Abstract:

In this article, I investigate and map organisational factors that constrain and facilitate treaty reform in the EU. I argue that our understanding of the IGCs is incomplete if the analysis is based solely on the preferences and powers of the member states. Based on institutional theory, I argue that the treaty reform process needs to be situated in a distinct historical, institutional, and contextual setting, revealing how actors are embedded in a web of structuring elements. The article examines the particular importance of three major institutional and contextual factors; (i) path-dependency, (ii) legitimacy and normative order, and (iii) the temporal location and timing of the conferences. The perspective is not an alternative to the state centric perspective, but it questions some of its basic assumptions and offers a theoretical framework that supplements our understanding of the dynamics of treaty reform. The empirical focus is on the 1996-7 Intergovernmental Conference (IGC), which resulted in the Amsterdam Treaty, and on the 2000 IGC, which led to the Nice Treaty.

 

1. The dynamics of EU reform [1]

In this article, I investigate and map organisational factors that constrain and facilitate treaty reform in the European Union (EU). In the history of the EU, a substantial number of Intergovernmental Conferences (IGCs) have taken place, five of which were held between 1986 and 2000. Gradually a certain tradition for setting up IGCs has emerged, one that encompasses procedural rules and norms as well as informal and established practices.

 

I argue that a proper analysis of treaty reform processes in the EU requires a dynamic perspective on decision-making, going beyond the individual IGC as a moment of formal treaty reform. The decision-making process needs to be situated in a distinct historical, institutional, and contextual setting, revealing how actors are embedded in a web of structuring elements. Such an argument is rooted in institutional theory (March and Olsen 1989, 1995). This perspective is not an alternative to the state centric perspective, but offers a theoretical framework that supplements our understanding of the dynamics of treaty reform. I argue that our understanding of the IGCs is incomplete if the analysis is based solely on the preferences and powers of the member states.

The empirical focus is on the 1996-7 Intergovernmental Conference, which resulted in the Amsterdam Treaty, and on the 2000 IGC, which led to the Nice Treaty. Both of these conferences were convened to prepare the European Union for the challenges of the new century and for enlargement, for which a radical review and reform of the EU�s institutions was considered to be of paramount importance. During these IGCs, issues related to institutional reform ranked high on the agenda and played a prominent role in the discussions. Based on the empirical investigation of the decision-making processes in the EU and theoretical reasoning grounded in institutional theory, I suggest that an institutional perspective of governance reveals important aspects of political reform that have been previously neglected in the literature on treaty reform.

 

As a general background, we should recall that the 1996-7 IGC was formally opened during the Italian presidency in March 1996, but the initial preparation had already started some years before with the publication of papers, media coverage, political statements, and so on. The formal negotiations during the conference lasted for fifteen months, and the initial draft was first agreed upon during the Dutch presidency in Amsterdam in June 1997. After extensive renegotiations, modifications, and even a renumbering of certain articles in the draft, the final version of the Amsterdam treaty, as it was named, was officially signed in October 1997. The member states were expected to ratify the treaty during 1998 and to implement it by the beginning of 1999, but by October 1988 this timetable was already in arrears. It did not go into force until May 1999.

 

The negotiations on the Nice Treaty formally started in February 2000 and ended during the French presidency in December 2000. Preparation for the conference had started earlier, and the Helsinki Summit in 1999 outlined the agenda for the conference, and papers and drafts were circulated a long time prior to the formal opening. Also, this conference had post-conference negotiations and alterations. In the first months after the negotiations, the parties spent time to figure out how to interpret and codify the agreements they had reached. The negotiations on the Nice treaty also sparked off a so-called �post-Nice process� that called for an extensive and Europe-wide reflection on issues related to the organisation of the European Union.

 

Throughout the history of the EU, committees have often been established to prepare the agenda of the IGCs. These expert committees have been influential in setting the agenda, drafting the initial texts, and ultimately shaping the outcome of the conferences whose work they had prepared. Traditionally, these committees have either been a �committee of wisemen�, such as the Dooge committee, which established the European Council in Fontainebleau in 1984 that lead to the Single European Act (SEA) (Edwards and Pijpers 1997, 8), or a preparatory committee composed by high-ranking staff or politicians. The 1996-7 IGC used the latter type of committee. At the Corfu Summit in 1994, it was decided, in line with tradition, that a Reflection Group should be created, whose task it would be to manage, protect, and prepare the IGC�s agenda. [2] Carlos Westendorp, a Spanish diplomat and experienced EU expert, chaired the Reflection Group. The group consisted of representatives from each member state, in addition to two representatives from the European Parliament (EP) and one from the European Commission. The members of the group were meant to act as the personal representatives of their foreign ministers, as free thinkers with some autonomy. Their mandate was briefly to learn from and correct the errors of Maastricht, and to rethink the institutional set-up of the EU and its future challenges. In preparation for the 2000 IGC, the first type of committee was chosen. A group of wisemen was established. President of the European Commission, Romano Prodi, appointed a High Level Group chaired by former Belgian Prime Minister Jean-Luc Dehaene, former German President Richard von Weizs�ckerWeisz�cker, and Lord David Simon to submit ideas to the Commission on the IGC. Although both of these groups delivered important impetus and structured aspects of the agendas, neither of them was able to set and limit the agenda and to suggest solutions that were suitable to all the member states.

