Denmark and the Constitutional Treaty: A Difficult Two-Level Game Finn Laursen Department of Political Science Centre for European Studies University of Southern Denmark e-mail: fla@sam.sdu.dk www.sam.sdu.dk/staff/fla Paper prepared for delivery at EUSA Ninth Biennial International Conference, March 31 – April 2, 2005, Austin, Texas. Abstract This paper will describe and analyse Danish contributions to the European Convention (2002-03) and the following Intergovernmental Conference (IGC 2003-04). How did a relatively EU-sceptical country respond to yet another treaty reform, arguably taking the EU towards ‘more Union’? We will study the preferences of the Danish government and contributions by Danish members of the European Convention. Further the Danish strategy during the IGC, which finalized the treaty in June 2004, will be studied. The Danish government was fairly supportive of the Convention’s draft proposal for a Constitutional treaty finalised in July 2003, albeit changing position on the composition of the Commission at the start of the IGC because of domestic demands for maintaining a Commissioner per member state. The main problem faced by the Danish Government during the IGC was the safeguarding of the Danish exemptions or opt-outs from December 1992 so that decisions about the Constitutional Treaty and the exemptions could be kept separate. In this endeavour the government was successful. But it meant a low profile during the IGC. Seen from a 2-level perspective the anticipated referendum reduced the Danish ‘win-set’. But an interesting aspect of Danish policy is the extent to which the constitutionalist discourse has been accepted by the Danish political elite. Introduction The Convention was a new method of preparing an Intergovernmental Conference (IGC). First of all it meant wider participation and greater transparency. But the member state governments had made sure that they would stay in relative control by specifying that final decisions about a new treaty would be made by an IGC. The IGC failed during the Italian presidency through the second half of 2003 to produce a final agreement, but eventually succeed in June 2004 during the Irish Presidency in agreeing on a draft treaty, which is now going through the process of ratification. The main issue causing the failure in December 2003 was the relative weight of small versus large member states in the Union’s institutional setup, the Convention having proposed to abolish the cumbersome system of weights of votes in the Council adopted in Nice in December 2000 in favour of a system where a qualified majority vote (QMV) would simply be composed of a majority of member states representing at least 60% of the EU’s population. Spain and Poland opposed this change since they would lose relative influence compared to the Nice formula, where they had nearly as many votes as Germany, despite having half the population of Germany. The scope of QMV was also an issue, with some member states not being willing to accept the broad application of QMV proposed by the Convention. The UK in particular had so-called ‘red lines’, insisting on unanimity in areas of foreign policy, taxation and social security. The Danish government went into the IGC with relatively minor demands for changes, supporting the overall framework of the new so-called Constitutional Treaty. Denmark supported the proposal from the Convention concerning the new and simpler definition of a QMV. But, although the government was relatively supportive of the entire Convention draft prior to the start of the IGC domestic politics did force the Government to change position on the composition of the Commission in favour of maintaining a Commissioner per member state. Otherwise, during the IGC the main Danish objective was to maintain the Danish exemptions on the euro, defence policy and supranational Justice and Home Affairs (JHA) cooperation in the form of protocols to the treaty. The fourth exemption on Citizenship of the Union is without practical importance. The government does want to get rid of the exemptions. This will require ‘yes’ votes in referendums. One of the questions has been when such referendums will take place, and JHA became a special problem, because the government wanted to maintain a relatively strict national immigration policy. A solution to this problem would be an opt-in policy in line with the British and Irish arrangements, where Denmark can opt-in on most JHA cooperation, but stay out of immigration policy. The Politics of Danish EU Policy: A Two-Level Game Danish EU policy is driven by domestic politics. Any government in the Danish parliamentary system has to be sure to have the support of the parliament, the Folketing, or at least not have a parliamentary majority against its policy. The parliament has established a powerful European Affairs Committee that issues negotiation mandates to the government prior to important negotiations in the EU, be it in connection with day-to-day legislative decisions in the Council or ‘history-making decisions’ like treaty reforms negotiated in IGCs (Laursen, 1995 and 2001). For some very important decisions a referendum may be necessary. The latter applies to treaty reforms that involve further transfer of sovereignty to supranational EU institutions. The Danish decision to accede to the European Communities (EC) in 1972 was confirmed by a referendum. The ratification of the Single European Act (SEA) in 1986 was confirmed by a consultative referendum after it turned out that the Conservative-Liberal government did not have a majority in favour of the SEA in the Folketing. The Maastricht Treaty was first rejected by the Danish people in June 1992. After negotiating the four exemptions or opt-outs the treaty with the exemptions was accepted by a referendum in May 1993 (Laursen, 1994). The following new treaty, the Treaty of Amsterdam, was also confirmed by a referendum in May 1998 (Laursen, 2002a). But in connection with the Treaty of Nice, it was decided that the treaty did not include a transfer of sovereignty and thus it could be confirmed by a simple majority in the Parliament and a referendum did not take place (Laursen forthcoming b). This happened after the people had turned down the government’s proposal to join the euro – one of the four opt-outs – in a November 2000 referendum (Laursen, 2003). EU policy is controversial in Denmark and the public is sceptical about further integration. A government negotiating at the EU level must always be concerned about getting the outcome ratified back home. The government is thus caught in a two-level game. According to Putnam: The politics of many international negotiations can usefully be conceived as a two-level game. At the national level, domestic groups pursue their interests by pressuring the government to adopt favourable policies, and politicians seek power by constructing coalitions among these groups. At the international level, national governments seek to maximize their own ability to satisfy domestic pressures, while minimizing the adverse consequences of foreign developments (Putnam, 1988, p. 434). Domestic demands in the connection with EU treaty reforms are largely channelled through the parliamentary system in Denmark. In the current Folketing the two parties most on the left side, the Unity List and the Socialist People’s Party used to be EU-sceptical parties, but the Socialist People’s Party has been moving towards a less EU critical position and in autumn of 2004 it decided to support the Constitutional Treaty in the upcoming referendum. On the right side of the government the Danish People’s Party is also EU sceptical. The current Liberal- Conservative government depends on the parliamentary support of this party to survive politically, but when it comes to EU policy it can normally count on the support of the Social Democrats and Social Liberals, the leading opposition parties to the left of the government. These two parties supported the government lines in the Convention and IGC, although the Social Liberals did not support the government’s decision to seek a change in the JHA exemption. The government indicated early on that the Constitutional Treaty proposed by the European Convention would be sent to a referendum if confirmed by the IGC as happened in June 2004. It has now been decided that this referendum will take place in September 2005 and an agreement has been reached between five parties to support the treaty, viz. the Liberal Party, the Conservative People’s Party, the