Identifier
Created
Classification
Origin
05BRUSSELS1583
2005-04-22 08:22:00
CONFIDENTIAL
Embassy Brussels
Cable title:  

THE PROPOSED EU CONSTITUTION: WHAT IT COULD MEAN

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C O N F I D E N T I A L SECTION 01 OF 05 BRUSSELS 001583 

SIPDIS

E.O. 12958: DECL: 04/22/2015
TAGS: PGOV PREL ETRD EFIN EAID ECIN MARR SMIG EUN USEU BRUSSELS
SUBJECT: THE PROPOSED EU CONSTITUTION: WHAT IT COULD MEAN
FOR THE U.S.

REF: USEU BRUSSELS 1556

Classified By: Rick Holtzapple, PolOff, Reasons 1.4B

SUMMARY
--------

C O N F I D E N T I A L SECTION 01 OF 05 BRUSSELS 001583

SIPDIS

E.O. 12958: DECL: 04/22/2015
TAGS: PGOV PREL ETRD EFIN EAID ECIN MARR SMIG EUN USEU BRUSSELS
SUBJECT: THE PROPOSED EU CONSTITUTION: WHAT IT COULD MEAN
FOR THE U.S.

REF: USEU BRUSSELS 1556

Classified By: Rick Holtzapple, PolOff, Reasons 1.4B

SUMMARY
--------------


1. (SBU) The Constitutional Treaty signed last October
requires ratification by all 25 Member States. It faces its
first serious test in the May 29 French referendum, and a
second critical vote in the Netherlands on June 1. Under
those circumstances, entry into force is a distant and
uncertain goal. But even if this text does not enter into
force, the proposed Constitution represents an important
signpost of the EU's ambitions and intentions over the coming
years, and one that all 25 member state prime ministers and
presidents were willing to endorse and sign last October in
Rome. Rejection of this text does not mean these proposals
will disappear.


2. (SBU) Furthermore, the Constitutional Treaty could have a
profound impact on how the USG deals with the EU. Several of
the changes, particularly those improving the EU's
institutional efficiency, should simplify our relations.
These include creation of a longer-term (two-and-a-half
years) President of the European Council who holds no
national office, as well as an EU "Foreign Minister"
responsible for both foreign policy formulation and
implementation -- a job currently shared between two
individuals. A unified EU foreign service would also make
the EU delegations in capitals around the world more
authoritative interlocutors for us on EU policies than the
current Commission delegations. The Constitution would
increase, at least at the political level, the EU's
commitments to "solidarity" and mutual defense via both civil
and military crisis response. And it should give a boost to
the EU's efforts to improve military capabilities. The EU's
legislative procedures would also be simplified, and somewhat

easier to understand -- although we are not persuaded they
will necessarily make it easier to pass EU legislation.


3. (SBU) For a host of other changes, the impact on the EU's
functioning, and on US interests, is difficult to predict.
Much will depend on how they are implemented, and in some
cases, how they are interpreted by the EU's courts. These
include increased legislative powers for the European
Parliament (EP),particularly in justice and home affairs
(JHA) and on the EU's budget; establishment of a single legal
personality for the Union (which some fear could constrain
individual member states ability to reach bilateral
agreements); conversion of the EU's Charter of Fundamental
Rights from a political document to a legally binding one;
and mechanisms that would allow for (but not require) further
integration in foreign affairs, security and economic areas.
END SUMMARY.


4. (U) This is the second of two messages on the
Constitution. This message discusses the possible
implications for the USG of the new treaty. Reftel addresses
the implications for European integration and relations with
the U.S. should one or more countries reject the document.

GREAT DOORSTOP
--------------


5. (U) The Constitutional Treaty merges and modifies the EU's
basic treaties into a single text. The resulting document is
an extremely complex one of four hundred forty-eight
Articles, with thirty-six Protocols and fifty Declarations
attached, making the English language version in the EU's
Official Journal weigh in at four hundred seventy-four pages.
To help our readers better understand its meaning through
American eyes, we offer the following highlights on how the
new Treaty, if adopted, could change how the EU functions.

EUROPEAN COUNCIL PRESIDENT
--------------


6. (SBU) The Treaty creates a permanent President of the
European Council (the meetings of EU heads of state and
government),elected by the European Council for a period of
two and a half years (renewable). This would replace the
current system of six-month rotating Presidency countries.
This individual may not simultaneously hold national office,
and will therefore be reliant on a Brussels-based bureaucracy
to drive his activities, including the external
representation of the EU. He or she will be devoted
full-time to EU affairs, and become a key interlocutor for
us. Nonetheless, we can expect tensions and turf battles
between the President and member state leaders, and possibly
between the President and the EU Foreign Minister. The
success of this innovation will depend heavily on the
personality of the incumbent.


