The quasi-Constitutional Treaty: state of play

It seems at present that the German presidency will have very broad, or even unanimous, support at the upcoming summit meeting to call an IGC in the summer/autumn to consider a draft treaty which incorporates much of the failed Constitutional Treaty. Let's call this the 'quasi-Constitutional Treaty' (or 'quasi-CT') for now, until a more official name emerges.

It would be better, as I said in my 'cherry-picking' post, to be far more selective about what bits of the Constitutional Treaty should be retained. But let's leave that issue aside for now, and examine where we are at with the idea of a quasi-CT.

Where are we at with this initiative? It appears that there is broad support for the idea that the quasi-CT will simply amend the existing treaties, rather than take the form of a free-standing treaty which will repeal them. This is perfectly technically possible (in fact, it has of course been the normal approach for decades). It will mean also that the overall text will be far shorter, as most of the lengthy Part III of the Constitutional Treaty need not appear, since much of it constituted the existing EC Treaty provisions. Also (this point has been overlooked) there will be no need to include most of the Protocols to the Constitutional Treaty -- since most of them are pre-existing. Instead there will need to be only a handful of amendments to existing Protocols, and a small number of new Protocols (most or all of these new or amended Protocols carried over from the Constitutional Treaty text).

The key question is going to be which bits of the Constititutional Treaty will be kept in the quasi-CT and which bits will get chucked.

The bits which may be chucked or amended are as follows, according to press stories:

- the 'symbols' of the EU like the flag and anthem (broad support to chuck), including it seems the primacy of EU law (which will continue to exist anyway);

- the EU's Charter of Fundamental Rights (it seems unlikely that the whole text will form part of the quasi-CT, in the way that it formed Part II of the Constitutional Treaty; the great controversy will be whether to mention the Charter at all, and if so, how to mention it);

- issues of subsidiarity, competence and the role of national parliaments: it seems likely that there will be stronger language on these points, although the detail would be important and would have to be carefully negotiated and scrutinised;

- the change in voting weights re the Council's qualified majority voting, where Poland and the Czech Republic have great concerns;

- the extension of qualified majority voting (QMV) to new areas; it seems that the main area concerned is policing and criminal law, where the UK may be offered an opt-out to address its concerns (I suspect this might also be an important factor in ensuring that the quasi-CT gets a Yes vote in an Irish referendum) ; press reports have not mentioned any other areas of concern, although it appears that the Poles, Czechs and Dutch have been making general noises opposing extension of QMV;

- the legal personality of the EU, opposed by the UK; and

- the collapse of the pillar structure, mainly opposed by the UK.

Analysis

The Charter

The first particularly interesting legal issue is the Charter. Of course, this exists already, as do the binding general principles of EU law. And no-one appears to want to remove the provisions of the Constitutional Treaty which would provide for EU ratification of the ECHR (although it the EU had no legal personality, how could it accede to the ECHR? Unless it had legal personality for this purpose only).

Since the Court of Justice has stated that the existing Charter is simply a restatement of the existing general principles, and the Charter contains many provisions (strengthened by the Constitutional Treaty) which would limit its impact on national law, this is, legally speaking, a non-issue. But since the public perception is that the Charter would entail significant changes in the content and process of protecting human rights within the EU, politically the issue is very important.

Also, it should not be forgotten that a failure to refer to the Charter at all, or a brief reference making the Charter legally binding (or leaving its legal force ambiguous) would mean that those aforementioned amendments to Articles 51 and 52 and the preamble of the Charter (which the UK fought for) would not be adopted. Something of a catch-22 for the UK, then.

The idea that Member States could in some way opt out of the Charter is absurd, as its main function is to govern the legality and interpretation of EU law, and its implementation in the Member States. An opt-out would strike at the fundamental nature of the EU legal system and should not be tolerated. Far better to ignore the Charter altogether, leaving it non-binding -- or alternative to add some more existing text to it addressing areas of concern (clarifying, for instance, that it would not entail changes to national trade union law).