Social Democrats, the Social Liberal Party and the Socialist People’s Party. Concerning the opt-outs there is a promise going back to 1993 that they can only be abolished through referendums. For a government that would like to take part fully in the EU this creates a difficult situation. Will the Danes say ‘yes’ to a Constitutional Treaty? Will they then later say ‘yes’ to abolishing the exemptions? Given the ‘no’ to the Maastricht Treaty in 1992 and the ‘no’ to the euro in 2000 this cannot be taken for granted. The government and the pro-integration opposition parties have to think seriously about how to convince the Danes that further integration is a ‘good thing’ for the country. This affected the Danish preferences in connection with the Convention and IGC negotiating the draft Constitutional Treaty. Denmark remained a ‘minimalist’ state in the negotiations, yet the government and main opposition parties did move towards a more pro-union position by accepting the draft Constitutional Treaty. The Convention The end game of the Treaty of Nice negotiations, the meeting of heads of state and government in Nice in December 2000, turned out to be very difficult and controversial. After the longest summit ever the EU leaders concluded the negotiations. Few of them were happy about the outcome. Many observers were very critical of the new treaty. In particular the horse-trading that took place about the weights of votes in the Council and the definition of a QMV created a cumbersome system where the largest states including Germany would get 29 votes, Spain and Poland with about half the population of Germany would get 27, and then the number of votes would fall gradually to three for Malta. In retrospect much of the outcome seemed rather arbitrary, even if it was the result of a tough bargaining process (Laursen, forthcoming a). As they left Nice the leaders called for “a deeper and wider debate about the future development of the European Union.” They went on to mention the following points on the agenda of the post-Nice debate (Laursen, 2002b): 1. How to establish and monitor a more precise delimitation of competencies between the European Union and the Member States, reflecting the principle of subsidiarity. 2. The status of the Charter of Fundamental Rights of the European Union proclaimed in Nice after having been negotiated in parallel with the Nice Treaty through a so-called convention, where not only governments and the EU Commission were represented, but also national parliaments and the European Parliament. 3. A simplification of the Treaties with a view to making them clearer and better understood without changing their meaning. 4. The role of the national Parliaments in the European architecture. The Declaration also talked about “the need to improve and to monitor the democratic legitimacy and transparency of the Union and its institutions, to bring them closer to the citizens of the Member States.” Nice therefore decided that a new IGC should be convened in 2004. This IGC started on October 4, 2003, earlier than originally expected, but failed to conclude the negotiations in December 2003 as wanted by the Italian Presidency and some other member states. Nice was clearly not the end of the road. The nature of the EU is still very much on the agenda. What kind of Union is it? What kind of Union should it become? The last enlargement, which created a Union of 25 member states from 1 May 2004, has been putting pressure on the leaders to reform the institutions to avoid gridlock after enlargement. Apart from this issue of efficiency the EU also faced a serious problem of legitimacy as shown by the somewhat limited public support. The meeting of the European Council at Laeken in December 2001 accepted the idea of preparing IGC-2004 through a Convention (Belgium, EU Presidency, 2001). The Laeken declaration even asked the question whether the EU needed a constitution starting the turn towards a ‘constitutionalist’ discourse. The proposed Convention on the Future of Europe would have former French President Valéry Giscard d’Estaing as chairman and be composed of 15 representatives of the Heads of State or Government of the Member States (one from each Member State), 30 members of national parliaments (two from each Member State), 16 members of the European Parliament and two Commission representatives. Candidate countries would also be involved without votes. A Praesidium was composed of the chairman and two vice-chairmen (Giuliano Amato of Italy and Jean-Luc Dehaene of Belgium) and nine members drawn from the Convention. The latter group included representative from the three countries which held the Presidency during the Convention, including Denmark, which held the Presidency through the second half of 2002. The Danish government appointed former government minister and Commissioner Henning Christophersen for this position. The Convention, which had a total of 105 members, held 26 plenary sessions of two days. It went through stages: listening (February-July 2002), study (September-December 2002), proposals and editing (January-July 2003). The study phase included the work in first 12, later 13, Working Groups. During the final phase the Praesidium played a decisive role (de Poncis, 2003; Duhamel, 2003, Beach 2003). In the end the Convention produced a consensus draft. Five members, including two Danes, Jens-Peter Bonde (MEP, June Movement) and Peter Skaarup (MP, Danish People’s Party), refused to accept this draft. Instead they produced a minority report, which was also presented to the European Council in Thessaloniki on 20 June 2003 (CONV 773/03). The proposed draft Constitutional Treaty would abolish the pillar structure of the Union, moving the remaining Justice and Home Affairs (JHA) policy areas (police and criminal justice) from intergovernmental cooperation to the ‘supranational’ Community method and also strengthening Common Foreign and Security Policy (CFSP), including defence policy, in various ways without making it supranational. This put pressure on the respective Danish exemptions. The use of QMV would become the normal procedure in the Council, thus increasing efficiency of decision-making. The European Parliament would normally get involved with legislation through the so-called co-decision procedure, thus strengthening the legitimacy of decisions. Concerning institutions the most important proposals included an elected chairman (or president) of the European Council, appointment of an EU Foreign Minister and election of the President of the Commission by the European Parliament on a proposal from the European Council. The draft also incorporated the Charter of Fundamental Rights making it legally binding (European Convention, 2003). Danish Governmental Preferences The Prime Minister Anders Fogh Rasmussen dealt briefly with EU matters in his New Year speech on January 1, 2003. The Danish Presidency during the second half of 2002 had solved the historical issue of enlargement. Denmark should now continue actively to develop the new Europe. Denmark must take part fully in the EU. It hurts Denmark’s interests that the country is not taking part in parts of EU cooperation. Denmark must therefore get rid of the exemptions. But this, of course, can only take place after one or more referendums. He said that the new EU treaty would probably require a referendum in Denmark. He found it most fair towards the Danish people to await the new treaty before deciding about the Danish exemptions (Fogh Rasmussen, 2003a). In a speech to the new Danish Institute for International Studies in Copenhagen on 15 January 2003 Fogh Rasmussen dealt at length with Denmark’s EU policy at a time where the European Convention was moving into the last months of its deliberations. He dealt with geopolitics. After the fall of the Berlin Wall and conclusion of enlargement negotiations during the Danish Presidency Denmark was in a new situation: “Denmark has exchanged its position as a front-line state in the conflict between East and West for a place at the centre of the new co-operating Europe” (Fogh Rasmussen, 2003b). Inspired by the successful Presidency he said that “the Government wishes to maintain [an] active line in Danish EU policy in the years to come.” The Prime Minister’s vision was “a community of nation states,” but, he added, “a strong community.” The EU “must have the political and economic strength to act at the international level, thus influencing the world with the ideas on which [it] is based.” Enlargement should “not lead to