Eight years have elapsed since the Laeken Declaration of the 15th December 2001 which stated that an ambitious European text was needed which established a clear division of competences between the Union and member states and simplified legal instruments. It also specified the need to fill the Union’s much maligned democratic deficit, to strengthen the role of national parliaments in the EU legislative process and to incorporate the Charter of Fundamental Rights, adopted at Nice in December 2000. Let’s not think about the time wasted through member states quarrelling and let’s not think about the final text, which not only is unreadable for ordinary mortals but, in essence, is also no different from the draft constitutional treaty abandoned in 2005. Now that we are all getting cold feet at the idea of renegotiating other treaties in the future, can we ask about EU membership and draw some conclusions? These more abstract questions about the Union undoubtedly determine its future.

The advantage presented by the “Constitution” of Europe was that it was readable. The attempt to make it coherent has been undermined to the detriment of all. People certainly do not read the Lisbon Treaty. Neither do the politicians, who interpret it to suit their national interests. Pro-Europeans are pointing the finger to keep misunderstandings whilst avoiding confrontations. Which line must we take to stay democratic? What is certain, the Treaty has become unreadable for non-specialists and there is little real change at its core. But are there alternatives to our Union? Jean Monnet said it best; “our countries have become too small for the modern world, for the scale of modern technology, for what America and Russia are today and for what China and the India will be tomorrow. The unity of European nations gathered in the United States of Europe is the way to raise their living standards and maintain peace. She is the great hope and opportunity of our time.” The four years since the failed referenda have shown that the naysayers have only hindered Europe, without proposing an alternative. The insults have only led to more misunderstanding about the reference texts. Joschka Fischer was right in 2000 when he stated in Berlin that “all Member States of the European Union, those wishing to be part of it and especially its peoples would pay the ultimate price if Europe were to take a step back, or to simply stop or to rest on its laurels ...”

A democratic deficit or official hair-splitting?

Anti-Europe feelings are expressed throughout the continent; in Ireland in 2008 and 2001, in France and the Netherlands during the referenda of 2005, repeatedly in the United Kingdom and in Poland and Denmark in 1992. It cuts across all political dividing lines too, nationalists or leftists, farmers or officials in a political party or over a bar counter can all list the things wrong with the EU. A significant, often majority and generally un-consulted, part of public opinion in member states, issues harsh criticism on the development of European integration. The situation is clear: people want to be truly informed of the issues approved behind closed doors in Brussels and to be consulted more often on European issues. It is further necessary to distinguish popular criticism from that of irresponsible politicians reluctant to take Europe forward. In recent months, the Czech President Vaclav Klaus blocked ratification of the Lisbon Treaty claiming conditions which were already mentioned in the Charter of Fundamental Rights. Yes, the Charter only addresses “Member States only when implementing Union law and not when adopting and implementing national law independently of Union law”. For this he had to read the Charter Article 51. Mr. Klaus: Poland and the United Kingdom implemented Protocol No. 30 exempting them from the Charter, why did not you ask for the same if there were things which bothered you? The problem seemed to reveal a more personal, incongruous reluctance than the will of the people. In another development, the British Conservatives, until recently, promised to hold a referendum on the Lisbon Treaty once in power in 2010, a promise which they later retracted, as the referendum would effectively turn into a public judgement on whether to stay in the Union or not. But why avoid it? Since 1972, the United Kingdom has never been consulted on the matter. The same criticism could be made elsewhere.

Yes, everyone agrees by saying that the EU suffers from a lack of democratic legitimacy. Its structure is not that of a nation-state whose legitimacy is based on its historical and cultural base. Lawyers galore repeat that Montesquieu would never have passed by Brussels, suggesting that the separation of powers and constitutive law of our states find no application there. The sharing of sovereignty requires negotiations between the EU institutions and member states rather than a democratic foundation and a direct political majority which, obviously, are the chimeras of the Union in its present state. Its legitimacy rests principally on a quest for compromise and a constant renewal of national wills. These are driven by two things that seal contemporary Europe: a bloody history which one would wish to prevent repeating itself again and a future founded on solidarity in the face of international challenges, be they commercial, political, social or environmental. The “compromise” (from the Latin compromissum, “the act of a common promise”) results from negotiations in which each member state hands over partial sovereignty in a common commitment to pursue goals together. However, the “culture of compromise”, although the agreements signed in Brussels have supremacy, is still frowned upon by national public opinion. What should we do to promote a balance between the relentless culture of openness and the immutable conception of popular democracy?

