Germany's task ahead on the European Constitution

By: Andrew Duff, MEP

Europe’s constitutional tangle continues to roll. The German presidency of the EU, whose job it is to broker an agreement by the end of June, sits tight-lipped in Berlin contemplating the scene. What do the Germans see?

First, every friend of the constitution can be mightily relieved that a meeting in Madrid on 26 January of the 18 countries that have already said Yes to the constitution passed off without incident. The meeting, which had been convened by Spain and Luxembourg without German approval, risked exposing wide divisions between the participants about what to do next. In the event, the debate was kept to a satisfactorily superficial level and the media were handled well. Agreement was reached on the uncontroversial proposition that the 2004 treaty should be the only basis on which future negotiations should take place. In other words, the EU faces a renegotiation of the existing text rather than a new negotiation starting from scratch. The Madrid conference ‑ which was also joined by Ireland and Portugal which have not yet ratified the treaty (but would like to) ‑ served to strengthen the gathering of forces against the idea of a ‘mini-treaty’ that would strip the original of much of its scope and force. A majority emerges, therefore, in favour of a 'constitution plus' ‑ an exercise which would add to the 2004 treaty and make modest but significant improvements to it.

 

Why the mini-treaty idea will not work 

The trend against the option of the mini-treaty has also affected one of its principal proponents, French presidential hopeful Nicolas Sarkozy. Sources close to Sarkozy say that he now realises the danger of seeming, or worse, being, simplistic. The fact is that to dissect the treaty risks destroying completely the fragile consensus that lay behind the 2004 package deal. Representing the text in a slightly different form may be part of the answer, but is not of itself sufficient. If public opinion is to be convinced that Europe’s leaders have really tried to address its obvious disquiet about the state of the Union, there needs to be clear and substantive modifications made to the original treaty.

The realisation that ‘cut and paste’ is not enough has dawned too on the informal group of Euro-savants collected by Giuliano Amato. At a time when transparency is all the rage, deft editorial work designed to obscure the truth about the scale of the constitutional changes proposed by the treaty is hardly likely to convert sceptical public or parliamentary opinion.

There is another reason why the flight to ‘mini-treaty’ has been halted, and this resides in London. Here Geoff Hoon, Minister for Europe, is presiding over a Foreign Office exercise to devise not so much a mini-treaty but a teeny treaty, from which even the extension of qualified majority voting (QMV) presaged in the constitution is stripped away, the standing of the Foreign Minister diminished and the Charter of Fundamental Rights dished. No self-respecting French president could survive for a second if he (or she) were thought to be in cahoots with Hoon. France's establishment has already been stung by its exclusion from the Madrid event: the thought that their only remaining ally might be New Labour is frankly intolerable.

The only crumb of comfort for the Germans is that they now have three positions of the UK government on which to get to work. There is the Hoon reductio ad absurdum. There is Tony Blair’s amiable willingness to help Angela Merkel salvage the constitution he signed. And there is the stance of prime ministerial hopeful Gordon Brown, about which there is much uninformed speculation and only one thing certain – namely, that he will wish to improve upon the European performance of his predecessor.

 

The Polish, Czech and Dutch positions

Less confusing than the British, but just as dispiriting, is the position of Poland. The Kaczynski government has appointed Marek Cichocki as one of its two ‘sherpas’ to talk to Berlin about these matters. Cichocki has now broken cover to confirm that two Polish objectives in the renegotiation are, first, the insertion of Christianity in the Preamble and, second, a reversion back from the streamlined system of QMV proffered by the constitution – that is, a threshold of 55 per cent of the states representing 65 per cent of the population – towards the current system of the Treaty of Nice which gives Poland a privileged voting weight. The Polish government threatens to unveil a full proposal for the treaty’s revision in March. But if the Poles continue with such iconoclasm, they effectively rule themselves out from playing a sensible part in the impending renegotiation.

Prague is a pale reflection of Warsaw. The Topolanek government has appointed as its sherpa Jan Zahradil, now an MEP, who managed to be one of the very few members of the Convention on the Future of Europe who in 2003 opposed the package deal painstakingly put together under the chairmanship of Valéry Giscard d’Estaing. After a recent visit to Prague by Merkel, the Czech president Vaclav Klaus remarked laconically: ‘So now the question is whether our views differ a lot or just a little’.

