Last-chance saloon: can enlargement be rescued if the Irish ‘nays’ get their way?

Date: 10/10/02

By Kirsty Hughes

If Ireland votes 'No' again on 19 October the Nice Treaty will collapse - but enlargement need not go the same way. However, that depends on the European Commission and EU governments coming up with a politically and legally watertight 'Plan B'.

WITH just over one week to go before the second Irish referendum on the Nice Treaty, the Danish presidency and senior Commission officials are continuing to insist there is no 'Plan B' if the Irish give another - and final - thumbs down to Nice.

But behind closed doors the politics of different contingency plans are being debated, with both Council and Commission lawyers scrutinising the options for legal problems.

Opinion polls do not offer strong comfort. While an Irish Times poll at the end of September showed the 'Yes' votes leading the 'Nos' by 37 to 25, the key category of ' don't knows' was at 32. And the Irish pro-Nice campaign is only too aware of how the 'Yes' vote declined in the final stages of the first referendum from an even higher starting point. History, they know, could certainly repeat itself, especially with public dissatisfaction with the Irish government at high levels.

No one denies that a second 'No' would mean the final - unprecedented - collapse of the Nice Treaty. Political shock waves will reverberate across the EU. In Ireland itself, Bertie Ahern, the prime minister, could resign. But European politicians will be more concerned about how to stop the enlargement process being derailed just as it is reaching its final destination.

With the Commission recommending yesterday (9 October) that all ten front-runner candidates are now ready to join, the solution of waiting for a new treaty to be agreed first at the future of Europe Convention, then at the subsequent intergovernmental conference, and finally ratified by all current 15 member states, would cause a political outcry among the candidates. Such a process could take until 2006.

It's just possible that the timetable could be speeded up, with the Convention completing its work by March and the IGC by the end of 2003. Instead of taking two years to ratify as normal, the member states would commit to ratifying in six months and the candidates could come in by mid-2004 after all. But it all sounds rather breathlessly unlikely.

As it is, even if Nice is successfully ratified, the candidates are already expressing concerns about winning the referenda they are planning to hold next year on accession.

Despite firm denials of a 'Plan B', the Danish presidency is thought to see the route ahead, in the event of a 'No', to be through changing the accession treaties. In particular, voting weights for the candidates and numbers of MEPs could be included via this route.

Nor would this be unprecedented; it has been done in previous accessions. But unfortunately, there is not one but several catches to this apparently straightforward solution, which are exercising the finest brains in the Commission and Council.

Nice put candidates' voting weights and MEPs numbers in an annexe, ready to be negotiated with the candidates at the appropriate time. But Nice also changed the voting weights of existing member states, under a complex and difficult-to-reach compromise. This too would have to be included in the accession treaties - which is indeed unprecedented.

And, because the new voting weights and numbers of MEPs of existing member states would represent a change in the EU's acquis, then, in theory at least, that change should be negotiated with the candidate countries.

With candidates such as Hungary and the Czech Republic deeply unhappy that they have fewer MEPs than Belgium, they may rather welcome the prospect of negotiations which give them a say over Belgium's position as well as their own. But current member states will be unlikely to accept such a situation.

On top of this, there are concerns about a potential legal challenge to this route, if voting weights and MEPs numbers are taken directly from the Nice Treaty after it has been rejected by the Irish (as enlargement Director General Eneko Landaburu already indicated in an interview with European Voice last month).

And if the voting weights are reopened, given the difficulties faced at the Nice summit in reaching agreement at all, it could take some time for member states to get to a new agreement.

Nor does this end the list of problems. As Jonathan Faull, head of the Commission press service, has been emphasising, the current Amsterdam

Treaty says the EU cannot enlarge beyond an additional five members without comprehensive institutional reform (though whether Nice counts as comprehensive is certainly open to debate).

This leaves the possibility of political and legal challenges, on the grounds that defining voting weights and MEPs numbers doesn't count as comprehensive institutional reform.

But since Nice did little else, apart from a minor extension of qualified majority voting and a more important but not vital adjustment of the number of commissioners, this difficulty could perhaps be overcome.

So the big challenge, in the face of an Irish 'No', is not in defining the outline of Plan B - that is already clear. Rather it will be in making it politically and legally watertight. Council and Commission officials should be capable of doing the latter.

The bottom line question will be whether all 15 member states rise to the moment and give their full backing to a rapid and effective political solution or whether enlargement falls victim to a prolonged and unsavoury bout of EU horse-trading.

• Kirsty Hughes is a senior fellow at the Centre for European Policy Studies and coordinator of the European Policy Institutes Network. She was deputy head of cabinet for Employment Commissioner Anna Diamantopoulou from 1999 to 2001.

If Ireland votes 'No' again on 19 October 2002 the Nice Treaty will collapse - but enlargement need not go the same way. However, that depends on the European Commission and EU governments coming up with a politically and legally watertight 'Plan B'. Author is a senior fellow at the Centre for European Policy Studies and coordinator of the European Policy Institutes Network.