A close look at the Reform Treaty

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By Stephen Mulvey EU reporter, BBC News The first draft of a new EU treaty can now be read in French and English, but what the text means for the EU's half a billion people is still not easy to determine.

Not only is the Reform Treaty drafted in a special form of euro-legalese, but the political passions surrounding it often generate more heat than light.

<a name="top"></a> Here we take 15 statements about the treaty - some of them plucked from the current political debate - and try to assess dispassionately how much truth they contain.

Where that attempt fails, we try to steer readers through some of the relevant arguments.

<a class="bodl" href="#constitution">It differs fundamentally from the constitution.</a> <a class="bodl" href="#president">It gives Europe a US-style president.</a> <a class="bodl" href="#foreign">An EU foreign minister will sideline national ministers.</a> <a class="bodl" href="#security">France and the UK will lose their UN Security Council seats.</a> <a class="bodl" href="#personality">It gives the EU a single legal personality - like a country. </a> <a class="bodl" href="#ratchet">The treaty is self-amending.</a> <a class="bodl" href="#parliament">It gives national parliaments a bigger say.</a> <a class="bodl" href="#charter">The Charter of Fundamental Rights will not affect UK law.</a> <a class="bodl" href="#transfer">It's a major transfer of power to EU institutions</a> <a class="bodl" href="#vetoes">It surrenders dozens of national vetoes.</a> <a class="bodl" href="#block">It makes it harder to block legislation.</a> <a class="bodl" href="#ecj">The European Court gets new powers.</a> <a class="bodl" href="#drip">It continues a "drip-drip-drip" loss of national sovereignty.</a> <a name="constitution"></a> <a class="bodl" href="#version">The UK has its own version of the treaty.</a> <a class="bodl" href="#commissioner">Some countries will lose their commissioner.</a>

It differs fundamentally from the constitution / It's the constitution re-named.

The two draft treaties - the Reform Treaty and the Constitutional Treaty - are quite different to read. The Reform Treaty has lots of this kind of thing: "An Article 40 shall be inserted, with the wording of Article 52; it shall be amended as follows: (a) the following Article heading shall be inserted: 'Ratification and entry into force'; (b) in paragraph 1 the words..." etc. The Constitutional Treaty avoided this particular kind of gobbledygook, so to describe the Reform Treaty as a cut-and-paste job, as some politicians have, is slightly misleading.

On the other hand, they are right that the practical outcome of both treaties is pretty much the same. It's often said that more than 90% of the constitution has been carried over into the Reform Treaty.

There are some differences, even so. For example, the constitution would have created an entirely new legal order for the EU, sweeping away earlier treaties, whereas the Reform Treaty merely amends them. (This is the reason for the gobbledygook mentioned above.) It also drops references to the EU flag and anthem; it ditches some of the constitution's flowery preamble, and part of an article on the principles of the union; and the text of the Charter of Fundamental Rights is relegated to an annex. In addition, some countries have negotiated new opt-outs, which they did not have from the constitution.

So is the result the same or different? The DNA of mice and humans is 90% the same, points out British Labour MEP Richard Corbett - but the remaining 10% is rather important. <a name="president"></a> The question here is whether the essential qualities that made the constitution a constitution have been removed, or whether the things that have been changed are mere details.

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It gives Europe a US-style president.

It will certainly change the nature of one of the EU's presidential posts - the presidency of the Council of the European Union, which is the body made up of the governments of member states. (The EU also has a president of the European Commission and a president of the European Parliament.)

The presidency of the council has up to now been held by a member state, not a person, and for only six months. The new President of the European Council will be a top politician, chosen by prime ministers and national presidents, for a term of 30 months. But will he or she be "US-style"? Not for now. The job comes with no executive powers.

True, the possibility of one day merging the posts of president of the council and president of the commission is not explicitly ruled out in the treaty, and some enthusiasts for European integration dream of a directly-elected EU president. But whether these things ever happen is a matter for future leaders to decide, not a decision that has already been made.

<a name="foreign"></a> The old system of national presidencies will also continue to exist, in a new form. Three countries will jointly run the meetings (known as councils) of national government ministers, to discuss legislation in areas such as employment, the environment, telecoms and transport.

