European Integration Winter/Spring 2005

What Will Happen If Some EU States Reject the Constitution?
By Dana Spinant

Ratification of Europe’s new constitution, solemnly signed in Rome on October 29 2004, is turning into a long drawn-out moment of truth for the recently expanded 25-member European Union. For some countries, rejection of the treaty establishing the constitution could even call into question their continued EU membership.

Before the constitution can enter force, each member state must ratify the treaty by a parliamentary vote, a popular referendum or some combination of the two. If ratification is not complete by November 2006, when the constitution is due to take effect, the European Union will face unprecedented political choices that could dramatically alter the future course of European integration.

The chances of rejection are highest among the ten countries holding referendums, which include Britain and France, even though all their governments are campaigning for a “Yes” vote. It is notoriously difficult to limit voting to a single issue. In past referendums, voters have often said “No” just to register opposition to an unpopular government, regardless of the question on the ballot. But there are also strong currents of opposition to the constitution itself, especially in Britain.

The parliaments of four countries - Lithuania, Hungary, Slovenia and Italy - have already ratified the constitution, while the Spanish people approved it in a referendum on February 20. But ratification was never expected to present much difficulty in the countries opting to go first. The highest hurdles lie ahead.

The biggest uncertainties concern the votes in the United Kingdom, Poland, the Czech Republic, the Netherlands, Portugal - and now even France. The French debate on the constitution has become entangled with domestic economic and social arguments, political infighting and widespread opposition to the prospect of Turkey joining the European Union, which has nothing to do with the constitution. French opinion polls show the probable “No” vote rapidly gaining ground.

The big question is what would happen if one or several member states rejected the treaty. Would the European Union’s first ever constitution be abandoned? Or would the Union split in two, with non-ratifying countries choosing a looser form of political integration - perhaps on the lines of the European Economic Area, which enjoys close economic links with the Union, but of which only Norway, Iceland and Liechtenstein are currently members?

Nobody in Brussels will officially contemplate such outcomes, although, in private, speculation is rife and legal and political assessments differ. The sole reference to ratification problems in the constitutional treaty itself is a provision that if four-fifths of the member states have ratified the document two years after its signature, and the others have not, EU leaders will meet to decide what to do. The only certainties are that in such circumstances they would face one of the biggest political crises in the history of post-war European integration.

It is perfectly possible, however, to envisage a number of different solutions to such a crisis, depending on whether the constitution is rejected by one member state or by several, by how large a margin, for what reasons, and, most importantly, which countries do the rejecting.

If a number of countries, including large ones, did not ratify the constitution, doubts would be cast over its future and it could be abandoned. Then European leaders would have to decide whether to let the Union continue to function on the basis of its existing treaties (including the Nice Treaty of 2000, which settled the institutional arrangements for the Union’s recent enlargement) or to start negotiations on a new constitution.

Such negotiations could last for anything from a day to three years. Lawyers in Brussels say renegotiation of the treaty could involve anything from holding a one-day intergovernmental conference that would decide a few changes to reconvening a full-scale constitutional convention similar to the one that negotiated the current constitution.

“Would the Union split in two, with non-ratifying countries choosing a looser form of political integration?”

Germany and France would probably want to start such talks immediately to maintain the momentum toward closer integration. Another consideration is that any new constitution will probably have to be revised to take account of Turkish EU entry around 2015, and it would not make sense to delay a new treaty so long that it would have to be renegotiated only a few years later.

Even if just one country rejected the existing constitution, it would officially be dead, at least under current provisions. But the political consequences would depend on whether the dissenting country was large or small, whether it was a founding member, such as France, or a more reluctant state that had remained on the fringe of important EU developments, notably the UK.

The referendums in France and Britain are thus likely to be by far the most politically important. If France rejected the treaty, the constitution would probably be scrapped, not only because France has been at the heart of the EU project since its very beginning, but also because Germany, its close partner, is unlikely to push for the adoption of the constitution by the others while leaving France behind. Throughout the history of European integration, France and Germany have always been regarded as indispensable participants, and the main driving forces toward closer unity.

Britain, however, which stood aloof from the founding of the European Communities in the 1950s, has rarely been considered indispensable. A lone vote against the treaty by the UK, leaving the country in a minority of one against 24, could have at least two possible consequences.

“France, Germany, Spain and Italy might try to convince the EU to go ahead without the UK”

One is that anti-EU political momentum in Britain could grow to the point at which the country might seek to withdraw from the Union and negotiate a new relationship with it. While there are no provisions for withdrawal in the EU Treaties - though there are in the constitution - the other countries would almost certainly not keep Britain a prisoner if it wanted to escape.

