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In the News / Actualité

A Draft Constitution for Europe CASPAR VELDKAMP*

At their late-June summit near Thessaloniki, Greece, European Union leaders were presented with the draft of a European Constitution by the president of the Con- vention on the Future of Europe – former French president Valéry Giscard d’Estaing. The text is meant to be the draft of a new European Union treaty, but it aspires to be more than a mere successor to EU treaties such as the Single European Act and the treaties of Maastricht, Amsterdam or Nice. If the draft text succeeds in becoming law, it might become the most important text since the Treaty of Rome of 1957 and a real Constitution for Europe. The draft text of the constitutional treaty clariŽes the Union’s powers, classiŽed in part I and more precisely deŽned in part III of the draft, and reduces its means of using those powers from Žfteen to six legal instruments. It incorporates the existing Charter of Fundamental Rights into European law as part II of the Con- stitution. It establishes a single legal personality to the Union, so that the EU will be able to sign international treaties in its own right. It enshrines the primacy of European law over the law of member states as a constitutional principle. It recog- nizes Ruud Lubbers’ Maastricht doctrine of “subsidiarity” as a safeguard against expansion of unnecessary EU power towards member states. And it includes the Žrst formal statement that a country can leave the EU – at two years’ notice. The text would mean several changes for the three main actors in EU decision- making – the European Commission, member states, and the European Parlia- ment. The draft proposes a package of reforms with serious impact on the structure and character of the Union. For example, it proposes a new kind of presidency of the EU leaders’ European Council summits meetings, elected by the EU’s national prime ministers from their own ranks for a two-and-a-half-year term, to replace the current one of half-year rotations between the leaders of the individual mem- ber states. It combines the functions of the current High Representative for foreign affairs, Javier Solana and the Commissioner for external relations, Chris Patten, to

* Caspar Veldkamp is a diplomat from the Netherlands and has been a Dutch delegation member to EU ministerial and European Council summit meetings from 1998 to 2002. He wrote this comment in a personal capacity.

International Law FORUM du droit international 5: 147–149, 2003. ©2003 Kluwer Law International. Printed in the Netherlands. 148 In the News / Actualité one EU “foreign minister”. It extends the proven méthode communautaire as well as decision-making by qualiŽed majority voting (QMV). Particularly with respect to Justice and Home affairs, it would leave less for national governments to decide alone. This will greatly affect policies on refugees and asylum (and therefore some aspects of immigration policy) and will extend the EU’s reach into criminal law. The text simpliŽes the weighing of votes between member states by proposing a system whereby a majority will be constituted by a simple majority of states equaling at least 60% of the population of the EU, replacing the amazingly complicated formulas on voting weights of the Nice Treaty. It further strengthens the authority of the European Parliament and reforms the internal composition of the European Commission. Thus, it undertakes an effort in further restructuring of the EU’s political mechanisms, which are so often still designed basically for a European integration process of its six initiators (Germany, France, Italy, the Netherlands, Belgium and Luxembourg), instead of an EU of soon-to-be twenty-Žve member states, ranging from Poland to Spain and from Greece to Estonia. But the impact of the new text can be far bigger than merely creating a new institutional step on the road towards further European integration. The package was drafted by a 105-member “Convention” composed of members of national parliaments and the European Parliament, as well as government representatives. This was due to a willingness to change the way of EU treaty drafting after the Nice European Council meeting of December 2000, which had become a mess of power brokering and political deals between European leaders, lacking coherence and a common vision to go forward. The Convention was meant to do things differently, with more democratic legitimacy, constant interaction with citizens, generating debate on Europe’s future and forging a common vision. Did the Convention bring such “systemic change” to the way in which Euro- pean treaties are drafted? Hardly, as its participants kept quarreling on various technocratic treaty aspects instead of working on a true democratic breakthrough, and not attracting much outside attention or public understanding. Moreover, member states will still undertake their “real” negotiations among each other in an Intergovernmental Conference (IGC) that might degenerate into the usual kind of EU negotiations such as at the IGCs that were set up to draft the treaties of Maas- tricht, Amsterdam and Nice. The IGC that is to discuss the new treaty will start this fall and probably result in a text to be signed in late May or the beginning of June 2004, right after the accession of the ten new member states and just before the European Parliament’s June 2004 elections. Individual member states have already indicated some reservations on speciŽc topics. Finally, after sixteen months of debate in the Convention, some key items, including the introduction of QMV