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An EU foreign minister will sideline national foreign ministers.

The treaty creates a single figurehead for EU foreign policy, out of the two that currently exist. The new supremo will have the diplomatic clout of the current foreign policy and security chief, Javier Solana, plus the financial clout of External Relations Commissioner Benita Ferrero-Waldner, who controls the EU foreign aid budget. He or she will also have a big staff.

The post will not, after all, be called Foreign Minister. The title will be High Representative of the Union for Foreign Affairs and Security Policy. But it will still be a powerful position - the high representative, speaking on behalf of the EU's 27 member states, is likely to have a louder voice than the foreign minister of any individual state. (Javier Solana probably speaks louder than many of them already.)

On the other hand, the high representative can only implement policies that member states have agreed unanimously. So, as in the case of Iraq a few years ago, and possibly now in the case of Kosovo, the high representative could occasionally be left on the sidelines.

<a name="security"></a> A declaration to be added to the new treaty says the creation of the high representative does not "affect the responsibilities of the member states... for the formulation and conduct of their foreign policy". Declarations are a statement of political intent. They are not legally binding but the European Court of Justice does take them into account in its judgements.

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France and the UK will lose their UN Security Council seats.

Some countries would like the EU to get a permanent seat on the UN Security Council, and the treaty does give new forward momentum to the EU's common foreign policy. Some people may conclude from this that it's only a matter of time before the EU gets a security council seat, at the expense of France and the UK. But the UN Charter says membership is for "peace-loving states" - and the EU, as an international organisation, cannot therefore join.

What the Reform Treaty does say is that when member states have formally adopted a common position on an issue on the security council agenda, those with seats on the security council will ask if the high representative can present the EU position. If no common position has been adopted, the question will not arise. And of course it is the member states, not the EU, that have the seats on the security council, and the votes.

In fact, the current EU high representative, Javier Solana, has already presented the EU's common position at the security council on a number of occasions. This has not prevented individual member states from making their own statements as well.

<a name="personality"></a> A declaration to be added to the new treaty says explicitly that the EU's common foreign and security policy will not affect a member state's membership of the UN Security Council. Declarations are a statement of political intent. They are not legally binding but the European Court of Justice does take them into account in its judgements.

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It gives the EU a legal personality - like a country, not an international organisation.

This argument seems to rest on the assumption that international organisations do not have a legal personality. But most do.

It also glosses over the fact that the European Community - which still exists on paper as a legally separate entity from the EU - already has a legal personality. (Whether the EU already has a legal personality is a matter of dispute.)

But could the EU, if it acquired a single legal personality, end up joining international organisations or signing international treaties instead of member states? This has not been the practice up to now. Both the European Community and the EU have been signing treaties for years, and the European Community is a member of the World Trade Organization, the UN Food and Agriculture Organization, and the Hague Conference. This has not prevented member states from signing the same treaties and joining the same organisations.

<a name="ratchet"></a> A declaration to be added to the new treaty underlines that acquiring a legal personality will not authorise the EU to act "beyond the competences conferred on it by member states". Declarations are a statement of political intent. They are not legally binding but the European Court of Justice does take them into account in its judgements.

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The treaty is self-amending.

The treaty contains an article, sometimes referred to as a "ratchet clause", allowing member states to agree that decisions currently taken only by means of a unanimous vote, can in future be taken by a mere majority vote (though this is ruled out in the area of defence). It also contains provisions allowing the objectives of most EU policies to be amended.

Both of these procedures allow EU treaties to be revised without an intergovernmental conference (IGC). So could it be that in future EU treaties will be changed incrementally, without fanfare, depriving opponents even of the chance of campaigning for a referendum?

Yes and No. There are two important caveats: member states would still have to take the decision unanimously, just as they would at an IGC; and all national parliaments would have to approve. Opponents would still be able to campaign against such changes, though they would probably find it even harder to secure a referendum than it already is.

Most major institutional reforms, or the creation of new EU competences, would still require an IGC. (And the UK government, in its white paper on the treaty, says it would insist on an IGC for any "fundamental change" to the treaties.)

<a name="parliament"></a> So-called "simplified methods" of treaty revision are not entirely new. In 2004, most aspects of asylum and immigration policy were moved from unanimous voting to majority voting in this way. And there have long been other provisions allowing, for example, changes to the statutes of the European Central Bank, or the distribution of seats in the European Parliament, without an IGC.

