Disputes over treaty revision take shape

The weather was good in the historic Portuguese town of Sintra last weekend for a meeting of leaders of the EU’s three main institutions, Presidents Angela Merkel, José Manuel Barroso and Hans-Gert Pöttering. Which was just as well, since bad weather would only have added to the darkening moods of German diplomats working on negotiations on salvaging parts of the EU constitution.

Following recent discussions in Berlin, German officials were starting to speak of a "crisis" and "splits" which could be very difficult to overcome.

The problems stem from a handful of member states, including the UK, whose desire for a minimalist treaty clashes with the majority view that as much as possible of the document that EU leaders signed in Rome in October 2004 should be retained.

Poland, the Czech Republic and the Netherlands have teamed up to call for a new mechanism that would allow a group of governments to request that powers be returned to member states from the EU institutions.

Pöttering, the president of the European Parliament, said in an interview with German newspaper Handelsblatt this weekend that such a mechanism would be "completely unacceptable" if, as suggested, a third of national parliaments could trigger the move, because it would give smaller countries disproportionate powers to influence EU lawmaking. Even if the system was fairer, requiring a majority of all parliaments and populations, Pöttering said it would be "problematic" and would upset the current institutional structure.

The Commission too has come out hard against the idea. Following a seminar of commissioners held outside Brussels on Monday (14 May), a spokesman for European Commission President José Manuel Barroso said: "The new treaty must improve the EU’s achievements," adding that they must not be rolled back "under any circumstances". The Commission fears the take-back mechanism could be an attempt to wriggle out from EU legislation.

The new ‘red-card’ mechanism seems unlikely to fly, although the emphasis of several member states on subsidiarity and a clear division of competences between the EU institutions and the member states suggests that there might be some reassuring language introduced into a revised treaty text.

The Commission spokesman added that its "red lines" were "preserving the [European] community method and the single market", which should be interpreted as a response to the UK’s desire to scrap giving the EU a single legal personality and maintain the pillar structure with three types of decision-making for different areas of policy. Last week, the Czech Republic swung its weight behind Poland’s demands to rewrite the allocation of votes agreed in 2004 as part of the constitution. Prague, like Warsaw, argues that it would lose voting power in the change from the Nice system (where the four biggest countries had the same number of votes, 29, and Spain and Poland 27) to the system under the constitution with a double majority of 55% of member states and 65% of the EU’s population.

But aside from the Czechs and Poles, there is little support for reopening the voting weights debate. Even the UK is not supporting the Poles and Czechs on this demand, although they are natural allies in arguing for a slimmed-down treaty. Most delegations seem to accept the German presidency’s argument that including the voting system in the intergovernmental conference under the Portuguese presidency would mean going back to the very start of negotiations, which the German presidency’s approach is designed to avoid. Poland’s demands could be neutralised, either with a small concession on the size of votes or strong guarantees on energy solidarity.

Another issue which is emerging as problematic is whether to include language on enlargement in a revised treaty. This approach has supporters from both the pro- and anti-enlargement camps. Poland and the Czech Republic want language which would stress the Union’s commitment to take in further members provided that they have met the so-called Copenhagen criteria.

Some delegations have even gone so far as to suggest that the criteria (which deal with the political and economic readiness of a country to join the Union) should be written into the treaty as a kind of formal benchmark for entry. But legal experts have warned that setting the criteria into treaty text might act as a barrier to further enlargement as countries opposed to expansion could use the criteria as a legal challenge to taking in new members.

The biggest stumbling block to a deal, from the German perspective, remains the UK and its insistence on a minimalist agreement. The UK is insisting that the Charter of Fundamental Rights should have no legal force and that it is now opposed to any extension of qualified majority voting to police and criminal co-operation although Prime Minister Tony Blair accepted this back in 2004.

The gap between the UK’s position and the countries which would like to approve the constitution more or less intact (the 17 which have ratified plus Germany, Sweden, Portugal and Ireland) is seen from Berlin as dangerously wide. London is being subjected to calls to act in the spirit of European unity and threats of a two-speed Europe. The general state of nervousness is not being helped by a lack of clarity over the true position of current Finance Minister Gordon Brown who is expected to replace Blair as prime minister after the June summit.

Following Blair’s headlong rush to meet Nicolas Sarkozy, the newly elected French president on 11 May, the UK may have found another valuable ally in its quest for a minimalist treaty. Sarkozy could live without the Charter of Fundamental Rights, unlike the Germans, but he is adamant about reducing veto powers on police and criminal co-operation. London’s opposition could be squared by allowing the UK to keep its ‘opt-ins’ for these areas and a new optional protocol may get round the question of the Charter although legal experts say that there would be problems in having a text which is binding on some countries but not all.

The German presidency was holding its first meeting of sherpas in Berlin yesterday (15 May) and Sarkozy is to meet German Chancellor Angela Merkel on his first day in office today (16 May). They have more important things to talk about than the weather but they will not be able to avoid the question of whether the storm clouds over the constitution can be dispelled.

Treaty troublemakers

• France

Simplified treaty with key institutional elements

Move to qualified majority voting (QMV) in justice and home affairs (JHA). Could ditch Charter of Fundamental Rights

• UK

No reference to Charter of Fundamental Rights

No move to QMV in JHA

Yes to end of six-month rotating presidency

Yes to European foreign minister

• Poland

New square root voting system

Red card mechanism

• Czech Republic

New voting weights

Red card mechanism

Reference to enlargement criteria

• Netherlands

No to statehood symbols

Red card mechanism

• Spain/Luxembourg

Preserve vast bulk of constitution

Insist on move to QMV for new areas

Legal status of charter

Support for additional social protocol

• Italy

No to "lowest common denominator" treaty

The weather was good in the historic Portuguese town of Sintra last weekend for a meeting of leaders of the EU’s three main institutions, Presidents Angela Merkel, José Manuel Barroso and Hans-Gert Pöttering. Which was just as well, since bad weather would only have added to the darkening moods of German diplomats working on negotiations on salvaging parts of the EU constitution.

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