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Bluster and bluff

Posted by Richard Thursday, May 13, 2004

According to the Financial Times, France and Germany have decided to raise the spectre of marginalisation or even possible expulsion for Britain from the EU if it fails to ratify the new constitutional treaty within two years.

To that effect, they intend to make a joint declaration today, "reviving" the idea that the constitution could be adopted if twenty out of twenty-five members agree, "leaving others facing a legal limbo or possible expulsion."

Nevertheless, the Financial Times reported that the proposal was "immediately denounced as unworkable by Britain", and "deemed unhelpful" by the Irish presidency. "However", the newspaper added, "it reflects frustration in France and Germany that a British referendum on the constitution could wreck a treaty which has been under construction for more than two years."

The unnamed British commentator is, of course, right. Not only does the constitutional treaty have to be ratified by all member states, the repeal of the existing treaties also requires unanimity.

Therefore, while it is theoretically possible for twenty countries already within the EU separately to agree a constitutional treaty, it would have to run side-by-side with the existing treaties. The EU is already complicated enough but to run two similar systems, but with different competences, different voting procedures, and variations in the legal bases, would be an organisational nightmare.

Perversely, such an arrangement could substantially strengthen Britain’s position as one way to resolve the conflict would be to ask Britain to leave, to which she would have to agree. This could enable her to negotiate a highly favourable "exit package", securing trading and other agreements without having to be bound by the increasing burden of EU law and restrictive policies.

Clearly, neither the French or Germans have thought this through – or perhaps they have. Either way, according to the FT, a German government official has announced that "France and Germany would publish the proposal at a joint cabinet meeting by ministers from both countries in Paris". Both countries wanted to see the final text of the constitution include a ratification clause based on an existing proposal covering future amendments to the constitution.

This proposal, already familiar and subject to heated debate amongst Eurosceptics, allows for future amendments to the constitution which are not ratified by 80 percent of the member states within two years, to be referred to the European Council. "Therefore", said the unnamed German official, "the question is going to be whether one finds a wording like this, possibly a more substantial wording, for the ratification process that's about to begin and can pass it in the European Council."

However, this is the legal equivalent of pulling yourself up by your own bootstraps. No party to a treaty can be bound by that treaty until or unless it has been ratified by all parties. Thus, Britain can veto any such proposal. British officials have been quick to point this out.

On the other hand, there may be a more sinister agenda. French officials have suggested that the Franco-German move might help Mr Blair win a referendum, by focusing the minds of British people on the dire consequences of a "no" vote. But the FT reports that this idea "was greeted with mirth by British diplomats". Ireland urged all sides to get down to the business of agreeing the final text of the treaty."

The fact that it is even being considered by the Franco-German, however, perhaps suggests a level of desperation. All parties are aware that the failure of the ratification process could spell the end of the European "project" as we know it. But it has come to a pretty pass when all that the great Franco-German axis can offer is bluster and bluff.