The Constitutional Treaty is a bit of a puzzle. EU leaders never explicitly asked for a Constitution, yet in 2004, all EU25 leaders signed the Constitution and committed themselves to ratifying it within two years.
This column addresses the strange route by which the EU ended up needing a Constitution that it had done without for a half century and five enlargements. The goal is to debunk the myth that the Constitutional Treaty was a treaty like no other – some sort of latter-day Treaty of Rome. This is important since viewing the Constitution as just a big reform is essential to thinking clearly about what needs to be in the Constitution’s replacement.
Debunking the Constitutional myth
The EU has always recognised that Eastern enlargement would require EU institutional reforms. The quest for enlargement-linked reform began in December 1993. That’s when EU leaders added institutional reform to the agenda of the 1996 Intergovernmental Conference (this produced the Amsterdam Treaty). The year 1994 saw them set up a Reflection Group to study institutional reforms necessary to keep the EU on track after enlargement. They explicitly directed the Group to consider Council of Minister voting and the composition of the European Commission.
The resulting Westendorp Report described a consensus on the nature of the problems facing Europe, but a thorough lack of consensus on the solutions. The Report’s list of problems is very similar to those tackled by the Constitution, and the disagreements are almost identical to the ones that made negotiation of the Constitution so difficult.
The history of the EU’s efforts to adopt the necessary enlargement-linked institutional reforms has been told elsewhere.1 Here it is enough to note that the EU made two tries before the Constitution. It failed with the Amsterdam Treaty and recognised this by specifying the so-called Amsterdam Leftovers – i.e. the issues that had to be solved before enlargement (Council voting and Commission composition). It tried and failed in the Nice Treaty, but EU leaders could not recognise their failure explicitly. As part of the final political bargain, EU leaders had to solemnly proclaim that the Nice Treaty reforms did solve the enlargement-linked institutional problems so enlargement could proceed. EU leaders at the time, Blair, Chirac, Schroeder, Amato, Kok, Anzar and others promised their parliaments and citizens that the Nice Treaty was good enough.
The Nice reforms were done in a rush, and during the course of 2001, it became clear the reforms were bungled. Instead of allowing the EU to maintain its ability to act effectively and legitimately, the new voting rules actually made things worse.2 EU leaders faced a dilemma. Politically, they could not confess that they had blundered – the small member states were selling the Nice Treaty (which cut small members’ power) to their national audiences as a sacrifice necessary to permit enlargement. But the leaders knew that they still had to prepare the EU’s institutions.
A new tactic was needed. In my reading of history, it came in the form of the Laeken Declaration and the European Convention. Shunning the usual procedure for negotiating a treaty, EU leaders unanimously adopted a list of 56 questions that included the enlargement-linked reforms that were supposed to have been dealt with in the Nice Treaty. Question 41 (my count) is how can we "improve the efficiency of decision-making and the workings of the institutions in a Union?" This implicitly admits that Nice failed since that was the Nice Treaty’s main goal. The Convention was set to ponder the list of questions.
EU leaders never explicitly asked for a Constitution
While the search for acceptable enlargement-linked reforms had been going on since 1994, EU leaders never mentioned the need for a big-c constitution. How do we know this? National leaders guide the EU’s moves with unanimously-agreed statements called the “Presidency Conclusions.” The C-word entered none of the Conclusions before the Laeken Declaration for the very simple reason that there was never unanimous agreement that a big-c constitution was needed.
This lack of explicitness is very strange for a major step in European integration. When EU leaders decided to complete the Internal Market they asked the Commission to draw up a plan and then unanimously and explicitly called for completion of the Internal Market. When they wanted a single currency, they explicitly embraced the goal and told the European Commission to come up with a plan that led to the Maastricht Treaty.
