Check against delivery
What future for the Constitutional Treaty? A Dutch view
Gijs de Vries
Conference on the Future of Europe
Forum Europe and European Commission Representation in Denmark
Copenhagen, November 15, 2006
As always it is a pleasure to be back in Denmark, a country which knows how to win referendums.
I have been invited to speak about the future of the draft Constitutional Treaty, which I had a hand
in drafting. In addressing this topic I will draw on my experience of how the EU institutions
perform under the current Treaty. I will not be speaking on behalf of the Council or the Government
of the Netherlands, though I will present what I take to be the position of the outgoing Dutch
coalition. The views I shall be presenting are my own.
First, let us set the scene.
Next month the European Council will have a debate on the enlargement of the Union, including
the Union's capacity to absorb new members. The Commission has been invited to provide a special
report on the absorption capacity of the Union, which it did, almost surreptitiously, in October. The
German Presidency is to present a report to the European Council in the first half of 2007 with
regard to the future of the Constitutional treaty. This report is to be the basis for decisions during
the second half of 2008 at the latest, i.e. in time for the European elections in 2009. Meanwhile, EU
leaders will be called upon to adopt, on 25 March 2007 in Berlin, a political declaration setting out
Europe's values and ambitions, commemorating 50 years of the Treaties of Rome.
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These issues are linked. The Union must be made more effective and more democratic. National
politicians need to redefine what they want the European Union to stand for. And the Union must
reconfirm its mission to transform the European continent into an area with common aims and
institutions where power is subordinate to the rule of law. Together these three steps are needed
to preserve the European Union's transformational power.
There is a tendency to downplay the importance of these decisions. Most national politicians, too
often imitated by the audiovisual media, tend to shun discussions about the future of Europe as too
complex and too boring, as illustrated by the perfunctory manner in which Dutch and French
politicians debate European issues in their respective election campaigns. These politicians are
failing their citizens. The world around the European Union is changing fast. Economic, political
and military power is shifting away from Europe, and the pace of this change is accelerating. The
states of Europe face a choice. Unless they agree to join forces their global influence will continue
to erode. Unless they act together others will increasingly set Europe's agenda.
Europeans often pride themselves on Europe's 'soft power'. That power is real, and worth
preserving. However, Carl Bildt, Sweden's new foreign minister, has recently warned that Europe's
soft power is waning, at a time when tensions are building up around us, in various parts of the
world. A critical part of Europe's capacity to influence its environment is the continued process of
enlargement. To close the door on enlargement, Bildt argues, would be to open the door to
instability in Europe itself.
To preserve their soft power Europe's leaders must make some hard decisions. Europe's politicians
need to determine how they intend to preserve - and where to enhance - Europe's capacity to act.
For that, they need common goals, common policies, and common institutions capable of
functioning in a Union of more than 27 Member States. And they need to debate these issues and
the choices they imply in public, including at election time.
The discussions about institutional reform will no doubt prove fractious. Matters will not be helped
by the concurrence of several other debates. The eventual accession of Turkey will continue to
exercise minds. The interim evaluation of the budget has been scheduled for 2008-2009. The
agreement on the Financial Perspectives leaves open the possibility that the review will affect the
period of 2007-2013. And the current EU Treaty of Nice requires a Council decision about the size
of the Commission in time for a reduced Commission to take office in November 2009. There is a
clear risk that these issues will be spun into a Gordian knot of cross-cutting conditionalities.
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To avoid the Union getting bogged down in yet another exercise in introspection Europe's senior
leaders will have to provide a clear sense of direction. The first occasion to prepare the ground, at
least informally, will be the December European Council.
What should be done with the draft Constitutional Treaty? Preserving the draft treaty in its entirety
clearly is not a viable option, as neither France nor the Netherlands - nor probably others - would
ratify it. On the other hand, re-opening the carefully elaborated institutional compromise does not
seem attractive either. The proposed reforms of the Commission, the European Council and the
Council constitute a package deal. Working out an alternative set of checks and balances might take
years. Failure would probably imply the end of the Union as we know it. Besides, the Dutch and the
French need to recognise that the treaty they rejected has been accepted by a large majority of
Member States, and by the people of Spain and Luxembourg. The rejectionists do not have a
monopoly on legitimacy.
The most promising path, therefore, would seem to consist in a partial revision of the current text,
excluding the main institutional innovations. Changes could be envisaged to the structure of the
Treaty, to some of its symbolism, and to some more substantive provisions.
Some have suggested to scrap the reference to a constitution. Talk about a constitution, they argue,
makes citizens fearful of losing their national identity. Although this is at best a debatable
proposition, if calling the treaty a treaty instead of a constitutional treaty will improve its chances of
ratification, so be it. What matters is not the title but the substance. There are other areas, however,
where it would be more difficult to change the terminology. Foreign policy is one area where the
Union needs to be more effective and more visible. Removing the reference to an EU foreign
minister, as some suggest, would send the wrong signal and would not be a good idea.
Several proposals revolve around changes in the structure of the draft treaty. There appears to be
some support for the idea of adding a protocol on the social dimension of the Union. This might
