Introduction

In 2000 the European Union (EU) entered the new millennium after two substantial treaty reforms, those of Maastricht and of Amsterdam, that had significantly expanded its mission and objectives, capacity for internal and external action and democratic credentials. Two fundamental treaty objectives, Economic and Monetary Union and the Area of Freedom Security and Justice (AFSJ), had been added, with the first resulting in the successful introduction of the euro on 1 January 2001 and the second equipping it in time with possibilities for action in a common European response to the new challenges of global terrorism in the wake of the 9/11 attacks that was unprecedented in terms of the range of instruments used. Treaty reforms were seen as a vital enabling factor in these and other recent progressive developments of the European construction, and there was significant support both in the EU institutions and in many capitals for a continuation of the treaty reform dynamic: on the one hand, because it was felt that still more changes were needed to prepare the EU adequately for the incorporation of up to thirteen new potential member states, with which the Union was at the time negotiating; and, on the other hand, because there was support, though more diffuse, for a further ‘qualitative’ leap forward of the European construction before or coinciding with the rapidly approaching ‘quantitative’ leap of enlargement. It was the combination of these two reform motives, the first more functional and the second more aspirational, which accounted for arguably the most ambitious European treaty-making effort – after the initially sobering experience of the 2000 Nice Treaty negotiations – since the founding European Community (EC) Treaties of the 1950s.

The eventual construction of this reform effort around the concept of a ‘constitution for Europe’ became at least in symbolic terms the high-water mark of European integration treaty-making since the founding treaties. The use of the term ‘constitution’ was not without its ambiguities: on the one hand, because it was applied to a ‘Union’/‘Community’ based on an international treaty concluded by its member states, with those states being its constituent members and not its citizens; and, on the other hand, because the term became a receptacle for a wide array of different treaty-reform propositions ranging from the truly radical, aiming at no less than steps towards a supranational transformation of the existing European construction into something like a federal state, to various treaty changes oriented at making the Union ‘merely’ more effective and democratic under a ‘constitutional’ label suggesting further consolidation rather than fundamental system change.

In any case, embarking on establishing a ‘constitution’ for the existing Union/Community carried its risks as such a venture would inevitably generate different connotations and emotions, with the very concept of a European ‘constitution’ likely to be more understandable and less prone to raise fears about some sort of a European super-state in countries that already had a federal constitutional order, such as Belgium and Germany, than in those with no such experience and, in addition, a strong sense of national sovereignty. The United Kingdom (UK), which had neither a federal order nor a written constitution, was probably the foremost example of the latter, but far from alone, with also some of the newly acceding countries not being keen on seeing their newly regained sovereignty glide partially out of their hands in a European ‘constitution’. But the risk was taken – and perhaps it had to be taken at some stage to test how far the member states as ‘masters of the treaties’ were willing to go with their common construction, which remains unique in the world.

This chapter will focus first on the genesis and content of the EU’s ‘constitution’ project as it emerged from the combination of a ‘Convention’ with an Intergovermental Conference (IGC). It will then look at the ratification disaster which engulfed the project, its not altogether smooth partial rescue by the Treaty of Lisbon and the long aftermath of Lisbon, concluding with a consideration of the role of member states as ‘masters of the treaties’ in the ending of the EU’s longest era of consecutive major treaty reforms so far.

The ‘Nice Leftover’

As was shown in the previous chapter, the IGC leading to the 2001 Treaty of Nice had been convened essentially to deal with a number of institutional issues which the Treaty of Amsterdam had left unresolved. These ‘Amsterdam leftovers’ – primarily concerning the size and composition of the European Commission, the extension of and redefinition of member states’ weighting under qualified majority voting (QMV) as well as the future size of the European Parliament (EP) – were indeed addressed, in spite of many criticisms, by the hard-won compromises at the Nice European Council in December 2000. Yet the new treaty came with its own sort of a ‘leftover’ which was at the same time broader in scope and less clear in its content.

The ‘Nice leftover’ consisted of no less than the very large unanswered question of the further orientation of the whole European project in a post-enlargement perspective. This went far beyond securing its institutional functioning and the resolution of balance-of-powers issues between the member states. The EP had already criticised the IGC on 3 February 2000 for its ‘excessively narrow agenda’, which ‘might well jeopardise the process of European integration’.Footnote ¹ This partly corresponded to – and responded to – a warning from the Commission published a few days before that the EU would be ‘profoundly changed’ by the upcoming major enlargement and that it ‘must not be weakened by it’.Footnote ² There was indeed an increasingly prevalent perception that the Union needed to fundamentally reconsider and reinforce its purpose, with some urgency since a widening without parallel (or even prior) deepening might well carry risks of disintegration because of the much increased diversity after enlargement. While member states were haggling inside the IGC – with few indications of more strategic visions – over the aforementioned institutional issues, outside the IGC not only activists and academic experts but also many politicians felt that a fundamental reconsideration of the future shape and orientation of the Union was urgently needed. In some member states these views found public expression at the highest political level.

On 12 May 2000, German Foreign Minister Joschka Fischer, speaking in a private capacity, presented at the Humboldt University in Berlin some thoughts on the ‘finality of European integration’ in which he advocated the development of the Union into a ‘European Federation’ with ‘nothing less than a European Parliament and a European government which really do exercise legislative and executive power within the Federation’ on the basis of a ‘constituent treaty’.Footnote ³ To this forceful appeal for a further deepening of the European project, French President Jacques Chirac responded on 27 June 2000 in a speech before the German Federal Diet with a less federalist vision, but still pronouncing himself in favour of an ‘institutional refoundation’ leading to a ‘European constitution’.Footnote ⁴ On 21 September 2000, Belgian Prime Minister Guy Verhofstadt followed with ‘A Vision of Europe’ presented at the European Policy Centre in Brussels which – while avoiding the term ‘constitution’ – called for a clarification of the Union’s ‘ultimate goals’ and warned about ‘slipping further’ towards an intergovernmental approach.Footnote ⁵ In the face of mounting federalist and constitutional ambitions, British Prime Minister Tony Blair felt prompted, in a speech given to the Polish Stock Exchange on 10 October 2000, to pronounce himself in favour of the Union becoming a ‘superpower’ via further efficiency-oriented reforms, but not a ‘super-state’, and advocated a ‘statement of principles’ rather than a legally binding ‘constitution’ as part of the objectives of the ongoing reform process.Footnote ⁶

It was, of course, a deliberate choice by Blair to give his October 2000 speech on the future of the EU in Poland as there were increasing concerns amongst the candidate countries that they were being sidelined in the debate on the future of the construction they were aspiring to join. Blair’s hint in his Warsaw speech that ‘nations like Poland, who struggled so hard to achieve statehood […] are not going to give it up lightly’ as well as his reference to ‘a Europe of free, independent sovereign nations’ could hardly have gone further in trying to enlist support from the candidate countries against more ambitious federalist designs. There were indeed mounting concerns amongst some current EU member states that the recently independent and sovereignty-conscious central and eastern European applicants would favour the preservation of the EU’s intergovernmental features.Footnote ⁷ To those states, various forms of differentiated integration appeared as potential safeguards against the risk of a standstill of the integration process after the approaching major enlargement. In their aforementioned speeches both Joschka Fischer – with a reference to a ‘centre of gravity’ – and Jacques Chirac – with a reference to a ‘pioneering group’ – had actually more than hinted at potential differentiation in the post-enlargement Union.

The full extent of the ‘Nice leftover’ was in the end recognised by the EU heads of state and government through their adoption on the occasion of the signing of the Treaty of Nice on 26 February 2001 of a Declaration on the Future of the European Union.Footnote ⁸ It called for a ‘deeper and wider debate’ about the future of the EU, with all stake-holders, including the candidate countries, addressing, inter alia, the questions of the division of powers between the Union and its member states, the status of the Charter of Fundamental Rights, the simplification of the treaties, the role of national parliaments and ways to improve democratic legitimacy and transparency, all in view of the convocation of a new treaty-revision IGC in 2004. Never before in the history of the European construction had a new treaty been accompanied by a more extensive immediate political mandate for it to be followed and surpassed by another.

The Laeken Declaration

What became known as the ‘future of Europe debate’ rapidly gained political momentum during 2001. The main driving factors were the widespread dissatisfaction, not the least on the side of the EP and the Commission, with the limited reforms brought by the Nice Treaty and the undignified intergovernmental horse-trading which had marked the IGC, the (later overturned) rejection on 7 June of the Nice Treaty by a first referendum in Ireland (showing the difficulty of communicating treaty reforms to EU citizens) and other indications of public disenchantment with the Union.Footnote ⁹ The ‘significant breakthroughs’ in the accession negotiations announced by the Göteborg European Council on 16 JuneFootnote ¹⁰ added to the pressure as this development made an early enlargement more likely and, at least for those advocating ‘no widening without deepening’, agreement on further substantial EU reform in time for the pending expansion more necessary. It was in this context that the idea of some sort of ‘constitution’ as an objective for the next treaty reform round, which had already been scheduled, was steadily gaining ground, strongly advocated by some and contested by others. Prior to the ‘future of Europe debate’ the question of whether the EU needed a constitution or perhaps already had one without the name because of the existing treaty framework had been a subject of discussion for legal scholars and those with federalist aspirations rather than mainstream EU politics.Footnote ¹¹ The increasing ‘constitutional’ component of the debate can be largely explained by invoking a sustained and relatively effective effort of the EU institutions, the governments of several member states and countless supporters of further European integration to seize what was perceived as an almost ‘now or never’ chance of a fundamental supranational breakthrough ahead of or just in time for the rapidly approaching ‘big’ enlargement.