Germany’s task is made no easier by the formation of the fourth Balkenende government in The Netherlands. After months of talks between the parties, the new Dutch administration was formed on 7 February. The pact between the conservatives, social democrats and a small Calvinist party makes for curious reading. It speaks of the need to change the content, size and name of the constitutional treaty. The new government wants a clear division of competences between the EU and national level, based on the principle of subsidiarity. It wants to balance the demands of European market integration with the need to protect Dutch pensions, social security, taxation, education and health systems. Yet it supports more European cooperation in the fields of environment, energy, asylum, immigration, external relations, anti-terrorism and international organised crime. Turkey would be palmed off with the status of a privileged partnership short of full EU membership. And national parliaments would be given the powers to second-guess the EU institutions (including the Council of Ministers) and block draft laws.

Given that the Dutch now seek to re-open the settlement on the balance of power between the institutions and member states that they signed up to in 2004, the new coalition pact cannot be dismissed lightly. But the German presidency has asked the new Dutch government to specify which articles precisely in the primary law of the 2004 treaty it objects to. This will not be easy for The Hague to answer because, with the exception of the Protocol on how national parliaments deal with subsidiarity questions, it could easily be argued that Holland’s other institutional demands are already well catered for in Part I of the constitutional treaty. There is, however, more scope for policy adjustments in Part III that would meet Dutch anxieties on the social dimension. As to the name of the treaty – at the moment grondwet in Dutch – how about constitutie?

 

How to proceed from here?

Running alongside the debate about the content of the renegotiation, is the constant worry about how to complete the ratification process. Nicolas Sarkozy’s main intention, it seems, is to extricate France from its obsession with plebiscites, permitting ratification by the French parliament. Jan-Peter Balkenende, for his part, agrees, and hopes that the Dutch Council of State will opine that the renegotiated treaty is so different from the original that the need for a second referendum is redundant. In Britain, where the political parties are terrified of being seen to be pro-European, the Westminster parliament is still keen to shuffle off its proper constitutional duty by imposing a referendum upon the hapless British citizen. In Poland and the Czech Republic, likewise, it seems that only the people can save the parties from themselves and rescue their country’s European policy.

The Germans must also resolve the issue of timing. Their preference is for a quick Intergovernmental Conference (IGC) that opens and closes under the Portuguese presidency which succeeds them for six months in July. Such a schedule could only be achieved if the agreement brokered at the European Council in June is solid and sincere. It would require the European Commission to be ready with nifty proposals to make judicious improvements to Part III. Above all, it will require a firm decision to ring-fence Parts I and II (the key constitutional elements and the Charter of Fundamental Rights) from being opened up at all to any substantive change.

Meanwhile, the European Commission, like the German government, is keeping its powder dry. Opinion in the European Parliament is gradually moving to a position where MEPs will back the German effort to improve the constitution with an eye to its eventual ratification by the time of the next elections in 2009. No retreat from the advances proposed in terms of political integration, fundamental rights or parliamentary democracy will be acceptable. Instead, the Parliament should insist that the IGC uses the opportunity afforded by the renegotiation to finish the uncompleted work of the Convention in respect of policy reform.

There is talk of a first ‘institutional treaty’ to be followed later by a more political treaty which would deal with the modernisation of common policies. But such an approach would sacrifice the comprehensive rationalisation of the treaties gained under the constitutional treaty, and would be legally very complicated. As they stand, Parts I and III are inseparable from each other: the latter both interprets and consolidates the former. And in any case, MEPs would be justly suspicious of an open-ended European Council promise of delayed consummation. Reform is needed not tomorrow but today, not least with respect to the economic governance of the Union, the social model, the common energy, environment and agriculture policies, and the definition of future enlargement.

Next month’s target is the Berlin Declaration on the 50^th anniversary of the Treaty of Rome. With luck, this will provide the Germans with the springboard they need towards the June European Council. It will also be something of a catechism for the Polish twins as they are obliged to nod their assent to a reaffirmation of the essential verities of European integration. It may also provide a (much-needed) bipartisan platform on Europe in the French presidential election campaign, as well as a chance to renew the European debate elsewhere, including Britain. For in the end, it will not be changes to the treaty’s size, shape or schedule that determine the final outcome of the Union’s constitutional crisis. It will be strong democratic leadership put to a European vocation.

 

Andrew Duff leads the British Liberal Democrats in the Europe Parliament. His new pamphlet ‘Constitution Plus’ – renegotiating the treaty is to be published on 28 February. www.andrewduff.eu

 

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