Time for a little constitutional
Why it will be so hard for next week's summit to sew up a deal on a slimmer European Union treaty to replace its failed constitution.
Three years after European Union governments agreed on a constitutional treaty, and two years after the result was rejected by French and Dutch voters, EU leaders will meet in Brussels on June 21st-22nd to salvage what they can of the text. Their aim is to rescue whatever they think is most useful, notably elements that make for greater institutional coherence and fairer decision-making in a club that has now grown to 27 members. The EU's leaders agree that the new replacement treaty should be ratified by national parliaments, avoiding any more pesky referendums. All know that some referendums would be lost, certainly in Britain and perhaps in the Netherlands too. Because so many countries promised to hold referendums on the constitution, breaking these promises requires them to be able to argue convincingly that any new treaty is a different, more modest beast. And that means ditching the parts of the old text that are not strictly needed, or that overly provoke voters. The problem is that the 27 countries are deeply split over which parts are useful and which will provoke. There are three broad camps.
First are the 18 countries that have ratified the constitution (and four that would do so without trouble); they are sulky at having to revisit a deal they thought was settled.
Next are the naysayers, who either voted no (the French and the Dutch), or who almost certainly would have done had they been given the chance (the British, plus the intermittently skeptical Czechs). They want a different, shorter treaty, but would like it settled fast.
Alone in the third camp are the Poles. They have a specific objection to re-weighting the system of national votes, and are in no hurry to reach a deal.
The current rules give Poland almost as many votes (27) as Germany (29), although Germany's population is twice as big. The system in the constitution provides instead that a majority must mean 55% of EU members representing at least 65% of the EU's population. To stop big countries gaining too much clout from this, a “blocking minority” must contain at least four countries. Even so, the new system transfers voting power from small and mid-sized countries such as Poland to big ones—notably Germany.
The current German presidency of the EU makes no secret of its view that the two trickiest countries are Britain and Poland. The British position is complicated because a few days after the summit Gordon Brown will replace Tony Blair as prime minister. The intentions of the Poles are a mystery. In an effort to hurry things along, the Portuguese, who take over the presidency next month, say that unless a solid political deal is reached they will not call a conference to draft the new treaty.
The ratifiers seem ready to abandon symbolic elements of the constitution. These include articles formally enshrining Beethoven's “Ode to Joy” as the EU anthem, or describing the EU's flag as one with gold stars on a blue background. It probably also means that a powerful new EU foreign-policy chief will not be called the “foreign minister”, a term seen as a red rag to Eurosceptic nationalists.
The new foreign-affairs job would combine two existing, rival posts: that of the foreign-policy boss at the European Commission, who has money to disburse and controls EU missions round the world, and that of the EU's “high representative” for foreign policy, who reports to national governments and so has political clout, but few staff and almost no money. The new post's existence does not, of course, mean the EU will magically acquire a single foreign policy. The new not-a-foreign-minister, whatever he is called, will speak for the EU only on issues where all 27 national governments agree. But when he does, he will speak for all EU institutions.
In general, the ratifiers are willing to offer solutions to the naysayers' more specific problems, as long as these do not muck things up for others. Thus, they may give Britain an opt-out on criminal-justice policy, and on police and judicial co-operation. The British want this because the new treaty plans to move these sensitive policy areas from a fenced-off corner where unanimous votes are the rule and the European Court of Justice has no jurisdiction; they will become part of the main body of the EU's work, where decisions may be taken by majority and the court and parliament can both get involved.
The Dutch may struggle to win their demand to include in the new treaty the rules that determine when countries are ready to join the EU. Putting these in a treaty could allow the European Court to meddle in enlargement policy, others say. Other Dutch negotiating points include beefing up a “yellow card” system for national parliaments, under which the European Commission must “take account” of complaints from national parliaments against planned EU laws. But there is no majority in favor of giving national parliaments a “red card” to veto EU proposals. A compromise may feature a Dutch-sounding “orange card” instead. To keep leftists in his broad coalition government sweet, the Dutch prime minister, Jan Peter Balkenende, will also grumble about EU rules banning him from subsidizing social housing, and forcing him to put public-transport services out to tender. Yet although nobody will ignore the Dutch, they are not seen as deal-breakers.
In contrast, the British will face angry resistance to their request to strip all legal force from the charter of fundamental rights, a sweeping list of social rights that was bolted on to the constitution. That annoys those who point to special phrasing that Britain secured in the original text, telling the European Court to pay due regard to a series of parallel “declarations” stating that the charter cannot overturn such things as national labor laws.
Among the ratifiers, the biggest complaint is that Britain itself drafted this special phrasing, and yet is now coming back for more. Blair will tell next week's summit that this is missing the point. Politics has moved on in the past three years, and business fears about the charter's possible scope have only grown. Solving this, and other British anxieties, will now take more than slippery legalese. Instead, assuming the charter is not dropped, the British will want crudely explicit legal promises that it does not and cannot trump British national laws. Nobody knows if such language can be written without offending everybody else. At least other EU leaders know where they are with the British. They are used to pragmatic prime ministers trying to manage a ferociously skeptical electorate and press. Poland seems to be the reverse: the voters are more pro-European than the government, according to opinion polls, and nobody knows whether the Kaczynski twins (president and prime minister) want to be pragmatic or to have a fight. It could be a long, hot summit. (economist.com)
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