This is the final part of a series on the return of the EU constitution by Open Europe,
of which Neil is Director.


The mood in the UK embassy
in Brussels must be pretty dire.  The merde has hit the
fan. Angela Merkel has just circulated to heads of government a summary
of where she believes the consensus lies in the negotiations on the
revised constitutional treaty. 

The Merkel memo has started
to leak out, and it won’t make for pleasant reading for Gordon Brown.
(You can read it in full on the
Open Europe blog.)

Firstly, there is the usual
ritual display of the low regard that the European political class hold
the public in.

While the EU needs to:

into account the concerns of the citizens expressed during the ratification
procedure… All Member States recognise that further uncertainty about
the treaty reform process would jeopardise the Union’s ability to deliver.
Settling this issue quickly is therefore a priority."

There are:

"A certain number
of Member States underlined the importance of avoiding the impression
which might be given by the symbolism and the title ‘Constitution’ that
the nature of the Union is undergoing radical change. 
For them this also implies a return to the traditional method of treaty
change through an amending treaty, as well a number of changes of terminology,
not least the dropping of the title ‘Constitution’.”

We certainly wouldn’t want
voters to give the impression that anything was going on, would
Worse still, Merkel writes that the integrationist countries see the
name change as “a major concession” and in return “they insist
on the need to preserve the substance of the innovations agreed in the
2004 IGC”. 

In fact the memo says several
times that the goal is to introduce all of the “institutional” changes
from the old constitution:

    “as much of the substance
    of the Constitutional Treaty as possible should be preserved.” 

    “It is generally recognised
    that a strengthening of the institutions will help reinforce the capacity
    of the Union to act, and that the Union therefore has every interest
    in ensuring that the current  Treaties are adapted in order to
    introduce the set of institutional reforms agreed in the 2004 IGC.”

    “The mandate for the
    IGC should set out how the measures agreed in the 2004
    IGC with a view to a more capable and democratic Union should be inserted
    into the Treaty on the European Union”

The memo also reveals the new
title of the constitutional treaty. Changing the name to the bland “Treaty
on the Functioning of the Union” will of course reassure anyone who
might have somehow got the mistaken impression that EU leaders were
engaged in smuggling the European Constitution in by the back door….

But linked to this name change,
Merkel writes in the same paragraph that in return, “The Union would
have a single legal personality.”

This is quite a surprise. 
The proposal to give the EU a legal personality was thought to have
been killed off.  It would mean that for the first time the EU,
not the member states, could sign up to international agreements on
foreign policy, defence, crime and judicial issues.   

That would be a huge transfer
of power and make the EU look more like a country than an international
agreement.  Indeed, EU leaders have already said so.  Talking
about the original version of the constitution, Italian
PM Romano Prodi said that it was “A gigantic leap forward. Europe
can now play its role on the world stage thanks to its legal personality".   

The French Government’s referendum
website argued that, “The European Union naturally has a vocation
to be a permanent member of the Security Council, and the Constitution
will allow it to be, by giving it legal personality.” 

Even the UK Government admitted
that it could cause problems.  When the constitution was first
being drafted Peter Hain said that “We can only accept a single legal
personality for the Union if the special arrangements for CFSP and some
aspects of JHA are protected.”  He told MPs: “we could support
a single legal personality for the EU but not if it jeopardises the
national representations of member states in international bodies; not
if it means a Euro-army; not if it means giving up our seat on the United
Nations Security Council; and not if it means a Euro-FBI or a Euro police
force. " 

Despite their reservations,
last time round the UK gave way on the issue.  But this time round
there is no way Gordon Brown will sign up to such an overt transfer
of power. 

Nonetheless, the Merkel memo
will be depressing reading for the UK team because it makes it clear
that the UK will have to fight a number of battles which everyone thought
were over – and that will make it more difficult to get on the front
foot on other subjects.

Likewise, on the legal status
of the Charter of Fundamental Rights – which the UK Government has
promised will never become legally binding – the German paper says
that while some members want it left in and some want it taken out,
"most" members can accept the none-too-sneaky proposal to
take it out of the constitution, but still make it “legally-binding…
by means of a cross-reference in the body of the Treaty." 
Again this will not satisfy Brown, who will not sign anything that creates
the faintest whiff-of-a-suggestion-of-a-possibility that the Charter
could become law in the UK. 

Merkel also suggests “greater
clarity over the delimitation and definition of competences of the Union
and the Member States.”  This could mean the same kind of table
of “division of powers” which appeared in the original Constitution,
and was controversial because it implied that very few powers were reserved
for the member states.

Merkel also suggests a short
timetable.  She suggests that an Inter-Governmental Conference
should be launched in the summer, leading to an agreement by the end
of the year.  So there is little time to lose, and it looks like
the revised constitution might be more radical than we expected. 

The political tempterature
should rise further next week.  On Sunday, over a “sandwich supper”,
the Foreign Ministers will get to see a first draft outline of an agreement. 
On Monday, Blair appears in Parliament before the Liason Committee. 
On Tuesday, Beckett goes to the Foreign Affairs Committee (no promises
on her answering any questions though); and on Wednesday there is a
debate on the negotiations in the Commons, and Prime Ministers questions. 
Blair then jets off to the summit on Thursday. 

If the government and its European
partners can clobber the Poles into submission the pace will accelerate
rapidly.  Merkel’s memo suggests that EU leaders plan  to rely
on a mixture of speed, spin and secrecy to push through an agreement.

I debated Commissioner Wallstrom,
Neil Kinnock, Blairite academic Antony Giddens and federalist German
MEP Elmar Brok last night, as part of the Robin Cook
memorial debate.  Every single one of them trotted
out exactly the same standard euro-litany.

The public can not be trusted
with a vote.  It is simply “too complicated” for them. They
don’t know anything about the EU and they don’t like it.  While
the yes votes in Spain and Luxembourg were a wonderful exercise in “deliberative
democracy”, the no votes in France and the Netherlands showed that
the people had “not really answered the question” that had been
put to them.  There should be no more referendums.  Oh –
but of course the EU should try to become “more transparent” and
“involve the people more”.  Elmar Brok said that the EU just
needed to “explain more” about the good work it was doing.

I’m sick of listening to
it.  Europe’s elites seem to think they have a divine right to
decide what we do.  They’ve been accountable to no-one for so
long now, that they seem literally incapable of understanding why people
are angry at them.

After the 2005 no votes Robin
Cook wrote of the pro-euro camp that “We have all behaved in a way
that almost lives up to the caricature of Europe as an institution that
exists for the perpetual extrusion of ever-longer treaties that meet
the preoccupations of the political elites rather than the priorities
of its peoples.”  Many other, less thoughtful supporters of EU
integration have never managed to grasp this lesson.

The very best that the EU elite
can now hope for is to ram through the constitutional treaty in the
teeth of calls for a referendum – once again neatly demonstrating
that the voters don’t want what they are being force-fed.  As
a result, the political foundations of the EU would inevitably crumble
further, setting up the prospect of some dramatic collapse at a later

So why don’t the supporters
of “ever closer union” at least seize a fighting chance while they
still have it, call a referendum, and try to win it?  Perhaps it’s
because, in their heart of hearts, they know it’s over.

Related links: The first, second, third and fourth parts to this series

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