serve to highlight the importance the Union attaches to social policy. On the other hand it is difficult
to see what a protocol might add in terms of substance, as the word social already appears 89 times
in the draft treaty, and as there seems to be little willingness to grant new powers in this field to the
Union. Other suggestions include more clearly separating Parts I and II from III of the treaty, with
the aim of enabling Member States to submit Parts I and II separately for ratification by
referendum. Part III would then constitute a series of changes to the existing treaties in line with
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past practice, but could include the possibility of further revision in the future through a simplified
procedure. Yet others have proposed to shift some provisions between Parts I and III.
No doubt these and other ideas will need to be considered carefully. However, ministers will have
to be careful not to engage in presentational changes only. Cosmetic modifications alone will not
suffice to win over sceptical voters in the Netherlands or elsewhere. Indeed they may well backfire.
Some substantive changes will have to be agreed as well, and last week the Dutch Government has
indicated for the first time what changes it believes to be required. Foreign Minister Bot has called
for the references to a constitution, to a European flag and a European anthem to be deleted. He also
would like Part II of the draft treaty to be scrapped - the EU in his view does not need a Human
Rights Charter. EU accession to the ECHR should suffice. However, Minister Bot would also
welcome some additions to the treaty. To assuage people's concerns about uncontrolled EU
enlargement the Copenhagen criteria would have to be given treaty status. The Union should also be
given "a legal base" in policy areas such as energy security, the fight against organised crime,
promotion of peace and democracy in the world, and the protection of the environment. (Some
would argue that, with the possible exception of energy security, such a legal base already exists.
The Minister did not elaborate.)
Elections in the Netherlands are imminent, and the incoming Dutch Government will have to
consider how to take these ideas forward. I would venture some doubt, however, as to whether these
modifications - should they all prove acceptable to the other Member States - would suffice to
guarantee majority support for the treaty in the Netherlands. It seems to me that many Dutch voters,
like many people in France and elsewhere, did not so much object to the treaty itself - though some
clearly did - but to the palpable lack of conviction with which their national politicians presented
the package. What is the purpose of this treaty? What do we need it for? What is the purpose of the
European Union, fifty years after its foundation? That is what people demanded to know, and to that
question most national politicians did not have an answer. Instead, they took refuge in platitudes.
This proved fatal. Unless politicians provide a clear and positive view about the purpose of the
Union, and argue their case with conviction, any future European treaty is likely to face a major
hurdle.
So far most political leaders have shied away from this task. Instead it has lately become
fashionable to deflect discussions about the need to make the EU more effective and democratic by
invoking the need for 'a Europe of projects'. Of course there is nothing wrong with a Europe
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which produces concrete solutions about concrete problems. In fact, that is what the EU has been
doing for the past fifty-odd years, as Ministers might wish to remind their voters. But it would be
particularly helpful if national politicians would take their own rhetoric a little more seriously, at
home as well as in Brussels. Delivering on the Lisbon commitments would have been an excellent
way of delivering a 'Europe of projects'. Delivering on the commitment to spend 0.7 % of GNP on
aid would have enabled the Union to combat global poverty and destitution much more effectively.
To deliver on EU commitments to improve European defence capabilities or to counter global
warming similarly depends on decisions taken nationally.
There are other areas where a 'Europe of projects' needs more commitment to delivery. Some of
them, however, do require a change in the rules. One example is foreign affairs and security. As one
who has been involved in preparing and implementing aspects of Europe's common foreign and
security policy in the past three years I have no doubt that the system needs fixing. The legal,
financial and institutional complexities of work in this area simply are too great. As a result, too
often the Union punches below its weight. The draft constitutional treaty proposed two main
innovations - the creation of a single, double-hatted EU foreign minister and the establishment of a
common external service. Neither is a panacea, but together they would go a long way to improving
policy preparation and implementation.
I would like to say a few words about another area where the need to change the treaty is urgent and
clear: the fight against terrorism.
Combating terrorism is, and should remain, primarily the responsibility of national authorities.
Member States generally agree that the EU should not establish 'federal' agencies mirroring the FBI
or the CIA. Police forces, intelligence agencies, the judiciary, customs officers and other officials
all remain instruments of national governments, under the control of national parliaments.
The EU's role is to support these national authorities, not to replace them or to duplicate their work.
Still, the EU has an essential role to play in the fight against terrorism. Terrorism is both
international and local, and it must be countered at both levels. Against a background of growing
disenchantment with politics, including European politics, opinion polls consistently indicate strong
public support for the of the Union in combating serious cross-border crime, notably terrorism.
Much has been achieved in recent years to improve Europe's defences against terrorism, and
terrorist attacks have been prevented as a result.
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Naturally, the EU can only act within the limits of the powers conferred on it by the treaties, and in
accordance with the procedures set out therein. Under the current EU treaty there are clear limits to
what the EU can do in practice to help protect our public against terrorism. For example, the
unanimity requirement in the field of justice and home affairs often makes for a slow and
cumbersome decision-making process. So does the Union's 'pillarized' structure.