7. (SBU) If improved coherence was the goal, however, another
aspect of the Constitution only muddies the waters. The
specialized formations of the Council (such as Transport or
Agriculture, but excluding Foreign Affairs) would be chaired
by ministers from pre-established teams of three member
states for 18 months. These ministerial Council chairs,
however, might be drawn from all three governments and would
not be responsible to the new European Council President in
the same way ministers currently are to their Prime Minister
heading an EU Presidency. This raises some question as to
whether coherence can be achieved across all formations, as
well as on how we should most effectively engage with them.
Nonetheless, it might mean that we will be able to better
concentrate our diplomatic resources among the 25 member
states, focusing especially on these teams when handling
specific issues under their competency.

EU FOREIGN MINISTER AND DIPLOMATIC SERVICE
--------------

8. (U) The newly created position of EU Foreign Minister
(EUFM) and the creation of a single External Action Service
(EAS),are perhaps the two most highly-touted innovations in
the Constitution. Boosters argue these changes would give
the EU a more influential and clearer single voice on foreign
affairs. The EUFM position would bring together the existing
functions of CFSP High Rep (Solana) and External Relations
Commissioner (Ferrero-Waldner). EU leaders have already
decided Solana should be the first occupant of this job, if
the Constitution is ratified. Whereas Solana at present
formally has no right of initiative and very limited funds,
as EU FM he would play a substantially bigger role. The EU
FM would serve as a Vice-President of the Commission, giving
him considerable authority over the EC's assistance budget.
The EU FM would also chair the Foreign Affairs Council,
making the jobholder our prime source of contact for any
foreign policy issue addressed by the EU-25. A
representative of the EU FM would chair the Political and
Security Committee (PSC),which drives the agenda of the
monthly GAERC meetings. As a result, the Brussels-based
bureaucracy would become more prominent as the driving factor
behind EU foreign policy.


9. (SBU) This bureaucracy would also be enhanced, as the EU
FM would be able to rely on a European "external action
service" that would work in cooperation with the diplomatic
services of the EU Member States. The new service would
comprise officials from the Secretariat-General of the
Council and the Commission, as well as staff seconded from
the diplomatic services of the EU Member States. Preparatory
work on the European External Action Service is underway, but
it could not begin operating until the Constitution enters
into force. Commission delegations in non-EU countries would
become EU delegations, run by the EU FM, and with the
capacity to represent and engage on behalf of the EU across
the whole range of CFSP and other policy areas, rather than
their currently more limited mandate to concentrate on
economic and regulatory matters. There is speculation that
this will result over time in some member states --
especially the smaller ones -- closing their embassies in
some countries, and relying on these new EU delegations to
conduct their diplomatic and perhaps even consular affairs.
Some EU officials point to benefits of lower costs, reduced
"visa shopping" opportunities, and improved services for EU
citizens abroad that might come from consolidating the EU
states' current 3500 consular posts as a major selling point
for the EAS.


10. (SBU) The EUFM and EAS would also take over external
representation duties currently the responsibility of the
foreign minister (and foreign ministry) of the Presidency
country. We could well see a greater push by the EU for
enhanced status in international organizations and
conferences. The Constitution mentions one specific case:
If the EU had a common position on a topic to be discussed by
the UNSC, then EU members of the UNSC should request that the
EU FM be asked to present it.


11. (SBU) It is important to note, however, that EU decisions
on CFSP would still be made in almost all cases by unanimity
among the member states in the Council. So, as at present,
when EU members are unable to reach consensus on a foreign
policy issue, the EU would have no common position. Under
the Constitution's new structure, however, the EUFM would
play the key role in jawboning member states toward
consensus, enhancing the status of Solana -- who currently
plays a more passive role, leaving the tougher work to the
Presidency FM. (NOTE: A general provision in the
Constitution would allow the EU in the future to decide to
move from unanimity in foreign policy issues without having
to amend the Constitution. This decision, however, would
have to be taken by unanimity, and could not apply to
military or security policies. END NOTE.)

