The Lisbon Treaty seen through the eyes of a jurist

Taurillon: Professor Ziller, in your latest book you compare Europe with the giant Gulliver, why did you choose this image?

Jacques Ziller: The image is very simple. In the French language, we often use the expression “Gulliver empêtré” (entangled Gulliver). It is the image of Gulliver who is bound on the ground by all these wires in which the Lilliputians enclosed him. And by reading all the statements and the supplementary protocols, which were added with the Lisbon Treaty, we have this impression to be entangled in a whole series of more or less visible wires. And thus the idea came to me from Gulliver, this giant lying on the ground (first chapter of Gulliver’s Travels by Jonathan Swift), which the Lilliputians want to prevent from getting up because they are afraid of it. The Lilliputians are afraid of the unknown.

It is this fear of the European Union on behalf of politicians or of certain technicians that are afraid of a matter which they do not know well, but especially who are afraid of explaining to the population that the Union is not a dangerous thing, that it is a giant with regards to the current Member states, but it is not a danger for them. Here is the origin of this image.

Taurillon: What do you think of the possibility, foreseen by the treaty, to have opt-outs, notably in the light of the recent evolutions in Denmark and in Poland?

Jacques Ziller: It is necessary to distinguish the possibility of an opt-in or the opt-out; i.e. the possibility for a Member State to choose to participate in a given EU policy in the future or to say at once “I do not want to participate”.

The first thing to be said is that the Maastricht Treaty – which introduced the concept of opt-outs – meant a total change in comparison to what we made before. Prior to Maastricht it was the entire Community which was doing something together, or not doing anything. From the Maastricht Treaty onwards, we realised that it was not possible to go ahead at the same speed all together. In that specific meaning, the fact of having an opt-in and opt-out was the realistic option and it is the only way of deepening the integration.

Since the Maastricht Treaty we did not realise everything together as at the time of the Community.

As they are planned in the Lisbon Treaty, there is a danger in particular as regards the possibilities of opt-in for United Kingdom - because it is especially the latter which is a question - and little for Denmark in the third pillar [police and judicial cooperation in penal cases, editor’s note]. The danger is the following one and we have already observed it in the last years exactly for the third pillar and for cases, such as Schengen, where the United Kingdom had possibilities for an opt-in: a government said “Yes, yes. I want to participate in such a project”. It thus participates in the negotiations and fixes the parameters, if necessary, by preventing others from going further. And then at the last moment, she says: “No, that does not please me”. In theory, the others can say: “Because we are between us, we can go all the same further”. But the dynamics is such as when the text is tied up, when it is ready, we do not go back.

We witnessed on several occasions the fact that a government, which finally did not participate in a specific policy, nevertheless fixed its parameters. And that is very dangerous and it is strengthened in certain options of opt-ins/opt-outs of the Lisbon Treaty. A last remark: the public opinion does not play necessarily in the foreseen direction. The United Kingdom made efforts to obtain this absurd protocol on the Charter, which some present as an opt-out – it is not really the case but it doesn’t matter. Result: from the day after the June Summit, it is the British Labour Unions which said “We want a referendum because we do not want an opt-out from the Charter; we want exactly the securities which are in the fourth part of the Charter”. The changes of attitude in opt-out result simply because the governments have no capacity to plan on what the public opinion is going to focus.

Taurillon: The so-called reformed, now Lisbon Treaty was conceived, among others, to avoid the ratification procedure via referenda. Do you think that this solution presents only advantages or it could present also inconveniences?

Jacques Ziller: Let us be clear, there is no doubt that the Treaty was planned to avoid referendums in a certain number of Member States. But the choice to make a referendum, safe in Ireland, is purely a political choice. It is a question to have the courage or not to say: “I make a referendum”. It is never - except in Ireland - due to the fact that there is a constitutional rule which obliges to have a referendum. I would stress: the treaty was conceived to avoid referendums, but especially to avoid having to explain the Constitutional Treaty.

It is dangerous because all the Eurosceptics are going to seize this argument.

The dynamic was such as we chose rather than the other one or such places where there were doubts. This, obviously, is dangerous because the Eurosceptics will make use of this argument and they already made it by saying: “We lie to you. We are going to give you the same thing as was rejected by referendum”. What seems to me dangerous, is that instead of having had the courage - and it is too late now, it should have been done during the summer, 2005 - in France, in Netherlands, but also in the United Kingdom, to say what was exactly in the Constitutional Treaty which represented a progress, we said “The sovereign people decided” - without really knowing what had been decided.

In fact, the problem was not for the political leaders to be obliged to make at first a referendum then to find the means not to make it, it was not to know how to realise what the Danish and Irish governments made in 1992/93 and in 2001/2002, which is to have the courage to say “What is the problem? What does not please you in this treaty? We are going to try to resolve it”. And this brings me to answer: effectively there is a danger which is that even if the treaty is now ratified, in the future it risks having an increase of mistrust of the voters. We have already seen it with the Maastricht Treaty: there was a referendum almost lost in France; we forgot the lessons and the following referendum was negative. Thus the next time when it will have national referendums it risks being once again not because in every country, even if we speak about Europe, we shall speak only about Europe which we want in the country in question, not in the whole of the countries of the Union. Does that mean that a referendum is bad in itself? Not necessarily. What is bad is to have referendums separated in different dates and in various countries because if a country votes “no” it has alone no keys to reopen the door which it closed, contrary to what takes place with an European referendum.

Taurillon: Can we hope that one day we will ratify a European constitution through a European referendum?

It is better to have no referendum at all than national referendums which are not coordinated.

Jacques Ziller: We can hope for it. I would say that It is better to have no referendum at all than national referendums which are not coordinated. Personally, I am in favour of a referendum especially because it obliges the politicians to explain things. And a European referendum would oblige to explain Europe in a different way than it is done for the national debates of ratification.

One cannot exclude the option that one day there will be awareness in the national governments owing to the fact that a referendum can be a useful thing. Especially because with a European referendum it is possible to envisage an alternative as we saw for example in France in 1946. There were two referendums of continuation on the French constitution into 46: first was negative but at the same time as the negative vote there was immediately the election of a new constituent assembly.

With a European referendum, one can say: “If you vote” no “would you like to elect a constituent assembly or give a new mandate to the Parliament and the Council to gather the forces to write another text which will be accepted by the latter”. It is possible, but only with a European referendum, certainly not with national referendums.