When the heads of state or government met for the European Council in Laeken on 14–15 December 2001 political pressure to widen the mandate, the legitimacy base and the transparency of the next treaty reform round had become very strong, resulting in their adoption of the Laeken Declaration on the Future of the European Union.Footnote ¹² This provided an unusually detailed list of about sixty fairly specific questions the upcoming treaty reform should address in order to achieve a better definition of the EU’s competences, simplification of its instruments and enhanced democracy, transparency and efficiency, including at the end the politically most charged question of whether the envisaged simplification and reorganisation might not lead in the long run to ‘the adoption of a constitutional text’ and what the basic features of such a constitution ‘might be’. The language for this final programmatic part was clearly rather tentative, reflecting the unease of some member states regarding the declared constitutional ambitions of others. But if the European Council had clearly not been able to achieve consensus on the desired outcome of the now-programmed new treaty reform round, it decided definitively on an alternative method for preparing it.

In order to render the next IGC ‘as broadly and openly as possible’, the Laeken Declaration announced the convening of a ‘Convention’ to ‘consider the key issues arising for the Union’s future development and try to identify the various possible responses’ and to ‘draw up a final document’ – the term constitution was carefully avoided here – ‘which may comprise either different options, indicating the degree of support which they received, or recommendations if consensus is achieved’.Footnote ¹³ Aware that with this course of action they were to some extent entering uncharted territory, the EU heads of state or government took care to clarify that the final document would merely provide ‘a starting point for discussions’ in the subsequent IGC, to which the ultimate decisions would be left.

With the appointment of former French President Valéry Giscard d’Estaing as chairman of the Convention and of former Prime Ministers Giuliano Amato (Italy) and Jean-Luc Dehaene (Belgium) as vice-chairmen, personalities of considerable political standing were put in charge of the Convention process. In the Convention overall the fifteen representatives of the heads of state or government would be in a minority vis-à-vis thirty members of national parliaments (two from each member state), sixteen members of the EP and two Commission representatives. Particularly innovative was the inclusion of 39 representatives of the 13 candidate countries (1 government representative and 2 members of the national parliament from each country) among the total of 105 members, although the Laeken Declaration stipulated that the candidate countries’ representatives would not be able to prevent any consensus which might emerge among the member states. While the composition of the Convention on the Future of Europe was largely modelled on that of the European Convention which had elaborated the Charter of Fundamental Rights of the European Union in 1999–2000, both the much wider and politically more charged mandate and the participation of the candidate countries’ representatives made this Convention right from the start a rather different exercise from the previous one.

However, impressively wide-ranging and at least in part remarkably innovative as the Laeken mandate was, the large number of detailed questions formulated provided a sort of dense veil hiding a gaping void at the core of the new reform round. There was in fact hardly anything in the mandate indicating any common vision amongst the member states about the ways in which the Union should become more than it already was, and there was not even much in terms of what additional fundamental tasks it should be entrusted with. This lack of a common vision was both a huge opportunity for the new Convention, as it could try to fill that largely empty space of the Union’s future shape and mission through its treaty reform proposals, and a considerable risk, as in trying to do so it might endanger the whole new reform process by not being able to secure sufficient support for its proposals in the subsequent IGC.

The Convention Process

The decision to put Valéry Giscard d’Estaing at the helm of the Convention process had attracted many critical comments, mainly on grounds of his advanced age of seventy-six. Some governments may possibly have thought him to be a ‘safe’ choice on account of his being someone lacking much current political weight (he was politically largely marginalised in France) and also very much aware of the constraints of intergovernmental consensus-building in the EU (he had been present at the origin of the creation of the European Council together with Helmut Schmidt in the 1970s). But already at the inaugural session of the Convention in Brussels on 26 February 2002, the chairman, right from the start referred to as the ‘President’, left no doubt about his view that the Convention would be neither some sort of IGC nor a ‘place for expressing diverging opinions’ but ‘a group of men and women meeting for the sole purpose of preparing a joint proposal’ with a unique mission and the potential to ‘write a new chapter in the history of Europe’.Footnote ¹⁴ Having thus ruled out the possibility of the Convention serving merely as a pre-negotiation forum for the subsequent IGC, Giscard d’Estaing also declared that its aim should be ‘to achieve a broad consensus on a single proposal’ which thus ‘would open the way towards a Constitution for Europe’,Footnote ¹⁵ thereby sidelining the other Laeken Declaration option of the Convention merely identifying ‘various possible responses’ for the IGC’s subsequent consideration.

The potential risk of the Convention’s proceedings being rendered unmanageable by a disorderly inflow and circulation of proposals from the wide range of different stakeholders was largely contained by the adoption of the Rules of Procedure which gave the President and his colleagues in the praesidium extensive procedural management powers. Articles 3 and 4,Footnote ¹⁶ providing that all documents and contributions submitted to members would first have to go through the praesidium, proved to be particularly important in this respect. Although Giscard d’Estaing’s leadership in the Convention proceedings – at times operating on the borderline between the authoritative and the authoritarian – was not uncontroversial, it provided a sense of mission around which most Convention members could regroup. The President’s tight agenda and timetable management, the praesidium’s efforts to focus the plenary debates on key issues and choices and also the effective support provided by the negotiating and drafting skills of British diplomat Sir John Kerr and his collaborators in the Convention’s SecretariatFootnote ¹⁷ contributed much to making a final single draft treaty proposal possible.

The Convention went successively through a ‘listening phase’, aimed at identifying the expectations and needs of all major stakeholders from governments to citizens, a ‘deliberating phase’, focused on the comparison and assessment of the various inputs received, and a final ‘proposing phase’ dedicated to the drafting of recommendations for the IGC. Eleven themed working groups explored key subjects such as subsidiarity, competences, simplification of instruments and procedures and external action in greater depth, with numerous expert hearings, and presented their reports to the plenary from September 2002 to February 2003. The first months of the Convention proceedings were marked by a much more transparent and fluid deliberation of central issues than had been usual for previous IGC-based treaty reforms. This was so not only because of the public nature of the proceedings, but also because of the hundreds of contributions submitted both from within the Convention and from outside. While national government representatives, especially those of the larger member states, inevitably brought considerable weight to bear in the proceedings, there were other highly influential actors who would surely have been marginalised or even totally excluded in a traditional IGC context, such as the very active delegation of the EP headed by the Spanish Member of the EP (MEP) Íñigo Méndez de Vigo. However, the Convention’s formal interaction with civil society was limited to only two sessions, later qualified by Giscard d’Estaing in an interview with H. Bribosia as ‘more talk than anything’, and a ‘Youth Convention’ bringing together representatives of youth organisations held in July 2002 also failed to make much of an impact, being, according to the President, absorbed by ‘squabbles about posts’ rather than questions of substance.Footnote ¹⁸

The final months of the Convention, when it engaged in the actual drawing up of what was to become the Draft Treaty Establishing a Constitution for Europe (TECE), were increasingly overcast by the shadow of the impending IGC. Declared positions of governments, such as the more integrationist Franco-German proposals and the more intergovernmental British–Spanish position,Footnote ¹⁹ started to bear heavily on the proceedings. The Convention’s already tenuous outreach to European citizens was at the same time further weakened by the shifting of political compromise bargaining between the main stakeholders (i.e., primarily government representatives and national and European parliamentarians in various often issue-specific coalitions) to meetings and exchanges that were largely outside the plenary sessions and not open to public scrutiny.Footnote ²⁰ Institutional reforms proved, as in previous IGC contexts, extremely contentious, with changes to QMV, to the appointment and composition of the European Commission and to the rotating presidency system being amongst the issues which nearly made the Convention miss its already extended June 2003 deadline. (In the Laeken Declaration it had been foreseen that the Convention would complete its work ‘after a year’, which would have meant by March 2003.) In the end, its President was able to present Part i (Principles and Institutions, 59 articles) and Part ii (Charter of Fundamental Rights, 54 articles) of the new Draft Treaty to the Thessaloniki European Council on 20 June 2003, and – after a further slight extension of the deadline – Part iii (Policies and Functioning, 342 articles) and Part iv (Final Provisions, 10 articles) to the Italian Presidency on 18 July 2003.Footnote ²¹

From Draft to Treaty: The 2003–4 IGC

In his final report to the European Council Valéry Giscard d’Estaing stressed the ‘broad consensus’ which the Convention had reached on the Draft TECE, with only 4 members out of 105 formally dissenting.Footnote ²² This and the fact that this ‘consensus’ included the representatives of both current and future member states – several of whom were serving government ministers – put considerable pressure on the subsequent IGC, which was opened in Rome on 4 October 2003. Never before had the EU heads of state or government had a complete draft treaty as the point of departure for their reform negotiations, which was based, in addition, on a wide-ranging representation of obvious stakeholders. The Draft Treaty provided for a wide range of legal framework reforms, institutional reforms and policy-area-related changes which went much further than those of the Nice Treaty and were in some respects even more substantial than those which had been introduced by the Treaties of Maastricht and Amsterdam.

