Breaking the deadlock:
Constitution or prostitution

3 things to keep in mind: content, format and procedure

, by Lieven Tack

Breaking the deadlock: Constitution or prostitution

The German Presidency is entrusted to pave the way for saving the shipwrecked Constitutional Treaty. There are a number of possible scenarios on the table, ranging from burying the text or cutting it seriously down to transforming it into a ‘plus’ version. The problem is threefold and concerns the contents, the format, and the procedural steps to be taken. Above all, timing is the most critical factor in solving the deadlock.

With the creation of the European Coal and Steel Community and Euratom, energy was the driving force behind the unification of Europe. Nearly half a century later, energy is again on top of the political agenda. However, the willingness to co-operate at a multinational level is less vivid. Sparked by the collapse of the Constitutional Treaty in 2005, the pros and cons of European integration are highly debated.

The German Presidency has the ambition to unlock the constitutional crisis. To pave the way, the heads of state and government are proposing a political declaration, to be adopted at the March celebrations in Berlin. The re-launch of the constitutional debate boils down to the threefold question about the contents of a new text, its format, and the procedure to get it adopted.

The contents

Simply abandoning the entire text is not an option since the current legal framework, based on the Nice Treaty, does not provide the Union with the appropriate institutional and policy means to cope with the challenges Europe is facing. As Commission president Barroso underlined, an institutional reform is necessary to improve the efficiency and transparency of the decision-making process and to allow further enlargement.

The next question is how such a badly needed text should look like. The plea for keeping the original text hasn’t been met with enthusiasm by many member states. Renegotiating the whole text or important parts of it, allowing opt-outs, and extending enhanced co-operation aren’t valid ways out either. Also paring the text down by deleting controversial articles or cherry-picking by identifying the main elements to be saved, endanger the equilibrium of the original package deal.

A more credible approach comes from the so-called ‘Friends of the Constitution’. Consisting of the eighteen countries that have already ratified the Treaty, they agreed that a modification of the text should be kept to the minimum. In particular, to deal with citizens’ concerns about high unemployment and the sustainability of social security, the Union must be endowed with new and extended competences. This call for more Europe is best addressed by agreeing a ‘maxi-Treaty’, aiming at better macro-economic policy coordination, the inclusion of the revised Lisbon strategy and sustainable development, as well as the shaping of a European social model. Besides, the EU finances, energy policy, the borders of Europe and absorption capacity, external and defence policy, and immigration should be fully enshrined and clarified in this ‘plus’ version of the Treaty.

The format

The second question to be addressed concerns the format of the revised text. First, the reference to a ‘constitution’ has to be abandoned. Second, the Treaty has to be rearranged by saving the first part, moving the Charter of Fundamental Rights to an annex or replacing it by a legal reference, and changing the format of the part on policies and institutions. In this perspective, the proposals of euro-parliamentarian Andrew Duff look credible and also Giuliano Amato, chairman of the Action Committee for European Democracy, has similar ideas. In particular, the idea to revamp the third part as a modified treaty or protocol looks attractive if it is complemented by a simplified procedure for revision.

Yet, democracy fighters could rightly point out the flaws of this procedural trick to push through badly needed adjustments to the institutional and policy framework.

The fear is that the initial way out of the constitutional crisis, as presented by Wallström’s Plan D, literally deletes the “D” from democracy and turns the Union into a space dangerously shaped by citizens’ emotions or “emocracy”.

The procedure

The final question concerns the procedure and the timeframe for adoption. The re-launch of the constitutional debate will go to a head during the small window of opportunity just before the June Council, when the new rulers in France and the United Kingdom will be known.

But the final hurdle to be taken will be on the table of the new French president in the second part of 2008. Setting up a new Convention will not be a guarantee for an improved text and would be too cumbersome and time consuming, knowing that the European elections in mid-2009 are seen as a deadline. The organisation of an Intergovernmental Conference, however, is more attractive and could ideally be followed by a European referendum, being a real test for full citizens’ participation and inclusiveness.

The remaining obstacle is that the salvage plan could be seriously poisoned by the discussion on the revision of the European budget in 2008. The pressure on the Common Agricultural Policy and the British rebate will certainly spice the negotiations and pose a real threat to the mid-2009 deadline.

The cost of a compromise Treaty without a parallel deal on the European budget cannot be underestimated since it would be detrimental to the future of our continent. It’s all about the right choice between constitution and prostitution.


- ’deadlock’ from Flickr


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