Risky times ahead as the EU needs a plan to deal with a ‘No’

Date: 17/02/05

With several risky referenda to take place between 20 February in Spain and the end of next year, the ratification of the EU constitution is for many analysts a 'moment of truth' for the European Union. The big question, which is being conspicuously avoided by EU leaders, is what will happen if one or several member states reject the constitution. Will the constitution be abandoned or will the EU be split into two, with those who fail to ratify relegated to a sort of European Economic Area, together with Norway, Iceland and Liechtenstein?

Failure to ratify the constitution would plunge the Union into a political crisis. But legally, several solutions are possible, depending on the quality of a 'No'.

• The quality of a 'No'

It depends on whether the constitution is rejected by one member state or by several. If a number of countries, including large ones, did not ratify, doubts will be cast over the future of the constitution, which could be killed.

If just one country rejects it, it depends on whether the 'renegade' country is large or small, if it is a founding member (France) or a more reluctant state that clambered aboard later (the UK). If Denmark or the Czech Republic rejected, it could be asked to vote again. If the result is still negative, the country will probably have to leave the EU.

But if France rejected the treaty, the constitution would probably be abandoned and a new treaty would be renegotiated. That is because France is one of the main architects of today's EU and Germany, its close partner, is unlikely to push for the adoption of the constitution by the others and leave France behind.

But if the UK alone votes against the treaty, London will have to renegotiate its relationship with the Union and even exit. Although it is an important and influential country in the Union, the UK is seen as a reluctant member. It did not adopt the single currency, it does not take part in the border-free Schengen zone and it has tried to water down the draft constitution on most of its aspects. France, Germany, Spain and Italy could convince the rest of the EU's members to adopt the constitutional treaty and go ahead without the UK.

It also depends on whether the constitution is rejected by a small or large margin. If two thirds voted against, for instance, it would be politically difficult to ask the people to vote again, while a close run result of 49%-51% would make a re-run plausible.

It depends on whether a negative result is a real 'No' to the constitution or a punishment inflicted by the electorate on the government for some internal matter unrelated to the charter. If only one state rejected the constitution by a small majority and following a low turnout, the citizens of the 'renegade' country could be asked to vote again (Irish "Nice Treaty" scenario). But it would be difficult to re-run a referendum in such countries where anti-European tendencies are deeply entrenched and where it would be clear that the rejection was not an accident (such as the UK). So if the 'No' means 'No', the country's relationship with the Union will have to be redefined.

A solution would have to be found in order to allow the states that ratified it go ahead without being blocked by those who failed. The solution depends on whether all member states agree on the way forward (including those that failed to ratify) or not.

• Consensual solutions

One option, at least in theory, is to revise the proposed constitution text, with the aim of making it acceptable to the reluctant public. This solution would only make sense if the referendum campaigns unveiled opposition to specific elements of the constitution and not the project as such.

But different countries have problems with different aspects of the text. While Britons are against elements in the constitution which deepen the EU political integration or social rights, the French threaten to reject it because it does not provide for enough such integration. It would be impossible to agree on a list of changes.

A vital problem is that a modification of the treaty, to secure ratification by one state, would oblige all the states who had ratified it already to do so again. And if 24 other countries had already ratified, nine or ten through hard-fought referenda, they would be unwilling to renegotiate the treaty as they would have to submit the new version again to a vote of approval by parliaments or the public.

A revision is at any rate unlikely to occur if only one state rejected it, even though opposition politicians in the UK have the illusion that the rest of the member states would start negotiating with Britain a new text, should its citizens reject the charter.

The second option is to grant a special position within the EU to the states that failed to ratify, by allowing them to opt out of some policy areas (the Danish Maastricht Treaty scenario). But this can only be of help if opposition to specific elements of the constitution in specific policy sectors determined the rejection. If the reason for the rejection was opposition to new institutional arrangements, opt-outs are not a solution: it is impossible to imagine, for instance, that a state opts out from provisions on a new system of voting in the Council of Ministers and applies, unilaterally, the old voting system.

The third consensual option would be to grant the countries that failed to ratify a special position outside the Union. It would mean that they exit the EU and acquire a new status. They could become special associates and be allowed to take part in single market-related programmes, as well as sharing a customs union with the rest and being part of a single trade policy. Or the states concerned could leave the Union altogether and join the European Economic Area.

And finally, member states could decide to ditch the constitution, if several member states fail to ratify it. In this case, the Union would continue to function on the basis of the Nice Treaty. Such a scenario is only likely if several member states, or one large country such as France, with a special position in the EU system, fail to ratify it.

But if the renegade countries include only such reluctant EU member states as the UK, the Czech Republic or Poland, the others are likely to go ahead alone, especially if a large number of member states had fought hard to secure ratification. The majority would lose face if they failed to fight to save the constitution, after they had convinced their citizens or parliaments of the need to have it. In this case, member states could agree to split into two groups: those that ratified could go ahead to deepen their integration on the basis of the constitution (the core-Europe scenario) and those that failed to back the constitution could constitute a sort of 'rear-guard', but still as a part of the Union.

The problem with such a scenario is that it would be extremely complicated to articulate the relationship between the two groups. How would the two groups participate and vote in the EU institutions? Would there be parallel institutions? Is the present co-existence of the Eurogroup, gathering finance ministers of the eurozone, with the Ecofin, where all EU finance ministers are represented, a model for such a scenario?

• A harsh divorce

The states that approved the constitution could also tell the states that failed to ratify to leave the Union. But there is currently no mechanism allowing member states to end membership of one country. If the renegade states refused to withdraw voluntarily, the others could dissolve the European Union and re-create a new Union comprising only those states that ratified the constitution. That would, however, amount to a nasty divorce and it would take a great deal of degradation of relations between member states for that to happen.

But the most important thing that determines the option chosen is the quality and the quantity of a 'No'.

What will happen if one or more Member States votes against ratifying the Treaty establishing a Constitution for Europe? The author considers the possibilities.