There has been no discussion of this second change since the outline of the reform treaty was agreed at the June European Council. However, the post-summit rhetoric from the French government suggests this ‘minor detail' merits closer attention.
French intentions
The new wording can, of course, be interpreted in a number of ways, which may explain why other member states have not raised concerns about it. Some argue that the protection of citizens in the context of the EU's relations with the wider world refers to consular protection or to protecting the public from terrorism, disasters, abductions and local conflicts (after all, it was a member of the current French government, Agriculture Minister Michel Barnier, who proposed last year that the EU should set up an international civil protection force called Europaid). Others insist that the wording is too vague to have any legal impact and that, in any case, foreign policy does not fall within the European Court of Justice's jurisdiction.
This is not, however, the ‘spin' which French ministers are putting on it. They have made it clear that, for them, it refers to the protection of citizens against the perceived threat of globalisation.
Immediately after the summit, President Sarkozy said France had obtained a “major shift” in the EU's objectives. “Competition is no longer an EU objective or an end in itself, but a means of serving the internal market,” he said. “Moreover, and in its relations with the rest of the world, it is now clearly stated, for the first time, that the EU must contribute to ensuring the protection of its citizens. The word ‘protection' is no longer taboo.”
A couple of weeks later, Foreign Minister Bernard Kouchner was even more explicit in a speech to the French Senate, saying: “Faced with concerns expressed by French citizens of a Europe which does not offer sufficient protection against a certain type of globalisation, we have succeeded in ensuring that the ‘protection of citizens' becomes one of the objectives of the EU in its relations with the rest of the world. This clarification will provide us with, for example, a lever to better combat [company] relocations.”
The message is clear: for the French, the change puts a new emphasis on public intervention in economic policy and the protection of citizens against the perceived threats of globalisation, away from competitive markets towards ‘protection'.
Deafening silence
So why did other member states and the European Commission agree to it so readily? In the case of the reference to “free and undistorted competition”, many argued that the change was largely symbolic and would have no legal impact. There was, nevertheless, a heated debate on this issue at the summit, which was only settled by adding the safeguard of an explanatory protocol to the treaty to allay EU leaders' concerns that the change could be open to misinterpretation. By contrast, the new reference to the “protection of citizens” has never been discussed, either at the summit or since.
The Commission's lawyers argue that neither change will have an impact on the EU's legal framework. But that leaves open the key question of the potential political impact of the changes and, in particular, of the public interpretation given to those changes – which may indeed influence future EU policy. In other words, the context may end up mattering as much as the text.
Is the climate changing?
A recent joint statement by German Chancellor Angela Merkel and President Sarkozy advocating a more aggressive stance against non-EU governments and players whose policies are perceived to undermine the competitive position of European businesses suggests that there might be genuine cause for concern.
The treaty change and its specific interpretation might be only a symptom of the new direction in French economic policy, or just of French leaders' need to “sell” Europe to a domestic audience. But if it signals a wider shift in the EU's approach to globalisation, the implications for future policy-making within the EU could be much more fundamental, potentially affecting, among others, future competition policy (including state aid and procurement) and trade policy.
Some EU governments may also seek to use the treaty changes to resist moves towards further liberalisation in key sectors on the grounds that the EU has an obligation to “protect” its citizens, or to justify more interventionist domestic policies.
While governments would still be bound by the existing legal framework in these areas, legal proceedings at the EU level can be slow and some governments have already demonstrated a willingness to risk confrontation with others and the EU institutions when ‘national interests' are at stake.
There is also a risk of serious damage to the EU's image in the wider world. Other countries may well interpret the changes (and the related ‘spin') as a sign that the EU is abandoning its commitment to “free and undistorted competition” and is intent on taking a more protectionist approach, potentially affecting trade and investment.
What is said and what is done
So what should be done? Should the Intergovernmental Conference re-open the negotiations on these issues? The short answer is no, because the EU needs to move forward and the treaty text now on the table offers the best chance of success.
But that does not mean that the questions raised by these changes should be ignored. A thorough debate is needed not only on their legal implications, but also on their potential political impact. Consideration may even have to be given to adding to the new treaty, if not a further protocol, then at least a declaration clarifying the meaning of the phrase “protection of citizens” in this context.
In its comments on the draft reform treaty, the European Parliament said there were certain points which “need further legal clarification, political explanation, or both”. EU leaders may not yet have woken up to the fact, but this may well be one of them.
