A fine mess, but the EU’s leaders insist the show must go on

Date: 02/06/05

Two experienced Brussels observers give their points of view on the Constitutional referenda

There is no credible alternative to continuing with the ratification of the European constitution, writes Giovanni Grevi

The French 'Non' to the EU constitution poses a serious problem for the future of European integration, but one important distinction is in order. The vast majority of the French did not want to reject Europe, but to voice a strong protest against the way in which Europe is run. The EU institutions should face up to their failure to connect with citizens, although it is doubtful whether they have the instruments to overcome the problem. On the other hand, national governments largely control the political agenda. In the interplay between the European Commission and member states, the latter have taken the lead over the last few years and shaped ambitious projects such as the Lisbon Agenda for economic reform, marking a departure from the supranational 'Community method'.

There is nothing inevitable in the way in which Europe works, although managing co-operation at 25 can be exceedingly complex. The defeat of the French establishment, however, risks being the first in a series of punishments inflicted by disenchanted voters on governments that have not, over the years, taken the trouble to speak the same language in Brussels and back home and genuinely endorse shared objectives. The real democratic deficit is not at EU level, nor is it at national level, but lies somewhere on the road from the European Council to national capitals.

Rescuing European integration from the vagaries of domestic politics should become the defining objective of the next few months. While not being its main target, Europe may well become the scapegoat for popular resentment. To avoid this danger, the process of ratification must not stop. Member states have adopted a declaration setting a rendezvous two years after the signature of the constitution to take stock of the state of ratification and consider options to overcome any blockages.

The real point, however, is that there is no viable alternative to proceeding with the ratification process. Nobody should be under the illusion that renegotiation is within reach. It is at best unclear whether the UK government could agree with the pressing requests of French voters for a more social and protectionist Europe.

The French government is not in a position to make bold demands. In the run-up to the general election, not much can be expected from German leadership. The constitution is a compromise carefully crafted over three years and no element of treaty-level reform can be regarded as a stand-alone issue, easily extractable from the body of the text.

Nine countries have already ratified the constitution. It would be politically unsustainable to undermine the democratic value of their choice, including the positive outcome of the Spanish referendum, because one or two other countries have said 'No'. The notion of pre-emptive referenda is yet to be adopted at the European level. If, therefore, cherry picking is not technically workable and questionable from a democratic standpoint, the interruption of the ratification process would lead to the application of the Nice Treaty for an indefinite period.

That is unacceptable. On the one hand, after hundreds of public declarations by European leaders to the effect that Nice is an inadequate rulebook for a Union of 25, settling for it would add to the popular feeling that leaders are not serious about Europe. On the other hand, few seem to have noticed some of the uncomfortable implications of managing the Union with Nice. Lawyers will need to start working pretty soon on the mechanism of strictly equal rotation whereby the first Commission with fewer commissioners than member states should be set up in 2009.

The process of ratification should therefore continue, at the very least, because there is no credible alternative at this stage. Continuing with ratification does not, however, mean business as usual. The alarm bells coming from France and the Netherlands cannot be dismissed. The European Council on 16-17 June represents an opportunity for EU leaders to provide the beginning of an answer and to send citizens two simple messages on innovations that do not require treaty reform.

First, heads of state and government should recognise that the legitimacy of the Union, lost somewhere in the void of democratic scrutiny between Brussels and the member states, should be strengthened. They could announce that the constitution's provisions on the monitoring of subsidiarity and the inclusion of national parliaments in EU decision-making would be progressively implemented, to enable national assemblies to hold governments accountable for their positions in Europe. The same should apply for opening the legislative proceedings of the Council of Ministers to the public and for encouraging non-binding popular initiatives addressed to the Commission.

Second, they should press for progress in the one policy area where a stronger European intervention attracts widespread popular support across the Union: Common Foreign and Security Policy. EU leaders should provide a strong impulse to the progressive setting up of workable procedures to enhance joint policymaking and should renew their commitment to the objectives outlined by the European Security Strategy. European public opinion would welcome clarity and a stronger sense of purpose in that direction.

• Giovanni Grevi is associate director of studies at the European Policy Centre. He writes here in a personal capacity.

The chances of survival for the EU constitution are meagre but the Union's leaders could still try to save what they can from it, writes Dana Spinant

Most EU leaders have declared that the ratification process should continue, despite the rejection of the EU constitution by voters in France (29 May) and the Netherlands (1 June).

