Brief summary. “Small-scale reform” of the treaty has been agreed at a political level, although the formal decision will be made by the December European Council. A permanent anti-crisis mechanism is needed to replace the current mechanism which was set up to tackle the Greek crisis and which expires in 2013. Why is this mechanism indispensable? Because a permanent mechanism cannot, for constitutional reasons, obtain consensus in Germany unless the treaty explicitly authorises such a mechanism.
The “constitutional reasons” are simple. Speaking on the issue of the current instrument (which was the subject of an appeal), the German Constitutional Court said that this instrument is legitimate because it is temporary but the court considered that the EU does not currently possess the powers that would enable it to create a permanent instrument. This is not the prevailing opinion in other member states but the German government cannot take the risk of approving a text which could subsequently be declared unconstitutional. Angela Merkel declared that “in order to have legal security in Germany, we have to go through this process”. Therefore, despite the initial misgivings by different governments and concerns expressed by several political figures, the European Council retained the formula for revising the treaty, which could be put into practice by way of a simplified procedure included in Article 48, paragraph 6 of the Treaty on European Union (TEU). This article allows for provisions on domestic Union policies and actions, included in the third part of the Treaty on the Functioning of the European Union (TFEU), to be amended. Any member state, as well as the Commission and the Parliament, can submit a draft revision to the European Council, which currently decides by unanimity, after consulting the Parliament, Commission and the European Central Bank (ECB) when the amendment involves the monetary domain. If the European Council decides in the affirmative, the decision is subject to approval of the member states by unanimous vote.
Avoiding complications. The revision envisaged therefore does not need the uncertain and complex procedures required for making more large-scale amendments. In particular, the organising of a Convention is not necessary and referendums that several member states held for ratifying the new treaty can be avoided. This, however, presupposes that the amendments do not go beyond the implementation allowed under simplified procedure. Guy Verhofstadt will undoubtedly understand this: using this procedure to change an article and amend others (as he suggests) is an example of an apparently good idea but which in reality is no good at all. The federalist movements fighting for a new treaty have to admit that simplified procedure is not the appropriate framework to this effect because paragraph 6 in Article 48 of the TEU explicitly indicates that any decision taken in this context “cannot increase the competences allocated to the Union in the treaties”.
Political will. It is now up to Mr Van Rompuy to prepare next month's European Council arguments regarding “a limited amendment of the treaty”, which will help “create a permanent crisis management mechanism” (without affecting the no bailout clause). The European Commission will begin preparatory work on this mechanism and how it will work. The European Council is committed to making the final decision before the end of the year on the limited amendment of the treaty, as well as on the main guidelines for the permanent mechanism. This will allow for the initiative as a whole to be put into practice by the middle of 2013 and subsequently avoid the legal vacuum resulting from the expiry of the current temporary mechanism. Political will seems quite clear on this matter.
Jean-Claude Junker's formula. As practical as ever, the president of the Eurogroup has already suggested a formula - adding a few words to Article 122 of the TFEU. This article stipulates that member states can, in a spirit of solidarity, take appropriate measures to help a given country experiencing energy supply difficulties. Member states can also provide financial assistance to a state suffering from natural disasters and other exceptional events. In Jean-Claude Junker's opinion financial crises could be included among these exceptional events and the legal basis would therefore have been created to facilitate intervention.
This column and the one published yesterday on the results of last week's summit will be completed with a number of other considerations tomorrow, which specifically involve: a) inclusion of the private sector among the permanent crisis management mechanism elements; and b) next year's Community budget, a subject which promises to generate a lot of heat.
(F.R./transl.fl)