a dilution of the EU.” Priority for the EU should be cross-border problems, first of all the internal market, trade policy, competition policy and state aid control. To this he added, “We must become better at creating jobs in Europe. We must ensure a strong and stable common currency, the Euro.” Environmental policy should be developed and improved. The Common Agricultural Policy (CAP) should be reformed. There was also a need to strengthen cooperation in new fields, including cooperation concerning refugees and immigrants and the fight against international crime and illegal immigration. On CFSP, however, we should be realistic: “The large countries will not give up their national sovereignty in foreign and security policy.” Nor should we be hypocritical: “We know very well from our own debate that we also – as a small country – guard our national sovereignty.” CFSP would remain intergovernmental cooperation, but “we should endeavour to make foreign, security and defence policies as common as possible.” He saw it as being “in the interest of Denmark that in the coming years the EU develops a military capacity to carry out peace-making and humanitarian tasks on the European continent, for example in the Western Balkans.” At the same time, “we have a vital interest in close and strong co-operation between Europe and the USA.” Coming to the Constitutional Treaty he referred to the work of the Convention so far as “positive and constructive.” Why then a Constitutional Treaty? A treaty because “the EU must continue to be binding co-operation among states,” he said. A constitution, “because the time has come to make sure that we reflect a number of the traditional, fundamental, civil and democratic rights in the EU Treaty in the manner known from national constitutions.” The Prime Minister emphasized four areas: the Charter of Fundamental Rights should be incorporated into the treaty; the treaty should include clear and precise rules for transparency and democratic control; it should describe the division of labour between the EU and the member states more clearly; and it should strengthen the role of national parliaments. Fogh Rasmussen also dealt with QMV. “The larger the number of Member States, the greater the need will be for taking as many decisions as possible by qualified majority.” QMV could also include “selected parts of the tax area.” “We should, for example, introduce qualified majority when fixing minimum rates for indirect taxes. Personal income tax, by contrast, is an area where the EU has no business. Member States’ distribution policy is a national matter.” The European Parliament should be involved to a greater extent: “We should work to have the co-decision procedure extended to all areas where the Council takes decision on legislative issues by qualified majority. Specifically, this means first and foremost that the influence of the European Parliament on the agricultural policy will be enhanced.” The Parliament should also have “full influence on the entire expenditure area, including the agricultural expenses.” But “unanimity should continue to apply when the expenditure ceilings are to be changed.” Fogh Rasmussen emphasized that the EU is not a state “and should not become a state.” He suggested three principles for institutional considerations: balance between large and small states; balance between the three key institutions, the European Parliament, the Commission and the Council; and effectiveness and transparency. Concerning the election of the President of the Commission he had a specific Danish proposal: “My proposal is that the election should take place in an electoral college consisting of a limited number of members representing national parliaments and the European Parliament, respectively. An appropriate composition of this electoral college could be half national parliamentarians, half members of the European Parliament. The right to nominate must rest with Member States’ governments. A certain number of countries – for example five – must act as nominators for a candidate. After the election in the electoral college, the appointment must be confirmed by qualified majority in the European Council. This procedure will insure that a new Commission President has the confidence of Member States.” Concerning the Presidency of the Council Fogh Rasmussen discussed three models; the existing model with rotation every six months, a solution based on group presidencies, and what he referred to as the ‘grand solution’, an elected President of the European Council. One of the problems with the existing model was that the time required for coordination would increase as the EU moved from 15 to 25 members. Fogh Rasmussen admitted that he used to favour the group presidency. But after the Danish Presidency, where it had become clear that coordination across Council formations is essential, he was now more sceptical: “The very question of coordination across Council formations is the Achilles’ heel of the group presidency. I am afraid that a group presidency may be paralysed by internal quarrels over competence. And then it will not be able to function.” Advantages of an elected President included continuity, clarity and balance in relation to the Commission, and a solution to the problem of workload. Two risks were mentioned, however: it could disturb the balance between large and small countries, and it could lead to an unfortunate conflict with the Commission. If this model were to be adopted it had to include safeguards “ensuring that large and small countries are given real equal status.” On this the Prime Minister also had a proposal: “A possible element in such a construction could be, for example, the establishment of three ‘electoral groups’ comprising large, medium and small countries. The President of the European Council would then be taken in turns by these electoral groups. This procedure ensures equal representation between large and small countries.” The Prime Minister said that he would now contact the political parties in order to discuss concrete Danish proposals to the Convention. He again called for a more active Danish EU policy: “It is my ambition that Denmark should play a more pro-active role in the EU. Far too often, the standard Danish reaction has been characterised by a sceptical attitude towards changes in the EU. We have, as point of departure, wished to keep things as they were. And in this respect, we have always sought to reduce the proposals of others by 10-20 per cent. This is not the way to achieve influence.” Concerning the opt-outs he repeated that they are detrimental to Danish interests. It is in the areas of the opt-outs “that there is the greatest need to expand the EU in the coming years.” Denmark should participate fully in the Euro, defence cooperation and asylum and immigration policy – after a referendum, of course. In an address to the College of Europe, Natolin, Poland, on 28 February 2003, Prime Minister Fogh Rasmussen repeated many of the proposals from his Copenhagen speech (Fogh Rasmussen, 2003c). He now referred to a recent Franco-German proposal which he found very interesting. However, it failed “to strike the right balance between large and small Member States.” In connection with the proposal for an elected President he now added that the system “would be combined with a system of changing national Presidencies of the sector Councils.” “The Prime Minister of the country holding the rotating Presidency can then also act as deputy President of the European Council.” He now further discussed the idea of having “one single foreign policy representative,” and said: “as foreign policy will remain a primarily intergovernmental matter, I think it only logical that the EU foreign policy representative should be anchored in the Council.” In May the Prime Minister received the price as “The European of the Year” from the Danish European Movement. In his acceptance speech he again dealt with Danish EU policy in the context of the Convention. The Praesidium had now put forward a proposal that included the election of a President for the European Council. Denmark was ready to consider this proposal without prejudice. But the proposal was not sufficiently precise. Denmark had three demands: a solution should respect the balance between small and large member states, there should be a reasonable division of labour between the President of the European Council, the President of the Commission and the proposed EU Foreign Minister, and finally no new bureaucracy should be