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The Future of the EU Constitution: Escaping the Ratification Maze

JURIST Guest Columnist Dr. Laurent Pech, Jean Monnet Lecturer in European Union Law at the National University of Ireland, Galway, says that while it's too early to abandon the troubled European constitution, significant strategic and political adjustments are required before it can secure ratification by enough states to bring it into force...

Is the EU Constitution condemned to the dustbin of history?

The auguries are not good. Although quite amusing, it may not be entirely exact to claim, as Denis Macshane, the UK's Europe minister from 2002 to 2005, did recently, that "[t]he thing is as dead as Monty Python's famous parrot". Predictions are always problematic. Ideological considerations or wishful thinking can cloud critical thinking. It appears clear, however, that the EU "Constitution" — it is also described as a "Constitutional Treaty" by those willing to emphasize its true legal nature — simply cannot survive in its 2004 form. At the time of writing, fifteen EU Member States — already representing a majority of the Member States — have ratified the text. The next European country scheduled to ratify it is Finland, which assumed the rotating six-month presidency of the EU Council on July 1, 2006. The negative outcome of the 2005 referenda in France and in the Netherlands has, however, made the final outcome of the ratification process rather uncertain.

From a legal perspective, the rules governing the entry into force of the Constitution are clear-cut: unanimous ratification is required before November 1, 2006. No matter how practically absurd in a Union of 25 Member States, such unanimity is actually the clearest indication that the Member States retain the entirety of the "pouvoir constituant", i.e. the supreme power to decide one's own constitutional arrangements. Therefore, the EU "Constitution", if ever ratified, will not give life to a new sovereign power — "We, the People of Europe" — as its ratification will not be the result of a European-wide referendum of self-determination. Apprehensive of future hurdles, thanks to the unworkable unanimous requirement, the Member States gave themselves some political latitude by agreeing (in a Declaration No. 30 appended to the Constitutional Treaty signed in 2004) to review the situation where, hypothetically, four fifths of the Member States have ratified the Constitution, but one or more have "encountered difficulties" in doing so. In other words, there is simply no legal solution to the ratification conundrum. Political leadership is required. Legal ingenuity may then follow. The trouble is there is simply no European leader left with enough political capital or ideological enthusiasm to fight for the EU Constitution. In particular, to paraphrase Roger Cohen, a columnist for the International Herald Tribune, the whiff of "fin-de-régime" in Tony Blair's Britain and Jacques Chirac's France have become unmistakable. Any significant new initiative on Europe is therefore unrealistic until their successors come on stage. When you add an Italy in shambles, a German coalition with an uncertain political future, and a Polish government filled with eccentric anti-EU politicians to the picture, it not surprising that the Member States have continuously decided not to decide anything.

Rather than officially proclaiming the "death" of the Constitution, the Member States did however agree in June 2005 on a "period of reflection" to enable a broad debate to take place in each country — at the time of writing still largely absent — on "the construction of Europe". They also declared that the ratification process could continue and that the original timetable for the entry into force of the text (November 1, 2006) must be extended. This may seem, at first, a wise decision. Indeed, more than half the Member States have ratified the Constitution and they represent more than half of the EU population. Furthermore, it is manifest that the French and Dutch No votes cannot be understood as a simple No to the idea of a constitution for Europe or even the idea of further European integration (see Laurent Pech, France's No to the European Constitution, JURIST Forum, May 31, 2005). There were certainly voters exclusively concerned with and ideologically favorable to the EU and who nonetheless rejected the Constitution. Above all, however, the French No was a patchwork of inconsistent claims: essentially a no to what is called there "Anglo-Saxon" Europe and its "neo-liberal" policies, a no to unemployment and social dumping and finally, a no to Turkey. With ideological absolutism on the left side of the political spectrum and a deeply unpopular government and President, these ingredients have proven fatal to the Constitution. This is also the view adopted by the European Council. In its Declaration of 18 June 2005, the Member States agreed to state that these results of the French and Dutch referenda "do not call into question citizens' attachment to the construction of Europe" but that "citizens have nevertheless expressed concerns and worries which need to be taken into account".

