JURIST Guest Columnist Dr. Laurent Pech, Jean Monnet Lecturer in European Union Law at the National University of Ireland, Galway, and a native of Aix-en-Provence who returned to France to vote in its referendum on the European Constitution, says that French rejection of the charter was based on several legal and political factors, and presents a range of possible scenarios for France and the future of European integration…

Let's admit it. We voted "Yes" on Sunday in Aix-en-Provence. Indeed, while French voters nationwide said No to the "Treaty establishing a Constitution for Europe" by a clear majority of 54,87 per cent, Aix-en-Provence voted 54,89 per cent Yes. This "Yes aixois" at least provides some consolation to supporters of the new EU charter.

The French "constitutional" debate was definitely impressive in its intensity and length. And it was certainly positive to see the French citizenry inject politics into the European debate over a legal document. On the other hand, referendums have the unfortunate potential of liberating frustrations and fears. And above all, the French No is a patchwork of inconsistent claims: essentially a no to what is called “Anglo-Saxon” Europe and its “neo-liberal” policies, a no to unemployment and social dumping (the “Polish plumber”) and finally, a no to Turkey. With ideological absolutism on the left side of the political spectrum and a deeply unpopular government, these ingredients have proven fatal to the proposed European Constitutional Treaty.

With the benefit of hindsight, I would argue that the usual portrayal of the text as a “Constitution” may have been the decisive fault of its drafters. Indeed, not only is the term constitution synonymous in the mind of most voters with intangibility, therefore dramatising the debate, it also spectacularly raised expectations. And these expectations could only be disillusioned by the reading of a document of 448 Articles (I do not share the criticism of the alleged excessive length and complexity of the European text, but space precludes further analysis of such constitutional ignorance). As I said in a previous JURIST op-ed, my reading of the constitutional treaty leads to this modest conclusion: it does not revolutionize the nature of European integration, therefore the complexity of its decision-making process somewhat persists. Yet the European text plainly offers the perspective of more efficiency, more transparency and a satisfying improvement of the Union’s democratic pedigree.

With only modest visible improvements brought by the European Constitution and no alteration to the sui generis nature of the European Union, any defence of the text was a delicate challenge from the start. The original and therefore relatively complex development of European integration made it very simple for deceitful politicians to raise fallacious arguments. While the extreme-right’s obsession about the prospect of Turkish adhesion to the EU did not constitute a surprise — one may then wonder why European leaders did not assume that opening accession negotiations with Turkey the year the Constitution had to be ratified would not help the constitutional debate — the linking of the European Constitution with widespread fears of “social dumping” and outsourcing was somewhat unanticipated. Such allegation has found deep resonance with left-wing voters. It was however unsurprising considering that the “social dumping” accusation had been popularised for years by an influential association of “alterglobalists” (ATTAC) in its fights against the World Trade Organisation. And it was certainly the most destructive claim raised against the European Constitution.

While I do not claim any particular expertise to evaluate the effects of globalisation, I can affirm without a doubt that the Constitution, in itself, is neither neo-liberal nor socialist: it remains a framework embodying all European values. It is therefore left to the Member States to subsequently define sound public policies. To single out a particularly foolish dispute, the reference to a “social market economy” at Article I-3(3) revealed deep and embarrassing ignorance. Some non-Weberian “experts” went as far as to compare the European Constitution to the capitalistic component of the USSR Constitution. It was alleged that these two texts are the only examples of constitutions embodying the economic principle upon which the society is organised and some would add, condemned.

It is difficult to know where to begin with this kind of statement. First of all, is there an effective alternative to a market economy, a North Korean or a Cuban type of socialism perhaps? More fundamentally, the dishonesty of the argument becomes apparent once Article I-3(3) is read in its entirety:

The Union shall work for the sustainable development of Europe based on [emphasis added] balanced economic growth and price stability, a highly competitive social market economy, aiming at [emphasis added] full employment and social progress, and a high level of protection and improvement of the quality of the environment. (…) It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child. (…) It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced.

Does it require a high degree of intelligence to understand that the market economy is actually a means to fulfil social goals which happen to be downright innovative ones? Incidentally, one may ask: with no historical precedent in the constitutional texts of democratic societies, should the reference to “social progress” or “social exclusion” also to be found illegitimate?

The self-proclaimed “progressives” are mysteriously selective in their reading of the Constitution. If they undertook in good faith a genuine reading of the document they might well discover among the “provisions of general application” (Articles III-115 to III-122), the unprecedented affirmation which defines and implements the entire set of policies and actions referred to in the Constitution, “the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health” (Article III-117).

No, really, the discussion on the insufficiencies of “social Europe” was simply either a joke or a zealous act of dishonesty.

During less confusing times, the use of these two adjectives had been reserved to describe the "views" of rightist Jean-Marie Le Pen. They can now easily serve to characterise Laurent Fabius’ views on the European Constitution. Thanks to the Machiavellian former Prime Minister, implicit xenophobia towards Eastern Europeans (I refer to the popular, albeit nauseating, metaphor about the “Polish plumber”) has gained the hearts and minds of left-wing voters. So much for workers’ solidarity…

More fundamentally, it may be argued that the French No vote is the ultimate fruit of a degenerate politico-administrative elite, which simply cannot escape from its roots of intellectual constraints in a bureaucratic model of economic growth (read stagnation) and social organisation (read bankrupted model). With the end of the
Cold War and subsequently, the EU's enlargement to 25 Member States, it would have been necessary to explain the rationale and the continuing benefits of European integration. Unfortunately, the European Community has been constantly used as a convenient fig leaf to hide national incompetence in tackling national issues. Instead of offering long-term vision and well-thought compromises to its European partners in order to effectively pursue well-defined goals, the Presidency of Jacques Chirac has simply been an exercise of shifting blame and escaping accountability.

