Serenity recovered. Now that a certain number of weeks have gone by since the sudden arrival of the Penelope project, fallen like lightning (followed as usual by thunder), in the European sky, is it possible to discuss it serenely? It was normal, I'd almost say physiological, that this Commission project should have ruffled some people, injuring some people's self-esteems and aroused reactions. Drawn up on the initiative of Commission President Romano Prodi in agreement with the two Commissioners members of the Convention, Michel Barnier and Antonio Vitorino, it could but provoke the distrust of the Convention's chairman, who rightly considers himself as the only institutional person to present a text, and the irritation of Commissioners who remained on the fringe of the exercise. Faced with the arrival of a rival project to his own, true to his style, Valery Giscard d'Estaing reacted ironically, observing that in the Odyssey, Penelope was not acting in secret, but was weaving in broad daylight, and that she received the backing of Ulysses on his return (which in this case did not happen to Mr. Prodi within the Commission). He, moreover, considered that the Penelope text was too long and complex and that its preamble was half a century old. But, after a few malicious attempts to have heads of government react at the Copenhagen Summit already, Giscard d'Estaing simply said that the Convention would take due account of the text in its work. Deputy Chairman Jean-Luc Dehaene, on the other hand, stuck by his criticisms, declaring: "I believe that this affair, that Mr. Prodi could have avoided, was especially a disservice to the Commission itself placing backstage the content of its contribution to our work and creating ill-feeling" (in the middle of the polemic, analysis of the text was almost non-existent).
What conclusions have I myself reached? Here they are: Penelope was not clumsy nor the result of mistaken calculations, but a desired and thought-out political operation. If there was clumsiness in the unfolding of the operation, it was accepted as a lesser evil in relation to its significance. The political will intervened in two stages:
a) the launch of Penelope. Romano Prodi and the team that surrounds him considered that the Commission had already to submit a draft Constitution of its own, intended to become a reference point for the Convention's work. It' true that it has already presented two "contributions" and that it can always present more. But it was considered that the Commission should place a complete and structured text on the table (the Commission only has two representatives in the Convention out of 105);
b) Status of Penelope. Discussions in Commission on its paper relating to the institutional architecture proved that the Commissioners are not unanimous on some essential aspects. Formal approval of the Penelope project, which was established at the same time but in secret, would have meant either votes in the College providing great visibility of the differences of opinion, or a lengthy work at drawing up the project again, or "downward" compromises reducing the level of ambition of the whole, and most likely all three inconveniences rolled into one. "Penelope" would have lost its impact, would have become a limp document, and would have come late. It's at this point that political will came into play again: "Penelope" was not submitted to a debate in the College and even less to formal approval. It thus could not be a Commission document and was altered into a working document with the nature of a "feasibility study" (which nevertheless did not prevent sweet-sour exchanges between certain Commissioners and the President).
The choice of Mr. Lamoureux was not innocent. The fact of handing Director General Francois Lamoureux the responsibility of heading the very small team responsible for drafting the Penelope project was in itself indicative of the goal sought, as the man's characteristics are well known: passion for Europe, intellectual rigour, firm in his beliefs, capacity to work. It was not to him they should have turned if the objective was a text capable of pleasing everyone and disturbing no one. This does not mean that Lamoureux was thinking of a kind of ideal European Constitution, according to his preferences and beliefs. He took on board the architecture of the Constitutional Treaty established by the Convention's Presidium and presented by Valery Giscard d'Estaing on 28 October last (published in no. 2294/2295 of our EUROPE/Documents series) and he aligned "Penelope" on the already mentioned Commission's institutional document (EUROPE/Documents no. 2305/2306). Those who have had the opportunity to browse through the first preliminary draft, of 23 October last, were able to note that /..
certain choices had thus been abandoned (except for one essential aspect, which we'll look at later). The mutual assistance clause between Member States if one of them is subject to armed attack (corresponding to Article 5 of the WEU Treaty) and other innovations such as: a) the reduction in the number of European Commissioners, judges at the Court of Justice and members of the Court of Auditors; b) a more detailed "defence" protocol; c) the Commission having the option to Chair the Council sessions (except when it is enacting legislation); d) the getting rid of (symbolising the will to rationalise and simplify) the Economic and Social Committee. All this has gone.
