Stepping back from lofty ambitions

There is not much left of the lofty ambition of former French president Valéry Giscard d’Estaing to give the EU a constitution equal to the text drafted by the founding fathers of the United States of America.

The term ‘constitution’ and the idea of mentioning in the treaty symbols such as an anthem and Union flag have already been abandoned as a small price to pay for getting agreement on a new treaty. But it looks increasingly likely that the scale and scope of the constitution will be so reduced and diluted through opt-outs and delays in order to find consensus that the EU will end up with the barest of treaties.

Following weeks of bilateral meetings held by German diplomats and the first meeting of all 27 representatives in Berlin last Tuesday (15 May), it is easier to identify which parts of the constitutional treaty from 2004 are likely to be saved. They include the end of the six-month rotating presidency of the EU, to be replaced by a permanent president of the European Council, an EU foreign minister who is also a vice-president of the European Commission (although the precise title is being contested) and an EU diplomatic corps, the external action service.

But apart from those elements the overwhelming impression from the discussions so far under the German presidency is that the agenda has been determined "by the obsessions of the Eurosceptics", as UK Liberal Democrat MEP Andrew Duff puts it.

Officials who attended the Berlin meeting last week confess to being "shocked" by the length of the UK’s list of red lines, or areas where it could not accept the current constitution’s provisions.

In particular, the UK wants no legal status for the Charter of Fundamental Rights, no single legal personality for the EU and no reference to the primacy of EU law over national law. London is opposing any new move to qualified majority voting for police and judicial co-operation although it accepted this as part of the constitution. It wants to retain the current "pillar structure" where foreign and security policies and justice and home affairs issues have different decision-making procedures, with a stronger role for national governments to mainstream "Community" policies such as the internal market or environment.

Poland and the Czech Republic want to reopen negotiations on the voting weights in the Council of Ministers and, together with the Netherlands, want a mechanism where national parliaments can block legislation at EU level. There are different options under discussion for how this might be achieved.

The Dutch suggestion of giving national assemblies a ‘red card’ right has been attacked by other states and MEPs for introducing a ‘third chamber’ of national parliaments and upsetting the current institutional balance. But the Dutch government, facing a much more Eurosceptic public, is serious about winning some new concessions to show that the transfer of powers to the EU institutions is not a one-way street.

Duff believes that Poland might be prepared to be more flexible on the voting weights, suggesting that the government led by the Kaczyn´ski brothers wants to send a signal that it intends to be a major player in EU affairs.

But he predicts that there is a backlash coming from countries which strongly support the constitution but which have not been asserting their position in discussions as strongly as those demanding major changes or watering down the current text.

Both Duff and German Social Democrat MEP Jo Leinen, who have visited Berlin frequently to discuss the state of negotiations with German officials, believe that some of the UK’s demands go further than Germany, as a strong defender of the constitution, is prepared to accept.

Duff believes that one of Berlin’s red lines is giving legally binding status to the Charter of Rights. Leinen believes that the charter could become a protocol and some countries could choose to opt out of it. But Duff argues that it would not be possible to have different levels of legal protection in the EU depending on whether a government had opted in or not to apply the charter.

The two MEPs agree that Germany could not live with giving up a single legal personality to the Union and failing to get rid of the pillars. Duff says that not getting a single legal personality would be the "greatest loss" and would "scupper" the EU’s ability to be effective in international organisations, citing the example of the Kyoto Protocol on reducing greenhouse gas emissions.

Yet the UK and its allies in favour of a minimalist treaty in terms of limiting the transfer of new competences to the EU, or introducing a system allowing national authorities to take back powers (the Dutch and the Czechs), are in a strong negotiating position. The UK can argue that far-reaching institutional changes will increase domestic political pressure for a referendum on the new text, which the government would lose. The Dutch can argue that their Council of State, the constitutional authority, would be likely to decide that a new referendum was needed for a treaty which was not significantly different from the constitution.

"Britain is isolated on a few key issues," says Jo Leinen. He warns that outgoing Prime Minister Tony Blair risks losing the trust of his EU partners if he backtracks on what he signed up to on the constitution in 2004. "If trust is undermined you have long-term consequences," says Leinen.

But it will take more than threats about a long-term loss of influence to dissuade a man who will be stepping down after the June summit. In the absence of any real signs of a fight back from the pro-constitution camp, it looks like the EU is heading for a very modest treaty.

There is not much left of the lofty ambition of former French president Valéry Giscard d’Estaing to give the EU a constitution equal to the text drafted by the founding fathers of the United States of America.