�Some things are easier to legalize than to legitimate.� --Nicolas de Chamfort (1741-1794)
On February 4, the
French Parliament voted in the bill modifying title XV of the French
Constitution in Versailles, and three days later, on February 7, the Treaty of
Lisbon was formally ratified.
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 percent of French voters and then on
June 1, 2005, by 61 percent 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, Val�ry 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.�  And one year later: �The
rejection of the constitution was a mistake which will have to be corrected.�
In spite of the
French and Dutch nays, 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.� 
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 mass
media -- characterized by their clear preference for the �yes vote�  -- but
also 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 . 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
Val�ry Giscard d�Estaing�s constitution� , 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� .
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  (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� ; �We have
not let a single substantial point of the Constitutional Treaty go . . ."
; �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.� ; �The
substance of what was agreed in 2004 has been retained. What is gone is the
term 'constitution' � ; �It�s essentially the same proposal as
the old Constitution.� ; �The good
thing about not calling it a Constitution is that no one can ask for a referendum
on it.� ; �Of course there will be transfers of
sovereignty. But would I be
intelligent to draw the attention of public opinion to this fact?�
 etc., etc.?
betray relief and satisfaction about the maintenance 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.� 
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.�  Little
matter then that the treaty should be 267 pages long, and about 3,000 with the
annexes . Thanks to this trick, the reluctant peoples can be ignored. This
draws suspicion on the previous steps of European integration. For after all,
as Jos�-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?�
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.�  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.
(1) Le Monde,
May 6, 2005.
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 percent of discourses on television in favour of the
�No� against 71 percent in favour of the �Yes� according to the television
programme �Arr�t sur Image,� France 5, April 10, 2005.
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?
Sarkozy, Europe 1, January 31,
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 Jos�-Manuel Barroso, Brussels, May 2, 2007.
(9) Angela Merkel,
German chancellor, The Daily Telegraph, June 29, 2007.
(10) Jos� Luis
Zapatero, Spanish Prime Minister, official speech, June 27, 2007.
Ahern, Irish Independent, June
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,
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) Val�ry Giscard
d�Estaing, Le Monde, June 14,
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.
Garret FitzGerald, former Irish Prime Minister, Irish Times, June 30, 2007.