Treaty of Nice

It has been suggested that the ToA failed to deal with one of the main issues identi­fied by the 1996 IGC—that of preparing the EU for enlargement. On that basis, the swift progression from treaty negotiation (in respect of the ToA) to treaty negotiation (regarding the Treaty of Nice) is not that surprising. Just two months after the ToA was signed, the European Council at the Cologne Summit in 1999 called for an IGC with a mandate to address certain unresolved issues: size and composition of the Commission; the weighting of votes in Council; and the extension of QMV. At the same time, wider discussions were taking place about the legitimacy of the Union and the scope of its powers. There was consequently a debate as to whether the issues to be dealt with by the Nice Treaty should be broadened. In the event, the treaty remained relatively narrowly focused, although following the 2000 Feira European Council, it also dealt with 'enhanced cooperation'. Difficult constitution­al questions, including the status of the Charter of Fundamental Rights, the form of which had been agreed prior to Nice, were deferred until the 2004 IGC. The Treaty of Nice then might well be described as dealing with the leftovers of the ToA but going no further.

Changes to the teu: Enhanced cooperation

The main changes to CFSP and JHA pillars relate to the provisions on closer cooper­ation, now called in what seems like a symbolic change, 'enhanced cooperation'. Article 43 TEU, which introduced closer cooperation, has been replaced by a revised version of that provision and new Article 43a-b. Significantly, following Nice, en­hanced cooperation may take place with only eight Member States. Under the ToA version 'a majority of Member States' was required. Although 8 out of 15 Member States would constitute a majority of Member States at that time, post enlargement this is no longer the case. In a EU of 27 members (or perhaps more), the number of participating Member States required to make a majority has increased. Article 43 EC following Nice is less strict in other aspects too, particularly as regards the level of impact 'enhanced cooperation' is permitted to have on non-participating Member States. Article 43(l)(f) in its original form required that any closer cooperation 'does not affect the competences, rights, obligations and interests of those Member States which do not participate therein', whilst the post-Nice version requires that the competences, rights, and obligations of such Member States be respected. Similarly post Nice, the acquis communautaire is to be 'respected' rather than to be unaffected by the cooperation, as had been the requirement following ToA. In both instances, it will be easier to satisfy the tests in the post-Nice version of Article 43 than it would have been under the version inserted by ToA. It would seem that the intention is to make the enhanced cooperation provisions more workable, though if Lisbon comes into force there will be yet more changes to these provisions.

Changes to the EC pillar

As already noted, certain institutional changes were included in Nice. Changes were also made to the court structure, signifi­cantly strengthening the role of the Court of First Instance which gained the right to hear some preliminary rulings procedures. The closer cooperation provisions in Article 11 EC have been amended and renamed 'enhanced cooper­ation' in line with the amendments to Article 43 EC. Further, co-decision and QMV (qualified majority voting) are extended to a wider range of substantive provisions. Certain sensitive areas, such as taxation, still remain outside QMV.

Ratification of the Treaty of Nice

Although it may not have had the great ambitions of TEU, Nice ran into difficulties when the Member States sought the approval of the treaty within their own legal orders. Surprisingly, perhaps, the Irish voted 'no' to the Nice Treaty in June 2001. This was an embarrassing result, as the institutional rebalancing contained in Nice was viewed as the necessary precursor to further enlargement, which was already being negotiated. It was only in October 2002 that a second Irish referendum ac­cepted the Treaty of Nice. Ireland finally lodged its instrument of ratification on 18 December 2002. As provided in the Nice Treaty, it came into force on 1 February 2003.