Treaty Amendment, the Draft Constitution and European Integration

N Barber, R Ekins and M Cahill (eds) The Rise and Fall of the European Constitution, Forthcoming

31 Pages Posted: 18 Dec 2017

See all articles by Paul P. Craig

Paul P. Craig

University of Oxford - Faculty of Law

Date Written: December 15, 2017

Abstract

The significance of the Constitutional Treaty in the development of European integration is contestable, as attested to by the title of title of the project that gave rise to this book, framed in terms of the rise and fall of the European Constitution. Viewed in descriptive terms, it is a statement of the obvious, insofar as it signifies the fact that the Constitutional Treaty was never ratified. Viewed from a more normative perspective, the statement is implicitly tendentious, insofar as it might be taken to suggest that the failure to ratify the Constitutional Treaty has some deeper resonance for the limits of European integration, which is, as will be seen below, debatable to say the least. The argument in this paper proceeds in four stages.

First, the decision to establish the Convention on the Future of Europe was not irrational or misguided, when seen in the light of the circumstances that prevailed at the turn of the new millennium. We should be duly mindful of reasoning with the benefit of hindsight, and concluding that the failure to ratify the Constitutional Treaty attested to the error in the establishment of the Convention that led to its drafting. The contention that this failure is proof that the enterprise was misguided is, as will be argued below, a non-sequitur. The point being made here is, however, temporally prior, viz that the decision to engage in more far-reaching reflection on the nature of the EU was warranted when viewed from the time when the decision was taken.

Secondly, it was not pre-ordained that the Convention would produce a formal Draft Constitutional Treaty. The fact that it did so was the result of a conscious decision made by the President of the Convention, and the members of the Praesidium. This choice was readily explicable, and rational when viewed from the circumstances that prevailed when the Convention deliberations began. There had, over the Community’s history, been frequent recourse to high-level deliberations concerning its future direction, which commonly produced worthy recommendations that were well-received and led to little change. The Chairman of the Convention, Giscard d’Estaing, was cognizant of this and had no wish to preside over yet another such enterprise. This explains the astute political move, early in the Convention deliberations, when it was revealed that the Convention would indeed seek to draft a new Constitutional Treaty. This duly concentrated the minds of the participants, who engaged with the process mindful that real the outcome would be concrete Treaty provisions.

Third, it is mistaken to regard failure to ratify the Constitutional Treaty as signifying some dramatic turning point in European integration, such that its rejection was symbolic of loss of faith in the European ideal from which the EU never recovered. As an academic hypothesis, this has a nice ring to it, all the more so for being cast in duly apocalyptic terms. It does not, however, withstand serious examination, for two related reasons: the rationale for the French and Dutch rejection of the Constitutional Treaty in national referenda had scant connection to anything novel in the Constitutional Treaty; and ninety per cent of the changes contained in the Constitutional Treaty were accepted and incorporated in the Lisbon Treaty. The deliberations in the Convention on the Future of Europe were not, therefore, wasted rhetoric, nor was the drafting of the Constitutional Treaty a fruitless exercise. To the contrary, the regime that currently governs the EU is based on Treaty articles that were cut and pasted from the Constitutional Treaty into the Lisbon Treaty.

Fourthly, the legal and political reality is that European integration did not stop in 2004-2005, with the demise of the Draft Constitutional Treaty. The EU has been beset by three very significant challenges in the last decade: the financial crisis, the migration crisis and the rule of law crisis. There is, moreover, the challenge posed by Brexit. These crises have tested the EU’s resilience and continue to do so. There is, however, scant, if any, connection between these crises and the demise of the Constitutional Treaty. There is, by way of contrast, a connection between these crises and the development of EU integration. Thus while they posed severe challenges for the EU, they have also, in some instances, been the catalyst for increased integration, largely achieved within the framework of the Lisbon Treaty, as attested to by the enactment of a plethora of measures designed to increase centralized control over fiscal policy in the light of the financial crisis.

Keywords: constitution, EU integration, treaty amendment, Lisbon Treaty

Suggested Citation

Craig, Paul P., Treaty Amendment, the Draft Constitution and European Integration (December 15, 2017). N Barber, R Ekins and M Cahill (eds) The Rise and Fall of the European Constitution, Forthcoming . Available at SSRN: https://ssrn.com/abstract=3088481

Paul P. Craig (Contact Author)

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

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