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THE TREATY ESTABLISHING A CONSTITUTION FOR EUROPE
- An analysis of the Constitution that makes the EU into a State
_______
"The Constitution is the capstone of a European Federal
State."
- Guy Verhofstadt, Belgian Prime Minister, Financial Times,
21-6-2004 "For the first time, Europe has a shared Constitution. This
pact is the point of no return. Europe is becoming an irreversible project,
irrevocable after the ratification of this treaty. It is a new era for Europe, a
new geography, a new history."
- French Prime Minister Jean-Pierre Raffarin, Le Metro, 7-10-2004
"We know that nine out of 10 people will not have read the Constitution and
will vote on the basis of what politicians and journalists say. More than
that, if the answer is No, the vote will probably have to be done again, because
it absolutely has to be Yes."
- Jean-Luc Dehaene, Former Belgian Prime Minister and Vice-President of the EU
Convention, Irish Times, 2-6-2004
________
AN EU STATE CONSTITUTION THAT IS SUPERIOR TO NATIONAL
CONSTITUTIONS
The Treaty Establishing a Constitution for Europe, to call it by
its proper official name, is not just another EU treaty. This Treaty(Art.IV-437)
repeals all the existing EC/EU treaties from the Treaty of Rome to the Treaty of
Nice and then founds or establishes quite a new EU, based on its own
Constitution. Legally, constitutionally and politically this new European Union
would be quite different from the existing EU. The new EU, founded on its
own State Constitution, in fact becomes a new European State in the world
community of States. A young State and a new one, a weak State perhaps, but a
State nonetheless, with virtually all the essential features of a State, in
which the existing Member States are reduced to the constitutional status of
regions or provinces. Simultaneously the EU Constitution becomes the fundamental
source of legal authority within Europe, supplanting the Constitutions of the
Member States as the ultimate source of legal power. The EU Constitution becomes
part of our Constitution and will not be amendable except with the consent of
other countries. This is therefore the most decisive step ever in the
near-60-year-old project of European integration, aimed at turning the EEC/EC/EU
into a fully-fledged State, a superpower in the world.
To call it a "constitutional treaty" is to downplay its significance.
"Constitutional treaty" implies that this is comparable to previous EU
treaties like Nice, Amsterdam, Maastricht, and the Single European Act, whereas
the most important thing about it is that it is a Constitution as well as a
treaty. In international law a Treaty is a contract or agreement between
independent States, the High Contracting Parties, as equal sovereign partners. A
Constitution is the fundamental law of a State, setting out its institutions of
government, how it makes its laws, determines its policies and actions and
relates to other States. This treaty will only be a treaty until the
Constitution comes into effect. From then on it is the Constitution we will be
bound by and will have to obey.
Article 1.1 of the Treaty Establishing a Constitution for Europe states:
"This Constitution establishes the European Union." As the European
Union already exists as an intergovernmental cooperation between its Member
States established by the 1992 Treaty of Maastricht, what this
Treaty-cum-Constitution proposes is an EU that would constitutionally, legally
and politically be a fundamentally different thing from the EU we
are at present members of.
Article I-7 gives this new European Union, established now on the basis of its
own Constitution, legal personality and a distinct corporate existence for the
first time. Hitherto the EU has had no legal existence apart from its Members.
At present the Member States, not the EU, are superior. This is shown by the
fact that the Member States if they wished could agree at any time to dissolve
both the EU and EC, and interact with one another like the rest of the world
community of States, and as they did themselves before the 1957 Treaty of Rome
established the European Economic Community(EEC). The Constitution changes this.
Legally and constitutionally it makes the new EU separate from any of its
individual Member States, just as Germany is a separate state from Bavaria or
Brandenburg, the USA from Virginia or California, and Canada from Ontario. This
is the most essential constitutional step for those who seek to turn the EU into
a State, an international actor in its own right for the first time. Article I-6
then provides that "The Constitution and law adopted by the Institution of
the Union in exercising competences conferred on it shall have primacy over the
law of the Member States." Thus the proposed Constitution of this new
EU overrides and is superior to the Member States' national Constitutions,
potentially in all areas of public policy; for the EU Constitution does not seek
to reserve any governmental area permanently from EU control.
The central issue concerning the EU Constitution is this:
Which Constitution takes precedence, the European one or the national?
That after all is the central question of politics: Where do power and
legitimate authority lie?
The Treaty Establishing a Constitution for Europe is clear. The new EU State and
its Constitution will be paramount.
If the Constitution is ratified, the EU Member States would constitutionally and
legally become provinces within a European Federal State, with their national
democracy, sovereignty and political independence abandoned as they agree
formally to subordinate themselves to the superior entity, as in any State
Federation. The Constitution's continental champions are quite honest about
this, like the Belgian and French Premiers quoted above. In fact an earlier
draft of Article 1 stated explicitly that the Union would exercise its
competences "on a federal basis." The word "federal"
was dropped because of concern that it would hinder ratification in some
countries. The Article now provides that the Union will exercise its competences
"in the Community way." That is a Federal Statist way, even if the
words "Federal" and "State" are not used.
In a Federal State there are two levels of law-making, with the Federal level
superior to the provincial or regional level. Having repealed all the
existing EC/EU treaties, the Treaty Establishing a Constitution for Europe then
reapplies the existing body of EU law, some 100,000 pages of it, as if it were
made under the constitutional primacy of the Constitution established by the new
Treaty. Simultaneously it transfers some 40 further areas of government policy
or national decision from the Member States to the new Union, centralising them
in the Brussels Institutions.