QMV

For practical reasons, the issue of the extension of QMV can only be solved by opt-outs where it concerns substantive policy areas. The use of opt-outs is a tried and tested approach to solving objections to the expansion of EC/EU competence at IGCs (particularly Maastricht and Amsterdam) and so it would be no surprise or shock to see this approach applied again in the quasi-CT. It would be harder to apply opt-outs to new substantive areas such as energy and public services, which overlap with existing powers of the EC/EU.

Legal personality of the EU

The EC already has a legal personality (Art. 210 EC) and has ratified many hundreds of treaties within the scope of the first pillar -- including the Kyoto Protocol (an example referred to by European Voice as a treaty which the EU might sign). The EU does not have an express legal personality but in fact many treaties have been signed in the name of the EU since 2001 and it is widely understood that the EU has an implied legal personality -- which it would continue to have even in the absence of a Treaty provision giving it express legal personality.

So this is another non-issue. But again, it has obtained political importance and so needs to be addressed. It would be particularly odd if the pillars were merged and the UK insisted still on this point -- because what would then happen to the Community's legal personality in the merged Union structure? So these two points are necessarily connected.

It would be better, if the UK has some specific concerns about what a legal personality for the EU might mean, to address them directly -- by providing for more unanimous voting or shared competence over foreign policy or criminal law treaties, limiting the scope of the EU's treaty-making power in some other way, or dropping the provisions on the role of the EU Foreign Minister (whatever the final name of this post) in the UN Security Council, which particularly appears to concern the UK.

Merging the pillars

It would be entirely possible to amend the EU Treaty provisions on the second and third pillars in order to introduce all the changes that would apply to these areas brought about by the Constitutional Treaty. Or alternatively, it would be possible to merge the three pillars but without making any change to the current foreign policy or criminal law provisions whatsoever.

So it follows that the abolition of the pillars is just another 'symbolic' issue. Since abolishing the pillars would be desirable in the interest of clarity and transparency, even if no substantive changes were made to the relevant rules, the UK should again focus instead on addressing any specific substantive concerns it may have -- for instance, making it clear that foreign policy measures have no direct effect, clarifying the nature of the EU's foreign policy competence and the capacity of Member States to continue independent foreign policies where the Union has not acted, making sure that the jurisdiction of the Corut of Justice over foreign policy is more clearly excluded, and that (if this is really believed to be politically necessary) that the UK can continue to opt out of the Court's jurisdiction over references from national courts as regards criminal law and policing.

Structure of the Treaty

A final point is the question of whether Part I of the Constitutional Treaty should be retained as one part of the quasi-CT, perhaps as a separate Treaty (ideally as a new Treaty co-existing alongside a merged EC/EU Treaty, rather than as a third treaty, or rather a fourth, taking into account the Euratom Treaty!). This would be fine legally -- although it would require more consequential amendments to be made to the existing EU/EC Treaties, including surely another renumbering (don't all cheer in support of this idea!).

Also the idea that the separate quasi-Constitutional Treaty could be ratified by all Member States, while the amendments to the existing Treaties need not be, is a non-starter -- there are too many links between the two, and non-participation by some Member States in the entirety of the amendments to the existing Treaties (as distinct from opt-outs from some substantive provisions) would not be feasible. Presumably this separate Treaty would also incorporate most of Part IV of the Constitutional Treaty (the final provisions).

A plus point is that Part I of the Constitutional Treaty, while not the finest example of legal drafting in history, would at least be much easier to understand and teach than the status quo.

The main concern would I think be political -- retaining Part I of the Constitutional Treaty in this form would make it blindingly obvious that the Constitutional Treaty is being largely retained. But this will be blindingly obvious to everyone anyway. The best way forward would be to retain Part I of the Constitutional Treaty (taking account of changes like the removal of the EU symbols, but including also much of Part IV) as a separate Treaty or part of a combined Treaty, while explaining to the public the considerable amendments which will likely otherwise be made to the text of the Constitutional Treaty.