Of particular significance amongst the legal framework reforms foreseen by the Draft Treaty was the placing of the new treaty edifice under the politically heavily charged term ‘constitution’, whose symbolic weight was reinforced by the formal provision in Article iv-1 (here and in the following, article numbers are based on the numbering of the Convention Draft, see note 23), for a flag, anthem and motto of the Union as well as the celebration of 9 May as Europe Day. In line with the Laeken simplification mandate, the treaty architecture was to be consolidated in a single treaty merging the provisions of the EC and EU Treaties, with a clearer structural separation between fundamental and functional provisions. The Union was to succeed the EC, to obtain a legal personality (Article 6) and to be vested with three categories of competence, namely exclusive, shared and complementary competences (Article 11), replacing existing less transparent division-of-powers arrangements. A step towards simplification was also taken with the reduction of the legal instruments to mainly two, ‘European laws’ and ‘European framework laws’, although these were new in name rather than substance, taking the place of the existing EC regulations and directives. The Charter of Fundamental Rights was to be upgraded from a political document to an integral and binding part of the new Treaty (Part ii), corresponding to a stronger emphasis on the Union’s values both in the (slightly flowery) Preamble and in Articles 1 and 2. The potential challenge of one or more member states fundamentally deviating from the Union’s objectives was addressed for the first time ever by provisions allowing the voluntary withdrawal of a state from the Union (Article 59). Further treaty reforms were to be made easier by a choice for the European Council between a Convention-based ordinary revision procedure and a non-Convention-based simplified revision procedure (Article iv-7).

Amongst the proposed institutional reforms, the most innovative were the introduction of a new semi-permanent President of the European Council – elected for two-and-a-half years, renewable once (Article 21) – and of a Union Minister for Foreign Affairs, who would be at the same time also a Vice-President of the European Commission (Article 27) and in charge of a new European External Action Service (Article iii-197). In its Draft Treaty the Convention had also made a brave attempt to address the thorny issues of a reduction of the members of the Commission by foreseeing only thirteen Commissioners selected on the basis of a system of ‘equal rotation’ (details of which remained to be specified) between the member states (Article 25) and of the replacement of the existing complicated QMV weighting by a simpler ‘double majority’ requiring a threshold of a majority of member states representing at least three-fifths of the EU’s population (Article 24). Both the simplification and the enhanced-democracy components of the Laeken mandate were served by the Draft Treaty replacing the diversity of legislative procedures that had historically arisen by a standard ‘ordinary legislative procedure’ (Article iii-302) with QMV in the Council and co-decision by the EP – extended to twenty-two additional legal bases,Footnote ²³ including the sensitive domains of the EU’s own resources and criminal law – with only a relatively small number of Council unanimity-based ‘special procedures’ for particularly sensitive matters such as taxation issues. The EP’s position was also strengthened with regard to the appointment of the President of the Commission – whom it was now to ‘elect’ on the basis of a QMV-based proposal by the European Council which should ‘take into account’ the EP elections (Article 26) – and to the EU’s budgetary procedure – whose compulsory expenditure category on which the Council and not the EP had the final say was to be abolished (Article iii-310). The Union’s democratic legitimacy base was to be widened by a new article on ‘participatory democracy’ making, inter alia, provision for a new legislative ‘citizens’ initiative’ (Article 46) and a strengthening of the information rights of and control over subsidiarity of national parliaments.

Amongst the draft policy area reforms, those concerning the Union’s AFSJ and Common Foreign and Security Policy (CFSP) were the most substantial. The intergovernmental ‘third pillar’ (Article v of the Treaty on the European Union (TEU)) part of the AFSJ – police and judicial cooperation in criminal matters – was to be communitarised both in terms of legal instruments and in terms of legislative procedures, although with a few fields still subject to a requirement for unanimity. The EU’s competences were slightly extended, in particular to harmonisation in criminal procedural law (Article iii-171) and the potential establishment of a European Public Prosecutor’s Office (Article iii-175), with a new emphasis on solidarity in what were to become ‘common policies’ on asylum and immigration as well as with regard to border management (Article iii-167). The CFSP and its Common Security and Defence Policy (CSDP) component, although retaining their essentially intergovernmental basis, were to be strengthened not only by a new European Union Foreign Minister (an upgrading of the existing High Representative) but also by an extension of so-called ‘Petersberg’ CSDP mission tasks (Article iii-210), the introduction of the possibility of a ‘permanent structured cooperation’ amongst member states with higher military capabilities for the ‘most demanding missions’ (Article 40(6)), clauses for mutual defence (Article 40(7)) and solidarity (Article 42), and the creation of a legal basis for a European Armaments, Research and Military Capabilities Agency (Article iii-212). A further noteworthy reinforcement of the EU’s external action capabilities was the proposed extension of the EU’s exclusive Common Commercial Policy (CCP) competences to tariff and trade agreements relating to services and the commercial aspects of intellectual property (Article iii-217). A new legal base was also introduced for a ‘special relationship’ with the EU’s neighbouring countries (Article 56) to strengthen the EU’s capacity to respond to challenges posed by its post-enlargement geostrategic environment.

While the range of the proposed reforms was large and not lacking in substance, it was also clear that the Convention – well aware that the Draft Treaty would have to pass the subsequent IGC – had shied away from any radical federal-state-like transformation of the Union. The Draft Treaty retained the member states as the basis of the EU’s fundamental legitimacy, the member states’ supreme Kompetenz-Kompetenz, their control over the Union’s own resources and the international treaty status of the envisaged ‘Constitution’. It also did not provide for any significant transfers of new exclusive powers from the national to the Union level and strengthened the position of the Union’s most intergovernmental institution, the European Council. The use of the term ‘constitution’ – together with the other symbols linked to it – suggested nonetheless a much more fundamental change of the Union’s status and nature than warranted by the Draft Treaty’s content. More far-reaching, system transforming ambitions for the future of the Union had manifestly foundered during the Convention process, leaving the Draft Treaty in a sense with larger and more resplendent clothes than its body could fill.

An unravelling by the IGC of the entire package of the draft ‘constitutional treaty’ – as it was widely called – would have meant not only a disavowal to a considerable extent of the contributions many governments had made to the Convention proposals through their representatives but also reneging on the Laeken commitment to a more inclusive and democratic treaty reform process. Anything looking like a rejection by the IGC was also likely to face serious difficulties in the EP and also some national parliaments which had made important contributions to the Convention process. At the time, it was already clear before the start of the IGC that, because Poland and Spain were concerned about their respective ‘weights’ in the decision-making process, they would not accept the proposed ‘double majority’ QMV solution – which made an opening of the package inevitable – and practically all other governments, though less forcefully, had also indicated that they wished to see a number of changes, mostly on institutional and competence issues.

The Italian Presidency, wishing to achieve a breakthrough before the end of its period in office, tried to deal with the most difficult issues – such as the QMV question – early on,Footnote ²⁴ which proved a tactical mistake as the failure to make much progress on these issues also blocked progress on the others. An (ultimately unsuccessful) effort by Italy, Poland and Slovakia to add a reference to Europe’s Christian values, nicknamed the ‘God question’, and protracted haggling over the function titles to be given to the new ‘Foreign Minister’ and ‘President’ of the European Council provided further unhelpful distractions. In the end, the Brussels European Council of 12–13 December 2003 had to announce that it had not been possible for the IGC ‘to reach overall agreement on a draft constitutional treaty at this stage’.Footnote ²⁵ Although the European Council’s reference to a ‘constitutional treaty’ indicated a common commitment of the member states to such an outcome of the IGC, the absence of an agreement during the Italian Presidency – and in time for the EU enlargement on 1 January 2004 – was widely seen as an at least partial failure of the Convention’s Draft Treaty. In one of its harshest resolutions ever on the work of an ongoing IGC, on 18 December 2003 the EP ‘deeply deplore[d] the failure of the European Council to reach an overall agreement’, ‘note[d] once again the failure of the Intergovernmental Conference method’ and ‘deplore[d] the evident lack of focus at the IGC on the common European interest’, reaffirming its commitment to the Convention Draft.Footnote ²⁶

It was left to the following Irish Presidency to refloat the IGC by a combination of a different approach – with more emphasis on preparatory ‘listening’ and bilateral meetings – with more favourable political circumstances – in particular a change of government in Spain in April 2004 and a slight softening of the Polish position on the QMV issue.Footnote ²⁷ In at times very difficult negotiations, the Convention’s ‘double majority’ was redefined and raised to now consist of at least 55 per cent of the members of the Council, comprising at least fifteen of them and representing member states comprising at least 65 per cent of the population, with an added provision for a blocking minority requiring at least four Council members (Article i-25). (Here and in the following, article numbers are based on the numbering of the signed (but not ratified) TECE. Footnote ²⁸) While this complex formula was hardly in line with the Laeken aim of simplification, it safeguarded the interests both of smaller and of medium-sized member states, including most of the new member states, against those of France and Germany, which had wanted to maintain the Convention formula. With most of the small member states wishing to retain their permanent seat on the Commission, the Convention’s proposed radical reduction of the Commission’s size on a rotational basis was watered down, also with additional complexity, to maintaining one Commission seat per member state for the first Commission under the Constitution and thereafter changing to a number of members corresponding to representatives from two-thirds of the member states selected on the basis of equal rotation (Article i-26). Nice Treaty-type intergovernmental bargaining – which the Convention method had been intended to relegate to the past – also re-emerged with regard to the composition of the EP, for which the small(est) member states insisted on their minimum representation threshold being raised from the four proposed by the Convention to six, with Germany having to accept a reduction of its delegation to 96 instead of 99 and the overall size of the EP being increased from 736 (the Convention proposal) to 750 MEPs (Article i-20).

