Published in
Year XVIII, Number 1, March 2005
- We have in front of us a Treaty, whose purpose is to establish among the Union's member States a constitutional order, and no longer just an institutional one. Contrary to what they want us to believe, this Treaty is less characterized by a more general application of the qualified-majority rule, than by the preservation of unanimity in key sectors: foreign policy, defence, tax laws and social policy, that affect to a high degree the ever more integrated evolution of European society. In fact, the unanimity rule blocks any major progress, at least for the time being. Unanimity is required, what is more, for the Treaty to come into force, as well as for revising it.
The right to secession is present explicitly in the text. What was not the case for former Community Treaties. This provision, if one knows international right, takes us away from the "federal" to the advantage of the "confederal".
- The Treaty replaces the pile of former Treaties, except the Euratom Treaty. One would have expected an easily readable document for bringing "Europe" within the capacity of the citizens. Instead of making it simple, we find ourselves in front of a massive document of 448 Articles and 36 Protocols which form an integral part of the Treaty (plus 89 pages of declarations). By comparison, the Constitution of the French Republic comprises 92 Articles, the Swiss Constitution 198, the Canadian Constitution 147, the American Constitution of 1787 just 7 Articles and 27 Constitutional Amendments, and nobody would dare pretend that it is obsolete.
Another subject of complexity and hence perplexity: the qualified-majority rule as it is defined: 55% of the member States comprising at least 15 of them representing 65% of the population. The blocking minority must include at least 4 members, otherwise the qualified-majority is considered attained. But, in addition and remarkably, notwithstanding what specified above, when the Council does not decide on a proposal by the Commission or the Foreign Minister of the Union, the majority is defined as at least 72% of the members of the Council, representing at least 65% of the population of the States.
- Even if the proposed document "innovates", "organizes", "arranges" according to a more coherent plan many dispositions scattered in former Treaties, it nevertheless falls short of our expectations in answering today's challenges.
A case in point is foreign policy, at a moment when Europe is driven to break away from American leadership, for assuming on its own ever greater responsibilities on the international plane, much more strongly than in the past.
Of course, we will have a European Foreign Minister and the EU has now a telephone number, which Henry Kissinger had asked for at which it could answer "as such". And yet, Mr Solana will be at the same time the mandatary of the Commission and of the Council, which in reality will continue to decide by unanimous vote. This "Mister double-hat" makes one think of La Fontaine's tale: "I am a bird, look at my wings, I am a mouse, long live the mice!".
In addition, this foreign policy will be supported, for operations abroad, by a European service placed under the Council.
- As to defense, each State will keep its royal attributes. The Treaty lists some objectives (conflict prevention, humanitarian missions, crisis management, etc.) but the Council continues to decide by unanimous vote. The Treaty, although instituting an armament agency, places it under the sole authority of that Council, hence of the States.
The Treaty provides "structured cooperations" among member States willing to give birth to advanced integrations among them, but the decisions regarding them will be taken by unanimous vote.In such a situation, "the progressive definition of a Union's common defence policy" is puzzling.
- In other areas, "enhanced cooperations" are provided for, granted by a European decision of the Council acting on a proposal from the Commission and after obtaining the consent of the Parliament, or else taking a unanimous decision after having sent the request to the Parliament for information and after having sought the advise of the Commission. Moreover, for it to enter into force, one third of the member States must be involved, after the consent of the European Parliament.
- Although the text is pretending that now "the rule of qualified majority is the general rule", unanimity remains equally the rule when there is to define the Union's own resources, taxation (including the fight against tax evasion), the allocation of structural and cohesion funds, the trends to be given to social and environmental policy, the negotiations and their conclusion in the areas of services, commercial aspects of intellectual property, foreign direct investments, etc.
Whereas the Union has "the competence of competence" in the euro-zone countries in currency matters, economic policies, essentially, remain within the competence of the Union members, as it, as such, is allowed to determine only the general trends and coordination of the whole, and its role is limited to "recommend" the Broad Guidelines of Economic Policies to the States, according to Art. III-71. In matters of employment, the Union defines the guiding lines of a coordination policy.
