The Merkel Summit: first reflections 24 June 2007

Introduction
Many pages will be written analysing the remarkable European Council meeting of 22-3 June 2007 and precisely what was agreed. Here are some early reflections.

The summit belongs to German Chancellor Angela Merkel, who over several weeks, put in an extraordinary effort to persuade 27 Member States to agree to a new treaty to replace the doomed Constitutional Treaty. She argued, she cajoled, she schmoozed. She was single-minded in her determination. And soon after four o’clock on Saturday morning, she succeeded.

Agreement to have a new treaty was more important than what was agreed be in it. Failure would have had serious negative consequences for the working of the Union, the atmosphere within its institutions, the attitude of its citizens and its standing in other countries. The summit proved that 27 countries, however diverse, can agree if they want to and augurs well for the future.

It was hard for most of us to believe that Poland would use as a reason for being entitled to more votes in Council that the Germans killed six million Poles in World War II, an approach totally contrary to the very spirit of the European Union. While in Poland talk about this may be commonplace, it certainly shocked the Western Europeans. Poland, under twin-power, looks likely to continue to play a spoiling role in the EU. Its leadership appears to be Germanophobe, somewhat hostile towards the Union, and rather ignorant of the way it works.

However, imagine today’s Poland facing up to a Germany if there were no EU. This should be a graphic reminder of the Europe from whence we came. The very existence of the Union for half a century is proof of its value: these bitter battles are now waged with words and not arms. Great credit must be given to the subtle drafting of the various compromises to enable the different players to present the agreement in a way that suits them. The summit also showed that the concepts of mutuality and solidarity are still alive in the Union.

Agreement
Although its name has been changed to “Reform Treaty”, very little of the substance of the Constitutional Treaty was discarded, but the structure and form of the new treaty will be drastically different. First and foremost, it will be an amending and not a consolidating treaty, reducing very substantially its bulk. The potential sticking points at the summit concerned, as usual, the United Kingdom together with the Netherlands, France and the Czech Republic, in addition to Poland. It seemed clear from the outset that the only risk of a veto was by the UK or Poland. The worry was that although Blair had his ‘red lines’, his approach was rational, whereas Kaczynski’s approach was extremely emotive. Merkel made it clear that she would, if necessary, ask the European Council to convene an intergovernmental conference (IGC) even if there were not unanimity. The 1985 Milan summit was the first precedent for this, the IGC leading to the Single (European) Act being convened despite the negative votes of, in particular but not only, Mrs Thatcher.

Main contents of agreement
EU president
A European Council president will be elected for a term of two and a half years, renewable once. The rotating presidencies will end.
EU foreign minister
Although, at the UK’s insistence, he will be called The ‘European Union High Representative for Foreign Affairs and Security Policy’ (a mouthful which will not in practice be used by third parties), the EU foreign policy supremo will also be a vice-president of the Commission and preside over the Foreign Affairs Council. An EU “external action (ie diplomatic) service” will be created.
Extension of qualified majority voting
This will become the rule for 51 more policy matters. Unanimity will continue to apply for foreign policy, social security, taxation and culture. The UK has a derogation for judicial and police cooperation.
New voting system
The new double majority voting system in Council (55% of Member States representing 65% of the population) will not enter into force until 2014 with a 3-year transition period thereafter.
Strengthening of European Parliament
The co-decision procedure is to be extended to new areas, such as justice and home affairs.
Role of national parliaments
The national parliaments will have an early warning mechanism that can be used to challenge draft EU legislation for not respecting the principle of subsidiarity.
Charter of Fundamental Rights
The EU Charter of Fundamental Rights will become legally binding, but will not be ‘judiciable’ in the UK.
Competition
At the request of France, the reference in the Constitution Treaty to “an internal market where competition is free and undistorted” is being deleted. However, a new legally binding protocol will state that the internal market includes a system ensuring that competition is not distorted. The previous competition policy provisions in the treaties are all preserved. Thus, Sarkozy can claim this in France as a political victory but it does not appear to have any legal effect.
Public services
A protocol will state that the treaties “do not affect in any way the competence of Member States to provide, commission and organise none economic services of general interest.” This provision will need careful analysis before reaching any conclusion as to its legal effect. The political opposition from France and Germany to the Commission’s attempts strictly to apply state aids policy is likely to grow, whatever the new treaty says or doesn’t say.
Legal personality
The Union will have legal personality, enabling it for example, to accede to the European Convention on Human Rights.
Enhanced cooperation
The ability of nine or more Member States to work more closely together in an agreed policy area will be facilitated.

Procedure
The IGC will begin on 23 July 2007 and the Portuguese presidency may well have the draft treaty ready by then, as most of the detail has already been worked out between the 27 Member States. The IGC will be concluded as soon as possible but, in any event, this year. This should allow time for the treaty to be ratified by the Member States and approved by the existing European Parliament ahead of the June 2009 elections.

Ratification
The decision on whether to hold a referendum is that of each Member State. Ireland is constitutionally bound to hold one. France and Netherlands have stated their intention to ratify through their parliaments only. The Danish position is not yet clear. That leaves the UK.

The UK is not constitutionally bound to hold a referendum, but Blair promised to hold one to ratify the Constitutional Treaty. He now says that as it is now only an amending treaty, it is not necessary to hold one. The virulently Eurosceptic British press is already calling for one upon the basis that there is no change in substance between the Reform and Constitutional Treaties. This is a political issue and Brown will have to make a difficult decision.

David Cameron, the Conservative party leader will also have a difficult decision to make. If he campaigns for a referendum, there may be a split with Ken Clarke (who has already stated that a referendum would be “ridiculous”) and others, and the most vociferous Conservatives are likely to be on the right wing of the party, the very constituency from which he is trying to distance himself.

My guess is that Gordon Brown will not wish to have his stewardship plagued with the ‘Europe question’ and will take an early decision not to hold a referendum – it is easier for him to do so than Blair. However, so little is known about his thinking that anything is possible.