 

In this article, two theoretical perspectives of treaty reform are first briefly outlined. Next, the empirical study illustrates how the IGCs and the outcome of the processes were constrained by (1) the path-dependent development of the EU, (2) a distinct set of organisational procedures and norms regulating the decision-making process, and (3) a series of pressing events that were coupled relatively loosely to the IGCs but came to affect the decision-making processes.

 

2. Two perspectives on treaty reform

It is a basic assumption in democratic theory that the demos has the possibility to decide and shape political agendas and to design political institutions that enable the implementation of decisions (Dahl 1989). However, institutional design in a democratic context is difficult (Goodin 1997, Olsen 1997).

 

The liberal intergovernmental (LI) perspective assumes that the member states are able to master and design institutions that secure effective implementation of political decisions (Moravcsik 1991, 1993, 1995, 1997). Moravcsik (1993:498) presents us with four specific assumptions on key bargaining situations. First, key bargains are voluntary bargains, not imposed on any of the governments. Second, the national negotiators have easy access to information about the preferences and opportunities of their counterparts, and they are able to communicate at low transaction costs in an environment rich in information. Third, the negotiations take place within a flexible and protractible period of time, which makes it possible for the member governments to extend numerous offers and counteroffers at a low cost. Finally, it is assumed to be possible to design efficient institutions that are able to monitor and enforce the agreements made at all levels. In this article I will not discuss the latter assumption, but instead focus on investigating the fruitfulness of the first three.

 

The institutional perspective on treaty reform challenges all of these assumptions. It is assumed that decision making is embedded in a certain historical, institutional, and temporal context, which helps to create and constrain the possibilities for deliberate choice. This perspective is based upon three assumptions (March and Olsen, 1989, 1995). First, political life functions according to fairly stable rules and procedures. Decision making involves matching a particular role with a set of procedures that are believed to fit the particular role and situation. Decisions are often made on the basis of rules and norms accumulated from past experiences and learning, rather than on the calculations of preferences and the anticipation of future events. Second, the rules and the procedures are institutionalised. Rules and understandings are taken for granted, and they guide decision makers in their efforts to interpret and create meaning from the situation. Certain abiding rules enhance the decision makers� normative judgements and their understanding of appropriate alternatives and actions. Resources and capabilities are linked to certain rules, thereby helping to uphold specific interpretations and worldviews. Third, institutions evolve in a path-dependent way (i.e. a decision made at one stage creates opportunities and constraints for decision making at a later stage). In most cases institutions change slowly and incrementally within the existing procedures and norms. Occasionally, however, dramatic crisis and external shocks might lead to a situation where the existing rules and procedures are unhelpful for interpreting the world and creating meaning. Under such conditions, institutions may change rapidly. Generally speaking, institutional design is a complex process of matching existing institutions, actions, and contexts in ways that are complicated and of long duration.

 

3. The path-dependency of the Amsterdam and Nice IGCs

Neither the 1996-7 IGC nor the 2000 IGC were voluntary processes featuring few constraints. They were conferences seriously structured by past regulations and statements. Four factors were particularly important in the treaty reform process:

 

(1) the convening of the IGCs had been previously scheduled,

(2) path-dependency and linkages were also created by the very set-up of the conferences, namely as revisions of earlier treaties,

(3) national adaptations to past treaties also influenced and eventually structured the IGC decision-making process,

(4) and finally, political declarations and statements made prior to or after the IGCs helped to shape and constrain future agendas. Let us consider each of these factors more closely.

 

First, the convening of IGCs had been previously scheduled. The Maastricht treaty (TEU) laid down regulations that helped to shape the agenda of the 1996-7 IGC. The 1996-7 IGC was convened at this particular time because of German, Belgian, and Italian dissatisfaction with the outcome of the Maastricht negotiations in 1991. These countries managed to persuade the other representatives to assemble a new IGC in 1996 (Bainbridge and Teasdale 1995), and the agreement was formalised and incorporated into the TEU as Article N. According to this article, �a conference of representatives of the governments of the Member States shall be convened in 1996 to examine those provisions of this Treaty for which revision is provided, in accordance with the objectives set out in Articles A and B� (Council of the European Union 1993).

 

The fact that the convening of the 1996-7 IGC was stipulated in the treaty was novel. The idea was to commit the parties to a meeting within a short space of time so as to evaluate the treaty and to negotiate further some unresolved elements. However, between the end of the Maastricht conference in 1991 and the opening session of the IGC in 1996, some of the premises for convening the IGC had changed dramatically. The aim of the IGC was initially to evaluate and improve the TEU (Laursen 1997), but due to the delay in the ratification of the treaty, the member states had gained little experience by 1996 in how it actually worked in practice. For instance, certain aspects of the co-decision procedure had actually never been implemented. To some extent, �superstitious learning� was therefore possible because the link between past actions and their outcomes either was ambiguous or simply did not exist (March 1994: 89).