NO LONGER "POOLING SOVEREIGNTY", BUT ACCEPTING AND
GIVING ALLEGIANCE TO A NEW SOVEREIGN
It is an historical moment of some importance - this attempt to
turn much of the continent of Europe into a State and world power, in which 25
previously sovereign Nation States are reduced constitutionally to provincial
status in a European Federation. Their hitherto sovereign peoples and national
Parliaments must thereafter obey the laws made by the 25 politicians on the
Council of Ministers in Brussels, backed by the EU's supranational bureaucracy.
This is no longer a question of States "pooling sovereignty" in some
limited areas of government, the better to attain certain agreed purposes.
"Pooling sovereignty" was always a misleading term anyway, aimed at
disguising from the public the reality of what was happening. The legal concept
of sovereignty has nothing to do with international power or economic weight. It
refers to the exclusive right of a State to make its own laws, and consequently
of its people consequently to govern themselves. It is therefore no more
possible to "pool" sovereignty than it is to be half-pregnant! But in
so far as people believed that EU membership involved some such pooling, the
Constitution's provisions now show the unreality of that. Under the Constitution
the sovereign powers of the European Union would be vested in European
Institutions, the EU Council, Court, Commission and Parliament, which are given
legal supremacy over the laws and sovereignty of the Member States.
The EU and its Institutions would become our new sovereign. We would all, for
the first time, become legally bound as direct citizens of this new legal
entity. One can only be a citizen of a State. Under the Constitution we would
legally become citizens of the new European Union, not just as an honorary
title, an adjunct to national citizenship, as under the Treaty of Maastricht,
but with rights and obligations direct to the European institutions rather than
through our national institutions. Article 1-10 provides: "Citizens of the
Union shall enjoy the rights and be subject to the duties provided for in the
Constitution."
The once-in-a-lifetime decision of adopting the EU Constitution would directly
concede power and sovereignty to the EU over the legal and constitutional
framework that guards our civil liberties and democratic rights. It would
do this for our children and future generations. It would change the
international status of our country from being an independent democratic State
to being a subordinate state within a greater European power. Those pushing the
Treaty Establishing a Constitution for Europe are effectively asking us to be
abandon our right to determine the laws we agree to obey and to decide our own
government, which is our most fundamental democratic right.
IDENTICALLY WORDED PROVISIONS HAVE DIFFERENT LEGAL
IMPLICATIONS IN AN EU CONSTITUTION AS COMPARED TO A TREATY
Parts 1 and 2 of the four-part Constitution are its core
constitutional parts. Part 3 transposes most of the existing EU policies into
the Constitution, while adding some new ones. This doubtless is what has led
some politicians to refer to it as a "tidying-up exercise". That is to
play down the significance of what it proposes. A fundamentally important point
here is that the EU Court of Justice(ECJ) which interprets EU treaties and will
interpret the Constitution if it is ratified, does so in relation to their
"objects and purposes", as shown by their preambles or other evidence
of the intentions of their drafters. That is the continental legal tradition, in
contrast to the emphasis in English-speaking countries on the meaning of the
wording of treaty provisions in the present tense. The ECJ has laid down
in the 1992 EEA Agreement Case that identically worded provisions in two
separate treaties can be interpreted to have very different effects.
Clearly changing the legal basis of the European Union from a series of treaties
to a self-contained Constitution would fundamentally alter the Court's view of
the objects and purposes of the legal texts it is applying. In practice, there
would be a presumption that the Member States are only permitted to exercise
powers in the residual areas left to them under the Constitution, and even in
those areas they would be regarded as constitutionally obliged to fit in with
any over-arching EU policies or foreign policy imperatives in accordance with
their general duty to "facilitate the achievement of the Union's tasks and
refrain from any measure which could jeopardise the attainment of the Union's
objectives"(Art.I-5). Shifting the EU from a treaty basis to a
constitutional basis would radically affect the Court's interpretation and
application of treaty provisions as well as of the scope of EU directives and
regulations. Henceforth all EU laws would be interpreted by the Court as having
the force of constitutional law. It would be quite proper of the Court of
Justice to see all areas of national government as either actually or
potentially subordinate to the EU Constitution.
If the proposed Constitution is ratified, the only significant power of
Statehood the EU would not possess would be the power to impose taxes. The EU
State-builders aspire to that in time and the Constitution opens a legal path
towards it. One can only be a citizen of a State, so the Constitution
makes us legally real European Union citizens for the first time, for up to now
the EU did not have legal personality or a corporate existence on its own
account. Only the European Community, covering the supranational areas of the EC
treaties, had that under the Treaty of Maastricht. Now the new EU State
will be founded on its own Constitution just like other States. It will possess
its own population and citizenship, a territory, an external frontier, a
currency(the euro), an armed force(the EU Rapid Reaction Force), an embryonic
police-force in Europol and judiciary in Eurojust, a legislature in the Council
of Ministers and EU Parliament, an Executive (the EU Commission), a Supreme
Court(the ECJ), a political President (the proposed President of the European
Council), a Public Prosecutor's Office, a human rights code(the EU Charter), a
foreign and security policy, a Foreign Minister and diplomatic corps, a body of
federal law that covers ever-expanding areas of life and that is accepted as
superior to national domestic law in any case of conflict, and power to
conclude international treaties with other States in the ever-growing areas of
its exclusive competence. A State needs its State symbols. Unsurprisingly
therefore Article I-8 of the Treaty Establishing a Constitution for Europe
provides that the EU State is symbolically capped with its own flag, anthem,
motto and annual public holiday - Europe Day - which are given a legal
treaty-cum-constitutional basis for the first time.
The new EU State will have control, or potential control, according to the terms
of its Constitution, over all areas of public policy, even though in a new and
young State it can take time for that to become clear. A European Union founded
on its own Constitution may seem a weak State by comparison with other States
and to have some peculiar institutional features. But it would be no
weaker than the early USA after it first adopted its Constitution and before it
became strong and centralised enough to prevent some of the Member States that
founded it breaking away in the 1860s American civil war. The EU State may
strengthen, break-up or remain weak in the years to come - only time will tell -
but a State it undoubtedly will be if the Treaty is ratified and the
Constitution comes into force.
