The EU Constitution – an analysis
Dr Anthony Coughlan
Contents
- An EU state constitution that is superior to national constitutions
- No longer "Pooling Sovereignty", but accepting and giving allegiance to a new sovereign
- Identically worded provisions have different legal implications in an EU Constitution as compared to a treaty
- Is there anything good in the EU Constitution?
- Background to the Constitution
- The EU's fundamental democratic problem
- Where the Constitution came from: The Laeken Declaration and the Convention that failed to do its job
- Structure of the EU Constitution
- Protocols
- Eleven key features of the Constitution of the new EU
- The alternative to the EU Constitution
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. 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 2003referendum; 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:
1. 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-à-vis other States.
2. 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.
3. 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 irremovable 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 under pinning 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 1,000 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 EU’s of this kind side by side is quite unrealistic.
The edited text of the Treaty Establishing a Constitution for Europe may be consulted here. 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 here.
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 it’s 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-à-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 union; competition rules for the internal market; monetary policy (for eurozone members); common fisheries policy; common 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-à-vis its Member States in relation to industry, 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 percent of the Member States, at least 15, as long as they include 65 percent of the EU's population.
Thus 15 States, if they satisfy the 65 percent 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 words “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 spokesman 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 Heads of State and Heads of governments of the EU’s member states 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 scene 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."
Article 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 he Court that would decide. This adds a further tier of lawyers and judges t 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 federalising 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 re-established for the peoples and nations of our continent.
Democrats all over Europe should say in the coming period: