort in responding to the proposed amendments despite the fact that they quite obviously did

not form a consensus: “Six of you demanded the deletion of the article on voluntary withdrawal

from the Union. We have reformulated the proposal according to your amendments.298”

D’Estaing himself explained his role as “an agenda-setter of a constitutional convention” stating

that “I tried to play a little bit the role that Jefferson played, which was to instil leading ideas into

the system. Jefferson was a man who wrote and produced elements that consolidated the

Constitution299”. According to one of the Vice-Presidents of the Convention, Mr. Giuliano

Amato, d’Estaing would determine a consensus even in times when it would not be there by

saying “well I understand there are views on one side and view on the other, but on the whole the

idea is accepted300”. In this way Amato argued that d’Estaing was “flying on his own wings, and

these qualities tend to be disturbing to others301”.

Mr. Bruton describes, d’Estaing’s control over the consensus in a way that leave us with the

impression that the process of democratic deliberation and the deliberate framework of the

Convention was not as free as some could have hoped for: “This was probably the only way the

Convention could actually have worked, and while some of his determinations of consensus were

initially controversial, and even wrong, he was able and willing gracefully to back off untenable

297 d’Estaing, G. (2003b): 5 June 2003, Plenary Session of the Convention298 Ibid.299 d’Estaing, Valéry G. (2003c): quoted by the New York Times, 15 June 2003 in George Tsebelis & Sven-Pliver Proksch (2007): ‘The Art of Political Manipulation in the European Convention’ in Journal of Common Market Studies, Vol. 45, No. 1, pp. 157-186.300 Amato, Giuliano on Giscard d’Estaing, as quoted in the New York Times, 15 June 2003 in Tsebelis, George & Proksch, Sven-Pliver (2007): ‘The Art of Political Manipulation in the European Convention’ in Journal of Common Market Studies, Vol. 45, No. 1, pp. 157-186. 301 Ibid.

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positions, without losing his authority302”. From Mr. Bruton’s argument it thus seems that

d’Estaing’s determination of consensus had an influence on the deliberation, as it apparently

sometimes included constrains from a presetting of norms or requirements.

In light of the vital powers of the Convention’s president, it is worth noting that it was the

European Heads of State and Government who nominated d’Estaing, and not Convention

members or the citizens of the EU. Considering that the actors who nominated d’Estaing, as

mentioned, had an interest in the work of Convention this aspect may be criticized vis-à-vis the

criteria set up by liberal democracy. When the authority was handed over to d’Estaing on the

basis of what may be referred to as closed negotiations, i.e. the public knowledge of the

preceding process was very low or even non-existing, it obviously affects the level of

transparency and accountability. Due to this way of nominating the Convention’s president, the

European people could not hold d’Estaing directly responsible, as he was not directly accountable

to them, but on the other hand to the European Heads of State and Government. One way though

to level this specific democratic deficit was to ask the people on the final result in referenda,

which e.g. resulted in a ‘NON’ from the French population.

Besides the President and the two Vice-Presidents, who together constituted the Presidency and

had as their primary task to control the agenda of the plenary sessions, the Convention’s

Presidium consisted of two representatives from the European Parliament, two from the

Commission, two from the national parliaments, and 3 representatives from the Governments of

the member states holding the EU Presidency during the period of time the Convention took

place. The Presidium as a whole had as its main task as the agenda-setter to draft proposals,

which would then be presented to the Convention.303 The vital agenda-setting powers of the

Presidium makes the composition of it interesting, as it accordingly may be regarded as the

engine of the Convention, or as stated in the Laeken declaration “the Praesidium will serve to

lend impetus and will provide the Convention with an initial working basis304”. This in mind it is

302 Bruton, John (2004), p. 3.303 Tsebelis, George & Proksch, Sven-Pliver (2007): ‘The Art of Political Manipulation in the European Convention’, in Journal of Common Market Studies, Vol. 45, No. 1, pp. 157-186.304 Laeken Declaration of the Future of the European Union.

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noted that the Presidium’s meetings were held behind closed doors, as was the general agenda-

setting process.305 An insight look in the agenda-setting process is though offered by Mr. Bruton

who, vis-à-vis the criteria of liberal democracy and democratic legitimacy outline a rather critical

picture of the process:

“In practice, the Secretariat of the Convention, under the direct supervision of the President, Giscard d’Estaing,

produced drafts for the Praesidium. The Praesidium then amended these prior to presentation to the Plenary. These

drafts were often produced at a very late stage before the Praesidium met, thereby limiting the opportunity of

Praesidium members (or the components they represented) to consult or produce competing drafts.306”

Tsebelis and Proksch argue that the success of the Convention was only possible due to the

strong agenda-control applied by the Presidium and in particular d’Estaing.307 By looking closer

at the control exercised by the Presidency and the Presidium several points are deemed

interesting vis-à-vis the criteria of deliberation, and ultimately the level of democratic legitimacy.

As the Convention’s rules of procedures allowed all members the right to propose amendments to

the draft or ‘constitutional skeleton’, presented by the Presidium after the fist stage of listening,

the rules did not say anything about how the proposed amendments should be dealt with once

proposed.308 To a large extent this aspect provided the Presidium and the Presidency with the

right to choose the ones they deemed the most acceptable, which may be considered an important

element of the agenda-setting control. D’Estaing made this clear in his address to the Convention

when the Presidium’s first drafts were presented:

“You can […] forward us (the presidium) suggestions, remarks or proposals for an amendment. This is not

necessarily a matter of drafting. You could say, for example, that the order is inappropriate or that you think we put

too much emphasis on a certain issues and not enough on another. Your proposals must reach us by the end of next

week. […] The Praesidium will go through them to see which modifications and improvements they include. The

texts will then return to you in the form of a new proposal integrating the [amendments] proposals which appeared

the most enriching.309”

305 Bruton, John (2004), p. 4, & Tsebelis, George & Sven-Pliver Proksch (2007).306 Bruton, John (2004), p. 2.307 Tsebelis, George & Sven-Pliver, Proksch (2007).308 Tsebelis, George & Sven-Pliver Proksch, (2007).309 d’Estaing, Valéry G. (2003a): 6. February 2003, Plenary Session of the Convention.

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An example on the above may be taken from the plenary session on 5 June 2003. In this session

the crucial issue of the EU’s competences was being discussed, and the Convention’s members

had proposed no less than a total of 613 amendments in relation to this topic (approximately 10

per cent of the total amount of amendments proposed during the Convention). In his statement

though d’Estaing did not seem to acknowledge that this specific issue was apparently of great

importance to many members: “Regarding the competences of the Union, there are several

amendments but finally fairly few. These are articles which are not subject to many

amendments.310” In this way d’Estaing, on the one hand, managed to limit the number of

proposed amendments, and, on the other hand, he ensured that he had the control to favour some

proposals over others.311 Further more, the Presidency, as an agenda-setter, enjoyed control of the

timing of the individual policy issue and proposals, which initially meant that d’Estaing could

hold back significant proposals until time was running out, hereby restricting the possibility of

putting forward amendments. Tsebelis and Proksch refer to this as strategic timing, and claim that

it was one of the reasons why the Presidency chose to split the Convention into three stages.312

Accordingly this was disappointing to some members, as expressed here by member of the

Convention for the European Parliament, and former Chairman of the European Parliament

Committee on Foreign Affairs, Elmar Brok: “I have my doubts whether it is possible to debate

the famous part III on policies in a satisfactory manner, simply due to the issue of timing. If we

get this text on 30 May, then there must be a possibility of discussing and amending it, as we did

with the other parts […]313”. As Tsebelis and Proksch thus argue, the lack of time “shifted the

balance of power towards the Praesidium314”, which accordingly restricts the deliberative nature

of the Convention, as the participants are not substantively equal.

As previously mentioned, the Convention has a ‘form of legitimacy’ in which representation of

the people is of vital importance. In light of this, it is worth noting that only four of the twelve

members of the Presidium were representatives of directly accountable institutions, and

310 d’Estaing, Valéry (2003b).311 Tsebelis, George & Sven-Pliver Proksch (2007).312 Ibid.313 Brok, Elmar (MEP), 15 May 2003. Plenary Session of the Convention.314 Tsebelis, George & Sven-Pliver Proksch (2007), p. 171ff.

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additionally only four different political groups had representation in the Presidium.315 The above

aspects may all be considered as contributing to a lack of transparency, and thus ultimately

contributing to a lowering of the level of democratic legitimacy.

6.1.3 Representation

The Convention was set up on the basis of a wide range of representatives from different

institutions, nationalities, as well as different interests and views on the EU. Besides the

representation of the Presidency, observers, and deputies, the distribution of the Convention’s

membership resulted in 2 representatives of the Commission, 16 of the European Parliament, 15

representatives of the Heads of State or Government of the Member States, 30 of the national

parliaments, 13 of the Governments of the accession candidate countries, and 26 of the National

Parliaments of the accession candidate countries.316 In the selection procedures the European

Council nominated the central bodies and institutions (parliaments, governments, the European

Parliament, and the Commission) hereby enabling them to choose their own way of selecting the

members. Closa points out that though this way of selecting Convention members varied

significantly in level of transparency, the outcome of a combination of both political and

diplomatic actors contributed to avoid a composition entirely oriented towards negotiations, and

thus initially pushed it towards a deliberative character.317 Also, the presence of representatives

from national opposition parties may be seen as an element that strengthen the representation,

primarily as it must be recognised to heighten the level of input-legitimacy, as well as it

contributed in establishing that the Convention was focused on a European agenda, and not

around predetermined national interests.318

In a historical aspect of constitution-making the task for the Convention representatives may be

linked to the 1787 US Federal Convention in Philadelphia (and the Assemblée Constituante of 315 Schönlau, Justus (2004b): ‘The Membership of the Convention: Representation and Legitimacy’, in Constitution Making and Democratic Legitimacy in the EU, London: Palgrave-MacMillan, p. 8. 316 European Convention website (Composition).317 Closa, Carlos (2004), p. 189.318 Ibid.

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1789 to 1791 in France) - also referred to by d’Estaing on several occasions. 319 As the European

Convention, the Convention in Philadelphia was too a political process consisting of political

actors with the overall aim of solving political problems in issues of great importance for the

distribution of power between states. In comparison, the selection procedure in both pre-historic

cases may in principle be compared to that of the European Convention: Whereas the French

Assemblée representatives were selected by the estates, the members of the Philadelphia

Convention were selected by the single state legislatures.320 Furthermore, an obvious parallel may

be drawn in the way the Convention representatives in all cases had to work towards consensus-

building, and as noted by Bernal, “some of the consensuses attained were fragile compromises at

best […] [and] criticisms of the democratic and representative character of the Philadelphia

Convention find their echoes in similar critiques levelled against the European Convention

today321”.

The composition of the (European) Convention may be explained on the basis of territorial

representation consisting, on the one hand, of the member states, and, on the other hand, the EU.

Closa argues that this way of representation implies that the EU’s ‘dual source of legitimacy’ is

recognised322, and thus also to some extent a recognition of the previously mentioned argument

by Kelstrup; to set up political authorities that goes beyond the nation state, as a possible solution

to what he refers to as the ‘democratic dilemma’. In this territorial representation, the member

states are represented by both the executive and the legislative branch. This is the outcome of a

compromise reached during the former Convention between the member states that wished for at

purely parliamentary composition (e.g. France), and those who wished for a combination of the

above and the national governments (e.g. the UK and Germany).323 It is worth mentioning though

that the representatives of the states outweighed the representatives of the European institutions

by four to one.324 The representation of states was built on the idea of equality both in terms of

319 Ibid., p. 202.320 Reh Christine and Bruno Scholl (2005).321 Bernal, Angelica (2004): ‘Lessons from Philadelphia: The Convention on the Future of Europe in Historical Perspective’, paper presented at the annual meeting of The Midwest Political Science Association, Palmer House Hilton, Chicago: Illinois.322 Closa, Carlos (2004), p. 189.323 Ibid.324 Ibid., p. 191.

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size and population, as well as members and potential members.325 From the Convention’s

composition it becomes clear that the composition favours the creation of ideological affiliation

despite the fact that this was not initially an objective in either of the selection procedures.326

Closa points out that the ideological representation contributed to a wide supply of inputs327, as

e.g. both representatives of the state-centric and the Europe-centric perception of liberal

democracy were present.

The mandate provided by the Laeken declaration had settled that the Convention members could

only be replaced by their substitutes if they themselves were not present.328 D’Estaing initially

chose to interpret this in a rather strict way thus limiting the role of the substitutes by positioning

that they could only participate in meetings if the absence of the full member had been

announced to the Secretariat two days in advance. But due to internal pressure from the members

of the Convention – especially from the members of the delegation from the European Parliament

– it was adopted that the substitutes were allowed to attend all meetings, and could speak in cases

where the respective member was absent for a full day.329 As stated in the Laeken Declaration, the

substitutes were selected on the same grounds as the full members of the Convention, which in

many cases meant that members from national Parliaments, for example, had two representatives

from the main forces of government and opposition respectively, and thus the substitutes often

came to cover other parties (e.g. the case of Austria, Belgium or Finland).330 This aspect thus

contributed to increasing the number of different and broader models of representations331, which

is in accordance with the criteria of liberal democracy.

As is obvious from the above, the question of representation was of central importance for the

European Council when setting up the Convention. This is also the conclusion reached by Closa,

who states that “the procedure followed to select the members of the Convention; the 325 Ibid. p. 190ff.326 Ibid., p. 194.327 Ibid.328 Laeken Declaration of the Future of the European Union.329 Schönlau, Justus (2004c): ‘The Membership of the Convention: Issues of Representation and Legitimacy’, Paper for the CIDEL Workshop, ‘Constitution Making and Democratic Legitimacy in the EU’ London, 12 - 13 November 2004, p. 4.330 Ibid.331 Ibid.

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representation of two territorial levels; the equality of representation between states […]; and the

reflection of a broad ideological spectrum make the Convention a body with a strong

representative basis – to an extent that might justify claims of legitimacy for constitutional

outcomes332”.

6.1.4 First stage: Listening

D’Estaing had decided on the structure and working process i.e. dividing the work into three

different stages before the Convention’s actual work began.333 A listening stage seems to be a

good stating-point vis-à-vis a process of democratic deliberation, as it corresponds with the

criteria of ideal deliberation, e.g. as it is considered to contribute to a restriction of any preset or

previous norms or requirements – a point also noted in d’Estaing’s introductory speech to the

Convention, in which he explained the first stage as follows:

“The present situation of Europe prompts us to look back, to return to our sources and to ask ourselves what is the

ultimate goal of the European project. The first stage of our work will thus be one of open, attentive listening. […]

We must embark on our task without preconceived ideas, and form our vision of the new Europe by listening

constantly and closely to all our partners, governors and governees, economic and social partners, representatives

of regional authorities – already present here – members of associations and civil society represented in the forum,

but also those who have no other identity than that they form part of Europe.334”

Mauer’s argument that the EU throughout the past decades has made an effort to set up

representative governance structures, in which institutions try to accumulate a public need for

participation335, seems to explain the purpose of the first listening stage, at least according to

d’Estaing’s choice of words. Further more, it may be mentioned that the Convention met in

public, and publicised all documents in an attempt to improve the level of transparency in the

process.

332 Closa, Carlos (2004), p.188.333 Norman, Peter (2003), p. 47.334 d’Estaing, Valéry G. (2002).335 Maurer, Andreas (2003), p.2.

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Contrary to d’Estaing’s initial outline of the process of the so called listening stage, Mr. Bruton

seems to have a slightly different and more negative perspective of how this stage actually took it

self out, as he describes it as “a ‘listening’ phase, during which rather aimless general debate took

place in the Plenary, along with consultations with what was described as “civil society” –

effectively the pressure groups who could afford offices in Brussels336”. To some extent, this may

leave us with the impression that the participants in this stage were not substantively equal, as it

seems as if both power and resources to a certain extent did contribute to the individual’s chances

of contributing to the process of deliberation.

