Sherpas are concluding consultations – next steps

The Sherpa consultations of the German chief negotiators Silberberg and Corsepius with their counterparts from the other 26 member states have been concluded last week. Now, they are preparing a draft paper for the European Council. To some extent surprisingly is that the paper for the summit will already include a very detailed overview of concrete decisions with a long(er) list of “non-negotiables”, i.e. agreed issues based on the Constitutional Treaty, and “issues for decision” with (two) concrete and well-formulated alternatives on which the leaders need to agree on the summit. A last Sherpa meeting on the 19 June will pre-discuss the conclusions of the summit. In practice the German presidency actually wants to decide on all unresolved political-institutional issues during the summit, while only leaving the legal formulations to a very short IGC (July-October). This IGC is so soon to be opened with the European Parliament already giving its opinion (formally required under article art. 48 EU Treaty) in the middle of July, a Commission statement on 10 July and a finalised Treaty during the Portugese Presidency. Ratification shall already be concluded during the following Slovene presidency, i.e. until summer 2008.

The Sherpa method has been the least democratic exercise since the EU’s existence

Even though many actors had strong hopes in the German presidency solving the constitutional still-stand, Chancellor Merkel and all her environment were very careful to point out that all they wanted to do, was to present a road-map. This has also been the mandate given to them – and the basis for the reports of the European Parliament – and national parliaments. The big surprise of the German presidency now is that they will present a very detailed solution to all institutional questions at the June summit already. This means in essence that the German presidency has outplayed even the least democratic mode of Treaty change – an Intergovernmental Conference (IGC). Such a conference at least means that national parliaments and the other institutions have a formal procedure and some means of democratic scrutiny available.

The Sherpa method has only promised to work on the organisation of an IGC – a road map. Consequently, parliaments have practically been excluded from the discussion of such fundamental changes to the Treaties – or the Constitutional Treaty. Not a single official paper has been presented during the past six months with any position or discussion framework for the institutional debate. When we published the unofficial questionnaire (12 issues) of the German presidency, we got even criticism from German officials for doing so. – On an informal level, Sherpas have obviously briefed central national parliamentarians concerned with EU issues in many member states – but even there you never know if they are actually providing you with the whole picture.

While the elected democratic institutions (national and European parliament) have practically been denied any democratic scrutiny of the whole process so far, the consultation of organised civil society has been even worse. The only one of the three institutions with some positive outreach has been the Commission which has granted at least a budget for debate inside its Plan D initiative from last year. Apart from that Commission officials still seem to be the most accessible to NGO representatives and media – while possibly also being those with very little practical influence on the whole Sherpa process.

The European Parliament has started big – and landed very low

The initial reaction of the Parliament after the no-votes was to task MEPs Duff and Voggenhuber with a report on the institutional crisis. Both started with very good and ambitious proposals by proposing a well-structured format for a European debate on the problematic issues of the referendums as well as a commitment to submit any future Treaty change to a consultative ballot. The latter issue has been killed by a majority of fear (or laziness) from the two big groups (and recently even been given up by Duff himself). The proposal of debate has partly been stopped by the letter of the three presidents of national parliaments (Khol, Lammert, Lipponen) who prevented the suggested Interparliamentary Forums from becoming a European forum of debate. Secondly, the Parliament – as so often – has been incapable of following up its own resolutions by not pushing hard enough for inter-institutional co-operation in order to facilitate a common European process of debate.

Between the adoption of the Duff-Voggenhuber report in January 2006 the EP has been silent until early June 2007 – i.e. 15 months of calm.

The Baron Crespo – Brok report on the road map which has been adopted now is unfortunately a renewed example of an institution that prefers to follow instead of leading: a) the report comes half a year late – if the EP had really wanted to influence the outcome of the German presidency negotiations, it would have to define its potentially more ambitious goals until January 2007 and get involved in the negotiations with at least some credible and ambitious own Sherpas; b) all the report is demanding (again) is to stick to the substance of the Constitutional Treaty – instead of defining a credible and much more ambitious agenda when it comes e.g. to new competences in the field of energy, climate change, immigration; c) the report has given up the idea of involving the citizens through means of European referendum / consultative ballot or indeed any other form of consultation; d) the pure invitation of two MEPs to the upcoming IGC is apparently enough to make the Parliament happy as a means of involvment. Why has this institution that has promoted the Convention so strongly for long, not called for some sort of mini-Convention starting during the German presidency and replacing the IGC and Sherpa consultations?!

No involvement of national parliaments

The lack of involvement of the European Parliament is possibly equal to a disillusion of formerly motivated federalists (who mostly run the show of the Constitutional Affairs committee AFCO). However, for national parliaments the missing engagement is somehow even more striking when looking at it from a European perspective. Apparently not a single national parliament has given any formal instructions to the negotiation position of its government and Sherpas during the consultations of the past half year (only from the Czech Republic I heard about the struggles between the pro-European Greens towards their eurosceptic government). To some extent you can possibly blame it on the fact that also national parliaments were believing that this process has only been chosen to prepare a “road map”. But at least during the last 4-6 weeks, national parliaments should have had a serious word with the governments they are supposed to hold accountable.

Strategy determines outcome

The underlying philosophy of the German presidency and key forethinkers of the Sherpa process has apparently been to avoid the “mistakes” of the past, i.e. the two lost referendums. Minimising the number and influence of national referendums was therefore the ultimate strategy of the whole process. – Keeping the citizens out of the process is obviously a concept that has worked very well in the past years in order to bring up public opinion and debate about Europe…

In the case of the Dutch, British and other situations a more fundamental Treaty change would have to be put for referendum for legitimate and political reasons. Since such referendums were expected to be lost, the central starting point has been to avoid referendums – implying a clearly less ambitious reform than originally foreseen. To think that such a process might not go down too well in countries that have said no to the Constitutional Treaty in the first place and are confronted with only a slightly slimmed-down new Treaty is not on the mind of the bureaucrats who rule in our European “democracy”.

My guess on an outcome of the European summit in Brussels

The basis for Constitutional change will be the current hypercomplicated Treaties (EC & EU) and not the Constitutional Treaty. This means that the innovations will be put into the format of the old Treaties and inserted where applicable. The Germans are still hoping to somehow merge the two Treaties into one, but that probably simply remains as a technical exercise for some lawyers and will result in the hoped-for book I could take into a school class when discussing the EU.

Legal personality is most likely to be granted.

The symbols will go out.

The wording of directives and regulations will possibly remain as it is.

There will be no formulations on “social Europe” and surely no extra protocol.

On energy and climate change there will be no extra provisions or indeed structural changes but probably some sort of declaration or protocol on energy security. This comes as a possible buy-out to the Poles.

The institution of the foreign minister will remain but with a different title.

The role of future presidencies is not yet sorted out. While a majority wants more continuity, the final decision remains open.

Another open issue is the question of the pillar-structure and full co-decision for the European Parliament. Apparently the Sherpas are optimistic on both items. Only Britain seems to receive a veto or opt-out for matters of Judicial and Home Affairs (JHA).

The reform of the voting system should remain as proposed in the Constitution but the Poles have to be side-paid somehow.

Even though no national parliament has actually indicated any strong feelings about the actual institutional issue, the so-called subsidiarity watch will be beefed-up. If one third of national parliaments regards a legislation as infringing on subsidiarity, the Commission has to change its proposals.

Finally comes the Charta of Fundamental Rights. The biggest progress with this charta is that it defines some new rights with regards to data protection, administrative management/treatment and bioethics. However, concern is potentially related to the much more common provisions on the right to strike and for housing. The British cause some serious trouble here and for sure the charta is not part of the text, but the Sherpas still hope that they make it legally enforceable through a reference from the Treaties.

What to do with the summit outcome

When you take the already existing democratic deficit and add the reforms resulting out of the coming summit, it is very questionable for me, if there is any reason to support such an outcome. Given the fact that many EU policies (agriculture, fisheries, trade, police cooperation, budget), are practically out of parliamentary control already, the creeping corrosion of European democracy only seems to continue. In that sense my red line really is the Charta of Fundamental Rights. If it does not turn out to be legally enforceable, I do not see any reason to support the reform. And this is not even to talk about the total disregard of the principles of transparency and parliamentary involvement in the process of supposedly democratic reform.

Maybe this reform that started so promising, but was managed to utterly devastating by most governments, will eventually lead to the first federalist campaign against Treaty reform. Let us see what Merkel delivers next week and if she and her colleagues are brave enough to take up some of the demands we presented in our open letter to her.


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