If debating may be required in order to identify those concerns and worries, a more delicate task is how to take them into account. In particular, with regards to the future of the Constitution, there seems to be no genuine "Plan B". Proclaiming the Constitution's death, although a clear and apparently more realistic solution, would send the wrong signal as it would demonstrate that some "No"s are more important than others. On the other hand, it is hard to deny that the current period of reflection, as Andrew Moravcsik judiciously observed, "increasingly seems a smokescreen behind which to bury the constitutional remains." Indeed, there appears to be no obvious exit strategy available to the Member States. The EU can certainly continue to work on the basis of the Nice Treaty as long as there is no further enlargement after the accession of Bulgaria and Romania in 2007 or 2008. Furthermore, if some Member States are willing to deepen European integration in certain areas, they may rely upon the provisions governing "enhanced cooperation" (Art. 43 of the Treaty on European Union). The current conditions governing the implementation of these provisions are however so cumbersome that it is unrealistic to expect such an outcome.

Another option is to let the ratification process follows its path. This is the view most notably advocated in May 2006 by the Belgian Prime Minister Guy Verhofstadt, author of a challenging book on the future of Europe entitled The United States of Europe in which he suggests the establishment of a core of integrationist countries. In this scenario, we could see ultimately four-fifths of the Member States being governed by the Constitution. Their relationship with the Member States that did not ratify the Constitution will be governed by the current rules. Such a scenario, however lawful under international public law, remains highly unrealistic as Member States would find it extremely impractical to work under differing rules of voting arithmetic or institutional composition. Furthermore, this scenario assumes there will be not too many negative votes. Yet, if negative answers become more numerous, an hypothesis highly probable in the case of the United Kingdom and Poland at the very least, urgent reforms may be blocked for a longer period of time and lead to an era of prolonged "eurosclerosis". As for a complete renegotiation of the Constitution at a later stage of the ratification process, this is also an option not without potential vicious effects. To be sure, Member States will then be tempted to "lose" a referendum with the hope of regaining some leeway in future re-negotiations. And it may be well impossible to reconcile the French and Dutch No votes with, say, a British No to the Constitution if based on the dominant view that the text goes "too far".

Due to the imperfections of all these diverse scenarios, an uneasy status quo has thus far prevailed, with some voices advocating a "soft" constitutionalization of the current European Treaties by the back door. For this author, the Constitution represents a respectable compromise and a necessary improvement. Any requiem for it still appears to be too difficult to accept for its drafters. As a result, it would not be surprising, nor legally too troublesome, to see some consensual provisions of the Constitution — e.g. the creation of an EU Foreign minister or the granting of new powers to national parliaments to scrutinize EU legislative proposals — inserted into the current Treaties or applied outside the EU framework. Yet, several Member States, including Ireland, are opposed to this strategy of "cherry-picking" and officially favor the implementation of the Constitution in full for fear that, as the Irish Minister for Foreign Affairs Dermot Ahern put it in May 2006, "if you start to take parts out of the treaty, then you run the danger of the whole thing unravelling". Unwilling to pronounce the Constitution dead, EU foreign ministers pledged in May 2006 — a pledge formally endorsed on June 15-16 by the Heads of State or Government of the 25 Member States at the Brussels Council — to find an agreement on the future legal basis of the EU by 2009 at the latest. The not-so-secret hope is that an initial agreement could be finalized under the German presidency, which runs in the first half of 2007, once French and Dutch elections are held in the spring of 2007. Interestingly, one may note that France will hold the EU presidency in the second half of 2008. France would therefore — quite ironically — be in position to decisively orient the final discussion and eventually draw up a new Treaty before European parliamentary elections are due to take place in 2009.

