Counting the Constitutional Blessings

This CEPS analysis looks at the main achievements of the Constitutional Treaty and the challenges that may lie ahead in the upcoming ratification process.

Any celebratory feeling over the agreement between the European leaders on a EU Constitution reached on June 18 was immediately overshadowed by the fact that they will now have to secure its ratification. There will be referenda in a considerable number of member states and given the sobering results of June’s European elections, it is easy to be sceptical concerning the success.

There is something ironic about the fact that mounting Euroscepticism threatens the ratification of a document that has very much been drafted with an eye to the main arguments of those who picture the EU as an inefficient and undemocratic machinery. The two guiding themes of the constitutional process can be summarized as ‘more efficiency’ and ‘more democracy’ for a future European Union. It would be unrealistic to expect these to objectives to be realised through the drafting of a Constitution alone. Also the Constitution does fall short in a number of respects. Yet, with all reservations we should still be able to recognise what is achieved by the Constitutional text that now lies before us.

A first good sign is that the Intergovernmental Conference for the first time has not agreed on a deal that has been hammered out in a ‘night of long knives’ favouring those politicians who were still capable of making their case at four o’clock in the morning. The European Heads of Government definitely took that lesson to heart, as was also illustrated by the early dissolution of the 2003 December European Council that was initially set to finalise the Constitution.

Most importantly, however, the Intergovernmental Conference had its work cut out for it by the constitutional draft prepared by the European Convention and the strict guardianship of the Italian and Irish Presidency ensured that the integrity of this document remains to a great extent preserved. For sure, some radical Convention proposals have been scrapped, but on other points the IGC has also clarified and even improved the Convention text. In the end the most fundamental innovations of the Convention concerning efficiency and democracy have been maintained.

As regards ‘more efficiency’, this means that the ever more Byzantine structure between the different EU treaties will be repealed and instead we are now looking at a coherent constitution with four main parts that fully includes the Charter of Fundamental Rights. Equally, the abolition of the three ‘pillars’ and the clarification of legal instruments and procedures mark major progress towards more efficient and transparent decision-making.

The biggest progress concerning ‘efficiency’ is the extension of qualified majority voting to 20 more areas and the abolition of the complicated and restraining voting system agreed in Nice through the introduction of the ‘double majority’ rule. Allowing EU legislation to be passed by 60% of the member states (15 out of currently 25, eventually to be replaced by 55% of the states) and 65% of the population, it will be a major step to secure the Union’s potential for action. It ensures that ‘constructive majorities’ can be organised more easily and limits the scope for the popular technique that national vetoes are used to take certain policies ‘hostage’ in order to get better benefits in other, not related areas. On the other hand, last-minute adaptations to the double majority system will secure that at least four countries have to reject a decision, thus avoiding dominance of large member states. The double majority system will also be open to future enlargements without having to negotiate voting weights for the incoming countries on an ad hoc basis.

Concerning “more democracy” the Constitution also brings about major achievements. The Union will have a single legal personality and can thus act and be held accountable on the international scene. Co-decision as the standard legislative proc edure will further enhance the position of the European parliament and thus strengthen the representation of citizens. The principle of subsidiarity that often has been reproached of being pure ‘lip service’ by a Union disconnected from the citizens is significantly strengthened. It will now actually be possible for regions to go to Court in cases where subsidiarity might not have been observed. Additionally, there is an early-warning mechanism concerning legal acts contradicting subsidiarity. The possibility of citizens petitions that will oblige the Commission to come up with a legislative proposal on a specific issue is another important step towards a more democratic Union that will be closer to citizens’ concerns.

Acknowledging the progress made, there would certainly still have been scope for even ‘more efficiency’ and ‘more democracy’: For some it might come as a disappointment that the constitution will not provide for qualified majority voting in foreign policy or tax harmonisation, because in the enlarged Union ‘unanimity’ will essentially mean paralysis in the areas concerned. One may also regret that there is little progress in increasing the leverage of the electorate over EU executive power, in particular the European Commission. In times of widespread voter apathy a stronger personalisation of the elections and an end to the undignified nomination procedure would have been appropriate.

Looking at different countries where referenda will be held, Poland and the United Kingdom currently seem like the biggest challenges for ratification. Throughout the negotiation process the British government has been squeezed between the hostile press at home and its willingness to act as a constructive partner in Europe. Over time this led to an ever more defensive attitude that came to be epitomised in Blair’s famous ‘red lines’. In the eventual outcomes all of these red lines have basically been conceded by reinstating unanimity or even scrapping certain EU competences altogether (tax), something which may well contribute to the creation of new gaps between EU promises and abilities. At the same time though, London has refrained from seeking to roll back some of its concessions it made earlier (EU Foreign Minister, incorporation of the Charter) and it also has kept a distinctly low profile on the whole issue of voting weights in the Council. Upping the stakes by turning the vote on the Constitution into a vote about EU membership, the Labour government plays a risky game of calling the Euroskeptics’ bluff. If it succeeds in forcing the British to reflect upon the value of EU membership, it may serve to normalise the UK’s position in Europe but chances are also that further irreparable damage is done to what has always been an awkward relationship.

Also in Poland there is a dangerous mix of disinterest and resentment, albeit with the crucial difference that Poland will actually lose power in comparison to the Nice voting system. Any government would face a formidable challenge to positively engage the Polish electorate on the Constitution but given the state of Polish politics at this point, one may well wonder whether a yes-campaign can get itself mobilised. Alternatively, if turnout stays below 50%, the decision will have to be taken by the parliament where ratification under the present political conditions may prove even more difficult.

In comparison, the Spanish case looks less daring despite its key role in prolonging the negotiations. Although Spain indisputably did loose some weight in the Council of Ministers, European project has earned itself some credit in Spain. Yet, if there will be a referendum, the right-wing opposition will no doubt seek to expose the new Prime Ministers Zapatero as having signed up to a reduction of Spanish power in the Council that it itself has resisted throughout. Thus, the referendum is likely to be a major test of the political authority of the new Spanish government.

Indee d, the fact that in many referendums the EU Constitution is likely to become an object of national political squabbles is a reason for serious concern. Not least does this apply for the case of France where there is also much public pressure for a referendum. Various leading French politicians have already come to criticise the constitution. Whatever the vote in France will be, however, little of it will hinge on the final decision of the IGC. National political stand-offs apart, much of it will come down to getting the point across to the French public – and to a considerable degree to the political elite itself – that there is no realistic alternative for a better, integrated and enlarged EU than through this Union.

The different examples show that undoubtedly it will demand a lot of political effort and conviction from European leaders to sell the Constitution to their respective national publics. However, from the broader ‘European’ perspective, the Constitution means such significant progress concerning both ‘more democracy’ and ‘more efficiency’ that it should be worthwhile to make this effort.

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