Another possibility is that the other countries would find a way to go ahead without Britain, which might also involve the UK leaving the European Union. Although they could not evict Britain from the European Union, the 24 ratifying countries could themselves leave the Union, effectively dissolving it, and start again on the basis of the new constitution, which revokes all the preceding EU treaties.

Many advocates of closer integration do not see the UK as central to the EU project, but rather as a reluctant follower. Britain has declined to participate in important policy initiatives, such as the euro and the Schengen agreement on border-free travel among member states, and British Prime Minister Tony Blair successfully thwarted some of the more integrationist provisions initially proposed for the constitution.

France, Germany, Spain and Italy (which together account for more than 50 percent of the Union’s population) might try to convince the rest of the European Union’s members to adopt the constitutional treaty and go ahead without the UK. Some of Britain’s traditional friends and trading partners, however, such as the Netherlands, and non-euro members Denmark and Sweden, would almost certainly be extremely reluctant to see the UK isolated – as might a number of the new member countries, which do not relish the idea of a European Union dominated by France and Germany.

Many governments would be averse to effectively throwing Britain out. The debate over Britain’s status could thus turn into an argument about the entire future structure of European political, economic, diplomatic and military cooperation.

If, on the other hand, a smaller country such as Denmark or the Czech Republic rejected the constitution, its citizens might simply be asked to vote again on the same text, as happened after Ireland first rejected the Nice Treaty in 2001. Irish voters solved that problem by endorsing the Treaty in a second referendum, following a much more strenuous government effort to secure a “Yes.”

Ratification of the European Union Constitution

Country	Date	Type	Outcome
Lithuania	November 11, 2004	Parliamentary Vote	RATIFIED
Hungary	December 20, 2004	Parliamentary Vote	RATIFIED
Slovenia	February 1, 2005	Parliamentary Vote	RATIFIED
Spain	February 20, 2005	Consultative Referendum	APPROVED, but still needs Parliamentary Vote
Italy	April 6, 2005	Parliamentary Vote	RATIFIED
Greece	April 19, 2005	Parliamentary Vote	RATIFIED
Latvia	First Half of 2005	Parliamentary Vote	"YES" likely
Cyprus	First Half of 2005	Parliamentary Vote	"YES" expected
Estonia	First Half of 2005	Parliamentary Vote	"YES" likely
Germany	May 12, 2005	Parliamentary Vote	"YES" likely
Belgium	May 2005	Parliamentary Vote	"YES" expected
Austria	May 2005	Parliamentary Vote	"YES" expected
France	May 29, 2005	Referendum	Uncertain, but "NO" possible
Slovakia	End of May 2005	Parliamentary Vote	"YES" likely
The Netherlands	June 1, 2005	Consultative Referendum + Parliamentary Vote	"NO" possible
Luxembourg	July 10, 2005	Consultative Referendum + Parliamentary Vote	"YES" expected
Malta	July 2005	Parliamentary Vote	Uncertain
Denmark	September 27, 2005	Referendum	Uncertain
Poland	Fall 2005	Referendum	"No" possible due to low turnout
Portugal	December 2005	Referendum	"NO" possible due to expected low turnout
Sweden	December 2005	Parliamentary Vote	"YES" expected
Finland	End of 2005 or Early 2006	Parliamentary Vote	"YES" likely
Ireland	End of 2005 or Early 2006	Referendum	"YES" likely
United Kingdom	May or June 2006	Referendum	"NO" possible
Czech Republic	June 2006	Referendum	Uncertain, but "NO" possible

Sources:

• BBC News http://news.bbc.co.uk/1/hi/world/europe/3954327.stm
• European Policy Institutes Network (EPIN) Working Paper No. 12 http://www.epin.org/pdf/WP12_KurpasIncertiSchoenlau.pdf
• Europa.eu.int

If, however, a small country voted against the constitution a second time, it might ultimately have to leave the European Union. The vast majority supporting the constitution would not be prepared to abandon the treaty because of a single, less than heavyweight holdout.

In deciding whether to hold a second vote, much would depend on whether a country had rejected the constitution by a small or large margin. If, for instance, two-thirds of those voting in a referendum said “No,” it would be politically difficult to hold another vote on the same text. A close result, on the other hand, would make a re-run plausible. A low turnout could provide a reasonable excuse for organizing a second vote, while another consideration might be whether voters had really rejected the constitution or were punishing their government for unrelated domestic reasons.

If voters in only one state rejected the constitution by a small majority, following a low turnout and a campaign dominated by domestic issues, they could probably be summoned back to the polls. It would be difficult, however, to hold a second referendum in countries with deep anti-EU tendencies, where it was clear that the rejection was not an accident but a genuine “No” to the constitution, as might happen in the UK.