In relation to the criteria of ideal democratic deliberation, i.e. participants are free, deliberation is

reasoned, participants are both formally and substantively equal, and that the object of an ideal

process of deliberation is to reach consensus as a result of a rationale-based debate, it is noticed

that the participants from a starting point could not be characterised as equal. An example of this

may be the representatives form the European Parliament – the sixteen MEPs. One of the

advantages for this group of representatives lies in the fact that the Convention was located in

Brussels, where the MEPs have substantial networks and resources. Another advantage, as

pointed out by both Mauer and Hoffman, was that the MEPs were used to working as a collective

body in close cooperation with the Commission on many issues against the council.337 In terms of

possible alliances the MEPs thus have an advantage in comparison to many of the other

representatives, as both national parliamentarians and government representatives may have

considered it more difficult to form or join alliances with the other members, whom they have

most likely never met before. According to Hoffman, other aspects that may be seen as

advantages for the MEPs was the motivation of the European Parliament to have a blue print on

institutional matters, as it has strived for this influence for decades, as well as the low margin of

internal division within this delegation.338

Additionally, it may be mentioned that the MEPs are considered to have an advantage, as they

have a considerable knowledge of the EU system, concepts, and procedures. This argument is

336 Bruton, John (2004), p. 3.337 Maurer, Andreas (2003), p. 9-10.338 Hoffmann, Lars (2002), p. 10.

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supported by Norman, who points out that during the first stage of the conventional process the

MEPs avoided any conflicts by utilizing this knowledge339, which may thus be considered a

specific example of the claim that the participants in the democratic deliberative process did not

have the same starting point at this stage primarily due to different institutional origins. A British

member of the Convention’s Presidium and Chair of the Working Group on national parliaments,

Mrs. Gisela Stuart, observed the substantial difference in knowledge between the MEPs and

national parliamentarians: “MPs (Members of Parliament) are the face but not the power: MEPs

are not recognised, but have the power. Combining this is important.340”

Concluding on the first stage of listening, one of the primary objectives was to form a basis for

dividing the work of the Convention into different groups according to topics. A process that also

took place behind closed doors.341 As the structuring of the working-groups could not be

characterised as a transparent process, it must be considered as an aspects that contribute in

lowering the level of democratic legitimacy.342 In general, it seems as if the agenda-setting

process and the structuring of the Convention’s work, as dictated by the Presidium and d’Estaing

in particular, suffer from a clear lack of transparency. This argument is further strengthened by

the fact that even members of the Convention’s Presidium have emphasized that the way in

which the Presidium’s decisions were taken was hard to see through. Mrs. Stuart e.g. points out

that “sometimes wordings would be agreed in the Presidium, but these were not always translated

into the official text circulated in the Convention343”. Additionally, she notes that in the Presidium

“there was an unspoken assumption that the acquis communautaire – i.e. everything that had been

given to the Union as a power of competence – was untouchable. Any representative who took

issue with the fundamental goal of deeper integration was sidelined344”.

In terms of the environment for a successful process of democratic deliberation Göler points out

that the first stage shaped an atmosphere in which the overall success of the Convention became 339 Norman, Peter (2003), p. 52.340 Project Futurum, The Role of National Parliaments in the Future EU, internet source: http://www.futurum.gov.pl/futurum.nsf/0/04B34438C5B9CC09C1256C92004C8F4A.341 EUROPA (2002): The internet portal to the EU. ’Konventet om Den Europæiske Unions Fremtid’ (2002).342 Norman, Peter (2003), p. 60.343 Stuart, Gisela (2003), p. 22344 Ibid., p. 16.

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more important than individual agendas.345 In Göler’s view this underlines the importance of the

listening stage, despite the fact that it has been criticised by many convention members (e.g. Mr.

Bruton as previously mentioned) for being aimless and time-consuming.346 Accordingly Göler

argues that “each convention member had ‘invested’ so much time in the work of the Convention

that a breakdown of deliberation would be perceived as a significant personal and political

failure. Thus, most of the members […] were willing to rethink their interests and preferences

and enter into an open argumentative discourse, especially within the working groups347”. This

aspect may be linked to both the Habermasian concept of an ‘ideal-speech-situation’, which

Habermas argues is a central element of the ‘actor specific predispositions’ of deliberation348, or

to Risse’s argument of empathy, i.e. the degree to which the Convention members were able to

understand each others’ needs and ways of thinking.349

The fact that the Convention, and in particular the Presidium and d’Estaing, interpreted its own

rules and procedures may be criticised according to Kelstrup’s model for legitimacy. The model

establishes that a political system, and accordingly its actors, is submitted to legality - i.e. live up

to the specific rules applying - in order to be legitimate. As previously mentioned this may be

considered a basic demand for a political system that strives to take democratic legitimate

decisions.350 The critical point vis-à-vis the Convention is that it was the Convention itself

internally that executed and determined whether or not it lived up to the rules. Though the

different institutions and individual actors participating in the process are believed to check and

balance each other there was not, according to the Laeken declaration, any institution or actor

participating with this specific objective at hand. The first stage of listening took place from

spring to summer 2002, after which the Convention was split up into 11 different working

groups.

345 Göler, Daniel (2004): ‘Comment on “Time Was of the Essence: Timing and Framing Europe’s Constitutional Convention” by Justus Schönlau’, in Deliberative Constitutional Politics in the EU, (ed). Carlos Closa & John Erik Fossum, Centre for European Studies, University of Oslo, Oslo: ARENA, p. 276.346 Ibid.347 Ibid. 348 Habermas, Jürgen (1992), p. 393.349 Risse, Thomas (2000): ’Let’s argue. Communicative Action in World Politics’, in International Organization 54, No. 1. pp. 1-40, p. 10.350 Kelstrup, Morten (2001).

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6.1.5 Second stage: Deliberation in working groups

On the basis of the conclusions drawn from the listening stage, the objective of the working

groups was to deal with and recommend specific revisions of the different parts of the draft

constitution presented by the Presidium. The specific subjects at hand were the ones, which,

primarily due a character of central national interest, were deemed difficult to go into in depth at

plenary sessions such as subsidiarity, complementary competencies, economic governance and

freedom, security and justice. The members of each individual group would meet and discuss

questions related to the issue of the group on which they would produce a detailed opinion.

The small size of the working groups constituted an optimal environment for deliberation, as it

allowed the actors to involve themselves in profound discourses in which “assertions are

introduced and critically assessed through the orderly exchange of information and reasons

between parties351”, as expressed by Habermas. The working groups were open to the eyes of the

public, and have been characterised as a very positive element of the Convention: Norman e.g.

states that they “sharply increased the Convention’s momentum352”, and Jarlebring states that the

working groups “seem to have been remarkably fruitful353”, adding that “virtually all available

sources indicate that there has been a good and constructive debate in the Convention354”. Mr.

Bruton, who chaired the working group on freedom, security, and justice, has also outlined the

success of the second stage: “These groups were very worthwhile. They built genuine consensus.

They were small enough to allow interactive dialogue while their membership was self-selected

but this did not really make their conclusions unrepresentative of the general will.355” Or as noted

by Schönlau “the free choice of working group membership meant that they (the members) acted

as a selection mechanism on the basis of individual expertise and interest. The interaction within

the working group was thus of qualitatively higher and less politicised level, which fostered the

exchange of substantive arguments rather than bargaining356”. According to Norman though a 351 Habermas, Jürgen (1992).352 Norman, Peter (2003), p. 128.353 Jarlebring, Johannes (2003): ‘Taking stock of the European Convention: What added value does the Convention bring to the process of treaty revision? German Law Journal No. 8 - European & International Law, pp. 790-791.354 Ibid. 355 Bruton, John (2004), p. 3.356 NOTE

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negative aspect of the free choice of working group was that it created a poor and imbalanced

representation:

“Amato’s (Giuliano Amato, Vice-President of the European Convention) working group on simplification contained

only one EU government representative (Ireland’s Dick Roche) from a membership of 38 despite it dealing with

important issues of legislation and procedures and suggestion codecision, with qualified majority voting in the

Council of Ministers, should become the normal procedure for the Union.357”

During this stage different constitutional drafts and outlines were put forward from

representatives both inside and outside of the Convention including the Commission.358 Despite

the fact that these drafts were not officially part of the work of the Convention they contributed to

the discussions and some were even complimented by d’Estaing during plenary session. This was

e.g. the case for the outline by the British Vice-Chairman of the European Parliamentary

delegation, Mr. Andrew Duff, whose work entitled ‘A model constitution for a federal Union of

Europe’, was referred to as “a very remarkable contribution359” by d’Estaing, who also

encouraged all members of the Convention to read it.

