UK main obstacle to treaty reforms

The legal personality of the EU, the legal status of the Charter of Fundamental Rights and the move to qualified majority voting have emerged as key sticking points in the negotiations on a new treaty to replace the constitution.

While there is a general acceptance that many elements of the constitution will have to be dropped in order to achieve accord on a new treaty, the UK is standing out as the most difficult member state with its long list of parts of the constitution it wants revised.

London does not want the EU to take on a legal personality, which would allow it to sign up to international agreements such as the Kyoto Protocol. The UK government has faced accusations at home that granting legal personality could open the door to the EU replacing the UK as a permanent member of the United Nations Security Council. But granting legal personality to the Union is a ‘red line’ issue for Germany, the current holder of the EU presidency. French President Nicolas Sarkozy and Italian Prime Minister Romano Prodi on 28 May also reiterated their desire to keep this proposal in the new version.

The UK is also opposed to introducing qualified majority voting for police and judicial co-operation, arguing that this will be seen as surrendering the national veto in very sensitive areas.

But Sarkozy and Prodi are insisting that the national vetoes on these areas must be removed to enable member states to work together more effectively. One compromise may be to allow the UK and Ireland to keep their right to opt-in to decisions on these areas while there could be a move to qualified majority voting for countries that have neither an opt-in nor, like Denmark, a right to opt out.

In exchange for removing the charter of rights from the new treaty and dropping symbols like the EU flag, anthem and motto, member states, including France, would expect Blair to show flexibility on qualified majority voting. "Blair can be bold on qualified majority if there is nothing on the charter and the Union’s symbols," a spokesman for Sarkozy told French newspaper Le Monde.

The question of simplifying decision-making by scrapping, as the constitution envisaged, the current ‘pillar’ structure, where justice and home affairs and foreign policy have different decision-making rules from the internal market, for instance, is also controversial. The UK wants to keep the pillars but Germany and many of the other 17 countries that have ratified the constitution want to do away with it.

There is a general acceptance that the Charter of Fundamental Rights will not feature in the new text. Dutch Prime Minister Jan Peter Balkenende told MEPs last Wednesday (23 May) that he wanted the charter dropped. But other countries, in particular Germany, are insisting that the charter must be legally binding, with no possibility for an opt-out for member states, even if only a reference to the charter would be included in the new treaty, instead of its full text. Legal experts have said that it would be impossible for the charter to apply only in some member states because the EU institutions, especially the European courts, would not be able to take decisions which did not apply in some countries. Jacques Ziller, a professor at the European University Institute in Florence, said that the idea of one country opting out of the charter was "nonsense" and would quickly be challenged in courts.

Another area of contention is whether to split the constitution into two parts, as the German presidency is considering, with one part dealing with the institutional arrangements and another with modifications to existing treaties. The UK, Netherlands and France have warned that the first part would look too much like the constitution and would raise demands for referenda.

On 30 May, Spanish centre-right MEP Iñigo Méndez de Vigo launched a report on the future of the constitution and scenarios for solving the current impasse. The report, drawn up by three academic institutes, lists the improvements to the EU’s working in terms of greater efficiency, democracy, visibility and transparency contained in the constitution. It calls for new provisions covering the EU’s global role, economic governance, social dimension, the fight against terrorism, energy policy and climate change, neighbourhood relations and enlargement to be added to the text.

The legal personality of the EU, the legal status of the Charter of Fundamental Rights and the move to qualified majority voting have emerged as key sticking points in the negotiations on a new treaty to replace the constitution.