It took Ministers more than a year before they could muster the necessary unanimity to
appoint a successor to the director of Europol (2005).

Early in 2006, Ministers proved unable to reach unanimity about a modest proposal to
facilitate hot pursuit by police forces across borders - something which many Member States
already allow on a bilateral basis.

Proposals to enable limited support from the EU budget to (co-)finance the transportation of
emergency assistance between Member States in case of a major emergency (including
terrorism-related emergencies) remain blocked because unanimity cannot be reached.

The Council has still not managed the necessary unanimity to adopt the European Evidence
Warrant and the proposal on minimum procedural standards in criminal cases. According to
the Hague Programme both proposals were to have been adopted by the end of 2005.

Even when the Council manages to reach unanimity it often takes years before national
governments and parliaments implement the relevant legislation, as shown in the case of the
three protocols to the Europol Convention. These were unanimously agreed (in 2000, 2002
and 2003 respectively) but still have to enter into force. The Irish and Portuguese
governments only submitted implementing legislation to its national parliament in the
Summer of 2006.

Under the current 'third pillar' neither the Commission nor the Court has the necessary
power to monitor the implementation of Framework Decisions, Conventions and other
current legal instruments. Moreover, when invited by the Commission to report about
national implementing measures, replies by Member States are often late and/or incomplete.
Some Member States do not reply at all.

The Swedish Parliament's tradition of requiring its government to submit implementing
legislation before allowing it to agree to a Council decision in the JHA field tends to slow
down EU decisions by one to two years.

The current Treaties considerably complicate the EU's capacity to enter into external
agreements in matters related to the fight against terrorism, as illustrated by this year's
ECJ ruling on the Passenger Name Record (PNR) agreement with the US.
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Combating terrorism and other forms of serious international crime is one area where the public
wants to see the EU to play a positive role. However, as these examples show, there is a gap
between the commitments entered into by Ministers in Brussels and the reality on the ground.
Ministers promise or seem to expect more in the fight against terrorism than the EU's decisionmaking rules enable them to deliver. Deadlines set by the European Council are routinely being
ignored by the Council and by national Ministers. Trust in government in Europe is already
disturbingly low. Unless the rules are changed to allow for more effective EU decisions in the fight
against terrorism and other forms of crime, there is a clear risk that trust in the Union - and in
national governments - may be undermined further.
Where the EU has been able to adopt legislation in the fight against terrorism under classic
Community rules (first pillar), i.e. on the basis of qualified majority voting, its record is good.
Recent examples include the airport security directive, the port security directive, the third money
laundering directive, and the data retention directive.
There are four areas where a reform of the powers and the decision-making rules of the EU would
give a strong boost to the effectiveness of the European fight against terrorism and organised crime:

aspects of justice and home affairs,

cross-border co-operation in the field of civil protection,

co-operation to act against serious cross-border threats to human health such as bioterrorist
attacks,

and moving counter-terrorism policy into the so-called 'first pillar' in order to strengthen and
simplify the EU's international negotiating power.
In any democratic system power needs to be subject to strict political and judicial controls. This is
particularly important in matters related to security. This is why in the draft constitutional treaty
proposals had been included not only to strengthen the decision-making capacity of the Council, but
to strengthen the role of national parliaments and the European Parliament as well. The need to
strike a proper balance is also why important proposals were included to enlarge the competence of
the European Court of Justice (and hence the power of the Commission to act as guardian of EU
law). Finally, this is why it had been proposed to widen access by national Courts and individual
citizens to the Court, and to enable the EU to accede to the European Convention of Human Rights.
Member States unanimously agreed that, in order to combat terrorism and other forms of serious
international crime, three sets of reforms were required: greater effectiveness of decision-making
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and international negotiating authority, stronger parliamentary control, and better judicial protection
of civil liberties. These reforms represent a careful balance between security and liberty. The
balance between liberty and security is at the heart of the European approach to combating
terrorism, and it is therefore necessary, whatever the ultimate fate of the draft Constitutional treaty,
to salvage these three sets of reforms.
Revising the Constitutional Treaty will undoubtedly be difficult. A rear-guard battle is being waged
in some national Ministries, for example, to go back on the Justice and Home Affairs-related
reforms in the constitutional treaty. The temptation will be strong to settle for the lowest common
denominator. That would be counterproductive. Failure to render the Union more effective and
more democratic would not strengthen the states of Europe but weaken them. The Union's
competences should be limited, but within those limits the EU should be able to help national
governments provide the public goods which governments separately can no longer effectively
provide - including security, domestically and in the wider world. Extension of qualified majority
voting and abolition of the pillar structure are essential for the Union to deliver results in the areas
European citizens care most about. They should be preserved, whether in Part I or in Part III.
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