Keynote Speech by Professor Dr. Bruno de Witte, EUI Florence

The European Constitutional Treaty:
Where Does it Come From and Where Will it Lead To?

[>>] One can look at the added value of the new text from two different perspectives: one perspective, which has been emphasized in the media, both in order to praise and to criticize the document, is to note the innovative nature of adopting explicit constitutional language. The second perspective is to examine its actual content, and compare it with the European Treaties that we have today, so as to assess and evaluate the concrete changes that would happen if the new Treaty enters into force. The new Treaty could be either old wine in a new bottle, or new wine in a new bottle.

The novelty of the bottle can be seen clearly when going back, in one’s mind, to four years ago: in the early summer of 2000, a traditional Intergovernmental Conference between the then 15 member governments of the European Union was doggedly making progress on an agenda which was deliberately kept very narrow, and it led six months later to a difficult agreement on a very modest and basically unsatisfactory revision of the European Treaties at the European Council meeting of Nice. However, the seeds of the present events had been sown around the same time, in a lecture delivered by Joschka Fischer on 12 May 2000 at the Humboldt Universitat in Berlin. In this speech, called Vom Staatenverbund zur Föderation. Gedanken über die Finalität der europäischen Integration, Fischer spoke first as a foreign minister and stated that he wished the IGC of 2000 would come to a successful conclusion; but then he continued to speak as a private citizen, and in that capacity he declared that the IGC of 2000 could not the end point of the integration process, but should be followed in some unspecified future by the elaboration of what he called a “constitutional treaty” that would first be agreed among a small pioneer group of countries and then be extended to the others. This scenario, and the choice of words seemed completely revolutionary at the time. No other leading minister of a European government had used such constitutional language before. Yet, Fischer’s call was well received among political leaders of some other member states: most prominently by Chirac in a baffling speech in the Bundestag on 27 June 2000, but also by the Italian president Ciampi, by the Belgian prime minister Verhofstadt, and by the Dutch government. The European Parliament, though worried by some of the concrete proposals made by either Fischer or Chirac, welcomed the use of constitutional language. It was happy to refurbish the constitutional language which it had dropped from its resolutions for more than six years, and to plead, as it had done in the 1980’s and early 1990’s, for a “constitutionalisation of the treaties” (Duhamel Report and subsequent EP Resolution of 25 October 2000). Suddenly, at the end of 2000, an important part of the political elite of the EU seemed ready to undertake a saut qualitatif from the messy legal reality of the EU as it is now, towards a system based on a constitutional document.

The suite de l’histoire is well known. At the Nice summit of December 2000, all fifteen heads of governments let themselves be convinced to add a Declaration to the Treaty of Nice in which they committed themselves to a “deeper and wider debate” about the future of the European Union. One year later, in the Declaration of Laeken they threw the agenda of reform completely open and entrusted a broadly representative Convention on the Future of the Union with the task of preparing the ground for Treaty reform, to be subsequently enacted by an Intergovernmental Conference. All this, amazingly perhaps, has indeed happened and it has happened practically within the time frame laid out in December 2001.

Today, only four later years we find ourselves in a situation where, alongside Fischer, all 25 member state governments have agreed to replace the existing Treaties with something new that they unashamedly called a Treaty establishing a Constitution for the European Union. Now, you will note that it is still a Treaty: so the bottle may have a new flashy design but its formal shape has not changed; it is still that of an international treaty, subject to ratification, revision or even abolition by the states that will sign it.

How new is the wine? The objectives which the Convention that elaborated the constitutional treaty in 2002 and 2003 set itself were certainly very ambitious. Among the principal ones were:

• The separation of the essential from the less important provisions in the existing text of EC and EU Treaty, so as to allow the truly constitutional norms to become visually more prominent in one single document.
• A clearer definition of the “vertical” division of powers between the EU and the member states.
• Integration into the Treaty text of the Charter of fundamental rights of the European Union that was elaborated during 2000 but whose legal status, for the time being, is that of a “Solemn Proclamation”.
• A reform of the “horizontal” division of powers between the institutions, to make European decision-making more efficient, more transparent and more democratic, all at the same time.
• Related to that, enabling the European Union to become an effective player on the international scene, with a unitary and recognizable external representation.

Each of those objectives could be conceived of in a minimalist or a maximalist manner. As The Economist noted a few weeks ago (19 June 2004, p.36), “Ever since the exercise began, a debate has raged between those, such as the British government, who argue that it is largely a “tidying-up exercise” and those who believe that it represents an historic advance for the process of European unification.” Now that the dust is settling, the final text that has emerged from this enormous debate may disappoint both sides: it does not really tidy up much: there are clarifications on some points, but complexity is being increased on other matters. But it also does not seem like a historic advance if one looks beyond the new constitutional label, at the actual content of the text. Of course, there are a number of legal and institutional innovations (integration of the Charter of Rights, creation of a Union Minister for Foreign Affairs and of a semi-permanent Chairman of the European Council, public deliberation by the Council of Ministers when it will act as a legislator), but a number of innovations proposed by the Convention were turned back by the Intergovernmental Conference, and on the whole I would submit that this Treaty is much less innovative than, say the Maastricht Treaty that was agreed 12,5 years ago, two Dutch presidencies ago. This leads me to an unsettling thought: was it really worth borrowing the expensive and promising language of constitutionalism for a text which achieves so little? Couldn’t a modest traditional Treaty revision have achieved the same results? Will the use of constitutional language enable the political actors to transcend the modesty of the text to transform the existing European political regime, and transform it for the better?

