Cut, paste or re-do – what’s the best way to save the constitution?

In promising last week that she would hold a referendum on any new EU treaty text, Ségolène Royal, the French Socialist candidate for president, broke the growing consensus that the only way to get through a new round of treaty reforms was by avoiding a new round of popular votes wherever possible.

German Chancellor Angela Merkel expressed her country’s traditional disdain for referenda when she appeared before MEPs in Strasbourg last week. "I personally don’t think that referenda are a great thing," she said, adding that member states were responsible for deciding how to grant legitimacy to the treaty.

While the official German line has been that as much as possible of the constitution text agreed in 2004 should be maintained, German politicians have been coming round to the argument that a new treaty, whether or not it is called a constitution, has to be slimmed down. In particular this means that the third part of the text on policies and functioning of the EU, which was 140 pages long and contained just less than 350 articles in the original text, needs to be much shorter. The version agreed by EU leaders in 2004 was a consolidated form of all the previously approved treaty articles plus the changes introduced by the constitution.

But French Interior Minister and the right’s presidential candidate Nicolas Sarkozy has proposed a mini-treaty which would see Part III stripped down to only the changes introduced by the constitution. He argues that a set of purely technical modifications would not require a new referendum in France but could be approved by parliamentary vote.

The political leadership in Germany, which has a constitutional ban on referenda, could accept this slimming down of Part III as part of a package which left the other major institutional changes of the constitution intact. Berlin is, however, more attached than Sarkozy to keeping Part II of the constitution, which gives the Charter of Fundamental Rights legal status.

Sarkozy’s plan to avoid a second referendum in France and head off the risk of another ‘No’ vote has some support in the UK where the government wants to avoid political pressure from the opposition Conservative leader David Cameron for a popular vote on new treaty reforms. To strengthen its arguments against holding a vote, the government will be keen to resist claims that the constitution text involves any major transfer of powers from national governments to the EU institutions. For example, London will argue that the changes on justice and home affairs concern only the decision-making procedures and not a new handing over of powers to the EU institutions. But some politicians warn that this could mean the UK backtracking on its support for the constitution text from 2004.

Andrew Duff, leader of the UK Liberal Democrat MEPs and a constitutional affairs expert, said: "This shows the stupidity of people like Sarkozy when speaking about a mini-treaty because the Brits will always want to go a step further. From a mini-treaty we’re going to a teeny treaty which isn’t in the interests of the EU and isn’t even the consensus view of the nine [member states] who haven’t ratified." He said that the UK stance on the constitution was apparently that it wanted to "resile from Blair’s signature" on the 2004 text.

Senior UK diplomats said last week that there was no urgency about agreeing a new version of the constitution as the EU was able to take decisions with 27 members on important issues such as energy policy and climate change with the current decision-making procedures.

But Merkel warned the UK not to expect to continue with enlargement if the current treaties were not modified. "Those who are so much in favour of enlargement, and I’m not one of them, must know if they’re sceptical about the constitutional process on the current basis of the treaties we can’t enlarge," she told MEPs last week. The message was also aimed at countries like Poland and the Czech Republic whose governments are lukewarm about the constitution but are keen on further enlargement.

Senior diplomats and institutional affairs experts point out that, in theory, all of the institutional changes needed to take in one more member state such as Croatia (eg, changes in the voting weights in Council, deciding the number of MEPs and the size of the Commission) could be settled in Croatia’s eventual accession treaty to the EU, avoiding the need for a wider set reforms.

But it is Royal’s comments last week, following a visit to Luxembourg’s Prime Minister Jean-Claude Juncker, who won a referendum on the constitution in 2005, which have the greatest potential to fragment the already extremely fragile consensus on resurrecting the text, especially if she wins the presidential elections and sticks to her pledge to add a social annex to the treaty and push for renegotiation of the European Central Bank (ECB)’s mandate to focus more on ensuring growth. Any moves to make the treaty more social would be resisted by the UK and probably many of the new member states’ governments, as the fight last time round over giving the Charter of Fundamental Rights legal status showed. Changing the ECB’s role to create more growth would also face opposition from Germany which insists on a tough anti-inflationary mandate for the bank.

With the negotiations on the declaration to mark the EU’s 50th anniversary starting this week and the 18 states that have ratified the constitution meeting in Madrid to boost the case for preserving as much of the text’s substance as possible, the task facing the German presidency and the following Portuguese and Slovenian teams in finding consensus looks forbiddingly huge.

In promising last week that she would hold a referendum on any new EU treaty text, Ségolène Royal, the French Socialist candidate for president, broke the growing consensus that the only way to get through a new round of treaty reforms was by avoiding a new round of popular votes wherever possible.

• Primary Source