In June, European heads of government are scheduled to decide what to do about the Constitutional Treaty. Although France and the Netherlands rejected it, 18 states have ratified it, two rejected it and seven are waiting to see. It is not clear which way forward might, perhaps, be politically feasible. In theory, there are several options:

The “Treaty Plus” Option

Under this option, the Constitutional Treaty could be salvaged by keeping the text intact, but adding to it. Under one scenario, it would be enough to agree declarations interpreting this treaty on points of concern to public opinion in France , the Netherlands and elsewhere, a solution which worked for Denmark and its concerns about the Maastricht Treaty. A similar idea is to have ‘protocols’ designed to have the same effect. A protocol would have to be ratified by every member state, but would not need a new ratification of the treaty itself in those countries which had already done so.

There have also been suggestions to add bits to the treaty itself, notably new chapters enhancing the ability of the EU to tackle issues such as climate change, or strengthening competences on energy, or other matters. All these ‘Treaty Plus’ proposals have the merit of avoiding renegotiation of the treaty and some would avoid the need for repeat ratifications. But it is unlikely this would sate most member states’ desire for reform, although most favour pushing through some elements of the old constitutional treaty in this way.

The “Treaty Revision” Option

Some, including Ségolène Royal, have suggested renegotiating the Treaty, even if this may take some time. Some have suggested renegotiating, or even scrapping, part three – codifying all the existing treaties – as it was this that triggered a number of issues in the French referendum. However, this is to lose sight of the interdependence of the various parts of the treaty, and ignores the fact that the Dutch took issue with part one.

Renegotiation is certainly a possibility but it could only be achieved in the long run and would amount to re-opening pandora’s box. The difficult compromises that were agreed in the original Constitutional Treaty will not easily be replaced with different ones.

The “Mini Treaty” Option

Nicholas Sarkozy has suggested a “mini treaty” on the most urgent changes needed to allow the Union to function as it enlarges. A mini treaty may not require a referendum in many countries and could therefore be adopted swiftly. As this would mean postponing the bulk of the reforms until the distant future, many countries would only accept it as a last resort.

One interesting variant would be to tuck urgent reforms into the next accession treaty, presumably in 2009 with Croatia. An accession treaty anyway amends the existing treaties and must address issues such as the incroporation of the new member state to the Council’s voting system, the size of the Commission, the rotating EU Presidency et cetera. This would make it possible to bring in some institutional changes, while sceptical member states may find it easier to ratify an accession treaty than a Constitutional Treaty.

The Status Quo

Some might be tempted to conclude that, now that 27 ratifications are needed, it is impossible to change the current treaties and that we must live for ever more with them as the Union’s constitutional base. Only improvements that are possible under the current treaties could be implemented. A short consolidated version of the constitutional parts of the current treaties could be published for illustrative purposes.
This scenario would enable the Union to muddle through but would not address the key structural problems that led to the negotiation of the Constitutional Treaty in the first place.

Dissatisfaction in public opinion with the EU is probably heightened when dealing with obscure institutional questions. Many advocate focusing entirely on Union policies, l’Europe des resultats. This is absolutely right in principle – until the implementation of policies fails due to institutional gridlock. At some point, the mechanics must be sorted if the motor is to deliver.