 

A similar self-committing mechanism was inserted in the Amsterdam treaty, which led to the 2000 IGC. In Article 2 of the �Protocol on institutions with the prospect of enlargement of the European Union�, the parties agreed that a new IGC �carry out a comprehensive review of the provisions of the Treaties on the composition and functioning of the institutions� at least one year before the number of member states was to exceed twenty (Treaty of Amsterdam, 1997). Declaration 6, signed by Belgium, France, and Italy, requested that the next IGC concern itself with institutional reforms and criticised it for failing to meet the �need (...) for substantial progress towards reinforcing the institutions� (Treaty of Amsterdam, 1997). They insisted that a new IGC was �an indispensable condition for the conclusion of the first accession negotiations�, and they emphasised the necessity for a �significant extension of recourse to qualified majority voting�. In June 1999, the Cologne European Council reaffirmed the need to convene an intergovernmental conference to resolve the institutional issues left open in Amsterdam, issues that required a settlement before the EU could be enlarged. The Helsinki European Council at the end of 1999 decided that it should consider the following issues: �the size and composition of the Commission; the weighting of votes in the Council; the possible extension of qualified majority voting in the Council; and other necessary amendments to the Treaties arising as regards the European institutions in connection with the above issues and in implementing the Treaty of Amsterdam�.

The issues on the 1996-7 IGC agenda were also structured by the text of the treaties. The TEU listed a number of issues that were meant to be on the agenda of the IGC in 1996 (Council of the European Union 1993). For instance, Article B stated that the conference was to discuss the maintenance of the acquis communautaire and to what extent the policies and forms of the cooperation required revision. Article J.4 called for a discussion on the relationship with the West European Union (WEU). Article J.10 stated that the conference was to examine whether or not any amendments were needed to the provisions relating to the Common Foreign and Security Policy (CFSP). According to Declaration 1, the 1996-7 IGC was to consider whether the EU should extend its competence to include issues related to civil protection, energy, and tourism. In Declaration 16, it was made clear that the 1996-7 IGC was to review the possibilities for establishing a hierarchy of different categories of community acts. Most of these issues received considerable attention and played a predominant role in the discussions on the preparation and negotiations of the 1996-7 IGC.

 

However, in spite of the fact that certain issues were scheduled beforehand, the agenda was not determined and delimited to only these issues. Several other issues were brought up and discussed at the two IGCs. However, the issues that were scheduled on the agenda were given more attention, time, resources, and importance than other issues.

 

Second, path-dependency and linkages were also created by the very set-up of the conferences, namely as revisions of earlier treaties. The fact that the 1996-7 IGC was organised and perceived as a revision of the TEU had an indirect impact on that IGC. Comparisons were frequently made between the 1996-7 IGC and the negotiations on the Maastricht treaty, the former often being referred to as the �Maastricht II negotiations�. For instance, one commentator wrote that �the Maastricht treaty looks like it is heading for a 5,000-mile service�. [3] Many of the provisions set down in advance for the 1996-7 IGC referred implicitly to the perceived shortcomings of the TEU, for example that the 1996-7 IGC would have to have more open and frank discussions, that it should not be subject to surprises, that it be organised more simply, that the issues be easier to understand, and that overall it should be more inspiring. These references to the past helped to structure the problems, the solutions, and the causal beliefs of the decision makers. Equally so, the 2000 IGC was to a large degree defined as an instrument for handling the so-called �Amsterdam leftovers�. In the initial stage there were disputes about whether the agenda of the 2000 IGC should be concerned only with the �Amsterdam leftovers� or whether it should be concerned with other issues as well, the latter being the stance taken by many members of the European Parliament. [4] In the end, the parties reached an agreement to have a �minimalist-agenda� focusing mostly on the issues unresolved during the Amsterdam negotiations. Consequently, both the convening and the content of the conferences were to a large extent path-dependent.

 

Third, national adaptations to past treaties also influenced and eventually structured the IGC decision-making process. With regard to the influence exerted on European-level decision making, the most important factor was that certain national courts sought to delineate and contest the boundaries of European integration by testing the legitimacy of the Europeanisation process and the legal status of this transformation. The German constitutional court (Bundesverfassungsgericht) handed down the most influential ruling in October 1993 (Weiler 1995), thereby defining the boundaries of further integration. It imposed limitations on the issues that the German politicians could negotiate and decide on during IGCs. In Denmark, the courts also tested the constitutional validity of the Danish ratification of the TEU (Rasmussen 1996). [5] This case occurred during the negotiations and the ratification process of the 1996-7 IGC, preventing the Danish negotiators from suggesting further transfers of competence or any increase in the use of majority voting. In addition to the legal case, the Danish negotiators were constrained by the referendum to which they had bound themselves on the ratification of the outcome of the 1996-7 IGC. [6] Similar patterns could be found in relation to the Nice process, were the Danish referendum on the EMU constrained the possibilities for Danish negotiators to take a more pro-active role in the negotiations.

 

When analysing the dynamics of European integration, we have to take into account the co-evolution between and within the many levels of governance within the EU. National constitutions and courts respond and adapt to EU decisions. Constitutional reforms inside the member states are challenging the system of coordination, thereby also necessitating doctrinal modifications at the Community level (Llorente 1998: 28). In addition, the member states also have to anticipate or take into account the structuring effects of national constitutions and rulings on the decision-making process in the EU (Rasmussen 1996:66, Weiler 1995). European integration is thus a large-scale process of mutual adaptation, rather than a one-dimensional process either of national adaptation to European integration or of national �masters� purposefully creating the EU to their liking. Furthermore, the legal rulings of the national courts are not necessarily a direct result of the IGCs. Their history can be treated as responses to a long-term, gradual increase in competence for the EU, as well as the gradual development of legal reasoning and consciousness within the member states, at best triggered by the IGCs. In processes of Europeanisation, one can therefore observe layers of mutual adaptation and incremental change, which in turn lead to the triggering of disputes on the distribution of competence and power between the legal and the political institutions within and between the member states.

