The EU Constitution and French Referendum: Law v. Politics Commentary
The EU Constitution and French Referendum: Law v. Politics
Edited by: Jeremiah Lee

JURIST Guest Columnist Dr. Laurent Pech, Jean Monnet Lecturer in European Union Law at the National University of Ireland, Galway, says that the proposed European Constitution may be less than it's cracked up to be, and that its possible rejection by French voters in the referendum slated for late May could actually lead to a stronger and more integrated "core Europe"…

The temptation to draw an analogy with the Philadelphia Convention of 1787 proved irresistible to some members of the “European Convention”, the ad hoc body whose mission was to draft a Constitution for Europe. The actual content of their text, signed in Rome in October 2004, leads to a more modest appraisal. But while formally being not more than a treaty, the reference to “constitution” has proved sufficiently provocative to potentially bring down the European house. Such an outcome would certainly be unfortunate considering the institutional challenges facing the European Union by its latest enlargement to twenty-five Member States.

If the word “constitution” has raised expectations and focused in France and elsewhere the attention of so-called Eurosceptics — quite a diverse group in reality — the arguments raised by the critics of European integration do not vary much. Although the focus may differ in each Member State, their criticism consistently emphasizes the same issues; the creation of a superstate or the existence of a democratic deficit are among the most popular allegations.

Does the constitutional treaty, shorthand for the formal “Treaty establishing a Constitution for Europe”, deserve so much vilification or, to put it more dispassionately, does it represent a radical departure from present EU treaties?

My reading of the constitutional treaty leads to a more balanced and modest assessment. While the treaty improves to some extent the efficiency and transparency of the decision-making process and simplifies, for instance, the allocation of competencies between the Union and the Members States, it does not alter the current political and legal equilibriums. To paraphrase Abraham Lincoln, the European Union was, is and under the constitution will remain a government of the Member States, by the Member States, and for the Members States.

A lack of consistency, and a good dose of ignorance associated with a great deal of bad faith, typically characterise the negative appraisals of the EU Constitution.

For instance, the argument about the prospective creation of a superstate, an obsession of Margaret Thatcher, ignores all material and legal facts. Yet to merely focus on the constitutional treaty, Article I-1 says it all: “…this Constitution establishes the European Union, on which the Member States confer competences to attain objectives they have in common. The Union shall coordinate the policies by which the Member States aim to achieve these objectives, and shall exercise on a Community basis the competences they confer on it.” To put it succinctly, the Constitution does not change the nature of the relationship between the European Union and the Member States: the Union may only act if it has the competence to do so, meaning competence conferred on it by an exclusive and unanimous decision of the Member States, and the Union does so in an extreme decentralised manner. The Union does not and will not have any independent sovereignty, to use an old and familiar concept.

As for the famous "democratic deficit", not only does the diversity of competing diagnosis make the expression meaningless, the accusation quite often reflects a phantasmagoric vision of democracy not even applied at the local level. Worse, the lack of consistency from the proponents of the democratic deficit vision is astonishing. Indeed, the more democratic the Union, the more powerful it will be. If you plead on the one hand for preserving as much authority as possible for the Member States, it is quite remarkable to plead on the other hand for a more democratic Union, as that will certainly lead to a more powerful and independent EU. In any case, the Constitution again offers some innovative thinking with the association of two models of democracy: representative democracy (Article I-46) and participatory democracy (Article I-47). In practice, among other novelties, a new mechanism will allow direct input from Union citizens, if they number at least a million and represent a significant number of Member States, allowing them to ask the Commission to submit to the legislature any legislative proposal they consider necessary.

If transparency and accountability are two key criteria of a democratic regime, then the Union does not suffer comparison with Member States. Moreover, the Union’s political regime is extremely consensual and protective of its smallest constituents. Should some complain about a lack of “democracy”, the biggest Member States would certainly be entitled to do so. Among them, Germany deserves honorable mention for having permanently subsidized European integration whilst accepting a remarkable diminution of representation within the decision-making process. For instance, if one looks at qualified majority-voting within the Council of Ministers — the most powerful legislative organ of the Union — Ireland, with 7 votes for 4 million people, is almost five times “better represented” than Germany with 29 votes for 80 million people. As a rule, “small” Member States benefit from an overwhelming overrepresentation. Without the Union, their political influence would certainly have a far smaller say in European and World affairs.

In all fairness to its regular critics, the European Union is a political and legal creature difficult to come to terms with. To take a simple example: the distinction between the European Community and the European Union. A nightmare for first-time students, this uneasy distinction is the fruit of the Maastricht Treaty which created the European Union, a concept comprising the European Community, as well as other forms of cooperation. Technically, the European Union has no legal personality and therefore, to put it simply, what is being studied in law schools is EC law and not EU law. Yet again, the Constitution greatly simplifies the situation: only the Union is due to survive as a legal entity (Article I-7).

