Treaty establishing a constitution for Europe Guide, Meaning , Facts, Information and Description
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On July 18, 2003, the constitution's draft was published by the Convention on the Future of Europe [1], which was chaired by Valéry Giscard d'Estaing. Following long negotiations, the European Council agreed upon this draft on June 18, 2004 in Brussels with some changes. European heads of state signed the Constitution in Rome on October 29, 2004 and it now awaits ratification by all EU member states. Critically, this is subject to referrenda in several signatory countries.
Objectives
The main objectives of the proposed Constitution are:
History of the Constitution
The Constitution is based on the EU's two primary existing treaties, the Treaty of Rome (1957) and the Maastricht treaty (formally, the Treaty on European Union, 1992), as modified by the more recent treaties of Amsterdam (1997) and Nice (2001). The need to consolidate the EU's constitution was highlighted in the text of the Treaty of Nice, and the process was begun following the Laeken declaration in December 2001, when the European Council established the Convention on the Future of Europe. The role of the Convention, presided over by Valéry Giscard d'Estaing, was to consult as widely as possible with stakeholders across Europe and to produce a first draft of the Constitution for the Council to finalise and adopt.
The Convention published its draft in July 2003. This draft was then discussed at two meetings of the Council, in September and December, but agreement was not reached when Poland and Spain refused to accept the proposed framework for qualified majority voting. The incoming Irish Presidency then initiated a cooling-off period, following which the final text of the proposed Constitution was agreed upon at the summit meeting on 18–19 June 2004 under the presidency of Bertie Ahern.
Ratification process
The Constitution, having been agreed by heads of government from the 25 member states, was signed in a ceremony in Rome on 29 October 2004. Before it enters into force, however, it must also be ratified by each member state. This is likely to take around two years.
Ratification takes different forms in each country, depending on the traditions, constitutions and political processes of the country in question. Ireland's own constitution, for example, requires that a constitutional referendum be held on all international treaties concerning a transfer of national sovereignty, while Germany's constitution prohibits referenda.
So far, nine of the 25 EU member countries have announced their intention to hold a referendum on the subject. This includes the United Kingdom, a move announced by Prime Minister Tony Blair in April 2004 (see United Kingdom referendum on the Treaty establishing a constitution for Europe). Other countries expected to hold a referendum are France, Ireland, the Netherlands, Portugal, Luxembourg, Spain (February 2004), the Czech Republic, and Denmark.
The European Parliament will debate the Constitution and adopt a position on it in December 2004, making it the first elected parliament to do so. Although the Parliament is not required to approve the text of any treaty (this remains the province of nation states), the conclusions it draws are likely to have a bearing on the subsequent debates in national parliaments.
In the event that 80% of EU member states have ratified the treaty after two years (i.e. by June 2006), while one or more member states have “encountered difficulties in proceeding with ratification”, the European Council has agreed to reconvene and consider the situation. This agreement does not specify what it may decide to do, but it remains the case that no treaty can enter into force without being ratified by all parties to it.
Structure of the constitutional treaty
The Constitution consists of the following parts, with articles numbered from 1 in each part:
No article in the Constitution is entirely new: Part I is largely based on the previous Treaty on European Union and Part III largely on the previous European Community Treaty. Each article is based either on a provision from the existing treaties (revised to a greater or lesser extent, or taken verbatim), or on a provision from the existing Charter of Fundamental Rights of the European Union. Most articles are identical in wording or spirit to their predecessors, others are differently presented, and some are significantly modified.
This is explicitly specified for the first time, but since the Union has always been a treaty-based organisation, it has always been the case by default under international law.
Existing provisions emphasised or newly codified
Relating to principles of functioning
The Constitution specifies that the EU is a union of member states, and that all its competences (areas of responsibility) are voluntarily conferred on it by its member states according to the so-called principle of conferral. The EU has no competences by right, and thus any areas of policy not explicitly specified in the Constitution remain the domain of the sovereign member states (notwithstanding the ‘flexibility clause' – see below).
According to the Constitution, the EU may only act (i.e. make laws) where its member states agree unanimously that actions by individual countries would be insufficient. This is the so-called principle of subsidiarity, and is based on the legal and political principle that governmental decisions should be taken as close to the people as possible while still remaining effective.
- The principle of proportionality
- Obligations of member states
- to ensure implementation at national level of what is decided at EU level;
- to support the EU in achieving its tasks;
- not to jeopardise shared EU objectives.
This principle has been the case since the Community was founded in 1957. It is the principle from which the judgements of the European Court of Justice derive their legitimacy.
There are a number of areas where the EU may only take supporting, coordinating or complementary action. In these areas, member states do not confer any competences on the Union, but they agree to act through the Union in order to support their work at national level. Again, the list of areas is mostly unchanged from previous treaties, with three new competences added (see below).
