Peter Norman: The EU?s ?accidental? constitution

Peter Norman, the FT?s former Brussels bureau chief, has followed the creation of the EU?s constitutional treaty from the beginning to the present day and explains the present situation in his article below. Please address your questions to him at ask@ft.com. His book, ?The Accidental Constitution?, published in May 2005 in its second edition, explains the creation and content of the complex treaty that must now be ratified by all the Union?s 25 member states. TO ORDER GO THERE

Like it or loath it, the European Union?s constitutional treaty is about to hog the headlines again.

The project, which was launched by EU leaders in December 2001 with the laudable aim of making the Union ?more democratic, more transparent and more efficient? faces a potentially life threatening test on May 29.

That is when the French people will give their verdict on the constitutional treaty in a referendum that will have profound repercussions whether they opt for a ?oui? or a ?non?. A referendum in the Netherlands takes place three days later on June 1. Having been kept out of Britain?s general election campaign, the European Union and the constitutional treaty will return to be big issues in British politics, whichever way the French and Dutch vote, but especially if they approve it.

A French ?yes?, after months in which opponents of the constitution had the upper hand, would give the project new momentum and put pressure on Tony Blair, the prime minister, to face up to the challenges of the referendum he has promised the British people next year. A French ?no? would throw the EU into crisis and could trigger rejection in the Netherlands. Mr Blair, who takes over the six month rotating presidency of the EU from July 1, would inherit the job of sorting out the mess.

All 25 EU member states have to ratify the constitutional treaty for it to take effect, so the general expectation is that a French ?no? would kill the project.

But there are reasons for supposing that the issue will not fade away so easily. A ?no? vote would top the agenda at the next meeting of the European Council, the summit body of EU leaders, when it next convenes in Luxembourg in mid-June. Jean-Claude Juncker, the Luxembourg prime minister who will chair that meeting as present holder of the EU presidency, is thought to favour pressing on with ratification in other countries so that the EU?s 25 member states can regroup and consider the options after November 1 2006 when the constitutional treaty is due to take effect.

Italy, Greece, Hungary, Lithuania, Slovakia and Slovenia have already ratified the text by parliamentary votes. In Germany, Austria and Belgium it has passed one chamber of parliament and is expected to complete parliamentary approval before the French vote. The people of Spain backed the constitutional treaty in a referendum in February with 76.7 per cent in favour, albeit on a low turnout of 42 per cent: it has since been approved by one house of parliament and is expected to pass the second chamber without difficulty. Whatever French or Dutch voters decide, there are several member states that have invested much political capital in support of the constitution.

Conversely, ?yes? votes in France and the Netherlands would not mean the constitutional treaty was home and dry. Altogether 10 countries have signalled that they plan referendums. In Britain, opinion polls point to a strong majority against. The predominant mood in the Czech Republic ranges between the eurosceptic and euro-apathetic. Popular votes in Ireland and Denmark have rejected changes to the EU?s governing rules in the past. In Poland, a noisy opponent of some aspects of the constitution while it was being negotiated, pro-EU sentiment picked up in 2004. But the Polish referendum will require a turnout of 50 per cent of the electorate to be valid. This could prove difficult, given that February?s turnout in pro-EU Spain was just 42 per cent.

So what is all the fuss about?

There is no doubt that many people simply dislike the idea of the EU having a constitution with its connotations of government, bureaucracy and centralised power. But a lot of the controversy surrounding the EU?s constitutional treaty is rooted in a misconception. Its full title ?A treaty establishing a Constitution for Europe? creates the wrong expectations. Citizens expect a pithy, literate document rather like the US constitution.

Instead, the EU?s constitutional treaty is lengthy, containing some 448 articles. Although the first 60 articles have the ?feel? of a constitution in that they set out the values, objectives and the ?who does what and how? of the European Union and its institutions, they in no way imply the EU is a structure with independent sovereignty.

Instead the EU is a unique hybrid that draws its legitimacy from the peoples and states of Europe. The member states ?confer? specific powers upon the EU by means of treaties agreed unanimously among themselves. The constitutional treaty is just the latest ? albeit the most comprehensive - of these treaties in the EU?s history.

Second. It is a dense document. This is because it pulls together the many treaties and the amendments to treaties which have built up the powers and responsibilities of the EU since the creation of its forerunner, the European Economic Community, through the treaty of Rome of 1957.

