Issues, Ideas and Insights by Atul Singh

Reviving the dead: Merkel and the EU Constitution

On the 25th of March 2007, the EU celebrated its 50th birthday in Berlin. The German Chancellor, Angela Merkel, used the occasion to push for an EU constitution and declared that Europe’s leaders risked making an “historic error” if they were unable to sort out their constitutional wrangling. Rescuing the constitution has become the focus of the German six-month presidency of the EU and Merkel has set an aggressive timetable to achieve this goal. She wants a “short and concentrated” intergovernmental conference to agree to a new treaty by the end of this year and the ratification process to be over by spring 2009.

The EU constitution began with high hopes. In 2001, EU’s national leaders vowed to make the EU “more democratic, more transparent, more efficient” by creating a constitution. Prolonged wrangling followed and it was only in June 2004 that the constitution was finally created.

The current constitution consolidates all European treaties into a single document and for the first time proclaims the primacy of EU law over national law, a principle which so far has been established only by the jurisprudence of the European Court of Justice. It creates new jobs like the President of the European Council and a foreign minister, and gives the EU formal legal personality for the first time, enabling it to sign international treaties. At the same time it retains national vetoes and adopts a new double-majority voting system that shall enable laws to be passed if 55% of countries representing 65% of the EU’s population approve. Finally, the constitution can only come into force once it has been approved by each of the 27 member states.

Proponents of the constitution argue that an expanding EU simply cannot work unless it comes into force. On its 50th birthday, the EU is a 27 member club which might expand further and its institutions as well as its rules are under severe strain. The EU, therefore, has become more clumsy and bureaucratic. The constitution is the way it will become both more workable and more democratic. Furthermore, as Merkel has declared, the constitution would give Europe a higher profile on the world stage.

Opponents of the constitution see it as another example of “Eurocreep”, the process through which more and more control is ceded to the bureaucrats in Brussels. They fear that the EU is acquiring the trappings of a superstate and feel there are other ways to reform the EU.

20 of the member countries have ratified the current constitution while the other 7 have rejected it. Since Germany took over the presidency of the EU Merkel has been trying to restart the constitutional process. Earlier this year, on the 26th of January, the countries that have approved the constitution gathered in Madrid to breathe new life into the dead document. Having ratified the constitution, they talked up its virtues and stated that they wanted the document to be more ambitious, giving the EU a bigger role in social policy, fighting climate change and immigration. This alienated at least 5 of the remaining 7 countries, judging from the fact that Britain, Sweden and Denmark sent only junior diplomats to monitor the Madrid meeting while France and the Netherlands sent none at all. Even the Berlin Declaration to commemorate EU’s 50th anniversary proved to be a highly contentious affair. The declaration is supposed to be a document reaffirming EU’s values and outlining future goals. However, this fairly innocuous and bland document provoked disputes. Vaclav Klaus, the Czech President, criticized the “untransparent” way in which the declaration had been drafted. Such was the extent of the disputes that , the 27 heads of government were not even asked to sign the declaration to avoid the risk of embarrassing refusals.

Merkel’s attempt to revive the constitution is deeply flawed. The raison d’etre for a constitution was to remove the democratic deficit of the EU. However, the constitution has not caught the fancy of many nations. The French and the Dutch have already rejected it in referendums in 2005. The constitution evokes strong feelings in the UK and Tony Blair was forced to accept the idea of calling a referendum on the issue. It was only the No votes by the Dutch and the French that saved him from an unpleasant and unwinnable referendum. Meanwhile, Vaclav Klaus has declared the current constitution to be “not usable and acceptable” and a new one as not a priority, a view shared by his Polish counterpart who has already dismissed Merkel’s timetable as unrealistic. Merkel’s ambitious timetable will impose early political tests for a new British prime minister and a new French president; both countries will have new leaders later this year who will have to convince a deeply eurosceptic public.

Merkel’ unstated plan is to trim the constitution, make it appear less ambitious and allow the leaders of the remaining 7 member countries to sidestep public opinion and ratify the document with parliamentary votes. The plan makes three grand assumptions. Firstly, that Nicolas Sarkozy would win the French Presidential election. His rival, Segolene Royal, has promised a referendum on the constitution and demanded a social protocol focusing more on workers’ rights and less on economic liberalization. On the other hand, he is in favour of a slimmed down document which would be approved by the parliament. The second assumption is that Gordon Brown would succeed Blair and, as he is averse to a referendum, the constitution would be approved by the British parliament. The final assumption is that once these two heavyweights approve, other countries like the increasingly euro-sceptic Dutch, the idiosyncratic Poles and the cavalier Czechs will follow.

Not only are Merkel’s assumptions flawed and unrealistic, her project to revive the constitution is unacceptable in principle. Europe’s elite has so far built the EU without consulting its people and, so far, the people have pulled along. However, something like a constitution is by its very nature an expression of the people’s will. In modern democracies, people deserve the right to say inconvenient Nos to their political bosses, even on the issues dear to the bosses’ hearts. The French and the British have the right to vote on the constitution while the others have a right not to be cowed down into accepting a document they dislike.

Finally, there is a possibility that European voters might not take kindly a constitution imposed upon them by their political leaders. In a recent opinion poll reported in the Financial Times, the majority in many European countries had an unfavourable view of the EU. Imposing a constitution will not add to EU’s popularity and, lest Merkel forget, the constitution for the first time creates the right for countries to leave the EU.