The European Constitution after the Failure of the Constitutional Treaty

In a declaration annexed to the treaty of Nice (2001) the need to review the constitutional framework of the European Union was acknowledged. The Treaty of Nice and especially the conventional Treaty revision procedures were criticised heavily. The Laeken declaration of the European Council of December 2001 committed the EU to improve democracy, transparency and efficiency. A European Convention was established, presided over by former President Valéry Giscard d'Estaing. It consisted of Members the European Parliament and of the Parliaments not only of the then 15 Member States but also from candidate countries (including Turkey) and representatives of the governments of these States. The Convention elaborated a Draft Treaty establishing a Constitution for Europe which was the basis for the following Intergovernmental Conference, which agreed after difficult negotiations and some modifications of the draft on a text. There was an intensive debate on the Constitution of Europe, but more scholarly than in the public and even the national politicians. The European Union/Community had in fact and according to the jurisprudence of the European Court of Justice just a "Constitution" by the existing Treaties. Supporters said that this Constitution had to be put on a new basis having in mind the deepening and widening of the European Union opponents said that the European Union being not a State is not ready to get a Constitution. The Treaty establishing a Constitution for Europe was signed in Rome on 29 October 2004. To enter into force it needed to be ratified by all 27 Member States in accordance with their respective constitutional requirements. The Treaty has been ratified by 17 Member States but was rejected by national referenda in France and the Netherlands in 2005. The term "Constitution", which had been thought to be an incentive for integration, obviously had the contrary effect. The special problem of a rejection by the people of two founding Member States led to a period of reflection. At the June 2007 summit of the European Council under German Presidency EU leaders agreed after harsh negotiations, especially the Polish veto against the double majority rule for Council decisions (55 % of Member States and 65% of the population of the European Union) which could be dispelled by a compromise regarding the entry into force of these rules, on a detailed mandate to finalise the text of a new Treaty to reform the institutions of the EU. The new "Reform Treaty" shall amend the existing Treaties, the Treaty on European Union (Maastricht Treaty, revised by the Treaties of Amsterdam and Nice), which will keep its present name, and the Treaty Establishing the European Community (former European Economic Community), which will be called Treaty on the Functioning of the Union. The constitutional concept, which consisted in repealing all existing Treaties and replacing them by a single text called "Constitution", is abandoned. The "Constitution" label was discarded. All provisions, which could suggest that the European Union should become a "State" like the symbols (flag, anthem, motto) or the denominations "laws" and "framework laws" instead the existing denominations "regulation" and "directive", were not introduced into the Reform Treaty. The expressive provision of the Constitution on the supremacy of Union law over the law of the Member States will not be reproduced in the Reform Treaty but there will be a Declaration relying on the well-settled Costa/ENEL-jurisprudence of the European Court of Justice. In substance, however, the Reform Treaty will introduce into the existing Treaties (with some modifications) the innovations resulting from the 2004 Intergovernmental Conference, which were as shown above the basis for the Treaty establishing a Constitution for Europe. Therefore (with the exception of the British government) supporters as well as opponents are right saying that the Reform Treaty is the Constitution by any other name. The United Kingdom reserved a (questionable) opt-out clause regarding the European Charter of Fundamental Rights, which is connected with the Treaty only by a cross-reference but with the same legal value. New elements are according to new challenges references on climate change and energy solidarity. The Intergovernmental Conference was opened on 23 July 2007. The Portuguese Presidency has presented a detailed Draft Treaty amending the Treaty on European Union and the Treaty establishing the European Community. The final agreement on the Reform Treaty has been reached at the European Council summit in Lisbon on 18/19 October 2009. The Treaty of Lisbon, as it is now named officially, was signed on 17 December 2007. The Treaty of Lisbon shall entry into force on 1 January 2009 if it has been ratified by all 27 Member States. But it remains uncertain whether this project will run or not. There have been early attempts to reach re-negotiations, which have been rejected. And it is uncertain if in some countries will be referenda, which are obligatory in Ireland and (under certain circumstances) in Denmark. Nevertheless: The history of European unification has always been a matter of uncertainty and surprise – and, up to now, in the end a story of success.