EU:The new EU 'reform treaty' is attempting to be all things to all men, writes Jamie Smythin Brussels
Four days after European leaders agreed the blueprint for a "reform treaty" to replace the EU constitution, a debate is raging across Europe about what it all means. Britain's Tony Blair told the House of Commons on Monday that the concept of a constitution had been abandoned in favour of an amending treaty.
"The idea that this involves some vast transfer from the UK to Brussels is utterly absurd," said Mr Blair, who paraded a series of opt-outs and protocols added to the treaty as evidence that Britain was safe from any creeping European superstate.
Yet across the Irish Sea his close political friend, Taoiseach Bertie Ahern, was claiming that 90 per cent of the substance of the constitution had been retained. "It was fascinating to sit here and listen to the debate about how removing the symbolism changes this. We have taken out Article 8. Beethoven is out, and the flag is out. I don't think that will make a damn difference to anyone in Europe."
The unusual vista of Mr Ahern and Mr Blair on the opposite sides of a debate, begs the question: who is right? Is the "reform treaty" simply the constitution dressed in different clothes, or has it changed the substance of the constitution?
"It is a matter of presentation," says Antonio Missiroli, policy analyst at the European Policy Centre. "Most of the substance of the constitution, probably 80 per cent, is there, but it is wrapped up in the form of an amending treaty."
Britain, the Netherlands and France lobbied to remove all constitutional references from the treaty for fear it would prompt demands for referendums.
For example, the EU flag, motto and anthem were all cut out of the text. The name has been changed to "reform treaty" rather than constitution - and, crucially, the new treaty will not be a single readable text that consolidates all previous EU treaties into one document. Instead, it is an "amending treaty" that will be grafted on to the existing ones.
Other key concessions given to those sceptical of a constitution was the renaming of the proposed new EU foreign minister. If the reform treaty is ratified by all 27 EU states, this new post will get the title High Representative for Foreign and Security Policy. The post will, however, retain all the functions and competences offered in the constitution, enabling its holder to chair meetings of EU foreign ministers and also sit as a vice-president of the European Commission.
Despite the sceptics, the provision in the constitution that gave the EU a legal personality remains intact. This should enable the EU to sign international treaties, a competence that previously only lay with the European Community. In a sop to the Dutch and British, an article stating that EU law has primacy over national law has been cut out of the "reform treaty". But this will have no legal impact, as the EU already enjoys primacy in policy areas where it is competent.
The "reform treaty" should dramatically reduce the number of policy areas where states can retain their national veto and block community decisions.
Legal experts suggest that in 49 areas such as justice, social security and development aid, states will in the future take decisions by qualified majority rather than unanimity.
The European Parliament and European Court of Justice will also get to scrutinise these policies, a feature contained in the constitution.
Yet to prove to its electorate that this is "just another treaty" and not a constitution, Britain has chosen to retain the ability to opt out or into EU justice decisions as it pleases. Ireland has also negotiated an "opt-out" in this sensitive area, arguing that it could become isolated without the support of its common law neighbour, Britain.
The charter of fundamental rights - a document that contains a range of citizens' rights - has been dropped from the treaty.
But in a classic example of EU fudge, a cross-reference in the reform treaty makes it "legally binding". However, not content the charter would not threaten its domestic law, Britain negotiated a protocol that specifically states the charter will not change British law. Ireland has reserved its right to join in this protocol and yet claims to fully support the charter.
With all the declarations, protocols and footnotes written into the text, is it any wonder the politicians who negotiated the "reform treaty" are confused about what it is exactly? These compromises were crucial to get the political backing from states to agree a new treaty. Indeed, the "reform treaty" is attempting to be all things to all men.
But the irony is that all the complicated caveats make it impenetrable to the very people who need to support it: the public.