Even if these institutional issues absorbed (again) much of the time and energy of the IGC delegations, the prevention of a loss of national controlling power over the exercise of key EU competences was also high on the agenda of several member states, and in particular that of the UK, which left right from the start little doubt about a number of ‘red lines’ that it would defend, armed with credible veto threats. The British position, partially backed by Ireland, largely accounted for a return from the Convention proposed QMV to decision-making by unanimity on the EU’s own resources (Article i-54(3)) and Multi-annual Financial Framework (Article i-55) as well to the introduction of so-called ‘emergency brakes’ providing for a referral of controversial legislation to the European Council as a safeguard with regard to the use of QMV on social security for migrant workers (Article iii-136) as well as procedural and substantive criminal law (Articles iii-270 and iii-271) foreseen by the Convention. An informal coalition of the UK, Ireland, Cyprus, Estonia and Malta also secured the removal of QMV-based provisions on combating tax fraud and company taxation that had been proposed in the Convention. Other member states also successfully insisted on issue-specific returns to unanimity in the Council, such as Finland and Sweden with regard to commercial policy aspects of foreign direct investment and social educational and health services (Article iii-315). Inevitably, the IGC had also to cater to a number of interests of specific individual member states, such as those of Denmark in protecting its existing opt-outs, which resulted in a corresponding protocol. The ten new member states, for the first time at an EU IGC table, showed little enthusiasm for an expansion of the EU’s powers and at least as much concern for their respective weights in the decision-making process – in the case of Poland even more – than the average of the old member states.

These and other, more minor, changes to the Convention draft negotiated at the IGC resulted primarily in a slight alteration of the balance of power in favour of smaller and medium-sized member states and a reinstatement of national veto powers in policy-making fields that were considered particularly sensitive. In a few cases the IGC improved on a number of rather vague provisions of the Convention’s Draft Treaty, such as in the case of a clearer specification of the ‘simplified’ treaty revision procedure – not requiring an IGC – concerning internal Union policies and action not increasing the EU’s competence (Article iv-445). However, when, on 18 June 2004, the Irish Presidency was able to announce a final agreement on the new TECE, around 90 per cent of the original Convention draft, with most of the aforementioned substantive changes, had survived the IGC unchanged, a more than respectable record for the new treaty reform process initiated at Laeken. But, as a satisfied EP President Pat Cox announced at the Irish Presidency’s press conference on that day, it was now time ‘to explain it to the public, to sell it and to ratify it’.Footnote ²⁹

The Ratification Disaster

When the heads of state or government of the EU and their foreign ministers signed the TECE in Rome on 29 October 2004 – an obvious effort was made to connect the solemn occasion with the signing of the founding Rome Treaties in March 1957 – it was already clear that the ‘selling’ of the new treaty in view of its ratification would have its challenges. Whereas in the past only Denmark and Ireland had regularly ratified a new EC/EU Treaty by way of a referendum, this time no fewer than eight more member states – starting with British Prime Minister Tony Blair’s in the House of Commons on 20 April 2004 – announced their intention do so. The reasons for the proliferating recourse to referendums ranged from obvious constitutional (Ireland) and/or political constraints (Denmark – because of the now firmly established referendum tradition, and the Czech Republic – because of the opposition of Czech President Václav Klaus to the treaty), via intentions to seek and politically capitalise on a popular vote approval of current governments’ European policy (Luxembourg, Poland, Portugal and Spain) to more specific political reasons, such as the British government’s desire to defuse divisive domestic Eurosceptic positioning, French President Jacques Chirac’s seeking to reaffirm his popular legitimacy base and divide the opposition, and an almost accidental result of Dutch coalition manoeuvring. Although all of these governments emphasised in their justification of the referendum the ‘constitutional’ nature of this new treaty, thereby making it look like a more fundamental departure from the basis of the existing treaty than it actually was, the decision to engage in what the failed 1992 Danish referendum on the Maastricht Treaty and the failed 2001 Irish referendum on the Amsterdam Treaty had shown to be a rather risk-prone way of ratification had more to do with domestic political considerations than with the actual content of the treaty. Even Tony Blair, who otherwise tried to downplay the changes brought by the new treaty, referred in his justifying statement before the House of Commons on 20 April 2004 to the intention of letting ‘the Eurosceptics, whose true agenda we will expose, make their case’ for the people then to ‘have the final say’.Footnote ³⁰

Although the parliamentary ratification procedures started well enough with huge majority votes in favour of the treaty in the Lithuanian (11 November 2004), Hungarian (20 December 2004), Italian (25 January 2005) and Slovenian (1 February 2005) chambers, it soon became clear that the treaty was entering turbulent waters where it needed citizens’ approval. Although the first referendum, in Spain on 20 February 2005, resulted in a large majority (76.73 per cent in favour to 17.24 per cent against, with 6.03 per cent blank or invalid votes),Footnote ³¹ in spite of the Spanish government’s huge efforts – it engaged celebrities to read excerpts from the treaty in daily television broadcasts and had 5 million copies distributed with Sunday newspapers – participation was rather low (42.32 per cent). At the same time opinion polling in the Czech Republic, France, the Netherlands and the UK showed increasing risks of the treaty being rejected. In France the almost frantic efforts of the ‘yes’ campaign during spring 2005 and the personal engagement of President Chirac did not manage to turn a tide which on 29 May resulted in a 54.68 to 45.32 per cent victory of the ‘no’ campaign, with a (quite respectable) participation rate of 69.34 per cent. The French vote, shocking as it appeared to many as coming from one of the large founding members of the European construction, was followed only 2 days later, on 1 June, by an even clearer negative result in the Dutch referendum – in another founding member state – with 61.54 to 38.46 per cent against and 63.30 per cent participation. Although in the meantime four other parliamentary ratifications (in Lithuania, Hungary, Slovenia and Italy) had been completed, the negative French and Dutch referendum results were rapidly seen as having sealed the fate of the treaty. The unexpectedly narrow win of the ‘yes’ campaign in the Luxembourg referendum on 10 July (with only 56.52 to 43.48 per cent in favour and a participation rate of 90.44 per cent) in spite of Prime Minister Jean-Claude Juncker having announced that he would resign in the event of a ‘no’ vote and the temporary freezing of the German ratification process because a case against the treaty had been brought before the German Constitutional Court did nothing to mitigate the impression of a major political disaster for the EU. All further planned referendums were cancelled, with opinion polls both in the Czech Republic and in the UK indicating a high probability that the treaty would have been rejected by considerable majorities in both countries.Footnote ³²

The responsibility for the EU’s ‘constitutional’ disaster was subsequently conveniently assigned by many to French and Dutch domestic politics. But even if Chirac’s almost frivolous resort to the risky instrument of a referendum primarily for tactical political gains and the Dutch coalition government’s inept handling of the ratification issue could be faulted, the problem with the constitutional treaty was both wider and more fundamental. While the French and Dutch ‘no’ votes expressed in part dissatisfaction with current governments’ policies and specific domestic concerns (mainly of a socio-economic nature in France; mainly about a multicultural dilution of national identity in the Netherlands), EU-related issues too had played a critical role in the referendum campaigns, such as concerns about the liberal economic orientation of the EU in France and the economic consequences of the euro in the Netherlands, and – less prominently – about EU enlargement in both countries.Footnote ³³

None of these concerns was addressed by the proposed new treaty, which rather seemed to ‘constitutionalise’ an evolution of the EU that was considered far from satisfactory by many voters. This could, perhaps, have been compensated for, if the new treaty had been associated with a new vision, major new projects and/or clearly identifiable new benefits for citizens, but instead what was offered to voters was a revamped version of the existing framework, sold as a ‘Constitution’ (which legally it was not), with a number of real improvements, but improvements which were far removed from citizens’ daily concerns and not easy to explain to the non-expert. Eurobarometer opinion poll data suggest that the more EU citizens heard about their new ‘Constitution’ during 2004–5, the less enthusiastic they became, and the low turnout in the Spanish referendum indicates that, even in a country with strong general support for the European construction, many citizens felt that the EU’s new ‘Constitution’ was not worth turning out to vote on. Support for the very idea of a European Constitution dropped from autumn to spring (i.e., exactly during the period in which governments tried to ‘sell’ the treaty to their citizens), from 68 to 61 per cent.Footnote ³⁴ In other countries with somewhat more Eurosceptic leanings – such as the Czech Republic and the UK – even the on the whole rather moderate reforms suggested in conjunction with the attributes of an EU ‘constitution’, ‘flag’, ‘anthem’ and ‘motto’ some sort of sinister move towards a European super-state, so that some degree of real hostility on one side of the political spectrum was in a sense met by a lack of enthusiasm on the other. While the Convention’s failure to reach out more effectively to civil society during the 2002–3 drafting process may partly account for the treaty’s failure to connect with the EU’s citizenry, the main responsibility must rest with the member states’ governments, which could neither construct the ‘Constitution’ around a renewed common vision for the future of the now enlarged EU nor adequately explain its rationale and content to their own citizens.