What’s next?

The No-camp has deluded itself with the perspective of “lendemains qui chantent”. Widely presented as the triumph of “Anglo-Saxon” views, i.e., a minimalist vision of European integration with an absolutist emphasis on free trade and market mechanisms, there remains hope for a more “social” and “political” constitutional text to be renegotiated.

From a legal perspective, the rules governing the entry into force of the Constitution are clear-cut: unanimous ratification is required. No matter how practically absurd in a Union of 25 Member States, such unanimity is actually the clearest indication that the Member States retain the entirety of the "pouvoir constituant." In other words, it does not give life to a new sovereign power following a European-wide referendum of self-determination and will not lead to the materialization of a “superstate”, an unhealthy fixation in some quarters… In any case, without unanimous ratification within two years (before November 1, 2006), the Constitution cannot enter into force. Apprehensive of future hurdles, the Member States did, however, give themselves some political latitude by agreeing (in a Declaration appended to the Constitution) to review the situation where hypothetically four fifths of the Member States have ratified the Constitution, but one or more have “encountered difficulties” in doing so. Yet, according to many officials, there is no Plan B if the Constitution falls victim of a French “Non” vote. Is that so?

In reality, a few potential scenarios can be anticipated.

The first is a simple one. The French No vote associated with a high turnout (especially if reinforced by a Dutch No) is likely to see the constitutional project condemned to the dustbin of history. No attempt will be made to hold a second referendum, as was the case with the Maastricht Treaty in Denmark or the Nice Treaty in Ireland. As a result, the status quo remains, meaning the deficient Treaty of Nice keeps governing the newly enlarged and, at this point ungovernable, European Union. And if some Member States are willing to further European integration, they may rely upon the provisions governing “enhanced cooperation” (Article 43 TEU). The conditions attached to the implementation of such cooperation being so cumbersome, it is unrealistic to expect such an outcome. A more realistic one is to see a lethargic EU trying pathetically to cope with the challenges of a globalized world.

A second scenario could see four-fifths of the Member States being governed by the Constitution. Their relationship with the Member States who did not ratify the Constitution will be governed by the current rules. Such a scenario, however lawful under international public law and in particular the 1969 Vienna Convention on the Law of Treaties, remains highly unrealistic as Member States would find it extremely impractical to work under differing rules of voting arithmetic or institutional composition.

While the “Russian dolls” scenario (a core Europe being governed by the Constitution while the current treaties are still maintained in force) is doubtful on pragmatic grounds, the history of past negotiations also tells us something about “opt-in” and “opt-out” protocols. Such devices were brought into play when the United Kingdom expressed its opposition to some of the EC Treaty’s social provisions. Ireland also benefited from an opt-out clause, in association with the United Kingdom, regarding immigration matters and judicial cooperation in civil and criminal matters. Concretely speaking, specific provisions of the EC Treaty were thus limited in their geographical scope.

To draw on this parallel, would it be feasible to conclude a separate protocol with France and hold a second referendum? Such a scenario worked in the cases of Denmark and Ireland, however, it is unlikely in the present case. It would be necessary to determine from what constitutional obligations France should be exempted: from the neo-liberal aspects of the text, perhaps? This is an indefinite allegation bearing no direct link with the Constitution… As an additional obstacle, France would need to convince its partners of the legitimacy of an opt-out protocol. In any case, there may little appetite for political suicide in France, and knowing the French psyche, a second referendum might actually make things worse. What if indeed a second No vote complicates an already intricate situation?

The last major potential scenario, the most revolutionary and thus the most implausible, would be France’s withdrawal from the EU. The current treaties, however, are said to have been concluded for an unlimited period (Art. 51 TEU and Art. 312 TEC) and they do not provide for any right to withdraw. Whilst the EU Constitution expressly states — for the first time — the existence of such right (Art. I-60), such a rule cannot be relied upon before ratifying the Constitution. Yet no one doubts, no matter these legal niceties, that a Member State with the clear will to withdraw could unilaterally do so as the ultimate foundation of European integration is to be found in the Constitution of each Member State. A contrario, no Member State could be legally compelled by its peers to withdraw from the Union following a refusal to ratify a treaty.

Ultimately, in the short run, the status quo is the most probable short-term scenario with the potentiality of a “soft” constitutionalisation of the current treaties through the back door. The Constitution represents indeed a respectable compromise and a necessary improvement. Any requiem for it may be too difficult to accept. As a result, it would not be surprising (nor legally too troublesome) to see some provisions of the Constitution being inserted into the current Treaties or applied outside the EU framework. And who knows, it could not entirely be excluded that a newly elected French President may decide to hold a second referendum in 2007.

Some wishful thinkers have argued a French No vote will open a “salutary crisis”, leading to a more “social” and “federalist” Europe. Whilst it could be rightly argued that the European Union has for too long suffered from ambiguity regarding its final destination — an ambiguity inexorably leading to a complex institutional architecture and an uncertain legitimacy — a French No vote (rather than a British No) is more likely to lead to a persistent and imperfect status quo, and one deeply prejudicial to the French reverie of an “Europe puissance”.

The irony of all this is that French voters may realise too late that for all its imperfections, the European Constitution offered the hope of political leadership at a level where the social impact of globalisation could be effectively managed. And for those keen on mechanically emphasizing the cardinal value of national sovereignty, they may come to realise that — apart from dealings with the American hegemon — national sovereignty can best be protected by giving some it up locally with the hope of gaining it at the level of the European continent.

Dr. Laurent Pech is Jean Monnet Lecturer in European Union Law at the National University of Ireland, Galway, Ireland and a native of Aix-en-Provence, France who voted in the French EU constitution referendum.
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