 

Fourth, political declarations and statements made prior to or after the ICGs helped to shape and constrain future agendas. It is difficult to identify a clear beginning and end of individual instances of treaty reform. Although each IGC has an official beginning and ending, decision-making activities go on a long time prior to the formal opening and quite a while after the formal ending. Statements made prior to the official start of the 1996-7 IGC structured the discussions and the issues on the agenda. The statements on the future enlargement of the EU to include the Central and Eastern European countries (CEECs) were particularly important for both the IGCs. These political statements and commitments on enlargement increased the pressure to address certain issues on the agenda, in particular the issue of institutional reform. The issue of enlargement was therefore an underlying element during the negotiations and even became the major criterion for determining the success of the IGCs.

 

Just as political statements made prior to a conference can blur the starting point of a specific treaty reform process, they can also blur the conclusion of a conference. The speeches on the future organisation of the EU by Fischer, Chirac, Blair, Lipponen and numerous other political leaders triggered the so-called post-Nice debate. All of these contributions paved the ground for a larger and more profound debate about the future development of the EU. But even as they set the agenda for the post-Nice negotiations, they also helped to secure the support for a limited and restricted agenda of the 2000 IGC. For students of treaty reform, the evolution of the EU and its treaties makes it increasingly difficult to clearly identify when a decision-making or negotiating process is starting and ending.

 

To summarise, in both the Amsterdam and Nice IGCs, the courses of the decision-making process were structured by the past. This path-dependency challenges the theoretical notion of the conference as a voluntary process, in which member states firmly control the agenda and have maximum leeway to design the resultant institutions. However, the path-dependent development does not make decision makers slaves of the past. Past decisions are both enabling and constraining factors. Because of the path-dependent character of the development, the impact of small and well-timed interventions can be multiplied by other forces enabling reforms (March and Olsen 1995: 44). Treaty texts, adaptations of national administrative and legal institutions, and finally, political statements on the future direction seem to be particularly important in the structuring of the agenda. These observations are consistent with the argument that key bargains are important, but they are often preceded by deeper and profound changes in the legal, political, and cognitive developments in European integration (Weiler 1991: 5).

 

4. From closed and diplomatic to open and democratic?

The assumption that the organisation of a decision-making process affects its outcome is a basic premise in organisation theory. In any decision-making situation there exists certain resources, sets of information, rules and procedures, participants, networks, problems and solutions, technologies, expectations and norms, visions and causal beliefs (Scott 1981, 7). Organisations are not neutral, but rather represent a mobilisation of bias (Schattschneider 1975: 30). In general, the composition of these organisational factors influence the outcome of decision making, and in particular such factors influence processes of treaty reform. During the Amsterdam and the Nice treaties, bias was mobilised and reorganised. Over time, the IGCs have become more open and complex decision-making activities, attracting more attention and also experiencing greater demands for democratic involvement and openness.

 

Historically, the IGCs have attracted limited attention and have been organised according to diplomatic procedures of secrecy among key politicians and bureaucrats. The IGCs have traditionally been the domain of diplomats, foreign policy experts, and particularly of legal experts. Treaty revision has thus been conducted within an atmosphere of technicality and secrecy. Media and domestic politicians have paid limited attention to the IGCs, and popular participation has largely been limited to debates on ratification. For instance, the 1985 IGC on the Single European Act was conducted largely without any major debate.

 

The deliberations on the Maastricht Treaty followed the same procedure. However, during these negotiations the press became increasingly more skilled and eager in collecting and obtaining information. For the first time, documents and position papers circulated in the press and an increasing number of people and politicians took an interest in the EU. However, not all national governments adapted to the new situation with an increased demand for transparency. The British government, for instance, refused to make the draft treaty presented by the June 1991 Luxembourg presidency available to the House of Commons because they thought that the publication of the draft would prejudice the diplomatic bargaining process. [7] Still, the Maastricht negotiations represented a relatively closed and bureaucratic decision-making process.

As the EU has come to influence and affect an increasing number of areas, states, and peoples, there has been growing pressure not only to reduce the democratic deficit in the EU, but also to democratise the procedures through which this democratic deficit is to be reduced. In particular, the legitimacy crisis related to the ratification of the Maastricht treaty challenged the traditional mode of treaty reform. Although considered a celebrated success at its signature in Maastricht, the treaty was soon considered to be an unreadable and unacceptable fiasco. In Denmark, the public voted by a small margin of 45,000 votes against ratification in the first referendum on 2 June 1992. After the negotiation of a special exemption clause at the Edinburgh summit, however, a majority of 56.8 per cent voted to accept the treaty on 18 May 1993 (Bainbridge and Teasdale, 1995, 111). President Mitterand called for a referendum in France the day after the first Danish referendum, and the treaty was subsequently accepted by the narrowest of margins: only 51 per cent of French voters voted �yes� in September 1992 (Bainbridge and Teasdale 1995, 245). In Britain and Germany, the ratification was equally conflictual, and in the referendums on membership in the new applicant countries � Austria, Finland, Sweden, and Norway � the lack of popular support for the Maastricht Treaty was very marked (Luif 1995). More recently, the protests and riots connected to some of the recent EU summits (as well as the conferences of other international bodies such as the G7 and WTO) and the Irish 2001 referendum, which rejected the ratification of the Nice treaty, clearly indicate that the issue of democracy and legitimacy is still a most pressing issue for global governance in general and European governance in particular.�

