A way out of the EU’s Constitutional dilemma

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV.COM Ltd.

Those member states who supported the original Constitutional Treaty (CT) should demand a radical revision of the current treaty amendment procedure in return for their readiness to compromise in the forthcoming intergovernmental conference (IGC), writes Janis A. Emmanouilidis of the Centre for Applied Policy Research (CAP) in a June 2007 paper.

The 18 states that ratified the CT will have to pay a huge price in any compromise reached at the summit, and yet the withdrawal of countries from the EU or the creation of a new supranational Union are neither realistic nor desirable alternatives should EU governments fail to solve the constitutional question, Emmanouilidis asserts. 

The voluntary withdrawal option is not new, observes the author – it is in the CT. Countries who are either not prepared or not able to support the development of the Treaties can leave the EU, but he rejects this option, as, he claims, it significantly weakens the Union and seriously divides Europe – plus there is no guarantee that the new ‘core’ grouping would always agree on Treaty reform in the future, so the phenomenon could be self-replicating. 

Under the supranational option, states wishing to deepen integration would establish a new Union after a failed round of treaty reform – creating an independent institutional structure outside of the current framework. The author also rejects this option, believing that the current crisis is too insignificant to risk marginalising the old EU and creating new rivalries. At any rate, he argues, there is at present limited willingness to deepen integration, and its pace is already varied across the EU, pointing to the eurozone and the Schengen agreement. 

If the current procedure is retained, then any future substantial revision of European primary law may suffer the same fate as the CT, the author fears – with a small minority of member states or a tiny part of the EU’s population delaying or preventing the Union’s development. Non-ratification will not inevitably signify the failure of a new Treaty or Constitution, but should instead call into question a country’s full membership of the Union, Emmanouilidis claims. 

The author concludes that there are two alternatives for revising the current Treaty-amendment procedure: firstly, a new Treaty or Constitution could enter into force if a qualified majority of member states has ratified the new primary law, even if not all of them have successfully done so according to domestic requirements. Secondly, if ratification of new primary law fails at the first attempt, it could enter into force after a Europe-wide referendum – by a qualified majority of EU citizens within a qualified majority of member states. 

There should be a binding agreement at the end of the forthcoming IGC that the ‘Constitutionalisation’ of Europe must continue, he adds. He reminds us that the voluntary withdrawal clause would ensure that no substantial revision of primary law can enter into force against a country’s will, as that country has the option of leaving the EU instead. 

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