According to Schönlau, the ambitious activity by some members of the Convention, as well as a

level of external contributions e.g. from think tanks and party formations at the national level,

generated an increased interest from the media.360 The spotlight, as well as the more concrete and

dynamic character of the Convention process at this stage, initiated that several member states

governments upgraded their interest and representation in the Convention by putting in their

foreign ministers as government representatives.361 This act may be seen as an attempt from the

member states to try to influence the course of the Convention by increasing the weight of the

government representatives. According to Göler, this strategic move was intentionally designed

and explained by the national governments, as a mean “to strengthen their own national position

in the Convention362”. Accordingly, the foreign ministers became ‘mouthpieces’ for their

357 Norman, Peter (2003), p. 129.358 Ibid.359 Norman, Peter (2003),p. 65.360 Schönlau, Justus (2004a), p. 257.361 Ibid.362 Göler, Daniel (2004), p. 280.

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governments instead of participants of the deliberative process. Göler stresses that the foreign

ministers did not shape or become part of the deliberative atmosphere and spirit created during

the listening stage, and accordingly this aspect restricted the Convention’s ability to carry out

deliberative decision-making. As expressed by a Convention member: “Many of them [i.e. the

foreign ministers who joined the Convention later] just don’t know how the Convention works.

They don’t participate in the actual discourse and they think they could inform the convention in

five minutes about their point of view. Thereby they often do not try to convince the convention

by arguments but by their authority as representatives of national governments. This doesn’t

work!363”

Throughout the working process the members of the Convention enjoyed the technical support of

the Secretariat, which assisted them in all aspects of the work during the Convention e.g. by

preparing documents for discussion and reflection.364 Considering the power of the Secretariat

both to draft articles as well as not to draft articles, as a mean to keep certain options closed, the

composition of the Convention’s Secretariat may be criticised according to the criteria of

democratic legitimacy, e.g. as it was d’Estaing who appointed the Secretary-General, Sir John

Kerr, former head of the British Diplomatic Service, and as d’Estaing received the Secretariat’s

drafts before the rest of the Presidium, which positioned him to change and form them before

presenting them to the Presidium.365 According to Kerr, the main objective of the Secretariat was

to provide "logistical support for Giscard, his deputies and the Praesidium, and drawing up

documents."366 Tsebelis refers to d’Estaing’s choice of Kerr as a strategic move:

“On the one hand, Giscard avoided a dominant role in the secretariat of the Council, thus giving him more direct

control over the staff. On the other hand, Giscard was fully aware that the outcome of the Convention would have to

be accepted by the subsequent IGC, and by Eurosceptic countries in particular. From this perspective, Kerr, an

experienced diplomat who had represented the UK at a previous IGC, can be considered a strategic choice, because

363 Ibid.364 The European Convention website (Secretariat).365 Deloche-Gaudez, Florence (2004): ‘Le Secretariat de la Convention européenne: un acteur influent’, Politique Européenne, No. 3/2004, p. 53.366 Norman, Peter (2003), p. 37.

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he was able to provide Giscard with background knowledge about the functioning of IGCs and on British positions

in particular.367”

D’Estaing and Kerr appointed the entire staff of the Secretariat, which e.g. consisted of members

of the General Secretariat of the Council and experts from the European Commission and

European Parliament Secretariat.368 In this way d’Estaing managed to build up a group that had a

broad representation and primarily reflected his own preferences of a European Union, as pointed

out by Tsebelis.369 The power of the Secretariat is also outlined by Norman, who states that by

early 2003 “Giscard and the Convention Secretariat had established a virtual monopoly over the

power of proposal370”. Norman also emphasises the Secretariat’s role in the setting of the agenda

by “holding back documents, never letting opposition groups consolidate, and creating a climate

in which the most enthusiastic partisan among the [members of the Convention] would eventually

settle for a compromise371”.

It was the members of the Presidium who chaired the working groups and, as in the plenary

sessions, the Presidium members who controlled the agenda. Accordingly, they also reported the

outcome of the working groups to the Presidium, and thus may be considered to have had an

influence on the information that were processed by the Presidium and the Secretariat, and

ultimately formulated into the drafts that formed the basis for the final debate in the Convention’s

last stage. The above-mentioned aspects of the Secretariat and the Presidium may be considered

to restrict the Convention’s democratic legitimacy.

As the working groups finished the work, and put forward their recommendations to the

Convention, the Presidium started the process of drafting treaty articles, which were to form the

basis of the Convention’s last stage.

6.1.6 Third stage: Drafting

367 Tsebelis, George (2005), p. 16. 368 Norman, Peter (2003), p. 36ff. 369 Tsebelis, George (2005), p. 17.370 Norman, Peter (2003), p. 337ff.371 Ibid., p. 337ff.

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The Presidium and the Secretariat presented the constitutional draft to the members of the

Convention, which launched the final phase of deliberation. Further more, the last stage was used

to deal with the working group issues, which had not reached a consensus, and additionally the

stage was to deal with numerous sensible institutional and political issues such as the weighting

of votes, foreign policy, and the distribution of executive power. In general the substantial

workload, in addition to the strict time limit, seems to characterise the drafting stage. Contrary to

the rather ‘relaxed’ atmosphere in the previous stages of the Convention the third and final stage

accordingly seems to have been fare more intense, as here described by Bruton:

“For much of the time the atmosphere within the Convention was relaxed and discursive, but, towards the end, there

was a rush of pressure to influence the final result, especially from the European Parliament component on one side,

and from groups within the member Government’s component on the other. A sudden awakening of interest, when

the chips are down, is apparently a characteristic of international negotiations of this kind.372”

Bruton thus emphasises the continuing recurrent aspect of state-centric vs. EU-centric perception

of the EU, which seems to have restricted the deliberative environment, as it moved away the

focus of rational argumentation on to power struggles between, on the one hand, member states

opposing a deepening of the EU, and, on the other hand, institutions keen on cleaning up the

institutional leftovers from Nice and modify the EU-system to fit an enlarged EU. Bruton’s

description of the process of the third stage also indicates that the issue of time once again played

a role, as it seemed to limit the possibilities for proper deliberation, and hence leaves the

impression that the environment for deliberation was reduced the further working process

progressed. The fact that the Convention had a clear wish to continue its work until the end of

July 2003 instead of mid-June, which was eventually rejected by the European Council,

emphasises the strict time limit of the Convention.

Another constraining element for the member’s ability to live up to the criteria of democratic

deliberation was the fact that d’Estaing, at this stage, did not hesitate to close the list of speakers,

372 Bruton, John (2004), p. 4.

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despite a need and will for further deliberation.373 Consequently, everyone with deliberative

capacities did not have an equal standing during the process, which does not apply with the

criteria of ideal deliberation. Bruton accordingly depicts the above-mentioned aspect as follows,

in which he also underlines the profitable deliberative environment created by the working

groups in the previous stage:

“The resultant highly charged character of the debate on institutions led to the focus being almost exclusively on

power struggles between institutions and states of different sizes, rather than on ideas that might have radically

enhanced the democratic legitimacy of the Union with citizens at large. In the absence of working groups, there were

no fora within which dialogue might have been opened up to novel or radical ideas.374”

Norman points out that d’Estaing’s external bilateral negotiations with European Heads of State

and Government increased during this last stage375, which may indicate an increase in the

pressure from external actors. The external pressure in this stage is also noted by Bruton, who, in

his reflections of the character of the final stage, describes it as “unnecessarily bad tempered

because it’s commencement had been left too late, its agenda had been unduly constrained by

declarations by Governments outside the Convention itself […]376”. Bruton also notes that the

level of confidentiality of the Presidium seemed to decrease during the last working stage377,

which may indicate an increased external pressure e.g. from European Heads of State and

Government.

Another element of pressure during this crucial phase of drafting was the EU’s member states’

veto powers in the following IGC. The members of the Convention had to acknowledge the fact

that the draft had to take into consideration the level of institutional and political ambition of the

many member states. Magnette points out that the members of the Convention were fully aware

373 Norman, Peter (2003), pp. 181 - 305.374 Bruton, John (2004), p. 4.375 Norman, Peter (2003), p. 7. 376 Bruton, John (2004), 3ff. 377 Ibid.

