"Op zoek naar een Plan-B" (en)

EUOBSERVER / COMMENT - In the run-up to the French and Dutch referenda on the European Constitution, EU leaders were adamant that there was no Plan B.

Now that voters in both countries have rejected the treaty, and the UK is putting its ratification process on ice, it seems that Plan B is needed after all. So what options do heads of state and government have as they prepare to meet in Brussels on 16-17 June?

The strategy chosen after previous European treaties were defeated in referenda in Denmark and Ireland was to identify the issues that provoked most opposition and neutralise them by obtaining opt-outs or adding special declarations, before re-submitting the treaty for a second opinion.

But the grievances aired in the debates in France, the Netherlands and elsewhere have covered so many issues, only some of them related to the Constitution itself, that this strategy looks much harder this time.

To find out what the voters really think, it would be necessary to organise a vast consultation exercise like the National Forum on Europe that started touring Ireland after the first Nice referendum. This would take time but would help to ensure that the EU's next attempt at constitutional reform had a better chance of success.

So if the treaty cannot be saved by tweaking at the edges and re-submitting it to the electorate in its present form is out of the question, why not cherry-pick the best bits?

Opponents of the Constitution have greeted this idea with howls of protest. Yet if the public debate leaves few clues as to what could actually be improved, and assuming that parts of the treaty that provoked little or no opposition are worth saving, it seems reasonable at least to consider what could be achieved without starting the constitutional wrangling again from scratch.

What happens when Croatia joins

The Nice Treaty provides for a Union of 27 Member States, including Bulgaria and Romania, whose accession treaties were signed on 25 April 2005. After they join, the allocation of votes in the Council, seats in the Parliament, Commissioners per country and other institutional questions will have to be renegotiated to allow for the accession of new Member States.

If Croatia can overcome its difficulties in tracking down a suspected war criminal, this could well happen sooner rather than later. Croatia's accession treaty, which must be ratified by all Member States, would thus offer an opportunity to move from the institutional carve-up agreed in Nice to the more proportional balance of power proposed in the Constitution.

The only question then would be whether some Member States felt obliged to hold a referendum on Croatia's accession, as France did on enlarging the EEC in 1972 and promises to do again before Turkey can join the EU.

Meanwhile, less politically-charged institutional changes, such as consulting national parliaments during the legislative process or establishing regular dialogue with NGOs and religious groups, could be informally put into practice by the institutions before a legal basis for them has been established in the treaties.

Indeed, some of the major innovations foreseen in the Constitution could be realised without a treaty basis at all. Establishing the post of EU Foreign Minister, replacing the rotating presidency system with longer team presidencies and even appointing a president of the European Council would require only a handful of adjustments to the administrative procedures of the Commission and the Council.

A separate treaty on foreign policy and defence

It might even be possible to imagine a separate treaty outside the EU framework covering only those elements of the Constitution, such as foreign policy and defence, on which opinion polls indicate that most citizens agree that the Union should be doing more.

This "Schengen way" would be cumbersome, with every new agreement needing to be ratified by national parliaments rather than simply adopted by ministers, but it would avoid political stagnation in the short-medium term and could come under the EU umbrella at a later date.

This still leaves, however, a swathe of changes that could not be implemented without re-negotiating the treaties, including the definition and attribution of the competences of the Union and the Member States, the increase in the number of issues to be decided by qualified majority voting rather than unanimity and the abolition of the pillar system, giving the Commission and the Court of Justice a greater role in Justice and Home Affairs.

And while some changes could be made without a new treaty, they might not be worth the trouble. The EU institutions have agreed to be bound by the Charter of Fundamental Rights, for example, but unless the jurisdiction of the Court of Justice is extended by a treaty amendment, citizens cannot defend those rights in areas such as criminal justice where protection is most needed because it is the Member States' authorities that implement European law.

Whether it would be politically acceptable to implement the Constitution piecemeal after such clear popular rejections is another critical question. But while Plan B might not be as grand or ambitious as an all-embracing Constitution, dividing the integration process into smaller chunks might make it easier for voters to swallow.

The author works at the Acadamy of European Law in Trier, Germany