Yes to simplified treaty, No to a mutilated text


Some suggested alterations to the proposed EU constitution are pitiful, declares Valéry Giscard d'Estaing, the man who oversaw the treaty's drafting

Tomorrow, the European Council should establish "a road map and a clear mandate to arrive at completion of the process under way for the ratification of the constitutional treaty".

The German presidency of the Union prepared this summit. We all recognise the determination, competence and open-mindedness of Chancellor Angela Merkel. She had the good idea of asking each member state to provide a written reflection on the problems which ratification posed for it.

After summarising their responses, the chancellor intends to propose a "road map" with a view to completing the process of institutional reform. She explained her intentions in Strasbourg on January 17th, before the European Parliament: "The phase of reflection is over. We must take new decisions between now and the month of June. I commit myself to the adoption of a road map for the continuation of the process of the constitutional treaty before the end of the German presidency of the Council of the European Union."

This rational approach was complicated by French - and to a lesser extent Dutch - initiatives to propose an alternative solution. In the course of the French presidential campaign, and to get out of the impasse that the unfortunate referendum of 2005 created for France, the presidential candidates foresaw another solution.

The constitutional treaty would be more or less abandoned, and replaced either by a "mini-treaty", proposed by [ French president] Nicolas Sarkozy in Brussels on September 8th, 2006, or a "simplified treaty" for which Nicolas Sarkozy said, in a public debate with [ French Socialist Party presidential candidate] Ségolène Royal on May 2nd, 2007, he had obtained the agreement of [ Spanish prime minister] José Luis Zapatero, [ British prime minister] Tony Blair and Angela Merkel. The agreement of the European Council is sought on this "simplified treaty", proposed by France and Great Britain.

What would be the contents of this simplified treaty? And how would it be better suited to the European Union's urgent need for reforms?

The Constitutional Treaty was signed unanimously by the heads of state and government on October 29th, 2004 and has already been ratified by 18 states, that is to say two thirds of member states, which represents a qualified majority. Four other states would like to ratify it.

In a Europe that professes its desire for more democracy, this fact must not be underestimated. The ratification procedures carried out by two thirds of member states, including the vast majority of new members, deserve equal consideration with the two states which rejected the treaty [ France and the Netherlands], and the three who still question it [ Poland, the Czech Republic and the United Kingdom]. We must reflect at length before asking them to adopt a text different from the one they already voted for.

Does the sought-after "simplification" aim to facilitate ratification by the few states which still hesitate, or does it in fact hide the goal of reversing certain advances in the constitutional treaty? This ambiguity, which explains the support of Britain for the simplified treaty, must be lifted.

The first two parts of the text, which concern the institutions of the Union and the Charter of Fundamental Rights - and which are the only ones we presented four years ago to the European Council in Thessalonika - need no simplification.

They are relatively short: 60 articles for the first, 54 for the second, out of 448 articles in the treaty. No one has really contested the first part, about institutions. Even in France, during and since the referendum, it was not questioned.

Nicolas Sarkozy told me he intends to have this part of the text approved, without modification, during the July parliamentary session, to prove France's determination to get back on the European convoy. I found this attitude fair and reasonable.

So there is no reason to reopen discussion on the first part of the treaty. Mrs Merkel wished to exclude this first part from the discussion. But we now hear demands to reconsider what was agreed in the first part of the treaty.

The most surprising thing is that the British minister for Europe, Geoff Hoon, now wants to do away with the establishment of a European ministry of foreign affairs (article 28). But article 2 of the EU Treaty of 1992 stipulates that "the Union gives itself the objective of establishing a common foreign and security policy".

Someone must be responsible for carrying out that policy. The modalities of choosing the Union's minister of foreign affairs - and the title! - figure in the treaty signed in Rome by the British prime minister, Tony Blair.

This demand can only be rejected.

The same holds true for the proposal to revert to the use of the terms "regulation" and "directive" - not understood by most of our citizens - in European legislative acts, instead of "European laws" and "European framework laws", which figure in the treaty, and which are understandable to all.

As for the pitiful proposals to get rid of all European symbols - anthem, flag and motto - they would be laughable if they did not hurt our still fragile pride in feeling ourselves to be European. All use of the world "constitutional" would be banned, and replaced by the term "treaty".

In short, the proposals in the first part of the treaty were drawn up with care by the convention. They constitute a coherent ensemble. Only those with ulterior motives, who would like to brake European integration, have an interest in taking it apart.

I remind you of the essential points of the treaty:

the designation of a stable president of the Union, ending the system of rotation every semester. We must stress the selflessness of the new member states, who gave up a privilege which figured in the accession treaties;

the nomination of a minister of foreign affairs of the European Union;

the precise definition of the respective competences of the Union and member states, to put an end to the reproach that "Europe meddles in everything";

the establishment of normal legislative procedure, similar to that of democratic countries, centred in the European Parliament, for which the council plays the role of second chamber;

the confirmation that the commission has sole power to initiate legislation;

abandoning the rule that each member state designates a commissioner and limiting the number of commissioners to 18 instead of 27, to limit bureaucratic initiatives and restore the character of the "college of commissioners";

recognition of the right of all national parliaments to ensure the principle of subsidiarity, which is applicable to acts of the Union;

the definition of a rule for qualified majority voting. To be adopted, a European Act must be approved by 55 per cent of member states, totalling at least 65 per cent of the population. The first condition protects the least populated states. The second guarantees the democratic character of the decision. This is the equivalent of the decision procedures in states which have two chambers, a senate and an assembly.

