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Neil O'Brien: Is Merkel’s memo the beginning of the end for the EU?

This is the final part of a series on the return of the EU constitution by Open Europe, of which Neil is Director.


The mood in the UK embassy in Brussels must be pretty dire.  The merde has hit the fan. Angela Merkel has just circulated to heads of government a summary of where she believes the consensus lies in the negotiations on the revised constitutional treaty. 

The Merkel memo has started to leak out, and it won’t make for pleasant reading for Gordon Brown. (You can read it in full on the Open Europe blog.)

Firstly, there is the usual ritual display of the low regard that the European political class hold the public in.

While the EU needs to:

"take into account the concerns of the citizens expressed during the ratification procedure… All Member States recognise that further uncertainty about the treaty reform process would jeopardise the Union's ability to deliver. Settling this issue quickly is therefore a priority."

There are:

"A certain number of Member States underlined the importance of avoiding the impression which might be given by the symbolism and the title 'Constitution' that the nature of the Union is undergoing radical change.  For them this also implies a return to the traditional method of treaty change through an amending treaty, as well a number of changes of terminology, not least the dropping of the title 'Constitution'.”

We certainly wouldn’t want voters to give the impression that anything was going on, would we?  Worse still, Merkel writes that the integrationist countries see the name change as “a major concession” and in return “they insist on the need to preserve the substance of the innovations agreed in the 2004 IGC”. 

In fact the memo says several times that the goal is to introduce all of the “institutional” changes from the old constitution:

    “as much of the substance of the Constitutional Treaty as possible should be preserved.” 

    “It is generally recognised that a strengthening of the institutions will help reinforce the capacity of the Union to act, and that the Union therefore has every interest in ensuring that the current  Treaties are adapted in order to introduce the set of institutional reforms agreed in the 2004 IGC.”

    “The mandate for the IGC should set out how the measures agreed in the 2004 IGC with a view to a more capable and democratic Union should be inserted into the Treaty on the European Union”

The memo also reveals the new title of the constitutional treaty. Changing the name to the bland “Treaty on the Functioning of the Union” will of course reassure anyone who might have somehow got the mistaken impression that EU leaders were engaged in smuggling the European Constitution in by the back door….

But linked to this name change, Merkel writes in the same paragraph that in return, “The Union would have a single legal personality.”

This is quite a surprise.  The proposal to give the EU a legal personality was thought to have been killed off.  It would mean that for the first time the EU, not the member states, could sign up to international agreements on foreign policy, defence, crime and judicial issues.   

That would be a huge transfer of power and make the EU look more like a country than an international agreement.  Indeed, EU leaders have already said so.  Talking about the original version of the constitution, Italian PM Romano Prodi said that it was “A gigantic leap forward. Europe can now play its role on the world stage thanks to its legal personality".   

The French Government’s referendum website argued that, “The European Union naturally has a vocation to be a permanent member of the Security Council, and the Constitution will allow it to be, by giving it legal personality.” 

Even the UK Government admitted that it could cause problems.  When the constitution was first being drafted Peter Hain said that “We can only accept a single legal personality for the Union if the special arrangements for CFSP and some aspects of JHA are protected.”  He told MPs: “we could support a single legal personality for the EU but not if it jeopardises the national representations of member states in international bodies; not if it means a Euro-army; not if it means giving up our seat on the United Nations Security Council; and not if it means a Euro-FBI or a Euro police force. " 

Despite their reservations, last time round the UK gave way on the issue.  But this time round there is no way Gordon Brown will sign up to such an overt transfer of power. 

Nonetheless, the Merkel memo will be depressing reading for the UK team because it makes it clear that the UK will have to fight a number of battles which everyone thought were over - and that will make it more difficult to get on the front foot on other subjects.

Likewise, on the legal status of the Charter of Fundamental Rights – which the UK Government has promised will never become legally binding – the German paper says that while some members want it left in and some want it taken out, "most" members can accept the none-too-sneaky proposal to take it out of the constitution, but still make it “legally-binding… by means of a cross-reference in the body of the Treaty."  Again this will not satisfy Brown, who will not sign anything that creates the faintest whiff-of-a-suggestion-of-a-possibility that the Charter could become law in the UK. 

Merkel also suggests “greater clarity over the delimitation and definition of competences of the Union and the Member States.”  This could mean the same kind of table of “division of powers” which appeared in the original Constitution, and was controversial because it implied that very few powers were reserved for the member states.

Merkel also suggests a short timetable.  She suggests that an Inter-Governmental Conference should be launched in the summer, leading to an agreement by the end of the year.  So there is little time to lose, and it looks like the revised constitution might be more radical than we expected. 

The political tempterature should rise further next week.  On Sunday, over a “sandwich supper”, the Foreign Ministers will get to see a first draft outline of an agreement.  On Monday, Blair appears in Parliament before the Liason Committee.  On Tuesday, Beckett goes to the Foreign Affairs Committee (no promises on her answering any questions though); and on Wednesday there is a debate on the negotiations in the Commons, and Prime Ministers questions.  Blair then jets off to the summit on Thursday. 

If the government and its European partners can clobber the Poles into submission the pace will accelerate rapidly.  Merkel’s memo suggests that EU leaders plan  to rely on a mixture of speed, spin and secrecy to push through an agreement.

I debated Commissioner Wallstrom, Neil Kinnock, Blairite academic Antony Giddens and federalist German MEP Elmar Brok last night, as part of the Robin Cook memorial debate.  Every single one of them trotted out exactly the same standard euro-litany.

The public can not be trusted with a vote.  It is simply “too complicated” for them. They don’t know anything about the EU and they don’t like it.  While the yes votes in Spain and Luxembourg were a wonderful exercise in “deliberative democracy”, the no votes in France and the Netherlands showed that the people had “not really answered the question” that had been put to them.  There should be no more referendums.  Oh – but of course the EU should try to become “more transparent” and “involve the people more”.  Elmar Brok said that the EU just needed to “explain more” about the good work it was doing.

I’m sick of listening to it.  Europe’s elites seem to think they have a divine right to decide what we do.  They’ve been accountable to no-one for so long now, that they seem literally incapable of understanding why people are angry at them.

After the 2005 no votes Robin Cook wrote of the pro-euro camp that “We have all behaved in a way that almost lives up to the caricature of Europe as an institution that exists for the perpetual extrusion of ever-longer treaties that meet the preoccupations of the political elites rather than the priorities of its peoples.”  Many other, less thoughtful supporters of EU integration have never managed to grasp this lesson.

The very best that the EU elite can now hope for is to ram through the constitutional treaty in the teeth of calls for a referendum – once again neatly demonstrating that the voters don’t want what they are being force-fed.  As a result, the political foundations of the EU would inevitably crumble further, setting up the prospect of some dramatic collapse at a later date. 

So why don’t the supporters of “ever closer union” at least seize a fighting chance while they still have it, call a referendum, and try to win it?  Perhaps it’s because, in their heart of hearts, they know it’s over.

Related links: The first, second, third and fourth parts to this series


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