The decision to bring the results of November's Ecofin Council on the application of the Stability Pact before the Court of Justice was not an easy one for the European Commission to make. The Commissioners' opinions differed greatly. Günter Verheugen unequivocally took position against this course of action, which he believes will make the conflict harder, with no positive outcome (see our bulletin of 13 January, p.10). Other Commissioners spoke just as unambiguously, but in more confidential surroundings; in particular, they felt that only irrefutable legal evidence could justify an initiative on the part of the Commission. And they did not believe that such evidence existed.
Valid arguments. On first sight, the case for an appeal seems unanswerable. In order to preserve its credibility and authority, the Commission must exercise, without weakness, its role as guardian of the Treaty, and prove that in this role, it makes no distinction between the large and small Member States. This is what's needed to keep confidence in the EU as a "community based on law".
But the arguments against are just as serious. Economically, the commitments taken by France and Germany coincided in practice with what the European Commission had recommended. The difference in reducing the French and German budgetary deficits in 2004 is below the statistical error considered normal in any economic planning. Furthermore, the Ecofin Council's decision was accompanied by such a firm and unambiguous unanimous statement in favour of respect for the Stability Pact, that the Pact emerged politically consolidated. As for its content, adjustments had long been called for, but had never materialised; thanks to the dispute, however, they have become an official project and the Commission is preparing them. Under these circumstances, was it right to bring about a legal confrontation? The concrete aspect (content of Franco-German commitments, expression of unanimous intention to respect the Pact, launch of revision of some of its points) should, under this hypothesis, have been allowed to prevail.
Intentions and reality. Mr Solbes made it clear that bringing the case before the judges does not mean that the Commission has it in for the Council, but that it is responding to doubts on clarity: there is a disparity in how the Pact's procedures are being interpreted, so the Court of Justice must say which is correct. But this argument has failed to convince all observers. The media, and therefore public opinion, see the whole thing as a power struggle between the two Institutions, and the Court ruling, when presented, will be seen as the victory of one over the other. If, however, the ruling does not come down clearly on the legitimacy of the Council's contested decision, the usefulness of the operation will be in doubt, and the worsening atmosphere between the Commission and the Council will continue.
A threat to the Constitution and the next Commission? What will be the specific effect of the Commission's decision on negotiations on the "economic governance" plank of the Constitution? Some Member States may feel reassured as to the unyielding and impartial nature of the Commission, and encouraged to entrust to it greater responsibilities; but others may react in the opposite way, and become even more reluctant than they are now.
For my money, this appeal also comprises a risk for the next Commission. It will take up its duties in a few months' time, and will be set up under the rules of the Treaty of Nice: one Commissioner per Member State. The legitimacy and authority of such a Commission are, as we know, a cause of controversy, as the small and medium-sized Member States have 19 votes, and the large States 6, despite representing three-quarters of Union population. We know the response: Commissioners do not represent their country of origin. This is a fact. But this principle should also lead to Commissioners being appointed regardless of their nationality, and to a rejection of the incontrovertible rule of "one Commissioner of each nationality", which is not at all the case. If the facts prove that the current Commission (which, in principle, is well balanced: ten votes for the small and medium Member States, ten for the large) takes important decisions by simple majority, is there not the risk that mistrust for the future Commission will grow, unbalanced as it will be? Could this not reinforce the tendency of certain Member States to favour the intergovernmental method, at the cost of the Community method of which the Commission is the central and determining element? This tendency is already quite apparent in certain States, and for others it is a long-held dream. It would be a great shame to provide them with arguments which will become their weapons. In fact, the mutual trust between the Commission and the Council is what's at stake. (F.R.)