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of this aspect, as to why “deliberation took place under the shadow of the veto378”. In this sense

the participants of the Convention were not entirely free to deliberate, as well as it may be argued

that there existed a constrain from a preset of norms, which may be criticised according to the

standards of ideal deliberation. A clear example of this is the answer of the representative of the

British government, Peter Hain, to the President of the Commission, Romano Prodi, on

December 2002:

“There is no prospect at all of the common foreign and security policy being communitarised, as proposed by the

Commission. There is no prospect at all of that except in those areas where it already exists. […] Frankly, there is

no prospect of the Commission agenda being accepted by the British Government or, from what they have said, by

the Governments of France, Spain, Italy, Sweden and Ireland, at least not in this respect.379”

As is obvious from the above example, members of the Convention some times ignored a central

aspect of deliberation i.e. to stay impartial and open to rational argumentation thus respecting the

force of the better argument. Magnette though argues that members of the Convention mostly

“played the game of honest deliberation: they used warnings rather than threats and disguised

their interests as impartial views seeking a compromise380”. The drafting stage was concluded at

the Convention’s last plenary session on June 13, 2003. Here d’Estaing did not use the exact

word ‘consensus’, but later on referred to it as a draft constitution that enjoyed “virtually

unanimous381” support.

6.1.7 Conclusion

Despite a very open document of Laeken the President of the European Convention, Giscard

d'Estaing, outlined a very ambitious objective for the Convention to achieve a consensus on the

draft constitution. The Laeken declaration clearly positioned that the Convention was a

preparatory body for the following IGC, and accordingly only provided a starting point for

discussion between the EU member states. To ensure that the Convention did not alter the

fundamental purpose of the member states they attached several safety features to the Convention 378 Magnette, Paul (2004), p. 217.379 Ibid., p. 216.380 Ibid.381 Norman, Peter (2003), p. 337.

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– the most central being d’Estaing, who enjoyed vital influence e.g. as he pushed forward the idea

not to have any votings, and determined when consensus was reached. The fact that d’Estaing

determined the significance of consensus seems to have had a negative influence on the process

of democratic deliberation, primarily as d’Estaing’s way of determining the consensus may be

considered to include constrains from a presetting of norms. This central argument has been

outlined by member of the Presidium, and former Irish Prime Minister, John Bruton, as well as

by one of the two Vice-Presidents of the Convention, Giuliano Amato, who have stated that

d’Estaing e.g. could determine a consensus even in times when it would not be there.

The Convention met in public and publicised all documents in an attempt to improve the level of

transparency in the process. However, the fact that d’Estaing in particular,r but also the

Convention Presidium and Secretariat, enjoyed a wide range of agenda-setting powers

contributed in a general lowing of the level of transparency, as emphasized by members of the

Presidium, as well as the setting of the deliberative environment. The powers e.g. enabled

d’Estaing to limit the number of proposed amendments and to favour some proposals over others,

as well as the power of strategic timing i.e. control of the timing of the individual policy issue

and proposals, which initially meant that d’Estaing could hold back significant proposals until

time was running out, hereby restricting the possibility of putting forward amendments. These

powers do not go well with the criteria of ideal deliberation, which stipulates that argumentation,

and not power, should form the basis for persuading others, and that participants of ideal

deliberation are both formally and substantively equal.

In terms of accountability it has been noted that the actors who nominated d’Estaing had a vital

interest in the work of Convention, which accordingly may be criticized vis-à-vis the criteria set

up by liberal democracy. Consequently, d’Estaing was accountable to the European Heads of

State and Government. This in mind d’Estaing was occasionally accused of following the wishes

of the European Heads of State and Government, who had appointed him.382 However, Magnette

argues that most members of the Convention themselves recognized that they had not been

382 Magnette, Paul (2004, p. 215.

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subject to any external influence, and thus been able to deliberate as initially intended.383 And as

Magnette concludes, in the end “those who frequently criticized the Presidium, and the indirect

pressures of the government, finally recognised that the process had not been vitiated by these

pressures384”. Thus despite the fact that external actors tried to influence the Convention outcome

it did not affect the members’ abilities to deliberate.

The Convention’s listening stage seems to have formed a good stating-point vis-à-vis a process of

democratic deliberation, as it restricts any preset or previous norms or requirements, an element

emphasised in d’Estaing’s introductory speech to the Convention. However, Bruton’s views of

the execution of this stage leaves us with the impression that the participants of the Convention

were not substantively equal, as it seems as if both power and resources to a certain extent did

contribute to the individual’s chances of contributing to the process of deliberation.

In general, the second stage of analysing seems to have built up a good environment for the

deliberation that took place during this period. In most cases the working groups build genuine

consensus and had a fitting size for deliberation specifically considering the Convention’s time

constrain, which seems to have been an issue that had a general negative influence for the

Convention’s ability to live up to the criteria of democratic deliberation.

In general the substantial workload and strict time constrain in the third stage of drafting seem to

characterise the stage. The process of deliberation did not seem to have had particular good

conditions at this phase, e.g. as the continuing recurrent aspect of state-centric vs. EU-centric

perception of the EU moved away the focus of rational argumentation on to power struggles

between member states and EU institutions. Additionally, d’Estaing did not hesitate to close the

list of speakers despite a need and will for further deliberation, which meant that everyone with

deliberative capacities did not have an equal standing during the process, which does not apply

with the criteria of ideal deliberation.

383 Ibid.384 Ibid.

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Another element of pressure during this crucial phase of drafting was the EU’s member states’

power of veto in the following IGC. The members of the Convention had to acknowledge the fact

that the draft had to take into consideration the level of institutional and political ambition of the

many member states. Accordingly, Magnette has described the deliberative setting in the

Convention as follows:

“The rules of the Convention, defined by the governments and interpreted by the members, remained remote from the

ideal-type of a deliberate constitutional forum. The Convention was not a decisional body, and the members knew

they had to anticipate the reactions of the governments that would renegotiate the treaty during the IGC. The

members were not fully independent either, as they had not been elected and had to account to those who had

nominated them; their capacity to adapt their behaviour according to the arguments made by their partners was

therefore limited.385”

In conclusion the Convention to some extent managed to establish a deliberative environment, in

which members in particular took part in the deliberative process. Though far from ideal, the

process of democratic deliberation, and the broad representation of the Convention are

consequently considered to have brought democratic legitimacy into the drafting despite external

pressure, time constrain, and in particular vital agenda-setting powers of d’Estaing, the Presidium

and the Secretariat.

6.2 Analysis of the IGC-model

The intention of this section is to discuss and analyse the model behind the IGC primarily on the

basis of the theory of LI but also democratic deliberation. The analysis’ empirical focus is based

on the 1996-1997 IGC, which resulted in the Amsterdam Treaty, and the 2000 IGC, which

resulted in the Nice Treaty.386 This choice of case-studies is primarily based on the fact that these

IGCs in particular illustrated the difficulties encountered by the IGC-model vis-à-vis their

political and institutional ‘leftovers’, which have been characterised by Hoffmann as “issues of

385 Ibid., p. 214.386 Sverdrup, Ulf (2001): An Institutional Perspective on Treaty Reform: Contextualising the Amsterdam and Nice Treaties, Presented at the 4th Pan-European conference of the ECPR Standing Group on International Relations, 8-10 September 2001, University of Kent at Canterbury, U.K. Panel 10-1:'Treaty Reform beyond Bargaining and Diplomacy, ARENA Working paper 01/27, p. 1.

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great importance that could not be resolved.”387 The objective is to analyse specific aspects of the

IGC-model, which are considered relevant in a comparison to the Convention-model, and thus

ultimately elements that contribute in answering this paper’s research question i.e. whether the

Convention brought democratic legitimacy into the process behind drafting the Constitution for

Europe.

6.2.1 The mandate of the IGC

According to Closa and Fossum, it is the Member States that control the IGC process388. In

Denmark for instance, the Government is required to obtain sufficient support from the

parliament, which accordingly have the power to issue a negotiation-mandate prior to EU

negotiations.389 Closa and Fossum describe this process: “A common feature of all the instances

of treaty-making within the IGC-model is that executive figures announce the need for treaty

change. Politicians, experts and technocrats are the ones who initiate the process in a clear top-

down manner390”. Panke however notes that “there is variation within IGCs [as] ministerial

mandates are more open than those on lower vertical levels391”. In sum though, the IGC-model is

characterized by a top-down indicator that something needs to be done.392

The IGC-model thus contains a substantial degree of intergovernmental significance. This aspect

corresponds with the argument of LI that it is the individual governments’ motivation to obtain a

specific goal, which creates the foundation for its international actions. The IGC-mandate

provided by the member states ultimately demonstrate national influence on the EU’s

development, and hence support the claim of LI that member states are the driving force behind

EU-integration. Additionally, above mentioned emphasizes the state-centric aspect of treaty

‘handling’ within the EU, as the IGC-mandates are developed from the indirect support, which

387 Hoffmann, Lars (2002), p. 1.388 Closa, Carlos & John Erik Fossum (eds.), (2004b), p. 122.389 Laursen, Finn (2005): ‘Denmark and the Constitutional Treaty: A Difficult Two-Level Game’, paper prepared for delivery at EUSA Ninth Biennial International Conference, March 31 – April 2, 2005, Austin, Texas, p. 2.390 Closa, Carlos & John Erik Fossum (eds.), (2004b), p. 122.391 Diana (2006): ‘More Arguing Than Bargaining? The Institutional Designs of the European Convention and Intergovernmental Conferences Compared’, Journal of European Integration, Vol. 28, No. 4, Sept. 2006, pp. 357-379, p. 369.392 Closa, Carlos & John Erik Fossum (eds.), (2004b), p. 124.

