EUROPE'S WORLD May 2006
Philippe de Schoutheete

La version éditée de l'article par Europe's World:

When confronted with a situation that is both critical and complex it is generally advisable to go back to basics. Now that precisely such a situation has arisen in the European Union with the rejection of the constitution by French and Dutch referenda, what are the basics?

A first point - aptly made by Tøger Siedenfaden in the Spring issue of Europe's World - is that referenda do not represent a "higher form" of democracy. Representative democracy is not such a bad legitimation mechanism, the basic values of post-war western democracies in the period defined, incorporated and defended by the UN, NATO and European treaties, none of which were approved by referenda. If the European Coal and Steel Community treaty had been submitted to a referendum in 1950, it would most certainly have failed in France, Belgium and the Netherlands. Five years after the war, public opinion was not ready to accept any treaty implying durable links with Germany. Its foundation was nevertheless an act of wisdom worthy of mature democracies. Countries that practice referenda are no more democratic than a country like Belgium where they are prohibited by the constitution. Nevertheless, the trend in favour of referenda on European treaty issues is strong and will not go away.

A second point is that international relations are based on the assumption that governments will ratify and implement the treaties they have signed. Treaties are to nations what contracts are to business: if you don't respect your signature, your credibility disappears. Why negotiate a new text with a government that has shown itself incapable of implementing the previous one? This point does not seem always to be understood, notably in France where part of the "Non" campaign in the referendum was based on the false assumption that a "plan B" would appear from somewhere, or that a new treaty could easily be negotiated. An interesting parallel is to be found in Michel Dumoulin's biography of Paul-Henri Spaak. In June 1954, Spaak, as the Belgian Foreign Minister, was pressing France for speedy ratification of the European Defence Community treaty, but French Premier Pierre Mendes France suggested modifying the text. Spaak reacted angrily, saying that "it was not for France to modify a treaty which she had signed with others". When such an incident occurs, time has to elapse and leaders change before fresh discussions can take place.

A third point, perhaps easily forgotten, is that the treaty we are talking about is neither the result of abstract academic debate nor a technocratic conspiracy by unelected civil servants. In all its essential parts, it is the result of 18 months of debate in a constitutional Convention that was almost entirely composed of elected politicians. They were not "representatives" in the sense of having been elected for that precise purpose (as Siedenfaden would like to see happen in future), but they were representative in the sense that they were drawn from a wide variety of political forces and reflected the diverse views prevalent in member states, candidate countries and EU institutions. They spent three months listening to all sorts of opinions expressed by civil society, and then with an unprecedented degree of transparency debated for more than a year before finally coming to a large degree of agreement. The Presidium, somewhat optimistically, chose to call it a consensus, and in a moment of euphoria the text was called a constitution.

The fact was that both "consensus" and "constitution" were the result of negotiated compromises between left and right, big and small, rich and poor, members new and old, federalists, sovereignists and eurosceptics, net payers and net receivers, national institutions and European institutions. That those compromises are highly relevant to political life in Europe has been confirmed by the fact that a majority of member states, representing a majority of the population of the Union, has ratified that treaty. The two referenda have obscured that historical background and those facts, but they are, nevertheless, facts.

What conclusions can we draw from these considerations? First that it would be madness to launch a new full-scale negotiation process of the sort that, through the Convention, led to the present constitution. There is no reason to suppose that a new negotiation would arrive at a result fundamentally different to the one reached in 2004. Contradictory interests, views, ideologies, concepts and prejudices determined the result of that exercise, and these do not change rapidly. And who can guarantee that a new treaty, probably quite similar to the present one, would be easily ratified? We cannot run the risk of another major failure.

Similarly, the idea of cherry picking this or that part of the treaty should be treated with extreme caution, at least in the short term. Each element of the treaty is the result of mutual concessions, linking one article to one or more others. The idea that some parts can be implemented in isolation is, for the most part, naïve, though there may be some exceptions.

We need time; certainly more time than the single year allowed for in the European Council's decision of June 2005. Time to see new political leaders come to power. Time to fully recognise the weaknesses of the present system of European governance, which every new presidency makes the more obvious. Time, hopefully, to benefit from an upturn in economic activity and a decrease in unemployment. Time to take a few concrete initiatives on points which concern European citizens, and bring these initiatives to successful outcomes. In short, we need time to overcome the atmosphere of collective angst and depression that is a partial explanation at least of the two failed referenda.

