Europe after Chirac and Blair

Written by Andrew Duff MEP and published in ft.com on Fri 4th May 2007

As Jacques Chirac and Tony Blair fade away, what next for Europe? Impatience with waiting for the answer has led to fairly wild speculation and some curious moves. European Commission President José Manuel Barroso has had an embarrassing setback in trying, and then failing, to organise a brainstorming mini-summit around the new French president. His selection of guests provoked a strong reaction among the 15 heads of government who remained uninvited. In the event, only the 'troika' of the current and succeeding presidencies of the Council (Germany, Portugal and Slovenia) will be meeting up at Sintra next weekend along with Mr Barroso and Hans-Gert Poettering, President of the European Parliament.

Meanwhile, Mr Blair, reluctant to let go, has been busily searching for supporters of his home-spun, minimalist treaty. The British approach, in the main, is an ambitious exercise in obscurantism. In 2004 Mr Blair hailed the constitution as 'a success for the new Europe that is taking shape, a success for Britain'. Now he tries both to reduce and disguise the scope and force of the reforms. He insists, rather pompously, on the importance of having an 'in principle decision' to opt for an 'amending' rather than a 'constitutional' treaty. We are in semantic territory here. No doubt Mr Blair is perfectly well aware that the constitutional treaty, of which he was once so proud and now wants to jettison, is also based on and amends the earlier EU treaties.

The Dutch argue for the new negotiations to be based on the Declaration of Laeken of 2001, which, after the low point of the Treaty of Nice, mandated the Convention to draw up the constitutional treaty. The Poles have dropped their earlier insistence on going back to Nice, but have pitched for 'constitution minus' as the basis for a 'tight union of nation states'. The Czechs, on the same wave-length, want to drop 'quasi-constitutional symbolism' and terminology that could remind innocent people of a state. And they would drop the article that makes explicit the primacy of EU law, presumably in order to deceive the casual onlooker. The British agree that the 'foreign minister' should be called something else, and even want to reverse the way the 2004 treaty re-named 'directive' as 'framework law' and 'regulation' as 'law'. It is odd that Mr Blair's final legacy to Europe reverts to the language of Bonaparte and sad that this once progressive leader today takes refuge in a conventional EU treaty that would merely tinker with the balance of power between member states and institutions, thereby losing the chance to rationalise the treaties and streamline the institutional structure, and risking much else of value besides.

Fortunately, the agenda that really matters is not that of Tony Blair but of Angela Merkel. The German Chancellor will preside over the crucial meeting of the European Council on 21-22 June. In preparation for that meeting, she has asked the member states twelve questions. It is a clever initiative, not least in her assertion that the starting point of the new Intergovernmental Conference (IGC) will be 'the substance of modifications to the Treaty of Nice as agreed upon in the Constitutional Treaty'.

The German questionnaire includes five problematic issues raised by the British and their fellow-travellers that would lead the IGC in the direction of 'constitution minus'. These concern the seeming incompatibility of returning to a conventional treaty method on the one hand, and, on the other, of maintaining the important constitutional features (such as codification, the single legal personality, and the abolition of the pillar structure). How to change the terminology without changing the meaning? Should the symbols be dropped? And lastly, 'how do you assess the proposal made by some Member States not to include an article that explicitly restates the primacy of EU law?'.

With perfect symmetry, the Germans ask five questions of their own designed to pitch the consultation in favour of 'constitution plus'. 'Do you agree that the institutional provisions of the Constitutional treaty form a balanced package that should not be reopened?' What other elements are indispensable? How do member states feel about 'proposals for possible improvements/clarifications on issues related to new challenges facing the EU', such as energy, climate change, illegal immigration, future enlargement policy, and the social dimension.

Two questions are more neutral in their intent. One asks whether the Charter of Fundamental Rights could be published separately from but cross-referenced in the new treaty, while enjoying the same legal, binding status. The Charter was originally drafted as a stand-alone document and may actually gain more visibility if it is not squeezed inside an already lengthy treaty. The important thing, on which the Germans and others will insist, is that it has mandatory force.

The last question seeks views on whether a more differentiated model of integration would be acceptable 'applying opt-in/out provisions to some of the new policy provisions'. More reinforced cooperation by groups of states that wish to go further and faster than others in an agreed direction is already possible. No change to the text of the 2004 treaty is needed either in this regard or to extend qualified majority voting to areas, notably in justice and home affairs, now paralysed by the need for the Council to act unanimously. Nevertheless, the inclusion of this twelfth question puts pressure on eurosceptical governments to state which of the activities of the Union they reject.

Germany's intention is fairly clear. It wants to ring-fence Part I of the constitutional treaty from being opened up for renegotiation. It is trying to get the Poles and any others who hanker after upsetting the institutional 'balanced package' of Part I to concentrate instead on what they might get out of improved common policies in Part III. This is more fertile ground, which will be well nurtured by Portugal which takes over the EU presidency from Germany on 1 July. Lisbon might also be better than Berlin at dealing with Warsaw: two countries beginning with 'P', as one Portuguese diplomat put it to me, 'both poor, peripheral and papist'.

Answers to the questionnaire are expected by 4 May. By the time he (or she) gets to the Elysée Palace, the new president of France, just like the new prime minister of Great Britain, may find that their room for manoeuvre on Europe's constitution is strictly limited.