The outcome of such an exercise can be evaluated today in terms of growth and employment. The growth forecast of the euro-zone is 2,2% in 2004; 3,4% in the UK, 4,3% in the US, 4,4% in Japan, and 5% for the world economy, being understood that the oil crisis could level all of those percentages. In matters of employment, the euro-zone is the tail-light of the advanced industrial world, with 9% of job-seekers relative to active population, versus 4,8% in the UK, 4,6% in Japan and 5,8% in the US. As Jacques Delors, who wakes up every now and then, said, "the unbalance between the economic and the currency aspects remains untouched".
- I mentioned the above to avoid attributing to it, as too often is done by the thurifers of the constitutional Treaty, virtues and therapeutical powers that it does not have, paving the way to tomorrow's disappointments.
This said, it is true that the proposed document does not contain any retreat and contains some appreciable, although limited, advances compared with the Nice Treaty.
- It confirms the Union's legal status. Paolo Ponzano, Director of the "Institutional Task Force" of the Commission's General Secretariat, notes on this subject that this is not a real novelty with respect to the present treaties. I quote: "The European Community has always had a legal status and hence the ability to sign international agreements", although it is true that the European Union (created by the Maastricht Treaty) only has an implicit legal status. The fact that the EU can avail itself in the future of a "single" legal status is not, therefore, a truly new element, all the more so as Euratom continues to have, formally, a separate legal status.
- The Treaty, with the inclusion of the Charter of Fundamental Rights, will give a binding legal value to it, making legal claims possible and hence really protecting citizens' rights, when the States apply the laws of the Union.
- The Treaty gives the European Council a stable, full-time Presidency for two and a half years, renewable once, and at the same time confirms the election of the Commission President by the European Parliament. However, according to Mr Ponzano, "there is the risk that the permanent President of the European Council will cut out for himself an independent role" that could cast the Commission President into the shade, all the more so as the European Council, in the framework of the Constitutional Treaty, becomes an institution, which it was not formally so far.
- The Treaty, by merging the Treaties in existence (except once again that of Euratom) substantially improves the norms dealing with the realization of the space of liberty, security and justice, by extending the community method. The areas of application of qualified majority will be twenty times as many considering the whole constitutional Treaty.
- Moreover, the Treaty will allow the Union to make laws in matters of services of general interest and to make some progress towards democratization, for example in associating national Parliaments, in opening the way to participation of civil society in the integration process. The new text explicitly recognizes the development of "participatory democracy" (initiatives by citizens that can lead to legal acts of the Union, that is to say, to laws of citizens' initiative). Such participatory democracy is bound to let civil society play an organized role in the new "constitutional" framework, in addition to that- more traditional but always essential- of "representative democracy", as it takes place in our countries.
Finally, last but not least, as Romano Prodi was pointing out recently in an interview, "it is true that in some circumstances the better is enemy of the good".
To reject the constitutional Treaty as it is presented now, because it is unsound, incomplete and, in some aspects, ambiguous, would be felt by public opinion as a failure of the European idea and of the European project itself, especially if this failure is to be ascribed to one of the countries which have been the founders of the community process born from the Monnet-Schuman initiative of the 1950s. If the failure will be due to the attitude of this or that Eastern European country that has recently regained its sovereignty after having lived under the Soviet boot and experienced totalitarian hardships for half a century, or if Great Britain will have to be blamed, the fact to be brought back to the start -that is to say, to the mediocre Nice Treaty- would be felt as a failure as well. But nothing would then prevent the "founders" and somebody else (I think in particular of Spain) from going back to the spirit of Joschka Fischer's speech at the Humboldt University and putting in place, if they have the political will, the "United States of Europe" within the European Union. If, instead, one of the founding countries gives up -France, for example- I am convinced that the refusal will have lasting negative consequences, highly dangerous and maybe even irreparable, for the historic process of the whole European Union. "A 'no' by France will drive Europe into an absolute crisis"- warned Jean-Claude Juncker, Prime Minister of Luxemburg.
That is why a clear 'yes', critical but cautious, looks to me inevitable.