A ‘Plan B’ for the European Constitution: ‘Looking the Other Way’

A ‘Plan B’ for the European Constitution: ‘Looking the Other Way’

Theme: The failed European Council of 16-17 June has given rise to a serious crisis in the heart of the European Union.

Summary: On 16-17 June, political leaders at the European Council had to come up with a way to deal with the difficult situation created by the double No to the European Constitution delivered by France and Holland. However, both the lack of a unanimous response to the constitutional crisis and the inability to unblock the 2007-2013 budget negotiations have taken the European integration project to a very serious crisis. This analysis focuses on three main aspects of the crisis: first, the decision on whether to suspend or continue the ratification process; secondly, the lack of leadership; and, third, the possible integration scenarios arising from the current crisis. In light of the recent decisions made by Europe’s political leaders, we can be sure they are absolutely sincere about one thing at least: there has never really been any ‘Plan B’ other than simply looking the other way for a while.

AnalysisSuspend or Continue the Ratification Process?
This was the main question on the minds of Europe’s leaders. From the democratic and regulatory perspective, the best thing is for all European citizens to have the chance to express their opinions. As we know, the emergence of a European public sphere –so often emphasised as an essential part of creating a true European democracy– would benefit greatly from this kind of broad debate on the significance and meaning of Europe. To argue that the French No irreparably contaminated the process is not very appropriate from a democratic point of view: Yes supporters have always taken for granted that referendums should be strategically planned so that the countries most likely to vote Yes are the first to vote, thereby exerting a pull effect on the others. The ‘contamination’ argument is therefore rather weak.

From a practical point of view, it would also be important to determine how many countries are satisfied with the Constitution as it stands: suspending the process would leave us in a state of uncertainty and would make it more difficult to correctly determine the reasons for the crisis and, therefore, possible ways to emerge from it. Furthermore, now that we know that there is a gap between the political class and the citizens and that parliaments are not adequately representing the will of citizens on this issue, one of the most reasonable options from a democratic perspective would be to suspend the parliamentary ratification process and replace it with referendums in all the countries, even where there is no constitutional requirement to do so. Even in countries whose parliaments have already ratified the Constitution, a referendum and its accompanying public debate would let us know the real opinion of the country and enable us to gauge the extent of the gap between the public and the politicians.

At the same time, we cannot dismiss those who find many arguments in favour of ending the ratification process. From a legal perspective, the unanimity requirement highlights the depth of the crisis: although it may seem very anti-democratic, the fact is that no one objected to unanimous ratification on the grounds that this would undermine the democratic validity of the Constitution; rather, unanimity was seen as a guarantee of its legitimacy. This meant that a single No would not only have legal implications, but political ones as well. Any decision other than to suspend the ratification process –particularly any attempt to implement a ‘Plan B’ that would be popularly viewed as a back-door delivery (in whole or in part) of a constitution that citizens had already thrown out of the front door– would widen the gap between the political class and the citizens. Also, with voters having smelt the blood of the political class (always so distant and incomprehensible in its European doings), many European leaders fear that holding a referendum would amount to a form of political suicide.

By contrast, given the great political price that leaders would have to pay personally, to suspend the ratification process definitively and declare the Constitution dead and buried could be seen as a kind of new-found harmony with citizens, tantamount to saying: ‘we realise we have made a mistake, we get the message and we are prepared to correct it’. Such an initiative (definitively suspending the ratification process), followed by a new, broad-based process of debate and reflection in the member states and in European institutions, could do more for the European construction process than any kind of technocratic constitutional engineering done on the sly.

Certainly, for supporters of the most federalist options, this would be ideal, because it would clear the way for a true constitution and probably for political union. However, for those who favour a more pragmatic approach, this option would mean not only failing to acknowledge the mistake that has been made (creating a ‘more institutional Europe’ instead of solving people’s real problems: crime, unemployment, social services, etc.), but actually exacerbating it by repeating the same mistake in an explicitly constitutional context that the citizens have already rejected.

Clearly, there are numerous pros and cons both in continuing the process and in definitively suspending it. Mid-way between the two, Europe’s leaders have chosen a much more practical option: to neither continue the process nor suspend it for good, but rather to suspend it temporarily but indefinitely. This means doing nothing or, alternatively, allowing everyone to do whatever he wants. In a sense, this ‘pause for reflection’ is very commendable. However, for lack of instruments or mechanisms to organise it, it merely becomes an exercise in buying time for leaders whose credit is running low.

A Union Without Leaders
There are structural factors involved in the current crisis that it would be unwise to ignore. However, lack of leadership (or inadequate leadership) is not only an important cause of the crisis: it is at the same time one of the main stumbling blocks on the road to solving it. Neither in the weeks preceding the European Council nor in the days immediately following it did anyone speak up and take risks, propose ideas or take the lead in handling the crisis.

