The End of the European Community?

It’s true – we may be witnessing the last days of the European Community. Moving on from the failed effort at devising a European Constitution effort two years ago, this summer has witnessed substantial progress on revisions to the European Union (EU), with the revival of an Intergovernmental Conference (IGC) and the beginning of negotiations for a new agreement among EU member states. Gone, however, is the idea of producing a Constitution; in its place is a political agreement to produce a “Reform Treaty” by the end of this year, with an eye to entry into force at the beginning of 2009. The deal reached among Member States in late June is summarized here. The IGC started meeting on July 23, 2007, and has already circulated a draft of the Reform Treaty (you can access it in English here, or in French here).

I’ll leave it to those interested in constitutionalism and the EU’s internal workings to opine on whether the change in title and approach reflect a true departure from earlier constitutional efforts, or if it’s little more than new window dressing (many of the structural changes envisioned by the Constitution, for example, make a reappearance in the first draft of the Reform Treaty). Apart from such questions, however, the draft Reform Treaty contains a number of other interesting issues involving the EU’s status under international law and the future of EU-treaty making that may be of general interest.

Most notably, the Reform Treaty will tidy up one of the stranger aspects of the current European system, where, as far as both European and international law are concerned the European Community (EC) and the European Union (EU) exist as two separate international legal persons, with the EU actually having a far more limited presence than the older EC. Thus, even though the European Union’s political structure overtook the Community after the Treaty of Maastricht in 1992, the EC remains the institution that actually negotiates and concludes treaties on most matters over which it has competence (i.e., the so-called “Pillar I” competencies, including trade, commerce, and the environment). As I wrote last year, the EU only recently began to exercise its own international legal personality, and then only with respect to justice and foreign affairs. The EU/EC duality thus creates the possibility of a single political organization doubling its presence on the international stage with the excuse that its internal structure requires such a result. For states looking to conclude treaties or agreements involving the EU, this has led to much confusion, and occasionally, outright hostility.

In its current form, the Reform Treaty should put this problem to rest, by killing off the EC upon its entry into force. It would revise both the Treaty on European Union (TEU) and the Treaty Establishing the European Community (TEEC) in ways that remove the European Community from the equation and establish the European Union as having the sole, international legal personality for this organization. It would provide a new article 32 in the TEU confirming the EU’s legal personality, and revise the TEEC into the “Treaty on the Functioning of the European Union” with all references to the EC replaced by references to the EU. What remains to be seen, of course, is how this internal movement of authorities from the EC to the EU plays out with other states; i.e., whether the EU would be allowed to succeed to the EC’s obligations in various multilateral and bilateral treaties. I would guess so, although the law of treaty succession among international organizations is pretty under-developed (there might be some useful precedents though in finding out whatever happened to treaties done by the European Coal and Steel Community after it ceased to exist in 2002).

To go along with its new streamlined, international legal personality, Article 1(19) of the Reform Treaty would create–just like its constitutional predecessor–an EU Foreign Affairs Minister (I would hope though that the Minister would get a better title than the current formulation of “High Representative of the Union for Foreign Affairs and Security Policy”). The creation of this post suggests a potential move from having EU member states employ their own foreign ministry negotiators to aid (or keep in check) European Commission officials in negotiating and concluding EC/EU treaties, to a situation where the EU would have the internal resources to do such negotiations on its own with much less input from member state delegations.

Even if an EU Foreign Ministry does the negotiating, however, the current draft of the Reform Treaty doesn’t give it the power to actually make treaties. That power resides in the EU writ large, represented for the most part by the Council. Draft Article 2(175) of the Reform Treaty would convey on the Union a broad power to conclude treaties:

The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope.

EU treaties would be binding on both the institutions of the EU and its Member states. The Council would have the authority to authorize the opening of negotiations and the conclusion of treaties on behalf of the EU (interestingly enough, the draft provisions also anticipate giving the Council authority to OK provisional application and, with the EU Foreign Minister’s recommendation, to suspend EU treaties). In certain defined instances, the Council’s treaty-making authority would require pre-approval of the European Parliament (e.g., agreements with important budgetary implications for the EU). The Council would take its decisions on treaties by either a qualified majority or unanimity depending on the subject-matter or type of treaty at issue. Finally, the Reform Treaty would give member states, the Parliament, the Council and the Commission the power to go to the European Court of Justice for an opinion on whether a proposed treaty complies with the EU’s foundational texts, and if the ECJ replies in the negative, require changes to the treaty in question. Taken together, this suggests a very broad and refined treaty-making power–one much more akin to the power exercised by states than international organizations.

The Reform Treaty would also convert the 2000 European Union Charter of Fundamental Rights-a legally non-binding statement of rights among the EU Parliament, Council and Commission—into legally binding obligations (see Article 1(9) of the draft Reform Treaty, replacing Art. 6 of the TEU). I’m not familiar enough with the Charter to say whether this is a laudable, let alone workable, conversion, but it would at least serve as a noteworthy instance in which so-called “soft law” provisions morph into binding international legal commitments (apparently, the British feel the draft would not require them to make the Charter judicially enforceable, so it may be questionable if the conversion will have any real domestic effects — I’d be interested to hear what others have to say about this). Separately, the draft treaty specifically authorizes the EU to join the European Convention on Human Rights, something which the ECJ had previously found the EU/EC could not do under existing authorities.

As a final note, I’ll be interested to see how open the IGC negotiations are going forward. The European Constitution failed, not at the inter-governmental negotiation stage, but when the treaties were turned over to the national populations, with notable “no” votes by the French and Dutch populations in referenda on the Constitution. Evidently, this time around, Britain, France and the Netherlands feel the Reform Treaty will not trigger a referendum requirement under their domestic legal requirements (although Ireland apparently will hold one). Does anyone else think this is a strange way to go? Rather than further engaging the populations who feared certain elements of the proposed European Constitution and converting them to the cause, this suggests an overt attempt by national governments to cut the general populace out of the process. Certainly, there’s a long history of treaty-making processes that do just that. Take the U.S. Jay Treaty for starters; putting aside the separation of powers fight it engendered, does anyone doubt that treaty would have been rejected had U.S. law required it to be subject to a popular referendum? Still, if the goal of the Reform Treaty is to produce a more harmonious, integrated system within the EU, I wonder if overt wrangling to avoid non-governmental contributions sends the right message?