Notwithstanding the clear and numerous improvements brought by the Constitution, their technical nature makes it a tough sell for politicians. It is undeniably quite difficult to fall in love with what remains a set of rules for what continues to be a unique but no more than a supranational framework. When coupled with the deeply unpopular French national executive holding a referendum on the instrument, these ingredients may bode ill for the popular backing needed to ratify the Constitution in France.

Although not a constitutional obligation, President Jacques Chirac decided to go for a popular ratification of the EU Constitution rather than opting for a secure parliamentary ratification. Such bravery was sensible when the decision was made in July 2004, as a comfortable margin of the electorate, more than 70 per cent, had at the time a positive view of the text. A slow but constant erosion since then has however has diminished the Yes vote to the point where recent polls suggest a slight but persistent majority against the Constitution. As with the scenario surrounding the Maastricht Treaty in 1992, the involvement of a French “presidential Monarch” nearing the end of his reign had led to a personalisation of the campaign and has multiplied the chances of a backlash. No m
atter the nature of the question being asked to the sovereign people, the referendum is always understood as a motion of confidence (a “plebiscite”) on the President. Such was the will of Charles de Gaulle in order to balance the unusual influence of the presidency under the Constitution of the Fifth Republic. Convincing its troops to vote in a similar fashion as the President is thus a delicate task for the leader of the opposition, as François Hollande, the uncharismatic leader of the Socialist Party, is now experiencing.

Despite a clear propensity of the European Constitution to disappear as a topic in domestic debates, its French opponents are also making a few substantive arguments against it.

A dominant one raises the deficiencies of the text with regard to an effective protection of one “Europe sociale”. No matter how indefinite, that concept is appealing to the French psyche with its deep-seated affection for public services as well as broad social and economic rights. In this context, the Bolkenstein directive on services offers the perfect scarecrow. Not only does the name of the former Dutch Commissioner make it easy to nickname it the Frankenstein directive, its complex governing principles necessitate some thinking and consequently, the directive could not easily resist the feel-good accusation — however unfounded — of an Europe favourising “social dumping”.

Yet the link between the Constitution and the previous directive still needs to be found. Furthermore, it is somewhat amusing that while the peril of a new European Moscow easily excites British minds, French citizens are delighted to argue against the alleged neo-liberalism aspects of the Constitution, quite often presented as the triumph of the British free-market and anti-integrationist views. To briefly answer the accusation of a neo-liberal bias, it is sufficient to mention the inclusion of the Charter of Fundamental Rights as Part II of the Constitution — a major breakthrough. Incidentally, it should also be mentioned that the same Charter has been presented in the British press as having a potentially bad impact on business as it gives too many rights to workers. A single text, two ridiculously extreme interpretations…

The prospect of Turkish EU membership also agitates the minds of French voters in the constitutional debate. Interestingly, the topic appears to have phagocyted the traditional right-centered debate on the preservation of national sovereignty or French identity. Yet again it would be challenging to discover a link between this issue and the constitutional text. Besides, the French Constitution was amended (see Article 88-5) in order to suppress any presidential margin of appreciation whether to hold a referendum to vote on the acceptance of new Member States. As a result, it will be a constitutional obligation for President Chirac’s successors to hold such referendum. The French electorate will consequently, when the time comes, vote on Turkish accession to the European Union.

In any case, if the arguments raised on social and cultural grounds are excluded, the main objective contention against Turkish membership is once more a fear of an Anglo-Saxon trap. While the numerous condescending editorials in favour Turkish EU membership in the New York Times did not help (not mentioning past insensitive actions taken by Bush Jr.), it is mostly argued that the Union’s institutional framework would not survive such enlargement. More precisely, the adhesion of what will be potentially the most populated Member State will inevitably limit any potential for further deepening of European integration. Jean Monnet’s Europe would have come to a halt, limiting its potential to a mere free-trade area.

With such important and complex questions to be debated, it is, to say the least, unfortunate that the public discussion about French ratification of the EU pact is led by unprincipled leaders, guided by short-term political calculus. A pathetic former socialist Prime Minister is betting his survival on a "Non", while the leader of the dominant centre-right party is quietly hopeful of an identical result to render irresistible his candidacy to the next presidential elections. In this ocntext there is no hope left for a discussion focusing either on the Constitution itself, or at least on the substantive merits of European integration.

For the tenants of Jean Monnet’s vision of Europe, a "Non" vote on 29 May should not necessarily be interpreted as a dramatic and negative outcome. A "Non" could actually help unravel the carefully preserved ambiguity about the finality of European integration. The Constitution being insufficiently integrative for many French voters, a Non could pave the way for a “core Europe” between Member States sharing a geo-strategical vision and genuine interest in deepening European unity.

Dr. Laurent Pech is Jean Monnet Lecturer in European Union Law at the National University of Ireland, Galway, Ireland

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.