While the C-word does appear in the Laeken Declaration, the Declaration does not explicitly instruct the Convention to write a Constitution. This is strange. If EU leaders wanted something this monumental, they would have said so. Of course, words are slippery things. Judge for yourself. Read the section labelled “Towards a Constitution for European citizens.” In my view, it would take a very elaborate helix of logic to read this and conclude that the European Council really meant to say ‘the Convention should write a Constitution.’ If you agree, then the Constitution really was what Peter Norman called “The Accidental Constitution” in a book with the same title.
From “Convention on the Future of Europe” to constitution-writing
The European Convention, run by former French President Valéry Giscard d'Estaing, started slowly. Its large size and ill-defined objectives suggested a muddled outcome. By mid 2002, however, Giscard had transformed the “Convention on the Future of Europe” into a machine aimed at presenting a fully written big-c constitution. The tone changed. Member states sent heavy-weight politicians, arguments over the need for a constitution fell away and the discussion turned to its content.
Giscard controlled the debate and final document. Noted political scientist George Tsebelis wrote that Giscard “expanded the authority of the Convention, and shaped the document that it produced. By eliminating votes, he enabled the presidium and the secretariat (which means himself) to summarise the debates. By stretching the concept of agenda in order to place issues in the debate, by using time limits as a way of limiting possible opponents from making proposals, by selecting the staff members himself, and taking them away from every possible source of opposition, he was able to shape the document in a very efficient way.”
The Chairman’s prerogative was crucial in choosing the list of the Working Groups. On the issue that would be central to the entire grand bargain, the issue that had been central in IGC96 and IGC2000 – the Council voting rules – there was no Working Group. The proposal that he pulled out at the last moment and included in the near-final draft – a dual-majority scheme – attracted a good deal of criticism but Giscard suppressed the debate with time limits. The member states who knew they stood to lose massive amounts of power under Giscard’s scheme decided to hold their fire until the IGC 2003 where the elected leaders of the member states – not the unelected Giscard – would be in control.
In my reading of history, member states knew and approved of the process, but for whatever reason, the various Presidency Conclusions in 2002 and 2003 never formally acknowledged that the Convention was writing a Constitution. Maybe some members hoped right up to the end that the C-word would be dropped or fuzzed. What did they gain from allowing Giscard to proceed? The emerging treaty would allow them to implement difficult reforms without admitting that Nice was a mistake. Moreover, the breath and complexity of the document provided political cover for everyone and enough scope for ‘extras’ to make all member states happy enough to sign it. The same complexity allowed different governments to describe it in very different ways. To the Belgians it was the new Treaty of Rome; to the Brits it was a tidying-up exercise.
The Constitution: a typical EU big-package political compromise
It is easy to get misty-eyed about European ideals, but the harsh truth in my view is that the Constitution was just another big-package political compromise of the sort that has been put together at every step in Europe’s long history of integration. Eastern enlargement required the EU to reform itself. Europe has known – since the Westendorf Report – what it had to do. It failed to do that in the Amsterdam, Nice and Constitutional Treaties. Europe would be well served by the realisation that the Constitution was not a heroic step towards the sacred goal of European integration. It was a smoke-screen for undoing the Nice Treaty’s damage without admitting EU leaders had erred. Unfortunately, they misjudged EU citizens; instead of fixing up Nice’s screw-up, the Constitution created a brand-new screw-up that the German Presidency is trying to fix up. There is now hope that the discussion can return to basics; all but two of the leaders who signed the blotched Nice Treaty have been replaced so the need for clouding the issues has dissipated.
The next instalment in this series will look at what must be in the new treaty to consider it a success. As we shall see, the Westendorp Report is not a bad place to start.
1 See Baldwin (2006), “Trail to Failure: History of the Constitutional Treaty’s Rejection and Implications for the Future,” CEPS Policy Brief No. 104.
2 See Nice Try: Should the Treaty of Nice be Ratified? Monitoring European Integration 11, Richard Baldwin , Erik Berglöf , Francesco Giavazzi , and Mika Widgrén, 08 June 2001, CEPR, or Felsenthal, D.S. and Machover, M. (2001) The Treaty of Nice and the Qualified Majority Voting, LSE.