 

As a response to the crisis of legitimacy, the 1996-7 IGC and the 2000 IGC were required to address the issue of democracy � in short, to make the EU more �effective�, �open�, �democratic�, and �responsive to its citizens� (Report of the Reflection Group 1995, Presidency Conclusions 1996). These aspirations were regularly referred to in the preparations and conclusions of both the IGCs. Democratisation of the EU implied that not only the issues, but also the procedures regulating the process would have to be adapted in order to respond to this new logic of appropriateness.

 

In order to improve the information on and popular knowledge of treaty reform, several initiatives were made after the Maastricht experience. In connection with the 1996-7 IGC, the European Commission initiated a ECU 7 million programme called �Let�s Build Europe Together� that aimed at increasing public knowledge about the IGC; it sought to develop a permanent dialogue with citizens throughout the negotiations. [8] In addition, most member states had substantial budgets for initiating public debates and discussions on the future of the EU. In addition to the governmental initiatives, populist and professional conferences were held all over Europe, and thousands of publications were produced and distributed widely. An Internet homepage devoted to the IGC kept people informed, making the downloading of documents and position papers possible a short time after their presentation. [9] An information campaign was also launched in connection with the 2000 IGC, and a specific homepage presented the agenda, organisation, and content of the conference. The access to documents and information was made even easier during the 2000 IGC when the Council regularly published the work programme and notes from meetings. As a result of the increased openness and access to information, national governments talked readily about their positions and most major newspapers followed the process closely, publishing their comments and analyses of the IGC.

 

Formally, it is the member states that are convening an IGC, yet the EP and the European Commission must be heard. Although the EU institutions have limited formal right to participate in the IGC negotiations, they still play a de facto important role. During both the Amsterdam and the Nice IGCs, the EP was continually briefed and updated. The EP and the European Commission devoted significant administrative resources to monitoring and seeking to influence the IGCs. Both established special task forces and arranged hearings and debates related to the IGCs; these bodies also had the administrative power to collect, sort, rank, and reinterpret the position papers presented by the member states. In terms of personnel, the task forces had considerable capacity, and the members enjoyed high legitimacy in EU circles. [10] Increased complexity in the EU leads to a greater dependency of the national governments on the administrative and information-processing capacities of the supranational institutions. Since the smaller states, in general, have less capacity to process information, they are also more dependent upon the information processing capacity of the supranational institutions than the larger member states.

 

There are still important differences between the 1996-7 IGC and the IGC 2000. The 1996-7 IGC, on the one hand, was characterised by complexity and considerable ambiguity. The number of issues on the agenda was tremendous. A great many domestic, regional, and European institutions, parties, scholars, and interest organisations all tried to gain attention to their respective interpretations, concerns, ideas, and interests. Some of the proposals came from powerful and influential organizstions such as the European Union of Employers� Confederations (UNICE) and the European Labour Organisation (Euro-LO), others from rather small and marginal interest organisations, such as Animal Welfare; European Disability Forum; and the National Board of Italian Psychologists (Mazey and Richardson 1996). In making these preparations and proposals, more and more interest groups sought an EU in which the citizens would be able to participate in the process of constitution-building, and the development of rights, norms, institutions, and visions in and for the EU (Wiener and Della Sala 1997: 604). As the number of issues and expectations increased, it became difficult and time-consuming to exchange information.

 

At the 2000 IGC, the agenda management and the discipline were stricter. Attention was directed early to addressing a limited set of institutional issues. As early as February 2000, the representatives were already discussing and plotting the positions of the various countries regarding the three key questions of the conference: First, which provisions of the treaty that currently required unanimity might become subject to qualified majority voting? Second, should the IGC discuss other institutions and bodies (Court of Auditors, Committee of the Regions, Economic and Social Committee) and if so, what aspects (composition and size and/or term of office or powers)? Third and last, should the IGC discuss the European Parliament, and if so, what subjects should be considered?

 

The increased complexity of the IGC decision-making process was partly due to the increasing competence of the EU and the shifting normative context; but it was also due to the increasing number of participants. Enlargement of the EU from twelve to fifteen member states had increased the number of representatives. To state the obvious: it is easier to organise informal discussions and easy communication in a unit with only a few participants than in a larger unit with many participants. Enlargement had increased the flow of information, the number of languages, the quantity of issues on the agenda, the number of potential coalitions, and the duration of the meetings. Both the speaking time of each member and the chances of reaching a consensus were limited. The EU in general, and the IGC in particular, therefore experienced a radically more complex process for effective decision making and problem solving.

