European Union

The German Presidency and the Constitutional Malaise

18 Dic 2006 - Andreas Maurer - Andreas Maurer

According to the conclusions of the European Council of 15-16 June 2006, in the first part of 2007 the German EU Presidency will present a report on the state of discussions regarding the Constitutional Treaty and will explore possible future developments. The task of putting the Constitutional Treaty – or, more likely, an alternative Treaty that permits wide-ranging institutional reforms in the EU – on track for ratification will be an extremely difficult task in political terms.

Almost all member State governments, the European Commission and the European Parliament have formulated proposals for dealing with the crisis triggered by the double “no” in France and the Netherlands. However, the actors start from conflicting premises in most cases; they keep their real interests under wraps and formulate their proposals vaguely.

This is why the June 2006 summit was not able to take a joint strategic decision on the fate of the Constitutional Treaty or the search for an alternative. And this is also why Germany, in the first half of the year 2007, faces one of the most difficult tasks a German government has ever had to tackle during its EU Presidency.

Missing: A common yardstick
The heart of the EU’s and the Presidency’s problem is more than simple disagreement over the question of how to deal with the impasse in the ratification of the Constitutional Treaty and the underlying crisis of the European integration project. The causes of this lack of direction lie much deeper; so too do the reasons for the severe difficulties the presidency encounters in its efforts to gain an overview of the different proposals: almost none of the 27 Governments have revealed their real political aims in the current discussions about the EU’s future. There is no shared yardstick by which the problem-solving potential and chances of implementation of the various proposals can be measured. In elaborating such an instrument, there would be four obvious categories of interests and aims which should be referred to:
1. Implementing the Constitutional Treaty on the agreed date of 2009: The Presidency would consider whether the proposals further the goal of putting the Treaty into effect by June 2009 at the latest, as the Heads of State and Government agreed when they signed it.
2. Refuting or accommodating the arguments that led citizens to reject the Constitutional Treaty or integration as a whole: this criterion assesses the extent to which the proposals satisfactorily deal with the reasons motivating those who rejected the Treaty in France and the Netherlands as well as those who could reject it in countries that still have to complete ratification. Proposals that meet these reservations would increase the chances of ratification of the existing Constitutional Treaty or an alternative treaty.
3. Achieving the reform goals laid down in the Nice Treaty: all proposals can be measured against the mandate of the Constitutional Convention and the Intergovernmental Conference that was sketched out in the Treaty of Nice (in Declaration No. 23 on the Future of the Union), to discover the extent to which they satisfy the terms of that brief. The Constitutional Treaty can be regarded as the fulfilment of this mandate. For that reason, the Presidency’s analysis of this third criterion is largely a matter of juxtaposing the alternative proposals against the existing answers of the Constitutional Treaty.
4. Providing a face-saving way out of the deadlock situation for governmental actors: this requirement is especially important for the non-ratifiers of the Constitutional Treaty. France is, for example, facing election battles in which the future government’s positioning on the EU is likely to play an important role. There will be a comparatively high degree of public attention regarding EU issues, hence the need to provide any new government with a credible explanation why it should support the content of the Constitutional Treaty or a new reform compromise. But this criterion is likewise of importance to the ratifiers of the Treaty, especially in referendum countries such as Spain or Luxembourg in which any deviation from the ratified Treaty has to be explained convincingly to the public.

These four reference points allow the Presidency to conduct a structured assessment of the various tabled proposals concerning the progress of institutional reform in the EU. In the absence of such transparency, there is a real risk of the debate unravelling and the Union becoming politically even more fragmented.

Add-ons and opt-ins as last resorts
Proposals for amending the Treaty (with a protocol, a declaration, or a charter) are clearly designed to rescue the Constitutional Treaty and to achieve its goal of implementing the reform projects set out in the Treaty of Nice. Addenda could constructively address the concerns of the Treaty’s critics without affecting the political substance of the Treaty.

The “add-on” strategy clearly seeks to accommodate as far as possible the arguments that led citizens to reject the Constitutional Treaty or indeed European integration as a whole. It is an instrument to implement the Constitutional Treaty in 2009, as agreed upon; it would safeguard the full reform package accepted by the Intergovernmental Conference (IGC) in 2004, thus achieving the reform goals sketched out in the Nice Treaty and in the Laeken declaration.

The problem with this strategy is that the conflicting interests of many national Governments with regard to the future of the EU could make it impossible to develop a solution which allows all 27 Governments to return to their home constituencies with a face-saving solution. Nota bene: the failure of the constitutional referenda in two countries has tangibly shifted the parameters of the debate on the future of the EU and has made resistance to the Treaty for the countries which have rejected or not yet ratified easier in political terms than was the case when the IGC broadly endorsed the work of the Convention in 2004.

