The Constitutional Treaty – opening the way to a “core” Europe?

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

This EPC paper analyses the outcome of the European Council on 17-18 June 2004, focusing primarily on the Constitutional Treaty.

They finally did it. Marshalled by a highly professional and dedicated Irish Presidency, the 25 EU Heads of Government reached agreement on the European Union’s first ever constitution after a tetchy and exhausting two days of negotiations last Friday evening. The final text preserves the great majority of the draft Constitutional Treaty proposed by the Convention on the Future of Europe. The price of the agreement was the entrenchment of the national veto in some key areas – including tax, foreign and security policy and – most problematic – in any future review of the constitution.

The media inevitably focused on the claims and counter claims of success made by various EU leaders in the negotiations. The British government machine went into overdrive to show how the Prime Minister, Tony Blair, got his way over all the “red lines” which had been put around the UK veto. In what was clearly an attempt to shape the coming domestic battle over the Treaty, Mr Blair went so far as to proclaim the existence of a “new” more Anglo-Saxon, pro-Atlanticist oriented EU which is turning its back on closer integration and political union.

Far less media attention was focused on the parallel encouragement given by the treaty for the future development of a “core Europe” within a Union which is now set to enlarge even further beyond the present 25. But this is the political code written into many of the provisions which set the rules for “enhanced cooperation” between Member States more willing to go further down the integration road than others. In addition such core groups will be able to take their own decisions by Qualified Majority Vote (QMV) in some areas providing nothing they do undermines the collective EU acquis particularly in single market matters.

It is difficult to resist the conclusion that the British government – like the anti-treaty Conservative opposition – is now reconciled to the prospect of a core EU group emerging in the years ahead. Unlike the Conservatives and the new United Kingdom Independence Party (UKIP), which made an impact in the recent European Parliament elections, the Blair government, the Liberal Democrats and other pro-European forces in Britain fear that the UK may lose touch with the entire process if this new treaty is rejected in the referendum to be held after the next UK general election. But even with a British “yes” – the way may be opening now for others in the Union to move ahead on their own.

Given the well-attested public distaste for rhetorical hyperbole after EU summit meetings, the heads of government did not overplay references to the “historic” character of the agreement. However on this occasion the word historic is justified. The Constitutional Treaty does set out the mission and values which drive the process of political union, it does for the first time create a legally judiciable framework for the rights of citizens, it does extend the range of majority vote decisions, it further enhances the powers of the European Parliament and it provides not just for the creation of a European Union foreign minister but – in the longer and run more significantly – for an EU diplomatic service.

“This is an important day for Europe, without wanting to use too many big words”, said French President Jacques Chirac. “This is an important signal being sent out that shows the capacity of Europe to unite”, said German Chancellor Gerhard Schröder. “A success for Britain and a success for Europe” was how British Prime Minister Tony Blair hailed the deal, insisting that the idea of a European superstate was now dead. “This is a dream come true”, said Commission President Romano Prodi, paying tribute to an “incomparable” Presidency led by the Irish.

In the aftermath of the summit, hopes were expressed that the new Treaty would serve the Union’s purposes for “a generation.” Possibly. But no one should be surprised if there is pressure for further reform of both the i nstitutions and the decision-making process in the Union as it confronts new challenges at home and in the outside world.

For the present, however, the overriding political priority will be to win the battle for hearts and minds in all 25 Member States to ensure the ratification of the Treaty over the next two years so that it can be actually implemented. With referenda due in 9 or 10 countries, the entire project is still highly vulnerable to rejection in any one Member State. However, nowhere will the battle be fought more bitterly or with greater consequences for Europe as a whole than in the United Kingdom where pro-European politicians face a massive uphill struggle to turn around a deeply sceptical public.

While the Irish Prime Minister, Bertie Ahern, rightly took pride in his government’s remarkable achievement in concluding the treaty, getting an agreement on who to propose to the European Parliament as the next Commission President proved to be “one bridge too far.” During an acerbic debate, which underlined the increasingly political character of the divisions among EU leaders, there was no consensus on any Commission President candidate, nor was there any very convincing meeting of minds on how to break the deadlock before the end of the Irish Presidency next week.

The Commission will have one member from each Member State until 2014 when the college will normally be restricted to two thirds of the number of Member States. However, there may be an appeal to vary this limit if circumstances justify – a concession inserted late in the day to appease the worries of some of the small EU countries. As already agreed, a chairman of the Council of Ministers will be appointed for five years to coordinate the work of a smaller number of more streamlined councils which will continue to be chaired by the rotating EU Presidencies.

When to QMV and when not

With some very important exceptions the new treaty will make decisions by some form of QMV the norm. Moreover it adopts a clearer, more transparent and effective system than the complex nightmare codified in the Nice Treaty. The “double majority” system was adopted with at least 55% of the Member States “comprising at least 15 of them and representing … at least 65% of the population” being necessary in the Council. Conversely a blocking minority must consist of a minimum of four governments.