But let me move, for the last part of my talk, to the second reason why the member governments were not really in a very festive mood ten days ago in Brussels. They were concluding their agreement while being keenly aware that 25 swords of Damocles are dangling above their heads. Both the Constitutional Convention and the IGC failed to be innovative on the question of ratification: like on all previous occasions, this is a Treaty revision to be approved by each country according to its own constitutional requirements and political practice. We are entering a long period of “European constitutional politics” at the level of each country. There is a clear tendency to have a larger number of national referendums for approval than ever before – some 8 of the 25 countries at the latest count and the number may grow. It seems as if the member states have agreed to play a gigantic game of referendum roulette, the outcome of which is uncertain to say the least. It is only at the impromptu European Council meeting that took place earlier this week (for the appointment of Durao Barroso as President of the Commission) that the Luxembourg prime minister suggested that the member states should try to confront the ratification debate together and adopt a common timeframe. I fear that this move comes too late: each country is engaged in its own ratification debate that will take place along lines, and according to timetables, that will inevitably be un-harmonized. The Member state governments could have agreed on holding a Europe-wide referendum on the Constitution, everywhere on the same day. Instead, we are left with the impression of political elites being backed into a corner, in some cases reluctantly surrendering to the idea of holding a referendum, in other cases obstinately holding the line against having a referendum, and in any case unable to coordinate their actions and with the risk of defeat in one country setting off a negative chain reaction in the others.

In the light of this, the question inevitably arises of what will happen if one or more countries fail to ratify, either because of a negative referendum outcome or for some other domestic reason. There is a formal legal answer to that, and there is a political answer. The formal legal answer is that, if one of the 25 states fails to ratify (even if it is tiny Malta) the Constitution cannot enter in force, and we are stuck with the present Treaty regime resulting from the Nice summit of 2000. The political answer is that, in the absence of complete ratification of the Constitutional Treaty, those countries supporting the Treaty, if they are sufficiently numerous and sufficiently convinced of the virtues of the document, could try to forge ahead on their own. How? They could try to exploit the legal resources of the enhanced cooperation mechanism, under the Nice Treaty, in order to achieve some of the policy objectives contained in the Constitution. However, in using the enhanced cooperation mechanism, they would be constrained by the numerous rules and conditions set by the Nice Treaty. First, the Nice Treaty would not allow the ‘pioneers’ to select the members of the club, since enhanced cooperation regimes must be open to all states who wish to participate. Secondly, the Nice rules require enhanced cooperation initiatives to be taken by at least eight countries, so that for instance an initiative of the six original member states of the EC would not qualify. Thirdly, the Nice rules do not allow for enhanced cooperation in areas that are outside EU competences as defined by the Nice Treaty, and also expressly prohibit enhanced cooperation with “military or defence implications”. This means, for instance, that the Nice mechanism could not be used for the ambitious new defence policy delineated in the draft Constitution.

Hence, in view of the restrictions imposed by the Nice regime for enhanced cooperation, the “plan B” for allowing some countries to go ahead could also be an experimentation with forms of advanced cooperation between smaller groups of member states outside the EU institutional framework. Specific forms of cooperation outside the core competences of the EU are perfectly possible, but that the formation of a true core group, adopting binding laws in a large range of crucial policy areas, is hardly imaginable because it would unavoidably affect the rights which the non-participant member states and their citizens have under current EU law.
This being said, many of the statements calling for a pioneer group in case there is a ‘ratification crisis’ specify that such an initiative could not be stopped by ‘legal technicalities’. In other words, the vanguard states could also choose deliberately to breach existing EU rules if this were needed to liberate themselves from the strictures of the existing system. These countries would be prepared to break the law and explode the long-established institutional arrangements on the ground that the un-reformed European Union no longer allows them to pursue their most cherished political goals and interests. Such a revolutionary move requires strong political resolve and close cohesion among the members of the break-away group. At the present time, neither the resolve nor the cohesion seem to be there, and it would seem, therefore, that the strong version of the pioneer group idea will remain on the shelf of Unused Great Ideas for some more time.

What might happen, instead, in the years to come (before the entry into force of the draft Constitutional Treaty, but also under the new Treaty) is the confirmation of the existence of three major areas of differentiated integration: the existing areas of Economic and Monetary Union and of post-Schengen cooperation in immigration and police cooperation, and the new area of defence. Alongside those three main areas, there may be an experimental use of the ‘orthodox’ enhanced cooperation mechanism to achieve specific goals and there will, above all, be the continued and increasing use of the omnipresent micro-flexibility that has been present in Community law for decades: through recourse to minimum harmonisation, soft law and tailor-made opt-outs, that are all, already now, a major characteristic of EC regulatory instruments. In this complex mosaic of differentiation, the soft contours of a vanguard group might arise, composed of those countries that participate in all three of the major structural areas of closer cooperation: EMU, post-Schengen and defence. If the Constitutional treaty fails to come into force (which, as I argued above, is a very real possibility), this might be the way forward.