Der Verfassungsvertrag wird seine Wirkungen entfalten, wenn und sofern er in Kraft tritt. Es wird jedoch eine Weile dauern, bevor der Ratifizierungsprozess abgeschlossen ist und die Frage, was passiert, falls er von einigen Mitgliedstaaten nicht ratifiziert wird, ist noch offen. In einem Papier des Istituto Affari Internazionali befassen sich Luigi Tosato und Ettore Greco mit drei Kernfragen bezüglich der Ratifizierung des Vertragswerks.
In order not to waste the valuable work done, a closer look must be taken at three key aspects of Constitution ratification:
- the timeframe and methods of ratification;
- possible anticipated application of parts of the Constitutional Treaty (CT) before it enters into force;
- initiatives to be undertaken in case the Treaty is not ratified by all member states. Analysis of these aspects necessarily calls for both political and legal considerations.
1) Ratification procedures in the member states
As of this writing, a number of member states have decided or intend to include a referendum in their procedures for ratification of the CT. Spain is scheduled to put the question to the people on 20 February 2005. Other countries that have made the same choice are Denmark and Ireland, both of which are constitutionally obliged to do so. Referenda will also be held in the Benelux countries, the Czech Republic, France, Poland, Portugal and the United Kingdom. The other member states have either opted for parliamentary ratification or are inclined to do so.
Thus the overall picture is varied. Nevertheless, the general trend is clear: a higher percentage of member states than in the past has decided (or intends) to submit the CT to popular approval. This can be accounted for by both general and contingent reasons. In some member states, the decision to hold a referendum has undoubtedly been dictated by domestic political considerations. But there is also a widespread demand from citizens to be directly involved in this important step in European integration.
Nevertheless, the risk that frequent recourse to popular consultation at the national level could complicate – if not paralyse – the integration process should not be overlooked. An example is President Chirac’s recent proposal to hold a referendum on the question of Turkey’s entry into the European Union. It is clear that if national leaders choose to appeal systematically to the electorate to avoid having to manage directly the more delicate steps in European integration, it will become increasingly difficult to reach common or strategic positions on the more important problems or events.
2)
Anticipated Application of Some CT Innovations
There are three reasons why it would be advisable, where legally possible (see infra), to introduce some of the innovations contained in the Constitutional Treaty even before it is ratified: first, the reforms contained in it are urgently needed; second, they could be facilitated by anticipated application and; third, anticipated enactment of some reforms could actually facilitate ratification of the Treaty itself.
First, the process of constitutional reform was launched in December 2000 in the conviction that the policies and institutions of the Union had to be adapted urgently to the challenges it was facing (starting with the historical enlargement to no less than ten countries). Realistically speaking, it’s likely that the ratification process will take at least two years, as was the case with previous treaty modifications that were far more limited and partial. If no reform is introduced in that time, the European institutions‘ problems of functionality and credibility will be exacerbated. It would be damaging indeed if the member states, faced with the growing need for greater efficiency, transparency and democratisation, were to wait passively for the outcome of the ratification process. It is therefore essential that the reform process continue and that as many innovations as possible be implemented ahead of time.
Second, once the Treaty enters into force, its implementation would be facilitated if some of the innovations it provides for were already applied and tested. Some of these innovations are rather complex and call for a number of procedural steps before becoming operational. The risk, then, is that if application is only started after ratification, it will be a long time before the Treaty comes into full effect. Anticipated enactment of some key provisions could accelerate the process. This is what is being done, for example, with the European Defence Agency; a similar approach could be applied in other fields.
Third, adopting a few measures that would allow for anticipated application of some of the more significant innovations contained in the CT could facilitate the ratification process itself. In fact, some of these innovations are currently the object of intense political debate in a few countries. Those opposing the Treaty tend at times to interpret them in a distorted fashion, spreading unfounded alarm. Their anticipated application could help dissipate these fears. It would make it clear to public opinion that introduction of some of the more disputed novelties will not only leave the nature of the relationship between the Union and the member states unchanged, but could actually facilitate the implementation of policies that concretely tend to satisfy European citizens‘ demands.
3) Solutions in Case of a Ratification Crisis
Member states are obliged to activate ratification procedures quickly and to work loyally and in good faith towards a positive outcome (see supra). It is clear, though, that there is no obligation to ratify and that it would therefore be possible (and not unlawful) for one or more member states to decide not to ratify the CT as a result of internal constitutional procedures. Unfortunately, given the number of current members and the general political climate, this possibility cannot be ruled out. Therefore it seems important to consider as of now how to face the scenario of deep crisis that would ensue. Two types of solutions can be foreseen: those agreed upon between ratifying and non-ratifying states and those leaving aside such agreements. Obviously the latter are less preferable in that, although legitimate in terms of international and European law, they constitute a kind of extrema ratio. Nevertheless, acknowledging that they exist could facilitate an agreed solution.
To read the full Istituto Affari Internazionali analysis, please click here.