Sunday, June 24, 2007

A Step Forward for EU Treaty Constitutionalism

I recently suggested the difficulties and frustrations of EU constitutionalism, and its representation among European elites and its media. See Larry Catá Backer, Constitutional DoubleSpeak and the EU Constitution (June 15, 2007). I suggested that the German approach to EU constitutionalism--moderating the earlier German enthusiasm for the formal construction of a sort of sui generis constitutional state from out of the European Union--made lots of sense. Well, it seems the Germans have gone a long way to getting their way. The Western Press reported agreement among the 27 Member States of significant revisions to the EU Treaties in the form of amendments to the Treaties, rather than in the form of a new "constitutional treaty." Fatima Yilmaz, "EU Summit: Death of Constitution and Birth of “Reform Treaty” The Journal of Turkish Weekly Opinion (June 24, 2007). Prime Minister Jose Socrates of Portugal was quoted as suggesting that the inter-governmental conference "should start work on July 23 with the text approved at an October summit, he said. Socrates said two working groups of representatives of the 27 member states and the main EU bodies would be formed for the conference. The aim is to have the treaty ratified by all states ahead of the next European parliamentary elections in 2009." EU Summit Leaders Agree on Deal on New EU Treaty After Marathon Meeting, Forbes.com, June 23, 2007.

The process toward agreement included the usual drama--in this case the last minute Polish grab for greater representation at the EU level. Not that the Polish action had been unexpected--but the Polish Prime Minister chose a fairly eyebrow raising method of publicizing the issue--by suggesting that increased representation might be viewed as a form of reparations for all of the killing of its population during the Second World War. Not that the Poles had clean hands in the matter--Polish eagerness (opportunistic for none the less less real for the opportunity) to rid itself of its own Jewish population might have had to have been taken into account in "adding" the numbers. And, of course, Soviet complicity, should not be overlooked. But the tactlessness bore fruit in the form of a compromise brokered (against Germany) by the United Kingdom and and France (a combination that was itself interesting in a historical sense). EU Summit Leaders Agree on Deal on New EU Treaty After Marathon Meeting, Forbes.com, June 23, 2007.

The outlines of the treaty amendments generally follow the modifications that had been written into the proposed constitution but without many of the more controversial provisions and those articles deemed to bring about too close a union among the Member States.
It would allow more decisions to be taken by a majority, rather than unanimous, vote, removing the threat of national vetoes. The European Parliament and national assemblies would get more say over decision-making, strengthening the EU's democratic credentials. The EU's executive arm — the European Commission — would be trimmed from 27 to 17 seats. The post of EU president — with a maximum term of five years — will be created to replace the system of rotating national leaders into the job. And the role of EU foreign policy chief will be strengthened, to give Europe a bigger voice in the world.
Aoife White, EU Agrees on New Treaty, SFGate.com (Associated Press report), June 23, 2007. For a listing of the main points of agreement, see, "At a Glance: E.U. Treaty Proposal," BBC News, June 23, 2007. But the framework within which these changes will be made is now substantially different; most of the symbolism of constitution making has been either eliminated or downplayed, and reform vamped down to fit within the traditional framework of EU governance, rather than to serve as a self consciously transitory stage to the erection of a state apparatus in the traditional sense. For those who had counted on the passage of the constitutional treaty, this is a less than sugary pill: ""The constitutional treaty was an easily understandable treaty," Luxembourg's Prime Minister, Jean-Claude Juncker, said about the discarded charter. "This is a simplified treaty which is very complicated."" Molly Moore, EU's Future Sealed With Treaty, Claims Leaders, Brisbane Times, June 25, 2007

But there is still a sense, that comes through in some reports in the media and from media insiders (inside and outside of the EU) that appeared to emphasize the idea of the return to inter-governmentalism as a sort of defeat, as a second best option. Thus, for example, Ms. Yilmaz characterized the agreement as a failure of constitutional reform--as if constitutionalism was either inevitable or the only appropriate form of "progress" in the development of the EU and its institutions. "The failed European Constitution, as expected, became the main agenda topic of the EU Summit. Following the two-day discussions, the EU leaders announced the death of the planned single text called “Constitution” and their agreement on a new Treaty amending the existing treaties, called the “Reform Treaty”." Fatima Yilmaz, "EU Summit: Death of Constitution and Birth of “Reform Treaty” The Journal of Turkish Weekly Opinion (June 24, 2007). The U.K. papers tended toward hostility. Those leery of actions that would tend to further concentrate power in Brussels dismissed the change in approach as cosmetic, the changes as real, and perhaps dangerous for U.K. independence of action, and looked for ways in which popular opinion could be felt. See "Press Views: The New EU Treaty," BBC News, June 24, 2007.