IS THERE ANYTHING GOOD IN THE EU CONSTITUTION?
There are some positive proposals in the Treaty Establishing a
Constitution for Europe. It provides that part of the meetings of the Council of
Ministers when they are formally adopting new EU laws would be held in public,
although most of their discussions would still be in private. It provides that
one million or more EU citizens coming from "a significant number of Member
States" may petition the Commission to propose a new EU law to the Council
of Ministers, although neither the Commission nor the Council need accede to
such a request. A Protocol on Subsidiarity lays down that the Commission must
give National Parliaments prior notice of any law it intends to propose, and if
one-third of these contend that the proposal violates the principle of
subsidiarity, the Commission must review its proposal, after which it may decide
to maintain, amend or withdraw it. The Constitution also provides for a Member
State that wishes to leave the EU, although the procedure it lays down for
this could significantly disadvantage a State that sought to negotiate a fair
withdrawal agreement.
The EU Member States can introduce all these changes anyway, in so far as they
are desirable, without establishing the EU itself as a State on the basis of its
own Constitution.
BACKGROUND TO THE CONSTITUTION
The most revealing account in English of the history of European
integration to date is C.Booker and R. North's "The Great Deception, The
Secret History of the European Union" (Continuum, London and New York, ISBN
0-8264-71056-6) A revised paperback edition of this book, bringing the story
down to the signing of the Constitution, will be published in spring 2005.
Why do these authors speak of "deception"? Because the process
of building a Europe-wide State has taken place in gradual steps, by governments
using stealthy salami-tactics, a series of five treaties between 1986 and now,
each of which has been represented to the public in the Member countries as
necessary and desirable for economic growth and jobs. But the real political
State-building aim has been subscribed to only by the key political, economic
and bureaucratic elites that are pushing the project. It has not been agreed to
by the citizens of the different countries of Europe, although the Constitution
confronts them with that choice clearly for the first time.
There have been five gradual steps to the EU State Constitution:
1957 Rome Treaty: free trade; a protected agriculture; supranational
institutions in the EU Commission, Council of Ministers and EU Court of Justice;
1987 Single European Act Treaty: the internal market; wide use of majority
Council voting to make EC laws;
1992 Maastricht Treaty: the euro as a single currency for the eurozone, but
excluding Britain and Denmark, with Sweden opting out de facto in its 2003
referendum; beginnings of a common foreign and security policy;
1998 Amsterdam Treaty: "the progressive framing of a common defence
policy";
2003 Nice Treaty: "enhanced cooperation"; sub-groups of EU States may
use the EU institutions for closer integration among themselves even if others
disagree, opening the way to an unequal EU with an inner core dominated by
the Big States.
The historical origins of the EU project are in the 1920s and 1930s, with Jean
Monnet and others who conceived and pushed it for decades. Three factors gave it
impetus after World War 2:
* State Power Motivation:
Well-known Norwegian sociologist Johan Galtung sums that up as follows:
"One basic formula for understanding the Community is this: 'Take
five broken empires, add the sixth one later, and make one big neo-colonial
empire out of it all" (The European Community, a Superpower in the Making,
1973.) It is not the whole story, but it is perhaps the most essential part of
the story. The "foundation myth" of the EU is that it has its origins
as a peace project to prevent wars between France and Germany. In fact war was
impossible between individual members of either of the two blocs during the Cold
War. Washington and Moscow would just not have permitted it. The atomic bomb
makes inter-State wars in Europe impractical anyway. Most wars are civil wars.
The end of the Cold War in 1989 brought war back to Europe after 45 years of
armed peace - in Yugoslavia and Chechnya. The real historical model for
the EU is the unification of Germany in the 19th century, which began with a
customs union and common market, then became a confederation of formally equal
states, and then a unified Federal State with one Constitution, currency, army
and government to represent it internationally vis-a-vis other States.
* Economic Motivation:
The aspiration of European-based transnational firms to be as free as possible
of national State control and interference and to obtain maximum freedom of
operations for their profit-maximizing activities. Constitutions do not normally
enshrine an economic ideology, which is the stuff of debate between political
right and left, but set general rules for working out such differences. By
contrast the Treaty Establishing a Constitution for Europe erects extreme
neo-liberalism, laissez-faire, a competitive market economy on the basis of
cross-national free movement of goods, services, capital and labour, and a
monetarist economic policy into constitutional principles. These are especially
congenial to the EU-based transnational firms organised in the EU Employers
Federation, UNICE, and the European Round-Table of Industrialists, who have been
the principal advocates of successive EU treaties prior to their negotiation,
and major backers of the international European movement.
* Personal Power Motivation:
The process of EU integration transfers power from elected national parliaments
and governments to a small number of politicians and bureaucrats, who obtain a
huge accretion of personal power thereby. At national level Ministers are part
of the executive arm of government, responsible to their elected national
parliaments and citizens. But transfer a particular policy area to Brussels and
the relevant national Ministers become supranational EU legislators, members of
what is literally an oligarchy, a legislative committee, of 25 persons on the EU
Council of Ministers who make laws for 450 million people. They are irremoveable
as a body. They become ever more distanced from their national electorates.
Their willingly accepted personal task vis-à-vis their fellow Ministers, with
whom they interact on first-name terms, becomes to deliver their peoples in
support of further EU integration National parliamentarians who aspire to become
Ministers, whether they are in government or opposition, go along with this.
Someone has described this process as "a slow coup against political
democracy".
It means that at national level those running the State itself become party to
depriving their fellow citizens of the power to make their own laws and decide
their own government.
Simultaneously at civil service level senior members of national
bureaucracies are substantially freed from public scrutiny as powers are
transferred to the bureaucracy in Brussels with whom they regularly interact.