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It gives national parliaments a bigger say in EU affairs.

This is true, but the changes are quite limited. One is that EU institutions will be obliged to notify national parliaments of proposed legislation, and give them eight weeks to comment before governments begin to discuss it. (The European Commission has in fact already been notifying parliaments of proposed legislation, but only on an informal basis.)

Another change is that national parliaments will be given a chance to challenge legislation. The treaty says that if a third of them object to a proposal, the commission has to consider whether to maintain, amend or withdraw it. But if it decides to maintain it, the national parliaments have no comeback - this is just a yellow card, not a red one. The treaty does, however, also introduce what has been dubbed an orange card: if a majority of national parliaments object, and the commission still wants to press ahead with its proposal, the European Parliament, and the council (ie the member states) consider both sides of the argument and come up with a decision.

Critics point out that the chances of half of the parliaments in the EU objecting to a draft law are not high. Furthermore, they have to do it within an eight-week period, and the only valid objection is that action at national or regional level would make more sense than action at EU level. . . And even then the parliaments could get over-ridden. . . So while this may be, as some experts argue, an important step for the EU to take, it is hardly a revolutionary one. In reality, if some parliaments started to vote against a commission proposal, it would be more likely to be killed off by the governments of the same member states, acting in the council of the EU, rather than as a result of the orange card.

The treaty also contains other encouragements to national parliaments to take more interest in European legislation, including a clause that says, "National parliaments shall contribute actively to the good functioning of the Union." (Some British MPs have objected to this on the grounds that it seems to be an instruction.) <a name="charter"></a> In fact, national parliaments already have plenty of opportunity to scrutinise European legislation if they want to, but only the Danish, Finnish and Swedish parliaments get closely involved. This treaty cannot make the others change their ways.

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The Charter of Fundamental Rights will not change UK law.

The EU's Charter of Fundamental Rights was agreed in 2000 as a "solemn proclamation" - a political declaration - but the new treaty would make it legally binding. What this change would mean in practice is hotly disputed. Some say it will open the way for the European Court of Justice to rewrite national laws in the social sphere - on strikes, collective bargaining, social security, working hours, and so on. The Open Europe think-tank quotes European Court judges, who say that this is precisely how they envisage the charter will work.

But others disagree. They say the charter applies to member states only when they are implementing EU law - but most social and employment law is national law. Some social rights are guaranteed by the charter only "in accordance with. . . national laws and practices". And an explanation of the charter's right to strike says, "The modalities and limits for the exercise of collective action, including strike action, come under national laws and practices". (This comes among the non-binding declarations accompanying the treaty.)

As an extra guarantee, the UK government has negotiated for itself a legally binding protocol, which says no court can rule that the "laws, regulations or administrative provisions, practices or action" of the UK are inconsistent with the principles laid down in the charter. It adds "for the avoidance of doubt" that the charter creates no new rights enforceable in the UK, over and above those already provided for in national law. But again, whether this protocol will work is a matter of intense debate. Some MEPs have vowed to challenge it in the European Court of Justice, on the grounds that it violates a principle that EU law must be applied uniformly to all member states. Others have argued that come what may, the European Court will develop case law on the basis of the charter, which will apply to all member states.

British officials remain relaxed, saying that the protocol is safe from legal challenges because, as part of a treaty, it will be part of the EU's primary law - its legal Bible. <a name="transfer"></a> They add that the European Court has been generating case law on fundamental rights for years, and the charter only brings together rights that already exist in that case law, so its new legally binding status ought not to change the status quo.

This may be a case where the proof of the pudding will only come in the eating.

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It's a major transfer of power to EU institutions / It does not fundamentally alter the relationship between the EU and member states.

Opponents of further European integration argue that the treaty transfers power in numerous ways - the surrender of vetoes, new powers for the European Court of Justice, institutional changes (including the creation of a new president and "foreign minister"), and changes to the voting system used by member states, to name but a few.

Most supporters of the treaty would probably concede that it transfers some power to the EU, the question is how much, and what changes will come about as a result.

