Adoption of the Treaty on the Constitution for Europe

Francesca Astengo and Nanette Neuwahl
June 18, 2004
            June 17, 2004, is the newest deadline for hammering out a compromise among heads of state and government of the 25 Member States of the European Union (1) on the adoption of a "Treaty on a Constitution for Europe."  For years the European Constitution has been a central topic of debate.  Ever since the Laeken Declaration of December 2001 used the controversial word "Constitution"  in a paragraph entitled "Towards a Constitution for European Citizens," the Union has been contemplating the eventual adoption of a "constitutional text in the Union."  The Laeken Summit was also responsible for the creation of a "Convention on the future of Europe," a reflection group composed of 105 members (delegates from national governments and parliaments from the fifteen EU countries and a number of members-to-be, two representatives from the Commission and sixteen from the European Parliament).  Its task was to consider the key issues arising for the Union's future development and to try and identify the possible responses to them by conducting a wide public consultation.  On 18 July 2003, the Convention was able to present the fruits of its labor in the form of a "Draft Treaty establishing a Constitution for Europe."  A high level Intergovernmental Conference was convened in the hope that the agreement could be signed in time for the enlargement scheduled to take place on 1 May 2004, or, if that was not possible, at least prior to the June European elections.
            Negotiations intended to finalize the constitutional treaty failed dramatically in December 2003, because of disagreements over such issues as the distribution of votes and the size and composition of the European Commission in an enlarged European Union. After the initial disappointment, constitutional talks were revived in March 2004 under the initiative of the Irish Presidency. If their strenuous efforts to complete the negotiations do not end in the signature by the European Council, at the Summit of  June 17, of the new treaty on the European Constitution, leadership on this matter will pass into the hands of the Dutch presidency.  Europhiles have often swung between optimism and disillusion, and in the capitals Euroskepticism seems to follow on EU-phoria just as often as the reverse.  Recent developments, however, suggest that an agreement on the new European Constitution is within reach. The change of government in Spain and Poland - the two countries that were clinging to the generous voting rights allotted to them just four years earlier by the Nice Treaty - has improved the chance of the Constitution being adopted.  In fact, the new Spanish socialist government of José Luis Zapatero, elected in March 2004, seems intent on seeking a compromise, and so does the newly appointed Polish Prime Minister Marek Belka.  The Madrid bombing of 11 March, which highlighted the importance of closer cooperation in the field of security, may have helped to persuade governments to try once more to save this important document.
            Yet, even when agreement between governments is within reach, the Constitution still has a long way to go, because the agreement must be followed by ratification.  Ratification is the process that allows the people of each of the twenty-five countries of the enlarged Union to have the last word.  But ratification will take different forms.  In some Member States a vote of Parliament suffices; in others a popular referendum is required.  This depends on the national constitutional rules and political processes of each of the Member States.  Ireland and Denmark, two countries that have rejected European treaties before, are constitutionally bound to hold a referendum.  Other countries have a choice of procedures.  Thus, in 1992 France opted to hold its referendum on the Maastricht Treaty. On April 20, 2004, Britain's Prime Minister Tony Blair announced an intention to do the same for the constitutional Treaty. In addition, any country that considers that the Treaty establishing a Constitution for Europe has a major impact on its legal and political system will need to consider whether to undertake national constitutional reforms prior to ratification.  Given these long procedures, the European Constitution will unquestionably occupy the minds of the public and the media for the foreseeable future.
Widening versus Deepening?
            On 1 May 2004, a "constitutionless" Union admitted ten new members into its midst. This is extraordinary. The geographical size of the EU increased by 34%. After the addition of some 75 million new citizens the EU's population now totals 455 million, representing not only a larger market but also a much more complex  social context, with twenty official languages, a multiplication of political and legal cultures, new political borders and a different geo-strategic outlook both on the continent and the world.  It is clearly a triumph that the divided continent is now united.  For eight of the new EU countries the first of May was radically transformed from a day of parades in celebration of the worker into a day which symbolises the culmination of a decade-long process of democratization and entry into the European family.  Paradoxically, however, just as Europe reunites, it also includes once again a divided country among its members. Cyprus remains a problem as de facto only the Greek part of the island, and not the Turkish part joined the Union after the massive Greek-Cypriot refusal of the UN plan for a united island (and new EU member state) last April 24th. The latter cast a shadow over the enlargement and prolongs the existing climate of uncertainty in the eastern Mediterranean. For these and other reasons, some may argue that it would have been better had an EU Constitution been in place at the time of enlargement, as Europe would have been better equipped to deal with this epochal change.
