VISEGRAD: Vaclav Klaus' last stand

By bne IntelliNews October 13, 2009

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Out of all Europe's Eurosceptic presidents, Poland's Lech Kaczynski with his harsh brand of sovereign nationalism was always deemed most likely to be the final holdout against ratifying the EU's Treaty of Lisbon. But with Kaczynski finally putting pen to paper on October 10, that just leaves Czech President Vaclav Klaus. What will be the endgame?

The treaty, an agreement signed in Lisbon in 2007 by EU leaders that is designed to make the bloc work better, but is denounced by critics (in their more polite moments) as an attempt by Brussels to create a federal Europe, must be ratified by all 27 EU members and has been mainly held up by the Irish, who rejected the treaty in a referendum in 2008, one of the few countries to hold such a vote.

That Kaczynski and Klaus had also refused to ratify the treaty put forward by their respective governments was largely ignored, as nothing could happen until the Irish held another referendum on the treaty, which the country did on October 2 and the Irish people, less confident to rock the boat since the economic crisis, duly voted for. So attention then turned to Poland and the Czech Republic.

Kaczynski, so often the lead member of Europe's awkward squad, acknowledged "the will of the Irish people" in his decision to sign the treaty. Klaus instead made an 11th-hour demand that, among other things, Prague be awarded an opt-out from the fundamental rights charter contained in the treaty, and in advance of this got several members of the party he helped set up, the centre-right ODS, to challenge yet again the treaty in the country's Constitutional Court.

Why the different approach? Jaroslaw Adamowski, a Warsaw-based writer, points out that the two men are playing the game from "utterly different positions." Kaczynski wants to run again for president in October 2010, when he will probably face the incumbent PM Donald Tusk. In 2007, Tusk ousted Kaczynski's twin brother Jaroslaw of their Law and Justice party, and since then opinion polls of Poland's largely pro-EU population give Tusk a big advantage over Kaczynski. To adopt a scorched-earth policy a la Klaus wouldn't help him in the election.

Klaus, on the other hand, is serving out his second and final term of office as president, which will end in 2013. With no voters to face, his natural arrogance, rudeness and eccentricity has been given free reign. His strident dismissal of climate change as a fact, while overwhelmingly the argument has shifted to whether its man-made or not, has alienated vast swathes of Czech politicians and voters. However, he is nothing if not a canny politician and has settled on an issue to use as justification for his refusal to sign the treaty that he knows will strike a chord with his fellow citizens: that the treaty needs to have clauses added that would prevent lawsuits from the descendants of millions of Sudeten Germans who were expelled from Czechoslovakia at the end of the World War II from trying to claim back the lands.

Analysts say this attempt to pull his opposition to the treaty into the mainstream of Czech politics smacks of desperation, but it's still likely to win him time if not some new converts to boot. Indeed, the Czech government headed by Prime Minister Jan Fischer said following an emergency meeting to discuss the situation on Monday, October 12 that it does intend to put these 11th-hour demands of Klaus on the table of an EU summit at the end of this month.

Rum company

What happens from here? The Czech PM has sought to reassure the European Commission that there wouldn't be any further delay in final ratification of the treaty if the court declares it compatible with the Czech constitution, which it is expected to do, as it has done on previous occasions.

However, Klaus gives every indication that he won't sign even then. Adamowski says the government could then reach for "more decisive and spectacular measures," including a senate lawsuit against Klaus for conduct against the constitutional order. However, it's not clear that Klaus is doing anything wrong, since the constitution gives the president the right to sign into law or not any treaties the government of the day presents to him or her. The president has the final word.

Might Klaus resign? Analysts say hoping for that would be to totally misread a man whose guiding principle since the communism fell was to amass as much power and wealth, hang the consequences. The numerous times that his ties to Russian organised crime and Swiss bank accounts have been raised, it's been water of a duck's back.

Some pundits have speculated that Klaus has negotiated some deal with the UK's Conservative Party leader David Cameron, whose new allies in the European Parliament include Kaczynski's Law and Justice party. According to this scenario, Klaus would delay ratifying the treaty until the UK's general election in 2010, which the Conservatives are almost certain to win. Then, if the new PM Cameron decides to hold a referendum, the treaty's fate would again hang in the balance because the British are, as a nation, almost as Eurosceptic as Klaus himself.

It is inconceivable that the EU's member states will agree to reopen the treaty to insert Klaus' demands and then go back yet again to their parliaments and populations, so if the Klaus gambit works and the treaty fails, Nicolaus Heinen, an analyst with Deutsche Bank Research, says there might still be two ways of implementing at least parts of the reform package. First, he says it would be possible to get through individual sections of the treaty via political agreements below the ratification threshold. One of these might be to reach accord on the EU's prospective new posts, such as that of a Council President. Second, from a purely legal standpoint, major reforms could also be implemented as part of the upcoming accession agreement with Croatia. The agreement must be signed by all 27 member states and Croatia and, as in earlier accession rounds, would also allow amendments to the existing treaties without requiring further referenda in the member states. "However, it remains doubtful whether this approach would advance the EU much further politically, since it would probably not eliminate earlier reservations of certain members against the Lisbon arrangements," he points out.

On a wider note, the Klaus affair calls into question the way that EU treaties are ratified by member states. "The case of Vaclav Klaus shows that the personal opinion of an individual holding office in a constitutional body can block the integration process. This naturally raises the question as to whether the current model of treaty ratification is still appropriate," says Heinen.

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