Charlemagne: Those crucial clauses

How special interests infiltrate the European Union constitution

IS IT pre-agreement tension, or might it be something more serious? This week European foreign ministers reopened negotiations on the European Union's draft constitutional treaty - and promptly began sniping at each other. The Irish government, which is chairing the negotiations, is hoping to get a deal in June. But with only a month to go, the politicians are proving better at coming up with inventive insults than new ideas. Joschka Fischer, the German foreign minister, accused Britain's Jack Straw of trying to “salami slice” the constitution. Mr Straw suggested that the room was full of “mosquitoes” trying to bite the Brits. Most participants in the talks still bet that there will, just, be agreement next month, but the atmosphere is deteriorating.

The press and politicians are, naturally, concentrating on the big political issues that remain on the table, such as the legal force of the Charter of Fundamental Rights, the voting weights for EU countries and the retention of national vetoes. But behind the smoke of battle, scores of more obscure struggles are being fought. Brussels is abuzz with the sorts of lobbyists that are more commonly found on Capitol Hill in Washington, working overtime to get a few words changed or inserted that may matter not a jot to the average citizen, but are crucial to particular businesses or interest groups. For the constitution is more than a codification of existing EU law. Dotted throughout its 305 pages, 472 articles and seven protocols and declarations are lots of little twists and details - adding an EU power here, refining a power there - each of which is of vital importance to somebody.

Take four current examples: oil, tobacco, animal welfare and sport. When the draft constitution emerged from the European Convention charged with preparing it about a year ago, the big oil companies were aghast to discover Article III-157, which appeared to give the EU the right to pass laws to “ensure security of energy supply”. Companies such as BP and Shell sounded the alarm in London, arguing that the clause might mean that North Sea oil could, ultimately, be controlled from Brussels. An outcry about Europe grabbing British oil was stirred up in the press; BBC correspondents sent dramatic dispatches from oil rigs in the North Sea. Under heavy pressure, the British government successfully got some changes made to the text, seeking to make clear that member countries will retain control over the exploitation of their own energy resources. But this week, it went one better: the entire energy clause was scrapped.

The oil companies will be delighted. But the newest iterations of the draft are bad news for the tobacco industry. A revised version of Article III-179 on health that was released by the Irish earlier this month has suddenly introduced a new right for the EU to make laws “which have as their direct objective the protection of public health regarding tobacco and the abuse of alcohol.” The cigarette-makers detect the influence of anti-smoking zealots in the Irish government, which recently passed the first law in Europe to ban smoking in the workplace (including in pubs and restaurants). Similar legislation at European level would be a nightmare for the manufacturers. But the lobbyists, acting for an unpopular industry, have to tread carefully. Their chosen tactic is to persuade European governments that the text poses a serious threat to countries' right to manage their own health systems. The same article that mentions tobacco suggests that the EU should be able to take action to combat any serious health threat that affects more than one member country.

With less than a month to go, the tobacco industry risks running out of time. Luckier special interests had their concerns met months ago. Animal-rights lobbyists had failed to persuade the convention to include a specific reference to animal welfare in the draft. But when the text was handed over to the politicians, they hit on the wheeze of organising a drawing competition for children across Europe in support of their furry friends' right to constitutional protection. The winning entrants were rushed to a foreign ministers' meeting last November, in the correct calculation that no politician could refuse to meet a child clutching a drawing of an animal. And the result? A new clause in the constitution, insisting that the rights of animals must be taken into account by the EU in all its activities.

Going for goal

If cats and dogs rank high in the affections of European voters, so do footballers. And their fate will also be affected by the new constitution. In recent years UEFA, the body that regulates soccer in Europe, has been increasingly irked by the way that EU laws on competition and the single market have affected the beautiful game. Court decisions and commission rulings were forcing clubs to adjust their practices on everything from players' contracts to television deals, often with serious financial consequences. Article III-182, as it emerged from the convention, provided that “the Union shall contribute to the promotion of European sporting issues” and develop the “European dimension in sport”, as well as “protecting the physical and moral integrity of sportsmen” (best of luck, on this last point).

This is the first time the EU has claimed power over sport in its basic legal documents. UEFA was alarmed that it might herald a fresh barrage of legislation. So it launched an energetic lobbying campaign that has now managed to get the phrase “taking account of its special nature, its structures based on voluntary activity and its social and educational function” inserted into a new draft. The hope is that this phrase will provide a legal basis to argue that sport can, in certain circumstances, be exempted from the usual strictures of the EU's single-market rules.

What such an ambiguous qualifying clause will mean in practice is a matter for conjecture and argument. One thing is for sure in Brussels (just as in Washington): the constitution's provisions on sport, animals, health and a myriad other issues will provide years of lucrative employment for lawyers.

Feature looks at some of the less high profile issues that lobbyists are arguing over in the draft Treaty establish a Constitution for Europe such as animal welfare, sport, oil and tobacco.

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