created (Fogh Rasmussen, 2003d). He finished by saying that Denmark has too often chosen an exit strategy from the European debate. Such an ‘ostrich policy’ has not served Denmark. He was happy that the Government had now reached an agreement with the Social Democratic Party and the Social Liberal Party on Danish proposals to the Convention (Denmark, 2003a). Also the Foreign Minister Per Stig Møller dealt with the Convention in various speeches not adding substantively to what the Prime Minister had said (Møller, 2003a, 2003b). If we were to compare the official Danish positions at the beginning of 2003 with the traditional Danish positions we notice a greater willingness to accept more QMV and co-decision. The incorporation of the Charter of Fundamental Rights, which Denmark opposed in Nice in 2000, was now also accepted. Even the term constitution was accepted. We suggest that the dominating discourse of the Convention was having an impact in Denmark. We may suggest that the Danish Prime Minister wanted to prepare the Danish public for the new treaty that was slowly taking shape. Danish Parliamentary Contributions to the Convention Apart from the government’s representative, Henning Christophersen, the Folketing was represented by two members in the Convention. The leading opposition party, the Social Democratic Party, chose former minister Henrik Dam Kristensen. Given the fact that the leading government party, the Liberal Party, was already represented by Henning Christophersen the government offered its parliamentary seat to the EU-sceptical parties. Since these did not succeed in jointly nominating a member the government offered the place to the Danish People’s Party which chose its vice-chairman Peter Skaarup. Among the EP’s 16 representatives there was one Dane, the EU-sceptical Jens-Peter Bonde from the June Movement. All representatives had alternates which could take part in the meetings. The government’s alternate was former Prime Minister Poul Schlütter (Conservative). The Folketing’s alternates were Per Dalgaard (Danish People’s Party) and former Foreign Minister Niels Helveg Petersen (Social Liberal). Among the alternates from the European Parliament were two Danes, viz. Lone Dybkjær (Social Liberal) and Helle Thorning-Schmidt (Social Democrat). Tracing the contribution of these Danish representatives to the Convention will show that Henrik Dam Kristensen, Per Skaarup and Jens-Peter-Bonde were particularly active with speeches on some of the main issues dealt with by the Convention. Since the contributions of Henning Christophersen mainly went through the Praesidium we know less about his contribution given the fact that the Praesidium met behind closed doors. Christophersen also chaired one of the Working Groups, the one dealing with complementary competences. During the end game of the Convention the two government parties, the Liberals and Conservatives, also produced a joint position paper together with the Social Democrats and Social Liberals, published on March 20, 2003 (Denmark, 2003a). For space reasons we shall limit the following to comparing the contributions of Dam Kristensen and Skaarup, giving the two dominating Danish visions of the future of Europe, one conditionally in favour of the current process and one against further integration. A reading of Henrik Dam Kristensen’s speeches to the Convention gives a good idea of the Social Democratic vision of the EU at the beginning of the 21st Century. The Party has come a long way since the mid 1980’s when it opposed the SEA. Through the 1990s it has supported the treaty reforms of Maastricht, Amsterdam and Nice. It was actively involved in negotiating the Danish exemptions after the ‘no’ to Maastricht in 1992 and played a leading role in getting the Maastricht Treaty with the exemptions accepted by the Danish people in 1993. It led the government that negotiated the Amsterdam Treaty, where it worked actively to give the treaty Danish imprints in areas like employment, environment and consumer protection. But the party still wants the Common Foreign and Security Policy (CFSP) to remain intergovernmental. As other Danish parties it puts emphasis on the role of national parliaments, seeing the national avenue to legitimacy as the most important one. Only with some hesitation has it accepted increasing involvement by the European Parliament. Indeed, the role of national parliaments was the topic of Henrik Dam’s first speech to the Convention on 7 June 2002. National parliaments are the foundation of national democracy. National parliamentarians have close contacts with the citizens. It is therefore important to involve national parliaments more in EU decision making. In particular, they could be more involved in controlling the application of subsidiarity (Dam Kristensen, 2002a). When the Working Group on Subsidiarity produced its report Henrik Dam was supportive of the idea that national parties should play a key role in the control of subsidiarity. He agreed with the new proposed mechanism – an early warning system – that would allow national parliaments to make statements concerning the application of subsidiarity (Dam Kristensen, 2002c). Henrik Dam also spoke in favour of developing CFSP. The EU has become a ‘progressive force’ in the battle for sustainable development at the global level. We face new challenges such as poverty, ethnic conflicts, violation of human rights, terrorism, etc. where the EU can give a decisive contribution. He emphasized the role of NATO and the UN and said that we have to find solutions so that the EU can speak with one voice. The appointment of the High Representative of CFSP in October 1999 had strengthened CFSP, but it was still unclear who is doing what, where and when. But to representatives from the European Parliament who wanted more EP influence on CFSP he said that foreign policy is about sovereignty. It was therefore important to involve national parliaments (Dam Kristensen, 2002b). After the successful conclusion of enlargement negotiations at the Copenhagen summit in December 2002 Henrik Dam again spoke about the development of CFSP. He now said that there was a need to use QMV as much as possible instead of unanimity. But this should not include areas where member states’ vital interests are involved. He also gave guarded support for a ‘double-hatted’ foreign minister of the EU. He would not exclude a model of some kind where a coming foreign minister is both a member of the Commission and the Council. But the issue was also linked with the question of a president for the European Council (Dam Kristensen, 2002e). Henrik Dam dealt with issues of employment and taxation in November 2002. He expressed support for the Lisbon process and open method of coordination. This method should become part of the new constitutional treaty. He especially related the question of taxation to some multinational companies not paying taxes. This decreases the possibilities of financing welfare. So EU cooperation is necessary. Also, if we want a greener Europe we must introduce environmental taxes. He favoured the introduction of QMV for environmental and company taxes to avoid damaging competition (Dam Kristensen, 2002d). Social and labour market policies are also important in the Danish political context. Social rights should be part of the constitutional treaty. The internal market should be supplemented with rules that counteract unfair competition and social dumping. Health, education and social services, however, should not become part of the internal market. The social dialogue at the European level should be developed further. Workers should be allowed to carry out cross-border actions of sympathy with trade union colleagues in other countries (Dam Kristensen, 2003b). Later in April 2003 Dam Kristensen spoke to the then proposed draft, welcoming the section on the democratic life of the Union. But the text was missing a reference to the special role of the trade unions and employers’ unions. A reference to these and the social dialogue should be included in the final draft (Dam Kristensen, 2003c). When the skeleton of the new treaty started to take shape towards the end of 2002 Henrik Dam had commented that it was important that the goal now was stated as ‘a union of European states that retain their national identity’. This meant that the EU was not becoming a state. The EU was committing cooperation. It was also being confirmed that there would be a further application of QMV in the Council and co-decision for the European Parliament. The