Saving the institutional reforms by renegotiating or slimming the Treaty
Nicolas Sarkozy, the neo-gaullist candidate for the next presidential elections, called for a shorter treaty text based on the first part of the Constitutional Treaty. This text would regulate the institutional and procedural organisation of the 27-member Union. Sarkozy proposed having this “mini-treaty” ratified only by national parliaments and left open the question of how the Charter of Fundamental Rights included in the second part of the Constitutional Treaty and the reforms of the third and fourth parts of the Treaty should be put into effect. Sarkozy’s proposal would only offer a way out if he were to win France’s May 2007 presidential election and then claim an electoral mandate for pushing an abridged reform treaty through the French parliament. Whether the German federal government is also entertaining this option is unclear. Its recent idea of saving the “political substance” of the Constitutional Treaty suggests an attempt on Berlin’s part to consider the idea of a mini-treaty carefully. The conditions for the German government’s acceptance of a mini-treaty would be twofold: firstly, a sufficiently large number of states would have to be prepared to rally behind this treaty. Secondly, not only the new French leadership, but in the long run all European governments, would have to express their willingness to define the “political substance” of the Constitutional Treaty in broad terms so as to come close to the reform compromise contained in this document.

Different interpretations of the Sarkozy proposal have already emerged. One reading is that it implies freezing the first, or the first two, parts of the Treaty, while a new formula for the third and fourth part would have to be developed, for example, as an amendment to the policy provisions in the Nice Treaty. An alternative reading, which seems to be the more dominant in government circles in Paris, is that the proposal opens the door to institutional cherry-picking in the first part of the Treaty, and may well end with a micro-reform package put on track alongside the obligatory EU Commission reform in 2009. In this reading, the proposal by the UMP candidate for the French presidential elections comes closer to the Nice Plus scenario discussed below.

No matter which of these suggestions for overcoming the current impasse turns out to be the more appropriate, proposals that are centred around the text of the Constitutional Treaty, but at the same time undo its “package character” call into question the outcome achieved by the Constitutional Convention and the Intergovernmental Conference. The scope of the renegotiation would probably not be confined to revision of the points criticised by the French and Dutch opponents of the Constitution. Other aspects would in all likelihood be called into question by other member governments. Certain actors could take the negotiations as an opportunity to put elements of the Constitutional Treaty that they themselves were unhappy with back on the agenda.

Evaluated against the criteria set out above, this minimalist strategy neither seeks to accommodate the arguments that brought citizens to reject the Constitutional Treaty nor serves as an instrument to implement the Constitutional Treaty in 2009. Regarding the substance of reform, re-opening the package may lead to a situation which does little to ensure the implementation of the reforms contained in the Constitutional Treaty, and may not even satisfy the requirements set out in the Nice Treaty. Some governments, particularly of those countries which have already ratified the Treaty, would face the problem of explaining this roll-back to their electorate.

Expectation management: The ultimate task of the German Presidency
As the German Council Presidency intends to save at least the political substance of the Constitutional Treaty, the fiftieth anniversary of the European Community at the end of March 2007 could serve as a fresh starting-point by adopting a commensurate declaration to address the citizens concerns, fears and demands. Due to national elections in spring 2007, France is not going to be able to make any commitments before June 2007, but attempts should nonetheless be made to encourage French actors to adopt a more cautious fundamental attitude to the question of the Constitutional Treaty and, especially, to foster greater critical self-reflection both with respect to their own role in the EU and to the costs of weakening the EU.

A strategy of confrontation with the “no”-voters and not-yet-ratified countries could put the “friends of the Constitutional Treaty” in a situation where the outcome of a new initiative is that twenty countries, at best, agree, while two continue to reject the Treaty and three want to wait longer. In this constellation, the political leeway for the “friends” would be small. Rather than seeking to maintain the integrity of the Constitutional Treaty, the best feasible option today seems to put all efforts into saving the core institutional reforms agreed upon in Part I and in the institutional, procedural and financial chapters of Part III of the Treaty, amending the rest of Part III in such a way that it enables the functioning of the EU according to the needs of particular policy areas. This strategy could be complemented by the so-called Berlin Declaration of March 2007 marking the fiftieth anniversary of the Rome Treaty: a forward-looking declaration which re-introduces a sense of political leadership into EU policymaking on the global challenges facing the EU today could reinvigorate popular support for European integration and privilege efforts to safeguard core reforms.

Given the actual circumstances, the 18-month “group presidency” of Germany, Portugal and Slovenia needs to clarify as much as possible the interests of the member states and their current willingness to act. During the past years no progress was made toward clarity. The task of the upcoming presidencies will have to be clarification above all. This will allow them to propose a basis for discussing EU reform options. Only on this basis will it be possible to suggest a temporal but also substantial framework acceptable for all participants, within which to proceed further.