Commentary Type

After "Non" and "Nee": Plans B, C, and D for the European Constitution

Daniel Popov Gould

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The proposed European Constitution, which was just voted down in France and the Netherlands, is technically a treaty containing far-reaching amendments to the present set of treaties governing the European Union. Article 48 of the EU treaty text currently in force specifies that any such amendments first be unanimously approved by the governments of the member states within an InterGovernmental Conference framework and then ratified by each country. The first, intergovernmental step of ratification was completed October 29, 2004.

What has run aground now with the French and Dutch referenda is the second step—required, unanimous ratification by European member states. The likely halt to efforts to ratify the current document will force a reconsideration of the European Union’s legal alternatives for governance.

The treaty on the proposed Constitution is mute on the point of nonratification, since any such provision would not be applicable until the treaty was ratified. However, Declaration 30, which was appended to the Constitution, states:

The Conference notes that if, two years after the signature of the Treaty establishing a Constitution for Europe, 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.

The precedent for dealing with failure to ratify a constitutional treaty is both thin and only vaguely relevant to today’s situation. Historically, the European Council (made up of heads of member state governments) has been the forum for discussion after failed ratification. The Treaty of Maastricht (1992) and the Treaty of Nice (2002) are the two examples: Denmark and Ireland, respectively, failed to ratify the treaties. In both cases, the particular countries ratified the treaties in second referenda after the European Council allowed the adoption of strictly nonbinding but targeted declaratory measures intended to make the treaties more acceptable to the electorate in each specific country.

Such targeted bribes or opt-outs are of limited relevance to the current state of affairs. For example, the Danish rejection was founded upon the very specific and arguably narrow issue of monetary sovereignty. Once a waiver from the accession to European Monetary Union (EMU) was obtained, the Danish population voted for Maastricht by a significant margin. French and Dutch popular opposition to the European Constitution, on the contrary, is not founded upon a specific issue or a narrow concern. Instead, it has coalesced in part around general arguments concerning declining national sovereignty, lack of transparency, and the erosion of national social models. General dissatisfaction with current governments, economic performance, and the management of enlargement have also played a role. In this context, appending a country- or issue-specific declaration is unlikely to allay the prevailing concerns and criticisms.

Another possible outcome of failure to ratify would be a decision to hold a second referendum without any amendments, in hopes that fears of the “no” vote’s consequences would shift voter turnout and opinion. There are no explicit restrictions in the Maastricht, Amsterdam, or Nice treaties to the number of times a country may attempt to approve a proposed constitution. The decision to hold a second round would therefore be a political one. Yet in the absence of a sign that political elites are responsive to popular concerns, it is difficult to see how a second round would carry the day.

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