MORE POWERS FOR THE EUROPEAN PARLIAMENT
--------------


12. (U) The Constitution would apply the current
"co-decision" procedure to some thirty-six new policy areas,
including intellectual property, commercial policy,
agricultural policy, immigration, and some aspects of police
and judicial cooperation. Thus, legislation in these areas
would now require approval by the EP, and would be adopted by
the Member States in the Council via qualified majority vote
(QMV) instead of (in many current cases) unanimity. National
parliaments would also be given a six-week period to review
whether all proposed EU legislation respects the
"subsidiarity" principle whereby the EU should act only when
"the intended action cannot be sufficiently achieved" at a
lower level. If one-third of parliaments object, they could
force a review of the legislation, although not block it
indefinitely.


13. (U) Beginning in 2009, the formula for QMV will be
replaced by a simpler (but still complicated) double majority
system, requiring approval by 55 percent of the Member States
representing at least 65 per cent of the EU's population.
One effect of the latter change would be to increase the
weight of big states' votes in Council. It should also be
easier to get legislation in areas newly under QMV through
the Council, but as these proposals will also now need
national parliamentary review and EP approval, final adoption
may actually be slowed.


14. (SBU) The EP would also gain more budgetary control, with
potentially significant, but unpredictable impact on the EU's
agricultural budget. This would most likely be felt only in
the EU budget period beginning in 2014). In addition, EP
assent would now be needed for an expanded range of
international agreements signed by the EU. This would not
include agreements of an exclusively foreign or security
policy nature, but it would cover agreements in all areas
where the "ordinary legislative procedure" is used. This has
the potential to significantly constrain the EU's ability to
ratify agreements in areas important to the U.S.

CHARTER ON FUNDAMENTAL RIGHTS
--------------


15. (C) One of the more unpredictable aspects of the
Constitutional Treaty is the inclusion of the EU's Charter on
Fundamental Rights in the document. This Charter was
"proclaimed" at the EU Summit in Nice in December 2000, but
is not at present a legally binding text. It is an expansive
document including, inter alia, a "right to the protection of
personal data" or the "right to paid maternity leave." While
concepts such as these already exist in current EU
legislation, this document, in our understanding, would
convert them from legislative provisions into "rights"
enshrined in the Constitutional Treaty. While the
application of the Charter would cover only the activities of
the EU institutions and national governments insofar as they
are implementing EU decisions, this change could also affect
either USG or US business interests. One possible area would
be due to expanded application of the Charter's "double
jeopardy" provision to cover proceedings in any EU member
state, potentially complicating extradition proceedings.

A LEGAL PERSONALITY FOR THE UNION
--------------


16. (C) Contrary to the European Community (EC) and EURATOM,
the EU at present does not have a legal personality. By
giving the Union an explicit legal personality that will
absorb that of the EC, the new Treaty would make the EU a
fully recognized subject of international law. Our EU
interlocutors say this should have only limited impact on
third parties. It would not automatically guarantee a single
representation of the EU on the external scene. EU legal
experts expect the EU would simply succeed to all existing EC
and EU agreements. Nonetheless, by giving the EU competence
over many "justice and home affairs" (JHA) issues, a single
legal personality, depending on how it is interpreted, could
have a profound impact on our ability to maintain a viable
bilateral-based JHA relationship with EU member states. It
could constrain partners' ability to conclude various
bilateral treaties embracing areas covered by EU
jurisdiction, e.g., mutual legal assistance, asset sharing,
etc.

COMMON SECURITY AND DEFENSE POLICY (ESDP)
--------------


17. (SBU) The Constitutional Treaty adds several new Articles
to the current treaties in this area. Many of the ideas
proposed, however, are already being implemented. The
called-for "European Armaments, Research and Military
Capabilities Agency" has already been established, in the
form of the European Defense Agency. The principle behind
the Constitution's "solidarity clause", stating the EU and
its member states shall "act jointly" to respond to a
disaster or terrorist attack, has already been applied after
the March 2004 Madrid train bombings. The Constitution also
adds thing such as disarmament operations or "military
advice"to the list of "Petersberg" tasks that could be
undertaken by ESDP operations. But nothing prevents current
ESDP operations from undertaking such tasks either inside or
outside the EU's terrritory, and ESDP planning is already
going ahead at a rapid pace.


18. (SBU) Even the Constitution's provision for "permanent
structured cooperation" allowing a subset of EU members
"whose military capabilities fulfil higher criteria and which
have made more binding commitments" on increasing
capabilities to work together on improving capabilities for
combat units is being implemented, under the EU's "battle
groups" program. (NOTE: Under the current treaties, all 25
members had to agree to let this project go forward. But in
any case, no current member has wanted to be left out and all
have signed up to participate in some way, some offering
substantial forces, others offering &niche capabilities.8
END NOTE.)