EU would become more transparent, efficient and democratic, he said (Dam Kristensen, 2002e). In a speech in January 2003 Henrik Dam said that it might be a good idea with a chairman of the European Council. But he saw some problems: What possibilities would that leave for smaller member states? Who will be president of the different Councils? If the High Representative becomes the foreign minister who will be his boss? Concerning the President of the Commission he had sympathy for involving the European Parliament, but he also wanted to involve the national parliaments in the election of the Commission President. He opposed giving the EP sole responsibility for electing the Commission president (Dam Kristensen, 2003a). On 15 May 2003 when the Praesidium had put forward its proposal on institutions Henrik Dam responded by not accepting the proposal for a Commission with only 15 voting members. The proposal did not deal with the question of balance between large and small member states. Henrik Dam therefore said that the proposal should be dropped, and the Union should stick to the Nice treaty. The President of the Commission should be elected by an electoral council composed of members of national parliaments and the European Parliament. Concerning the proposal for weighting of votes in the Council Henrik Dam found that the proposal favoured the large member states too much. It was a bad proposal which would upset the balance between small and large member states (Dam Kristensen, 2003d). The contributions by Peter Skaarup from the Danish People’s Party represented a radically different vision of the EU, one based solidly on nation-states and not accepting ‘more Union’. In his first speech to the Convention in April 2002 Skaarup said that the EU should be a practical cooperation dictated by real needs. It should never become an objective in itself to transfer competences to the EU. The EU should only deal with cross-border problems. There should be no efforts to develop a common European identity. Democracy can only exist nationally in a common linguistic space (Skaarup, 2002a). In another speech Skaarup compared the EU with Switzerland, claiming that Switzerland is not a state! Sovereignty belongs to the cantons, he said. Similarly sovereignty belongs to the member states in the EU. The European Parliament can never become a real parliament. Debate takes place via interpretation. The democratic deficit in the EU cannot be solved through new reforms. There is no European people. 25 nationalities cannot be united in the same democracy. His job in the Convention therefore was to fight for the sovereignty of nations (Skaarup, 2002b). Skaarup was in favour of increasing the influence of national parliaments. National parliamentarians are in closer contact with the voters than European parliamentarians. The EP and the Commission do not know the concerns of the citizens. The powers of the EP should be limited; the EP possibly even abolished (Skaarup, 2002c). Concerning the EU’s international role Skaarup said that no one would die for the EU. Most people are willing to die for their country. The EU is commercial cooperation and management. No one will die for that. The EU’s miserable performance in ex-Yugoslavia had shown that the European big powers had different historically-determined interests. NATO, which had been created to protect the independence of nation-states, is the most important source of security in Europe. Looking at threat scenarios Skaarup claimed that the most serious threat to Europe today comes from immigration, especially from Muslim countries. The question was: Should Europe be the continent of cathedrals or mosques? (Skaarup, 2002d). At a later stage, commenting on the work of the working group on defence, he opposed the idea of an article in the treaty on collective defence. It would spoil the positive transatlantic cooperation (Skaarup, 2002h). Skaarup called for simplification and a clear division of competences (Skaarup, 2002f). He was against talking about a constitution or giving EU status as a juridical person or introducing citizenship of the Union on par with national citizenship. These developments implied a federal state, a United States of Europe. Only a minority of Danes would support such a development (Skaarup, 2002f). Commenting on the work in the working group on decision-making he said that the main purpose of the group was to give the EP more power. He was also against the proposed new names of legislative instruments (laws and framework laws instead of regulations and directives). Legislation is a national prerogative, he claimed (Skaarup, 2002g) In January 2003 Skaarup commented on the proposal from the Praesidium concerning division of powers between EU institutions. The whole proposal was about creating a federal state, more federalism, and more centralism. Federalists like Andrew Duff and Joschka Fischer had had too much influence. There was nothing in the proposal on the role of national parliaments. Skaarup was strongly against electing a European president. He was also against moving more decisions to QMV (Skaarup, 2003a). Later, when the Praesidium proposed the first 16 article of the Constitutional Treaty Skaarup called for a mentioning of Christianity in the treaty. His used his speech to say that he was against Turkish membership of the EU. Turkey is not a part of Europe, neither culturally nor geographically. He also said that it was unwise of Giscard d’Estaing to maintain the words about a ‘federal basis’ in article 1 (Skaarup, 2003b). Later Skaarup talked against the proposed stipulations concerning suspension of rights (Skaarup, 2003c) and ‘closer cooperation’ (Skaarup, 2003d). The latter would make it possible for pro-integration countries to force integration-sceptical countries towards more integration, he claimed. In a speech to the Danish People’s Party’s Constitution Conference on 31 May 2003 Skaarup said that the party was not against the EU as such. European integration had been reasonable until 1992. But then it became an effort to establish a federal state, with common currency, flag, national hymn, parliament, etc. This was reducing the influence of small states. The Constitutional Treaty proposed would move 26 areas from unanimity to QMV he claimed. He therefore said that Danish ratification of the Constitutional Treaty would require a change of the Danish constitution, which can only take place by using the difficult procedure of Section 88 of the Constitution (adoption by two consecutive parliaments with an election in between and a referendum at the end, where a majority of those taking part, and at least 40 per cent of the electorate, must vote in favour) (Skaarup, 2003e). Danish Responses to the Draft Constitutional Treaty from the Convention On 20 June 2003 on the day the first draft Constitutional Treaty was presented to the European Council in Thessaloniki, Greece, Foreign Minister Per Stig Møller evaluated the proposal in a newspaper article. He said that the Constitutional Treaty would not expand the functional scope of the EU by bringing in new policy areas, but it would strengthen CFSP and JHA cooperation. The new treaty was logically constructed. It succeeded in describing the fundamental principle in less than 60 articles. It was a clear treaty, containing a clear division of labour between the Union and the member states. It would lead to more openness by opening the Council meetings dealing with legislation. National parliaments would get a bigger role. Citizens’ rights would be better protected. Institutionally the Union would become more efficient. QMV would become the normal rule. The European Council would get an elected chairman. Voting rules would be simplified. The 15 voting members of the Commission would rotate with small and large member states being treated equally. CFSP would be strengthened by becoming more binding and the Union would get a Foreign Minister. Denmark had preferred another title, since Minister presupposes a state, but the job was more important than the title. Defence policy would be strengthened and the possibility of closer cooperation in the area was introduced. JHA would be considerably strengthened by using the Community method (Møller, 2003c). But the strengthening of JHA cooperation would make the Danish exemption in this area more serious. By abolishing the pillar structure of the Union and applying supranational cooperation for all JHA Denmark would be excluded from it all, including police and criminal justice