Plan B: How to Rescue the European Constitution

Executive Summary

• The Treaty establishing a Constitution for Europe, signed in October 2004, will well equip the European Union to meet the demands of the 21st Century and the aspirations of a large majority of its citizens. Without the constitution, Europe will lack internal cohesion and external strength, and the Union’s development into a mature, post-national democracy will be halted.
• Unfortunately, this constitution will not now come into force because France, the Netherlands and the United Kingdom cannot ratify it, and several other member states are making no progress towards ratification. If the constitution is to be saved, it will have to be modified. There are no other options. Europe badly needs its Plan B.
• By improving the 2004 treaty it is certainly possible to address many of the concerns expressed by public opinion during the ratification process. The renegotiation must be judicious, tactical and modernising. No single prescription will be sufficient to refresh the consensus around the constitutional project. Simplistic or superficial solutions have to be avoided.
• The 2004 text must be ring-fenced where the consensus that lay behind it still holds good. This applies in particular to the hard core of the original treaty – that is, the constitutional provisions in Part I, none of which have proven particularly controversial during the ratification process.
• The constitution needs to be restructured, however. Part II, the Charter of Fundamental Rights, would achieve greater visibility by being annexed to the constitutional treaty and accorded a unique revision procedure (new Article IV-443 bis). The Charter’s content and legal status would be unchanged.
• Part III, concerning the policies and functioning of the Union, should become clearly subsidiary to Part I, with a softer revision procedure (Article IV-445). The general passerelle clause, allowing shifts from abnormal to normal decision-making, should be simplified (Article IV-444).
• There are five policy areas deserving of modification or innovation. First, the economic governance of the Union should be strengthened (Article III-184). The autonomy of the eurozone should be enhanced (Article III-194). And the Lisbon agenda should be written into the constitution (Article III-178).
• Second, the constitution should define a common European framework for the organisation of economic society (Article III-209). A Declaration on solidarity should be drafted to highlight the social dimension of European integration. And those member states wishing to go further should commit themselves to a Protocol on a social union.
• Third, combating climate change should become an imperative to which all common policies need to conform (Article III-119). In this context, the common agriculture policy should be modernised (Article III-227), and separated out from the common fisheries policy (new Article III-227 bis). Environment policy should be up-graded (Articles III-233 & 234), and common energy policy revised to meet current concerns (Article III-256). Euratom should be brought within the scope of the constitution.
• Fourth, a new Title should be drafted into Part III that would insert the Copenhagen criteria, governing the enlargement policy of the Union, into the constitution. The accession process should also be laid out in full. In the context of the EU’s neighbourhood policy, a new category of associate member should be introduced.
• Fifth, the revised financial system, which is to be negotiated in any case in 2008, should be enshrined in Part III of the constitution. It should cover both revenue (including the UK rebate) and expenditure (including the CAP). The reform should aim at greater fairness, buoyancy, transparency and accountability – thereby allowing the EU’s budget better to match its political priorities.
• The IGC, which is destined to take place in 2008, should interact with the European Parliament in a form of constitutional co-decision. All three EU institutions, the Council, Commission and Parliament, have a duty to engage during the renegotiation with national parliaments and political parties. In 2009, an EU wide poll should be considered as a means of ensuring democratic consent for the revised constitutional package (Article IV-447).