Of all Europe’s institutions, only the Presidency of the Council, in the hands of Luxemburg’s Jean-Claude Juncker, has stood out. Despite good civic and institutional intentions, the president of the Commission, José Manuel Durão Barroso, and the president of the Parliament, Josep Borrell, were not very firmly backed by the Council. After the latter two spent several days requesting a coordinated response and the continuation of the ratification process, Europe’s leaders have done the exact opposite: they have suspended the ratification process and given all member states absolute freedom to do whatever they want. Although Juncker’s failure to include the UK and Holland in the final agreement on the European budget has negated the value of his contribution, he can at least be credited with being true to his convictions, having decided to maintain the ratification schedule in his own country and to bet his own job on a Yes in the 10 July referendum there.

Quite the opposite can be said of the French president, Jacques Chirac, and the Dutch prime minister, Jan Peter Balkenende, who have proved to be masters of the art of distancing their political careers from the peoples’ No to a treaty that both negotiated and signed on behalf of their citizens. Both from an exclusively national perspective, as well as a European one, their lack of response to the results of the referendums in their countries is incomprehensible since they are certainly the ones who should take the greatest responsibility for what has happened. Earlier, both the Danish and the Irish governments had gone to the European Council humbly and even somewhat embarrassed after their countries voted No to Maastricht and Nice. But both went straight to work in the best spirit of European compromise, trying to manage the crisis both internally (with their citizens) and externally (with European institutions). Today, by contrast, it seems that being a founding member confers special privileges and both Chirac and Balkenende have passed the buck on to their partners, as if the crisis was not their own concern. Any ‘Plan B’ that simply amounts to ‘waiting until 2007’ certainly leaves much to be desired intellectually and politically.

As for Tony Blair, it is clear that his decision to scuttle the European Council had been made hastily the week before. This has not been properly explained or justified and raises numerous questions regarding the conditions needed for success. Certainly, the volume of European agricultural spending is questionable and his concern for research and development spending is commendable. However, what the Council was negotiating that Friday night was the size of the British rebate, not the Union’s spending priorities, which had been the subject of debate for over a year. Agricultural spending is, therefore, the excuse that Blair has used to take advantage of the position of strength granted to him by the internal weakness of Chirac and Schröder, thus provoking the great crisis that will supposedly lead to a renewed European Union. It remains to be seen, however, whether Blair’s leadership will be constructive or destructive. Much depends on internal political developments in France and Germany, so that, in fact, the success of Blair’s endeavour is not in his own hands. In the final instance, as we know, European construction is impossible if it is undertaken against France and Germany or without them.

The situation of the Spanish government merits special mention. Its grand foreign policy shift, including the unblocking of the Constitution and the return to the Franco-German ‘European core’ has been left hanging. Its intention to lead the ratification process by holding the first constitutional referendum has come to nothing. Neither has the building of a solid position among the big countries, by means of incremental concessions on the major issues (unblocking the European Constitution in exchange for the double majority and concessions on the reform of the Stability Pact), allowed the Spanish government to establish itself in a position of moral authority in the ratification process, nor to obtain practical benefits in the budget negotiations. Spain was entirely justified in its indecision regarding whether to accept or reject the package offered by the presidency of the European Council. For six months, the Spanish team had built its negotiating position around a very simple argument: the desire of the net contributors to lower the spending level to 1% would mean that Spain would end up almost single-handedly financing enlargement to the east and that Spain’s balance with the European Union would drop from €48 billion to €5 billion. However, this is exactly what Spain was offered at the last minute (in fact, the Presidency stopped short even of €5 billion, offering €4.7 billion).

More Europe or Less Europe?
We are facing a major crisis that will hardly respond to small measures. In principle, the European Constitution was the Union’s grand attempt at founding itself anew. However, in the opinion of many, including those who negotiated the wording of the document, it amounted to more of a juridical re-hash than a truly new constitution. The European Constitution rationalised what was already in existence and offered a number of improvements but, unlike Maastricht, it was certainly not a revolutionary document. In fact, paradoxical as it may seem, the Maastricht Treaty brought a supranational constitution, but not political union. For this reason, the best thing about the constitutional text was simply the fact that it existed.

Now that the great virtue of the text –the unanimity of the 25 member states– has been demolished from the ground up by citizens as irritated with their own governments as with Europe itself, the time has come to decide what we want to do: another Constitution consisting of a mishmash of principles, existing treaties and practical policies? A temporary arrangement to get out of a tight spot with pragmatic policies? Or a true political union?

