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UNCLAS SECTION 01 OF 06 BRUSSELS 002473 
 
SIPDIS 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: ECIN EUN PBTS PGOV PHUM PREL
SUBJECT: EU REFORM TREATY: MAKING THE SAUSAGE 
 
REF: BRUSSELS 02001 
 
¶1. (SBU) Summary. On July 23, EU Foreign Ministers opened an 
Intergovernmental Conference (IGC) to draw up the EU's 
"Reform Treaty."  The Portuguese Presidency wants to draft 
the treaty quickly on the basis of the mandate adopted by the 
leaders at the June 21-23 European Council.  In fact, the 
Presidency aims to conclude the IGC before the end of 2007, 
in order to have Member States ratify the new treaty before 
the June 2009 European Parliament elections.  The IGC mandate 
maintains many provisions of the abandoned 2004 draft 
Constitutional Treaty but with amendments designed to ensure 
smooth ratification.  The level of detail in the political 
framework agreed at the June European Council should make the 
IGC more of a technical than a political exercise.  However, 
there could still be some snags in IGC discussions and 
certainly in the subsequent national ratification processes. 
This cable describes the IGC process and reviews where the 
European Council agreement came out on issues relevant to 
U.S. interests and the conduct of U.S. diplomacy toward the 
EU (reftel).  END SUMMARY. 
 
WHAT TO EXPECT FROM THE IGC 
---------------------------- 
 
¶2. (SBU) The task of the Intergovernmental Conference is to 
translate the political agreement reached by EU leaders at 
the June 21-23 European Council into legal form.  The end 
product will be a "Reform Treaty" amending the existing EU 
treaties.  Don't expect much drama from this exercise: 
because the June Council locked in virtually all of the key 
political decisions, much of the IGC will be the realm of 
lawyers and translators.  (Indeed the lawyers are already 
reviewing a first draft over the EU's August recess.)  If all 
goes according to plan, the text will then be scrubbed by EU 
Foreign Ministers at their informal (Gymnich) meeting 
September 8-9, and a final version presented to the heads of 
state for discussion at their Council meeting October 18-19. 
Formal signing will then take place at the December Council 
meeting.  In short, the plan is for a fast, tight, and 
low-key IGC process. 
 
What Could Go Wrong? 
-------------------- 
 
¶3. (SBU) The biggest worry for the Portuguese is that the 
Poles will try to re-open the discussion on the voting 
system.  The IGC mandate includes a mechanism allowing Member 
States falling slightly short of constituting a blocking 
minority to request the Council continue negotiations on the 
proposal they dislike and address their concern "within a 
reasonable delay" (a formula EU officials say should not 
exceed four months).  Soon after the June Council agreement, 
the Poles indicated that they had been misled into believing 
they would be allowed a two-year delay of Council decisions 
under this mechanism.  However, the Poles have received no 
sympathy for this argument from other Member States or the 
Commission, and at the most recent GAERC, the Polish foreign 
minister was more conciliatory.  With other Member States 
fearing a spill-over effect if this issue is re-visited, 
there will be big pressure on the Poles to drop their case. 
 
The Real Drama:  Ratification 
----------------------------- 
 
¶4. (SBU) The miracle of the German presidency-led treaty 
development process was to transform the bulk of the 
abandoned Constitutional treaty into a legalistic series of 
treaty amendments that Member States could either sell to 
their publics as technical improvements or simply sneak right 
past them with no public discussion at all.  Will it work? 
Certainly for most of the Member States - even France is 
expected to act with little public fuss.  At this early 
stage, the nail-biters look like the Netherlands, the UK, and 
Ireland - the latter being only Member State required to hold 
a referendum.  In any case, Member State governments will 
have little margin to delay, as the EU's goal is to have full 
ratification in place by 2009, when a new European Parliament 
will be elected and a new Commission chosen. 
 