The treaty is a coherent whole. It has not been seriously contested for four years, except, of course, by opponents of European integration, and, in the case of Poland, by a discussion on voting rules. It was ratified by two thirds of member states. One does not see how it could be "simplified". The wisest thing would be not to touch it, and to pursue its ratification via parliament. This was what the former German foreign minister, Joschka Fischer, who was one of the most assiduous members of the European Convention, proposed in a recent article.

This is also the position of the European Parliament, which just approved, by 469 votes against 141, the remarkable report by Elmar Brok and Enrique Baron Crespo, opposing all modification of the institutional provisions of the treaty.

The problem of the "simplification" of the treaty focuses on the third part. The fourth part is relatively short, only 10 articles, and establishes a worthwhile procedure for simplified revision, so it should be preserved. Any attempt at simplification may be considered, as long as the modalities and consequences are made clear.

This third part of the constitutional treaty is not the work of the European Convention, but the fruit of the labours of an Inter-Governmental Conference (IGC), held under the Italian and Irish presidencies, after we turned in our draft for the first two parts. Thus, the governments are being asked to correct their own work.

The main reproach against this third part, on "the policies of the Union", concerns its length. It contains 320 articles. Why? The third part resulted from the ambition of replacing all earlier treaties with a single text, by bringing their contents together.

When one speaks of "simplification" of the constitutional treaty, one must take account of the ensemble formed by the treaty itself and all earlier treaties, which represented 1,040 pages of text! If you withdraw an arrangement from the constitutional treaty, it reverts to the earlier treaties. The constitutional treaty appears less cumbersome, but you bring the earlier treaties back to life.

For example, on economic and monetary policy, if you withdraw articles 177 to 202, which were taken from the Treaty of Maastricht, you must then keep the Treaty of Maastricht, which includes the same 25 articles on the same subject. What would be the simplification? To analyse the problem, we must examine what is contained in this famous third part.

First of all, the adaptation of vocabulary and procedures of the "policies of the Union" to the institutional innovations introduced in the first part. None of this poses a problem. Competent legal experts could draft it.

Second, it simply repeats the provisions of earlier treaties, which have already been ratified, for example competition in the Treaty of Rome, or economic policy in the Treaty of Maastricht. The consequence of their elimination would be to revive earlier treaties, without any real simplification.

The third ensemble includes innovations. For some subjects, the rules of voting would go from unanimity to qualified majority. These provisions are contested by certain member states, who have not ratified the text. France, it seems, is asking that qualified majority voting be extended to all immigration policy.

In the opposite direction, the British would wish to limit recourse to qualified majority voting, in particular in judiciary matters and labour law. This is not a problem of "simplification", but a disagreement over which the convention had achieved a consensus and over which negotiation is still possible. But it would set us back four years, because these questions were debated at length by the convention before a consensus was reached.

The other innovations were introduced at the request of member states, including France. They concern the "justice, liberty and security space". They aim to introduce judiciary co-operation in civil and criminal matters, and develop police co-operation against crime. They also involve establishment of the Common Foreign and Security Policy (articles 294 to 312) and the protection of services of general economic interest (article 166).

The desire for "simplification" could lead to their abandonment. This would be a pity.

The latest brain wave is to preserve part of the innovations of the constitutional treaty, but hide them by breaking them up into several texts. The most innovative provisions would become simple amendments to the treaties of Maastricht and Nice. The technical improvements would be regrouped in a colourless, harmless treaty.

The texts would be sent to national parliaments, which would vote separately. Thus public opinion would be led to adopt, without knowing it, the provisions that we dare not present directly.

This process of "dividing to ratify" is obviously unworthy of the challenge at stake. It may be a good magician's act. But it will confirm European citizens in the idea that the construction of Europe is organised behind their back by lawyers and diplomats.It is contrary to the goal inscribed in the Laeken declaration of 2001 that the process "lead to the adoption of a constitutional text".

We're a long way from the energetic and courageous appeal of Robert Schuman in 1950, and further still from the daring Constituent Assembly of Philadelphia which in four months drew up a constitution that remains in force 220 years later.

In the name of the modest and anonymous members of the European Convention, I believe I can say Yes to an honestly simplified treaty, which would not go back on any of the institutional advances we proposed in the first part, but a categorical No to a mutilated treaty. If the governments agree on a simplified treaty, preserving the basic points of institutional reform, let them not be afraid of saying it and writing it. "Mehr Licht" (More Light), said Goethe.

This leads me to a suggestion for Mrs Merkel. Who among us has not heard it endlessly repeated that Europe is too far from its citizens, that important decisions are taken without their knowing about it, that the system is opaque, without transparency?

To fulfil this expectation, the European Convention imposed a rule of total transparency on itself. All of its debates were public. All of its documents were published the same day on the Internet.

Why shouldn't the sessions of the European Council dedicated to the future of the constitutional treaty be subject to the same rule of transparency? Why shouldn't they be public? Since you are going to debate the fate of Europeans, do it publicly: let them hear, themselves, all the arguments; that they may recognise those who, like yourselves, work courageously and honestly to build the foundation of a new Europe.

Valéry Giscard d'Estaing, a former president of France, was chairman of the European Convention, the body which wrote the Constitution for Europe, which it published in July 2003. This article was translated from the French by Lara Marlowe