There they prepare EU laws for enactment by the Council of Ministers outside the
ken of national parliaments or even the European Parliament, which can propose
amendments to EU laws but cannot have those amendments adopted without the
agreement of Council and Commission.
Democracy, public accountability, wilt or disappear. This process, which would
accelerate under the EU Constitution, is clearly building inevitably to a major
crisis of democracy across our continent.
THE EU'S FUNDAMENTAL DEMOCRATIC PROBLEM
It is possible to turn the EU into a State, but it is not
possible for that State to have a democratic basis. The reason is that democracy
means rule by the demos, the people, through the representatives they elect and
on whom they confer legitimacy and authority. A European people does not exist
except in the statistical sense, and one cannot be artificially created from
above in the way the EU is attempting. The 450 million inhabitants of the EU are
divided into many peoples, real national communities speaking their own
languages, who desire to make their own laws, decide their own government and
self-determine themselves as they have done for generations through
representatives they elect and who are responsible to them. The EU cannot be
democratised by giving the European Parliament power to make laws instead of the
25-person Council of Ministers, as some suggest. The democracy that is needed to
underpin a stable State is not just majority rule, but majority rule on the
basis of a community, a demos, normally a national community, where there is
sufficient mutual identification and solidarity among its members as to induce
minorities willingly to obey the majority, so giving majority rule its
legitimacy and authority. The existence of such a real, self-aware community is
crucial for underpinning the legitimacy and stability of a State with its own
tax and public service system, from which some citizens are net gainers and
others are net losers - if that State is to be stable and endure. It is the
absence of such a community at European level, and the impossibility of
artificially creating it, that is the root cause of the EU's crisis of authority
and acceptability. The EU's "democratic deficit" problem is inherently
insoluble without repatriating major powers back from the supranational to the
national level. The Constitution does the opposite of this. If it is ratified it
can only worsen the crisis of democracy at both EU and Member State level. Just
as people often only appreciate the value of health when they become ill, they
appreciate the value of their democracy only when they have lost it, and they
must begin the struggle to win it back again.
So it is and will be with the EU.
WHERE THE CONSTITUTION CAME FROM:
THE LAEKEN DECLARATION AND THE CONVENTION
THAT FAILED TO DO ITS JOB
The 105-person body, the Convention, that drew up the Draft
Constitution was set up by the Laeken Declaration of EU Presidents and Prime
Ministers in December 2001. This Declaration acknowledged the lack of democracy
and transparency in the EU, said that the Union needed to be brought closer to
its peoples, referred to the possibility of "restoring tasks to the Member
States" and the possibility "in the long run" of adopting "a
constitutional text." Instead the Convention, which was dominated by
Federalist EU-State-builders, rushed headlong into drafting a Constitution that
for the first time makes the EU separate from and superior to its constituent
Member States, transfers more powers from Member States to the EU, reduces the
power of national parliaments and citizens further, and contains not a single
proposal to repatriate powers from Brussels to Member State parliaments.
Over 1000 amendments were proposed, but the Convention chairman, former French
President V.Giscard d'Estaing, ruled out any votes. Giscard decided when there
was a "consensus" and that was that. The Draft
Constitution was amended by the June 2004 EU summit of Presidents and Prime
Ministers in relation to the population-based voting figures, the reduction in
the number of Commissioners to two-thirds of the Member States after five years
etc.
There has been no popular demand that the EU should be turned into a European
State on the basis of its own Constitution. It is Europe's powerful political
and bureaucratic elites, especially in the Big Countries, that are pressing
that. Small Country elites are happy to go along, in particular if they face big
problems at home, as the East Europeans do, for which they can henceforth seek
to put the blame on Brussels. What fundamentally inspires most of them is the
old European dream of Big Powerdom, the intoxication of empire-building, of
taking part in however small a way in running a Superpower, while simultaneously
freeing themselves from democratic control and political accountability to
national parliaments and electorates domestically. The pressure for EU
integration that culminates in this Constitution comes wholly from the top down,
not the bottom up.
STRUCTURE OF THE EU CONSTITUTION
The Treaty Establishing a Constitution for Europe has 448
Articles divided into four parts. With its Protocols and Declarations it is some
800 pages long. Following its signing in Rome in October 2004 it will go around
for ratification by all 25 EU Member States by November 2006. Some 10 countries
will hold referendums on it. It cannot legally come into force if any one of
them says No. One of the Declarations states that if all 25 States do not
ratify it they will meet to discuss what to do, but there is no legal mechanism
for imposing the Constitution on a country that does not want it, or forcing
such a country to leave the EU. In theory if 23 States said Yes and two said No,
the 23 could set up a new Union based on the proposed Constitution, while the
existing 25 would retain the existing EU with its resources, structures,
euro-currency and institutions. But two EUs of this kind side by side is quite
unrealistic.
The edited text of the Treaty Establishing a Constitution for Europe may be
consulted at http://ue.eu.int/igcpdf/en/04/cg00/cg00087.en04.pdf
The Reader-Friendly Edition of the EU Constitution by Danish MEP Jens-Peter
Bonde is the most useful text to enable citizens to understand the Constitution,
because of its invaluable Index and Glossary. This is available on the internet
at www.euabc.com , www.bonde.com
and www.EUobserver
Part 1, with 60 Articles, is the core constitutional part. It lays down the
Union's general principles, sets out its objectives and values, its Institutions
and the respective powers and competences of the EU on the one hand and its
Member States on the other. It is clear and readable, even if much longer than
the US Constitution. People should take care to read it. Its provisions are
short, if deadly for national Constitutions. Thus Article I-1: "This
Constitution establishes the European Union"; Article I-6: "The
Constitution shall have primacy over the laws of the Member States.";
Article I-7: "The Union shall have legal personality"; Article I-12:
"The Member States shall exercise their competence to the extent that the
Union has not exercised, or has decided to cease exercising, its
competence."