            Yet, Europe excels in the art of muddling through. Negotiations are certainly more lengthy and compromises more difficult to attain today in a Europe of twenty-five very different States than they were in the more homogeneous Europe of six post-war nations, or even in a community of twelve to fifteen buoyant economies. With the present number and variety of States it is certainly not easy to balance the scales of power within the institutional triangle (the Commission, the Council of Ministers and the European Parliament). But the history of European integration shows that Europe is built step by step, and as long as negotiations remain possible and the participating countries are willing to make concessions, missing one deadline will not matter much.
            Thus, the EU can continue to work with its existing rules for a number of years. But many issues remain.  Where is the breaking point?  How great is the EU's capacity for makeshift solutions?  How realistic are fears that the shortcomings of the existing institutional system will result in paralysis?  Can one calculate the impact of the influx of new countries, people, traditions, cultures and languages, in any meaningful way if it has not been possible to do so in ten years time leading up to enlargement?  How long can the magic formula which Europe invented in the 1980s, of "deepening as well as widening," still work?  Arguably, a wider Europe requires deeper integration in order for it to function - although may would argue to the contrary.  These are issues of governance rather than constitutional law, as one does not need a written constitution to bring about institutional change.
The Importance of the Proposed Constitution
            Clearly, enlargement is not the only reason behind the idea of a new Constitution for Europe, nor the only incentive for convening, in 2002, a Convention for its preparation. Otherwise one could not explain how, from the initially limited agenda of the four "Nice leftovers" (i.e. a more precise delimitation of powers between the Union and its members; the legal nature of the Charter of Fundamental Rights; the simplification of the treaties; and the role of national parliaments in the European architecture), the Convention produced, almost out of the blue, a full-blown proposal for a "Constitutional Treaty for Europe."  While the expansion from fifteen to twenty-five members may have been the catalyst for the EU's institutional reform proposals, it does not fully explain important features of the draft such as the creation of a Foreign Minister, the expansion of the Union's competences in criminal law, or the new decision-making procedure in the field of Justice and Home Affairs.
            A number of factors contributed to convincing European leaders that at the dawn of the 21st century, the Union requires rebuilding.  The need to stem the legitimacy gap and to give some credibility to the idea of building a Union "close to the people" is independent from the question of enlargement.  The EU also clearly requires a better definition of competencies between national and supranational institutions, and the production of a shorter, more transparent and more attractive fundamental text to replace the current spaghetti-like structure of legal cross references.  Its citizens also expect answers to ongoing popular concerns about globalization, international security, immigration, transnational crime and terrorism, social protection, the environment and more. These are concerns that the constitution addresses, albeit in a way that may still need to be perfected, and that are ongoing challenges of governance.
            This being said, the assertion that Europe's future depends on a constitution for its reforms, as claimed on the billboards while the Convention on the future of Europe was in session, is debatable.
About the Authors: 
Francesca Astengo (PhD) is Lecturer in Law and Political Science at McGill University in Montreal. Her publications include:  "European Integration: a Historical Perspective", in Stern-Gillet and Lunati (eds), Historical, Cultural, Socio-Political and Economic Perspectives on Europe, Edwin Mellen Press, Lewiston 2000; and "The Europeanization of the Italian Constitutional Court", Journal of European Integration (2004).  She is co-editor, with Nanette Neuwahl, of A Constitution for Europe? Governance and Policy Making in the European Union, Vol I and II.
Nanette Neuwahl (PhD) is Professor of European Law, holder of the Jean Monnet Chair in European integration at the University of  Montreal. Recent publications include: European Union Enlargement: Law and Socio-Economic Changes,  Ã‰ditions Thémis. Montreal 2004, Transatlantic Relations after Iraq, Volume 8 Issue 4 European Foreign Affairs Review (special issue, Winter 2003).
1. The Member States are currently: France, Germany, Italy, the Netherlands, Belgium, Luxembourg, the United Kingdom, Ireland, Denmark, Greece, Spain. Portugal, Finland, Sweden, Austria, Estonia, Latvia, Lithuania, Poland, Czech Republic, Slovak Republic, Hungary, Slovenia, Cyprus and Malta.