Political consequences
144. The political consequences of non-ratification
would depend on how many countries did not ratify the Treaty and
which they were — in particular whether they included any
of the large countries. The larger the countries not ratifying,
and the less limited and clearly identifiable their reasons for
not ratifying, the less chance there would be of salvaging the
Treaty.
145. Two MEPs suggested that it would also make a
difference which large country did not ratify, though other
MEPs disagreed;[210]
according to Alexander Stubb MEP there were three options: 'One;
the UK votes against and then it has to reconsider its membership
of the European Union. Two, France or Poland vote against, then
we are going to have to renegotiate the Treaty. Three, one of
the smaller Member States votes against and we make them vote
again'.[211] We reject
the argument that non-ratification by the UK should be treated
differently from non-ratification by any other large country,
but we note the view in some quarters that this would and should
be the case. We also note the Foreign Secretary's insistence
that the legal and political position is the same whichever country
rejects the Treaty.[212]
146. On previous occasions—Denmark's rejection
of the Maastricht Treaty in 1992 and Ireland's rejection of the
Nice Treaty in 2002—concessions have been made without changing
the Treaties themselves. Professor Denza noted that in 1992 the
European Council adopted what was in effect a separate interpretative
treaty, and in 2002 it provided assurances in the form of a Declaration
and the recognition of a Declaration made by Ireland.[213]
Much would depend on the causes assigned to any decision not
to ratify (which might be unclear in the case of a referendum),
but it seems unlikely, given the fundamental nature of many of
the provisions of the Constitutional Treaty and the fact that
it is intended to replace the existing Treaties, that non-ratification
of the Constitutional Treaty could be dealt with in a similar
way.
147. There are several possible courses of action
for the EU which are unlikely to be followed. One would be partial
entry into force among just those States which had ratified.
As Professor Bruno de Witte has pointed out, this 'would lead
to different circles of members, some bound by the new rules and
others by the old rules. The EU institutions could not function
under the new rules and the old rules simultaneously, so the revision
must necessarily apply to all states or to none of them.'[214]
Opt-outs are not a possibility in areas such as the primacy of
EU law, institutional arrangements or voting mechanisms.
148. A more drastic option would be for Member States
which had ratified the Constitutional Treaty to 'refound' the
EU on the basis of that Treaty. However, the existing Treaties
remain in force unless repealed by the Constitutional Treaty,
and if not all countries have ratified the latter the countries
refounding the EU would in effect be abrogating the existing Treaties.
Professor de Witte explained that international law allows them
to modify existing treaties without the consent of all the parties
to those treaties only if the modifications do not affect the
rights of those parties, and this would clearly not be the case.
Nor would it be particularly credible for them to claim that
there had been a 'fundamental change of circumstances' which would
(arguably) entitle them to withdraw from the existing EU and establish
a new one.[215] Professor
Dutheil de la Rochère emphasised that 'according to international
law, the Member States which do not ratify the new treaty not
only prevent its entry into force but are entitled to have the
present system maintained in its present form'.[216]
Professor Dashwood considered (presumably on the 'fundamental
change of circumstances' basis) that, if the UK Government simply
relied on the fact that the existing Treaties could not be amended
without its agreement, 'it would be legally possible for the existing
Member States to denounce the existing treaties—they could
do this in international law—and start again on the basis
of the Constitutional Treaty', but he thought it would not be
easy.[217]
149. Several witnesses observed that it was theoretically
possible, regardless of international law, for countries wishing
to proceed on the basis of the Constitutional Treaty simply to
abrogate the existing Treaties, but all regarded this a drastic
step and did not believe there would be sufficient unity of purpose
among the States which had ratified the Constitutional Treaty
to take such a step.[218]
Martin Howe QC stated that 'It would require an act of gross
illegality', as well as amendment of their own national constitutions,
and would create problems over the transfer of the assets of the
institutions and the renegotiation of existing external agreements.[219]
150. Another option would be some form of enhanced
cooperation, either within or outside the EU framework. As discussed
above, enhanced cooperation within the EU is subject to a number
of conditions which limit its use.[220]
Closer cooperation outside the EU framework is also restricted:
it may not be in areas of exclusive EU competence, may not affect
the normal operation of EU institutional mechanisms and may not
include any provisions which conflict with or undermine existing
EU policies.[221]
It could therefore be only a very partial remedy for States which
wished to implement parts of the Treaty without the non-ratifying
States.