From Crisis to Rescue

Although parliamentary procedures for ratification of the constitutional treaty continued until well into 2006 – with Estonia as the sixteenth and last member state ratifying it by parliamentary vote on 5 December 2006 – the Dutch and French governments rapidly made clear that they would not try to get the TECE approved in a second referendum as the Danish government had done in 1993 and the Irish in 2002. Bulgaria and Romania, which joined the EU on 1 January 2007, did not need to ratify the TECE as they had accepted it as part of their accession treaties, so that the total number of member states which eventually approved the treaty was eighteen out of twenty-five. However, to declare the TECE dead, which many ‘no’ voters surely had hoped, was not really an option for the EU heads of state or government as this would have meant having to publicly declare the bankruptcy of a joint ‘future of Europe’ reform process that by then had lasted for more than 4 years and to forgo a number of treaty changes considered useful or even necessary. It would have reduced the successful ratification efforts of a sizeable number of other member states to naught and heightened the general mood of crisis, which could only weaken the EU’s standing both internally and internationally. The media, as usual in the case of major difficulties relating to the EU, had in fact left their normal lethargy of reporting on European affairs behind, in order to now do their best to fan the flames of the undeniable ratification disaster into a headline-worthy potentially terminal crisis of the Union.Footnote ³⁵ Given all that, the heads of state or government could agree on little more at their first meeting after the French and Dutch referenda, at the Brussels European Council of 16–17 June 2005, than damage limitation and giving themselves more time. In a formal declaration on ‘the ratification of the Treaty’ they reaffirmed, on the one hand, their continuing commitment to treaty reform ‘to ensure that an enlarged European Union functions more democratically, more transparently and more effectively’ and, on the other, recognised that citizens had ‘expressed concerns and worries which need to be taken into account’, that a ‘period of reflection’ enabling a ‘broad debate’ was now needed for an assessment of how to proceed further during the first half of 2006.Footnote ³⁶

Although think tanks, scholars and political activists were very busy over the next few months discussing various ways of saving the TECE, ranging from adopting only part of it (there was a proliferation of ‘mini-treaty’ projects), via its adoption by only a core group of countries to a complete renegotiation, there was actually so little happening at the EU political level that in May 2006 Quentin Peel quipped in the Financial Times that the ‘pause for reflection’ had turned into ‘all pause and no reflection’.Footnote ³⁷ The British Presidency of the EU of the second half of 2005 and the Austrian one of the first half of 2006 showed considerable risk aversion as regards any revival of the pending treaty issue. The new German Chancellor Angela Merkel’s initial unwillingness to invest much political capital in the treaty’s fate and the lame-duck situation affecting French President Chirac after the negative referendum did not help, either. Equally, neither the European Commission’s October 2005 ‘Plan D for Democracy, Dialogue and Debate’Footnote ³⁸ fostering citizens’ debate and participation nor high-level public events such as the Austrian Presidency’s ‘Sound of Europe’ conference in Mozart-connected Salzburg in January 2006 celebrating European identity(ies) and valuesFootnote ³⁹ contributed much to resolving the treaty deadlock. The Brussels European Council of 15–16 June 2006 had little option but to give itself even more time, although it now agreed that a report ‘based on extensive consultations with the Member States’ would be presented ‘with regard to the Constitutional Treaty and explore possible future developments’ during the first half of 2007.Footnote ⁴⁰ Perhaps, after all, taking more time had its merits, as the doom and gloom commentaries about the treaty’s failure signalling the end of the EU had started to subside by then. The EU visibly continued to function without paralysis on the basis of the existing treaties, even though in some domains, especially in those of the AFSJ and CFSP, there was evidence that the postponement of treaty reforms was hampering the EU’s ability to take necessary action.

The Finnish Presidency of the second half of 2006, which had indicated its commitment to the treaty reform process by keeping its national process of ratification of the treaty on track for completion on 5 December, duly engaged in bilateral consultations which indicated sufficient support in the EU capitals for preserving many of the treaty’s reforms, albeit without there being any consensus about the form this should take. This, however, provided a sufficient basis for the succeeding German Presidency to put the resolution of the EU’s constitutional imbroglio high on its agenda. On 17 January 2007, Angela Merkel staked her first major claim to a leadership role in the European domain by declaring in a speech before the EP in Strasbourg that the ‘reflection period is behind us’ and that ‘we now have to come up with new decisions by June’. The German Chancellor established in her speech a link between the current treaty reform process and the upcoming fiftieth anniversary of the Rome Treaties, to be celebrated in Berlin in March, and also emphasised the need to complete the process before the next EP elections in 2009.Footnote ⁴¹

With the stakes thus raised for a relaunch of the reform process, the German Presidency started to engage in intensive bilateral consultations, seeking compromise lines between the three main diverging positions: that of those member states which had already ratified the treaty and were at most willing to consider minor amendments, with in particular Belgian Prime Minister Verhofstadt, who had just reinforced his federalist credentials with a prize-winning book on the ‘United States of Europe’,Footnote ⁴² forcefully arguing against any substantive ‘roll-back’; that of those member states which wanted to give up altogether on the treaty and proceed at most with a few reforms of existing treaty provisions (the UK, the Czech Republic, Poland and – unsurprisingly – France and the Netherlands); and finally the position of those who wanted to save at least the institutional and procedural reforms by way of a politically downgraded ‘mini-treaty’ resulting from a short IGC.Footnote ⁴³ The Blair government, keen on downgrading the TECE to escape from its referendum promise, complicated the situation by establishing new ‘red lines’ regarding the application of the Charter of Fundamental Rights, the implications of the CFSP reforms for the autonomy of British foreign policy and national control over judicial and police matters.Footnote ⁴⁴ The chances for a breakthrough reform process looked rather slim until newly elected French President Nicolas Sarkozy, who had already advocated a new reduced treaty when still a minister, came out forcefully in favour of a rapidly to be agreed ‘mini-treaty’ – contrary to the position of his predecessor Chirac – immediately after having taken up office on 16 May 2007. While this brought a new dynamic into the search for a solution, one major obstacle remained.

As the first major indication that enlargement, which had been extended to twelve new member states after the joining of Bulgaria and Romania on 1 January 2007, could indeed, as feared by some, complicate EU treaty reforms, Poland raised (again) the issue of its weight under QMV rules, this time indicating its fundamental opposition to the ‘double majority’ requirement proposed by the Convention and redefined by the 2003–4 IGC. The German Presidency was forcefully reminded that enlarging the Union always also meant bringing some potentially heavy historical baggage into the common venture when Polish Prime Minister Jarosław Kaczyński justified Polish insistence on its QMV weight not being based on its current population size by the curious radio-broadcast argument that if ‘Poland had not had to live through the years 1939 to 1945, Poland would be today looking at the demographics of a country of 66 million’Footnote ⁴⁵ instead of its current 38 million. In one of her not so many failures of patience, an exasperated Angela Merkel then floated the idea of seeking an agreement without Poland among the remaining twenty-six member states, but such a solution was rejected by the Czech Republic and Lithuania, indicating the risk of an east–west fracturing of the EU reform process. Almost at the last hour, a compromise was worked out with the help of Blair, Juncker and Sarkozy, according to which the ‘double majority’ system would be postponed by 5 years, with additional safeguards protecting the Polish position on QMV for the time thereafter.Footnote ⁴⁶

It was mainly the earlier French change of position, coming with indications of considerable flexibility regarding the content of a ‘mini-treaty’, and the QMV compromise with Poland which then enabled the German Presidency to achieve a breakthrough at the Brussels European Council of 21–22 June 2007. The heads of state and government not only agreed on the launching of a new IGC ‘to resolve the issue’ with completion at the end of the year but also approved an unusually detailed mandate with sixteen pages of instructions and pre-formulated treaty amendments which was aimed at preserving much of the substance of the ‘Constitution’, but with major changes to its form.Footnote ⁴⁷ Previously floated ideas of a reconvening of the Convention to work on the new treaty had already been unceremoniously buried. This time the heads of state and government wanted to keep a tight rein on the process.

The 2007 IGC and the Treaty of Lisbon

If the Convention process had to some extent been an exercise in ‘dressing-up’ as a ‘constitution’ what had in fact been in many respects a ‘normal’ treaty reform, the 2007 IGC was to a considerable extent a ‘dressing-down’ exercise in making much of what had been presented as the ‘constitution’ appear as a limited – though necessary – treaty revision.Footnote ⁴⁸ This was already reflected in the initial title for the new treaty – the ‘Reform Treaty’ – and also in the speed of proceedings. Rather unusually for an IGC, the incoming Portuguese Presidency presented a complete draft of the new treatyFootnote ⁴⁹ as soon as at the formal start of the IGC on 23 July 2007. This draft was entirely based on the detailed June 2007 IGC mandate, making no reference either to the Commission’s (largely concurring) formal Opinion of 10 JulyFootnote ⁵⁰ or to the EP’s (partially critical) ResolutionFootnote ⁵¹ of 11 July. This draft was first checked by legal experts, chaired by the very effective Jean-Claude Piris from the Council’s Legal Service, essentially on its compatibility with the IGC mandate, and then subjected to political-level negotiations amongst the member states’ foreign ministers at an informal ‘Gymnich’-type meeting on 7–8 September. A revised complete draftFootnote ⁵² was submitted by the Presidency to an informal European Council in Lisbon on 18–19 October, at which full agreement was reached on the final text. This brought the IGC 2007, which was the shortest in the EU’s history to result in a full new treaty, to a close, with the signing of the new Treaty of Lisbon following at a solemn occasion in the Jerónimos Monastery near Lisbon on 13 December 2007.