Part 2 (54 Articles) is the Charter of Fundamental Rights. For the first time
ever this gives the EU Court of Justice power to decide our human rights in all
areas covered by EU law. The ECJ in Luxembourg should not be confused with the
European Court of Human Rights in Strasbourg, which is not connected to the EU
and has over 40 European States as members. Part 2 is important in that the
Constitution could create new rights or take away existing ones. It would
supersede our national Constitution, which is clear about rights, as well as the
European Court of Human Rights, in areas affected by EU law, whereas the meaning
of some of the rights in the Charter is anything but clear - the right to
"human dignity" for example, or the right to "good
administration". The inclusion of a human rights code with full legal
effect is further evidence that this is a truly Federal Constitution for a new
EU. Unless adequately restrained, the doctrine of the legal supremacy of the EU
Court of Justice would allow the new EU rights law to displace national
provisions in highly sensitive areas of social policy, unrestrained by
democratic accountability or control.
Part 3 (322 Articles) is the largest part. It sets out the detailed policies and
functioning of the EU - free movement of goods, services, capital and labour;
agricultural and fisheries policy; economic and monetary policy; foreign and
security policy; crime and justice policy; social policy; EU financing etc.
Much of this is already EU law, apart from the new powers the Constitution gives
the EU, but the Court of Justice will interpret these provisions as having the
force of a constitutional imperative if the Constitution is ratified. That is
why the provisions of the Treaty Establishing a Constitution for Europe are more
significant than those of a conventional EU treaty.
Part 4 (12 Articles) gives general and final provisions dealing with
ratification and amendment of the Constitution, the admission of new Members and
provision for a State to leave the EU. It provides for succession by the new
European Union to the rights, responsibilities and assets of the existing Union.
It carries over the 100,000 pages of the acquis communautaire from the old EU
and entrenches the case-law of the ECJ as the source of interpretation for this
and for the Constitution.
Protocols: The 36 Protocols or agreements on particular topics attached to the
Treaty now become part of the EU Constitution and are as legally binding as its
substantive text. They include Ireland's Abortion Protocol(No.31), which
generated controversy at the time of the 1992 Maastricht Treaty. They also
include the Eurotom Protocol(No.36). The Euratom Treaty, which supports nuclear
power, was due to end in 2007 after being in existence 50 years. It is now given
an indefinite lease of new life by being made part of the EU Constitution. In
addition there are 48 Declarations, which are not legally binding but are
statements of political intention by the States making them.
ELEVEN KEY FEATURES OF THE
CONSTITUTION OF THE NEW EU
1. PROVIDING THE NECESSARY CONSTITUTIONAL BASIS FOR AN EU
STATE
A Treaty is an agreement between legally equal sovereign States,
the High Contracting Parties. A Constitution is the fundamental law of a
State setting out the relations between its subordinate parts. Up to now the
European Union has been a descriptive term referring to various forms of
cooperation between the EU Member States, some supranational - the so-called
Community "pillar" - some intergovernmental, the foreign policy and
security "pillar" or the justice and home affairs "pillar".
Up to now the European Union has been legally indistinguishable from its Member
States. The Constitution changes this. Article I-1 states "this
Constitution establishes the European Union, on which the Member States confer
competences to attain objectives they have in common." These objectives are
set out in Article I-3 and are very wide. They include promoting the EU's values
- also very wide - a single market based on free competition, establishing an
area of freedom, security and justice without internal frontiers, sustainable
development, economic growth, full employment, price stability, social justice,
upholding the EU's values and interests vis-a-vis the wider world etc.
Article I-7 provides: "The Union shall have legal personality."
Article I-6 lays down: "The Constitution and law adopted by the
Institutions of the Unions in exercising competences conferred on it shall have
primacy over the law of the Member States" That includes their
constitutional law of course. This has never been stated in an EU Treaty before.
The doctrine of EU legal supremacy was developed by the EU Court of Justice in
the 1960s in relation to the mainly economic areas of the EU, in which EU law
was accepted as superior to national law in any case of conflict. This was the
relatively narrow, supranational, area of the European Community, or EC.
Non-economic areas such as foreign and security policy, or civil and criminal
law, were "intergovernmental", based on treaties between equal State
partners and outside the domain of supranational Community law. The EU
Commission, the non-elected body that proposes all EU laws, had no function in
these intergovernmental areas. The Constitution abolishes this distinction
between the supranational "Community" area where EU law operated, and
the "intergovernmental" areas where it did not apply. It thus brings
all government policy either actually or potentially within the scope of the EU.
It is one thing for Member States to go along with a principle of EU legal
superiority established by the EU Court of Justice and applied to a restricted
range of matters like customs duties or tariffs. It is quite another to concede
national sovereignty to an EU Constitution whose writ covers everything from
economic policy to criminal law to foreign policy and fundamental human rights.
2.EU POWERS AND COMPETENCES ... THE EU COURT DECIDES THE
BOUNDARIES BETWEEN
EU AND NATIONAL POWERS
The Constitution gives the EU exclusive competence - i.e. powers
- in certain areas of government(Art.I-13). This means the Member States lose
all power to decide such matters. "The Union shall have exclusive
competence in the following areas: Customs unionScompetition rules for the
internal marketSmonetary policy (for eurozone members)Scommon fisheries
policyScommon commercial policy." Exclusive competence means that it
is the EU, not Member States, that will conclude international treaties with
other States for these areas. The existing legal obligation on Member
States is not to enter into an international agreement which conflicts with an
EU obligation. The Constitution now greatly extends the areas in which the EU is
entitled to conclude treaties in its own name: "The Union shall also have
exclusive competence for the conclusion of an international agreement when its
conclusion is provided for in a legislative act of the Union or is necessary to
enable the Union to exercise its internal competence, or insofar as its
conclusion may affect common rules or alter their scope.". This would cover
for example international crime conventions and extradition and asylum
agreements. Together with the provisions of the Common Foreign and Security
Policy, the Constitution would deprive Member
States of much of their present treaty-making powers.