 

In addition, the member states and the domestic administrative institutions had become more Europeanised, and the boundaries within and between the member states had become unclear (Olsen 1995, Wessels and Rometsch 1996, Hanf and Soetendorp 1998, Sverdrup 2000, Goetz and Hix 20010(?), Cowles, Caporaso and Risse 2001). The boundaries between foreign and domestic policy were blurred and key negotiations in the EU, including in the IGC, were not the domain solely of the foreign ministries. Representatives from various national and even regional units also took part in the negotiations. For example, in connection with the 1996-7 IGC, the German government circulated a questionnaire to all its ministries in an attempt to determine those fields in which the different ministries would welcome increased majority voting. The Foreign Ministry supported majority voting in most issues, but the questionnaire revealed that a majority of the other German ministries did not. [11] The difficulty of upholding the idea of one national interest was also apparent in relation to flexibility. For instance, during the Dutch presidency, cleavages emerged between the Foreign Ministry and the� Ministries of Finance, and Social Affairs and Employment in the Netherlands (Stubb 2000; 173). When the coordinating capacity in the Europeanised administrations is impaired, it becomes more difficult to uphold the analytical assumption outlined in the LI perspective of certain national preferences or dominant national positions in key bargaining processes. Furthermore, ideas, problems, and solutions diffuse across the borders between the member states. National administrations are fused together in a larger European web of administrative bodies, making it difficult to distinguish the position of one member state from another (Wessels and Rometsch 1997). For instance, in the 1996-7 IGC, a clear difference emerged between the member states� policy papers and their actions in the negotiations. These changes are not purely a result of rational calculation and negotiation strategy, but also a result of the somewhat messy and often confusing learning process that is going on (Stubb 2000; 173).

 

Finally, as is the case with most political processes, the IGCs were not solely motivated out of their functional outcome; they also helped to create meaning and shared understanding. The member states� view of the IGCs differed according to their abilities to influence the agenda. However, they also partly viewed the IGCs as opportunities to increase their knowledge of the EU system, as a chance to resolve national political conflicts, and as an opportunity to stimulate the public debate on European issues and thereby educate their citizens. Sometimes the aim was to initiate research in the field and partly stimulate the public debate on the key issues of the conferences, and to give parties an arena for public deliberation and argumentation (SOU 1996: 24, 1). The manner in which the member states prepared their positions was determined by well-established national procedures. In Sweden, for instance, the preparation of the 1996-7 IGC position reflected the tradition of extensive public debates and information campaigns, as well as a strong belief in enlightenment and trust in expert analysis regarding political reform processes (Brunsson 1993).

 

To summarise, the IGCs have gone through a process of transformation, from being closed and diplomatic, to becoming more open and democratic. This of course does not imply that preferences and power are becoming less important. It has been shown that even in such a context, explanations based on preference and power are still valid and fruitful (Moravcsik and Nicolaidis 1999). However, it does mean that the articulation of preferences and the exercise of power are conducted in accordance with the new and more democratic norm of openness and public deliberation. While the Maastricht process was dominated by legal reasoning, the 1996-7 IGC and the 2000 IGC were more involved with the political and democratic issues, stressing the importance of �living institutions�. A leading bureaucrat expressed this as follows: �Gone are the days of when we had the articles in square brackets, and the processes were purely technical; now decision making in the IGC is open, unclear, and democratic.� [12] Increased openness made it more difficult for politicians to show flexibility and to change their views during the negotiations, and the increase of information made it more difficult for the national governments to communicate easily and secretly. Increased demand for democracy, transparency, and accountability could in a way strengthen the view that the IGCs constitute arenas of hard bargaining among member states. However, it also means that the bargaining is becoming more complex, that the governments have to follow certain rules, and that there are parties other than the member states that influence the agenda and evaluate the outcome.�

 

The EU has invested considerable attention and resources in institutionalising the treaty reform process (Olsen 2001). One result of this is that such reform processes are becoming more continuous, instead of ad hoc and episodic. The planning of the 1996-7 IGC to be a revision of Maastricht, the agreement to devote the 2000 IGC to issues �leftover� from Amsterdam, and the ensuing post-Nice debate should all be seen as indications of a gradual institutionalisation of the reform process. As the reform process becomes institutionalised, it should then also become easier to draw attention to a set of key questions over time. The change from a complex and overloaded agenda of the 1996-7 IGC to the more focused agenda of the� 2000 IGC can be interpreted to indicate that the EU has been able to learn from experience, to develop procedures to focus attention on a select number of issues, and consequently to reduce the frequency of short-term fluctuations in attention.

 

However, the mode of organising treaty reform is not yet settled. In the aftermath of the 2000 IGC, the discussion on the procedures and organisation of treaty reform ranks high on the agenda. It has been suggested that the next IGC should be organised more along the lines of the convention model that was used when discussing the Charter of Fundamental Rights � that is, to bring together representatives from the national governments, from the national parliaments of both the member states and the candidate countries, from the institutions of the European Union, and from civil society. Such a development can affect the ability to resolve problems and conflicts, but it is also likely that it will have serious implications for the chances to reach effective decisions and to communicate and exchange views easily (Olsen 2001).

