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,
Éditions Thémis. Montreal 2004, Transatlantic
Relations after Iraq, Volume 8 Issue 4 European
Foreign Affairs Review (special issue, Winter
2003).
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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.
_________________________________________________________________________
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