Brendan Donnelly of the Federal Trust (a supporter of European integration) argues that the Reform Treaty is unambitious compared to the Single European Act, which paved the way for the completion of the EU's single market, or the Maastricht Treaty, which ushered in the euro and first gave the EU a political dimension. These were "revolutionary" treaties, in his view, while the Reform Treaty is more on a par with the Amsterdam Treaty, which marked the start of EU co-operation in Justice and Home Affairs. From this perspective, the new treaty is just one more step in the EU's pursuit of "ever closer union" and not a particularly dramatic one.

The fact that at least one prime minister started shouting at the end of the June EU summit, because he felt the constitution had been watered down too much, demonstrates that Brendan Donnelly is not the only one who regards the treaty as unambitious. On the other hand, the same incident provides partial confirmation of a point made by Open Europe (an opponent of further integration), namely that some European leaders will see the Reform Treaty as part of a constitutional process - a stepping stone on the road to a fully-fledged EU constitution.

Whether you end up concluding that the transfer of power is major or minor may well depend on what you think of pooling sovereignty in the first place. If you think it's a good idea, you are more likely to see the treaty as a modest extension of EU business as usual. If you think it's a bad idea - or if you think it works for the single market, say, but not for the fight against crime or global warming - you are more likely to think the treaty represents a quantum leap.

One other point worth bearing in mind is that the new posts of president and high representative created by the Reform Treaty will both be answerable to the EU's member states - many observers expect them to expand the collective influence of the member states in Brussels, at the expense of the European Commission. <a name="vetoes"></a> The EU is a complex, hybrid organisation, and institutional changes that strengthen it overall do not necessarily weaken national governments - the trade-off is not quite that straightforward.

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The treaty surrenders dozens of national vetoes.

A national veto disappears when member states agree that decisions that have hitherto been taken by a unanimous vote, can in future be taken by a majority vote. Opponents of European integration talk about surrendering vetoes, supporters prefer to talk about about pooling sovereignty - but neither side disputes that the Reform Treaty takes this step in somewhere between 45 and 70 policy areas.

This is numerically larger than in earlier treaties. However, that does not necessarily mean the net effect is greater, as some of the new areas which the treaty makes subject to majority voting are quite arcane - such as, in Tony Blair's words, "The council review of general rules on the composition of the Committee of the Regions, and the Comitology Committee, whatever that might be". Other examples are decisions on the methods used for gathering statistics in the eurozone, and on transport subsidies to the territories formerly in East Germany.

Other changes are more significant. The Maastricht Treaty was the first to open up the possibility of majority voting for the implementation of foreign policies - though the policies themselves had to be decided by unanimity. The Reform Treaty mirrors this by allowing majority voting on the new high representative's proposals for implementing unanimously agreed policies. There are one or two other exceptions, but in general the veto is preserved in the area of foreign policy.

Unanimity will be given up in regard to social security for migrants, though here there will be an "emergency brake" allowing a government to demand a unanimous vote at an EU summit, if it is strongly opposed to a piece of legislation.

The most important veto abolition probably comes in the area of Justice and Home Affairs (JHA), where police and judicial co-operation in criminal matters will now be subject to majority voting, as asylum and immigration and some other policies already are. (The UK has negotiated the right to pick and choose whether to take part in JHA legislation - but it will of course choose to opt in, in some cases.)

The number of vetoes given up is often regarded as a key measure of powers transferred from member states to the union, but again it's not an entirely straightforward issue. <a name="block"></a> Without a veto it is more difficult for a member state to block legislation that it dislikes, but its ability to push through legislation it wants to see adopted is correspondingly increased. It's often argued that the single market would never have come into existence if member states had wielded a veto in this area.

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It makes it more difficult for most states to block legislation.

The Reform Treaty introduces a new system for voting by member states, in cases where unanimity is not required. This says that a vote is passed if (a) 55% of member states are in favour - that's 15 out of 27 - and (b) these countries represent 65% of the EU's population. It is also passed if fewer than four countries oppose it.

At present, the system is even more complicated. One of the conditions for a vote to pass is that 255 of the 345 votes distributed among the member states should be cast in favour - that is about 74% of the total.