cooperation, which had stayed intergovernmental when the Amsterdam Treaty had moved other JHA areas to the first pillar. This could also affect cross- policy endeavours like penal measures against non-respect of environmental rules. Denmark would therefore have to find some solution for the Danish exemptions at the IGC (Møller, 2003c). When the Convention was over the Social Democrats also welcomed the result. It would create a better, more open and democratic EU. Emphasis was put on sustainable development, social market economy, full employment, equality between men and women, eradication of poverty and protection of human rights. At the same time it was emphasized that the Union was not moving towards the United States of Europe. It was cooperation between nation-states (Dam Kristensen, 2003e). Also the Social Liberal Party was supporting the draft Constitutional Treaty. As expected the Danish People’s Party was against the treaty. So was the Unity List, but the Socialist People’s Party decided to wait and see the final treaty from the IGC. Seen from the Government, it would be important to get the support also from the Socialist People’s Party. Such support would make it easier to get a ‘yes’ vote in a referendum. The Danish Exemptions and the Convention Draft In August 2003 the Foreign Ministry issued a 40-page report on the draft Constitutional Treaty and the exemptions (Ministry of Foreign Affairs, 2003). It confirmed what the Foreign Minister wrote already in June that the exemptions would become even more extensive and problematic. The report dealt with all four exemptions, but quickly said that there were no changes in respect to citizenship of the Union. The draft retains the language from the Amsterdam Treaty that Union citizenship is a supplement to national citizenship and does not replace it (Ibid.,2) Concerning EMU the Constitutional Treaty will reinforce the separate cooperation between the participants in the euro. The Danish exemption will therefore be more felt in the future (Ibid., 4). The most decisive changes will take place in the JHA area, where all cooperation will become supranational. This included the third pillar areas of police and criminal justice cooperation that had remained intergovernmental in the Amsterdam Treaty. The Danish exemption would therefore become extended to these areas. Through criminal justice measures in sector policies in the future the Danish exemption may spread to other policy areas, making it all extremely complicated for Denmark and its partners. The report went into great detail with the existing legislation in the different JHA areas. Overall the conclusion was clear, the Constitutional Treaty would make Denmark’s JHA exemption much more felt in several ways. Denmark might for instance have to leave EUROPOL and EUROJUST, third pillar agencies that would become supranational (Ibid, 5-19). Concerning the defence policy exemption the report noted the various stipulations of the draft Constitutional Treaty, including structural cooperation to increase the Union’s military capabilities, the creation of a European Armaments, Research and Military Capabilities Agency, and closer cooperation as regards mutual defence cooperation. Again, the Danish exemption would be felt more in the future (Ibid., 20-22). The new solidarity clause requiring the Member States to “act jointly in a spirit of solidarity if a Member State is the victim of terrorist attack or natural or man-made disaster” could also affect the Danish defence exemption because it calls on the mobilisation of all instruments “including the military resources made available by the Member States” (art. I-42 and III-231). So the combination of the JHA and defence policy exemptions could exclude Denmark from much of the EU’s anti-terror activities in the future (Ibid., 22-25). It was the special importance of the JHA exemption that got the government to seek political support for a change in that exemption. On 10 October a parliamentary majority supported the government’s proposal to seek a change in this exemption during the IGC so that the Danish people in a future referendum could change it to an arrangement where Denmark can decide about participation on a case-by-case basis, like the model applied by the United Kingdom and Ireland, known as an opt-in model. This would allow Denmark to decide to take part in supranational JHA cooperation in an ad hoc manner (Denmark, Folketing 2003). The Government’s Negotiation Mandate to the IGC As the IGC started on 4 October domestic politics forced the Government to change policy and demand a Commissioner per member states, as other small member states had long been demanding. Indeed, these states, including especially Finland, criticized the Danes for not supporting the interests of the smaller states sufficiently. Also opinion polls indicated that a majority of the Danes considered it important for the country to retain a voting Commissioner. The Danish negotiating mandate was worked out between the Government and Folketing in September 2003 and largely confirmed on 10 October in connection with a debate in the Parliament. It was kept in rather general terms. It stated that the EU is the framework for future European cooperation. A simpler and better EU is needed. The Convention draft was a good basis. It contained a clearer description of division of labour, would create more openness, involve national parliaments further and incorporate the Charter of fundamental rights. The EU faces new challenges: refugees, cross-border criminality and international terrorism. The EU must become a global leader. For this reason not all CFSP decisions should be based on unanimity. The EU should also strengthen defence cooperation and develop a military capacity. Denmark was also open to accept closer cooperation in the defence area (Denmark, 2003b). Concerning institutions the Danish negotiating mandate saw the proposal from the Convention draft as a reasonable compromise between the larger and smaller states. Thus there was Danish support for an elected chairman of the European Council. Denmark was against a special legislative Council. On the new voting proposal the Danish position was cryptic. The Nice rules were seen as unnecessarily complicated. There was support for increased influence of the European Parliament, including agricultural policy. Denmark wanted a strong, effective and well-functioning Commission and could still – in September - support a division into voting and non-voting members as long as there was equal rotation between small and large member states. There was also support for a double ‘hatted’ foreign minister. If we were to compare the Danish negotiation mandate of 2003 with those of earlier IGCs it would appear clearly that Denmark was moving quite a bit. The broad representation in the Convention gave the Convention draft certain legitimacy. The deliberative process affected preferences. Schimmelfennig’s ‘rhetorical entrapment’ might be a useful way to look at what happened to Denmark in the process (Schimmelfennig, 2003). But it could also be seen as a small dependent state realizing that it has to follow the stream. The costs of exit would be high. The Constitutional Treaty could then be seen as the latest event in a path-dependent trajectory (Pierson, 1996). In a speech to a hearing arranged by the European Affairs Committee of the Folketing on 3 November the Foreign Minister dealt with the Danish efforts at the IGC (Møller 2003d). He talked about some progress. The idea of a special legislative Council, opposed by Denmark, was opposed by so many member states that it looked as if it would not to survive the IGC. Concerning the Presidency of the Council agreement was emerging on a system of three countries sharing the presidency of the Council for 18 months, thus a group presidency. Otherwise, Denmark supported the creation of two “new coordinating functions – the elected chairman of the European Council and EU Foreign Minister.” The chairman of the European Council should be a CHAIRMAN, not a President! And the Foreign Minister should be based in the Council, with a coupling to the Commission. Denmark had now also put forward a proposal that all member states should have a voting Commissioner. As Møller explained, having a Commissioner had great symbolic meaning in the member states. Indeed, the referendum debate in Denmark was already being anticipated. Symbols could be expected to become an important part of the debate. On the controversial redefinition of a QMV