The next "constituitonal" treaty - what the people should decide

Kevin Ellul-Bonici explores the political aspects surrounding the EU Constitution and argues that not only should the people decide on the future of Europe, but they should be empowered to actively participate in constructing that future. This Constitution, or its derivative in the next treaty, is not a project that comes from the people, but a blueprint for an antiquated vision.

Italian Interior Minister Giuliano Amato did not mince his words over how to proceed with the rejected EU Constitution. “The good thing about not calling it a Constitution is that no one can ask for a referendum on it,” he told the congregation at the London School of Economics last February.

Clearly, Giuliano Amato, vice-president in the Convention that drafted the EU constitution in 2002-3, believes the people should not be asked on the construction of a ‘united Europe’. Perhaps he believes it is a ‘noble cause’: not only should the people not be asked, they should also be deceived.

Amato’s cause is in line with that of German Chancellor Angela Merkel, holding the EU presidency for the first half of 2007.

Change the name; keep the substance; ask the people at your own risk – that is the “road map” which Ms Merkel hopes to launch in June 2007. It is only the second best option for Merkel, who failed to garner enough support to push forward with nearly the same rejected text.

Reflecting this dissent from among EU leaders, the eventual Berlin Declaration on 25 March could only reach as far as a modest attempt at directing the way forward: “…today, 50 years after the signing of the Treaties of Rome, we are united in our aim of placing the European Union on a renewed common basis before the European Parliament elections in 2009.”

So a new text it will have to be, but Merkel’s “road map” aims to have it as close to the original text as possible and agreed by the earliest possible date.

At a press conference after the Berlin Declaration she briefly explained that the “road map” would aim for an Inter-governmental Conference (IGC) to be launched and concluded by the Portuguese Presidency (July-Dec 2007). This would then flow into the Slovenian Presidency (Jan-Jun 2008), giving “a solution right up to the French Presidency” (Jul-Dec 2008).

When asked to elaborate, Ms Merkel had this to say: “We have already got a draft [constitution] signed by 27 prime ministers and finance ministers, and the process has to go through the procedures of national parliaments; there were two referendums with a negative result and we have drawn our lessons; there is no use of having 27 signatures on a text that cannot be implemented, but in June 2007 we will have a clearer picture.”

So, as Ms Merkel admits, we have “a text that cannot be implemented”. This is due to the democratic principle of unanimity. But it took two years for it to sink in. And there is little doubt that Merkel attributes this to lack of support, most notably from the UK, the Netherlands, France, Poland and the Czech Rep.

Others, like some in the European Parliament, including its president, are still pressing for the same text to be adopted. But what about asking the people?

Asked about the possibility of EU-wide referenda, Ms Merkel replied: “Each country has its own decision making process. In Germany we have no referendums. I, as President of the Council, have no contribution to make to that at all.”

To another question Ms Merkel replied, “I cannot promise that everything will happen in the public domain.”

A PROCESS TO DECEIVE THE PEOPLE

Of the 18 countries that have ratified the Constitution, only Spain and Luxembourg held a referendum.

Seven countries ratified the constitution even after its rejection in the French and Dutch referendums. In normative terms, this means they refused to recognize the French and Dutch democratic veto and the principle of unanimity. For most of these countries the so-called ‘Period of Reflection’ that followed the 2005 rejections was a good time to ratify.

Nine countries have not ratified. Six of these postponed or cancelled their planned referendum: the Czech Republic, Denmark, Ireland, Poland, Portugal, and the UK.

Of the 17 countries that have had no intention of holding a referendum only Sweden did not ratify.

This is the stage at which the process halted – precisely in June 2006, when the Finnish parliament ratified the dead text of the EU Constitution in commemoration of 100 years of Finnish democracy.

Polls indicate that if the referendum process continues there would be further rejections by the people. So for Merkel’s “road map” to succeed, this halted process would somehow need to flow seamlessly into an agreement over a changed text, mainly between the nine countries that have not ratified the dead text (given that no major departure would be made from the substance of the text that the others ratified).

The text for the next treaty could therefore require the following actions:

  • a rewording of Part I, eliminating some of the symbols and rhetoric alluding to European (supra) ‘nationalism’, such as the anthem and the flag;
  • the inclusion of a clause adopting the Charter of Fundamental Human Rights (Part II); and
  • the dissolution of Part III into some 60 amendments to the Treaty of Nice in the areas where qualified majority voting will be introduced.

In short, it would be the same rejected constitution transformed into a “mini treaty”, and the only purpose for doing this is to deceive the people.