Then there are areas of shared competence, where power is divided between the EU
Institutions and the Member States. This is a peculiar kind of sharing,
for EU power is stated to be constitutionally superior or primary, so that
Member State powers are essentially residual and on sufferance.
Article I-12 provides: "The Member States shall exercise their competence
to the extent that the Union has not exercised, or has decided to cease
exercising, its competences." Areas of shared power with Member States
include the internal market, elements of social policy, economic and social
cohesion, environment, transport, energy, the area of freedom, security and
justice, aspects of public health etc. In jurisdictional disputes as to the
boundary between EU powers and Member State powers, it is the EU, through the
Court of Justice, that would decide which is which.
A gesture towards placating concerned democrats and "sovereignists" is
Article I-11(2), which provides: "Competences not conferred upon the Union
in the Constitution remain with the Member States." This is like the
10th Amendment to the US Constitution, adopted in 1791, which states that
"the powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to
the people." However, the 10th Amendment has not prevented the USA
from becoming a fully-fledged and highly centralised Federal State over time,
with provincial states like New York, Virginia and Kansas quite subordinate to
the Federal Government in Washington. The similar Article in the EU Constitution
can offer no such reassurance either.
In addition the Constitution gives the EU the right to coordinate the economic
and employment policies of its Member States, to conduct a common foreign and
security policy covering all areas of foreign policy including "the
progressive framing of a common defence policy", and "to take
supporting, coordinating or complementary action" at European level
vis-a-vis its Member States in relation to industy, health protection,
education, vocational training, youth, sport, culture and civil protection.
3. EU LAWS TO BE BASED MAINLY ON POPULATION SIZE, WHICH
ADVANTAGES THE BIG STATES
Apart from the establishment of the European Union as a State in
its own right, the most important provision of the Constitution in
power-political terms is the shift to a primarily population-based voting system
for making EU laws by the Council of Ministers. The Constitution abolishes the
weighted voting system that was agreed in the Treaty of Nice to provide for EU
enlargement. It lays down instead that EU laws will in future be made by a
"double majority" of States and population: 55% of the Member States,
at least 15, as long as they include 65% of the EU's population. Thus 15 States,
if they satisfy the 65% population criterion, would be able to outvote 10. On
the number-of-States criterion a blocking minority must be at least 11 States,
so that will be harder to assemble than before. This shift to a mainly
population criterion for EU law-making makes it easier for the Big States with
their big populations to get their way. It reduces the relative voting weight of
middle-rank and smaller Member States. It would make EU laws easier to pass,
which means there would be more of them.
The word EU law" replaces "directive" under the Constitution, as
is normal in States.
4. MEMBER STATES TO HAVE NO EU COMMISSIONER FOR ONE-THIRD OF
THE TIME
One-third of the Member States will lose their Commissioners
five years after the Constitution comes into force. Thus each Member State will
have no national representative for lengthy periods of time on the body that
proposes all EU laws which those States and their citizens must obey.
5. A NEW POLITICAL PRESIDENT, AN EU FOREIGN MINISTER AND
DIPLOMATIC CORPS, AND AN EU PUBLIC PROSECUTOR'S OFFICE
- The European Council of Presidents and Prime Ministers
will elect a permanent Council President for up to five years, who will preside
over their quarterly summit meetings. The present revolving six-monthly EU
presidency system will disappear. The European Council President will be the
EU's top job, the chief political representative of the EU, in effect
its Head of State and chief spokeman to the world.
- The EU Minister for Foreign Affairs will conduct the Union's common
foreign and security policy, chair the Council of Foreign Ministers, manage the
EU diplomatic service (The European External Action Service) and serve also as a
Vice-President of the Commission. Only States have Foreign Ministers. For the
rest of the world the EU Foreign Minister will be the foreign policy
representative of the fledgling EU State. As the Foreign Minister will be
appointed by majority vote this will make it possible for some Member States to
be represented internationally at EU-level by someone
who is unacceptable to them.
- There will be a European Public Prosecutor's office to prosecute fraud
against the EU, whose powers may be extended by unanimity to prosecute any
serious crime with a cross-border dimension.
6. AMENDING THE EU CONSTITUTION WITHOUT NEED OF FURTHER
TREATIES OR REFERENDUMS
- The "Passerelle" or Bridge Clause:
Article IV-444 provides that the European Council of Presidents and Prime
Ministers, acting unanimously, may authorise the Council of Ministers to act by
qualified majority in areas where unanimity is currently required. This cannot
be done if a national Parliament objects, but the formal approval of national
parliaments is not required. This means that policy areas where States still
retain a national veto can henceforth be put under EU majority voting without
the need for new treaties, formal parliamentary approval or ratification by
popular referendums - as would at present be required for any such development -
so long as the EU's Presidents and Prime Ministers, representing their
respective governments, agree. Convention Chairman Giscard d'Estaing dubbed this
escalator article, the passerelle or bridge clause, "a central
innovation" of the EU Constitution. It is not hard to see why. The
existence of this and other "passerelle" clauses means in effect that
the Constitution will not be a wholly accurate guide to its own provisions.
