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Impact of France's No to EU Constitution

Muhammad Zamir
THE French, through their recent referendum on the draft EU Constitutional Treaty have demonstrated that they are more French than European. All of a sudden, the European dream has assumed difficult prospects.
President Chirac, speaking after the decisive and definitive 55 per cent 'Non' vote has remarked that it 'will be pretty difficult now to protect French interest in Europe'. This is probably an exaggeration but it has definitely been a shocking wake-up call. This referendum has also signalled that the French you want a Europe based more on social justice rather than just trade and market access.
The interesting aspect is that the French government failed in their efforts despite open support from Germany and its Chancellor. In fact, Germany became the ninth country to ratify the draft EU Constitution on 27 May two days ahead of France. Germany had followed Austria, Greece, Hungary, Italy, Lithuania, Slovakia, Slovenia and Spain.
A ranging political debate has now emerged in Europe about the ratification of the proposed Constitutional Treaty (CT). Sides have been taken by different political scientist about the practical consequences that might result, if the CT is rejected. It is now almost certain that Netherlands will also vote 'no' in their referendum.
Rejection of the Treaty by even one member of the EU makes things quite uncertain for some of the provisions within the EU related to the social dimension. It will also strengthen the determination of the majority of the centre-right and conservative EU governments and Eurosceptic countries to weaken its democratic and social content even further. They will now ask for a new round of negotiations. Questions will also be asked afresh about the European Union decision making process and the Union's democratic policy. Many will want clarifications as to how the EU will continue functioning under the provisions of the current Nice Treaty.
I have tried to analyse below the complex scenario that will come into
place and the factors that will impact on the EU mechanism. The analysis takes into account various aspects of EU governance.
The first element to be affected will be the principle of voting. The new simplified system of decision by double majority in the Council of Ministers will not enter into force. The Nice system, which is far more complicated, will continue to adopt decisions on the basis of more than 72% of votes, consistent with the principles of Qualified Majority Voting (QMV). The Constitution, on
grind to a complete halt.
Without ratification, the Charter of Rights will also not acquire binding legal value. It will not be enforceable when EU institutions or Member States applying EU law, breach the fundamental rights included in the Charter. As a consequence the foundations of a common European citizenship will be weakened.
It will also impair the competence of the European Court of Justice notably in areas under Justice and Home Affairs and in the guaranteeing of the rights and freedoms of
This will in turn affect transparency in decision-making within the Union. This is important because the Constitutional Treaty provides for national parliaments, the media and public opinion at large to be able to follow closely who votes for what, thus dramatically enhancing the accountability of Member States' representatives in the Council. If this is lost, the already worrying distance between EU institutions and European citizens will only become wider.
Another factor will be that national parliaments will not be involved in controlling subsidiarity -- i.e. having an
mean that the proposed European Union Foreign Ministry will also not be established. Considering the vital importance of the European Union speaking with one voice and having an effective influence in world affairs, the loss of the proposed Foreign Minister and the proposed European External Action Service (EEAS) would also send a wrong signal to the rest of the world.
It may be recalled that the Constitution foresees a 'double-hatted' EU Foreign Minister, who will chair the CFSP Council, be a Vice-President
the other hand would lower the threshold to 55 per cent of the Members States, representing 65 per cent of the population. In the absence of the Constitution, it will as a consequence, be more difficult for the Union to adopt much-needed policies, to change outdated legislation, to define common standards for health, consumer or environmental issues or to effectively address the new challenges it is faced with, including in important areas such as immigration, asylum and the fight against crime.
Similarly, the scope for majority voting in the Council will not expand, most notably in crucial areas such as police and criminal justice cooperation and will also be limited by the potentially important range of Common Foreign and Security Policy (CFSP) decisions. Without the CT, for instance, it will become that much more difficult for the Union to agree on a common border protection policy.
The so-called passerelles clauses will also not be introduced. These provisions foresee that the Council can decide to apply codecision or QMV where other procedures and unanimity currently apply. Without these provisions it would not be possible to expedite future amendments to the treaty without the present onerous requirement of unanimous ratification in all 25 (and in future even more) Member States.
While these three changes might seem technical, they are still of crucial relevance because they have a direct impact on what the Union can actually do to better serve its citizens. Without the reforms contained in the CT for the better governance of the European Union there is a serious risk that Union decision making might eventually
citizens. These improvements would be forfeited should be Constitution not be approved.
The European Parliament will also not expand its powers as equal co-legislator with the Council of Ministers in important areas of direct concern to the ordinary European citizen. This will include police cooperation and criminal justice cooperation and the whole EU budget (including so-called 'mandatory expenditures, i.e. in practice the agricultural budget).
This will not only work against the strengthening of the European Parliament but will also weaken the ability of citizens to exert full democratic control on action taken by executive power at the EU level.
important influence in ensuring that only appropriate decisions are taken at the European, as opposed to the Member State, level.
The Constitution, it needs to be remembered, establishes a procedure whereby a third of all national parliaments may ask the Commission to revise a draft they consider in breach of the subsidiarity principle. This procedure has been brought in to ensure that all draft pieces of EU legislation are really examined closely by national parliaments thus enabling them to exert more effective control on the position their government will take in the Council of Ministers.
Not ratifying the Constitution will
of the Commission, represent the Union abroad and head the EEAS (in effect, the core structure of a future European Foreign Ministry). Without the Constitution, a powerful tool for strengthening the Union's foreign policy would be lost. At a time of serious global challenges, a missing Constitution will mean risks and a negative impact far beyond the borders of the EU.
Inability to ratify the Constitution will also mean that structured cooperation in security and defence policy will not be set up within the Treaty framework. This will also apply to the European Armaments Agency. This loss might well lead to closer security and defence cooper-
ation outside the treaties -- but without serious checks and balances -- with serious divisive effects within the Union.
The goal of enhanced economic governance would also be pushed further away, with potentially serious repercussions for the cohesion and strength of the single currency area arising out of a bewildering array of decision-making instruments that would impact on simplification, transparency and efficiency.
Another significant loss will be the distribution of competences -- or decision-making authority. Unfortunately, this will not be clarified. The Constitution establishes, for the first time ever, a classification of competences. Exclusive competences of the Union competences shared with the Member States and areas in which the Union can act to support the action of Member States are listed in a clear and comprehensive fashion. Confusion over who will be responsible for what decision might eventually contribute significantly to a loss of popular support for the Union.
Another area that needs to be mentioned is that without a permanent Constitution, the Union will not acquire a single legal personality. Consequently, its ability to sign international treaties would be questionable. This would further weaken the international standing of the Union.
The absence of a Constitution will also mean that there will be no permanent Chairman of the European Council. Establishing this office is vital for ushering in visibility and continuity in the Council machinery. Without the Constitution, the current rotation system for the Presidency will be retained and European priorities will continue to reflect national concerns and shift every six months. This most Member States agree, is an anachronism.
There is no denying that the Constitution remains a highly complex body of legal texts. However, it is also clear that the European Union urgently needs the modernisation and reform of its decisionmaking structures and processes. This can only be achieved by unifying all previous treaties into a single text and rationalising the result of decades of integration treaties. It will make the Union more understandable and practicable for its citizens and its external partners.
Muhammad Zamir, a former Secretary and Ambassador, was also Permanent Representative to the EU -- any response to mzamir@dhaka.net