Plan b: How to rescue the European Constitution Andrew Duff

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PLAN B: How to rescue the European Constitution

Andrew Duff



Encountering difficulties 6

The period of reflection 8

Options 10

A period of analysis 17


Restructuring the constitution 25

Relaxing the revision procedure

Simplifying the general passerelle

Liberating the Charter

Easing entry into force

Policy Content 29

Economic governance

The social model

Climate security



Process 42

Conclusion 44

About the author 45


The Treaty establishing a Constitution for Europe, signed in October 2004, will well equip the European Union to meet the demands of the 21st Century and the aspirations of a large majority of its citizens. Without the constitution, Europe will lack internal cohesion and external strength, and the Union’s development into a mature, post-national democracy will be halted.

Unfortunately, this constitution will not now come into force because France, the Netherlands and the United Kingdom cannot ratify it, and several other member states are making no progress towards ratification. If the constitution is to be saved, it will have to be modified. There are no other options. Europe badly needs its Plan B.

By improving the 2004 treaty it is certainly possible to address many of the concerns expressed by public opinion during the ratification process. The renegotiation must be judicious, tactical and modernising. No single prescription will be sufficient to refresh the consensus around the constitutional project. Simplistic or superficial solutions have to be avoided.

The 2004 text must be ring-fenced where the consensus that lay behind it still holds good. This applies in particular to the hard core of the original treaty – that is, the constitutional provisions in Part I, none of which have proven particularly controversial during the ratification process.

The constitution needs to be restructured, however. Part II, the Charter of Fundamental Rights, would achieve greater visibility by being annexed to the constitutional treaty and accorded a unique revision procedure (new Article IV-443 bis). The Charter’s content and legal status would be unchanged.

Part III, concerning the policies and functioning of the Union, should become clearly subsidiary to Part I, with a softer revision procedure (Article IV-445). The general passerelle clause, allowing shifts from abnormal to normal decision-making, should be simplified (Article IV-444).

There are five policy areas deserving of modification or innovation. First, the economic governance of the Union should be strengthened (Article III-184). The autonomy of the eurozone should be enhanced (Article III-194). And the Lisbon agenda should be written into the constitution (Article III-178).

Second, the constitution should define a common European framework for the organisation of economic society (Article III-209). A Declaration on solidarity should be drafted to highlight the social dimension of European integration. And those member states wishing to go further should commit themselves to a Protocol on a social union.

Third, combating climate change should become an imperative to which all common policies need to conform (Article III-119). In this context, the common agriculture policy should be modernised (Article III-227), and separated out from the common fisheries policy (new Article III-227 bis). Environment policy should be up-graded (Articles III-233 & 234), and common energy policy revised to meet current concerns (Article III-256). Euratom should be brought within the scope of the constitution.

Fourth, a new Title should be drafted into Part III that would insert the Copenhagen criteria, governing the enlargement policy of the Union, into the constitution. The accession process should also be laid out in full. In the context of the EU’s neighbourhood policy, a new category of associate member should be introduced.

Fifth, the revised financial system, which is to be negotiated in any case in 2008, should be enshrined in Part III of the constitution. It should cover both revenue (including the UK rebate) and expenditure (including the CAP). The reform should aim at greater fairness, buoyancy, transparency and accountability   thereby allowing the EU’s budget better to match its political priorities.

The IGC, which is destined to take place in 2008, should interact with the European Parliament in a form of constitutional co-decision. All three EU institutions, the Council, Commission and Parliament, have a duty to engage during the renegotiation with national parliaments and political parties. In 2009, an EU wide poll should be considered as a means of ensuring democratic consent for the revised constitutional package (Article IV-447).


The Treaty establishing a Constitution for Europe was signed by the heads of government of the twenty-five member states of the European Union in Rome on 29 October 2004. The ceremony was the culmination of five years’ difficult constitutional negotiation, beginning with the Convention on the Charter of Fundamental Rights in 1999, and continuing with the Convention on the Future of Europe in 2002.

The two Conventions achieved new levels of openness, pluralism and democratic legitimacy. They were able to craft a comprehensive and sophisticated package of constitutional innovation that largely survived intact the classical Intergovernmental Conference which closed the proceedings in 2004. No constitution, of course, is beyond criticism, but the verdict of Members of the European Parliament rings true. Over two-thirds of the Parliament endorsed the constitution as ‘a good compromise and a vast improvement on the existing treaties … [which] will provide a stable and lasting framework for the future development of the European Union that will allow for further enlargement while providing mechanisms for its revision when needed’.1 It is worth recalling that all previous treaty revisions had been greeted by MEPs with a chorus of disapproval and a catalogue of demands for further reform.

So what are the main achievements of the constitution?2 It enhances the capacity of the Union to act effectively abroad, not least by creating the post of Minister Vice-President of the Commission in charge of foreign affairs, along with a ministry. The constitution strengthens the rule of law within the Union by widening the scope of the Court of Justice. It establishes a legal personality for the Union in international law. The powers of the European Parliament are greatly increased in respect of the budget, legislation, international agreements, and the scrutiny and appointment of the executive. Member state parliaments are equipped with a mechanism to verify how the principle of subsidiarity is being applied. By enforcing openness in the Council when it acts in a legislative capacity, the constitution will help national MPs hold to account their own ministers for their performance in Brussels. The constitution makes binding the Charter of Fundamental Rights and facilitates the EU’s accession to the European Convention on Human Rights. European citizenship is strengthened in terms not only of rights but also of participative democracy. The Council gains credibility through transparency; it gains flexibility through the wide extension of qualified majority voting (QMV); and it gains leadership by way of a permanent presidency. The contrivance of the ‘three pillars’, a legacy of the Treaty of Maastricht, is abolished: henceforward, EU policy in the field of interior affairs and cooperation between police, customs and judicial authorities is to be brought within the mainstream. Greatly improved provisions for the making of common foreign, security and defence policy offer the prospect of closer cooperation between those member states which are both militarily capable and politically willing. With the constitution it will make practical sense in the enlarging Union for certain groups of member states to go further and faster in any given sphere of integration.

The constitution re-casts the values and principles which lie behind European unification. It consolidates the competences conferred on the Union by its member states. It determines the powers of the institutions. Instruments are rationalized, decision-making procedures streamlined, and jurisprudence codified. What had previously been long-winded and obscure is now shortened and clarified. Certain ambiguities and inconsistencies thrown up by previous treaty revisions   Maastricht (1992), Amsterdam (1997) and Nice (2001)   are now resolved. The overall effect of the reform is to turn the pile of international treaties which has hitherto formed the basic statutes of the EU into a more visible and distinct supranational legal order. The mandatory nature of the Charter, the acquisition of legal personality, and the power of the European Parliament to initiate future amendment are examples of this process of constitutionalisation. That is why the document is called A Treaty establishing a Constitution for Europe. It is a constitutional treaty replacing the earlier treaties; it is an international treaty whose consequence is to re-found the Union on a constitutional basis.

Encountering difficulties

Until the constitution comes into force, the constitutional process is governed by the present Treaty on European Union. This says, in Article 48, that no revision of the treaties can take place unless it is agreed first by the governments of all the member states and then ratified by all those states according to their own constitutional requirements. One government veto or one failure to complete a national ratification process brings the whole scheme to a grinding halt.

The possibility of an upset in one or more member state was foreseen by the Convention and the IGC. Declaration 30 annexed to the constitution states that ‘if two years after the signature of the Treaty Establishing a Constitution for Europe, four fifths of the Member States have ratified and one or more Member States have encountered difficulties with proceeding with ratification, the matter will be referred to the European Council’. But that, in truth, was not a serious contingency plan. A crisis meeting of the European Council is hardly a constitutional solution to the very real legal and political problem which the Union now faces. Even if four fifths of member states were to ratify, that would be of symbolic value only and would make no material difference to the Union’s present predicament. The heads of government, at their critical meeting, would still be confronted by the impasse of Article 48: and they have no Plan B.

To date, only fifteen member states have successfully ratified the constitution according to their own constitutional requirements: Austria, Belgium, Cyprus, Estonia, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Slovakia, Slovenia and Spain. As is well known, France and the Netherlands, following referendums held on 29 May and 1 June 2005 respectively, failed to ratify the constitution. But they are not the only rejectionist states. The United Kingdom cannot and will not ratify the 2004 constitution. Neither Denmark nor Ireland is prepared to run the gauntlet of referendums for the sake of the present text. The governments of the Czech Republic, Poland and Sweden are reluctant in these circumstances to proceed with ratification. Portugal would like to, but has promised a referendum and therefore cannot risk it. Only disciplined Finland, which currently enjoys the presidency of the Council, is planning to ratify the constitution through its parliament before the end of 2006. That will make sixteen.

Some argue, especially from Spain which itself, with Luxembourg, underwent the tribulation of a referendum, that every country has a legal duty to formally express itself on the constitution. That is not a correct reading either of the Treaty on European Union or of the Vienna Convention on the Law of Treaties. Moreover, if the eight reluctant member states were pressed now to come to an official decision about the impeded constitution, in most cases it would certainly be a negative one.

Naturally, it is necessary to respect the verdict of those member states and their peoples which have ratified the constitution as well as those which have not. The fact that the accession states of Bulgaria and Romania have also endorsed the 2004 constitution should not be forgotten. The constitution gains a certain democratic credibility by having been backed by a majority of the member states, representing a majority of citizens. Nevertheless, the unavoidable and paradoxical consequence of the result of the two formal Noes and the several informal Noes is to maintain the Union as it is, imperfections and all, and to block reform.

The period of reflection

In the immediate aftermath of the French and Dutch verdicts, the heads of government met in the European Council on 18 June 2005. The leaders adjudged that the referendum results ‘do not call into question citizens’ attachment to the construction of Europe’, but that ‘citizens have nevertheless expressed concerns and worries which need to be taken into account’. The European Council therefore decided on a ‘period of reflection ... to enable a broad debate to take place in each of our countries, involving citizens, civil society, social partners, national parliaments and political parties’. The heads of government agreed that in the first half of 2006 they would ‘make an overall assessment of the national debates and agree on how to proceed’. Somewhat contradictorily, however, they also declared that the ratification process could continue if individual member states wished it do so, and they extended into the distance the original timetable for the entry into force of the constitution (1 November 2006).

What the European Council did not do was to give a clear focus to the period of reflection or to define its methods of evaluation. The British presidency of the Council in the second half of the year showed no aptitude for either of the options available to it: there was no active reflection and nothing was done to encourage forward the stalled ratification process. The Austrian presidency in the first half of 2006 was more alert. A ‘Sound of Europe’ jamboree was organised in Salzburg, possibly to underline the Austrian government’s hostility to Turkish membership. Yet another fairly sterile conference was mounted on the much-trampled question of subsidiarity. Chancellor Schüssel exercised his preoccupation about the supposed activism of the Court of Justice which had forced Austrian universities to respect EU law on equal access for German students.

Meanwhile, the European Commission prepared to up-grade its communications policy. In autumn 2005 Plan D - for debate, dialogue and democracy was launched by Vice-President Margot Wallström. The purpose of Plan D was to contribute to the period of reflection by supporting national debates, by providing information about the constitution and by working directly with civil society actors at the EU level. But otherwise the Commission gave no strong push to the period of reflection on the constitutional crisis.

In circumstances where the Council is paralysed and the Commission weak, it falls naturally to the European Parliament to fill some political space. MEPs have sought to steer the period of reflection towards a distinct target   namely, that of salvaging the constitution.3 Parliament recognises the need to deepen and democratise the constitutional consensus formed at the level of the elites. It also wants to avoid uncoordinated, narrowly focussed national debates which would serve only to harden national stereotypes and accentuate divisions.

MEPs have gone out of their way to ensure the active collaboration of colleagues from national parliaments, with whom they enjoyed such fruitful combination in the two Conventions. Parliament proposed that a series of conferences between European and national parliamentarians – ‘Parliamentary Forums’   should be organised in order to stimulate the debate and to shape, step by step, the necessary political conclusions. The first of those took place in Brussels in May 2006; the second is scheduled for December. It may be hoped that out of this parliamentary exercise comes a sound analysis of where the original consensus enshrined in the constitution holds good and where the controversial questions lie. The Parliamentary Forums are establishing working groups to address some of the major difficult questions about the future of European integration. Agreement on fundamental issues will open up new perspectives and prepare the ground for reform of the common policies in those areas where dissent exists.

