What to do if the French vote ‘Non’

By Dana Spinant

Date: 14/04/05

While politicians insist that there is not and there must not be a 'Plan B' if French citizens reject the EU constitution, behind the scenes experts are mulling over possible ways out of a ratification crisis.

A 'Non' in the 29 May referendum would deal a heavy political blow to the Union, but legally, various scenarios are possible to deal with it.

As France is not the only country where the constitution is at risk of being rejected, officials insist that it is important that the referenda in other member states continue, even if the French do vote 'No'. Under one of the crisis scenarios being studied by the Dutch government, The Hague could cancel a referendum planned for 1 June, if the constitution was rejected in France. Reports suggest the UK could also annul the poll it planned for 2006 if the result of the French vote is negative.

But officials insist that in order to find a solution to the ratification crisis, all referenda would have to be held according to the plan, irrespective of the French result. If the ratification process was suspended, politicians and lawyers might find a solution to overcome French opposition to the constitution, but would fail to address problems in other member states such as the UK or Poland.

"The first step of a solution to a French rejection is that referenda in other member states will have to continue," said one senior Council of Ministers official. "The French citizens should not answer for the rest of Europe," he added.

One likely scenario in the case of a rejection, officials say, is a repackaging of the constitutional treaty under which Part III of the constitution, dealing with policies, would be ditched.

This part, which is the bulk of the document (342 articles out of 465) contains some aspects which are controversial in France.

It includes all the Union's policies, such as justice and home affairs, social policy, foreign affairs and competition policy.

One senior official believes that ditching Part III, presenting again a constitution consisting only of the smaller and easier understandable Parts I and II, and then incorporating elements of Part III in the Nice Treaty would be a way forward.

"Part III was always considered by some to be the ugly part, as it does not fit well in a constitution. It is technical, big and difficult to understand for citizens. The other parts do have constitutional elements, so a constitution with only Parts I and II is more presentable to citizens."

Ditching Part III entirely and seeking to obtain agreement on the first two parts (the Charter of Fundamental Rights and a general description of the Union's values, objectives and its relations with the member states) is seen as a possible way to placate the French. Opposition to the constitution in France is stirred by the perception that the constitution is too liberal in economic terms and that it offers too little social protection. In addition to an expected opposition from the extremes of the political spectrum, who oppose the transfer of powers to Brussels, many centre-left politicians - and voters - oppose it because of a diffuse feeling that it alters the balance struck by the EU's founding fathers between economic and social elements. The problem is that a majority of British citizens oppose the constitution for exactly opposite reasons, fearing that it promotes a system which is not liberal enough.

This 'Plan B' scenario is based on the assumption that a 'lighter' constitution consisting of Parts I and II would be easier to understand and more likely to gather support in referenda, while a revision of the Nice Treaty would incorporate the more technical elements of Part III. The revision of the Nice Treaty would still require a referendum in some countries, such as Ireland or Denmark, which would have then to organise a referendum on two treaties. In the other member states, it could be dealt with by parliaments.

When the European Convention on the future of the EU drafted the constitution, there was a debate over whether the constitutional treaty should include Part III on policies or not. It was decided in the end that the constitution should supersede and replace all previous treaties and so should include Part III.

British Socialist MEP Richard Corbett, Parliament's co-rapporteur on the constitution, says he was always in favour of the constitution consisting only of the first two parts, and "calling Part III differently". "We could have put it in an annex, for example," he says. Or, he suggests, found a way to differentiate it from the first two parts. Member states wanted to give it the same status to avoid any misunderstanding concerning its legal value.

But Corbett believes that splitting the constitution into two parts to achieve ratification is a non-starter. "Ditching Part III would have been a nice idea beforehand. Now you can't seek ratification by a re-packaging.

"Politically, you can't say 'you voted "No", but we split it in two and make you swallow it in two different parts which do not require ratification'," he says.

An additional problem is to read accurately the reasons for a 'No' vote. French centre-right MEP Jean-Louis Bourlanges believes that changing the constitution to placate the French citizens would be impossible, as it would be "impossible to interpret the French 'No'". Bourlanges, a supporter of the constitution, points out the debate in France is "confused", because it blends together arguments on transfers of powers to Brussels, a debate on the economic and social nature of the Union and the institutional changes.

"There is absolutely no chance of achieving a better treaty after a French 'No'," he said during a debate in Strasbourg.

Article discusses likely scenarios for the case that French voters were to reject the ratification of the Constitutional Treaty for Europe on 29 May 2005. One alternative discussed is to strip the document of its Part III, the detailed and often technical specification on the EU's policies.