US embassy cable - 05BRUSSELS1583

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 
.