And What Does It All Mean? 
-------------------------- 
 
¶5. (SBU) The balance of this message will outline in detail 
how the Reform Treaty will change the EU.  The details are 
important, because the EU's power and influence have 
typically expanded the most as a result of relatively obscure 
changes, little noted at the time.  For those of you with 
 
BRUSSELS 00002473  002 OF 006 
 
 
time only for the CliffsNotes version, however, here is what 
you should ponder: 
 
- The consolidation of Council and Commission foreign 
relations authorities will greatly increase the influence and 
reach of the new High Rep. 
 
Our Council secretariat contacts are already salivating at 
the prospect of their boss controlling the policy apparatus 
in the Council secretariat, chairing the foreign policy 
councils (both the GAERC and the PSC), serving as Commission 
Vice President, managing the Commission's external assistance 
budget, and heading the "diplomatic corps."  Together these 
tools will give the High Rep a powerful capacity to not only 
set the foreign policy agenda, but interpret and implement 
Council decisions in a manner of his own choosing.  Yet, he 
will still have to win unanimous 27 support for formal 
Council decisions on CFSP issues.  How this relationship 
plays out in practice will likely depend on personalities, 
but it seems certain that the new High Rep position will grab 
even more influence away from Member State foreign ministers. 
 
- New powers mean that Justice and Home Affairs (JHA) will 
remain a major avenue for further EU integration over the 
next decade. 
 
There is little more to do in terms of integratig Member 
State markets and services - instead, the next frontier is 
JHA.  The Reform Treaty will set the stage, though the 
process will inevitably be slow and acrimonious.  While 
Member States will retain primary jurisdiction over 
enforcement of criminal laws, the European Union will play an 
increasingly important role in setting overall guidelines and 
policies for police and judicial cooperation.  Unlike under 
current procedures, the Reform Treaty will allow for 
"enhanced" cooperation to occur, even if Member States do not 
agree unanimously on such mechanisms.  The new process will 
remain somewhat cumbersome, though. 
 
- The new voting rules - much ado about little? 
 
Although one of the most talked-about changes of the reform 
treaty is the new Council voting system, Perm Rep contacts 
here don't think this will change much in practice.  In their 
view, the Council will continue to strive for consensus (or 
at least large majorities) in most of its decision-making. 
 
The Mechanics 
------------- 
 
¶6. (U) The Reform Treaty will not replace the existing EU 
treaties, which remain in force.  However, it will do three 
important things: 
 
-     amend existing treaties 
-     carry forward many of the innovations of the defunct 
Constitutional treaty 
-     add some new innovations of its own, concerning the 
competencies of the EU and the Member States, the nature of 
CFSP, the enhanced role of national parliaments, the 
treatment of the EU Charter of Fundamental Rights, and a 
mechanism in the area of police and judicial cooperation 
enabling some Member States to go forward on a given act, 
while allowing others not to participate. 
 
THE MANDATE FOR THE REFORM TREATY: A THUMBNAIL SKETCH 
--------------------------------------------- -------- 
 
¶7. (SBU) Following is a more thorough score sheet of where 
the EU came out on decisions at the June European Council and 
what may still raise its head in the coming months during the 
IGC. 
 
¶8. (SBU) Issue:  Voting 
 
Outcome:  EU leaders agreed to a "double majority" voting 
system (55% of member states plus 65% of the EU's total 
population).  This applies mainly to economic legislation.  A 
number of concessions were required to obtain Warsaw's 
support for this agreement, as the current voting system 
gives Poland a larger voting share than the new one. 
Accordingly, leaders agreed that the entry into force of the 
"double majority" will be delayed until November 1, 2014. 
Secondly, until March 31, 2017, any Member State may request 
that a given decision be taken on the basis of the current 
system (which favors Poland).  Furthermore, the IGC mandate 
includes a mechanism allowing Member States falling short of 
constituting a blocking minority to request the Council 
 
BRUSSELS 00002473  003 OF 006 
 
 
continue negotiations on a proposal they dislike and address 
their concern "within a reasonable delay" (a formula EU 
officials say should not exceed four months).  Polish PM 
Kaczynski claimed shortly after the June 23 agreement on the 
IGC mandate that Poland got a 
verbal agreement at the European Council allowing a two 
year-delay of Council decisions under this mechanism, which 
he wants put in writing during the IGC.  FM Fotyga at the IGC 
reportedly did not reiterate Kaczynski's demand but alluded 
to the importance of respecting "the will of Member States 
(in the minority)," a notion that could lead to endless 
negotiations, as noted by several observers in the corridors 
of the IGC.  The Portuguese Presidency and other Member 
States will do their best to prevent the Poles from reopening 
this discussion. 
 
