The Future of the EU

What to do about the Constitutional Treaty

The European Council of European heads of government next June is scheduled to take a decision on the way forward on the issue of the Constitutional Treaty. By then, eighteen states will have ratified it, two rejected it and seven will be waiting to see.

In theory, there are a number of possible ways of dealing with the issue. Each one of them has problems. It will not be clear until June - at the very earliest - which way forward might, perhaps, be politically feasible.

What are the options?

The "Treaty Plus" Option

Under this option, the Constitutional treaty could be salvaged by keeping the text in tact, but adding to it.

Under one scenario, it would be enough to agree declarations interpreting this treaty on points of concern to public opinion in France , the Netherlands and elsewhere. This was the approach taken when Denmark rejected the Maastricht treaty. The Danes were able to define four issues that had given rise to public reticence about the treaty in Denmark , these were addressed in a declaration and the Danes then approved the treaty in a referendum without a single word of the treaty being modified. It can be argued that what was good enough for a small member state should be good enough for France, but the fact remains that it will not be easy for the French to agree on what issues might be susceptible to such an approach - and anyway there is not just France, but the Netherlands and possibly other countries which might consider a declaration to be an insufficient response to their concerns.

The second scenario would be to have protocols designed to have the same effect. However, a protocol has the same status in law as the treaty itself and would therefore carry more legal weight than a declaration. A protocol would also have to be ratified by every member state, but would not need a new ratification of the treaty itself in those countries which had already ratified it.

Finally, there have been suggestions to add bits to the treaty itself, notably new chapters enhancing the ability of the EU to tackle issues such as climate change, or strengthening competences on energy, or other matters.

All these 'Treaty Plus' scenarios have the merit of avoiding a renegotiating of the text of the treaty and some of them would avoid the need for new ratifications. Whether they would be sufficient for France and the Netherlands to reconsider on that basis (or in combination with other decisions due soon, like a revision of the budgetary system) may appear unlikely but this will only become clear next June at the earliest.

The Treaty Revision Option

Some, including Segolene Royal, have suggested renegotiating the Constitutional Treaty, even if this may take some time. Many French commentators have suggested renegotiating, or simply scrapping, Part Three - the codification of all the existing treaties modified in places - as it was Part Three that triggered a number of issues in the French referendum campaign. However, this is to lose sight of the interdependence of the various parts of the treaty (Part One has some thirty or so cross-references to Part Three) and something must be done about the existing treaties - if they are not adopted then Part One will have no effective meaning.

It also loses sight of the fact that, while the French may have had difficulties with items in Part Three, it is items in Part One which were questioned in some other countries including the Netherlands .

Nonetheless, the renegotiation option is certainly a possibility but no one should be under any illusions that it would be easy to achieve in anything but the long run. It would amount to re-opening pandora's box. The difficult compromises and balances that were agreed in the original constitutional treaty will not easily be replaced with different ones.

The "Mini Treaty" Option

One alternative suggested by Mr Sarkozy, among others, is to adopt quickly a "mini treaty" on the most urgent changes needed to the current institutional structure (not least to allow the Union to function as it enlarges).

Some have suggested that a small mini-treaty would have content below the threshold which requires a referendum in many countries and could therefore be adopted very quickly. This would then leave time for a more lengthy and more profound debate on other aspects of the Constitutional Treaty.

This scenario is attractive in that it would secure a quick result on the most urgent reforms needed by the European Union. However, it would postpone the bulk of the reforms until the distant future. It is solution that many member states and the European Parliament would accept only as a last resort.

One variant on this is to put some reforms into the next Accession Treaty rather than adopt a 'mini treaty' prior to the next accession. An Accession Treaty anyway amends the existing treaties and must address issues such as the insertion of the member states into the Council's voting system, the size of the Commission, the rotating EU Presidency etc. Just as with Britain 's accession treaty, it should be possible to bring in some significant institutional changes. It could be an advantage that when it comes to ratification it is an accession rather than a constitutional treaty that is being ratified.

The Status Quo

Some might be tempted to conclude that, now that 27 ratifications are needed, it is virtually impossible to change the current treaties and that we must live for evermore with them as the Union 's legal base. Some improvements envisaged under the Constitutional treaty that are possible under the current treaties could be implemented, though these are actually few in number and have, to a degree, been done already (transparency in the Council, better information for national parliaments, reform of the comitology system). A short consolidated version of the constitutional parts of the current treaties could be published for illustrative purposes.

Such a scenario would enable the Union to muddle through but would not address some of the key structural problems that led to the negotiation of the Constitutional Treaty in the first place and which all 27 member states agree are in need of reform.

Of course, dissatisfaction in public opinion with the Union is probably heightened when dealing with obscure institutional questions. Many advocate focusing entirely on Union policies, notably the Hampton Court agenda (l'Europe des resultats). This is absolutely right in principle - until the implementation of policies fails due to institutional gridlock and sub-optimal decision making procedures. At some point, the mechanics must be sorted if the motor is to deliver.