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the Member State representatives carry though the national elections on behalf of their

populations.

In reference to the above it is relevant to elaborate on the ‘direction’ behind the motivation for the

IGC-mandate. In this regard, it appears logic to support Panke’s perception that the rather

restricted mandates behind an IGC promote bargaining as the core form of interaction rather than

democratic deliberation.393 The reason is that the restricted mandates are expected to provide

narrow competences for navigating, which makes bargaining more preferable, in the sense that it

makes it easier for the individual states to show that a positive result has been accomplished: The

concept is characterised by the thought that even though you might not win everything through

bargaining, you will win something. In comparison, when you reach agreement based on rational

argumentation, you may have lost everything you initially hoped to accomplish.

Strongly restricted mandates facilitate effective bargaining, as these increase the plausibility that

actors truly represent their national positions. This makes it reasonable to assume that the

restricted mandates provided within the IGCs for significant parts encourage a decision-making

structure, in which rational argumentation alone do not carry much weight. Therefore, despite the

fact that the potential differences between ministerial mandates and ‘lower ranging’ mandates,

the IGC mandates as a whole are still considered as manly indulging bargaining. Overall, this

appears much in line with Morawcsik’s perception of the IGCs having an elite-based bargaining

approach to treaty-making/revision.394

To sum up, the ways in which the IGC-mandates are established seem to correspond with the LI

notion that it is the individual governments’ motivation to obtain a specific goal, which creates

the foundation for its EU actions. Moreover, ministerial mandates are more open than those on

lower vertical levels, but especially on lower levels the mandates generally seem restricted during

the IGC - an aspect, which on the other hand appear to facilitate effective bargaining.  

393 Panke, Diana (2006), p. 369.394 Moravcsik (1991), (1993), (1998).

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6.2.2 Actors and representation

Whereas the Convention consisted of as mush as 105 members, the ICGs consist ‘only’ of the

member states’ Heads of State and Government and additional government representatives, who

together are responsible for the negotiations. Thus within the IGC-model, EU citizens are

represented ‘only’ by their governments through Heads of States or Governments, as well as

through national ministers.

During the IGCs395 the government representatives meet on a regular basis within a given period

of time in order to negotiate on the basis of national standpoints or instructions. For most parts

these instructions are carefully prepared internally within the individual government.396 Hoffmann

notes that whilst most of the IGC work is taken on by national ministers and government

representatives, the most challenging and controversial political issues are left to the final summit

of Heads of State and Government.397 This is an observation, which seems to be in line with the

LI perception that the IGCs are basically elite-based negotiation-spheres, where it is the core EU-

elite, which is to have the final say on the most demanding issues. Should this be the case, LI is

additionally relevant through its perception of supranational institutions having a very restricted

influence on the final outcome. Thus if the demanding issues are left to the core of the national

elites, it appears reliable that institutional influence at EU-level is limited. Otherwise it should be

expected that it was then bound upon these institutions - i.e. the European Parliament and the

Commission - to facilitate the necessary compromises and thereby also promote themselves, and

thus illustrate a direct institutional impact on the IGC-model.

As mentioned, the IGCs consist ‘only’ of the member states’ Heads of State and Government, as

to why a significant part of the work is carried out by officials. According to Fossum and

Menéndez, these officials are “not strong publics as their deliberations are conducted in secret.

They are closed to attendance, in that they contain a specified number of institutional participants

395 Previous IGCs have been prepared by different kinds of ad hoc bodies. For example, the Reflection Group prior to the 1996 IGC and the group of Wise men prior to the Nice IGC. (Jarlebring (2003:785)).396 Jarlebring, Johannes (2003), p. 787.397 Hoffmann, Lars (2002), p. 2.

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and do not include representatives from civil society398”. Fossum and Menéndez continue by

stating that within IGCs “the initial deliberative phase is greatly marked by expert-based

deliberation [which is] conducted by permanent representatives and ‘system insiders’399”.

Vis-à-vis democratic legitimacy, the above may be seen as examples of some of the democratic

shortcomings that arise when carrying out treaty work through IGCs, as the entities within them

for large parts are considered as closed and secretive bodies.400 Further more, to some extent it

may also illustrate that the representation within an IGC may appear inadequate in fulfilling a

satisfactory level of democratic legitimacy. Following this line of though, the aspect of

democratic legitimacy from the government officials’ role within the IGC process has to be

questioned. Furthermore, the level of representation within the IGC-model seems insufficient in

the sense that the negotiations and discussions carried out in the process appear to be anything

but in line with the perception of democratic deliberation, mainly for two reasons: First of all,

there are no indications that much debate nor discussion is carried out in the first place, and

certainly not in the attempt to having the better argument ‘win’. Secondly, a substantial degree of

the deliberation that may be obtained through the IGC-model will never be known to the public,

as the structures within the respective model call for absolute discretion. Moreover, the above

illustrated ‘level’ or ‘degree’ of representation within the IGC model demonstrate the very

intergovernmental structures within the shape of the IGCs, in the sense that it is in fact reasonable

to speak of narrow intergovernmental representation, which agendas and acts rest on the criteria

set out by the individual member states. Hence, in reference to the representation the IGC-model

appears to fall short both in regard to democratic legitimacy and democratic deliberation.

However, on the other hand, these aspects are not seen as causing shortcomings vis-à-vis

Moravcsik’s intergovernmental perception. On the contrary, it validates the LI argument of

national actors being the key driving force within these settings, giving them the scope to act 398 Fossum, John Erik & Augustín José Menéndez (2003): ‘The Constitution’s Gift? A deliberative democratic analysis of the constitution-making in the European Union’, paper to be presented at the CIDEL Zaragoza Workshop, June 2003, pp. 1-28, p. 11ff.399 Ibid.400 Fossum, John Erik & Augustín José Menéndez (2005): ‘The Constitution’s Gift? A deliberative democratic analysis of the Constitution-making in the European Union’, Working Paper No. 13, March 2005, Oslo: Centre for European Studies, pp. 1-47, p. 22.

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rationally in order to achieve their goals.401 From the way the IGCs are shaped, the actors are

given room to navigate in a bargaining environment in order to obtain the goals desired without

having to consult or account to ‘outsiders’. Or put differently, the ‘expert-based’ setting

dominated by ‘permanent representatives’ and ‘system insiders’ makes it possible for the national

governmental actors to focus merely on domestic goals. Not obstructed by institutional

representatives or others who would be likely to interfere with their preferences and goals. From

this perspective, the LI has validity, also as it seeks to set aside the deliberative aspect, and

replace it with the previously mentioned aspects of LI bargaining. This means that to some

degree, the desire to succeed by obtaining some sort of compromise – supposedly through

bargaining – is potentially able to set a side the deliberative aspect within the IGC structure.

In sum, it seems as if the most controversial issues within the IGCs are left to the core national

elites illustrating the states’ function as unitary actors. This makes the initial phase appear expert-

based, and only to include limited and secretive deliberation, which is perceived to support the

claims that the IGC-model appears inadequate in fulfilling a satisfactory level of democracy vis-

à-vis levels of representation and participation. On the other hand, the narrow intergovernmental

representation seems to validate the LI argument of national actors being the key driving force

within the model.