Politically and legally, it only makes sense to continue the ratification if it is believed that the 'No' verdicts in France and the Netherlands could be reversed and that a second round of votes could achieve a positive result. Considering the high turnout in the referendum in France (more than 70%), a re-run of the vote is only possible if the political context in the country changes dramatically. The only potentially defensible moment for the French leaders to re-run the vote would be after the 2007 presidential elections, when the unpopular Jacques Chirac would be gone. "Although the text would not change by then, the context would," said one senior French official in Brussels.

The chances of survival of the EU constitution are very meagre, since the two rejections, three days apart, in two founding EU member states, were motivated by diverse reasons.

Theoretically at least, the EU leaders have the following options:

Declare the constitution dead

Following the two 'No's, with the UK reluctant to hold its referendum next Spring, similar doubts in Ireland and pressure from the opposition to ditch the treaty in Poland, EU leaders could announce at their 16-17 June summit that they have abandoned the constitution. Tony Blair, who according to one Brussels diplomat is "dancing on the grave" that the French dug for the constitution, is keen on suspending the legislation paving the way for the UK referendum. Diplomats agree that following a double rejection in France and the Netherlands, a British decision to cancel its vote would deal a deadly blow to the constitution.

The EU will continue to function on the basis of the Nice Treaty, although this was described as inadequate by most of the Union's leaders. Jean-Claude Juncker, current president of the European Council, suggested on 29 May, after the French vote, that, if the constitution were abandoned, it would take another 15 years before the EU could negotiate another treaty.

Wait and see

Under pressure from Luxembourg, holders of the EU presidency for another month, Blair might refrain from announcing that he was suspending the UK vote and wait to see how the ratification proceeds in the other member states where votes are planned. If the following votes have a positive outcome, the UK might hold its referendum as planned.

"Nobody should find pretexts to escape his or her responsibility," said Nicolas Schmit, the junior foreign minister of Luxembourg. "The ball now is in the court of all leaders, including Mr Blair," he added.

Although legally any rejection could kill the constitution since it needs unanimous backing to enter into force, a declaration attached to the constitution spells out the way to deal with rejections. According to Declaration 30, EU leaders will take stock of the state of play of the ratification process two years after the signing of the constitution (by 29 October 2006). If up to five states failed to ratify, the EU leaders will decide on the way forward. Where possible, they will recommend second votes to be held in an attempt to achieve a 'Yes', the only way to ensure the constitution enters into force.

Luxembourg sources suggest that even a decision by Blair to cancel the planned referendum need not kill the constitution, since a British refusal to submit the treaty to ratification can be counted as one of the ratification problems in the sense of Declaration 30. If in addition to France, the Netherlands and Britain, two more countries failed to ratify by end October 2006, it would still legally be possible for EU leaders to try to save the constitution.

The logical implication of Declaration 30 is that if more than five member states failed to ratify two years after the signing, there would be no attempt to resuscitate the constitution.

Some in Brussels call this scenario a "passive euthanasia", because the rejections by France and Netherlands condemn the constitution to an inevitable death.

Cooling off

A mixture between the first and the second scenario would be to decide on a reflection period following the rejections in France and the Netherlands. The argument could be that continuing with ratification as planned would only harm the EU constitution, since the rejectionist mood would spread to the other countries. Opinion polls are showing that support for the constitution is also waning in Luxembourg.

Schmit admits that the 'No' vote could be contagious: "I am confident the result will be positive, but we need to redouble our efforts to explain to people what are the stakes. The Luxembourgers must dismantle this negative trend that is taking over."

A cooling off time would suit Tony Blair particularly well since his country takes over the EU presidency on 1 July. "He would not mind six months without the constitution headache," said one Brussels insider. "He may prefer that to a decision to cancel the UK referendum; such a decision would make him share the responsibility for killing the constitution," he added.

After the reflection period, the EU leaders could decide whether to continue ratification or not. The most likely outcome is that they will not.

Save what you can

EU leaders could ditch the constitution but recover those elements from the document which they all agree with and which do not require ratification by member states. The election of a president of the European Council, of a president of the Eurogroup or the creation of an EU external action service are such elements that could be salvaged. But the creation of a post of foreign minister who is both a vice-president of the Commission and responds to member states in the Council of Ministers may be incompatible with present treaties, experts suggest. The most important elements of the constitution (the charter of fundamental rights, increased co-decision rights for the Parliament and the introduction of more majority voting), would be lost since they cannot be implemented without a treaty change.

This scenario is very difficult to defend, politically. It would look like a backdoor adoption of the EU constitution, forced down people's throats after they had rejected it.

Two experienced Brussels observers give their points of view on how to proceed with the Constitutional Treaty for Europe after the ratification had been rejected in the referenda in France, 29 May, and the Netherlands, 1 June 2005.