Renegotiating the Constitution

Written by Andrew Duff and published in ELDR In-House Magazine on Wed 31st Aug 2005

The European Constitution has been ratified by a majority of member states representing a majority of Europe's citizens. But its rejection by France and the Netherlands - and, to all intents and purposes, by the United Kingdom - means that the present text will not come into force. If the Constitution is to be salvaged, it will have to be renegotiated.

In June, meeting in some panic, the European Council ordained a 'period of reflection', to last a year, but with no focus or specified goal. Liberals must fill in the spaces left blank by Europe's leaders. The aim should be to agree to establish a new Convention with a fresh mandate. The Constitution, signed in Rome on 29 October 2004, should be treated as a good first draft.

There are, of course, some alternatives to renegotiation of varying degrees of legality, desirability or probability. The EU could abandon the Constitution and try to make do with the Treaty of Nice effectively saying farewell to further enlargement, the Charter of Fundamental Rights, and all the promise of the Constitution in terms of improved democracy, capacity and efficacy. This would be seen, at home and abroad, as an admission of failure by this generation of Europe's leaders.

Alternatively, the EU could try to oblige France, the Netherlands and the UK to have another go at ratifying the existing text once Chirac, Balkenende and Blair are retired - presumably not before 2007. This approach may be desirable but hardly seems to be possible. Another option would be to select a small number of institutional reforms and try to implement them not by treaty amendment but by changes in rules of procedure, by inter-institutional agreements, or by cooking up new arrangements outside the EU structure altogether. Although one or two ad hoc improvements could be made to the conduct of EU affairs at national level, the governance of the EU itself would be left almost untouched. This scenario lacks transparency and would put into reverse the drive for simplification.

A fourth option is to convene a new IGC to modify the existing Treaty on European Union so that the Constitution could be brought into force when ratified by fewer than all member states. A similar proposal, however, was vigorously opposed in the Convention, and would be hard put to survive the test of national ratification. Effectively, this is the scenario of last resort.

A fifth scenario is to adopt a piecemeal approach to treaty reform, ditching the constitutional mantle. The precedents are not encouraging. Agreement on priorities for reform would be problematic. In sacrificing the package deal that was the Constitution, the Union would also be dismantling the impressive consensus behind it. Ad hoc treaty revision according to no long-term strategy smacks of pre-Laeken days. It would not settle the constitutional future of the Union but, on the contrary, threaten further bouts of instability. Deprived of the promise of a comprehensive constitutional settlement and of better policy making across a wider spectrum, public opinion would be justifiably suspicious. The political consequences of such a tactical retrenchment might be severe, especially in those countries where in any case referendums will have to be held to bring any revised EU treaty into force, as well as in those which have already ratified successfully the original Constitution.

The best option is to renegotiate the Constitution now to make it better and more appealing to public opinion. Renegotiation needs to be informed not only by dissenting opinion in France and the Netherlands but also by the need to re-build a democratic consensus. The Constitution's revision must be more than a cosmetic exercise and intended genuinely to rectify some of the flaws which have been identified in the present text, especially with respect to Part Three.

On the other hand, the renegotiation must respect the main lines of the constitutional settlement reached by the Convention and IGC in 2002-04. There is no majority for a less powerful Union with weaker institutions. Most EU citizens appear to want to live in a united Europe that is a constitutional democracy.

The revised Constitution needs to reach a better definition of the social market as one which ensures European employability in a globalised economy, with emphasis on control of inflation, industrial democracy, investment in R&D and education, and anticipation of industrial change. It must install a more powerful economic governance for the monetary union, including the use by the eurogroup of enhanced cooperation provisions. It needs a new emphasis on climate security, involving modernisation of agriculture and environment policies. And it should better articulate the threshold of EU membership and the criteria and processes involved in enlargement.

As far as institutions are concerned, the revised Constitution would do well to create a proper hierarchy between the four parts of the Constitution, and to extend and improve the softer amendment provisions for Part Three. It should make the exclusive competences subject both to the subsidiarity and the enhanced cooperation provisions. A bold renegotiation, going well, would also seize the opportunity to have another look at the proposal for a Law Council, at the QMV threshold in the Council, the size and composition of Commission and several other less-than-perfect aspects of the 2004 text.

A new Convention that began work in September 2006 could be invited to transmit its new draft of the Constitution to the European Council in June 2007, with the aim of finally bringing the Constitution into force during 2009. Those countries that chose to have consultative referendums would be invited to hold them on the same day.

Andrew Duff MEP is the Parliament's co-rapporteur on how to salvage the Constitution.