This deception works on two levels: eliminating calls for a referendum and alienating the voters wherever a referendum is constitutionally or politically required.

Earlier this April, British Prime Minister Tony Blair took the lead in calling for “a conventional amending treaty rather than a treaty with the characteristics of a constitution.” It may seem that even the second-best option might be hard to obtain for Merkel. Yet it remains to be known whether Blair’s call opposes Merkel’s road map, or whether it could in fact be supporting the second-best option.

A ‘DEMOCRACY BY PROXY’

What causes the ‘Europeanists’ to brush aside democratic principles and deceive the people into accepting their blueprint without asking them? No doubt, apart from the bandwagon-effect, they believe they know best. Self-righteousness takes many forms in different eras but it is always for a “noble cause”.

Today’s Europeanists are the flag-bearing descendents of a war generation that had experienced the devastation of war and totalitarianism, but had failed to recognize the dangers of creating a powerful pseudo-democratic political entity on a supranational scale. Like their predecessors, they truly believe that Western Europe’s democratic values will prevail over the actions of generations to come and that no abuse of European power could emerge from this self-proclaimed ‘Beacon of Democracy’.

For them, the ‘United States of Europe’ would forever be a highly democratic federation and could never develop into a totalitarian singularity.

It is here that the blueprint stops. What follows later is anyone’s guess, but ‘Europeanists’ are certain this is what the European Union needs, hoping only that this centrally-planned project will lead to a political, military and economic powerhouse.

The ‘Europeanists’ do not think about the possibility that they might be wrong in both scope and vision, as earlier political constructionists were. For them, their opponents are petty nationalists living in the past. Yet it is the ‘Europeanists’ who are living in the past, for nationalism has nothing to do with this argument.

This frame of mind views today’s global scene, looks at the leading power and tries to emulate it by imitating it. As such, they are attempting to create nothing new, but a copy of a unitary, ‘melting-pot’ federation that was re-founded at least once since 1776.

And since the federalization of the EU is fast-paced and has to deal with deeply-rooted cultures of different nations speaking a multitude of languages, it requires a stronger gravitational pull, leading not to a true federation but a federalistic pyramid – a supranational unitary state.

For all this to materialize, the separation of powers at the European level would need to further depart from what we are accustomed to in our parliamentary democracies. This path has been leading us to a European ‘democracy by proxy’, where the representatives of the people’s representatives depend on powerful EU civil servants, and the people are further relegated to the political wilderness of ineffectual local politics, far removed from the European institutional triangulation that governs them.

LET THE PEOPLE DECIDE

Ultimately, the lives that are to be governed are those of the people, whose collective wisdom might not be on a grand visionary scale as that of Monnet, but who are nonetheless aware of their state of happiness and freedom.

And even if most of the time the people are being deceived, they are still able to understand that moving more powers from their own parliamentary democracies to an empowered European central authority does not necessarily benefit them or their children. Experience shows that the more people get acquainted with the contents of the Constitution, the more they reinforce the feeling that they would have little democratic control over this new institutional set-up that would govern them.

In a true democracy the people and their media stand as watchdogs over their democratic power. Western European democracy has never faced such a trial. A new European government is in the process of being installed. The constitutions of Member States are being subordinated. The people must be involved.

They must be empowered to decide fundamental issues such as who should hold decision-making powers in the future EU. They need to be told the truth. They need to be allowed to debate in order to decide in fair and balanced referendums, where governments take no sides and where political parties allow free and open debates; in other words, an atmosphere where political correctness does not dictate the debate.

HOW SHOULD THE PEOPLE BE COUNTED?

If the people are to decide over the next treaty, how should they be counted? There are different ways of holding referendums.

Some extremists would hope for a Europe-wide referendum with a simple majority count of the whole EU population. This is neither legitimate, nor democratic. It is not legitimate because no treaty provides for it. And it is not democratic because a democratic vote requires one people so as not to create minorities out of smaller nations.

Many federalists prefer a referendum in each of the 27 Member States, counting on the basis of a majority of member states (which could be a qualified majority). Again, this is not legitimate: it would require legal provisions that overcome the principle of unanimity. Others would prefer a ‘double majority’, which would also require a majority of the EU population. But again this falls squarely under the first category – a European nation does not exist.

Opponents of the constitution want the principle of unanimity to be retained. This means that whatever the number of referendums, the next treaty cannot be ratified if just one Member State says No.

For the ‘Europeanists’ this is a political stalemate that takes their plans nowhere. It is for this reason that people like Amato emphasize the need to avoid referendums.