¶9. (SBU) Issue:  EU Charter of Fundamental Rights 
 
Outcome:  The Reform Treaty will cross-reference the EU 
Charter of Fundamental Rights rather than including the 
Charter as part of the Treaty itself (as was envisaged under 
the abandoned Constitutional Treaty).  The Charter is a 
catalogue of individual rights and freedoms.  The idea of the 
cross-reference is to give the Charter, which was until now 
solely a political declaration, a binding character without 
having it part of the treaty itself.  However, the UK secured 
an opt-out from the Charter, and the IGC mandate specifies 
that two other countries -- reportedly Ireland and Poland -- 
reserved the right to opt out as well, taking the wind out of 
the sails of those advocates of a universal set of "European 
rights." 
 
¶10. (SBU) Issue:  Justice and Home Affairs Decision-Making 
 
Outcome:  The Reform Treaty will eliminate the EU's current 
"three pillar" legislative structure and extend the scope of 
voting to more than 40 new areas.  Arguably, the most 
important of these areas is Justice and Home Affairs (JHA), 
including issues of cross-border crime and police 
cooperation.  (Note: Despite the expansion of voting into key 
policy areas, decisions about Common Foreign and Security 
Policy (CFSP), defense, taxation, and social security issues 
will still require consensus.) 
 
The Reform Treaty will allow Member States to develop EU-wide 
legislation applicable to JHA issues without the need for 
unanimity.  Under the new treaty, Member States would prepare 
draft directives for enhanced cooperation and attempt to 
reach EU-wide consensus within the Council.  Failing such 
consensus, if at least one third of the Member States agree 
to the draft directive for enhanced cooperation, they may 
refer the proposal to a European Council meeting (heads of 
state) for discussion.  If the European Council reaches 
unanimous agreement within four months, it will refer the 
proposal back to the Council for adoption. 
 
If consensus is not reached within the European Council, and 
at least one third of the Member States still want to proceed 
with the draft proposal, they may inform the Parliament, 
Commission, and Council of their decision to proceed with the 
proposal for enhanced cooperation.  Member States that 
disagree with the proposal can then "opt-out" of the ultimate 
decision.  The "opt-out" provision was engineered primarily 
for the UK and Ireland, which have different legal systems 
than those of most Member States. 
 
Issue:  EU "Foreign Minister" 
 
¶11. (SBU) Outcome:  The Reform Treaty will establish the new 
position of "High Representative of the Union for Foreign 
Affairs and Security Policy."  The term "Foreign Minister" 
was dropped due to objections from the UK and some other 
Member States.  The position incorporates the following 
elements: 
- Merges the current functions of the EU High Rep for CFSP 
(now Solana) and the Commissioner for External Relations (now 
Ferrero-Waldner); 
- Manages the Commission's external relations budget as well 
as off-budget resources; 
- Chairs the monthly meetings of Member States' Foreign 
Ministers (External Relations sessions of the GAERC); 
- Oversees the newly-created EU diplomatic corps, officially 
named the "European External Action Service" (EEAS) and 
composed of officials from the Council Secretariat, the 
Commission, and seconded officials from the diplomatic 
services of individual Member States.  The EEAS will now 
provide political reporting to the Council. 
 
 
BRUSSELS 00002473  004 OF 006 
 
 
¶12. (SBU) Issue:  Permanent President of the European Council 
 
Outcome:  In a change from the current six-month rotation of 
Member State presidencies, the Reform Treaty will establish a 
new position of permanent President of the European Council, 
elected by EU leaders for a two-and-a-half year term, 
renewable once.  This is designed to make EU policy more 
consistent and give the EU more visibility on the world 
stage.  The new President will not entirely replace the 
rotating six-month Presidency of the Council, which will be 
retained for some Council formations such as meetings of JHA 
and environment ministers. 
 
