Clarity in discord? The debate on the new European treaty is now clearer but opinions continue to differ. The essential question can now be posed as follows: How many elements of the draft Constitutional Treaty must be safeguarded? Which ones? At the same time, a fundamental tendency is taking shape: several member states have decided to move forward anyway, even if differences are not smoothed out. Such a possibility does not appear among the official objectives. Neither the Council presidency nor the Commission or European Parliament presidencies have set it out explicitly. But other stakeholders do not feel bound by reserve and speak out openly on the possibility of the EU dividing into two groups, or they suggest solutions that would allow the new treaty to be applied only by the member states that have ratified it.
It was quite logical that the changes to be made to the draft Constitutional Treaty, making it less ponderous while at the same time completing it, had been at the basis of the preparatory work by the German presidency, and Angela Merkel had questioned member states, point by point, about what they were willing to accept (her questionnaire was published in our bulletin, No 9416). Despite being in the form of questions, the document had caused considerable concern as, some observers say, it implied the risk that a large number of the innovations foreseen by the Convention would be discarded, with alternative drafts placing emphasis on new provisions to be introduced as much as on those to be eliminated (I call to mind the draft by Jo Leinen, who chairs the European Parliament's constitutional affairs committee).
Part III cannot disappear. Studies have been carried out in parallel on the implications of doing away with Part III of the constitutional draft. Part III is often presented as no more than a summary of the Treaties in force. These studies show that, in fact, Part III contains essential elements of the reforms envisaged, not only when it comes to institutional innovation but also regarding the powers of the Union. It is a long list: - strengthening of the Eurogroup (autonomy and authority); possibility of an energy policy; possibility of a 'European law' governing services of general economic interest; new competences in space, public health, tourism, sport, natural disaster prevention, external border control and immigration; enlarged powers for Eurojust and Europol; mutual recognition of judicial decisions (civil and criminal); and the possibility of a European prosecutor's office. In nearly all cases, decisions would be subject to qualified majority and joint Parliament/Council decision. Furthermore, it is Part III which sets out the functions of the future EU foreign minister and enlarges the possibility of military action.
These analyses show the extent to which excessive simplification can distort reality. Discarding Part III would in fact make the essential part of the innovations foreseen in the constitutional draft disappear. Some proposals suggest taking up the essential part of Part III in a separate treaty or in protocols, while safeguarding the content and adding new challenges, such as the challenge of climate change.
“Ornaments”. Some political decision-makers or observers object to the EU being stripped of what one commentator called its “ornaments”, which give the 2004 draft its constitutional nature: - the symbols of the EU, the term “foreign minister”, the definition of “European laws”, and the explicit mention of the “primacy” of European law. I do not believe it is necessary to fight over all these points. The term “European laws” should be kept in a concern for clarification and simplification (especially for citizens), and the call for primacy of European law can be of use to the Court of Justice to be introduced in areas where this primacy is not yet legally affirmed (“Third Pillar”, which would become a Community area). But then neither would I fight over flag or anthem. It is not because these are included in a treaty that they become known and loved. The European flag, with its stars, can be seen in every demonstration, it is waved by the young, it decorates windows and balconies. It appears alongside the national flag in the official photo of the new president of the French Republic. And who does not know the Ode to Joy (or freedom) from Beethoven's ninth symphony? Hard luck for those who do not want them included in a text - they are already a part of Europe in any case.
(F.R.)