Was könnte von der Europäischen Verfassung gerettet werden, falls ihre Ratifizierung fehlschlägt? -

Obgleich es ursprünglich so aussah, als würden die Referenden nur in denjenigen Ländern problematisch werden, die für eine gewisse Euroskepsis bekannt sind, haben sich nun Frankreich und die Niederlande als Problemländer entpuppt. Sollten andere Mitgliedstaaten neben Frankreich und den Niederlanden den Vertragstext ablehnen, würde es extrem schwierig werden, die Verfassung in vollem Umfang zu ‚retten‘. Dies schreibt Sebastian Kurpas in seinem Policy Brief für das Centre for European Policy Studies.

During the last several weeks, there has been much talk about a ‘plan B’, which some governments or even EU officials are said to have already prepared in case ratification of the Constitutional Treaty fails. But while alternative scenarios are likely to be discussed behind the scenes, it surely is an exaggeration that anyone already has ‘the’ plan B, which only needs to be pulled out ready-made from a secret drawer.

After a possible French rejection, ratification in other countries would likely continue at the very least until the European Council meeting in June 2005. Political leaders will use this period to ‘dedramatise’ the situation in the public debate and it would then depend on the summit as to which road is taken. 

The position of the French government would of course be of central importance for political impetusbut legally no member state could be forced to stop ratification, because unanimous agreement by the heads of state would be needed to stop the process altogether. 

If leaders should, however, decide that a continuation of the process does not make sense and the Constitution as it stands has to be considered ‘dead’, alternative scenarios would not provide an easy way out. 

A substantive renegotiation of the Constitution has to be considered as unrealistic. Anyone who has followed the complex process of consensus-building in the Convention and the two intergovernmental conferences knows that the present text constitutes a finely-balanced compromise, where one change would necessitate many subsequent others. Furthermore, a French ‘no’ would stem from very diverse reasons, which may not even allow a clear conclusion to be drawn in order to negotiate changes. And if the Dutch should also vote ‘no’, it could be motivated by yet entirely different reasons. 

A second scenario, whereby a second referendum, possibly with a protocol to the present Constitution stating (for example) that the Council would take into account to a high degree the social dimension of any law that it decides upon appears to be equally unrealistic. Such a statement, tailormade to appeal to the French public, would diminish the chances for approval in other countries. This would notably be the case in the UK, were ratification will be extremely problematic and where many already perceive the Constitution in its present form as a ‘Franco-German stitchup’ that will impose red-tape on the British economy. Besides this dilemma, it is of course also highly questionable as to whether the French would actually change their minds owing to such an addendum. 

The most likely scenario is thus unfortunately the one of a ‘Treaty-of-Nice-Plus’. Accordingly, the existing rules established by the Treaty of Nice will of course continue to apply, and the heads of state would then try to save from the Constitution whatever they can agree among themselves in order to get these elements ratified through the respective national procedures. 

The first victims of such an approach are of course the added value of the Constitution in terms of legal coherence and the strong political statement for an EU that renews its determination to be more than just an economic union. The Constitution is more than the sum of its parts and the political and legal advantages of this ‘extra’ would be irretrievably lost if political leaders settle for this solution.

Nevertheless, even a ‘plan B’ based on such a ‘pick-andchoose’ approach would face important legal and political hurdles. This paper gives a brief overview of important elements in the Constitution and their prospects of being saved from a ‘dead’ constitutional text. These elements are ranked by their desirability for a well-functioning EU-25, while their likelihood of adoption is assessed according to the possible legal and political obstacles.