Preparing for constitutional crisis

This paper outlines two main scenarios for overcoming the unanimity requirement for Treaty ratification: an ‘enhanced Union’ or a ‘Union refondée’.

Should the draft Constitutional Treaty propose any substantial progress towards European integration, ratification is bound to pose problems in a number of Member States. This paper reviews a range of possible solutions for overcoming ratification problems. It examines the options in line with the current Treaties as well as ‘revolutionary’ options such as the ‘enhanced Union’ (a treaty binding a limited number of Member States and existing alongside the current Treaties) and the ‘Union refondée’ (a treaty binding a limited number of Member States and replacing the current Treaties, a sort of reconstituted Union).

The procedure for the amendment of the Treaties on which the European Union is founded is defined in article 48 of the Treaty on European Union (TEU). It states that amendments have to be approved by a “conference of representatives of Member State governments” (Intergovernmental conference IGC) and only enter into force when they have been ratified by all Member States. The current revision process is governed by that procedure (the European Convention may at times take on the appearances of a Constituent Assembly, but its only prerogative is to prepare the ground for the IGC).

Scenarios for dealing with ratification crises under the current treaties

If the electorate of a Member State rejects ratification of the Treaty adopted by the IGC, those Member States who have already ratified it, or intend to do so, could, under the current rules:

• make do with the post-Nice Treaties (i.e. abandon the results of the ICG and the hope of revising the institutions and procedures of the Union; resort to existing modes of flexibility – such as ‘enhanced cooperation’ or constructive abstention – for developing new policies);
• request the government concerned to seek further ratification of the rejected text. Choosing this path rests on one of the following assumptions: the setback was a problem of timing and one only needs to await a more propitious electoral climate; the setback was the result of government failing to provide adequate explanation of the treaty amendments (information deficit) or lack of political commitment (political deficit); in these circumstances a more vigorous information campaign or greater political effort to construct a coalition of the willing would be sufficient (e.g. Nice Treaty and the resolution of the problem in Ireland 2001-2);
• issue a political declaration clarifying certain points, offer reassurance or even derogations to the recalcitrant state and so ‘buy’ its ratification (e.g. Maastricht Treaty and the Danish problem 1992-3 resolved following a political agreement at the Edinburgh European Council December 2002). These agreements have no legal basis (in the case of the derogations they are even anti constitutional). Such political declarations could also include a promise to incorporate these assurances and derogations in the Treaties on the occasion of their next revision;
• withdraw the text and, within the framework of article 48 TEU, convene a new IGC to consider a new plan of amendments that would include various schemes for differentiated integration – ad hoc forms of flexibility and/or a revised mechanism for ‘enhanced cooperation’ (1) (i.e. system allowing a group of Member States to use the EU framework to develop new policies that only bind the participating Member States);
• invite the recalcitrant state to leave the Union. The current Treaties have no mechanism for such action, which does not mean that it is impossible to leave the Union (e.g. the Greenland case). Important members of the Convention are now suggesting that the invitation to leave should become an obligation. The amendment to article G put forward by Andrew Duff et al, proposes that the European Constitution will enter into force after approval by t he European Parliament and ratification by five sixths of the Member States. Those Member States not wishing to ratify the new treaty will be able to negotiate an association status with the Union. Similar amendments have also been tabled at the Convention in the name of the European People’s Party by Elmar Brok and others as well as by Borrell and Carnero y Lopez Garrido, proposing entry into force after approval by four fifths of the Member States.

The Praesidium’s proposal for the adoption, ratification and entry into force of the constitutional treaty (article G) is not without ambiguity on this point. On the one hand, the Praesidium underlines in its Note to the Convention of 2 April (647/03) that, according to article 48 TEU, the Constitutional Treaty cannot enter into force “unless it has been ratified by all the Member States which signed it” and “if at least one of the signatory States did not ratify the Constitutional Treaty, it could not enter into force and the current Treaties would continue to apply.” On the other hand, the second paragraph of the Praesidium proposal refers to the entry into force of the Constitutional Treaty “… following the deposit of the instrument of ratification by the last signatory state to take this step.” Some members of the Convention maintain that this wording would allow the Treaty to enter into force without the unanimous approval of the Member States (see David Heathcoat-Amory and Bonde amendment).

