Le traité constitutionnel et la question de la ratification : décryptage des conséquences, analyse d

Ce dixième numéro de la série des « European Policy Briefs » publiés par le Federal Trust se penche sur les derniers développements liés aux prochains référendums organisés en France et aux Pays-Bas, et propose une analyse des conséquences des différents résultats possibles lors de ces scrutins. 
Les auteurs de cette note étudient notamment les possibles répercussions d’un rejet du traité constitutionnel dans un ou plusieurs Etats membres ; ils identifient également les paradoxes liés au fait que cette « Constitution » par trop technique et fondamentalement « non-constitutionnelle » ait été soumise à l’épreuve référendaire dans de si nombreux pays.  

By examining different cases of ‘ratification trouble’ throughout history, the report formulates several theories from which predictions can be made: 

• political rather than economic questions appear to raise greater sensitivities in national political institutions and national electorates. In other words, these political questions raise fundamental issues about the legitimacy of the EU as an integration project, and the extent to which it is broadly accepted within the Member States. 

• the reasons why ratification fails will affect the consequences of nonratification, especially as regards to the reactions of both the partner Member States and of the European Council as a collective entity 

• the size of the Member State is a key factor (France and the UK are big; Ireland and Denmark are small, or at least would be regarded as small in the context of an EU of 12 or 15, even though the question of relative scale has been altered somewhat by the 2004 Enlargement). 

• the age (in EU terms) of the Member State also has a significant effect on the outcome (France was a member of the original founding club of six Member States; the UK Ireland and Denmark acceded in 1972). 

• An intervening general election and change of government, parliamentary rejection (or even threatened parliamentary rejection) is more final than popular/referendum rejection 

• steps taken pre-contractually – i.e. during negotiation – to avoid future ratification difficulties are clearly preferable to steps taken after a parliamentary or referendum defeat to placate national sensitivities. 

In the event of non-ratification, the brief suggests one of seven possible resulting scenarios: 

• A second (or even third…) attempt at ratification is made within the state(s) in question. 

• The Constitutional Treaty is dropped, and the current Treaties are retained for the foreseeable future. 

• Various steps are taken to introduce aspects of the Constitutional Treaty by measures short of Treaty amendment, and to take advantage of or develop further possibilities for flexibility within the framework of the Union. 

• An IGC is convened (with or without a Convention preceding it), and attempts are made to change the Constitutional Treaty to achieve a situation in which the Treaty would be more likely to be ratified at national level, or attempts to negotiate a wholly new Treaty. 

• A related possibility would be the convening of a restricted IGC to introduce amendments specifically to Article 48 TEU, in order to facilitate the actual entry into force of the Constitutional Treaty. 

• The non-ratifying Member State(s) voluntarily leave(s) the EU and the Constitutional Treaty enters into force between the remaining Member States.This could be facilitated if an IGC were convened for the purposes of introducing a withdrawal clause. 

• Those Member States which have ratified the Constitutional Treaty agree to enter into a new Treaty without the non-ratifying state(s). 

Ultimately, it is hoped that the final resolution of any ratification crisis will involve a measure of risk assessment, and that any political reaction will be informed by previous experience.