Greening Europe's Constitution

Written by Andrew Duff MEP and published in Green Futures on Sun 31st Dec 2006

2007 will be another decisive year for the European constitution. Strenuous efforts will be made to revive the project, stalled since the 2005 negative referendum results in France and the Netherlands. If these efforts fail, it is likely that the constitutional treaty will be consigned to oblivion. Radical political reform of the European Union will have been put back for a generation, and Europe will have to struggle on imperfectly under the existing Treaties. Green Liberal Democrats should be alarmed at that prospect, and should fight to make the party and the country play a prominent and constructive role in seeking to bring home the goods.

How to resolve the constitutional crisis is far from clear. Some - inevitably including the UK Labour government - want to minimise the scope of the changes proposed by reducing the size and force of the treaty. This would be a pity, not least because a majority of public opinion has not criticised the 2004 package deal as too ambitious but, rather, too feeble to deal with the social, economic and security problems faced. Others - including this author - wish to improve the product as well as its marketing. We propose ring-fencing the first and second parts of the 2004 text which comprise the basic constitutional elements. Such an approach would preserve Article I-7 which gives the Union full legal personality in international environmental treaties. And it would include making mandatory the Charter of Fundamental Rights, Article II-97 of which insists that 'a high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development'.

Mindful of the need not to open up Pandora's box, the Intergovernmental Conference (IGC) that will open later this year should concentrate only on renegotiating certain common policies of the Union, found in Part III of the treaty. The Convention which drafted the constitution had too little time to deal properly with the reform of common policy, and met strong hostility, not least from the UK, when it tried nevertheless to introduce improvements. The result is that most of the common policies are taken over without modification from the current Treaty of Rome. We can and must now do better, not least with respect to five key topics: economic governance, social model, climate security, enlargement and finances.

Climate security

The negotiations of 2002-04 succeeded in making one significant improvement in Part III to EU environmental policy. Article III-119 is a new horizontal clause of general application. It says:-

'Environmental protection requirements must be integrated into the definition and implementation of the policies and activities referred to [in Part III], in particular with a view to promoting sustainable development.'

Yet it remains the case that the design of the European social model pays too little attention to the ecological wing of the concept of sustainable development. In the few years since that clause was drafted the salience of climate change policy has grown dramatically. And without further changes both to Article 119 and to the specific provisions on environmental policy (Articles III-233-234), the constitution will remain politically weak and functionally inadequate for the task of combating climate change.

The renegotiation of the constitution in 2007-08 must ensure that climate security policy becomes the driving imperative of all other EU common policies, notably the common agriculture policy (CAP), energy and transport.

In the 1950s it was public insecurity about food that led the founding fathers of the European Community to develop the common agricultural policy. It worked: Europe's food supply is no longer a problem. Today, that sense of insecurity has been replaced by a widespread anxiety about the pace, causes and consequences of climate change. Concern about the environment is particularly salient among young people who would be greatly attracted to the adoption by the EU of a new sense of purpose in this direction. Europe's potential is that of global leadership in saving the planet, but to reach it the EU must exert itself to become the most energy and resource efficient economy in the world and, of course, adopt the constitution which will enhance its capacity to act abroad.

Even the staunchest patriot knows that pollution does not respect national borders. The case for EU-level action is unanswerable. But the Union has yet to make a convincing case for the linkage between strict environmental regulation, on the one hand, and competitiveness, on the other. The evidence is that good environmental policy is a driver of industrial innovation and economic development. The technological possibilities flowing from Europe's science effort are exciting. New markets in energy conservation and renewable energy supply are waiting to be exploited. Europe can be a world-beater in greening the social market economy.

Environmental policy first crept into the EU lexicon in the Single Act (1986). It has continued to develop as one of several common policies that flank the single market. EU level regulation to control pollution and safeguard public health was agreed to be necessary to ensure the smooth operation of the single market. The constitution maintains the same, rather prosaic approach. Even the language of the new Article 119 leaves the reader with the overriding impression that the environment is yet another neuralgic problem that the EU has to face. There is little sense of urgency or of rising to the occasion. On Europe's future contribution to conserving the planet's eco-system the constitution is strangely silent.

I propose both the re-writing of Articles 119, 233 and 234 and promoting them in the hierarchy in order to give them greater force and visibility. A priority should be to reinforce the capacity of the Union to reach the greenhouse gas emission targets of the Kyoto Protocol. The EU's pioneering carbon emissions trading scheme should be enshrined as one of the principal instruments of the new environment policy.

