It must then have provided the editorial staff at the BBC some satisfaction to retell a story that scores against both: E.U. Treaty Same as Constitution, BBC News Online, Oct. 30, 2007, which it harvested from a story published earlier in the Independent. Ben Russell, EU Treaty is a Constitution Says Giscard d'Estaing, The Independent, Oct. 30, 2007. Both of these "reports" purported to describe comments published by Valery Giscard d'Estaing in the Independent, Valery Giscard d'Estaing, Commentary: The EU Treaty is te Same as the Constitution, The Independent, Oct. 30, 2007 on the proposed Treaty of Lisbon which is meant to substitute for the failed Constitutional Treaty.
Giscard d'Estaing argues that the terms of the proposed Treaty of Lisbon is substantially the same as those of the failed Constitutional Treaty rejected by French and Dutch voters a few years ago. "In terms of content, the proposed institutional reforms – the only ones which mattered to the drafting Convention – are all to be found in the Treaty of Lisbon." Valery Giscard d'Estaing, Commentary. But, he argues, the differences in approach between the two projects will have substantial effect. "The draft constitution resulted from a political desire to simplify European institutions, rendered inefficient by recent expansions." Valery Giscard d'Estaing, Commentary.
For the Treaty of Lisbon the process has been very different. It was the legal experts for the European Council who were charged with drafting the new text. They have not made any new suggestions. They have taken the original draft constitution, blown it apart into separate elements, and have then attached them, one by one, to existing treaties. The Treaty of Lisbon is thus a catalogue of amendments. It is unpenetrable for the public. Id.
Firstly, the noun "constitution" and the adjective "constitutional" have been banished from the text, as though they describe something inadmissible. At the same time, all mention of the symbols of the EU have been suppressed, including the flag (which already flies everywhere), and the European anthem (Beethoven's Ode to Joy). However ridiculous they seem, these decisions are significant. They are intended to chase away any suggestion that Europe may one day have a formal political status. They sound a significant retreat from European political ambition. Id.
Thus the two principle objectives of the Treaty of Lisbon: First, the provisions as recast in the Treaty of Lisbon will have the same effect but without running the risk of referendums. Second, the process of evolution has been recaptured by the E.U. bureaucratic classes in Brussels and can be deployed for their benefit. Thus, Giscard d'Estaing argues, "the proposals in the original constitutional treaty are practically unchanged. They have simply been dispersed through old treaties in the form of amendments. Why this subtle change? Above all, to head off any threat of referendum by avoiding any form of constitutional vocabulary." Id. Yet, Giscard d'Estaing find something hopeful in the ultimate product.
But lift the lid and look in the toolbox: all the same innovative and effective tools are there, just as they were carefully crafted by the European Convention: a stable Presidency; a streamlined Commission; a Parliament with genuine legislative rights; a Foreign Minister, even if he has been given another inadequate title; decisions taken by a double majority of governments and citizens; and the most advanced charter of fundamental rights in the world. Id.
Thus, though the bureaucrats have taken back the process, they have left intact the framework through which the process of political integration can proceed. Well buried in a complex document beyond the understanding of non specialists, is thus the possibility of progress. "When men and women with sweeping ambitions for Europe decide to make use of this treaty, they will be able to rekindle from the ashes of today the flame of a United Europe." Valery Giscard d'Estaing, Commentary.
The stories in the English press purporting to report on both the French progenitor of the failed European Constitution, Valery Giscard d'Estaing, and on the flaws in the current efforts to "reform" the institutions and governance systems of the European Union through the proposed Treaty of Lisbon, tended to miss the larger picture for their concentration on stoking th eflames of political troublemaking at home. Both stories highlighted Giscard d'Estaing's delightfully cynical tone. But the commentary veered in two different directions, neither of which might have much to do with the substance of the commentary on which each insisted was being reported. The BBC story focused on that portion of Giscard d'Estaing's commentary in dealing with concessions to the U.K., the opposition's assertions that a referendum was needed for approval in Britain, and on the impenetrability of the new provisions. E.U. Treaty Same as Constitution, Still, the story is itself a study in the impenetrable--thus consider the discussion of impenetrability of the Treaty of Lisbon:
“The authors of the new treaty, [d’Estaing] says, have taken the original draft constitution and "blown it apart into separate elements". They have then "re-attached them, one by one, to existing treaties". . . . The document aims to streamline decision-making within an enlarged EU of 27 member nations.”
