Four points for the leaders. Now there's a sense of urgency. Information indicating that a compromise is in sight on the main obstacle to the adoption of the Constitution (modalities for majority voting in the Council), strengthens the need to define compromises on the other outstanding issues, to prevent the negotiations from breaking down over minor differences of opinion. It no longer seems reasonable to insist on losing unanimity on issues London considers "vital"; at the moment, we must be happy with what we can get, leaving doors open onto the future. The main thing, for the time being, is that the Constitution is approved, setting in stone the undeniable progress made by the Giscard d'Estaing draft, and boosting public interest in the forthcoming European elections.
All technical or wording issues still open should, therefore, be resolved by the Intergovernmental Conference (IGC) at Foreign Minister level, which has been convened for coming weeks, submitting just a few points for the arbitration of the Heads of Government. The question of Europe's religious heritage aside (no drastic changes should be made to the current text), I can basically see four: a) the definitive wording for the modalities for majority voting; b) provisions on the composition of the European Commission, without setting in stone the principle of one Commissioner per Member State, which, come future waves of enlargement, would strip the Commission of its legitimacy and authority; c) the modalities for "reinforced co-operation" or other similar formulae, making new progress in integration possible even though certain Member States are not disposed to take part; d) provisions to prevent the Commission from being plunged into oblivion if one country or another fails to ratify, even if all the governments have approved it and the vast majority of Member States ratified it.
The François Lamoureux formula. On point a), it is just a case of waiting for the compromise, increasingly discussed in Community circles, to be fine-tuned, with "double majority" as the basis of the voting mechanism, and accepted by all. On point b), I have nothing to add to what I have already written several times, except that developments in Cyprus (see this column yesterday) back up the arguments against making the "One Commissioner per country" formula definitive. On point c), I feel that a new element is the relaunch of the François Lamoureux wording by the "Notre Europe" association, which I will come back to. On point d), it is significant that the official silence of the "Large countries" was broken by Jacques Chirac at a recent press conference on Europe (see our bulletin of 1 May, page 4). To a certain extent, points c) and d) are linked.
The starting point for François Lamoureux's observations is that the vanguard, mentioned in the current texts, is gaining no ground, and that the only way to break the deadlock is to organise a rear-guard instead, made up of countries which do not intend to take part in certain common policies or new initiatives. This high-ranking European Commission official (who was responsible, amongst other things, for the "Penelope" draft), has been stressing this point for months. I admit that to start with, I thought that his idea was a piece of clever dialectics rather than an innovative solution. Last week, a revised version of his text (which he describes as a "final version") was circulated by the "Notre Europe" association of Jacques Delors. I have become convinced that the formulae he describes could indeed help to resolve various problems which still stand in the way of the Constitution's approval. By declaring that the vanguard "has never worked yet", despite the numerous available theoretical options based on the Treaty of Amsterdam, Mr Lamoureux notes that the EU has instead several times arranged a rear-guard of countries which do not which to take part in a new policy. The first counter-indication for the vanguard is that it mixes two profoundly different realities: achievements made in the context of the EU and its institutional system, and achievements made outside the Union. In other words, it mixes "reinforced co-operation" decided together, under the Treaty, and managed by Community institutions, and a possible "vanguard", intergovernmental in nature, managed by the governments (and sometimes the national parliaments) of the participating countries. The first formula has never been applied; the second would spell the end of the "Community method" in certain essential fields.
The dispersal of possible "reinforced co-operation". François Lamoureux rightly pointed out that reinforced co-operation would cover "timely actions bringing together variable configurations of Member States; there will be no hardcore of States wanting to lead from the front on the same objectives". This is a fundamental objection which should give food for thought. Organising a rear-guard is something completely different. In practice, Mr Lamoureux noted, it is a question of giving a systematic framework for the "differentiation" Jacques Delors has been preaching for so many years as an indispensable element of the enlarged Union. Any new initiatives will be decided jointly, in full respect of Community procedures and with the involvement of the European institutions; after which, countries which are not interested can simply opt out. The inspirational model is obviously the single currency: two States (United Kingdom and Denmark) used their opt-out, and the new Member States will join in when they want to and can. It is true that there is an "economic governance" problem and that various political forces are calling for greater autonomy for the euro zone, but Mr Lamoureux says only that "the duplication of legal orders and institutions" has been avoided. He also feels that "Schengen illustrates the theory that it is easier to organise a rear-guard than a vanguard". To start with, it was an intergovernmental creation, which "gave rise to more committees than standards", and only started to be efficient when it was included in the Treaties, organising the little rear-guard of three countries (United Kingdom, Ireland and Denmark), which didn't want to be in it.
If the Constitution does not solve the problem of the rear-guard, it will be possible to go forward in all fields in which the rule of unanimity subsists. In practice, this means that the organisation of the rear-guard would remedy the impossibility of extending majority decisions sufficiently. The Constitution should provide that the Commission may propose that certain Member States are not in on certain things, but have the right to join later, when they want to and are in a position to do so.
Jacques Chirac's surprise. What is to be done, however, if a State refuses to allow this kind of clause into the Constitution? Mr Lamoureux includes this eventuality in the general, and fundamental, heading of the attitude to be taken if a Member State rejects the Constitution, or fails to ratify it. I stated above that President Chirac had raised this issue at the press conference of 29 April, referring to ideas developed "by our German friends". To the best of my knowledge, this is the first time that this issue has been raised unambiguously at the highest level. Having stressed that, if the Constitution fails, we will default to the Nice state of affairs ("which everyone knows is not satisfactory, for many reasons, for France or for the others"), Jacques Chirac added: "going a bit further than the provisions of the current draft Constitution (appeal to the European Council), one may consider that after a certain length of time, say two years, countries which have not ratified could be required to ratify or leave. This, of course, comes as something of a bombshell. But it may be a positive solution. This should be negotiated in the Constitution. I am not against the idea of friendly pressure on countries which refuse the Constitution, because they are holding the others up".
François Lamoureux said something similar: "the scenario of a Sate refusing to accept the Constitution must be planned for in advance. The 'all or nothing' blackmail, to which the Convention gave in blindly, lies in nobody's interests. It is in the interests of States accepting the Constitution to know how to go forward if one or more States cannot or will not follow". The defaulting country would leave the Union and negotiate with it to keep its acquired rights, in the form of an association. According to Mr Lamoureux, this provision would also be of use to a country refusing ratification, because in such a case, it would be aware that it could negotiate to keep the advantages of a wider European market.
Remove common policies from the Constitution? In reality, keeping the acquis is not a hypothesis to be negotiated, but a right of any country rejecting the Constitution, with regard also to its involvement in the institutions, because, as far as it is concerned, the Treaty of Nice would remain in force. To negotiate the provisions referred to by President Chirac under the Intergovernmental Conference (IGC) would not be easy (indeed, would verge on the impossible). This could be why François Lamoureux added an alternative formula, to be adopted if the "institutional break up" formula between the countries which ratify and those which, in this scenario, do not, is not retained. To safeguard the future in this case, either a "less heavy procedure than unanimity" would be needed to revise the third part of the Constitution (which describes the Union's policies), or to remove this third part from the Constitution altogether, in order to maintain minimum flexibility in policy evolution. Whatever happens, says Mr Lamoureux, "this part, which is incomprehensible to the citizen, is just a compilation of hundreds of provisions from the current Treaties, including the most outmoded ones, with no effort to update, summarise or simplify them". Thus the common policies, which some political forces would like to see radically revised, would be defined by the institutions as part of the normal running of the Union. Which would be most normal.
(F.R.)