proposed by the Convention Denmark could support the proposal from the Convention, but preferred a QMV based on equal weighting of the number of states and size of population. It could be 60%, but it could also be 50%. On the extension of QMV the government largely supported the proposal from the Convention. If EU-25 has to function efficiently there must be an extended use of QMV. But Denmark still supported unanimity for one area, namely social security for migrating workers, viz. article III-21 in the draft Constitutional Treaty (current Article 42 TEC). This affects central aspects of the welfare systems of the member states. On non-institutional issues Denmark had followed the Italian Presidency’s call for self discipline. Denmark was for instance supporting the so-called ‘passerelle’ in article I- 24(4), which stipulates that for areas requiring special legislative procedure or unanimity the “European Council can adopt, on its own initiative and by unanimity” a decision allowing for the application of the ordinary legislative procedure or qualified majority. In both cases the national parliaments will have to be informed. This ‘passerelle’ would make it possible to avoid IGCs for technical questions in the future and thus give the EU some flexibility, the Foreign Minister explained. Per Stig Møller finished by saying that should the IGC fail to produce an agreement it would be the loss of a “window of opportunity” for a new treaty. The Danish Opt-Outs and the IGC As mentioned earlier the main issue for Denmark during the IGC was to secure the Danish opt-outs in the form of protocols to the new treaty. This problem was largely solved already during the Italian Presidency. Given the added difficulties to get a new treaty accepted in Denmark if it did not maintain the Danish opt-outs the Danish government was in a strong bargaining position. Seen from a two-level bargaining perspective the Danish rejections of Maastricht in 1992 and the euro in 2000 meant that Denmark had a small domestic win-set. But, “a small domestic win- set can be an advantage” (Putnam, 1998, p. 440, see also Schelling, 1960, p. 28). Seen from the perspective of the bargaining theory of liberal intergovernmentalism Denmark’s threat of veto was credible (Moravcsik, 1998, p. 63). Denmark’s EU partners had an interest in finding a solution for Denmark. The problems of the Danish opt-outs were largely solved by a draft protocol in one of the documents put forward by the Italian Presidency on 25 November 2003 for the Naples Ministerial Conclave 28-29 November (CIG 52/03). The final draft adopted by the IGC in June 2004 contains four protocols dealing with the Danish exemptions. Protocols 14 and 15 confirm the Danish opt-out from the euro. Protocol 20 deals with JHA and defence policy (Council of the European Union, 2004, Vol. II). Again the opt-outs are confirmed, but an annex to the protocol opens up the possibility of Denmark introducing an opt-in solution in respect to the Area of Freedom, Security and Justice (AFSJ). This can be done when new measures are proposed: Denmark may notify the President of the Council in writing, within three months after a proposal or initiative has been presented to the Council pursuant to Chapter IV of Title III of Part III of the Constitution, that it wishes to take part in the adoption and application of any such proposed measure, whereupon Denmark shall be entitled to do so (Article 3 of Annex, Protocol 20). But the possibility is also opened for joining later: Denmark may at any time after the adoption of a measure pursuant to Chapter IV of Title III of Part III of the Constitution notify its intention to the Council and the Commission that it wishes to accept that measure (Article 4 of Annex, Protocol 20). In cases where Denmark decides to opt-in Section 20 of the Danish Constitution will apply (Ministry of Justice, 2004). So it will require a 5/6th majority in the Folketing or it must be confirmed by a referendum. Finally, protocol no. 26 confirms that ‘Denmark may maintain the existing legislation on the acquisition of second homes.’ This legislation limits the ownership of summer houses along the Danish coasts to Danish citizens. To complete the story, in declaration 39 concerning the Protocol on the position of Denmark “Denmark declares that it will not use its voting right to prevent the adoption of the provisions which are not applicable to Denmark.” Furthermore, “Denmark declares that Danish participation in actions or legal acts pursuant to Articles I-43 [solidarity clause] and III-329 [implementation of solidarity clause] will take place in accordance with Part I [AFSJ opt-out] and Part II [defence opt-out] of the Protocol on the position of Denmark.” Figure 1 suggests a possible way to depict the changing win-sets during the treaty reform process. Given a sceptical domestic constituency the Danish win-set was very small. Too much ‘more union’ (or federalism) would make a proposal un-ratifiable in Denmark. During the Convention the government tried to limit the federalist imprints on the treaty internationally, while preparing the domestic constituency for ‘more union’, defending the need for more QMV after enlargement. Finally, during the IGC Denmark successfully dealt with the specific Danish problem of opt-outs. Figure 1. Successive Win-Sets during the Making of the Constitutional Treaty A. Prior to the Convention Less Union _________]_________________[_______________ More Union DK federalist proposals B. After the Convention Less Union ______________]__[_________________________ More Union DK Convention draft C. After the IGC Less Union _____________[__]__________________________ More Union IGC DK draft (with opt-outs) The Five-Party Agreement In two-level games a government can try to influence the outcome of international negotiations. Denmark did this by successfully getting the Danish opt-outs into the draft Constitutional Treaty. This could be seen as what Moravcsik has termed ‘COG Collusion’ (Moravcsik, 1993, 26) On the other hand a government can try to increase the domestic win-set through what Moravcsik calls ‘cutting slack’ (Ibid., 28). Such strategies increase the chances of ratification. The Danish government started this process by actively defending the Constitutional Treaty as necessary because of enlargement. This strategy used rhetoric. But a government can also use the strategy of forming domestic alliances. In November 2004 the two government parties (Liberal and Conservative) and three leading opposition parties (Social Democrats, Social Liberal Party and Socialist People’s Party) reached an agreement to support the Constitutional Treaty in a referendum. The agreement furtherso included the provision that possible referendums about the Danish opt-outs would not take place at the same time but later (Five-Party Agreement, 2004). The five parties emphasised various positive aspects of the Constitutional Treaty, including increased effectiveness, a clearer division of competences, clearer goals and values, and greater openness. At the same time it was emphasized that it was an agreement between independent states and that it would be possible to leave the Union. Given the possibility of transferring some policies from unanimity to QMV in the future through so-called passerelle provisions the five-party agreement went into some details about areas where Denmark would like to see such a move and areas where Denmark would resist such a move. Areas where Denmark would like to see QMV in the future included: minimum rates for environmental taxes (article III-234(2)), minimum rates for energy taxes (article III-256(3)) combat of various forms of discrimination (Article III- 124(1)), and decisions regarding the EU’s multiannual financial framework(article III-55(4)). On the other hand Denmark welcomed unanimity for areas of social and labour market policy in article III-219, i.e. social security and social protection of workers, termination of an employment contract, representation and collective defence of the interests of workers and employers as well as conditions of employment for third-country nationals. The exemptions from QMV in trade policy (culture, audiovisual, social, education and health) were also welcomed. Here too the five parties agreed on a mutual veto right should QMV be proposed. In the area of taxation the five parties could support QMV for the establishment and harmonisation of minimum rates for indirect taxes (article III-171) and cooperation on direct and indirect tax fraud and