One option, at least in theory, would be to amend the text of the constitution to render it acceptable to a country that had rejected it. This would only make sense, however, if it were clear that voters had rejected the constitution because they opposed some of its specific elements and not the entire project. And it would present serious practical difficulties.

Different countries have problems with different aspects of the text.While many people in France object to the treaty because it does not go far enough toward a harmonized European social policy, the British and the Poles are against any further social policy integration. The French find serious fault with the treaty’s failure to abolish the national veto on tax policy, whereas any reference to taxation in the constitution is anathema to the UK and Ireland.

“It would almost certainly be impossible to agree on a list of changes to the treaty acceptable to all countries”

It would almost certainly be impossible to agree on a list of changes to the constitution that would be acceptable both to the country or countries that had rejected it and to those that had approved it. An additional problem is that if the constitution were revised to secure the assent of one reluctant state, all the countries that had already ratified it would be obliged to repeat the exercise. And if 24 other countries had already ratified the treaty, many of them in hardfought referendums, they would be unlikely to want to renegotiate the treaty and go through the whole agonizing process again. A revision of the treaty is thus unlikely to occur if only one state rejects it.

A second option might be to grant a special position within the European Union to states that failed to ratify by allowing them to opt out of some policy areas – the solution that was offered to the Danes after they initially rejected the Maastricht Treaty in 1992. It would be hoped that following the granting of opt-outs, the constitution would in the end be accepted by the people, as happened in Denmark.

“Europe might stumble on a formula that could have averted the war between the American North and South 144 years ago”

Again, however, such a solution could only work if the rejection was due to opposition to specific elements of the constitution in specific policy areas. Opt-outs are in any case not applicable to institutional arrangements: it would be impossible, for example, for a member state to opt out of the proposed new voting system in the Council of Ministers and unilaterally apply the old system. The scope for opt-outs would also be limited by the fact that in most policy areas the treaty does not extend the Union’s authority much farther than all the member states have already long accepted.

Most leaders of ratifying countries are, therefore, likely to stand by the constitution, unless it were rejected by states that are at the heart of the EU project.

Leaders who had campaigned to get the constitution adopted would regard it as a political setback if they agreed to drop the treaty because some other states had rejected it. Even though, as things now stand, the constitution could not technically enter into force, political and legal solutions would have to be found to allow the ratifying states to go ahead without being blocked by one or more countries that failed to do so.

Three scenarios are possible. Under the first, the non-ratifying states could leave the European Union after negotiating new political and economic arrangements falling short of full membership. Such countries could become special associates taking part in single marketrelated programs, the customs union and the common commercial policy. They would participate in almost everything except political integration, and could perhaps join the European Economic Area, or a beefed-up version of it.

This would be something like the status sought by many opponents of the constitution, and of the European Union, in Britain.Meanwhile, the ratifying countries would remain in the European Union, or invent a new more integrated version of it, and apply the provisions of the constitution. The continent could return to something like the division into the six-nation European Union and the seven-nation European Free Trade Association that prevailed in the 1960s, although with much closer links between the two groups.

Under the second scenario, all current member countries, including the non-ratifying states, would remain in the Union. But the ratifying countries would create a more tightly integrated hard core inside the Union by adopting the constitution without waiting for the non-ratifying countries. The non-ratifying countries would maintain something like their current degree of economic and political integration inside the Union.

This arrangement, however, would be extremely difficult to operate in practice, especially if the core group were governed by the constitutional treaty and the looser group by the Treaty of Nice. The two treaties, for instance, provide for different voting systems in the Council of Ministers, different numbers of members per country in the European Parliament, and different compositions of the European Commission. EU lawyers contend that such a system would be unworkable.

That conclusion leads to the third scenario, which would be similar to the second, except that the hard core states would not introduce all the constitution’s provisions. They would drop the constitution’s institutional provisions and apply the policy initiatives it would have introduced on a piecemeal basis. It is possible that some of the non-ratifying countries might want to join in some of these initiatives, for example the UK in closer defense cooperation.

That would be an untidy solution, but it seems in many ways the most likely – unless, that is, the split between ratifiers and non-ratifiers developed into serious hostility. The biggest question would be whether the non-ratifiers would be asked for a commitment to join the integrated policies of the hard core at some time in the future, or whether the division into a quasi-federal and an inter-governmental Europe would be allowed to become permanent. In the latter case, Europe might inadvertently stumble on a formula that could have averted the outbreak of war between America’s Northern and Southern States over similar issues 144 years ago.

Dana Spinant is the Brussels-based editor of European Voice, a newspaper belonging to The Economist Group. She is also the EU correspondent of the largest Romanian TV station, Protv, and of a Romanian news agency. Before joining EV in 2002, she was co-editor of the EUobserver.com news service and was previously editor in chief at the news department of Antena 1 TV in Bucharest.


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