¶13. (SBU) Issue:  Reducing the Number of Commissioners 
 
Outcome:  The size of the Commission will shrink, but not 
until 2014.  There will no longer be one Commissioner per 
Member State.  Instead, the number of Commissioners will 
correspond to two thirds the number of Member States.  Those 
Commissioners will be selected on the basis of a rotation 
system that remains to be worked out among Member States, but 
will take into account demographics and geography. 
 
¶14. (SBU) Issue:  European Parliament 
 
Outcome:  MEPs will enjoy more power in more policy areas, 
where they will have joint decision-making authority 
(extension of "co-decision") with the Council.  This will be 
a major selling point for those packaging the reforms as a 
way to make the EU more democratic.  The Treaty caps the 
number of Members of the European Parliament (MEPs) at 750 - 
down from its current 785.  The number of MEPs per country 
will be based on population with a maximum of 96 and a 
minimum of six. 
 
¶15. (SBU) Issue:  Giving National Parliaments a Voice in EU 
Decisions 
 
Outcome:  Although contacts claim the change is mainly 
symbolic, the Reform Treaty gives national parliaments a more 
formal role in legislation.  In practice, the Commission 
already consults national parliaments on legislation.  With 
the new treaty, under a mechanism of "subsidiarity," a simple 
majority of national parliaments will be able to challenge a 
draft piece of EU legislation if they view the Commission as 
exceeding its powers.  The Commission will have to reexamine 
the draft, which it may decide to amend, withdraw, or 
maintain (in the case of the latter it will provide 
justification to the Council and European Parliament.) 
 
¶16. (SBU) Issue:  The Future of the Common Foreign and 
Security Policy (CFSP) 
 
Outcome:  The UK invested much of its energy in the June 
European Council negotiations to ensure that the Reform 
Treaty does not erode national sovereignty over foreign and 
defense policy.  As a result of their tough stance, the 
treaty will state that CFSP is "subject to specific 
procedures" and shall be "defined and implemented by the 
European Council and the Council acting unanimously."  This 
emphasis on Council unanimity is viewed by some Member States 
as a means to limit the power of the new High Rep by 
maintaining institutional divisions on CFSP issues. 
 
¶17. (SBU) Issue:  Single Legal Personality 
 
Outcome:  The treaty gives the EU a single legal personality, 
but legal services contacts stress the single legal 
personality does not change the balance of any competencies 
between institutions or with Member States.  The Reform 
Treaty will underline that a single EU legal identity poses 
no threat to the UNSC seats of the UK and France.  Currently, 
Member States still sign international economic agreements as 
the "European Community" and foreign policy or justice 
agreements as the "European Union."  Under the new treaty, 
Member States will be allowed to sign future international 
treaties as simply "the EU" - making the European Union the 
legal successor of both the European Community and the 
present-day European Union. 
 
(SBU) Issue:  Symbols of the Constitutional Treaty (European 
flag, anthem, the word "Constitution") 
 
Outcome:  Member States abandoned the constitutional concept 
of the 2004 IGC, which would have repealed all existing 
treaties and replaced them with a single text called 
"Constitution."  Consequently, the term "Constitution" will 
not be used anywhere in the Reform Treaty.  Nor will the 
 
BRUSSELS 00002473  005 OF 006 
 
 
treaty mention EU symbols such as the flag, the anthem, or 
the motto.  Though mainly cosmetic (the flag, anthem and 
motto will continue to be used in practice), this was an 
important concession to Member States whose publics are 
concerned with the EU swallowing up national sovereignty. 
 
¶18. (SBU) Issue: Humanitarian affairs and development policy 
 
Outcome:  The Reform Treaty introduces a legal basis for 
humanitarian affairs as an objective in itself.  The 
provision will underline that humanitarian assistance is a 
specific policy goal of the EU and emphasize the application 
of the principles of international humanitarian law, in 
particular impartiality and non-discrimination.  The Reform 
Treaty will also state clearly that the eradication of 
poverty is the primary objective of the EU's development 
cooperation policy.  Policy towards middle income countries 
will be more complex and will likely include a mix of trade, 
economic, financial, technical, and cultural forms of 
cooperation. 
 
