Charlemagne: Another fine mess

So whose bright idea was that constitution in the first place?

THIS is not the time for recriminations. That can wait a couple of days. But as European leaders contemplate the strong possibility that the European constitution will go down to a double defeat in next week's referendums in France and the Netherlands, they may start to wonder how they got into this mess in the first place.

It would be comforting to believe that the drive to write a constitution for the European Union was unavoidable - comforting, but wrong. In fact, the political crisis that referendum defeats would be bound to bring was entirely avoidable. The partisans of the constitution sometimes argue that the whole exercise was needed to ensure that the EU could function with 25 members. Not so. The Union has already enlarged and its institutions are working. The constitution does include some improvements to EU procedures - such as a more democratic voting system, and an end to the farce of the “rotating presidency”. But if European voters turn down the document, the EU will still function.

So if enlargement is not the explanation for the constitution, what is? To your correspondent, it always seemed clear that the driving force behind the constitutional movement were the advocates of the old dream of European political union. Gisela Stuart, the British member of the 12-person presidium that guided the work of the constitutional convention, came to a similar conclusion. In 2003, she wrote: “From my experience at the convention it is clear that the real reason for the constitution - and its main impact - is the political deepening of the Union.”

It is also true that advocates of political union in Europe fell short of their key goals in the constitutional convention. In particular, the drive to decide EU foreign and taxation policy by majority vote was beaten back. Instead, the federalists had to settle for lesser achievements: the establishment of a Charter of Fundamental Rights; the creation of a European foreign minister; the first formal statement of the supremacy of EU law and the establishment of a legal personality for the Union; expanded powers for the European Parliament; greater EU power over immigration and policing - and so on.

None of these innovations has played a particularly prominent role in either the French or the Dutch campaigns. But what the Brussels insiders who drafted the constitution failed to realise is that the referendums would turn into a judgment on the European Union as a whole, and not simply the “advances” in the constitution. The Dutch antis have made much of discontent with the euro. French rejectionists have sometimes seemed to question the very concept of free trade within a single market - a principle that dates back to the Treaty of Rome in 1957.

The yes campaign's response to arguments of this sort - “But this was all agreed in 1992 or 1957 ” - -has not worked. The Dutch never had a referendum on the euro, or on any of the other steps on the road towards European unity, so this is their first opportunity to register a direct protest at the way the EU has evolved. In France, Laurent Fabius, a Socialist advocate of non, argues that the single market was indeed excellent when it was first agreed - but adds that the context has been changed by the enlargement of the EU (which he supported) to include countries much poorer than France, such as Poland or Slovakia. Hence the French left's demand for a “social Europe ” - -which might export French-style labour laws (and their associated costs) to the newcomers to the Union.

Once again, this was a development that was barely anticipated by the framers of the constitution. Fixated by the traditional federalist agenda - as well as the power struggle between EU institutions - the constitutional convention paid relatively little attention to the advocates of “social Europe”. Valery Giscard d'Estaing, the French chairman of the convention, did his utmost to prevent the formation of a working group on the subject - and although one was set up, its recommendations were largely ignored. It was only when EU governments began to rewrite the constitution that advocates of social Europe gained some ground. Largely at the insistence of the Belgian government, a new provision was added to the constitution (Article III-117) to insist that all EU policies must “take into account the guarantee of adequate social protection, the fight against social exclusion”. Taken alongside the Charter of Fundamental Rights, this clause does push the EU further in the direction of “social Europe”. But, at this stage, it barely matters. The French and Dutch campaigns will not be decided by the fine print.

Maquis against the acquis?

The fact that the referendum campaigns in both countries have focused so much on the European Union as a whole underlines the dangers of the current debate. A “double no” would not just signify rejection of the constitution itself. It might also start a backlash against elements of European integration that were already in place before the constitutional debate got going - in particular EU enlargement and the single market. The federalists' gamble would then have gone spectacularly wrong.

Of course, nothing is decided yet. In the last days before the votes, the French opinion polls were still close and the Dutch polls - although suggesting a no - varied wildly. Even if the final result is a “double no”, the details and aftermath would matter hugely. A close result in France might just open the possibility of a rerun, though the government has ruled this out; a decisive outcome would close that option off. Much too will depend on the tone taken by Jacques Chirac in the aftermath of a referendum defeat. In Brussels, the hope is that France's president might adopt a humble and constructive approach; but the fear (and semi-expectation) is that he would instead go on the offensive against an “Anglo-Saxon” and “ultra-liberal” domination of the EU. That would ensure that France's internal conflict was exported to the heart of the European Union itself.

Commentary feature.