If one leaves the mere structural changes aside, the Lisbon Treaty changed no more than about 5 per cent of the substantive provisions of the TECE, meaning that it provided even fewer changes than the TECE had brought with regard to the Convention’s original Draft Treaty. The most visible changes concerned the form and the symbols. The single-treaty format was abandoned in favour of retaining two treaties, the TEU, now enriched by a large part of the revised institutional and CFSP provisions of the TECE, and the EC Treaty, renamed as the Treaty on the Functioning of the European Union (TFEU), now absorbing the until then TEU-based ‘third’ (AFSJ) pillar. The use of the term ‘functioning’ was part of the dressing-down effort, with its emphasis on the merely ‘functional’ as opposed to the ‘constitutional’ nature of the abandoned TECE being potentially helpful to weaken cases for further referendums. The term ‘constitution’ was entirely removed, as were the provisions for the Union’s flag, anthem and motto and the celebration of 9 May as Europe Day, changes with regard to the TECE which had all been regretted by the EP in its Resolution of 11 July. In the same vein the position of the ‘European Union Foreign Minister’ was down-titled – without changes to its TECE-foreseen functions – to High Representative of the Union for Foreign Affairs and Security Policy. The incorporation of the EU Charter of Fundamental Rights, which had been one of the pillars of the TECE architecture – and a too prominent one for some governments – was also given up on. However, Article 6 of the TEU now established the Charter as having the same legal value as the treaties, so that in legal terms the taking out of the Charter was just another act of political cosmetics. The same applied to a new more strongly worded protection of national competences in Article 4 of the TEU which provided that ‘competences not conferred upon the Union in the Treaties remain with the Member States’ (Article 4(1) TEU) and that ‘in particular, national security remains the sole responsibility of each Member State’ (Article 4(2) TEU). As the TECE had already provided for the principle of conferral (Article i-11 TECE) and also the ‘safeguarding of national security’ as an essential state function the Union had to ‘respect’ (Article i-5 TECE), this meant less a substantive change than a reinforced emphasis, though the second of these clauses increased a latent tension in the treaties between protected national security competences and the ambitious EU security objectives in the context both of the CSDP and of the AFSJ.

The Treaty of Lisbon bore the marks – one could also say the scars – of a range of specific staunchly defended national interests going beyond the merely symbolic. In some respects, the largest package of concessions had been secured by Poland, which obtained not only the aforementioned postponement of ‘double majority’ voting to 1 November 2014,Footnote ⁵³ with the possibility of a member state still being able to request the application of the ‘old’ QMV rules until 31 March 2017,Footnote ⁵⁴ but also the codification in a declaration attached to the treaty of a Ioannina-type clauseFootnote ⁵⁵ enabling a reduced blocking minority of countries to oppose the vote for an act by QMV from 2014 onwards,Footnote ⁵⁶ a specific solidarity provision regarding energy supplyFootnote ⁵⁷ indicative of concerns about Poland’s dependence on Russian supplies, an opt-out – shared with the UK – from the justiciability of rights under the Charter of Fundamental RightsFootnote ⁵⁸ reflecting the Polish government’s concerns about being potentially forced to grant homosexual couples the same benefits as heterosexual couples and – for good measure – a permanent advocate-general position at the European Court of Justice (which required an increase of the total number of advocates-general from eight to eleven).Footnote ⁵⁹ The British government, finding itself under relentless domestic pressure to hold a referendum, had not only played a key role in the elimination of all of the TECE ‘constitutional’ symbols, but also obtained the extension of its existing opt-out arrangements from the AFSJ to the formerly ‘Third-pillar’ fields of police and judicial cooperation in criminal matters (which was promptly claimed also by Ireland), an opt-out from the justiciability of rights under the Charter of Fundamental Rights (shared with Poland,Footnote ⁶⁰ but in the British case the opt-out was sought because of concerns about the Charter’s implications for British labour law), a declaration in relation to the delimitation of the EU’s competencesFootnote ⁶¹ providing explicitly for the options of repealing EU legislative acts and reducing – through treaty revisions – the EU’s competences and finally two declarations concerning the CFSP explicitly protecting the autonomy of member states’ foreign policies and international representation as well as ruling out any increase of the Commission’s right of initiative and of the EP’s role in this domain.Footnote ⁶² Neither did the French government leave the IGC empty-handed, having secured – mindful of French voters’ apparent disquiet about the EU’s liberal economic orientation – the elimination of the Article i-3(2) TECE reference to ‘an internal market where competition is free and undistorted’ and, together with the Dutch government, the inclusion of ‘conditions of eligibility’ for future applicant countries to be defined by the European Council (Article 49 TEU). The latter was clearly motivated by concerns about EU enlargement which had come to the fore in the referendum campaigns in both of those member states. Amongst the minor distractions settled were Italy’s concerns about losing parity with France and the UK in terms of its number of MEPs – resolved by increasing the size of the EP to 751 MEPs – and newly acceded Bulgaria’s successful insistence on the euro notes bearing the currency denomination also in Cyrillic script.

Amongst these and other essentially ‘negative’ changes – negative in the sense of marking steps back with regard to the TECE and/or restrictive protections of national interests – the 2007 IGC managed to agree only two new ‘positive’ elements. The first was a further reinforcement, partially motivated by the critical voices heard in several national parliaments during the uncompleted ratification process of the TECE, of the role of national parliaments, which were now enabled to oppose – under what became known as the ‘orange-card’ procedure – a draft legislative act within 8 weeks of its introduction on the grounds of non-compatibility with the principle of subsidiarity. The Commission would then have to re-examine the draft, with the possibility that a majority of 55 per cent of the members of the Council or a majority of the votes cast in the EP could definitively reject the Commission’s proposal if it were judged not compatible with the principle of subsidiarity.Footnote ⁶³ The second ‘positive’ innovation was a new ‘particular’ emphasis on ‘combating climate change’ in the context of the EU’s international action on environmental problems (Article 191(1) TFEU). All of the other substantive reforms brought by the Treaty of Lisbon – from the legal framework via the institutional reforms to the policy-area reforms – were still those contained in the original Draft Treaty proposed by the Convention with the limited amendments made by the TECE (see above), although now they were presented not in a coherent text but as a long series of amendments to the existing treaties. Given the TECE’s ratification disaster and the in many respects diverging positions of the member states, the ‘treaty rescue’ operation by the German and Portuguese Presidencies of 2007 had been remarkably successful. Former Convention President Giscard d’Estaing noted with some satisfaction in an article in the British Independent newspaper that in the Lisbon Treaty ‘proposals in the original constitutional treaty are practically unchanged’, but added that the few changes made ‘sound a significant retreat from European political ambition’. He also warned that, with the original single draft constitution text ‘blown apart into separate elements’ merely attached to the existing treaties, the Lisbon Treaty would be ‘unpenetrable for the public’.Footnote ⁶⁴

A Second Ratification Disaster – Averted

As much of the renegotiation had focused on avoiding the need for referendums, the German Presidency aimed at an entry into force of the new treaty on 1 January 2009, well in time for the June 2009 EP elections. The ratification process started well enough, with the Hungarian parliament approving the Lisbon Treaty already on 17 December 2007. Both in France and in the Netherlands, governments brought parliamentary ratification under way rapidly, doing their best to present the new treaty as a fundamental departure from the rejected TECE. The British government, under vitriolic attacks for not wishing to hold a referendum, was able to defeat a pro-referendum motion in the House of Commons on 5 March 2008 by 311 votes to 248. But it had always been clear that a referendum could not be avoided in Ireland, and when it came, on 12 June 2008, the result was another ‘no’, by a margin of 53.4 to 46.6 per cent, with a turnout of 53.13 per cent. This new blow to the treaty reform process was rendered even heavier when Polish President Lech Kaczyński, an outspoken opponent of the treaty in spite of the Polish concession package, announced on 1 July 2008 that he would not sign the treaty, its fate now being in the balance, although it had already been ratified by the Polish parliament.Footnote ⁶⁵

While the Irish ‘no’ votes were to a considerable extent motivated by concerns about the treaty threatening various aspects of Irish identity (including its Catholic values) and sovereignty (including neutrality) as well as Ireland losing its ‘own’ Commissioner as a result of the reduction in size of the Commission foreseen in the Lisbon Treaty, subsequent analysis revealed that a lack of knowledge about the treaty had been a key factor explaining both the proliferation of mostly ill-substantiated threat perceptions and the lack of enthusiasm for turning out to vote for the treaty.Footnote ⁶⁶ It had also not helped that Irish Prime Minister Brian Cowen had admitted that he had not ‘read cover to cover’ the treatyFootnote ⁶⁷ and that Irish Commissioner Charley McCreevy added shortly before the referendum that ‘no sane, sensible person’ would read it either,Footnote ⁶⁸ suggesting that the Lisbon Treaty was ‘unpenetrable’ not only for the public – as Giscard d’Estaing had predicted – but also for some of the politicians who would be responsible for its implementation.