National governments and the Commission should now add their weight to this parliamentary effort by helping to organise public meetings and media debates on the future of Europe   'Citizens' Forums'   at national, regional and local level, structured along commonly agreed themes. The social partners and civil society organisations should get engaged in these debates. Above all, however, Europe's many political parties must give much more prominence to the European dimension in both their internal debates and electoral campaigning. Citizens' petitions to the Parliament could contribute to shaping the debate.


The first, and for some most difficult, thing is to acknowledge, even implicitly, that the ratification of the existing constitution has now encountered insurmountable difficulties. This admission is particularly painful for those who fought on the losing side in France and Holland, and is complicated by the reigning confusion about what to do next.

In theory, at least, there are numerous options. They range from abandoning the constitutional project altogether to tearing up the 2004 text and starting again from scratch. In practice, of course, the options are more limited. As the months pass, the number of diehards who advocate continuing blithely with ratification of the present text as if nothing has happened diminishes. Apart from anything else, it is obviously important to stop more countries from saying No, thereby compounding the difficulties faced.

Some cling to the view that it is up to France and the Netherlands to come up with solutions before others proceed to a vote of their own. However, the incidence of such persons is very low among the French and Dutch, most of whom are demanding a European solution to the crisis they have instigated. In any case, as the period of reflection demonstrates, French and Dutch leaders have no simple or straightforward answers as to why they lost the referendums. Furthermore, tidy as it might seem, a solution tailored specifically to satisfy one strand of French and/or Dutch public opinion would be highly unlikely to be found neutral by others.

It is suggested that new protocols may be added to the constitutional treaty addressed to one or more or all of the member states. But any protocol would be binding on every member state and would require ratification by all – including those which had already ratified the original text. Declarations are a less ponderous instrument. Interpretative declarations were a useful tool in the case of Denmark and Ireland when their ratifications of the Treaties of Maastricht and Nice, respectively, provoked initially negative outcomes. In theory, it would be possible, all other things being equal, to repeat the Danish and Irish experience with respect of France, the Netherlands and the UK. But in practice, the scale of popular rejection and its multiple causes raise serious doubts about whether such a tactic would be sufficient on its own to convert hostile political opinion. In both Denmark and Ireland, the compromises reached with their EU partners served also to unite domestic political forces that had been antagonistic over the initial proposition. Tinkering on the margins of the constitution seems unlikely to induce similar bipartisan harmony in France, Holland and Britain, or, for that matter, among the fractious Czechs and Poles.

Nevertheless, Angela Merkel, among others, has suggested that something be added to the constitution to make more visible its social dimension, presumably without changing its meaning or creating legal uncertainty.4 This is an idea which we discuss in more detail below, although it is worth flagging up our concern here that deft editorial work alone will not be enough to save the constitution.

Nor is there magic in a change of name. We have already argued that the official title of the document – Treaty establishing a Constitution for Europe – is entirely apt. It is undeniably a constitutional treaty, and the Convention and the IGC were quite correct to describe it accurately. There are those who have convinced themselves subsequently that if the treaty had been called something else it would have met with universal popular acclaim. Paradoxically, that argument is made much of in Holland despite the fact that the official Dutch name for the treaty is not ‘constitution’ at all but ‘grondwet’. In Germany (where the constitution was ratified without any difficulty whatsoever) one hears ironic proposals to change the name from ‘Verfassung’ to ‘Grundgesetz’. Yet this semantic debate does not seem to penetrate the wider public whose more pressing need is for politicians who can explain the difference between the constitution of their state and that of their Union   and justify the existence of both. Even in Britain, where every club has a constitution, the question of the name is not the burning issue: those who will campaign against the constitution will do so regardless of the name. In light of the fact that the constitutional treaty is already called ‘constitution’ in popular shorthand and is bound to continue to be so, what could possibly be gained from seeking now to change its official name? Those who sought to perpetrate such a deceit would surely be opening themselves up to the charge of being stupid. Or, to be more polite, to belatedly change the name of the constitution hardly seems necessary and will of itself never be sufficient to secure its entry into force.