This interpretation is strengthened by the fact that the Praesidium’s proposal includes a clause for a meeting to discuss possible ratification problems (article G paragraph 3). This could suggest that the Treaty would indeed come into effect when four fifths of the Member States had ratified. This could also be a simple flaw in the proposal. As Haenel and Badinter emphasise in their amendment to Part III, “the assumption is that this arrangement [the meeting clause] will only become effective with the Constitutional Treaty itself, which presupposes that it has been ratified by all the Member States.”

Enhanced Union Scenario (additional treaty)

If none of these options is acceptable to Member States who have already ratified the IGC results nor sufficient to secure ratification by recalcitrant state(s), those wishing to go further could:

• adopt a constitution-building approach, in other words establish among themselves a new multi-sectoral treaty for the consenting parties, superimposed on the existing treaties. This would constitute a sort of regional union but with the ambition of becoming Europe wide. By analogy with enhanced cooperation, one could therefore talk of an ‘enhanced Union’.

This option has been considered at different times in the past, particularly by Jacques Delors and the Club de Florence.

Among the amendments tabled by the members of the European Convention, only one foresees a permanent system of coexistence between the consolidated treaties that came into effect 1 February 2003 and the Constitutional Treaty that should be adopted by the end of 2003. Taking into account the fact that the existing treaties can only be repealed with the consent of all members of the Union, Jan Zahradil suggests that the states who have not ratified the Constitutional Treaty retain their current status and that pre 2003-4 arrangements continue to be applied.

Defining and instituting an enhanced Union

Insofar as this paper is reviewing scenarios for dealing with ratification crises, we assume that Member States envisaging an enhanced Union do so because others are blocking the entry into force of a new EU Treaty. From this, it may be deduced that they are not opposed to and probably prefer to develop new policies on the basis of a treaty.

Insofar as it is not a case of amending existing treaties but adding to them, these states are not subject to article 48 TEU. They will be free to set their own rules for the negotiation, adoption and ratification of the ‘enhanced Union’ treaty. This does not mean that their approach would have to be purely intergovernmental. They could choose the option of a convention preparing the diplomatic phase or even the option of a constituent assembly. Representatives from the European Commission and/or the European Parliament could also be invited so that early consideration could be given to exactly how the European Union would interact with the future enhanced Union.

The participation of supranational European institutions should not cause major legal problems (at least if the latter are invited to participate as observers). Though the Commission was not associated with the launching of the Schengen agreement in 1985, it was invited to participate as an observer in the work of the institutions set up by the 1990 Schengen Convention. Having said this, involving the Commission in the creation of an enhanced Union would place it in a difficult situation. Unless the Commission has a mandate from the Council for this, it could give the impression that it was acting on behalf of one “camp” at the expense of the European Union’s interest.

As to the ratification of the ‘enhanced Union’ treaty, it could also be organized on a new basis. There are numerous options at that level: ratification by enhanced Union-wide referendum or by a congress; entry into force after ratification by a majority (four fifths being the most oft mentioned threshold); partial entry into force (ie only in those countries that have ratified before an agreed date or when a predetermined number of countries have ratified). Above all the procedure adopted will have to be relatively conservative in order to minimise political risk. The supporters of an enhanced Union treaty will indeed need to overcome opposition stronger than that associated with the revision of treaties already in place (namely the opposition of those satisfied with the current level of European integration and those wanting to re-nationalise certain European policy areas). They will not be able to count on the entire pro-integrationist electorate, some in that camp being bound to reject the enhanced Union option as being dangerously divisive.

Contents of the new treaty for an enhanced Union

Those countries in favour of an additional treaty could use the conclusions of the 2003 IGC. This would have the advantage of being quick and easy, as well as relatively centripetal (recalcitrant states are more likely to be attracted by a scheme they help design than by a new framework entirely defined around pro-integrationist preferences). However, adopting the agreement produced by the IGC would not necessarily provide the best basis for the enhanced Union.

