The Lisbon Treaty, which provides for the reform of the EU’s institutions, was drawn up to replace the draft European constitution, which was first rejected on May 29, 2005 by 55% of French voters and then on June 1, 2005 by 61% of Dutch voters.

How did we go from the voters’ refusals to the adoption of the text by Parliament in 2008? Before the 2005 public vote, Valéry Giscard d’Estaing, chief author of the constitution, declared: “It is a good idea to have chosen the referendum, so long as the outcome is yes.”(1) And one year later: “The rejection of the constitution was a mistake which will have to be corrected.”(2) In spite of the French and Dutch noes, some countries did adopt a constitution which had little chance of success, an indication that the initial project was not amendable: “If it’s a Yes, we will say ‘On we go’, and if it’s a No we will say ‘We continue.’ (...) If at the end of the ratification process, we do not manage to solve the problems, the countries that would have said ‘No,’ would have to ask themselves the question again.”(3) Why then was so imperative a text chanced to be put to a public vote? Pro-Europeans, who were convinced that their project would arouse popular enthusiasm, may have shown too much optimism. In 2005, the citizens, who had received a copy of the text, were encouraged to follow the campaign massively, and they did not miss the opportunity to express themselves. The debate was not only covered by the main media -characterized by their clear preference for the “yes vote”(4) - but was also soon led on numerous forums, meetings, blogs or through various publications. At the time, defenders of the constitution resorted to meaningless but imperative maxims: “We need to build Europe”, “Europe needs a new start”, “Let’s be more European!” and so on. In brief, the idea was that we needed to build Europe because we needed to build Europe. Their method - a convenient one - was to present arguments against the constitution as dangerous and reactionary. Great disasters to come were announced in order to persuade the more reluctant (5). But the sole purpose of such alarmist outcries was to hide the true political nature of the project. Was it to build a federal Europe? A European superstate? A Europe of the nations? In any case, constitution defenders considered no “Plan B”, and “Europe had to get out of the rut it was in”. This kind of phrase, which was to be heard everywhere in 2005 as well as in 2008, falls within the province of EU mythology: the peoples of 27 sovereign nations were to be united in a new political framework. The EU still believes that popular legitimacy will put the finishing touches to what it has achieved in terms of legislation.

In 2005, this ideal scenario was ruined by the ‘Non’ and the ‘Nee’, but it would not be rewritten. It has quite plainly never been an option. The “EU crisis” was not about Europe’s political and institutional orientation; it was a slight incident which needed solving. But no new text was submitted before summer 2007. There are two reasons for this, one being the French electoral calendar, for Jacques Chirac could not go back on the verdict of the ballot boxes, and therefore left the task to his successor; Nicolas Sarkozy promised indeed to take the 2005 vote into consideration and proposed a “simplified treaty to gather the measures on which there is a consensus in Valéry Giscard d’Estaing’s constitution”(6), which would be ratified by Parliament. The second reason is that the treaty should be based on the following principle: “[That] all the earlier proposals will be in the new text, but will be hidden and disguised in some way”(7).

Thus, with the Lisbon Treaty the EU was concealing the Giscard constitution, which it refused to give up. Although president Sarkozy’s approach was legitimate to the extent that the “simplified treaty” was supposed to be radically different from the previous text (8) (more protective, less liberal, more consensual...), how to account for such declarations as: “The substance of the Constitution has been maintained. That is a fact”(9); “We have not let a single substantial point of the Constitutional Treaty go...”(10); “90 per cent of it is still there...These changes haven’t made any dramatic change to the substance of what was agreed back in 2004.”(11); “The substance of what was agreed in 2004 has been retained. What is gone is the term ’constitution’ ”(12); “It’s essentially the same proposal as the old Constitution.”(13); “The good thing about not calling it a Constitution is that no one can ask for a referendum on it.”(14); “Of course there will be transfers of sovereignty. But would I be intelligent to draw the attention of public opinion to this fact?”(15) etc., etc.?