evasion as well as administrative cooperation (article III-171 and III-173), but they were happy about unanimity for direct personal taxes (article III-173) and harmonisation of indirect taxes, apart from minimum harmonisation (article III-171). In the latter cases each party would be able to veto Danish support for QMV. Finally the parties welcomed the emergency break for social security for migrant workers (article III-136). The five-party agreement has created a domestic commitment to oppose ‘more union’ through stealth. The five-party agreement left the Unity List on the left side and the Danish People’s Party on the right side opposing the Constitutional Treaty. Surprisingly the small Christian Democrat Party decided to oppose the treaty. This latter party did not reach the 2% threshold of required votes at the last parliamentary election in January 2005. So it is not represented in the parliament today. The main value of the five-party agreement for the government is the commitment from the Socialist People’s Party to support the treaty. This support was confirmed by an internal referendum among party members in December 2004. It has now been decided that the Danish referendum on the Constitutional Treaty will take place on 27 September 2005. Opinion polls have so far shown majority support for the treaty. The Eurobarometer published in January 2005 had 44% of the Danes in favour and 26% opposed to the Constitutional Treaty (European Commission, 2005). But this can of course change before the referendum. However, the EU-sceptical groups, the June Movement and the People’s Movement against the EU, lost votes in the election to the European Parliament in June 2004. So it is possible that the mood of the country is changing. Concluding remarks Through the 1990s the Danish political elite moved from seeing the original EC as a common market to seeing the EU as a political project. This shift was clear in the referendum debate about the Amsterdam Treaty in May 1998. What we have seen in connection with the draft Constitutional Treaty is a further move in the Danish positions and discourse about the EU. The Government parties and the Social Democrats and Social Liberals have accepted much of the ‘constitutionalist’ (some would say ‘federalist’) discourse that has been part of the European Convention. At the same time they have been busy adding that they are opposed to European federalism, usually associating federalism with a centralized system. That ‘constitution’ is ‘forfatning’ in Danish has given the F-word a double meaning. The Constitutional Treaty therefore is first of all a treaty among independent nation-states, Danish politicians insist. By emphasizing that the Constitutional Treaty does not create a federal union the Government and pro-integration opposition parties are anticipating the referendum debate, where the euro-sceptical parties, the Danish People’s Party and the Unity List, as well as the People’s Movement against the EU and the June Movement, can be expected to claim that the treaty is creating a federal union. Much of this debate will be about symbols: a president, a foreign minister, a flag, a hymn. Scare scenarios of the Danish nation disappearing into a European super-state will be easy to sell to the Danish public wary of what comes from the South. Selling the treaty will therefore require a determined effort not only by the government but also by the Social Democrats, the Social Liberals and the Socialist People’s Party. But it could be unwise to give a very minimalist interpretation of the treaty. Such interpretations may back-fire. Alternatively the pro-integration parties could go out and explain why ‘more Union’ is necessary, if a Union of 25 member states or more is to be able to work in a satisfactory manner in the future. The pro-integration forces in Denmark should not forget Prime Minister Schlütter’s famous words from the mid 1980s. After the negotiation of the Single European Act he declared the Union ‘stone-dead’. A few years later the Maastricht Treaty created the European Union. It would take an informed and courageous politician to say that the Constitutional Treaty is really about combining two kinds of guarantees that are central in a federal bargain: the guarantee that EU-25 can function effectively in the areas where the constitution has given it powers, and the guarantee that the member states’ autonomy in national policy areas is maintained. In that sense there is already a fair dose of ‘federalism’ in the Union. And the draft Constitutional Treaty will take a further step in that direction without creating a fully-fledged federal state. Catalogues of competences and the principle of subsidiarity, which pro-integration politicians in Denmark like, form parts of federal arrangements. But as long as the Union does not have a single foreign and security policy, a European army and powers to raise taxes, it is not a fully-fledged federal state. But then of course the reference to the Union administering ‘certain common competences on a federal basis,’ which was in the first 16 draft articles of 6 February 2003 (CONV 528/03), were taken out in May 2003. The new text talked about exercising ‘in the Community way the competences’ conferred on the Union (CONV 724/03). Giscard d’Estaing explains in his account of the Convention that ‘federal’ was the right term to use and he had deliberately chosen it because it had a pedagogic value helping to realise a reality that exists. But the term found less support in the Convention than he expected. Especially ‘le blocage sémantique de la communauté anglo-saxone’ had remained categorical (Giscard d’Estaing, 2003, 33-34). Thus ‘federal basis’ was replaced by the less defined ‘Community way’ – leaving the Union’s finalité very much open. Getting a new EU treaty accepted in Denmark has to be a major concern of any Danish government. The 2nd of June 1992 was a shocking surprise. It required a major national and international effort to get the Maastricht Treaty ratified with opt-outs in 1993. The strategy chosen in 1996-97 during the negotiations of the Amsterdam Treaty was a very active one, seeking Danish imprints in the treaty so that it could be sold to the Danish public. The strategy succeeded. In 2000 the government was again very active in the Treaty of Nice negotiations. But this time the purpose was to limit changes to institutional ones that would not require a referendum. That strategy also succeeded. The Constitutional Treaty is also mainly about institutional changes. At one point the foreign minister did say that it did not expand the functional scope of the Union. Given the legal interpretation that allowed the former government to avoid a referendum about the Treaty of Nice a referendum could arguably have been avoided again. But the Ministry of Justice decided in November 2004 that the Constitutional Treaty did involve a transfer of sovereignty to the Union. Ergo, section 20 of the Danish Constitution does apply. Even without the legal interpretation from the Ministry of Justice all the constitutionalist discourse surrounding the draft Constitutional Treaty would have made it difficult to sell the argument that no referendum was needed. The government therefore chose to accept the draft from the Convention and concentrate its energy during the IGC on retaining the Danish opt-outs in the new treaty. This way the new treaty could be adopted without abolishing the Danish opt-outs. The flip side of that strategy was a rather low profile in the IGC on other issues. Although Denmark wanted a rather intergovernmentalist interpretation of the new institutions and had its ‘red-lines’ concerning increased use of QMV, the government could largely hide behind the UK on these issues. 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Skaarup, Peter (2003e), Tale ved Dansk Folkepartis grundlovskonference d. 31. maj. This paper partly relies on the author’s article “Denmark and the Intergovernmental Conference: a Two-Level Game,” in Per Carlsen and Hans Mouritzen (eds.), Danish Foreign Policy Yearbook 2004 (Copenhagen: Danish Institute for International Studies, 2004), pp. 91-119. The author would like to thank Stine Hauge Nielsen and Berenice Lara Laursen for research assistance. According to a study by a member of the Praesidium secretariat the members of the Praesidium were not supposed to represent national interests. But the Danish and Spanish members were said to have broken that rule by often expressing national views. See De Poncis, 2003, p. 27. 2