Why, indeed, use a text that had, of necessity, been influenced by concessions made to states with different ambitions and logic? Not to mention the fact that IGCs often end up in hectic package dealing among heads of state and government, which does no good for policy coherence. Therefore it would be preferable to use instead the European Convention’s proposal (because of its particular legitimacy) or to draw up a new text, based completely on the ambitions of those countries wanting to move forward.

In any case the new treaty will need to fulfil certain conditions, i.e. not be in contravention of obligations required by EU/EC treaties, nor hinder EU/EC policies. The exclusive competences of the EU will, by definition, be off limits. The enhanced Union could follow the Schengen format, focusing on a specific objective, or embrace several dormant or underdeveloped policies. The ambition could, for instance, be to set a ‘security +’ Union dealing with defence, border guards, police, social security and so on.

The institutional links between the European Union and the enhanced Union

Without doubt the creation of an enhanced Union would pose complex legal and organisational problems but should be feasible. There are two institutional options: cohabitation or splitting up. Provided that the enhanced Union is not perceived as a threat or that its supporters are able to impose such a solution, one could imagine retaining a common institutional structure, functioning through various variable geometry arrangements. If the countries refusing further integration object to the use of the EU’s institutions or impose too stringent conditions, the enhanced Union will have to have a separate set of institutions.

The option of the enhanced Union using the EU’s institutions does present some major problems: obtaining the authorisation of all the EU Member States; practical complexity; the particular strain on the supranational institutions of the EU having to serve two masters.

The option of separate institutions would be a priori easier to put in place in that it will not require negotiating the joint use of EU structures (Negotiations between the EU and Turkey concerning the use of NATO assets for EU missions demonstrated how problematic this type of arrangement could be). The duplication cost will certainly be substantial, not just in human resource and financial terms, but also in political terms. Such an option could well encourage the members of the enhanced Union to behave as a bloc inside the European Union (caucus syndrome). This would in turn affect mutual solidarity and loyalty within the EU, adding to communication and coordination problems.

Practical complexity or duplication costs will increase with the policy scope of the enhanced Union.

Relationship between the European Union and the enhanced Union 

The nature of this relationship will largely depend on the size and weight of the group making up the enhanced Union. If this group is able to command a qualified majority in the European Union, the establishment of a system of concentric circles will be possible. In most areas, decisions will be taken by the enhanced Union and afterwards ‘transferred’ to the European Union. This sort of relationship, in which there is a clear distinction between decision-makers and decision-takers, is rather akin to the one that currently exists between the EU and Norway in the context of the agreement on the European Economic Area.

If the group making up the enhanced Union is powerful but not capable of wielding a majority at the European Union level, it will be possible for it to pursue its interests through ‘institutional shopping’. In this case, as nothing can happen without its support, the group can choose where to operate. Acting on its preferences, it will be able to decide in which forum policies will be developed first. The European system would then comprise one part built for all (the common acquis) and one part developed to meet the needs of a specific group. It would appear in this case that the metaphor of a multi-stage rocket would be more appropriate than that of concentric circles.

If those engaged in an enhanced union are clearly only a minority of the European Union, one could well see the reappearance of a system that pits the differently structured groups against each other. This minority group will not only be unable to set the European agenda but its size will be insufficiently ‘dissuasive’: a large coalition diminishes the value of staying out, while a small coalition often invites the formation of counter-groups or blocking coalitions (e.g. the threat of Franco Frattini, the Italian foreign affairs Minister, to organize a defence summit with Spain and the UK if Belgium, France, Germany and Luxembourg were to create a mini-military alliance following their summit of 28 April 2003).

Fragmentation would follow. Relations among European states would turn into a multi-centred system organized through variable geometry, with a common base upon which parallel or competing acquis would develop. This would be the signal for a return to the 1960s, i.e. a situation characterized by the coexistence of an integrationist group (‘founder countries + x’), an intergovernmentalist group and free agents practising unilateralism.