Open Europe cites academic research which says that the new system - which would start being introduced after 2014 - lowers the threshold for a vote to be passed. Legislation would apparently be passed more easily than it was when the EU had only 12 members (1986-1995). It follows that it is also more difficult to block a decision from being made. But the change in blocking ability is more pronounced for some countries than for others. The chances of Germany being among a group of states capable of blocking a vote remains roughly the same, the academics say, but the UK's chances would be reduced by 30%.

On the other hand, if the UK wants a vote to succeed, this is not only generally more likely to happen, but the UK's vote appears to count for more. Under the existing system it has about 8% of the 345 votes distributed among the member states. Under the new system, the size of a country's population becomes much more important, and the UK's is about 13% of the EU total.

How important these changes are is debatable. In practice, member states rarely hold votes on EU legislation (unlike the European Parliament), preferring instead to proceed by means of compromise and consensus. <a name="ecj"></a> Big countries, in particular, are seldom outvoted on an issue that is important to them. But in theory it can happen.

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The European Court of Justice gets sweeping new powers.

The European Court has so far had limited powers to rule on cases dealing with EU justice and home affairs legislation (laws on asylum and visas, illegal immigration, or judicial co-operation and so on). The new treaty would remove most earlier restrictions.

The UK and Denmark are in a special position because Denmark has an opt-out from this area, and the UK has negotiated the right to pick and choose which EU policies to sign up to. If the UK did not sign up to a piece of legislation, it would not be affected by any rulings made by the European Court interpreting that legislation. If it did sign up, then it would be affected by the rulings.

For example, the UK has signed up to policies on asylum and immigration, so it is likely, experts say, that British courts will refer more of these cases to the European Court of Justice for an interpretation, if the Reform Treaty is approved. It is also likely that these referrals would take place at an earlier stage in the legal process - in other words, before the case reaches its final stage (the House of Lords or Court of Appeal). <a name="drip"></a> Former UK Europe Minister Geoff Hoon is on record as warning this could further complicate "our existing asylum and immigration policies".

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The new treaty continues a "drip-drip-drip" loss of national sovereignty.

This is one way of looking at it. In so far as the history of the EU has been one of deepening integration, almost every new treaty has led to a greater pooling of sovereignty. Another way of looking at it is to say that member states have chosen to pool sovereignty in an increasing number of areas, because they get better results this way than by acting alone.

Will this process continue indefinitely? It depends whether the member states want it to or not.

One theory is that after more than 20 years of almost constant treaty revision, and the huge turmoil over the constitution, they will now want to pause, and focus on delivering results that make a difference to European citizens, using the tools currently available.

Another theory says that in an EU of 27 states or more, agreeing ambitious new projects is now very difficult, making it more likely that further integration will be limited, or take place in smaller go-ahead groups, as with the euro, and the Schengen open-borders agreement.

But it is also possible that in 2009, once a new European Parliament and European Commission are in place, the member states will embark on a new round of treaty revision to pick up more of the pieces left behind in the wreckage of the constitution. The constitution was originally conceived as a way of making the EU more transparent and accessible to citizens. The Reform Treaty was not. As a result, the "democratic deficit" is as serious as it ever was, and some EU leaders will be eager to address the issue.

The EU also has plenty of opportunities to continue integration without resorting to treaty revision. There is a lot of scope for further collaboration in the justice and home affairs field, or on energy policy and climate change. Equally, the eurozone countries could decide to integrate more deeply, or the political parties represented in the European Parliament could make a bid to determine the next president of the European Commission.

It seems unlikely that the EU will want to stand still.

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The UK has signed up to its own version of the treaty.

This is inaccurate, or at least, a loose use of language. All countries have agreed the same negotiating mandate, and will sign the same treaty, assuming the intergovernmental conference reaches a successful conclusion. <a name="commissioner"></a> The UK will simply have opt-outs in some areas.

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Some member states will lose their European commissioner.

This is true - they will lose their commissioner temporarily, for five years at a time. At present, each country has a commissioner, and not long ago the larger countries had two. But under the new treaty, from 2014 only two-thirds of member states will have a commissioner at any one time. The seats will be handed out by rotation, every five years. In an EU of 27, each country would have a commissioner for 10 years out of the first 15. However, the EU is likely to have 28 members by 2014, so the arithmetic will not be quite so neat.

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