Those confessions betray relief and satisfaction about the maintainance of the original treaty, but they also betray explicit intentions of dissimulation, which is totally unlike the spirit of openness that was a major claim of the constitution. “The aim of the Constitutional Treaty was to be more readable; the aim of this treaty is to be unreadable... The Constitution aimed to be clear, whereas this treaty had to be unclear. It is a success.”(16)

The Lisbon treaty is not a consistent text, but a combination of amendments to the European constitution, references to previous treaties and annexes, which isolate the most controversial parts. The method “is to keep a part of the innovations of the constitutional treaty and to split them into several texts in order to make them less visible. The most innovative dispositions would pass as simple amendments of the Maastricht and Nice treaties. The technical improvements would be gathered in an innocuous treaty. The whole would be addressed to Parliaments, which would decide with separate votes. The public opinion would therefore unknowingly adopt the dispositions that it would not accept if presented directly.”(17) Little matter then that the treaty should be 267 pages long, and about 3000 with the annexes (18). Thanks to this trick, the reluctant peoples can be ignored. This draws suspicion on the previous steps of European integration. For after all, as José-Manuel Barroso put it, “If a referendum had to be held on the creation of the European Community or the introduction of the euro, do you think these would have passed?”(19)

With Nicolas Sarkozy in power and supported by a majority in Parliament, French ratification became little more than a formality, since “[the changes] have simply been designed to enable certain heads of government to sell to their people the idea of ratification by parliamentary action rather than by referendum.”(20) The rest followed easily: on December 13, 2007, the treaty was signed by the 27 heads of State in Lisbon; France was the fifth country to ratify it. Thanks to a general climate of political and media approval combined with soothing “end of crisis” lines, no debate was raised on the content of the project which had been rejected by the people in 2005. 2008 will be dedicated to national ratifications and the new European institutions would be in office as early as January 1, 2009. But only Ireland is constitutionally bound to put it to a plebiscite. The date has been put off several times because the opinion polls did not predict a clear outcome. A ‘yes’ outcome, of course.

“Some things are easier to legalize than to legitimate.” Nicolas de Chamfort (1741-1794)

Translated from the French by Astrid Aïdolan-Ague

Notes:

(1) Le Monde, May 6, 2005.

(2) Speech at the London School of Economics, June 26, 2006.

(3) Jean-Claude Juncker, Luxembourg Prime Minister, a few days before the French referendum in 2005, Daily Telegraph, May 26, 2005. Moreover, Luxembourg ratified the Constitution on July 10, 2005.

(4) 29% of discourses on television in favour of the ‘No’ against 71% in favour of the ‘Yes’ according to the television programme “Arrêt sur Image”, France 5, April 10, 2005.

(5) Two among many exemples: “If you vote ‘No’, you are exposing us all to the risk of war.” Pierre Lellouche, Paris UMP MP, France 2, April 26, 2005; “Those who turn their noses up at the European constitution should keep in mind the pictures of Auschwitz.” Jean-Marie Cavada, Member of the European Parliament, AFP dispatch, January 22, 2005. In 2008, the same is repeated in Ireland: “Say yes to openness, yes to the new Europe and yes to the end of totalitarianism”, Brian Cowen’s speech in Tullamore, May 12, 2008. Totalitarianism... But what totalitarianism?

(6) Nicolas Sarkozy, Europe 1, January 31, 2007.

(7) Valéry Giscard d’Estaing, Sunday Telegraph, July 1, 2007.

(8) “Of course this simplified treaty cannot be a new constitution, because the French and others have already said no to it. But Europe must be provided with institutions on which a consensus will be reached.” Nicolas Sarkozy, meeting with José-Manuel Barroso, Brussels, May 2, 2007.

(9) Angela Merkel, German chancellor, The Daily Telegraph, June 29, 2007.

(10) José Luis Zapatero, Spanish Prime Minister, official speech, June 27, 2007.

(11) Bertie Ahern, Irish Independent, June 24, 2007.

(12) Dermot Ahern, Irish Foreign Minister, Daily Mail Ireland, June 25, 2007.

(13) Margot Wallstrom, European commissioner, Svenska Dagbladet, June 26, 2007.

(14) Giuliano Amato, former vice-President of the European convention, speech at the London School of Economics, July 21, 2007.

(15) Jean-Claude Juncker, Prime minister of the Grand Duchy of Luxembourg, Europe Agency, June 24, 2007.

(16) Karel de Gucht, Belgian foreign affairs minister, Flandreinfo, June 23, 2007.

(17) Valéry Giscard d’Estaing, Le Monde, June 14, 2007.

(18) Compare with the 191 pages of the European constitution and the 64 pages of the Constitution of Ireland.

(19) President of the European commission, Daily Telegraph, November 4, 2007.

(20) Dr Garret FitzGerald, former Irish Prime Minister, Irish Times, June 30, 2007.