6.2.3 The role of the European Parliament

In its European Parliament’s evaluation of the Amsterdam Treaty the ‘Report on the work of the

committee on institutional affairs 1994-1999’ notes that: “it [the European Parliament] succeeded

in bringing considerable influence to bear on the shape of the new Treaty402”. Fossum and

Menéndez also recognise the parliament’s influence stating “the EP has no formal role in the

ratification but the actual situation has changed over time. For instance, during the Amsterdam

Treaty process, national parliaments were in close contact with the EP and were willing to pursue

issues identified as problematic by the EP403”. However, the truth is that this EU-body is only 401 Nugent, Neill (2003), p. 182.402 In its November 1997 report on the Amsterdam Treaty the EP noted that: “Most of the positive changes to the Treaty involve European Parliament proposals having been accepted in broad measure (e.g. codecision procedure, employment policy)”: European Parliament (1997): ‘Report on the Amsterdam treaty’.403 Fossum, John Erik & Augustín José Menéndez (2003), p. 15.

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allowed the influence that nobody ‘minds’ so to speak, or as Hoffmann expresses it “the EP’s

actual influence has been minimal404”. Exemplifying a significant improvement, during the 2000

negotiations, the EP was given the right to send two observers to ‘participate’ within the Group of

Representatives. These, however, were given no right to either vote or exercise any kind of

official influence, proving “that the European Parliament has not been able to become an equal

and fully recognised participant within the IGC process405”.

This seems as a problem in regard to the aspect of representation within the IGC-model.

Additionally, it strengthens the previously mentioned argument of a reason to speak of a

democratic deficit within the EU, as the European Parliament, according to Hix, is still perceived

as being too democratically weak.406 If legitimacy, as in Maurer’s perception, is “established by

means of free and open debate407”, the IGC-model suffers from an obvious problem of

legitimacy. This as the possibility of participating in this ‘free debate’ is restricted to an

extremely limited set of actors, whilst the level of transparency is very limited, and as the model

furthermore may only take into consideration the arguments and desires of certain participants.

Closa and Fossum characterises the lack of representation by the European Parliament in the

IGC-model as “core legitimacy defects in the IGC-model408” However, the limited role of the

EU’s supranational institutions in general is explained by LI and its emphasis on the nation

states’ strong control within the IGC-model. Ultimately, LI stipulates that the choices and acts

made by states are based on rational self-interest and power-maximising. This aspect is to be

elaborated on in the section below.

6.2.4 Bargaining and Preference Formation

The basis on which decisions are reached in IGCs diversifies greatly from that of the Convention-

model. According to Closa409 one of the problems with the IGC-model is that cleavages in the

404 Hoffmann, Lars (2002), p. 6.405 Ibid.406 Hix, Simon (2005), p. 176.407 Maurer, Andreas (2003), p.4.408 Closa, Carlos & John Erik Fossum (eds.), (2004b), p. 99.409 Closa, Carlos (2004), p. 189.

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process of bargaining may freeze, which consequently leads to so called deadlocks. Specifically

during the '96 and '00 IGCs, governments were simply not able to reach the compromises aimed

at.410 In comparison to the Convention’s procedural structure, the IGCs were much more static in

their working processes. As Hoffman explains it, the alliances hardly changed as smaller and

larger countries faced each other with respect to the reorganization of for example votes in the

Council, the future Commission composition, as well as decision-making procedures.411 Fossum

and Menéndez describe the common set-up of the IGC decision-making phase, as being

“particularly conducive to horse-trading412”: The meetings’ set-up in theory permits government

leaders and representatives to speak freely, which is to some extent contributing to deliberation.

However, the restricted time frames, the considerate political stakes, the anticipation for results,

the lack of expert-knowledge during the meetings, and the often very wide-ranging agendas,

“inject the process with a strong bargaining impetus.413” Moreover, according to Jarlebring,

“another difficulty appears to be that governments feel little incentive to engage in negotiations

during most of the IGC414”.

According to the theory of LI, the aspect of national preference formation is influenced primarily

by domestic politics, which are ultimately to shape the state’s goals within the IGCs. Even though

these preferences may not always be fixed415, they are still dominant to the acts of the individual

state and carried out through bargaining. However, though preferences may not be predetermined

they still constitute the basis for the process of bargaining carried out by the individual state.

Therefore, if the parties are simply too far from each other, bargaining as a ‘device’ for reaching

agreement becomes insufficient. In some respect this is perceived as a critical element to the LI

theory, as it should be expected that this way of negotiating would always result in some sort of

commonly recognised outcome. However, this has not been the case during the ‘96-7 and ’00

IGC. At least not to an adequate extent, as it was hereafter recognised that a new approach was

needed. In some respect, this must be seen as a central point of criticism for the LI theory, which

410 Hoffmann, Lars (2002), p. 3.411 Ibid., p. 5.412 Fossum, John Erik & Augustín José Menéndez (2003), p. 14.413 Ibid.414 Jarlebring, Johannes (2003), p. 789.415 Hix, Simon (2005), p. 16.

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argues that through preference formation, bargaining is the only valid way to reach common

decisions on EU-level.

In sum, the element of preference formation is perceived to exemplify a problem area vis-à-vis

deliberation and accordingly democratic legitimacy, as bargaining does not include an incentive

to reach agreement based on the ‘better argument’, as stipulated by democratic deliberation.

Instead preference formation and decision-making in the IGCs is in line with the claim from LI

that dominant national actors form own preferences, and ultimately try to reach these through

bargaining. The processes within the IGC-model seem to be too dominated by what Moravcsik

refers to as “interstate bargaining outcomes [which] are decisively shaped by the relative power

of nation-states416”. To a certain extent this arguably obstructs the negotiation processes, and may

even go so fare as to a complete stand-still, which may be what consequently leads to ‘deadlocks’

and political ‘left-overs’.

6.2.5 Transparency

Jarlebring expresses the level of transparency in the IGC-model as “[…] the weakest point in the

traditional revision process […], since IGCs are normally very secretive417”. Consequently, it

might be difficult for the national parliaments and the citizens to know exactly what is happening

during an IGC. Fossum and Menéndez418 support this claim when they, in what they refer to as

the IGCs’ ‘decision-making phase’, elaborate on the fact that the Council meetings, which in

correlation with expert groups, are the foundation of the final product (official text), consist of

Heads of State and Government plus the Commission President. Furthermore, they describe how

the attendance throughout these meetings is firmly regulated, and how the number of participants

is limited, and that these are consequently closed and highly secretive meetings.419 Westlake

supports this view when he describes how “the Council General Secretariat maintains a rota of

note-takers, who take it in turns to sit in on the European Council Meetings in twenty-minute

416 Moravcsik, Andrew (1998b), p. 7.417 Jarlebring, Johannes (2003), p. 787.418 Fossum, John Erik & Augustín José Menéndez (2005), p. 27.419 Ibid.

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periods. Emerging note-takers brief the Member State delegations […] on the European

Council’s proceedings, but their notes thereafter remain secret420”.

According to Slapin, these proceedings have though encountered documents that have been

available to the public e.g. press reports, memorandums, and documents from parliamentary

committee and plenary sitting hearings.421 This perception is supported by Closa and Fossum in

their observation that “national governments’ own constitutions require them to report back to

their respective parliaments. Where after debates can take place on a national level and hence

elicit further discussion in the national public spheres422”. Furthermore, Closa and Fossum state

that documents are in fact available to the public during this process. Hence, both papers on the

governments’ position(s) and papers of draft treaties are available.423

From above observations it may appear as if the IGCs do in fact to some extent encounter a

certain level of transparency, as the ‘negotiators’ are obliged to report back to their national

parliaments – combined with the fact that documents and papers are to some degree available to

the public. Though considering these facts, it still appears reasonable to question the level of

transparency within the IGC-model as a hole. The low level of transparency in the IGCs is a

widely supported observation, as the meetings themselves are in fact closed, and as many

documents remain secret. This is a factor of the IGC-model, which is regarded as critical vis-à-vis

the level of democratic legitimacy. The lack of transparency does not however provide the theory

of LI with any explanation problem, as its main argument - i.e. states act rationally through

national preferences - strategically favours a closed environment.

In sum, the level of transparency in the IGC-model appears to identify a core problem to the

perception of democratic treaty making through an open structure. In reference to the LI,

however, this seems anticipated and calculated for.

420 Westlake, Martin (1995): ‘The Council of the European Union’, London: Cartermill, p. 26.421 Slapin, Jonathan B. (2006): ‘Testing Institutional and Intergovernmental Theories of Power at Europe’s Intergovernmental Conferences’ (Prepared for the Annual Meeting of the Midwest Political Science Association, Chicago, April 2006), p. 12.422 Closa, Carlos & John Erik Fossum (eds.) (2004b), p. 132.423 Ibid.

