It is not a easy task to comment on President Giscard d’Estaing’s constitutional draft at this moment, since his real intentions are not always clear. On the one hand there is the draft of the structure, which is quite general and does not answer the question of whether Giscard wants to arrive at an integrated or an intergovernmental Europe. On the other, Giscard's report to the European Council on the Convention's work and several interviews he subsequently gave to the press show clearly that he will try to force the Convention to accept a rather intergovernmental approach. In order to find out what the document really offers, I will look at the content of some of the articles and especially report on the positions in the Convention on these issues.

The structure of the Constitution presented in the draft is a good first step for a true federal Constitution. It includes most of the articles needed in a federal Constitution and will be a good starting point for further discussions in the Convention on the detailed text of the final Constitution. A broad majority of Convention members and many NGOs followed this positive approach and welcomed the paper as such.

On the other hand one has to see that already in this first draft, which does not go into detail on many issues, there are many points that have to be criticised. Giscard managed with this short paper to give his baby a rather intergovernmental face. In the first article he bases the Union exclusively on the states of Europe, the words people and citizens are completely missing. When questioned whether this was done on purpose or simply forgotton he answered that citizens are already mentioned in other articles. Already this article shows Giscard’s understanding of what the Union is and what the new Union should be: "a Union of European States" which retain "their national identity, closely coordinate their policies at the European level, and administer certain competences on a federal basis". He does not see the future EU as a political entity which acts on behalf of and in the interest of its citizens.

Instead of discussing the nature of the future Union in the Convention, he starts a rebranding exercise of the Union. In the draft and in several interviews before the draft was presented he raised the question whether the name European Union will remain adequate. He succeeded in opening a debate on this issue: many Convention members spoke on this issue in the plenary, instead of focusing on the real shortcomings of the constitutional structure. Nevertheless the answer from the plenary was clear: no one sees the necessity for a new name. Therefore we can only hope that the search for new names such as a "United Europe" (Peter Hain sees here a resemblance with "Manchester United") and United States of Europe ends before it gets properly started, and that Convention members instead focus on the truly important issues.

Another criticism raised concerned the topic of competences. This issue remains extremely difficult, as the working group on "complementary competences" shows. After long discussions, the group only managed to define "complementary competences" but could not agree on the field of politics that should be assigned to this competence category. There has been some criticism that a list of competences is neither necessary nor desirable. Nevertheless, most of the proposals for a European Constitution, published by numerous politicians and scientists in the last decades and especially in the last month, envisage such a list. It is already obvious that there will be a heated debate when it comes to allocate policies to the different competence categories.

In title IV Giscard tackles the topic which is the most controversial, although it has not even been on the agenda of the Convention yet: the Union’s institutions. One of the positive aspects of this chapter is the mentioned "single institutional structure", which will be necessary for a more democratic and transparent Europe. One alarming element is that the European Council is not only mentioned explicitly as an institution (which is not the case in today’s treaties), but that it is mentioned before the European Parliament, the Commission and the Council. Although Giscard denied this in a press conference, this indicates that he sees the European Council, and therefore the national governments, as the most important body of his future Union. Furthermore, he included in an extra article the existence of the presidency of the European Council. This is relevant, since he has publicly stated that he is in favour of an elected Council President and against the election of the Commission President by the European Parliament. Both of these issues are highly controversial and from what Giscard has said in public, it is increasingly clear that he favours a strong role for the national governments in intergovernmental procedures. He did not include any of these ideas in the draft structure of the Constitution, but it seems that intergovernmental flesh would fit his skeleton better than integrated flesh.

Another indication for this thesis is Giscard’s baby: the "Congress of Peoples of Europe". The clear majority within the Convention is clearly against introducing a new institution representing national and European parliamentarians. The fear is that such a new institution would weaken the European Parliament - which remains the only body elected by the European citizens in order to formulate European legislation - as well as the Commission and would also make the institutional structure of the Union even more complicated. Nevertheless Giscard openly insists that such a Congress is the only feasible solution for bringing Europe closer to its citizens, and persists on including the idea for such a Congress in his draft constitution. Whereas the majority of Convention members reject this proposal, some say that the assesment of the Congress depends on the mandate it will get (Giscard proposed before he presented the draft that such a Congress could elect the President of the Commission and decide on the political direction of the Union). Another idea, put forard by Convention member Hanja Maij-Weggen, is to include the method of a Convention in the Constitution, but to name this Convention a “Congress”. She said: "Giscard d'Estaing's baby" will not be entirely destroyed, even if "in the end, it's no longer a girl but a boy".

Articles 45 and 46, which deal with the suspension of membership and the voluntary withdrawal from the Union, are also highly controversial. On the one hand there is the argument that an article on voluntary withdrawal would enable member states which do not agree anymore with the overall approach or the structure of the Union to leave the Union and therefore prevent the paralysis of the Union due to blockades. On the other hand a Convention member made the point that such a provision could provoke domestic problems in many countries and would be an invitation for eurosceptics. There was also the argument that if a state is really willing to leave the Union this can be achieved even if it is not forseen in the treaties (Greenland for example left the Union). A discussion on this issue of leaving the Union is rather new in the "Future of Europe Debate" and should be discussed in more depth also outside of the Convention.

All in all one can say the draft for the structure of the Constitution is a good starting point, but still much remains to be done by the Convention members. It is not only a question of filling the chapters, but also carefully thinking through the overall structure. Asked how the discussion on the structure will continue, President Giscard d’Estaing answered that the Convention has been heard on the topic of the structure and that the debate will continue now to be based on the results of the working groups. After that there will be debates in the plenary on the institutional structure of the Union. Further discussions on the structure of the Constitution are not foreseen. Looking at this procedure it is quite obvious that the last word on all the future drafts will stay with Giscard d'Estaing. In the working groups it was the presidium member chairing the working group who prepared the final paper. As Giscard has already shown that he is not afraid to put forward proposals that are not carried by the majority of the Convention (as he did with the Congress idea) it will be interesting to see how much the Convention members can prevent Giscard from putting forward ideas which lay in the interest of the heads of governments, but not in the interest of a democratic Europe. The discussion on the institutions will show whether the Convention is able to fullfill its mandate to arrive at a European Union closer to its citizens. If the result of the Eonvention is to be a truly integrated Europe in which Europe's citizens can actively participate and do not only have to accept the agreements of their governments, than much remains to be done within and outside of the Convention.

By Jan Kreutz, Vice-President of the Young European Federalists
jan.kreutz@jef-europe.net