Democratic instruments in search of renewal

The objectives of the Union are not valued equally by all. The question of whether the Union is moving toward or away from a federal system belongs to the theoretical predictions. More important would be to determine popular wishes and to consult the public on more specific questions. Why not start political debates on a European scale prior to harmonization measures? For example, creating instruments of consultation would allow everyone to renew their confidence in a Union desperate for legitimacy. A joint referendum on a European scale not being legally possible, why not imagine, like the European elections, simultaneous referenda or advisory opinions at regular periods every 10 years? Or a system of consultation in the form of questions and answers like the Swiss currently have? While the EU will give its citizens the image of being a group of “experts”, without introducing EU policy debates, it can not claim to be democratic.

The proliferation of opt-out clauses makes closer cooperation necessary

If the aspirations of member states within the EU are not the same, why not take different paths? Some want to pursue them, others want them to end there. Exclusion clauses, “opt-outs”, which allow member states not to participate in certain European policies are already numerous. The Lisbon Treaty lists the policies and the states which opt-out of them:

The Euro, the United Kingdom (Protocol 15), Sweden, Poland, Czech Republic, Lithuania, Latvia, Estonia, Hungary, Slovakia, Bulgaria and Romania; The Charter of Fundamental Rights this would apply only partially to Poland and the United Kingdom (Protocol 30) and, ultimately, the Czech Republic; Schengen (Protocols No. 19 and No. 20) and the “space of freedom, security and justice” (Protocol 21) the United Kingdom and Ireland; Denmark does not participate in political advocacy, justice and home affairs (Protocol 22), or the 3rd stage of EMU (Protocol 16).

This is without taking into account the states in the area of free trade (EFTA) (Switzerland, Norway, Iceland and Liechtenstein) which enjoy many preferential agreements with the Union, without fully engaging in the EU.

Despite appearances, the Union is nevertheless a “Europe à la carte”. The opt-out possibility should not hinder those member states who wish to pursue other policies. The provisions of Title IV of the Treaty on European Union (EU Treaty) allow, “in the framework of non-exclusive competences of the Union”, closer cooperation between States wishing to initiate more ambitious policies. In the social field, harmonization measures could be envisaged while excluding dissenting states. Much also remains to be done in education. Like Erasmus, the university exchange programme, other similar student exchange programmes could be created over the period of one year, following continued efforts to harmonize the writing of academic textbooks. As far as defence goes, it is currently obsolete to engage in armament policies alone. Et cetera, et cetera ... Let’s open discussion. When will there be ambitious reinforced cooperation with ambitious states?

The Europe - love it or leave it?

The option for states to withdraw from the Union is a major innovation of the Lisbon Treaty. In the version which came into force on December 1, Article 50 EC allows any state to withdraw “in accordance with its constitutional requirements.” In other words, a national government could make that choice if they have a solid majority in parliament. The European Council’s activities would be suspended in order to negotiate terms for withdrawal, like future relations between the EU and the state in question and determining the legal and economic consequences vis-à-vis former community obligations. It is a qualified majority of the Council which will conclude on behalf of the Union, with the approval of Parliament. Failing agreement, the Member State concerned may withdraw from the Union within two years after its request. The withdrawal of a Member State should be taken seriously. What would the consequences be? Questions would be raised about the usefulness of the EU common market, tariffs, free movement of persons, services, capital and goods, and countless joint ventures over 50 years ... When push comes to shove, a bad transposition of the acquis communautaire (EU law) harms states as much as the people. “Everyone [...] would pay would pay the ultimate price if Europe were to take a step back, or to simply stop or to rest on its laurels.” Let European democracy inform itself and express itself so it can fight this deeply human but also paralysing scepticism!

Headline photo: Presidency of the EU - Portugal 2007