Content and innovation. Commissioners were kept up to date about the elaboration of the project (not overall but each Commissioner for their specific competency) and invited to formulate observations they might have. Several made use of this option through their Head of Cabinet and the others by way of the project about which they were provided information (for example, about the end to the current provision allowing the Council to decide by unanimity if State Aid is legal, even if the Commission had reached a negative conclusion, certainly requested by those responsible for competition).
We therefore find institutional choices in Penelope that were retained by the Commission on 4 December, namely: 1) election of the President of the Commission by the European Parliament with the approval of the European Council; 2) the number of Commissioners will at some time become less than the number of Member States; 3) the rotating basis of the Presidencies of the European Council and the General Affairs Council to be maintained, whereas other Council groupings will elect their Presidents for a year; 4) general move towards qualified majority voting at the Council (with the very important rule of the "double majority" of countries and peoples) as well as that of Parliament/Council co-decision (by simplifying the procedures); 5) creation of an EU Secretary to be Vice President of the Commission (with ad hoc status) but who is accountable to the European Council). Three essential elements directly result from the work of the Convention: radical simplification of legislative instruments, inclusion of the Charter of Fundamental rights in the Constitution, participation of national Parliaments in controlling subsidiarity.
The meaning and importance of Penelope can be located in the fact that these provisions and principles are inserted in an overall paper that unites the totality of the current treaties and simplifies them. Community policies are therefore included as "constant competencies", sometimes insofar as they figure in the current Treaty (Economic and Monetary Union, competition and social policy); others have been modernised and updated whereas some have been significantly renewed as we are able to see them being developed and modified under our very eyes: external relations, Freedom/Security/Justice Area. The new action modes, such as the "open co-ordination method" and the Agencies, as well as the new concepts introduced- information society, governance, and knowledge society. Such an exercise is no mere formality and does in fact involve choices. In particular, the Penelope project ends the "list of competencies" of the Union, Member States or mixed and replaces them with political categories: a) political principles decided in common and for which the Union is responsible; b) accompanying policies (the Union co-ordinates them but they remain national); c) complementary actions supporting national policies.
What's gone and what stays. Penelope includes other innovations that are definitely significant but others are less so. The first to look at: a) the possibility of raising a European tax to fund Union activities; b) the double revision procedure for the Constitutional Treaty, more weighty for the essential provisions (by continuing the Convention) and more subtle for others; c) the Commission being able to directly identify infringements by Member States (under the control of the Court of Justice); d) the "democratisation" of the Euratom Treaty (which becomes an additional paper to the Constitutional together with the definition of "peaceful use of atomic energy) with the introduction of Parliamentary procedures. The unanimity rule in the Council's decisions will be erased in all respects, except for new accessions. The addition of a new criterion for the appointment of Commissioners - "European commitment" (which gets rid of the appointment of Eurosceptic Commissioners) appears to me to be a little naïve.
Some of the points that the Commission hasn't dealt with still remain up in the air (between brackets), notably the clause in Article 5 of the WEU Treaty, which has already been referred to, and the strengthening of the co-ordination of economic policies. However, an essential paper on a point on which the Commission has yet to comment, has been kept: the agreement on the entry into force of the Constitution. This deals with the issue of how to stop the work of the Convention being destroyed or the Constitution being swallowed up if a single Member State fails to ratify it. Penelope includes a specific agreements that foresees that the Constitutional Treaty enters into force if three quarters of Member States are party to a Declaration confirming the will of their peoples to continue in the Union. Who ever rejects it leaves the Union and negotiates an association system safeguarding the rights that it has acquired. On this subject I have nothing to add to what I wrote in this section on 7 and 11 of December.