In total, QMV may in future be used in some 50 new policy areas although most of these are of secondary political order. For a range of highly sensitive matters in the fields of justice, foreign and security policy, economic and monetary policy and cases where the possible suspension or withdrawal of a Member State is involved, a “super” Qualified Majority Vote will apply. For this, a majority must consist of 72% of Member States, representing at least 65% of the Union’s population.

In a number of areas – notably in Justice and Home Affairs and social security – a series of emergency “breaks” have been introduced into the Convention’s original text, which will allow governments to appeal to the European Council to override any decision. However, after a period of up to 12 months, if no agreement can be reached, the way may be open for Member States so willing to move ahead on their own – implementing the proposed policies with decisions taken by QMV. A case in point might be over social security provisions for migrants. However the British finally dropped their objection to the creation of a European Public Prosecutor to deal with cross border fraud crime.

The rigid opposition of the British Prime Minister, Tony Blair, ensured that the veto will continue to apply to all areas of tax policy – even to the fight against cross border fiscal fraud. However, the way is now open to the members of the euro-group to implement common tax policies (for instance in the field of VAT harmonization and turnover taxes and perhaps “green” taxes”) by QMV – providing these do not threaten the integrity of the single market.

Decisions on fo reign, security and defence policy (CFSP) will continue to be taken by unanimity although a super QMV may be used in areas where the new EU Foreign Minister has been invited to make a policy proposal. The rules under which groups of Member States may combine to implement CFSP through enhanced cooperation have been clarified.

Inevitably much attention will focus on the continuing weakness of the economic pillar in the governance of the EU. However the critical factor here is less institutional than the lack of political will generally among Member States to accept the need for sovereignty sharing and the disciplines which are necessarily involved. This also explains the failure of the Dutch government to uphold the proposal to strengthen the Commission’s role in supervising Member States’ performance under the Stability and Growth Pact and ensuring action is taken to deal with excessive budget deficits.

Outside the work of the Inter Governmental Conference on the Treaty, the summit served notice that the Lisbon reform process should be given top priority and, in particular, that the policy guidelines and recommendations prepared by the Employment Task Force, headed by the former Dutch prime minister, Wim Kok, should be implemented “fully and in a coherent manner.” However – once again – it was not possible to reach an agreement on the Community Patent directive.

This was not a summit to deal with the continuing sluggishness of the European economic recovery, the pursuit of structural reforms or the wider issues raised by how best to reconcile the need for greater competitiveness, social cohesion and environmental sustainability. These are certain to be issues overshadowing the agendas of the incoming Dutch Presidency (which also makes migration a key priority) and especially the Luxembourg Presidency in the first half of next year.

The impact of the Charter of Fundamental Rights

A striking feature of this treaty – which marks it out as more obviously “constitutional” than earlier treaties – is the way it has embedded an extensive statement of the basic mission and values of the European Union. What was implicit before is now much more explicit – a fact which should help public understanding of what too often is seen as a remote and arcane political process.

The treaty also makes clear that the provisions of the Charter of Citizens’ Fundamental Rights will be judiciable in the European Court of Justice – in spite of fierce opposition initially from the British government. These include some highly sensitive issues such as workers’ rights to strike. The text does stipulate that the ECJ must take “due consideration” of national laws in these areas when reaching judgments. However the final decision on how to balance the contents of the Charter and the “explanations” of national circumstances will be left to the judges in Luxembourg. Case law seems certain to evolve over the years ahead and it would be surprising if it did not involve in ways which supported the values of the Charter.

In wider perspective, it is true that national Parliaments will have a bigger voice in expressing concerns about future European Commission proposed legislation. But it is equally true that the final decision on whether to press ahead will be for the Commission not the national Parliaments.

Looking for a President of the Commission

The greatest political heat generated in the summit meeting was not over the contents of the Constitutional Treaty but rather over who should be recommended to the European Parliament to be appointed the successor to Romano Prodi as Commission President next November. It is utterly without precedent that a European Council should have proved so incapable of coming to a common view with time running out so quickly for the appointment to be made.

The split over the Commission President was nakedly political – even ideological. At the start of the European Council the Belgian Primer Minister, Guy Verhofstadt, enjoyed the backing of France, Germany and a num ber of other countries. Indeed there seemed to be no very strongly supported alternative candidate. During an ill-tempered dinner on Thursday night, a blocking minority of Member States – led by the UK and Italy – left no doubt that Verhofstadt was unacceptable. This was not primarily because of his commitment to European integration so much as his support for a stronger European security and defence and his known criticism of the Bush Administration’s policies.

The argument was also very political in another, quite different, sense. It was fuelled by the growing assertion of the European Parliament political groups to evolve as fully- fledged, trans-national European political parties. This is a long overdue and much needed development to help fill the massive void which separates the EU institutions and political process from the citizens – a void obvious to all after the recent European Parliament elections.