151. The evidence we received suggests to us that
the most likely outcome if one or several Member States did not
ratify the Treaty would be some form of renegotiation, which might
be limited to quick agreement on a less ambitious treaty, as Professor
Edward suggested,[222]
but might in certain circumstances extend to renegotiating the
membership status of a non-ratifying State. The MEPs who gave
evidence to us argued that the referendum question would really
be about UK membership of the EU, and that non-ratification would
lead to the UK's withdrawal from the EU.[223]
Professor Dashwood considered that if only one or two Member
States did not ratify, 'there would be very strong pressure from
the governments of the other 23 Member States to go forward with
the new Constitution … In all likelihood, the only practical
option for the Member States unable to ratify the [Treaty] would
be to withdraw from the Union and negotiate some kind of associate
status'.[224] The
Federal Union considered the most likely result was that 'Britain
would … be forced out at least of the European mainstream
and possibly out of the European Union altogether'.[225]
152. Whether other Member States would place such
a high value on the Constitutional Treaty that they would be united
in such a course of action is uncertain. But if they were, the
question would then be how strong a negotiating position the UK
would be in to resist such pressure (if it wished to), assuming
it was the only non-ratifier or one of very few non-ratifiers,
and what the effects would be on the strength of its wider negotiating
position on EU matters. Mr Howe believed the UK would be in a
strong position, since the other Member States could not implement
the Constitutional Treaty without the agreement of all Member
States, and could not simply abrogate the existing Treaties, though
he accepted that 'The smaller the country the more pressure can
be brought to bear on them to make them re-vote in the right way'.
[226] Professor
Pernice considered that, although 'the question would be raised
whether or not the Member State in question continues to be willing
to engage in the process of European integration', the only solution
would be to reopen negotiations on the Treaty.[227]
As indicated above, a non-ratifying country could not simply
be excluded from the EU.
153. On the other hand, the UK would have to take
account of the effect of hard bargaining over the Treaty and the
UK's EU status on its other interests in the EU. We do not believe
renegotiation of the Constitutional Treaty in the UK's interests
is a realistic expectation, given that the Treaty has already
been subject to an extremely long negotiating process, in which
the UK is widely regarded in other Member States as having been
highly successful in achieving its negotiating objectives,[228]
and given the fact that significant changes to the Treaty might
require other Member States to re-run referendums in their own
countries. The Foreign Secretary's view was that 'we would be
in an era of quite profound uncertainty for the British Government's
relationship with the European Union if we were in a situation
where 24 had said yes and we had said no. I cannot predict what
the reaction would be, except we would be in a weaker position
than we are now. … If we make a decision where we are the
only ones who are rejecting it, we are making a decision for isolation
and where we would be negotiating from weakness, not from strength.'[229]
154. What might happen if the UK was alone or nearly
alone in rejecting the Treaty is to some extent speculative, since
much would depend on the exact circumstances, but citizens voting
in the referendum will certainly need to be aware of the potential
consequences of not ratifying the Treaty. Our conclusion at this
stage is that the UK's legal position in insisting on continuation
of the existing Treaties would be a strong one, for the reasons
given above. But it would be a distinct possibility that other
Member States would seek to put pressure on the UK, either to
change its view of the Treaty (though it is difficult to envisage
a second referendum) or to revise its relationship with the EU
in order to allow other Member States to implement the Constitutional
Treaty. If the UK wished to resist such pressure, it would have
the legal right to do so, but there would be a price to be paid.
We do not accept that if the UK was alone or nearly alone
in rejecting the Constitutional Treaty this would necessarily
lead to its exclusion from full membership of the EU, but we do
accept that such a decision would result in a crisis in the UK's
relationship with the EU, with unpredictable consequences, which
could well undermine Britain's national interest.
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