As usual in circumstances of a political crisis, there has been much talk of differentiated integration among a number of member states which may choose to go faster or further in one direction or another than the Union as a whole. Nicolas Sarkozy, for example, has floated the idea that the six largest countries could form a directorate to steer the Union. Many German politicians, in particular, are attracted to the notion of a federalist hard core. Guy Verhofstadt, Belgian prime minister, argues for the eurozone to become the engine of integration; it is unfortunate for his thesis that two of the most important members of the eurozone have just declined to take a big step forward in political integration.

The European Parliament, on the other hand, has made it plain that it rejects the establishment of core groups of certain member states bound together exclusively by size, wealth or mutual self-esteem. It would also regret at this stage the formation of coalitions of certain states outside the EU system as a way of bypassing the constitution.5 While the constitutional process is still in train, any attempt to deploy the Treaty of Nice provisions for enhanced cooperation between integrationist minded member states as a way out of the constitutional crisis should be resisted. In any case, it is not obvious that the Nice provisions could be implemented purposefully. Only the entry into force of the constitution would permit enhanced cooperation across the whole range of policy, including defence. And only the constitution would make the key change of allowing a core group to adopt QMV where unanimity would remain the general rule for the rest. Why settle for second best? An initiative to launch a core group today would be truly divisive, and would be certain to ruin any chance of rescuing the whole constitutional package.

Another option advanced – perhaps the most fashionable   is that the EU should implement the constitution selectively by way of a judicious deconstruction of the 2004 package. Sarkozy, notably, in an effort to extricate France from another capricious referendum, has proposed a 'mini-treaty' or Treaty of Nice bis, designed to make minimal but important institutional innovations.6 It is telling, however, that few of those who took an active part in the construction of the constitution agree with this approach. It is a basic error to underestimate the scale, complexity and sophistication of what was achieved by the Convention and the IGC. The 2004 text represents a vast compromise built upon a series of reciprocal concessions. Cherry-picking would destroy this carefully constructed consensus among the very disparate member states and between the hotly competing institutions, thereby aggravating rather than alleviating the Union’s crisis of confidence. Ask twenty-seven governments to choose their favourite bits out of the constitution, and at least twenty-seven answers will come back – presaging, among other things, a renewed struggle for power between the larger and smaller states. As far as the EU institutions are concerned, the reforms prescribed by the constitution are mutually reinforcing: all emerge strengthened. The 2004 constitution has an admirable internal logic to it. Its new inter-institutional balance, so carefully struck, should be respected at all costs.

Another possibility now canvassed is to try to phase in the ratification and implementation of the different parts of the constitution. This incremental approach would involve an early implementation of the more palatable institutional changes with the promise to deliver the whole package later. But this, too, gives rise to insuperable problems. Who could really trust each and every government to keep its word about completing the project? The constitutional treaty cannot subsist alongside the existing treaties, intended, as it is, to replace them. The new budgetary and legislative procedures appear not in Part I but in Part III, as do the rules governing the establishment of the new external action service. Only in Part III does one discover the political objectives that stem from each area of EU competence as conferred in Part I. Moreover, the extensions of QMV in the Council, an essential key to the constitutional package, are laid down in Part III. It is not true, as is often evinced, that Part III is either inconsequential, on the one hand, or merely reproduces the existing Treaty establishing the European Community, on the other. Part III cannot therefore be simply dropped; nor can it be put on hold.

The fact is that there is no quick fix possible on institutional reform. Those who, like the British, are tempted to advocate simplistic solutions must be suspected of ulterior motives. The deconstruction of the constitutional package deal and its piecemeal implementation should only be considered as the last resort, if all else has failed.