As the largest political party in the Parliament, the right of centre European Peoples’ Party, expects to have one of its own chosen. But having failed – in spite of many sustained attempts – to convince the Luxembourg prime minister, Jean-Claude Juncker, to stand for the Commission Presidency, the EPP persuaded the popular British Conservative Commissioner for External Affairs, Chris Patten, to allow his name to go forward. This seems to have been agreed in the spirit of those brave officers who volunteered to go over the trenches in the First World War – knowing their chances of survival were slim. Patten was duly vetoed by President Chirac who asked how the Commission could be led by someone from a Member State which was not in the euro or the Schengen agreement and might vote to reject the Constitutional Treaty?  

The worrying thing is that the Irish Presidency have only a few days now to see who, out of the half dozen or so names still circulating, might be chosen – presumably at a reconvened European Council meeting. The trouble is that this leaves little time for consultation with all the political interests involved. For their part many European Parliamentarians will see this deadlock as justification for their demand that it should be the European Parliament which nominates the President and the European Council which ratifies. Indeed the signs are that the emerging European parties recognise that they must fight the next European elections in five years not only with clear cut alternative political manifestoes for the future direction of the Union but also put their preferred candidates for the Commission Presidency to the electorate as well.

Among the names still talked about are the Portuguese Commissioner for Justice and Home Affairs, Antonio Vitorino, the former Finnish prime minister, Paavo Lipponen, the Danish premier, Anders Fogh Rasmussen, the Irish former Commissioner, Peter Sutherland, the French foreign minister, Michel Barnier and the favoured candidate as the first EU Foreign Minister, Javier Solana. However other names may well emerge very quickly – some Christian Democrats favour the former Belgian prime minister (and vice President of the Convention) Jean-Luc Dehaene while many Liberals still hope that the outgoing Irish President of the European Parliament President, Pat Cox, might be chosen.

Enlargement – The band waggon roles on

The conclusions published after the European Council meeting underline, yet again, the extent to which enlargement is going to be with us for some years to come. The EU leaders paid tribute to the “very substantial progress” made in the negotiations with Bulgaria and Romania. Indeed they have been concluded with Bulgaria and it is hoped that accession treaties with both countries can be signed “as early as possible” next year with a view to the entry of both in January 2007. However this depends on a final agreement with Romania and there are those who think that the next accessions should be delayed until 2009 which will be the date for a new Commission and a new European Parliament.

Meanwhile accession negotiations a re to begin with Croatia early next year – a reflection of the satisfaction felt at the democratization and reform process in that country. However, this depends on continued cooperation with the International Criminal Tribunal for the former Yugoslavia which still seeks a number of indicted Croatian war criminals. It is not excluded that Croatia might even be ready to join at the same time as Bulgaria and Romania – especially if the accession date is 2009 rather than 2007. Apart from Macedonia – which has already submitted its membership application – the other countries of the western Balkans are encouraged by the European Council to see Croatia’s progress as an example to emulate in their ambitions to eventually join as well.

All the signals remain positive also for Turkey’s desire to be given a firm date for opening accession negotiations when the European Council meets under the Dutch Presidency in December. Once again the achievements of the democratic Islamic government in Ankara on human rights, legal and police reform and the rights of Turkey’s large Kurdish minority were applauded. Its help in trying to rescue a political settlement of the Cyprus problem (exacerbated by the Greek Cypriot rejection on the United Nations peace plan) was also appreciated.

It seems 90 per cent certain the December Council will agree a date for accession negotiations. However on both sides it is recognized that this will take many years – well into the next decade. But that fact is unlikely to worry Turkey’s reformers who need the pressure of the EU here and now to ensure continuing progress on the political front at home.

The European Council also emphasized the growing importance of a post-enlargement strategy for the Union’s wider “European Neighbourhood.” In a nuancing of earlier declarations the summit said that it would step up support for civil society in Belarus in the hope this will encourage the country’s eventual democratic evolution and the inclusion of Georgia, Armenia and Azerbaijan in the neighbourhood strategy. At the same time a renewed effort is to be made to infuse life into Strategic Partnerships with the countries of the Mediterranean region.

Europe, the US, Asia and the World

The contentious issues at the heart of the troubled trans-Atlantic relationship, notably the crisis in the Middle East, including Iraq, were not given high profile at the summit. However the importance of the EU strategic partnership with Russia is recognized. At the same time the European Union is to give a higher priority to Asia – not only the strategic relationship with China but (mentioned for the first time) a strategic relationship with India “based on shared understanding and dialogue.”

The relatively passing reference to the respective Middle East regional policies of the EU and the US was striking although this question (including encouragement for democracy in the region) is to be high up the agenda of the EU/US summit this coming weekend. The summit conclusions also deal at length with the fight against terrorism, the need for progress in implementing the Tampere conclusions of internal security and justice, and the progress towards establishing a European defence – including a civilian/military cell within the EU military staff, an EU planning cell within NATO and a military operations centre capable of handling a limited range of military/security tasks such as the recent peace keeping mission in West Africa.

John Palmer is the Political Director of the European Policy Centre.


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