EU treaty talks on the edge

With the new reform treaty scheduled to be agreed by EU leaders in the second half of October, foreign ministers meeting in Viana do Castelo last week (7-8 September) had their first discussions on the political problems that the legal experts’ analysis of the draft text has thrown up.

While there was a concerted attempt by ministers last week to play down the divergences, there are differences, which will have to be resolved at top political level, most probably at the summit on 18-19 October.

Apart from Poland’s lengthening wish list for changes to the mandate agreed at the June summit (see opposite page), most of the areas of contention involve the UK and its sensitivity over loss of control over foreign policy and justice and home affairs. The UK has support on some issues from a number of other countries.

The status of the Charter of Fundamental Rights has emerged as one of the most difficult issues. Although EU leaders agreed in June that the charter would not be included in the treaty text, the drafts prepared by the secretariat of the Council of Ministers included the charter as a declaration and added another declaration containing an explanation of how it would apply. This was objected to by the UK and by the members of the European Parliament involved in the treaty-drafting intergovernmental conference (IGC) - although for different reasons. Spanish Socialist MEP Enrique Barón Crespo said that the Parliament found it "offensive" that the charter was demoted to a declaration which came so low down the list of numerous declarations attached to the treaty.

One possible compromise, which is gaining support, is for the charter to be "solemnly proclaimed" in a ceremony with the presidents of the three main EU institutions, just as they signed the Berlin Declaration on the future of the EU on 25 March, to mark the EU’s 50th anniversary. UK Liberal Democrat MEP Andrew Duff said that the proclamation could take place in the European Parliament before December (when the formal text of the treaty will be officially signed) and the charter could then be published in the EU’s Official Journal.

The three MEPs on the IGC also appear to be winning a battle for the concept of EU citizenship to be included in the new treaty. An article in the constitution, which was rejected by French and Dutch citizens and which the reform treaty seeks to replace, said that "every national of a member state shall be a citizen of the Union". But this was deleted from the reform treaty draft after some countries, including France and the Netherlands, expressed concern that it was one of the constitutional elements which put voters off and had contributed to its rejection. At Friday’s discussion, however, both the French and Dutch ministers dropped their opposition to including a reference to EU citizenship although Polish Foreign Minister Anna Fotyga is still resisting such a clause.

The UK is behind two other major sticking points. On Common Foreign and Security Policy (CFSP), Duff said that the UK wanted to stress the national control of foreign policy, by limiting the scope of the European Court of Justice (ECJ) to rule on such issues as whether international agreements comply with the EU treaties and whether sanctions against individuals and organisations, such as freezing of assets, imposed under CFSP rules are justified.

"The Brits are keen to exclude the court from any say over these matters," Duff said. But he added that if the CFSP was growing, the European Parliament and the ECJ should extend their powers of political and legal scrutiny over it. He said that declaration 33, which was drafted at the UK’s request and which states that the Commission should not gain any new powers over foreign policy, should be removed from the draft treaty as the new High Representative for Foreign and Security Policy will be a vice-president of the Commission. The UK has also asked for the planned EU diplomatic corps, the external action service, to deal only with pure CFSP issues and not with other aspects of external policies, where the Commission has an important role in dealings with third countries, such as trade and environmental policy.

The last major issue involves the ‘opt-outs’ the UK secured from decisions involving police and judicial co-operation. Duff said that seven member states, the Commission and the Parliament were concerned at the possible application of the opt-outs. "There is a fear that the Brits will opt in to negotiations eg, on a European public prosecutor, seek to weaken its force and then opt out," he said. Duff said that this was a "major obstacle" and that the Parliament was considering drafting a declaration which would "oblige the Brits to act scrupulously on opt-ins and opt-outs". This would suggest whether the UK could take part in revision of legislation where it had not been involved in agreeing the initial proposals.

As these issues go to the heart of different attitudes towards the scope and development of EU integration in sensitive areas such as foreign policy and justice and home affairs, they will have to be settled in grand bargaining at the highest level at the October summit.

With the new reform treaty scheduled to be agreed by EU leaders in the second half of October, foreign ministers meeting in Viana do Castelo last week (7-8 September) had their first discussions on the political problems that the legal experts’ analysis of the draft text has thrown up.