The question underlying the solution to the crisis is whether certain governments, including those of France and the Netherlands among others, believe that the strategy for regaining the legitimacy of the European Union necessarily means that the Union will have to settle for accomplishing less: a smaller budget, a smaller internal market, less immigration, more modest ambitions, less liberalisation and even, some would say, less monetary union. To date, European integration has functioned like the stages of a rocket: the common coal and steel market, the customs union, the internal market and the economic and monetary union, have all been phases on the path to political union. This demonstrates the extreme over-simplification involved in any suggestion that a European market and European politics are opposing forces. Without an internal market, there can be no political union: the former is a prerequisite for the latter.

Rather, the problem is that the political union rocket does not seem to have been able to lift the weight of ten new members or bear the prospect of having to also take on South-Eastern Europe, Turkey and even the Ukraine. The founders, especially France, seem to be possessed by a fear of the future. Enlargement, along with the euro, is the most revolutionary event in the Union since its foundation. The Union has been the guiding light for one of the bravest, most successful and impressive political, economic, social and security transformations in contemporary history. Ten years of Community acquis have done more to modernise central and eastern Europe than the previous hundred years. This is a practical and moral achievement, a success story that must be told, applauded and defended before the citizens of Europe.

This enlargement obliges us to take a federalist stance –but a practical, not an ideological one–. In Europe, for many years we have been victims of false dilemmas and clichés: the struggle between proponents of enlarging the Union and those in favour of strengthening it; between supporters of Europe as a market and Europe as a world power; between the Anglo-American social model and the European model; between intergovernmentalists and federalists. All these debates are over-simplistic. Federalism is not only an ideology; it is a problem-solving technique for government that is perfectly applicable –in an adapted form– to the European context. Hamilton, Madison and Jay conceived of federalism not as an abstract thing of juridical beauty, but as a response to the dangers of the tyranny of the majority, factionalism and the problems involved in sustaining a common market.

In Europe something similar has happened: by striving for ever-higher levels of cooperation on foreign policy and security issues, and also on the Space of Freedom, Security and Justice, the environment, and economic and employment policy, we have turned the reviled practice of ‘intergovernmentalism’ (based on the so-called ‘open coordination method’) into something that could well be described as ‘functional federalism’. When a eurosceptic leader such as Margaret Thatcher accepted the qualified majority as the basic working mechanism for the internal market, this was the most federal decision ever made by a British government: it improved conditions in the UK, since unanimity led to a status quo in the internal market (but did not satisfy Britain’s liberalising tendencies) and, at the same time, it improved Europe’s capacity to achieve its own goals.

Today as well, regardless of whether the long-term solution to this crisis is through a ‘Plan B’ that involves giving new legitimacy to the Treaty of Nice and expanding it by adding certain parts of the European Constitution, and even establishing enhanced cooperation with those who so desire, or whether, on the contrary, the 25 decide to give themselves some time for broad political reflection at the national and European level aimed at promoting alternatives for democratic supranational construction, the important thing is for European leaders to continue providing practical answers to citizen demands on employment, economic growth, security and immigration.

At the same time, all this requires and implies a Europe with a strong presence in the world, capable of dialoguing with China, the US and Iran, and able to defend its guiding values and principles. Europe can and therefore must spend some time reflecting, but it must not turn inward and renounce its position as a world power. Through such power, globalisation could be turned to the advantage of all Europeans, regardless of whether the dominant coalitions in Europe favour social democracy or economic liberalism. Otherwise, we will have to make do indefinitely with a Union that is politically incapacitated both internally and externally. We even risk taking a great leap backward –an unlikely but no longer impossible scenario–.

Conclusion: To overcome this crisis we must not only overcome the false distinction between intergovernmentalism and federalism, but also the false opposition between France and the UK and their economic and social models. Spain, as a country that combines elements of both models –with a dynamic economy, high levels of social welfare and a global position in the world– has the obligation to try to lead the European project at three levels: first, functional federalism –that is, incremental progress towards political union–; secondly, the consolidation and strengthening of the EU’s position in the world; and third, striving to combine social concerns with global liberalisation and economic efficiency. This is a difficult task that cannot be taken on alone, but this is a good time to get to work on it. This is our opportunity and our country has the will and the means: Spain is going through a period of sustained growth, public opinion and the political class both continue to be solidly pro-European and the country has ratified the Constitution by a large majority (although participation was low). All this, combined with its twenty years of negotiating experience and the historical path the country has followed, makes Spain perfectly capable of acting as the bridge between the founding members (who are now worrying about the future), the new members (dynamic and hopeful) and the most sceptical members (the UK and the Scandinavian countries).

José I. Torreblanca
Senior Analyst, Europe, Elcano Royal Institute

Jaime Pastor Verdú

Written by Jaime Pastor Verdú