Breaking the deadlock on institutions at the June European Council is not impossible, but the German presidency needs to strike a deal that meets the divergent demands of the member states. The hard part is to find a compromise that does not cross member states’ red lines while still delivering real improvement in the functioning and democratic accountability of the EU institutions. Britain could block a deal only at a high cost – the majority of members that want a stronger Union might decide to proceed without the permission of those who do not. Here we lay out our view on what a solution could look like. 1
If a compromise emerges from the June Summit, the European Council would convene an Intergovernmental Conference with a precise mandate and instructions to complete negotiations and produce a new Treaty by year-end. This should allow sufficient time for the member states to complete ratification before the new European elections in 2009. Clearly, the compromise solution must meet two critical conditions.
· The French, Dutch and UK governments will only accept Treaty revisions that will allow them to avoid a referendum. They will therefore demand the deletion of any provision that make it sound like a constitution or look like it entails significant transfers of sovereignty to the EU.
· The substance of the treaty should largely be preserved to meet the expectations of the 22 countries that have declared themselves ‘friends of the Constitution’.
Legally, the EU is founded on two treaties, Treaty establishing the European Community (commonly refereed to as the amended Treaty of Rome) and the Treaty on European Union (commonly known as the Maastricht Treaty). To avoid the label ‘Constitution’, the new Treaty will probably keep the two Treaty structure. Part I of the Constitutional Treaty – including the new voting system in the Council and the revised power balance between the Council, Commission and Parliament – must be preserved. As a ‘package’ they should replace the current Treaty on European Union (TEU for short). ‘Picking and choosing’ only some provisions to amend the existing treaties would unravel the delicate balance between the competing demands of the member states. A glance back to the acrimonious negotiations in Nice should be a sufficient reminder of the difficulties that would surely accompany such an approach.
A number of provisions from Part III of the Constitution will have to be retained since they are necessary complements of provisions in Part I, e.g. on decision-making in the various domains of activity and the EU budget. The best way to proceed would be to incorporate them directly in the relevant provisions of the new Treaty on European Union. The UK might need an opt-out when it comes to qualified majority voting on police and judicial cooperation on criminal matters.
Part III also includes many other non-controversial changes in common policies that could be kept, e.g. those covered by the Treaty establishing the European Community (TEC for short). Preferably, these would be inserted as a protocol amending the Treaty establishing the European Community. Adding new policy provisions appears to be risky, however, as it is unclear whether a large number of new provisions might not make the treaty changes too substantive to be passed without referendums.
We believe that an attempt should also be made to retain the provisions in Part IV of the Constitution, notably regarding the general ‘passerelle’ and revision clauses. The passerelle clause allows issues to be moved from unanimity to majority voting without a new treaty (a unanimous Council decision would be sufficient). The new revision procedure allows the Council to amend policies in the TEC by Council decisions, without convening an IGC.
The proposed clear division between policy provisions in the amended TEC and institutional and general matters in the new TEU would also imply the abolishment of the pillar structure and a single legal personality for the EU. It would consolidate the status of the TEU as the ‘fundamental law’ of the Union, and – in the longer term – it could then even be envisaged to make the TEC subject to change by a super-qualified majority. This would help to avoid dead-lock on treaty reform in a further enlarging Union.
As for the Charter of Fundamental Rights, it has become clear that it cannot become integral part of the treaties since a number of member states are strongly opposed to it. Nevertheless the new TEU might perhaps refer to it in the same way that Article 6 of the current TEU mentions the European Convention for the protection of human rights.
Assuming that an agreement as outlined above can be reached in June, is it worth while?
Our answer is yes – even if this leaves unsolved the more general question of how the Union can regain popular support. The reason is simple: the institutional deadlock has lasted for almost a decade, and it is high time to break it. The compromise that we propose represents meaningful change that will make the Union more transparent and work better.
For more details see “Will the European Council end the institutional deadlock in the EU? The Narrow Trail to an Agreement”, CEPS Policy Brief no. 130.