A lot of pressure was almost immediately put on Ireland to find a solution, with French President Sarkozy rather undiplomatically suggesting early on that the Irish would simply have to vote again.Footnote ⁶⁹ Other EU leaders were less outspoken, but a second Irish referendum – as in the case of the Nice Treaty – was clearly the preferred option to avoid another protracted treaty reform crisis. This, of course, meant treating some member states as more equal than others, as no leader had seriously suggested making the French and Dutch vote a second time in the 2005 referendums disaster – which did not help with the internal Irish debate. Concessions clearly had to be made, and at the Brussels European Council of 11–12 December 2008 the heads of state or government decided to return to the formula of one Commissioner per member state – reversing one of the key institutional reforms originally proposed by the Convention – and to give Ireland legal guarantees against any extension of EU powers in the field of taxation, any implications for its traditional policy of neutrality and any impact on the provisions of the Irish Constitution in relation to the right to life, education and the family. These concessions were further refined and formalised in a ‘Decision’ adopted by the European Council in Brussels on 18–19 June 2009.Footnote ⁷⁰ On this basis, the Irish government engaged in a second referendum, which this time, on 2 October 2009, endorsed the Lisbon Treaty by a resounding 67.1 to 32.9 per cent, though with a not overwhelming turnout of 59 per cent. While a more sustained supply of government information about the treaty and a more coherent ‘yes’ campaign clearly helped to achieve the positive outcome, there was also ample evidence that the severe recession Ireland had entered since the end of 2008 in the wake of the global financial crisis made many Irish voters appreciate membership of the EU and its solidarity dimension more than before.Footnote ⁷¹

It was not only in Ireland, though, that the Lisbon Treaty met with difficulties. In Germany the treaty was challenged before the Federal Constitutional Court on its compatibility with the German Grundgesetz (Basic Law). In its judgment rendered on 30 June 2009, the Bundesverfassungsgericht (Federal Constitutional Court) ruled that the Lisbon Treaty was compatible with the Basic Law, but imposed a revision of German national implementing legislation to reinforce the controlling rights of the two German parliamentary chambers with regard to possible increases of EU competences and changes to decision-making rules under the new treaty and engaged in an unusually far-reaching consideration of the limits which the Basic Law would impose on further treaty reforms. Most notably, the Constitutional Court stated that, if ‘the threshold were crossed to a federal state and to the giving up of national sovereignty, this would require a free decision of the people in Germany beyond the present applicability of the Basic Law’ and that ‘a structural democratic deficit’ incompatible with the Basic Law would exist ‘if the extent of competences, the political freedom of action and the degree of independent opinion-formation on the part of the institutions of the Union reached a level corresponding to the federal level in a federal state’, which ‘in the worst case’ would require the Federal Republic of Germany ‘even to refuse further participation in the European Union’.Footnote ⁷² The judgment was widely seen, especially in Germany, as a shot across the bows of any further ambitions to deepen European integration and an unprecedented judicial reaffirmation of sovereign statehood in Germany’s participation in the European construction.Footnote ⁷³

In the Czech Republic, the Lisbon Treaty was even challenged twice before the Ústavní soud (Constitutional Court). In its judgements of 26 November 2008 and 3 November 2009, the Constitutional Court ruled that the Lisbon Treaty was compatible with the Ústava České republiky (Constitution of the Czech Republic). It explicitly rejected the restrictive doctrine of national sovereignty defended by Czech President Klaus with a remarkable consideration of sovereignty as a ‘means for fulfilling the fundamental values on which the construction of a democratic state governed by the rule of law stands’ rather than an ‘aim in itself’. However, it reserved its right to review in the future ‘whether any act by Union bodies exceeded the powers that the Czech Republic transferred to the European Union’.Footnote ⁷⁴

Just before the November 2009 Czech Constitutional Court ruling, President Klaus had been successful in wringing from the European Council on 29–30 October 2009 as a final Lisbon Treaty concession to national interests (and the European past) a ‘Declaration’ including the Czech Republic in the British and Polish opt-out from the Charter of Fundamental Rights.Footnote ⁷⁵ This was to guarantee that the Charter could not be invoked against the confiscation of the property of ethnic Germans and Hungarians after the Second World War under the Beneš Decrees. Deprived of any means to further delay the signing of the act of ratification, President Klaus did so on 3 November 2009. With President Kaczyński having finally completed the Polish ratification with his signature on 10 October, this removed the last obstacle, so that the Treaty of Lisbon could finally enter into force on 1 December 2009.

The completion of the Lisbon ratification process with its final intergovernmental manoeuvring around another opt-out also showed that the ‘big’ EU enlargement of the decade to include a total of twelve new member states was in a sense the major anticlimax of the protracted treaty-revision process. While it was a forceful initial driving factor for launching the process, it had hardly any major impact on the substance of the negotiations beyond the haggling over QMV weightings, EP seats and Commissioner numbers, resulting in adaptations of the treaty rather than a fundamental overhaul. The new member states also had lost little time to behave in IGCs like ordinary ‘masters of the Treaties’, having learned quickly from the ‘older’ member states how to squeeze out of EU treaty-revision negotiations the maximum possible amount of concessions in terms of institutional adjustments, opt-outs and cosmetic changes to satisfy perceived national interests, just short of bringing the whole process to a halt.

The Aftermath of the Lisbon Treaty

Compared with the Lisbon Treaty’s signing ceremony in 2007, its entry into force 2 years later was a low-key affair, with the only relatively bold statement coming from Commission President Manuel Barroso, who, after the protracted efforts to avoid any further consultations of EU citizens in referendums, bravely asserted that the new treaty would be putting ‘citizens at the centre of the European project’.Footnote ⁷⁶ After nearly 9 years of efforts – starting with the February 2001 Declaration on the Future of Europe – the failed referendums, the renounced ‘constitutional’ ambitions and the numerous national interest buy-offs, the prevailing mood both in the capitals and in the EU institutions was relief rather than any triumphalism. Unlike after the Amsterdam and Nice Treaties, no government showed any intention to reopen in the foreseeable future what the EU’s first post-Lisbon President of the European Council, Herman Van Rompuy, later called the ‘Pandora’s box’ of a further major EU treaty reform.Footnote ⁷⁷ The first decade after the Lisbon Treaty reforms – 2010–20 – became in fact the first since the 1970s without any new amending treaty reform of the European construction, reflecting both the absence of any major new political project for the Union on the side of the member states and a considerable degree of risk aversion regarding treaty change after the experiences with the TECE and the Lisbon Treaty. Debates and demands for further fundamental treaty reforms have occasionally flared up, but never to the extent of generating a critical mass of support amongst member states to launch for a fundamental revision. But this has not meant a complete standstill.

There were, again, ‘left-overs’ which had to be dealt with. As a result of the later than planned entry into force of the Treaty of Lisbon, the June 2009 elections of the EP were still held on the basis of the Nice Treaty, which had provided for a lower number of seats. With the Lisbon Treaty allocating 18 additional seats to 12 member states and Germany losing 3 seats due to the new quotas, a compromise was arrived at between the EP and the European Council, allowing the 18 additional MEPs to take their seats without waiting for the 2014 elections and the 3 ‘extra’ German MEPs (elected in 2009) to maintain their seats until 2014 – which temporarily increased the size of the EP to 754 MEPs. This solution was enacted via a very short IGC, not requiring the convocation of a Convention, launched by the June 2010 Brussels European Council and organised at Comité des représentants permanents (COREPER) II level on 23 June 2010. This resulted in a protocol to that effect, which was attached to the Lisbon Treaty and subsequently ratified by all of the member states.Footnote ⁷⁸ Another Lisbon left-over was the need to codify in the treaties the European Council ‘Decision’ of June 2009 regarding the additional Lisbon Treaty-related guarantees given to Ireland. This was done in the form of an additional protocol,Footnote ⁷⁹ which was adopted, again by a COREPER II-level short IGC, on 13 June 2012. Because of lengthy national parliamentary ratification procedures, it did not enter into force until 1 December 2014.

In the case of the two Lisbon left-over issues, the newly defined ‘simplified’ treaty revision procedure under Article 48(6) of the TEU had worked perfectly smoothly. Its biggest test so far arose in conjunction with the sovereign debt crisis which had increasingly engulfed the EU since 2010. Because of the so-called ‘no-bailout’ clause of Article 125(1) of the TFEU prohibiting the EU and its member states from assuming the commitments of another member state, the unprecedented financial lending and guarantee capabilities created under the European Financial Stability Facility and the European Financial Stability Mechanism to support Greece and other member states in budgetary and financial difficulty rested on not altogether solid legal foundations. This was of major concern to the German government, which had to defend German participation in the assistance mechanisms before the Federal Constitutional Court. Chancellor Merkel’s preferred option, namely to resolve the issue by a corresponding EU treaty change, had to overcome considerable reluctance on the side of the other governments, which were wary about engaging in another treaty revision procedure. After Merkel had secured the support of French President Sarkozy in October 2010, the European Council agreed to start consultations in view of only a ‘limited treaty change’, at the same time making it clear that it expected the member states of the Eurozone – and not the EU – to address the wider issue of a ‘permanent crisis mechanism to safeguard the financial stability of the euro area as a whole’.Footnote ⁸⁰ The ‘limited treaty change’ then took the form, agreed at the December 2010 European Council, of adding to Article 136 of the TFEU a new paragraph 3, according to which member states were authorised to ‘establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area’, with financial assistance ‘to be made subject to strict conditionality’. As this minimalist solution avoided any extension of EU competences, the simplified treaty revision procedure under Article 48(6) of the TEU could again be applied, leading, after the mandatory consultations of the EP, the Commission and the European Central Bank, to a European Council Decision adopted on 11 March 2011 amending the TFEU accordingly.Footnote ⁸¹ It entered into force on 1 January 2013, after having been ratified by parliamentary ratification in all of the member states. For the time being, this was the last substantive change of the EU Treaties.