This latest extension of the "reflection period" makes one wonder if there is, in the end, any realistic alternative other than to formalize the death of the Constitution in its current form. If the Member States seriously believe that the Treaty of Nice is not a viable basis for a well-functioning Union of 25 - soon 27 - Member States, the best solution may be to redraft the current text with a view of making it more concise in line with what Valéry Giscard d'Estaing suggested in February 2006. For the former French President and former President of the European Convention, the debate should be refocused on the only genuinely constitutional parts of the Constitutional Treaty, that is, on Parts I and II which concern respectively the institutions of the EU and the Charter of Fundamental Rights. His suggestion, however, not to abandon Part III on the policies and functioning of the EU but to make it ratified by national parliaments, unlike the new and more "fundamental" treaty based on Parts I and II which would normally call for a popular vote, appears impractical. Although Part III mostly codifies current legal provisions, countries such as Denmark or Ireland may nonetheless be constitutionally required to hold a referendum on this text as well. It may be wiser, therefore, to contend ourselves with a new and unique "mini-traité" of 10-15 articles, as advocated in February 2006 by Nicolas Sarkozy, the leading contender for the French Presidency in 2007. This "mini-treaty", which will merely amend the existing Treaties and not replace them with an entirely new machinery, could then be ratified either by referendum or by national parliaments.

The use of the word "constitution" should also be reconsidered and used only if genuine changes to the current European Treaties are proposed. With the benefit of hindsight, it is clear that it was not a sensitive choice, not only because the term constitution is (though erroneously) synonymous in the mind of most voters with unalterability, therefore dramatizing the debate, but also because it spectacularly raised expectations, in particular in France. And these expectations could only be disillusioned by the reading of a document of 448 Articles, which does not revolutionize the nature of European integration and does not alter the complexity of its current decision-making process. This diagnosis has now been accepted by the Member States.

Regardless of its name and content, two new indispensable conditions should govern the ratification of any new "Constitution" or "Constitutional Treaty":
  • Member States must accept its ratification on a super-majority basis rather than unanimity; and
  • the text must clearly articulate what would happen to the Member State(s) which will be unable to ratify it.
Voters' interest and attention would certainly be enhanced by a clearer and shorter text, with obvious and immediate negative consequences in the case of rejection. Such conditions would also help focusing the debate on the EU and the new text rather than on issues of domestic politics. Were the unanimity requirement to be retained — pure folly in a Union of 25 or more Member States — the EU would certainly find itself once again into another constitutional conundrum. On the long-run, Member States would also be well-advised to emulate Ireland with its National Forum on Europe. There is a need indeed for a politically neutral public space offering a regular and popular debate on the European project and European policies. Such a space may help citizens realize that even respectable politicians often hide behind "Brussels" to justify unpopular but inescapable policies. As for the proponents of European integration, it may advisable - as suggested by Tony Blair in February 2006 - that they forget meta-politics for a while and concentrate on a "Europe of projects", i.e. practical policy proposals, in order for citizens to see the benefits of integration. They should also relentlessly explain (and defend) the EU for what it is: not a super-state in the making but an original and unprecedented system of government by, of, and for the Member States, with conferred and limited powers, and which is perfectly democratic in light of its "consociational" nature. In parallel, Eurocritics' inconsistencies, gladly propagated by shameless tabloids, should be constantly highlighted and concrete alternatives demanded from them. This is not to say there is no considerable room for improvement. The EU's current rules of governance and some of the most important EU's common policies (in particular, the Common agricultural policy and the Regional policy) are in need of serious reforms. But if Europeans are to preserve their way of life and not become politically insignificant, they should be careful not to "throw the baby out with the bath water".

Laurent Pech is Jean Monnet Lecturer in European Union Law at the National University of Ireland, Galway and the author of Taking the EU Seriously: Persistent but Misguided Constitutional Controversies (forthcoming, 2007)

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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