- The Flexibility Clause:
In addition there is the "flexibility clause"(Art. I-18) which
provides that if the Constitution has not given the EU sufficient powers to
attain one of its very wide objectives, the Council of Ministers, acting
unanimously "shall adopt the appropriate measures". This enables the
Council of Ministers to extend their own powers without need for new treaties,
so long as they act unanimously. This has been widely used over the years for
internal market matters. The Constitution replaces an existing treaty article,
Number 308, which applies only to the internal market, and extends its scope to
everything in the EU Constitution, including civil and criminal law, fundamental
rights, social policy, culture etc. This is an extraordinary power to have in a
supposedly democratic document.
- Delegated Legislation by the Commission:
Article I-36 of the Constitution allows the Council of Ministers to delegate
law-making powers, such as making regulations, to the non-elected Commission as
regards "non-essential elements" of EU laws. The Council decides what
is "non-essential" but it could be very wide. This turns the EU
Commission, a body of nominated, not popularly elected persons, which France's
President De Gaulle once described as "a conclave of technocrats without a
country responsible to nobody", into a subordinate legislature in its own
right, which we all as EU citizens must obey.
7. "LOYAL" SUPPORT FOR EU FOREIGN AND SECURITY
POLICY ... EU DEFENCE MOVES
FROM "MAY" TO "WILL"
The Constitution provides for a unified foreign and military
policy for the new EU State. Art.1.40 lays down that "Before
undertaking any action on the international sceneSeach Member State shall
consult the others within the European Council or the Council." EU Members
are thus constitutionally precluded from conducting a meaningful independent
foreign policy. The Constitution provides that the Union's competence in matters
of common foreign and security policy "shall cover all areas of foreign
policy and all questions relating to the Union's security, including the
progressive framing of a common defence policy that might lead to a common
defence."(Art.I-16). It lays down as a constitutional imperative that
"Member States shall actively and unreservedly support the Union's common
foreign and security policy in a spirit of loyalty and mutual solidarity and
shall comply with the Union's actions in that area." The word
"loyalty" here again shows which is superior.
Article I-40(3) of the Constitution requires all Member States, including the
military neutral ones, to "make civilian and military capabilities
available to the Union for the implementation of the common security and defence
policy" and to "undertake progressively to improve their military
capabilities." The Constitution points to the end of the formal military
neutrality of Ireland, Denmark, Sweden and Austria by replacing the Nice Treaty
provision that the progressive framing of a common defence policy "might
lead to a common defence, should the European Council so decide" with the
provision of the Constitution that it "will lead to a common defence, when
the European Council, acting unanimously, so decides."
(Art.I-41).
"Enhanced cooperation", permitting sub-groups of States to use the EU
institutions for closer integration amongst themselves may now be undertaken in
the security and military area, as was not permitted by the Nice Treaty. Here it
is to be called "structured cooperation". This inner group of States
is likely to be bound by a mutual defence pact, will work closely with NATO and
will be served by the EU Foreign Minister. The Constitution does not
require EU actions in the military field to be in accordance with the United
Nations Charter, which is the foundation of modern international law. As a
superpower-in-the-making the EU reserves the right to ignore the Charter if need
be.
8. THE EU CHARTER OF FUNDAMENTAL RIGHTS GIVES THE ECJ POWER TO
DECIDE OUR
RIGHTS
- It is proper that the EU and its Institutions should
respect and abide by human rights. But should they have the power to decide
those rights?
Part 2 of the Constitution makes the EU Charter of Fundamental Rights, which was
approved as a political document by the Nice summit in 2001, now legally binding
in supranational EU law. This gives the Court of Justice power to decide our
rights in all areas covered by European law, including Member States when
implementing that law. The scope of EU law is now vast and most EU policies can
be interpreted as having a human rights dimension.
- In disputes as to the boundary between EU law and national law, it is
the Court that would decide. This adds a further tier of lawyers and judges at
EU level for people seeking redress in human rights cases. Justice delayed is
justice denied. Big corporations will find it easier than private citizens to
contest claims in the EU Court. This should make the vindication of human rights
slower and more difficult in practice.
- The Constitution states that the Charter "does not establish any
new power or task for the Union." But the EU does not marry anybody,
or provide health or education services, or concern itself with matters like
reproductive cloning, academic freedom, the rights of children and the elderly,
conscientious objection to military service etc. Why then should it list these
and many other things as rights in the Charter when they are wholly outside its
powers and functions and up to now have been the exclusive responsibility of
Member States with their national Constitutions and Supreme Courts? What is the
point of listing them if they are not enforceable?
- Neither is there any consensus across Europe on a wide range of human rights
matters that could arise in an EU context - for example hard drugs, legal
procedures such as trial by jury, displaying religious symbols in schools,
marriage, succession law, abortion, euthanasia. How can the ECJ purport to
lay down a common cross-EU standard of rights in such sensitive areas?
- Article II-112 allows all the rights set out in the Charter to be
overridden by providing that they may be limited by law "to meet objectives
of general interest recognised by the Union." So the fundamental rights are
not so fundamental after all. The conflict between a right and a justification
for derogating from it is a highly political matter, in deciding which the Court
of Justice would be able to extend its powers further.
- The preamble to the Charter states that the fundamental rights listed in
it are to be interpreted by reference to the "Explanations" prepared
by the Convention that originally drafted it. This means that the
ostensible legal meaning of the rights in the Charter may be altered
significantly by the Court of Justice in interpreting them, relying on a
document drawn up by a different body from that which drafted the Constitution.
Article II-62 provides that "no one shall be condemned to the death
penalty, or executed." Yet the associated article of the Explanations
lifts this restriction and states that the death penalty may be imposed "in
times of war or during the immediate threat of war", presumably for EU-led
operations, for all the Member States have abolished the death penalty in such
circumstances.
