Shawdoc European Constitutional Law Networkshawdoc 欧洲宪法的网络.doc

What Happens If The Constitutional Treaty Is Not Ratified? by Jo Shaw, London and Edinburgh* I. Introduction It became a commonplace in political discourse after the successful conclusion of the Treaty establishing a Constitution for Europe in June 2004 to argue that the EU was now embarking on the third and perhaps most important phase of the constitution-building process – that of ratification. Ratification of the Constitutional Treaty requires unanimity amongst the Member States under the clear terms of Article 48 TEU. The Constitutional Treaty will not enter into force if one or more Member States fails to ratify in accordance with their national constitutional requirements. Such flexibility as will exist for future amendments once the Constitutional Treaty has entered into force (Article IV-444 – the simplified revision procedure) cannot apply to the initial ratification. On the other hand, having agreed (June 2004) and signed (29 October 2004) the Constitutional Treaty, the Member States are under an obligation under international law to seek ratification of the Treaty at the domestic level. Their obligations to their fellow High Contracting Parties under international law – not to mention their obligations under Article 10 of the existing EC Treaty to show ‘loyalty’ to the EU as it stands – require them not to pretend simply that the Constitutional Treaty does not really exist. It is possible – indeed many would say likely – that the ratification process for the Constitutional Treaty may be very difficult. Around ten Member States are likely to hold referendums – perhaps more. Some of the national parliaments may encounter difficulties with ratification, especially in circumstances where there are weak coalition governments and ratification requires an enhanced parliamentary majority. Although the European Parliament has called for a consolidated and coordinated approach to ratification, in practice each of the ratification processes is likely to be a nation