Concessions, but most treaty changes are only cosmetic

German Chancellor Angela Merkel achieved her objective: the mandate for the intergovernmental conference (IGC) agreed on Saturday (23 June) preserves most of the substance of the rejected constitutional treaty, while sacrificing the symbolic parts.

Many of the changes agreed are cosmetic, repackaging the constitution to convince sceptical public opinion that the new ‘Reform Treaty’ is substantially different.

The primary changes are a strengthened role for national parliaments in EU decision-making and a delay to the introduction of double-majority voting in the Council of Ministers with additional safeguards for Poland.

The main institutional innovations of the constitution have been kept: there will be a full-time president of the European Council, serving for up to five years, and the College of commissioners will be reduced to two-thirds of the number of member states from 2014.

• Foreign and Security Policy

The EU foreign minister will go by the name of High Representative for Foreign Affairs and Security Policy but will have the same powers as planned under the constitution. Irish Prime Minister Bertie Ahern said: "It’s the original job as proposed but they just put on this long title." Despite British protests aired before the summit, the new figure will chair the General Affairs and External Relations Council and will be supported by an EU diplomatic corps. Some decisions in the field of foreign policy will be taken by majority voting.

For example, after the European Council has unanimously asked the high representative to draw up a strategy, that strategy can be approved by a qualified majority. The British were given a declaration that EU foreign policy would not affect the responsibilities of member states for their own foreign policy or representation in third countries or international organisations such as the United Nations.

• Legal personality and primacy of EU law

The new treaty will state that the Union has a single legal personality and references to the "European Community" will be replaced with "European Union". There will be no explicit mention, as in the constitution text, of the primacy of EU law over national law, but a protocol will clarify that the "treaties and the law adopted by the Union… have primacy over the law of member states".

• Competition and the internal market

At the request of Nicolas Sarkozy, France’s president, a reference in the constitution to "free and undistorted competition" as an objective of the EU does not survive into the new text, though there are many other references to competition in other parts of the text. Alvaro Mendonça e Moura, Portugal’s permanent representative to the EU, said on Monday (25 June) that this deletion would have no legal consequences. A protocol saying that the internal market "includes a system ensuring that competition is not distorted" will be added instead. Competition Commissioner Neelie Kroes said on Saturday that the protocol meant that the "existing competition rules which have served us so well for 50 years" had been retained.

To meet Dutch concerns, the new treaty will state the importance of public services.

• Justice and home affairs

The UK had permission for specific opt-outs for Britain written into the mandate for the IGC. The UK will be able to determine when it wants to adopt EU legislation on police and judicial co-operation, while all other EU states will have to apply such law, bound by qualified majority voting rules. The text gives Ireland the possibility of a similar opt-out, with diplomats expecting that they will take it.

• Fundamental Rights

A lengthy protocol on the Charter of Fundamental Rights states that "nothing…creates justiciable rights applicable to the United Kingdom except in so far as the United Kingdom has provided for such rights in its national law". This implies that neither the European Court of Justice, nor any British court, can rule that laws or practices in the UK are in violation of the charter. It was important to the UK that its employment laws were protected and not open to harmonisation with practices elsewhere in Europe.

Ireland and Poland have "reserved their right to consider" joining the protocol.

The UK was not alone in seeking changes to how the charter should be applied. Poland wanted it written into the treaty that the charter "does not affect in any way the right of member states to legislate in the sphere of public morality, family law as well as the protection of human dignity and respect for human physical and moral integrity". The Polish government is sensitive on gay marriage, abortion and adoption, but several delegations, including Finland and Belgium, objected to any watering down of rights. Polish concerns were instead covered by a "unilateral declaration" which means it will not have the legal force of being included in the treaty.

• Decision-making

Socialist MEPs Richard Corbett and Jo Leinen estimate that, of the 77 policy areas which under the constitution would have been moved from requiring unanimous decision-making to qualified majority voting, co-decision with the European Parliament and the jurisdiction of the European Court of Justice, all were retained with the exception of judicial and police co-operation. On these issues the UK obtained a special regime. Leinen argued that countries which went ahead in this area would vote by qualified majority and Parliament would have co-decision.

The most significant changes to the constitution text concerned the voting system and the role of national parliaments.

• Voting

To address Polish fears about German dominance in the EU, the introduction of the double majority voting system (requiring 55% of the member states and 65% of the EU’s population) will be delayed until 2014. For three years until 2017, a member state can request that decisions be taken under the Nice system of voting weights, instead of the double majority.

This transition period to the double majority system is unlikely to have a strong impact on voting in 2014-17. The Council rarely votes, preferring to decide by consensus. In the 10% of the cases where the Council votes, the Nice safety-net is only likely to be used in a handful of instances. But as one diplomat put it, the measure is meant to "provide psychological reassurance" and "build confidence".

The Poles were also offered, until 2017, a revised version of the 1994 Ioannina compromise, so that if governments opposed to a decision account for three-quarters of the member states or 75% of the population needed to form a blocking minority, the Council has to try to find a solution which addresses their concerns.

After 2017, countries representing 55% of the member states and of the population can trigger the clause.

• National parliaments

The role of national parliaments in EU decision-making will be strengthened in response to requests from the Netherlands. Within eight weeks of the Commission presenting a legislative proposal, a simple majority of national parliaments can ask for a review of the proposed legislation if they think it breaches the principle of subsidiarity. The Commission may decide to maintain, amend or withdraw the proposal. If it maintains its proposal unchanged, it must explain its reasons for doing so to the Council and European Parliament. If 55% of member states or a majority of votes in Parliament decide the proposal is incompatible with the principle of subsidiarity, it will be abandoned.

This mechanism, which would allow national parliaments either directly or through the Council to block Commission proposals, represents the first step in the EU’s 50-year history to curb the Commission’s right of initiative.

But EU officials doubtthat the mechanism will be used in practice, especially as there is no appropriate forum for national parliaments to discuss Commission proposals.

• Symbolism

The symbolic elements, including the flag and anthem and the title of constitution have been jettisoned. Those who believed that the constitution was a chance to portray the EU as a political union have lost out.

German Chancellor Angela Merkel achieved her objective: the mandate for the intergovernmental conference (IGC) agreed on Saturday (23 June) preserves most of the substance of the rejected constitutional treaty, while sacrificing the symbolic parts.