So, should we do away with the principle of unanimity? It is, after all, a well-founded international principle that emphasizes the supposition that members are united in a way that they mutually guarantee each other that they either all move together in implementing a new treaty, or they don’t move at all.

Sometimes, not moving at all is the right thing to do. It would not be a standstill, much less a “crisis”, for you would be allowing social movement to take its course and create more unifying channels across the single market.

Aricle IV-447 of the Constitutional Treaty is in line with the principle of unanimity when it stipulates that the Treaty enters into force on 1 November 2006 when all Member States should have ratified it, or after the last Member State ratifies.

But in the annexed Declaration 30 (which is non-binding) the possibility of violating the principle of unanimity is allowed. The “Declaration on the Ratification of the Treaty Establishing a Constitution for Europe” states: “The Conference notes that if, two years after the signature of the Treaty…, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter will be referred to the European Council.”

This one-paragraph declaration stops short of what happens later. It was just a safety clause that did not work as the four-fifths threshold was not reached before the deadline. The two years after the signing of the treaty in Rome elapsed on 29 October 2006. The future is again open. Now is the time to start a genuine public debate on the future of Europe.

WHY THE PEOPLE CANNOT APPROVE THE NEXT TREATY

From a purely democratic viewpoint, the matter is not simply one of asking the people, even if referendums were to be fair and balanced, and even if the debate is to be rid of all forms of totalitarian political correctness.

Empowered with the responsibility to decide over the next treaty the people cannot approve it if they played no part in its preparation.

Anything close to the EU constitution is democratically not approvable. Sketched by the convention president, Valerie Giscard d’Estaing, the outline for this constitution required the convention to simply fill in the blanks – it was more like a predetermined crossword puzzle, than an open-ended game of scrabble. The convention gave a democratic stamp to an undemocratic blueprint for an antiquated European vision.

This is the same vision that in the early fifties conceived the European Defence Community and its sister, the European Political Community, both of which failed, paving the way for a complete reversal of strategy and starting from the market instead.

If the people are to decide over their common European destiny, they must also be empowered to participate in its construction. The EU must exist for the people, not the other way around.

FOR THE PEOPLE, BY THE PEOPLE

The people might want to give the Union a different direction. What many people appreciate most in being “in the EU” is the fact that they are free of the borders that once chequered Europe. Interaction and cooperation between Member States is often fulfilling.

If the people were to be allowed to unify the EU themselves, this would occur socially and organically over a longer period of time. The four freedoms of movement, providing the framework for the 490-million-strong EU market, require no politically-empowered central authority. Not even standardized harmonization is altogether necessary.

For true democracy to prevail in the EU, the four freedoms (the single market) must be governed by the 27 parliamentary democracies according to the agreed cooperation framework. There are hardly any limits to interstate cooperation, not only at an economic level, but also at a political level, such as in defence, war, peace, security and scientific development.

No Hegelian authority is required. That is the challenge for ‘Western Democracy’ in Europe!

For citizens to make the most out of the EU, they must be able to choose between different ways of doing things in different countries. With a large diversified market that choice translates into unbounded opportunities. Left to their self-organizing collective wisdom the people would prefer a more flexible EU, where central regulation does not suffocate the diversity and creativity of European life.

A diverse and flexible EU is crucial for the development of democracy, allowing the people to further devolve power by genuinely applying the ‘principle of subsidiarity’.

Today, ‘subsidiarity’ is entrenched in the European lexicon, yet in truth we witness its complete reversal. This travesty can only evoke the tragedy caused by Hurricane Katrina in New Orleans less than two years ago, and the incapacity of the state of Louisiana to effectively deal with the devastation, while the US federal government did nothing, allowing the catastrophe to slowly rot beneath the weeds of time. A city was allowed to die while the US federation moved on without an eye blink.

That, of course, is not what the ‘Europeanists’ envisage for the EU. That is an empire ruled from high above, where the ruling classes cannot be bothered. It is what happens to old federations when the central powers further consolidate through self-empowerment.

What happens to a planned pseudo-democratic Union where representation is by proxy is anyone’s guess.

Kevin Ellul-Bonici works with the Independence/Democracy Group in the European Parliament. He holds degrees in criminology (Malta University) and criminal justice (Leicester University).


  1. Open Europe, 21 February 2007
  2. Berlin Declaration, 25 March 2007
  3. German Presidency website live stream, 25 March 2007
  4. Ibid.
  5. Ibid.
  6. Open Europe, 23 March 2007
  7. Treaty Establishing a Constitution for Europe

Source: EUWatch, Issue No.6, April 2007 (pdf)