This leads us probably to 2008, perhaps even later as suggested by a recent manifesto from the London-based Centre for European Reform. But what then? A new generation of political leaders, facing internal and external challenges to the prosperity, social structure and influence of the European Union, will have to debate how to strengthen the weak system of European governance they have inherited. In the first instance they will have to consider whether it is at all possible, in a Union with 27 or more members, to adopt quasi-constitutional texts similar to the recent treaties (Maastricht, Amsterdam, Nice, and the constitution itself) and apply significant across the board reforms of the institutional structure. They may come to the conclusion that in such cases referenda are inevitable in a large number of EU countries, and that the risk of losing at least one of them for whatever local reason means the exercise is counter-productive and should no longer be attempted. This opinion is certainly gaining ground at the moment. Or the next generation of EU leaders may come to the opposite conclusion, that although referenda will always be risky their number and their scope can be limited and the chances of winning them increased through this or that practical arrangement, and that therefore we should not abandon the concept of broad and ambitious treaties.

If the second opinion were to prevail, the constitutional treaty would become the object of renewed interest. It is a relatively well balanced and coherent text and it has the great advantage of being on the table, while all other solutions would have to be negotiated from scratch. To make it more acceptable to this or that constituency, declarations and protocols could be added to it, as was the case when past treaties ran into difficulties. Its name might also be changed, because the concept of a "constitution" has in various countries been part of the problem. A more ambitious change would remove Part Three of the treaty, dealing with policies, from the rest so as to underline the institutional character of the text. This last change is more difficult than many people believe, not only because of numerous cross references in the present text, but also because some policies are considered by some countries as sacrosanct and worthy of the most exalted location in the treaties. However, the exercise is technically feasible and some discreet preparatory work is already being done. All these different arrangements should be the object of a political agreement between member states before the convocation of a new intergovernmental conference (IGC). The understanding should be that no subject other than those previously agreed upon would be debated in the IGC. This is probably the only way to avoid opening Pandora's box and debating anew every single article of the treaty. The approach suggested above is neither easy nor without risks, but it remains realistic as long as the initial assumption, namely that the ratification process can succeed, turns out to be correct.

If, on the other hand, heads of government were to conclude that we should no longer attempt to draft major new treaties, but instead concentrate on solving one by one specific weaknesses or points of inefficiency in the present set up, then the time would come for the cherry pickers. And, again, the treaty would be a primary source because it deals in a balanced way with many recognised weaknesses and inefficiencies. One can imagine a protocol creating the post of foreign minister at the head of a joint EU external service; and another one, a little later perhaps, extending majority voting and parliamentary co-decision to some new policies; then a third protocol giving a degree of competence to national parliaments in the European decision-making process, and so on. Some countries might decide that such treaty amendments, because of their limited scope, did not justify holding a referendum. In those countries where a referendum would nevertheless be held, the debate could presumably be concentrated on the specific issue at stake, without wandering into speculation on, say, the ills of globalisation or the threat of Polish plumbers. Democracy is better served when public debate is concentrated on specific concrete decisions rather than on legal texts dealing with a great variety of issues.

And of course cherries can be picked in groups of different size. Some countries might want to adopt and be bound together by the defence provisions the constitutional treaty offers. Others might want to move forward in matters of justice and home affairs, as indeed some have decided to do in the treaty of Prüm. Belgium's Prime Minister Guy Verhofstadt has widely advocated, including in the pages of this journal, the idea of a political core based on the eurozone. A number of possibilities on reinforced co-operation are offered by treaty provisions, and beyond that experience shows that whenever a political will exists, legal experts will find a way to allow some to move forward.

An interesting point is that the constitutional treaty remains central to whatever realistic scenario one might consider. All over Europe, journalists, experts and politicians (including some government ministers who should know better) have pronounced it dead. But past experience shows that if they are sufficiently broadly based, balanced and coherent, such texts do not die. In fact, they cannot be killed! The Tindemans report, by former Belgian Premier Leo Tindemans, is a good example. On the basis of wide consultation in all Community countries, it proposed in January 1976 a number of relatively ambitious institutional reforms and new policies. It was poorly treated, and in the course of the year to the glee of some and the despair of others, several European Councils, acting with due politeness, pronounced it dead and buried. But to read that report today, practically every single proposal it contains has been put into application over the years. Not because some supranational demon is at work behind the scene, but because it gave a correct assessment of medium-term problems and potential solutions. In my view, this is also the case with the constitutional treaty. A more brilliant future may yet be in store for it, but even if its destiny is to follow in the steps of the Tindemans report, so be it. In the very long run, it doesn't make much difference.

p.deschoutheete@irri-kiib.be

ADDITIONAL READING:

"Spaak"
Michel Dumoulin, Racine, 1999, ISBN: 2873861622