19. (U) The Constitutional Treaty rewords the current
treaties assertion that ESDP "might lead to a common
defense" to say that it "shall" do so, but it continues to
make such a decision contingent on some future, unanimous
decision by the EU member States. And it maintains the
caveats that such a step shall not prejudice the "specific
character" (i.e., neutrality) of certain member states, and
that it shall respect and be compatible with other member
states' participation in the NATO framework. The
Constitution would add, for the first time, a clause
(commonly referred to as the "mutual defense" clause) that
says if a EU state "is the victim of armed aggression...the
other Member States shall have towards it an obligation of
aid and assistance by all the means in their power." But the
clause goes on to include the same caveat as above for the
EU's neutrals, and notes that for other EU members NATO
"remains the foundation for their collective defense and the
forum for its implementation."

JUSTICE AND HOME AFFAIRS
--------------


20. (C) As noted in para 10, legislation in many JHA areas
would no longer be solely by unanimous decision in the
Council, but would now be approved by the "ordinary
legislative procedure." Traditionally, the EP, which would
now vote on such legislation, has been more assertive than
the Council or Commission on issues such as civil liberties,
capital punishment, or drug policy. If the EP's political
make-up stays the same, this could constrain the EU's ability
to pass effective legislation for judicial and law
enforcement cooperation. The Constitution would also lay out
in more detail the principles the EU would follow in
facilitating mutual recognition of judicial decision in both
criminal and civil matters. These minimum rules could then
have an impact on the EU's ability to cooperate with the US
in such matters (perhaps analogous to existing EU concerns
related to capital punishment).


21. (SBU) The Constitution would also create some new
competencies in this area for the EU. One new competency
(technically covered in the EU's "internal market" powers,
but adopted as a means to combat terrorism) is to provide the
EU an explicit legal basis for EU laws on "freezing of funds,
financial assets or economic gains." The absence of such an
explicit legal basis has, to date, been a significant
impediment to the EU taking quick action to cut off terrorist
financing. Another new competency would be to establish a
"European Public Prosecutor's Office." This prosecutor would
have jurisdiction "in serious crimes affecting more than one
member state and of offences against the Union's financial
interests" and its powers could be extended to include
"serious crime having a cross-border dimension." The EU
hopes that such a Prosecutor's Office would provide a much
stronger basis for international judicial and law enforcement
cooperation than the current Eurojust structure in The Hague.

ECONOMIC POLICY
--------------


22. (U) The major changes in economic policy under the
Constitution have been discussed above, including the new
role for the EP in commercial policy and agricultural policy
and spending, as well as a strengthened legal basis for
acting against terrorist financing. The only other provision
we know of which could have a significant impact on USG
interests is a new requirement for the Euro Group countries
to "establish common positions on matters of particular
interest for economic and monetary union within the competent
international financial institutions and conferences" and "to
ensure unified representation" of the Euro Group within the
same.
CONCLUSION
--------------

23. (SBU) While better defining the competencies of the EU
and the powers of its institutions, the agreed text is not a
Constitution in the full meaning of the word. It could not
be further amended without unanimous consent among Member
states. It remains a Treaty concluded among Member States to
confer competencies to the EU, and it would not fundamentally
modify the nature and powers of the Union. It would create
few, if any, new policy areas for EU action. EU member
states in the Council would remain at the center of EU
decision-making, although with increased recourse to QMV
voting and with a greater legislative role for the EP.


24. (C) Perhaps the most certain impact of the Constitutional
Treaty on our relations with the EU would be that, especially
on foreign policy and assistance issues, it would give us
more authoritative partners with whom to deal, and relieve us
of the need to constantly choreograph our contacts with both
the Commission and the Council Secretariat here in Brussels,
or with the Commission and the Presidency representatives
elsewhere. For economic policy or JHA matters, the potential
impact is less clear. In both areas we might find Council
agreement easier to achieve because of increased use of QMV,
and yet final approval of legislation more difficult because
of new requirements for EP assent. All considered, while the
Constitution would do a bit to give the EU a clearer voice on
the global stage, we find the main argument of the
Constitution's boosters -- that the changes to the EU
proposed in the document would significantly add to EU
efficiency and effectiveness -- rather oversold.

SCHNABEL
.