The Merkel memo explained
15 June 2007
The full text of the memo sent by Angela Merkel to other EU leaders on the revised Constitutional Treaty can be downloaded here:
http://openeuropeblog.blogspot.com/2007/06/merkel-memo-full-text.html
Key points:
1) Disregard for voters
The memo clearly illustrates EU leaders’ continuing disregard for the wishes of their voters, particularly those in France and the Netherlands who decisively rejected the text in 2005.
It says that while the EU will:
“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."
It says that EU leaders need to avoid the “impression” that the EU is undergoing radical change:
“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'.”
The memo suggests that the revised Constitutional Treaty will be renamed the "Reform Treaty".
2) Most EU leaders will fight to preserve the “substance” of the Constitution
Dropping the name Constitution is seen as a “major concession”, which means that most EU countries will “insist on the need to preserve the substance” of the old text.
The memo says several times that the goal is to introduce all of the “institutional” changes from the original 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”.
3) “The Union would have a single legal personality” – could lead to EU seat on UN
This is something the UK will undoubtedly try to exclude from the final text. It is actually quite a surprise as it had been assumed that Britain had already managed to get this clause killed off.
Giving the EU legal personality would be a significant transfer of power and would mean that for the first time the EU would be able to negotiate and sign international treaties on behalf of its member states on issues as important as foreign policy, defence, crime and judicial issues.
EU leaders have underlined the importance of the move. Italian PM Romano Prodi said it was “a gigantic leap forward. Europe can now play its role on the world stage thanks to its legal personality.” (Telegraph, 21 June 2003)
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.” (Hansard, 20 November 2002)
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.” (Hansard, 21 December 2002)
Despite its reservations, last time round the UK Government gave way on the issue. But it will be more difficult for Gordon Brown to sign up to such an overt transfer of power now without acknowledging the need for a referendum.
4) The Charter of Fundamental Rights
The Merkel memo will be depressing reading for the UK Government 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. As well as calling for a single legal personality Merkel also insists on retaining the Charter of Fundamental Rights.
The UK has promised that the Charter 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 proposal to take it out of the revised Constitutional Treaty, but still make it “legally-binding… by means of a cross-reference in the body of the Treaty.”
This will definitely be a “red line” issue for Brown and Blair.
5) Division of competences – could bring back “worst of both worlds” scenario
Merkel’s memo 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, which was controversial because it implied that very few powers were reserved for the member states.
The EU Constitution defined most powers as “shared”, and says that where powers are “shared” the member states can only act if the EU has chosen not to.
Article I-12.2 of the Constitution stated, “When the Constitution confers on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence.”
In a proposed amendment to the draft Constitution, the UK said the division of powers in this way was “the worst of both worlds”. It has the disadvantages of setting out a list, and preventing the member states from taking action, without the advantage of imposing a clear limit on the powers of the EU in the listed areas.
Peter Hain proposed that the whole category of shared competences should be deleted, saying, “Shared competences should be a residual category. They should therefore not be listed explicitly. To have an ‘indicative list’ of some shared competences is the worst of both worlds.”
See: http://european-convention.eu.int/Docs/Treaty/pdf/12/Art12Hain.pdf
The old EU Constitution gave the EU “shared competence” over areas as important as healthcare, criminal justice, policing, immigration, terrorism, energy, the environment, social policy, the internal market and “economic coordination”.
Notes for Editors
1) For more information please call either Neil O’Brien on 0207 197 2333 or 07973 142 775; or Paul Stephenson on 0772 561 0696.
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