 

The LI perspective pays limited attention to the impact of changes in the normative context on decision making. For instance, in commenting upon the agenda-setting process in connection with the French referendum, Moravcsik argued that: �[t]he Maastricht referendum in France is an exception that proves the importance of secrecy and agenda-setting power, in that it demonstrates the potential consequences when governments lose firm control of domestic agendas or take needless risks in ratification� (Moravcsik: 1993:516-17). True, the referendums and the public debates resulting from the Maastricht Treaty represented dramatic breaks with the past, but they also represented a new emerging political and democratic order with increased interest and demand for popular participation in Europe.

 

As students of European integration, we must develop theoretical models that enable us to interpret how integration and disintegration ultimately leads to these changes in the basis of legitimacy and the character of decision making. By applying a dynamic perspective to the EU, as the institutional perspective suggests, we can interpret the shifts in the mode of decision making and demonstrate its impact on the dynamics of European integration. Such a reflective perspective on legitimacy and legitimate decision makers is also consistent with the idea of decision making as a process of deliberation and learning from experiences, rather than one solely focussed on voting rules and treating certain actors and their interests as given and legitimate (Neyer 2000).

 

�5. The temporal location of the Amsterdam and Nice treaties

The liberal intergovernmental perspective assumes that decision making takes place within a flexible and easily protracted period of time. An institutionalist perspective questions this position and instead assumes that decisions are made by actors acting under the constraints of bounded rationality coupled with limited time and energy. Any decision-making situation is located in a distinct temporal order, which can affect the content and duration of the decision-making process. Temporal orders function as deadlines, in that they help to focus attention and to create meanings and frames of reference. Fixed and structured deadlines often limit the possibilities for searching for new and acceptable solutions, so that the resulting final solutions tend to closely resemble existing ones and thereby largely uphold the status quo (Bromiley and Marcus 1987). With regard to both the IGCs, unexpected and expected events, as well as external and internal events, shaped the conditions for reform.

 

First, both the Amsterdam and Nice IGCs were affected, directly and indirectly, by unexpected external accidents beyond the control of any of the decision makers. They were affected directly in the sense that external events were linked immediately to the agenda, and indirectly, in the sense that the time, attention, and energy that would otherwise have been allocated to the IGCs were spent on other issues. In the 1996-7 IGC, the war in Bosnia, the crisis in Rwanda and Zaire, and the BSE (bovine spongiform encephalopathy) crisis affected the agenda. In the 2000 IGC, the BSE crisis as well as the recent experiences of the Kosovo war were particularly important in attracting attention and giving momentum to the reforms. Routine internal day-to-day decisions in the EU also influenced the agenda of the IGCs. For instance, when the European Court of Justice (ECJ) (Judgement C-84/94, 12 November 1996) forced Britain to accept the standard 48-hour work week as adopted in the working time directive (Directive 93/104/EEC, OJ 93/L 307) during the 1996-7 IGC, it was argued shortly thereafter that the British prime minister �should go to the IGC and insist on rewriting this legislation�. [13] A few days later, changes were indeed proposed as modifications to Article 118a. [14] However, the UK never succeeded in pushing through these changes. In the Kalanke case (C-450/93, 17 October 1995), the ECJ held that strict forms of quotas for women in professions where they are underrepresented were against EC law, prior to the Amsterdam Treaty with the equal treatment directive (76/207/EEC). The Amsterdam Treaty reformed the relevant article (originally Article119; now Article 141, paragraph 4 ECT) at least to some extent (see Christiansen/Falkner/Jorgensen in this issue). As a weakly institutionalised system, the EU lacked the capacity to separate day-to-day issues from constitutional ones.

Second, important ongoing processes of reform in the EU also affected both the agenda and the outcomes of the IGCs. Of particular importance in shaping the 1996-7 IGC was the plan to create the European Monetary Union (EMU) by 1999. During the initial stages of the conference, most parties tried to keep the design and institutions of the EMU out of the discussions of the 1996-7 IGC, but it continually overshadowed the IGC, and the link between the two was obvious. Toward the end of the 1996-7 IGC, when it was clear that the changes would be marginal, the Commission President, Jacques Santer, even expressed doubt that there would have been an agreement during the 1996-7 IGC negotiations without the French initiative to strike a bargain on employment in relation to the EMU. [15] The EMU also affected the duration of the IGC, as the member states had to find a solution to the 1996-7 IGC before they could enter into the final stages of the EMU.

 

The issue of internal reform of the European Commission and the ongoing negotiations on enlargement affected treaty reform at the 2000 IGC. Following accusations of fraud, nepotism, and corruption, the Santer Commission resigned, thus prompting extensive plans for Commission reform. This issue required much of the Commission's time and effort. The scandal had cost the Commission much of its legitimacy; therefore it was preoccupied with reestablishing this by introducing fundamental internal reforms. In addition, the negotiations on enlargement had already started, and the new applicant countries pushed for a rapid conclusion to the conference, in order to pave the way for an early enlargement of the EU.