It is tempting to re-visit the issue of the decision-making procedure in the Council, where the constitution preserves unanimity for environmental measures 'primarily of a fiscal nature', town and country planning, water supply, and land use (with the exception of waste management). Under the terms of Article 234, unanimity is also kept for EU laws affecting a member state's choice between different energy sources and the structure of its energy supply. However, provision is also made for a specific passerelle clause that permits the Council of Ministers, acting unanimously, to switch to qualified majority voting in any of these fields at any time. We should make do with the passerelle, which was hard to negotiate, and then try to exploit it once the constitution enters into force. In the delicate circumstances of the impending IGC it is unlikely that there will be agreement to alter such a delicate compromise between those who cling to national sovereignty and those who do not.

Reforming farming and fisheries

Up-grading environmental policy in the hierarchy of the constitution would make it a criterion by which all other relevant common policies are judged. Not least among those affected will be the common agriculture and fisheries policies, whose constitutional provisions, now fifty years old, pre-date the concept of sustainable development, the need to intensify care for the ecology of the countryside, or the introduction to farming of genetically modified organisms. As far as the CAP is concerned, the constitution is obsolete even before it comes into force, lacking references to the primary objective of the present-day CAP income stability - or to rural development, decoupling, cross-compliance, public health, animal welfare and the EU's obligations in agriculture to the WTO. The constitution's stated objectives of the CAP are still 'to increase agricultural productivity', 'to ensure a fair standard of living for the agricultural community', 'to stabilise markets', and 'to assure the availability of supplies … at reasonable prices' (Article III-227).

It would also be useful to separate out fisheries from agriculture, as common sense and current practice dictates. The constitution should refer to the specific objectives of the common fisheries and aquaculture policy in a wholly new article.

Common energy policy

The Convention had struggled to get member states to install a decent legal base in the constitution for a common energy policy. Eventually, the new Article III-256 emerged, but its scope is limited. Needless to say, it was the British government which was at that stage the most vehemently opposed to strengthening the competence of the Union in energy market matters. Today, Tony Blair appears to have changed his mind. With all the enthusiasm of the convert, he claims personal credit for having put energy security on the EU's agenda 'and not a moment too soon':-

'Energy is becoming an instrument of leverage and in some cases, intimidation the world over. Yet as President Chirac said recently, we in Europe have no clear common policy to define our own needs and interests. Let us get one. Get a functioning internal market in place; complete a common EU infrastructure and make energy policy a priority in external relations'.

The IGC should take this as an invitation to re-visit Article III-256 in order to ensure that the new common energy policy can implement effectively a single market in energy. Energy policy must focus on diversified supply from variable sources with greatly improved efficiency and conservation. Abroad, the EU needs to develop, in the context of its neighbourhood policy, serious, long-term relationships with its source and transit countries.

As far as the scope of the policy is concerned, it may now be possible to persuade the IGC to drop the absurdly restrictive provisions - all concessions to the UK's notorious 'red lines' - that protect a member state's 'right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply'. In contradiction to Article 234, Article 256 as currently drafted forbids an EU law to shape national decisions in these matters. One may well ask what will there be left of substance in an EU common energy policy if all the key questions are precluded.

Nuclear energy

The European Union is destined for the foreseeable future to include nuclear fission as part of its energy policy mix. In the 2002-04 negotiations, the Euratom treaty was the only existing EU treaty to be left untouched by the constitution. A sensible and successful renegotiation of the constitution, as we propose, would take the opportunity that was missed earlier to incorporate the residual essential provisions of the Euratom Treaty concerning nuclear safety within the energy chapter in Part III.

Process

The German presidency of the Council is trying to establish by June 2007 agreement on the timing, process and mandate of the new IGC. Chancellor Angela Merkel has said she rejects the faint-hearted 'mini-treaty' option espoused by Nicolas Sarkozy and the British Establishment. But as the necessary preparations cannot proceed in public before the end of the French presidential and parliamentary elections in May, the Germans have created for themselves a tough agenda.

Liberal Democrats, especially green ones, should come out unerringly on the side of the Germans. The British people are unlikely to be persuaded to accept another poor treaty in the manner of Nice, solely addressing the difficult sovereignty issues of competences, powers, instruments and procedures. Britain both needs and deserves a fully reformist EU constitution, where some difficult concessions on sovereignty are wrapped up in a package deal which also delivers some long-sought improvements to EU common policy. Energy, farming and the environment should be top of the Liberal Democrat list.

Gordon Brown's Labour would be wise to follow a Lib Dem lead -- leaving David Cameron's allegedly pro-environment but stupidly anti-European Tories twisting in the breeze.

Andrew Duff is spokesman on constitutional affairs for the Alliance of Liberals and Democrats for Europe (ALDE) and MEP for the East of England. www.andrewduff.eu