But Denis MacShane, the former minister for Europe, said yesterday: "M. Giscard d'Estaing is regarded in France as yesterday's man but the obsessive anti-Europeans in the Tory Party will seize on anything to promote their cause.
Elderly politicians in retirement can dream their dreams but this treaty gives Britain everything it wanted." Earlier this month, Mr Brown faced a rebuff from the Labour-dominated Commons European Scrutiny Committee, which said that the new treaty was "substantially equivalent" to the old constitution for many countries and warned that Britain may not be able to maintain its "red lines" over important policy areas. Ben Russell, EU Treaty is a Constitution.
Yet for all that, Giscard d'Estaing's cynicism is perhaps well excused. Here was the man who was at the center of the European constitutional project, who as president of the Convention on the Future of Europe, which drafted a new constitution, 2002-03 directed legions of Europe's best and brightest, in the construction of the next stage in the development of the institutions of the European Union in their march toward nationality. And all thwarted by the the common people, including in a twist that must have been particularly hard to take, the voters in his own home state--France. Ah, the rejection. . .and worse, the indifference. . . . .
Yet for all this, Giscard d'Estaing makes a valuable point, and one worth considerable thought: "The Treaty of Lisbon is thus a catalogue of amendments. It is unpenetrable for the public." Valery Giscard d'Estaing, Commentary. While the politicians produced the failed Constitutional Treaty, the lawyers have produced the Treaty of Lisbon. Giscard d'Estaing asserts that the former was an effort at if not a model of clarity and simplification. That, I think, is disingenuous at best. The Constitutional Treaty was well organized, I suppose, but its provisions were dense and complex. Its workings befuddled most and it was not clear how the entire draft would eventually hang together. On the other hand he has a point about the Treaty of Lisbon. Like its predecessor it will suffer from an abundance of complexity. It is founded on the hope that the provisions will hold together well enough to permit the institution of the European Union, the critical E.U. stakeholders and the European Court of Justice to sort things out. A few constitutional crises down the road, it is hoped, everything will be clear.
But what is clear, is that that pattern set by the Treaties of Nice and Amsterdam is been deepened. This is an instrument for lawyers and bureaucrats. Written by and for them, the document is increasingly remote from even well educated non specialists, including lawyers. Giscard d'Estaing hints at the loss of democratic legitimacy in the process of governance evolution within the European Union. He is right on that score. Not that the failed Constitutional Treaty was much of an improvement on that score from the proposed Treaty of Lisbon. The more obtuse the document constituting the government of Europe, the more necessary a class of privileged lawyers and bureaucrats to administer it. The more difficult the process of becoming proficient in the mechanics of E.U, governance, the more possible it may be to hide arbitrary or unlawful conduct, and the more likely that large portions of the population will be effectively marginalized from the process of participation in formulating law and policy. Indeed, this is a general problem of advanced republican states. The rise of representative politics--a politics of non-governmental organizations and interests groups serving as proxies for individual political activity already characterizes many advanced democracies. But within the E.U. the transactions costs of participation become high enough to cause great concern. At its limit, this problem may affect the rule of law basis of the organization of the European Union itself.
Constitutions tend to be change inhibiting documents. And they tend to shift power to change constitutional foundations from the political (intergovernmental process and treaty revision) to the judicial (treaty interpretations and applications). It is not clear to me that power at the European level ought to shift that far toward the judicial and away from the political branches. See Backer, Larry Cata, "Restraining Powerfrom Below: The European's Constitution Text and the Effectiveness of Protectionof Member State Power within the EU Framework" (July 2004). Federal TrustConstitutional Online Paper No. 14/04. While such a shift might bring a greater degree of stability (to the extent the political institutions are willing to follow through on judicial determinations), it will threaten the sort of slow moving comitology that has served the EU well enough this past half century. Efficiency in foundational norm making, in this case, may not be worth the price of powewr shifting at the Community level. Larry Cata Backer, Constitutional Doublespeak and the EU Constittution, Law at the End of the Day, June 15, 2007.