The Article 136 TFEU amendment surely avoided the opening of the ‘Pandora’s box’ of another major Convention-based treaty revision round, but at the price of relegating the more far-reaching Eurozone issues arising from the sovereign debt crisis to a solution outside the framework of the EU Treaties through the signing in March 2012 of the intergovernmental Treaty on Stability, Coordination and Governance in the Economic and Monetary Union by twenty-five of the twenty-seven member states (the UK and the Czech Republic did not participate). Given that member states were even willing to accept solutions outside the EU Treaties for issues of such obvious relevance to the EU rather than ‘risk’ another major treaty reform, it cannot be surprising that ever since then even occasional high-level initiatives envisaging more comprehensive treaty reforms – such as French President Emmanuel Macron’s 4 March 2019 letter to the ‘Citizens of Europe’ advocating a ‘European Renaissance’Footnote ⁸² – have at best been met with a lukewarm response. The Council’s June 2020 position on the Conference on the Future of Europe, which was launched at the initiative of the Commission, the Council and the EP, not only excelled in presenting broad objectives but also explicitly stated that the ‘conference does not fall within the scope of Article 48 TEU’. The Council thereby excluded any direct link with a potential treaty revision, providing only for a report to be submitted to the European Council in 2022.Footnote ⁸³ In their ‘Joint Declaration’ on 10 March 2021, the Presidents of the Commission, the Council and the EP went no further than to invite the conference, which has a membership more than three times as large as the 2002–3 Convention and will rely heavily on a multilingual digital platform and ‘European Citizens’ Panels’ to find out what citizens ‘expect’ from the EU, to ‘provide guidance on the future of Europe’.Footnote ⁸⁴ On the occasion of the launch of the conference on 9 May 2021 in Strasbourg, President Macron expressed the wish that it would ‘ring the hour of the return of the great projects, great ambitions and great dreams’ and that its results should serve in 2022 to ‘reform Europe’.Footnote ⁸⁵ Yet the conference’s first plenary session on 19 June 2021 – perhaps unsurprisingly, given its large and diverse membership, ambitious civil-society outreach agenda and vaguely defined mandate – was largely absorbed by an enormous variety of statements of objectives and organisational and procedural debates.Footnote ⁸⁶ In terms of potential treaty reform proposals, this conference, although also coming under the heading of the ‘future of Europe’, had neither the benefit of a Laeken-type reform agenda nor that of a Valéry Giscard d’Estaing driving proceedings – which may well be exactly what most EU governments preferred.

Next to the risks (and frustrations) perceived to be connected with another major reform round, there may also be an increased scepticism about treaty reforms actually being that what the EU needs most to address its problems. A 2019 study produced by the EP’s Research Service indicated no less than thirty-four legal bases in the TEU and TFEU which, in spite of the need for action by the EU in the respective fields, remain unused or under-used.Footnote ⁸⁷ If invoking under-used treaty reforms is one way to weaken the case for further ones, the restrictive interpretation of reformed provisions is another. EU citizens, when next called to vote on an EU Treaty reform, may be forgiven for having certain doubts, given the European Council’s deviation in 2019 from the EP elections-based Spitzenkandidaten process applied after the 2014 elections to appoint the President of the European Commission on the basis of Lisbon Treaty-amended Article 17(6) of the TEU. In spite of the trumpeted placing of the citizens at the heart of the European project after Lisbon, the European Council managed to impose a candidate largely unknown outside Germany, German Defence Minister Ursula von der Leyen, as a sort of last minute ‘rabbit out of the hat’, who had not even been a candidate for the position when EU citizens voted in the June 2019 EP elections. There are also quite simply limits to what treaty reforms can achieve. When it came to the EU’s major 2015–16 migration crisis, the treaties, not least because of the Lisbon reforms, had provided tools for a more effective response – notably QMV under Articles 78 and 79 of the TFEU and the solidarity principle of Article 80 of the TFEU – but to a large extent member states were unable to agree on using them effectively. Similarly, the member states have failed to react more forcefully to the mounting evidence, since 2016, of serious challenges to the rule of law posed both by the Hungarian government and by the Polish government, although the treaties offer mechanisms and instruments – Article 7 of the TEU and beyond – to do so. No treaty reform can possibly remedy or compensate for the lack of a common political will of treaty signatories to address fundamental challenges and issues.

Conclusions

Looking at the first two decades of EU treaty-reforms in the twenty-first century, one can think of the image of a wave of ‘constitutional’ ambition first surging on the momentum generated by the treaty reforms of the 1990s and the need for reforms generated by the upcoming EU enlargements to the east and southeast, reaching its peak, but already starting to break, in the Convention on the Future of Europe, and fully breaking in the ratification disaster of the ‘constitutional’ treaty, but still having enough force to ensure substantial reforms to the existing EU Treaties. In symbolic terms, at least, the crest of the wave overturned for breaking in February 2003 when no fewer than thirty-four members of the Convention, no doubt encouraged by British official insistence on the offending ‘F-word’ being eliminated,Footnote ⁸⁸ strongly objected to the reference in Article 1 of the first draft for the new treaty to the Union exercising its competences ‘on a federal basis’.Footnote ⁸⁹ The Praesidium, which had proposed the formulation, retreated; and the term ‘federal’ never re-entered subsequent drafts of what eventually became the TECE.

At the end of these two decades it appears perhaps clearer than ever before in the history of European integration that the member states as ‘masters of the Treaties’ represented by their governments are, at least collectively and for now, not prepared to engage in any treaty reform which would transform the European construction into some sort of federal state-like entity having not only states but also citizens as its constituent basis. The underlying logic of not engaging in any such more fundamental transformation of the European construction which some of them, rather innovatively and courageously, launched 70 years ago is more pragmatic and less based on an obsession with national sovereignty than it may seem. As Alan Milward brilliantly argued,Footnote ⁹⁰ there was a strongly instrumental approach in the member states’ engagement in the European construction right from the start, with European cooperation and integration being seen by governments as an effective, even necessary, response to rapidly evolving economic and international challenges to ensure that nation-state settings could continue to fulfil their citizens’ expectations regarding public policy delivery. Moving towards some sort of federal European state went right from the start far beyond this primarily instrumental approach.

When the EU started two decades ago with what turned into a ‘constitutional’ treaty-revision process, Joschka Fischer and others brought the federal transformation question to the fore, but, in spite of divergent positions, the collective answer of the member states’ governments, as given during the Convention and in the two subsequent IGCs, was clear: the EU Treaties were to be reformed to make the post-enlargement EU better ‘fit’ both its larger membership and the greater need for common action on which the member states could agree, including as a corollary the strengthening of its legitimacy base through the Charter rights and reinforced parliamentary control. But at no stage of the process were the national governments prepared to develop their common creation into a federal state-like polity becoming an end in itself and replacing, at least in some respects, the member states as primary providers of public policy. The ‘masters of the Treaties’ were willing to concede at most the symbols – the ‘constitutional’ label, a flag, an anthem and a Europe Day – but not the substance of such a qualitative leap. Even though the backing of any form of federal integration leap by European citizens, at least in a number of member states, was always more than doubtful, those governments which in 2005 voluntarily put the TECE to their citizens for approval by referendum embarked upon what looks, with hindsight, like a daring gamble. In essence it meant trying to sell EU citizens a ‘constitution’, which was no such thing, with reforms of the already-complex existing EU system that were inevitably difficult to communicate made even more bewildering to the ‘innocent’ citizen by intergovernmental compromises on competences, QMV weights and opt-outs, and all of this without adding any new vision or redefining the mission of the Union.

The ‘rise and fall’ of the EU’s ‘constitutional’ treaty has occasionally been presented, and to some extent rightly, as a dramatic and defining moment of its history. But, as has been shown in this chapter, the TECE never ‘rose’ as high as a system-transforming treaty reform as this formulation suggests, but neither did it ‘fall’ as low, because much of its substance was saved by the Lisbon Treaty rescue. The latter also means that, in a functional sense, it can be regarded as fairly successful insofar as a number of its legal framework, institutional and policy-area reforms clearly equipped the enlarged EU with improved instruments for the major post-Lisbon challenges, such as the Eurozone sovereign debt crisis, the 2015–16 migration crisis and even – with the provision for an ‘orderly’ exit procedure under Article 50 of the TEU – the first departure ever of a member state. Arguably the post-Lisbon Treaty framework, with its many still under-used action potentials, constitutes a solid enough plateau for the Union to continue to deliver its objectives as currently defined.

But on the aspirational side, the recasting of the ‘constitutional’ treaty as the mere ‘reform’ Treaty of Lisbon marked a clear retreat of political ambition. This, together with the serious difficulties both treaties had to face in several member states during ratification and the reluctance of the ‘masters of the Treaties’ after Lisbon to open the perceived ‘Pandora’s box’ again, would suggest that the process of European integration will not return soon, if ever, to a new era of major evolution through almost continuous treaty reforms as was the case from the Single European Act to the Lisbon Treaty. The stern Ecclesiastes 3 dictum that ‘to everything there is a season’ appears thus also perfectly applicable to the evolution of the Union’s treaties.