 

Third, the conferences were affected by national election and budget cycles. During the 1996-7 IGC, many national elections were held, perhaps the most important being the British elections, which took place on 1 May 1997. The Dutch Prime Minister, Wim Kok, argued at an early stage that the British election campaign was interfering with the 1996-7 IGC and creating too many uncertainties. [16] As a consequence of the election, the British negotiators changed and the new Labour government only had six weeks in office before the new treaty was completed in Amsterdam. During this time, they had to develop new positions in a process that had already lasted for almost two years. Any changes introduced at this stage could have reduced the continuity of decision making in the IGC and eventually destroyed any agreement reached. [17] This election directly altered the issues on the agenda. For instance, the intense focus on flexibility during the 1996-7 IGC was linked to a large extent to a desire of the other member states to bypass the �problem� of the British Conservatives. When Labour won the election, interest in the concept of cooperation and flexibility decreased. The parliamentary elections in France also affected the IGC, insofar as the Reflection Group postponed the start of its work until the Spanish presidency started in order to avoid a clash with the elections (Menon 1996: 242). During the 1996-7 IGC negotiations, the French called for a modest 1996-7 IGC agenda in the hope of ending the conference quickly and thereby decreasing the likelihood of any interference with the French parliamentary elections, originally scheduled for 1998. [18] At one stage, the French government also wanted to speed up the 1996-7 IGC by extending the mandate of the negotiating group �to elaborate draft treaties�. [19] The extraordinary meeting of the 1996-7 IGC held in October 1996 in Dublin was also largely a result of the French politicians� perceived need to speed up the negotiations. However, President Chirac called for an election at the end of May 1997, primarily because of the timetable of the final stages of the EMU. The surprising victory of Lionel Jospin meant that, in the final stages of the IGC, France had a new regime, which was inexperienced, but nevertheless held firm positions. By presenting radical solutions during the Amsterdam meeting, they brought employment to the top of the agenda, and insisted on parallelism between economic and monetary policy in relation to the EMU, thereby creating uncertainty and turmoil during the final days of the IGC. The French focus on the EMU distracted the discussion of the issues on the agenda and shaped the outcome in Amsterdam.

Also in relation to the 2000 IGC, several domestic factors affected the agenda and the outcome of the negotiations. The presidency plays a major role in managing the negotiations. During the 2000 IGC, the conference was first managed with great skill during the Portuguese presidency, but the role played by the French presidency seriously affected the decision-making process and led to disintegration and frustration (Ludlow 2001). In the beginning of the French presidency, there was considerable optimism about its leadership, but during the course of the presidency, most of the parties experienced a lack of leadership and management skills. The difficulties in the French presidency were partly a result of the �cohabitation� and the coordination problems created by this situation. However, the presidency occurred at a moment when considerations of domestic political strategy and scandals related to political corruption completely overshadowed European matters and attracted considerable attention and energy. Naturally, it is hard to assess the importance of such factors on the outcome of the negotiations. However, George Ross (2001: 4) has argued that �(Y)et it is hard to believe that the flaws in the French presidency did not make a difference. Would it have been possible to transform what turned out to be a deadlock into a more productive occasion?�

 

To summarise, three general factors affect decision making in the IGCs, namely external events, EU reforms, and domestic developments. Theoretical ideas differ regarding the importance of timing and the role it plays in decision making. A rationalistic view argues that the sequencing and ordering of decisions can influence the outcomes, and that such interventions can be planned. The institutional perspective focuses less on the possibilities of design and more on how a decision-making process is embedded in a distinct temporal order. The challenge from such a perspective is then less that of sequencing events and more that of analysing, first, the capacity to protect the agenda from unpredictable, loosely coupled issues; and second, the ability to operate in accordance with the predictable, well-established, and demanding rhythms of political life.

 

6. Conclusions

This examination of the decision-making processes at the Amsterdam and Nice IGCs has shown that three mechanisms were particularly important in structuring the conferences. First, past decisions created the framework for both of the IGCs. The path-dependency shaped some of the issues on the agenda (such as enlargement and institutional reform) and also affected the manner in which the decision-making processes were framed. Second, the growing number of member states and the changes in the procedures for handling the IGCs increased the complexity of the bargaining process and made information and communication more costly and more complicated. The normative crisis concerning the democratic deficit in the EU transformed the mode of treaty reform. Furthermore, the Europeanisation of the domestic administrative institutions of the nation states made it increasingly difficult to maintain the idea of a clear separation between domestic position formation and international negotiation. The gradual democratisation of the EU changes the dynamics of institutional and constitutional design from those of secret bargaining within a system of technocratic diplomacy, thereby challenging the very model of intergovernmental bargaining. Finally, a series of other pressing events, as well as the location of the conferences in distinct temporal orders, affected the distribution of attention and the issues addressed during the treaty revision processes.

 

In conclusion, this essay has questioned the assumption that key bargains in the EU are characterised by their voluntary nature, easy communication, and flexibility with respect to time. I have tried to show that the IGCs are following a path-dependent course, that increased democratisation has made processing and exchange of information more complex, and finally, that the conferences are not easily protractible in time since they are constrained and embedded in a distinct temporal order. However, it is obviously a serious methodological challenge to prove that some specific details in the treaties would have been different if the contextual and institutional setting had been different. Although I have not addressed this issue here, this article still makes a convincing argument, based on institutional theory, that a careful analysis of the constraints and possibilities created by the path-dependent development of the EU, the internal dynamics and the decision-making procedures in the IGC, and a distinct temporal location can help to increase our understanding of the dynamics of treaty reforms in the EU. By enriching our theoretical dimensions and categories, we can improve our understanding of the dynamics of treaty reform in general, and of the EU, in particular.

 

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