Giscard’s bid to reconcile competing visions for a 21st-century constitution

Date: 31/10/02

The board of the Convention on Europe's future has unveiled the first outline of a European constitution. Dana Spinant examines the 'skeleton' document's content as well as its omissions

EUROPE this week had a taste of what its future may look like, when Valéry Giscard d'Estaing proposed a constitution which aims to reconcile federalist calls for stronger EU institutions with the intergovernmentalists' anxiety about preserving the power of member states.

Although generally welcomed by the Convention's 'big-hitters' as an equitable compromise and good starting point for the debate, the constitution outline fuels small countries' concerns about being devoured by their larger counterparts in a Union where state power is preserved.

The 'skeleton' constitution unveiled on Monday (28 October) clearly reflects Giscard's preferences with proposals such as setting up a 'Congress of Europe's peoples' and the right of a state to leave the Union.

Although it falls short of maintaining the equilibrium between small and large countries, Giscard's draft manages to preserve another essential - but fragile - balance: paving the way for a radical reform of the Union while still keeping government leaders on board.

The proof is that it sparked positive (or at least relieved) reactions from key Convention members, as well as from EU leaders themselves.

The outline envisages a 'presidency of the European Council', which most understand as meaning an EU president - wanted by large member states.

It also keeps foreign affairs and justice and domestic matters outside the grip of the Commission. These points were high on the intergovernmentalists' agenda.

In exchange, it would incorporate the charter of fundamental rights into the constitutional treaty, introduce dual EU-national citizenship and states that the EU would be fully financed from its 'own resources' with no national contributions. This would meet some of the federalists' demands.

Giscard proposes a constitution which merges two conflicting visions of Europe: 'A Union of European states which, while retaining their national identities, closely coordinate their policies at the European level, and administer certain common competencies on a federal basis.'

He adds fuel to the debate over a possible new name for the Union, suggesting a choice of four: European Community, European Union, United States of Europe and United Europe.

Giscard wanted to include a slogan for the Union: 'Freedom, justice and solidarity', but he was convinced by praesidium members that this was an issue for later. For some, it sounded too close to the French 'Liberté, égalité, fraternité'.

However, the draft leaves open crucial questions on power-sharing between EU institutions and ducks vital problems such as what happens if a country fails to ratify the treaty. Officially, this first treaty sketch makes no political choices, therefore questions that have not been discussed by the Convention's plenary, such as distribution of power, were not meant to be answered.

However, the outline does contain suggestions which are yet to be validated by the Convention, such as the proposals for a Congress and on the presidency of the European Council. Both are mentioned provisionally, 'pending debate'.

But Giscard has wisely not been too audacious at this stage, to avoid a deadlock. Adding further flesh to the debate on the presidency of the European Council would have deepened the rift between pros and cons and led to an impasse. Consequently, he didn't do it.

'It is not a debate about the fight for power in the European Union. Our debate is about the most efficient way for the Union to fulfil its missions,' Giscard said.

Similarly, he also side-stepped the vital question of ratification of the treaty.

The outline merely has a headline on 'ratification and entry into force,' but does not suggest what would happen if a country failed to ratify the constitution.

Nevertheless, the project proposes a controversial right of member states to withdraw from the Union.

The so-called 'secession clause' would establish a procedure for voluntary withdrawal by a member state and envisage the institutional consequences.

Although necessary, given that membership of the Union is a contract with no expiry date, such an exit clause would open a Pandora's Box.

The leader of conservative members in the Convention, MEP Elmar Brok, warned that if such a secession right was seen 'as an ongoing offer', it would be dangerously tempting for governments to use it as a blackmail in domestic debates.

The draft also introduces the possibility of a state being sanctioned if it violates the principles and values of the Union. Its EU membership rights would be suspended in such a case, but the procedure of certifying such a violation is still to be decided.

A crucial point stated in the outline is that the constitution would repeal previous treaties. For some, this might appear obvious as the Convention has already announced it would not limit its work to amending existing texts.

However, the decision to abrogate previous treaties cannot be taken for granted.

Some raise political and legal questions, saying it is a breach of national states' sovereignty if treaties which have been ratified by parliaments or approved by referenda in some countries are annulled.

Nevertheless, no Convention member contested during this week's debate the prospect of the future constitution becoming a 'super treaty' that replaces those of Rome, Maastricht, Amsterdam and Nice.

The positive reception for the constitution outline gives the Convention a green light for adding flesh to the 'skeleton' in the first months of 2003.

However, the big choices are still to be made. And as Jacques Delors, another famous Frenchman once said, 'the devil's in the detail'.

• Part one: covers constitutional matters - definition of the Union, objectives, fundamental rights, dual citizenship, EU powers, institutions, decision-making procedures, financing of the Union, representation on the world scene

Innovations: incorporating Charter of Fundamental Rights into treaty, dual citizenship, EU's legal personality, abrogation of pillars, Congress of Europe's peoples, secession clause

• Part two: deals with EU policies, such as free movementsof persons, services and goods, competition policy, agriculture, environment, common foreign and security policy

Innovations: introduces areas where the Union may take 'supporting action' in areas where power lies in principle with the member states

• Part three: final provisions such as repeal of previous treaties, territorial application, revision of the constitutional treaty, adoption, ratification and entry into force

Innovations: abrogation of previous treaties

The board of the Convention on Europe's future unveiled the first outline of a European constitution on 28 October 2002. Article examines the 'skeleton' document's content as well as its omissions.

http://european-convention.eu.int/docs/sessPlen/00369.en2.PDF http://european-convention.eu.int/docs/sessPlen/00369.en2.PDF

---