The German Presidency after six months of diplomatic talks behind closed doors and of two days of extreme marathon rounds of talks was just about to manage, at the very last minute, at 5 am on Saturday 23 June, to come up with a compromise. EU-leaders have finally agreed on the outline of a new Treaty for the Union with formal intergovernmental negotiations to start on 23 July. Despite the fact the negotiations have been extremely tough, the Presidency, with the support of the Member States continues to praise the intergovernmental method of treaty revision.
The result, full of compromises, opt-out opportunities and special texts for certain countries, is not going to give rise to a treaty that wins any federalist awards. Indeed, the result is extremely disappointing for anyone who had been campaigning for a Constitution for Europe and in particular for the Constitutional Treaty. What is left from the improvements achieved by the Convention? Where did the substance of the Constitutional Treaty go?
A detailed IGC mandate has been adopted, which is far away from citizen’s expectations but gives satisfactions to EU-leaders. In fact, the vast majority of EU-citizens, even the ones who voted against the text in the Netherlands and France, where not against the institutional reforms and the Charter of Fundamental Rights proposed by the Constitutional Treaty, on the contrary. Nonetheless, the IGC mandate goes further than just changing the form of the Constitutional Treaty as the substance has been touched and thus also the equilibrium reached by the Convention in 2003.
Summit Outcome
A “reformed treaty” amending the existing Treaties, TCE and TUE is the main innovation given by the IGC mandate. The TUE will keep its name and the TEC will be called “Treaty on the Functioning of the Union”. Thus the constitutional concept, which consisted in replacing all existing Treaties by a single text called “Constitutional Treaty” is abounded.
In fact, this involves much more than just loosing the name “Constitution”, as the new Treaty will use in fact its constitutional character. It starts with the suppression of the Preamble and the European symbols from the Treaty. Common values and symbols are not indispensable to an institutional settlement, but perhaps desirable to create the premise of a European identity. It continues with the opt-out agreement of the Charter of Fundamental Rights for the UK. Thus the civil and social rights given by the Charter are only applicabe for certain citizens but not for all.
What is perhaps more damageable is the loos of the possibly for the EU to speak with one strong voice in the world. Indeed the compromise reached is a water downed CFSP with the loss of the Minister of Foreign Affairs. Now the foreign Minister will be called “High Representative of the Union for Foreign Affairs and Security Policy”. What is the use of having a High representative, with very limited powers?
Furthermore, the lack of a clear terminology and efficiency of EU-Legislation contributes to the substantive change of the Constitutional Treaty. For instance the supremacy of EU law will be deleted and replaced by a declaration on the supremacy of EU law. Then, the denomination of “EU framework law” and “EU law” will be abandoned and instead the existing denomination of “regulations”, “directives” and “decisions” will be kept.
...this summit showed once again that Europe is currently only the sum of nationalist ambitions and Machiavellian intrigues between EU capitals.
Last but not least, the introduction of the qualified majority voting proposed by the Constitutional Treaty, i.e. the double majority voting system based on 55 percent member states and 65 percent population, has been significantly delayed. Member States agreed that the current Nice treaty voting system continues until 2014. From 2014-2017, a transition phase kicks in where the new system applies, but the original system under Nice can still be used to take decisions if a member state thinks it necessary. After 2017, only the new system applies. An easier threshold to delay a decision also kicks into place from 2014. The EU will perhaps continue to legislate for the next 10 years, but with very little improvements and efficiency and without gaining transparency.
Conclusion
To sum up, the European Council agreed on a reform treaty and called an IGC. Heads of State and Government have promised, that by the end of the year an agreement on a new Treaty should be reached and that the new text should be ratified in all Member States by mid-2009, ahead of the next European elections. On the other hand, this summit showed once again that Europe is currently only the sum of nationalist ambitions and Machiavellian intrigues between EU capitals. As long as the EU-leaders continue to reform treaties with diplomatic tools of the 19th century, based on unanimity and secretive talks, the EU will remain far away from citizens concerns and not be accountable for them.
Last but not least, it is important to remind that an agreed IGC mandate doesn’t guarantee the outcome of an IGC and which is even less certain is that 27 Member States will ratify this text. Ireland definitely, Denmark possibly will hold a referendum on the new text. There is also a chance that the Netherlands - one of the countries which rejected the Constitution in a referendum in 2005 - will hold another vote. The other 24 Member States are expected to opt for the simpler option of parliamentary ratification. What is worrying is that EU-leaders came to Brussels determined to do everything to pre-empt calls for referendums, following the experience of 2005. One of the big challenge if not the biggest challenge for the EU in future is to involve the EU-citizens in a debate over Europe to make them feel their voice can be heard. Europe cannot go on being an elite-driven project.
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