Unlike the EU?s existing treaties, the constitution is coherent: it has a beginning, middle and end. That is the good news. But because it deals with a lot of complex, detailed issues, it is not an easy read. The various protocols and declarations attached to the main text mean it spreads over several hundred pages. That is the bad news.

Third. The constitutional treaty is a compromise. It was prepared in a Convention of parliamentarians and officials from 28 EU member states and candidate countries between February 2002 and July 2003. The Convention?s draft text was then the subject of negotiation by the EU?s 25 member states between October 2003 and June 2004.

It was adopted unanimously by the leaders of the 25 member states in June 2004 and signed by all on October 29 that year. But it cannot please all the people all of the time. Not surprisingly, the controversies surrounding the treaty vary from member state to member state.

Thus, British eurosceptics argue that it is a stepping stone to a European ?superstate? in which national identities and traditions will eventually be submerged. The British government position is that it changes very little. At one stage, the UK minister in charge of negotiations in the Convention even claimed it was no more than a tidying up exercise.

In France, parties of the left claim it gives insufficient support to European social policy and instead sets out a too liberal ?Anglo Saxon? free market economic agenda. Jacques Chirac, the French president, on the other hand has claimed that the constitution will enable France to spread values first expounded in its revolution of 1789.

In fact, the full document is finely balanced and difficult to categorise. This reflects the different forces that influenced the discussions in the Convention and in the Intergovernmental Conference between the member states that followed it. Some parts of the constitution meet the wishes of big member states, others those of the ?smalls?.

The European parliament is given increased powers over much EU legislation, while national parliaments will have a somewhat bigger role in policing EU decisions. If anything, the Europe Commission emerged weakened from the negotiations and faces big changes from 2014, when it will be reduced in size. The constitutional treaty will simplify to some extent the excessively complicated decision making processes of the EU. It makes a first ever attempt at clarifying where the EU or the member states are competent to take policy decisions and those areas where they share responsibility.

The way member states vote on EU legislation in the Council of Ministers will be simplified and made more transparent. There is only a small increase in the areas where the member states have decided to pool their sovereignty and take decisions by majority voting in Brussels, although these include such politically sensitive issues as asylum and immigration policies.

There are some changes which could strengthen the effectiveness of member states when they use EU institutions. These include the creation of a semi-permanent president of the European Council, the regular gathering of EU heads of state and government. The EU will have a ?foreign minister? and EU diplomatic service to help shape a common foreign and security policy, although member states will still retain their national vetos over EU foreign and defence policy decisions. Tax and most social policy decisions stay subject to national veto.

The EU?s charter of fundamental rights, which was agreed in 2000 as a political document, is incorporated into the constitutional treaty and is intended to serve as a bill of rights. Unlike a classic bill of rights, however, the charter includes social rights and for this reason has proved highly suspect in Britain. The UK fought to ensure that the charter cannot undermine its national social or labour market policies. If the constitutional treaty enters into force, only time and judgements of the European Court of Justice will prove whether it has really been successful. Supporters of the charter argue that it is a way of reaching out to Europe?s citizens and making the EU more relevant to them. In another move to increase the EU?s popular appeal, groups of citizens will be allowed to petition the Commission for new legislation.

The EU?s constitutional treaty can stir passions to a remarkable degree. Its capacity to generate heat largely reflects the failure of political elites across the EU to explain what the Convention and the member states? governments have negotiated.

To help you find the answers to your questions about the Constitution, FT.com invites you to ?ask the expert?. Peter Norman, a former FT Brussels bureau chief, has followed the creation of the EU?s constitutional treaty from the beginning to the present day.

His book, ?The Accidental Constitution?, was published in December 2003 by EuroComment of Brussels and has been acclaimed as the only authoritative account of the European Convention and the controversial draft Constitution that it produced.

Peter Norman has now taken the story of the EU?s ?Accidental Constitution? further. He has thoroughly updated ?the Accidental Constitution? in a second edition that explains the creation and content of the complex text that must now be ratified by all the Union?s 25 member states. Subtitled ?the making of Europe?s constitutional treaty?, it will be published by EuroComment of Brussels on May 19. TO ORDER GO THERE

ask@ft.com

THE ACCIDENTAL CONSTITUTION

The Making of Europe?s Constitutional Treaty
By Peter Norman

Published by EuroComment of Brussels on May 19 2005

352 pages

?19.95, ?29.95 and $39.95

ISBN: 90-771100-89