The relations between the EU and the enhanced Union will also be affected by the character of the ‘goods’ produced by this enhanced Union. As shown by A. Kölliker’s theory of differentiated integration, one could expect progressive rapprochement or even eventual reunion of the two entities provided that:

• the enhanced Union produces ‘goods’ that cannot be produced at national level or through alternative groupings (clear added value for its members);
• outsiders can be excluded from the benefits created by the enhanced Union;
• the action of the enhanced Union is not without consequence for the outsiders (e.g. neighbouring states being affected by the police cooperation developed between the members of the enhanced Union);
• additional members increase the benefits for the initiating group.

If the excludability and the external consequences are particularly marked, one should expect growing tension between the two entities.

Scenario of a ‘Union refondée’ (treaty of substitution)

If none of the previous options was acceptable to the states who had already completed ratification or sufficient to secure ratification in the recalcitrant states, then those countries wanting to further integrate could:

leave the European Union and set up a new community among themselves.

This is obviously the most dramatic scenario of all. To arrive at that extremity, Member States will have to be very dissatisfied with EU performance and utterly convinced that existing treaties will never be properly revised. Confronted with partners that cannot be convinced or expelled, the only option left to them will be to withdraw unilaterally from the structures of the EU and create a new Union (exit and ‘refondation’ strategy).

Opting for a ‘Union refondée’ is relatively simple compared to the enhanced Union scenario, insofar as relations between the Union refondée and the residual EU will be based on international law. It is also bound to be a very long and costly procedure, politically and financially speaking. Considering the efforts invested in the EU, the level of interdependence of the current Member States and the benefits attached to EU membership, the Union refondée is, par excellence, the solution of last resort. It would represent a major reversal in the evolution of the European architecture. For the last 50 years, that evolution has indeed been characterized, on the one hand, by a progressive pan-Europeanisation and, on the other hand, by the management of a growing number of policies in a single forum.

The outlook for 2004-6

Should the EU prepare for constitutional crisis? Undoubtedly the rejection of the Nice Treaty by the Irish people in June 2001 is a worrying precedent. It shows that a country with a government strongly committed to European integration, which joined the process decades ago and benefited massively from it, may encounter serious ratification problems when asked to ratify relatively modest amendments. The sovereignist and intergovernmentalist stance developed over the last few years by a number of governments in the Union is not a reason for optimism either.

Smooth passage or crisis? The answer will largely depend on the ambitions of the constitutional Treaty in the making. Are we discussing incremental change or regime change? If reality check or self-censorship p revails in the European Convention and if, as expected, the IGC further dilutes the draft Treaty, the ratification of the future Constitutional Treaty of the Union, if tight, should not be too difficult in the large majority of Member States. Classical pressures and concessions should be sufficient to deal with the hard cases.

The main issue, however, is not the effectiveness of these methods but their efficiency. Alternative solutions allowing for swifter entry into force of new Treaties are needed. Very few Member States are ready for the extension of majority rule to Treaty ratification. The necessary social legitimacy is simply not there. If neither submission nor obstruction is acceptable, the only solutions are to be found in subtraction. In that respect, an automatic withdrawal clause seems both fair and logic.

The ‘enhanced Union’ scenario can certainly be used to convince reluctant Member States to ratify the new Constitutional Treaty. More importantly, it offers a solution to a problem that goes beyond ratification crisis, i.e. the problem of what is submitted for ratification. The current revision procedure is indeed a formidable obstacle for coherent and ambitious schemes. Those keen to promote such schemes should therefore not exclude the possibility of establishing an enhanced Union à la Schengen, either if the ratification of the new Treaty is blocked or if its contents are minimalist. As for the Union refondée, it will most probably remain the nuclear option nobody wants to envisage for many more political generations.

Eric Philippart Researcher at the Belgian National Fund for Scientific Research (FNRS – Université Libre de Bruxelles), visiting professor at the College of Europe (Bruges) and Senior Associate Fellow at the Centre for European Policy Studies (CEPS).

This article is based on one of the sections of Philippart Eric and Sie Dhian Ho Monika, Flexibility and the new constitutional treaty of the European Union,

Scientific Council for Government Policy, The Hague, May 2003.

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