- The Charter does not strengthen workers' rights to organise or act
collectively, as some have claimed. Article II-88 states that workers have these
rights "in accordance with national laws and practices". The
associated Explanation, which is now part of the Constitution, emphasises this
and points out that the right of collective action is one of the elements of
trade union rights laid down in Article 11 the European Convention of Human
Rights, which all Member States are already bound by. In so far as Article
II-112 allows fundamental rights to be limited in the interests of the Union,
some future ECJ judgement might possibly threaten workers' rights that have been
long fought for and established at national level. The Charter as it stands
ostensibly protects an employer's right to lock out his employees quite as much
as an employee's right to go on strike, depending on what their national labour
law lays down.
- In truth, making the EU Charter of Rights legally binding under the EU
Constitution has more to do with power than rights. Giving a human rights
jurisdiction to the EU Court of Justice has huge federalizing potential, as the
history of the USA has shown. It could potentially bring the Union's Supreme
Court, the ECJ, into virtually every area of our lives.
9. THE EURO TO BE CONSTITUTIONALLY THE EU CURRENCY
Article I-8 states that "The currency of the Union shall be
the euro." If the Constitution is adopted, all EU Members will in effect
have voted for and be constitutionally committed to abolishing their national
currencies and replacing them with the euro, even though 13 of the present 25 EU
Members still retain their national currencies.
10. EXTENSIVE EXTRA POWERS FOR THE EU
The Constitution extends EU powers to make laws that override
national law in over 40 new policy areas or matters, in addition to the 35 areas
agreed in the 2003 Nice Treaty and the 19 areas in the 1998 Amsterdam Treaty.
Under the Constitution national vetoes disappear for most things. The new areas
transferred to the EU include judicial cooperation in criminal and civil
matters; harmonisation of legislation on criminal proceedings, sanctions and the
definition of offences; border controls; asylum and immigration; civil
protection; Europol and Eurojust; energy; culture; services of general
interest(i.e.public services); structural and cohesion funds etc. Article
I-12 lays down that "Member States shall coordinate their economic and
employment policies within arrangements as determined by Part 3, which the Union
shall have competence to provide." This opens the way to extensive
economic supervision and coordination powers for the Union over its Members. It
goes well beyond what is possible under the existing EU treaties and could
potentially cover such things as taxation policy, national public spending,
pensions policy and industrial policy.
11. AN IDEOLOGICAL CONSTITUTION
The Constitution of any normal State lays down the rules and
institutional framework for political decision-making. It does not seek to
pre-empt the ideological content of those decisions. That is left to political
debate between the parties of Left and Right, abiding by the Constitution's
decision-making rules. The EU Constitution is different. It enshrines a
particular economic system based on an extreme neo-liberal ideology, which it
seeks to clamp as a constitutional imperative on 450 million Europeans.
The Constitution turns the fundamental principles of classical laissez-faire,
free competition across national and State boundaries on the basis of free
movement of goods, services, capital and labour, into constitutional
imperatives, implemented by the rules and Institutions it establishes and
enforced by the EU Court of Justice. At the same time, the
sanction it gives for supranational regulation transfers the corporatist
governmental traditions of some countries, e.g. France, to the pan-European
level. The Constitution enshrines as constitutional principle the monetarist
economic policy of the European Central Bank, whose sole brief in setting
interest rates and controlling the money supply of the eurozone
is to ensure stability of prices, not maximise economic growth, foster
employment or advance social cohesion. It encourages the privatisation of public
services and permits the imposition of such policies on countries outside the EU
through the trade and investment agreements the EU concludes under its Common
Commercial Policy. It lays down as one of the objectives of the EU "a
highly competitive social market economy", but there is no definition of
the term "social market", which is taken from the German Constitution,
or anything to indicate that something other than maximising competition is
implied. These ideological objectives and values of the Treaty Establishing a
Constitution for Europe seek to pre-empt society's fundamental political choices
into the indefinite future, as no other modern Constitution seeks to do.
THE ALTERNATIVE TO THE EU CONSTITUTION
IF THE PROPOSED CONSTITUTION IS REJECTED BY ONE OR MORE COUNTRIES, THE EU WILL
CONTINUE AS IT IS NOW ON THE BASIS OF THE 2003 TREATY OF NICE, WITH THE VOTING
ARRANGEMENTS WHICH THAT TREATY LAID DOWN FOR A EUROPEAN UNION OF 27 STATES
It would be appropriate then to revisit the Laeken Declaration,
reconvene the Convention on the Future of Europe on a more democratic basis than
Giscard's Convention of EU State-builders which gave us the present undemocratic
document, and have a genuine debate among Europe's peoples and parliaments on
the kind of Europe people really want.
Almost certainly that is not a Europe which is a State or superpower in its own
right, run by a narrow elite of top politicians and bureaucrats, within which
the ancient countries of Europe are reduced to the constitutional status of
subordinate regions. It is more likely to be a Europe of cooperating independent
democratic States, where powers are repatriated back to the EU Member States
from Brussels, as the Laeken Declaration originally mooted but which Giscard's
Convention totally ignored. It is likely to be a Europe where national
parliaments and voters have their democratic rights restored and where
democracy, political self-determination and representative government are
reestablished for the peoples and nations of our continent.
Democrats all over Europe should say in the coming period: EU Constitution
S No thanks; No to the EU State Constitution
S Yes to democracy
* * *
This analysis has been compiled by the National Platform EU Research and
Information Centre, 24 Crawford Avenue, Dublin 9, Ireland. It draws from many
sources and has been checked for legal accuracy by authorities on European law;
its political judgements are those of its compilers. The National Platform is
affiliated to The European Alliance of EU-critical
Movements(TEAM), which links together some 60 organisations in 20 different
European countries that are concerned on democratic and internationalist grounds
at EU developments, excluding racist or fascist bodies (See http://www.teameurope.info).
The National Platform's secretary is Anthony Coughlan, who is an economist and
Senior Lecturer Emeritus in Social Policy at Trinity College Dublin, and who may
be contacted at 00-353-1-8305792
29 October 2004
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