¶19. (U) Issue: Environment and Energy 
 
Outcome:  The new treaty will state that one of the Union's 
objectives is to work for the sustainable development of 
Europe, based on a high level of protection and improvement 
of the quality of the environment.  Although the idea of 
sustainable development is not absent from the current 
treaties, the Reform Treaty will reinforce and more clearly 
define this objective.  Sustainable development is affirmed 
as one of the fundamental objectives of the Union in its 
relations with the rest of the world.  The provisions on 
energy reflect decisions already taken by EU leaders in March 
2007, giving them a formal treaty basis.  They include a 
reference to the spirit of solidarity between Member States 
as well as a point on the promotion of the interconnection of 
energy networks. 
 
¶20. (SBU) Issue: Competition 
 
Outcome:  As a result of French pressure, "free and 
undistorted" competition will not be listed in the new treaty 
among the objectives of the EU.  However, the IGC mandate 
states that the single market ensures that competition is not 
distorted and that the EU will take action under existing 
treaty provisions to that effect.  This will be confirmed in 
a treaty protocol (Note: a protocol has the same legal value 
and binding character as the treaty itself).  In practice, 
the current EU rules will therefore continue to apply. 
 
¶21. (U) Issue: Leaving the Club 
 
Outcome:  The Reform Treaty allows for a Member State to 
leave the EU.  A country that wants to withdraw will 
negotiate new arrangements for working with the rest of the 
Union, but EU law would no longer apply to it. 
 
IT'S A UNION, NOT A COMMUNITY 
----------------------------- 
 
¶22. (U) The Reform Treaty will contain two clauses amending 
respectively the Treaty on the European Union (TEU - 
"Maastricht Treaty") and the Treaty establishing the European 
Community (TEC).  The TEU will keep its name, but the TEC 
will be called the "Treaty on the Functioning of the Union," 
a reflection of the fact that the Union will acquire a single 
legal personality.  The word "Community" will be replaced by 
the word "Union" throughout the text of the treaty.  It will 
be stated that the two (amended) treaties constitute the 
treaties on which the Union is founded and that the Union 
replaces and succeeds the Community. 
 
IT AIN'T OVER 'TIL IT'S OVER 
------------------------- 
 
¶23. (SBU) Comment:  The great ambition of the failed 
"Constitutional" treaty was not in any of its individual 
parts, but rathers its concept.  It was billed as a 
Constitution for a reason - it was to represent a new, more 
political, more united Europe: a true union.  Bereft of that 
concept, the Reform Treaty has become merely a set of 
unconnected, incremental expansions of EU authority - but one 
in which the whole is clearly less than the sum of the parts. 
 Indeed, although the Reform Treaty's provisions are 
meaningful, the real objective is to wipe out the political 
strain of the failure to pass the Constitutional treaty. 
Thus, the imperative for a carefully orchestrated process 
with - uniquely in the EU's history - all of the key 
 
BRUSSELS 00002473  006 OF 006 
 
 
decisions locked down by the leaders before the IGC even 
began.  It was not for nothing that Portuguese Foreign 
Minister Amado opened the IGC with the words "we shall not 
deviate one millimeter from that mandate" - the over-riding 
goal is a signed treaty, and a tightly controlled script is 
the surest means to that goal.  The downside of this 
strategy, however, is that it invites public apathy.  Indeed, 
this is not only the most unambitious treaty in EU history, 
but also the one that has generated the least excitement. 
This could be a particular problem for those countries who 
choose to ratify via a formal referendum.  While Ireland is 
the only Member State legally bound to hold a referendum (the 
result of which is far from assured), other countries are 
facing renewed and increasing demands for a popular vote on 
the new treaty.  It may be difficult to mobilize a positive 
voter turnout for a treaty without a clear, powerful concept. 
 Instead, to sell the Reform Treaty to the European public, 
EU leaders will try to demonstrate how the reforms are aimed 
at enhancing the efficiency and democratic legitimacy of the 
enlarged EU as well as the coherence of its external actions. 
 Whether this works remains to be seen. End Comment. 
MURRAY 
.