Molly Moore, who writes on EU issues for the Washington Post Foreign Service, provided a good example of a typical analytical stance among: She echoed the sense of EU insiders that the defeat of the proposed EU constitution appeared to paralyze the European elites. The appearance of doing something--a mental state common to the European elite that had marked the rush to the draft constitution in 2004, appeared to mark the move to inter-governmentalism in 2007. See Larry Catá Backer, "On the First Anniversary fo the French Rejection of the European Constitution: Why the Proposed Constitution for the E.U. May be Better Left Dead, Law at the End of the Day, (April 4, 2006). The continued strongly felt need for the appearance of institutional movement was nicely captured by s. Moore, who quoted European Commission President, Jose Manuel Barroso's comment to "the German newspaper Bild am Sonntag. 'Uncertainty about our future treaty has cast a shadow of doubt over our ability to act. Now those doubts have been removed.'" Molly Moore, EU's Future Sealed With Treaty, Claims Leaders, Brisbane Times, June 25, 2007 (note the skepticism in the title of the story itself--though the same story, appearing on June 24, 2007 in the New York Times, was given the more neutral headline: "EU Agrees on New Treaty to Replace Constitution" (at A-16)). Ms. Moore emphasized that "[t]he failure of the countries to agree on a unifying structure underscored public perception of the body as an unwieldy, bureaucratic entity run by leaders far removed from the European people." Indeed, it was that sense of movement as a necessary component of E.U progress that seemed to dominate the public statements of the leaders. For example, Ms. Moore quotes the U.K. Prime Minister, Tony Blair, saying "after a deal was announced at 4.30am on Saturday [that] "The most important thing here is that the constitutional treaty was put to one side. This deal gives us a chance to move on." Molly Moore, EU's Future Sealed With Treaty, Claims Leaders, Brisbane Times, June 25, 2007.

One of the most interesting consequences from this turn to inter-governmentalism and incrementalism, is a new caution about popular democracy. The one thing that European elites appeared to have learned from the rejection of the proposed EU Constitution is that "the people" can't be trusted to do as they are told. So, in the name of greater democratic inclusion, etc., the leaders of the EU are urging caution about the use of popular referendum to approve this round of proposed treaty revision. "EU Boss Argues Against Referendum," BBC News, June 21, 2007. Apparently, within a certain strain of European thinking, the best kind of democratic mechanism, the highest form of democratic sovereignty, is parliamentary sovereignty. Thus, EC Commission President Jose Manuel Barroso urged the U.K. to avoid a popular referendum to approve contemplated treaty amendment. "He said it was up to the British people but he could not see why the country which exported democracy to the world would not respect its own Parliament. And he urged all EU leaders to resist "ugly nationalism" in talks later." "EU Boss Argues Against Referendum," BBC News, June 21, 2007. Thus, conflated are notions of fear of demagoguery, mistrust of expressions of popular will (except in national elections), and of a managerial approach to democratic governance that have been the hallmark of EU political thinking for a generation. Not that there is anything wrong with this. It is just a bit suspicious when the appeal to controlled or managerial democracy is made when the mechanics of direct democracy failed to deliver.

But I think Chancellor Merkel's public statements have the right of it, though a rightness that will be marginalized by an elite that is unhappy with the (re)turn from a state creating sort of constitutionalism to te more traditional inter-governmentalism of shared governance at the Member State leve (at least for fundamental issues): "She said she was happy leaders were able to keep key parts of the previous charter alive, despite the often deep and acrimonious divisions that tested the bloc's unity. "What this means for us is that we are moving out of stoppage," she said. "We managed to get all 27 states on board in the end." Aoife White, EU Agrees on New Treaty, SFGate.com (Associated Press report), June 23, 2007.


1 comment:

Emerald said...

I've been given the essay task:

The unlimited European constitutionalization of private law may lead to the uncontrolled expansion of EU competence, a further politicization of private law and disastrous consequences for legal certainty.

Discuss in the light of the four freedoms and the EU fundamental rights.

-Could somebody possibly point me in the right direction here? Are there any cases where the EU has undermined rights or the freedoms by constitutionalizing a private law for a questionable good?