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6.2.6 Conclusion

Several of the aspects discussed above are seen as problematic in reference to the general level of

democratic legitimacy. There are not many indications that the IGC-model constitutes an

unrestricted environment with a broad representation in an open and transparent environment. On

the contrary, it seems as if the structure of the IGC-model does not contribute much to the

democratic legitimacy of the EU in general. Examples of this may be the poor level of

transparency, combined with the fact that the member states single-handedly constitute the

representation, which is even solely constituted by the representation of the core political elite,

who in the process of bargaining may come to act on their own act on their own.

However, the characteristics of the IGC-model, as stipulated above, correspond with how the

theory of LI perceives that the member states act rationally, and facilitate and negotiate

preferences on behalf of their own national interests. This ultimately results in situations that

facilitate wide options for bargaining in order obtain these interests. Both the establishments of

the national mandates, and the somewhat restricted powers of the mandates during the IGC

processes, emphasize the national elites’ desire to stay dominant within the EU-negotiating

sphere. In regard to the level of representation in the IGC-model, LI argues that the national

actors are the core treaty facilitators, whilst the supranational institutions still have a strikingly

anonymous role despite the fact that improvements have occurred.

Vis-à-vis preference formation and bargaining these aspects of the IGC-model exemplify a

shortcoming in terms of democratic legitimacy. DeWitte strengthens this claim by stating that “it

seems quite clear that weaknesses in terms of ‘rule by the people’ have become a serious problem

for the traditional revision procedure.

In conclusion, the IGC-model has a low level of democratic legitimacy in terms of transparency

and in representation.

7.0 Conclusion

89

The previous sections of analysis have been focused on two different models of structure and

process, on which decision-making in respectively the European Convention and the EU’s IGCs

are based. Founded on the theories of democratic deliberation and liberal intergovernmentalism

the objective has been to analyse if and how these models separately contribute to the level of

democratic legitimacy. In this conclusion, the findings from each analysis will be compared

thereby establishing a valid foundation for concluding whether or not the Convention brought

legitimacy into the process behind the constitutional draft.

In the analysis of the Convention we established that the result of the Laeken Declaration was a

rather ambivalent and open mandate: On the one hand it offered opportunities to the EU-centrists,

who thought that the IGC process could no longer deliver the needed results, and on the other

hand, it pledged to preserve the state-centric rights as we know them. Eventually, the outcome

was defined into a set of rules of the Convention that remained remote from the ideal-type of

constitutional deliberation, but though did not preclude members of the Convention from putting

forward rational arguments, on which agreements were based.

As the process of democratic deliberation in the Convention was not restricted by any fixed set of

instructions, the process itself is considered to form the autonomy of the Convention’s members,

and ultimately contributes in ensuring that the outcome is based on rationality. In contrast, the

power of the veto in the IGC process allows its members to maintain their individual preset

instructions, which ultimately leads to an outcome based on bargaining and power maximising.

Combined with the IGC-model’s poor level of transparency and its strictly limited representation,

the restricted environment for decision-making in general stands in vast contrast to that of the

Convention. As outlined by Magnette, autonomy in particular was essential for creating a

deliberate environment in the Convention because it ‘de-legitimated’ fixed self-interests, as the

representatives accordingly only rarely spoke on behalf of their own organs, as well as it

restricted rigid group formations.424 The deliberative environment was also strengthened by the

Convention’s working procedures in particular in the first two stages.

424 Magnette, Poul (2004).

90

In general, it seems as if many theorists of democratic deliberation contend that deliberation

encourages more effective decision-making than bargaining.425 One of the main arguments

according to Risse426 is that participants of a process of democratic deliberation seem to be more

likely to be able to achieve an optimal solution, as the participants share both a ‘common frame

of reference’ and information freely. Participants of an IGC, on the other hand, seem to be more

likely to reach an outcome of the lowest common denominator, as a natural result of strategic

rationality and bargaining.

Though the Convention-model in many ways succeed in establishing an environment that to a

large extent fostered democratic deliberation, and ultimately democratic legitimacy, it also

remains quite clear that it was far from an ideal process vis-à-vis the criteria set up by Cohen.

Though it is important to note that while ideal democratic deliberation is very unlikely to be

reached, it does not change the fact that important procedural elements such as d’Estaing’s

influential agenda-setting control, his power to determine a consensus even in times when it

would not be there, the power of strategic timing as well as the general time constrain, and the

external and quasi-conventional pressure, were all elements that must be considered to undermine

the Convention’s accountability, and lower the level of both democratic deliberation and

legitimacy. Exemplifying this vis-à-vis the cornerstone in the decision-making of the Convention,

i.e. the consensus, Torreblanca establishes that:

“[…] the definition which the Convention made of “consensus” is in fact the most important stone in the way of

those ascribing to the Convention a true deliberative and democratic nature. “Consensus” was not defined as a pure

“rational consensus”, and not even a “working agreement” with which everybody could live with, even if for

different reasons. “Consensus” was defined as “more than a majority, less than unanimity”, and whether any given

outcome matched this consensus criterion was to be interpreted by the Presidency, not by the Convention itself427”.

However, in comparison to the IGC-model the Convention’s deliberative form, its transparency,

and its rather strong representation provided it with a legitimacy advantage.428 Accordingly, Closa

425 E.g. Risse, Thomas (2000), p. 29ff.426 Risse, Thomas (2000)427 Torreblanca, José Ignacio (2004), p. 361. 428 Fossum, John Erik (2000), p. 122.

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concludes that “the large representativity of the Convention, its ability to commit to a draft

constitution that advances the resolution of pending issues much more than had been expected,

combined with its working procedures, give it with a legitimacy that somehow transcends the

preparatory dimension initially assigned to it429”. In terms of representation, the Convention was

composed of 69 % parliamentarians430, and may accordingly be labelled as more ‘representative’

than a traditional IGC. Vis-à-vis transparency, Norman e.g. establishes that: “Compared with past

intergovernmental conferences, the Convention was remarkably transparent.431” In general

however, the advantage was based on the aspect that the outcome of the Convention would

accordingly hold the support of a significant part of both the civil society and representatives of

central political national and supranational bodies. In this way the structure and process of the

Convention limited the possibility of pushing through predetermined self-interested preferences

for the utility-maximising actors in the IGC, and in particular also limited the power to veto. This

aspect accordingly challenges the theory of LI, which utilises that integration will only take place

if the national governments allow it and are to gain from it.432 However, as the theory at the same

time argues that it is the individual governments’ incentive to obtain a certain goal, which creates

the foundation for its international actions, it may accordingly be argued that the restricting

character of the power of member states in the IGC, following the outcome of the Convention,

was the anticipated result of a rational-based decision from the member states in ensuring

constitutional success.

According to Kelstrup’s model of legitimacy, the Convention’s representation and general

environment for deliberation points towards a strong emphasis on input legitimacy. The IGC-

model, on the other hand, is primarily build on output legitimacy, as it, unlike the Convention-

model, holds a direct mandate, and has the necessary competences to make biding decisions.

Considering this aspect, and following the logic of LI as pointed out above, neither of the two

models single-handedly can be characterised as democratic legitimate, but the setup in the

Constitution-making process combining the two models ultimately holds both in- and output

429 Closa, Carlos (2004), p. 203.430 Jarlebring, Johannes (2003), p. 787.431 Norman, Peter (2003), p. 4.432 Nugent, Neill (2003), p. 482.

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legitimacy. The literature on the subject of this paper unfortunately does not put much effort into

considering and developing this specific aspect. As exemplified below, the Convention method is

accordingly characterised as an alternative to the IGC – not a supplement:

“[...] the Convention method, in comparison with IGC’s, can be seen as an alternative way for steering system

change and fundamental reform of the European Union, because it features participative and inclusive forms of open

deliberation, it respects and integrates the relative importance of minority positions, it offers open fora for

parliamentary discourse and helps to include national parliaments at an early stage of system building, and it is

conditioned by the method of consensus-building. Overall thus, the Convention method might become a future model

for a more democratic set up of the EU’s system433”.

The mandate of the Laeken Declaration, combining the two models in order to ensure both in-

and output legitimacy for the Constitution, may accordingly be characterised as a synthesis

ultimately evolving from a thesis (IGC-model) and antitheses (Convention-model).434 This

argument corresponds with the claim that the very raison d’être of the Convention was to forge

an alternative method of treaty making. In line of this concept, and based on the above, it may be

concluded that the Convention did bring legitimacy into the process behind the constitutional

draft.

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