There remains the nuclear option, which is to try to change Article 48 of the existing Treaty so that its further revision – that is, the entry into force of the new constitutional treaty – would be enacted before all member states had completed national ratification according to their own constitutional requirements. Declaration 30 and Article IV-443.4 of the 2004 text would suggest a threshold of four fifths. The US Constitution can be amended by three quarters of the states – and has been so amended twenty-seven times. No modern international organisation, let alone a federal union, has imposed such a ponderous statutory revision procedure upon itself as the European Union. The Convention was unable to agree on a more supple way to bring the constitution into force. The Commission’s unofficial ‘Penelope’ draft treaty proposed that a separate treaty be enacted in parallel to the constitution that would give the go-ahead once five sixths of member states had ratified.7 However, given the half-hearted and defensive mood of many heads of government when they came to justify their signatures on the constitution, there is clearly no appetite for such radical ideas today. As we will discuss later, some relaxation of the future revision procedures may be agreeable as part of an overall, fresh consensus on a modified constitution – but a special IGC just to modify Article 48 looks impossible now.

Needless to add, the stalling of the ratification of the 2004 constitution does not preclude the carrying through of certain democratic reforms that can be given effect without treaty change by way of a revision of existing rules of procedure or inter-institutional agreements. Much progress has been made under the recent Austrian presidency on implementing overdue reforms according to the provisions of the existing EU treaties. These interim reforms are not cherry-picked from the constitution, although they can usefully prepare the ground for the reception of the whole package. Agreement has been reached on increasing the transparency of law making in the Council of Ministers. The European Commission has agreed to send its official documents directly to national parliaments in order to assist their scrutiny procedures, as well as promising to duly consider comments received from national parliaments on the grounds of subsidiarity or proportionality.8 The inter-institutional agreement on comitology has been improved to put the European Parliament on the same basis as the Council with respect to quasi-legislative implementing measures.9 Deploying the passerelle clause in the field of justice and home affairs so that the use of QMV and co-decision can be extended has been agreed by the Council in principle, though not yet in practice.10

The European Parliament, with its large vested interest in the constitutional project, has welcomed all these measures of sub-treaty reform while at the same time confirming its own commitment to reaching without undue delay a comprehensive settlement based on the 2004 treaty. MEPs are conscious, of course, that too much anticipation of certain provisions of the constitution enacted on the basis of the Treaty of Nice could weaken the case for continuing with the whole project. They are right, therefore, to recall that the grave political problems and institutional weaknesses that the Convention was set up to address will persist regardless – and, indeed, grow   unless and until there is a broad settlement along the lines of the proposed constitution.

The Treaty of Nice is not a viable basis for the continuation of the integration process. Further enlargement beyond Bulgaria and Romania is at any rate impossible without a further revision of the treaty. Even in the case of Croatia, likely to join during the next mandate of the Commission and Parliament, it will be necessary to revise Nice. Agreement will have to be reached between twenty-eight governments on the size and shape of the Commission and Parliament, as well as on the re-weighting of votes in the Council.11 Not easy.

To summarise, although some democratic improvements are possible under the existing EU Treaties, the Union will not work well in the future without a constitution. Decision making in the Council is already very difficult; the Commission is too big; and the Parliament is too weak. Without a constitutional settlement it will be impossible for the Union to expect the loyalty of its citizens, to maintain the momentum of integration or to become a respectable partner in world affairs.

As for the options, (1) only a nationalist minority wants to put integration into reverse and ditch the constitution. (2) Because the ratification of the 2004 text has encountered insurmountable difficulties, it is not realistic to expect its entry into force unmodified. (3) France and Holland have no magic solutions. (4) A radical re-drafting of the constitution in any particular direction, let alone a more federal one, is impossible. (5) Explanatory texts added to the existing document in the form of either protocols or declarations might contribute to a solution but will not of themselves be sufficient to secure popular ratification. (6) A change of name is disingenuous. (7) The formation of federalist core groups is at the very least premature. (8) Piecemeal implementation, either in terms of content or schedule, will destroy the consensus behind the 2004 package deal. (9) To separate out Part III would be simplistic. (10) Now is not the time to relax the requirement that all member states need to ratify before the constitution can come into force.

The last option, and the best, is (11) a judicious modification of the 2004 constitutional treaty resulting in its improvement and eventual successful endorsement. What precisely needs modifying, and how, depends on the outcome of the reflection now underway, and, more stringently, on an analysis of the present state of the Union.

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