Relating to the common agenda
In the Constitution, EU member states declare that their mutual values are:
Member states also declare that their society is built on:
These provisions are obviously not new, but some of them are codified for the first time.
The aims of the EU are made explicit, in an attempt to counter the accusation that the institutions are self-serving:
Relating to the scope of the Union
The EU has six exclusive competences. These are policy areas in which member states have agreed that they should act exclusively through the EU and not legislate at a national level at all. The list remains unchanged from the previous treaties:
There are a number of shared competences. These are areas in which member states agree to act individually only where they have not already acted through the EU, or where the EU has ceased to act (though there are a few areas where member states may act both nationally and through the EU if they wish). The list of areas is mostly unchanged from previous treaties, with three new competences added (see below).
The Constitution's flexibility clause allows the EU to act in areas not made explicit in the Constitution, but:
This clause has been present in EU law since the original Treaty of Rome, which established the EEC in 1958. It is designed to allow EU countries to develop new areas of co-operation without needing to go through the process of a full treaty revision.
- Common foreign and security policy
The institutional structure of the Union is unchanged from its configuration under the
preceding treaties.
The EU has a flag, an anthem and a motto. These have long been recognised, though never formally in a treaty. The Constitution does not confer any special legal status on these symbols.
This provision is not new in one sense, since the European Community has always had legal personality. But the parallel Community and Union structures are now merged and simplified as a single entity, so a new recognition of the Union's legal personality is required.
The EU has conferred upon it as new areas of 'supporting, coordinating or complementary action' the areas of tourism, sport, and administrative co-operation.
Specifically:
This creates a a new so-called Union Minister for Foreign Affairs who is also a Vice President of the Commission. This individual will be responsible for co-ordinating foreign policy across the Union. He or she will also be able to represent the EU abroad in areas where member states agree to speak with one voice.
The unanimous agreement of all member states is still required for decisions on more sensitive issues, such as tax, social security, foreign policy and defence.
Other
Main article: Institutions of the European Union
According to the Constitution, the EU maintains a dialogue with churches and non-confessional organisations.New provisions
Relating to the scope of the EU
The European Union has legal personality under the Constitution. This means that it is able to represent itself as a single body in certain circumstances under international law. Most significantly, it is able to sign treaties as a single body where all its member states agree.
The EU has conferred upon it as new 'shared competences' the areas of territorial cohesion, energy, and space. These are areas where the EU may act alongside its individual member states.
Member states will continue to co-operate in some areas of criminal judicial proceedings where they agree to do so, as at present. Under the Constitution, seven new areas of co-operation are added:
Provision exists for the future creation of a European Public Prosecutor's Office, if all member states agree and if the European Parliament gives its consent.
The Constitution includes a copy of the Charter already agreed to by all EU member states. This is included in the Constitution so that EU institutions themselves are obliged to conform to the same standards of fundamental rights.Relating to simplification and the merging of the "three pillars"
The Constitution makes an effort to simplify jargon and reduce the number of EU legal instruments (ways in which EU countries may act). These are also unified across areas of policy (referred to as pillars of the European Union in previous treaties).Relating to the functionality of institutions
More day-to-day decisions in the Council of Ministers are to be taken by qualified majority voting, requiring a 55% majority of member states representing a 65% majority of citizens. (The 55% is raised to 72% when the Council is acting on its own initiative rather than on a legislative proposal.)
The six-month rotating Presidency of the European Council will switch to a chair chosen by the heads of government, in office for eighteen months and renewable once. The role will be the same as now, i.e. administrative and non-executive.
Note: the European Council, sometimes informally called the European Summit (not to be confused with the Council of the European Union, or the Council of Europe), is a meeting of the heads of state or government of the European Union, and the President of the European Commission . On average four European Councils are held every year.
- President of the Council of Ministers
The exception is the Council's Foreign Affair configuration, which will be chaired by the newly-created Union Minister for Foreign Affairs.
- Smaller Commission
Relating to parliamentary power and transparency
The candidate for President of the European Commission is proposed by the European Council, after consultation with MEPs, and will be elected by the European Parliament. Parliament has the final say.
- Meeting in public
- Parliament as co-legislature
- Budget
- Role of national parliaments
- Popular mandate
Relating to further integration, amendment or withdrawal
There is a tightening of existing rules for ‘enhanced cooperation', where some member states may choose to act together more closely and others not. A minimum of two thirds of member states must now participate in any enhanced cooperation, and the agreement of the European Parliament is needed. The option for enhanced cooperation is also widened to all areas of agreed EU policy.
- Treaty revisions
The final say on adopting proposals will continue to rest with the Council, and needs unanimity of the Council.
- Withdrawal clause
Under this clause, when a country notifies the Council of its intent to withdraw, a settlement is agreed in the Council with the consent of Parliament. If negotiations are not agreed within two years, the country leaves anyway.
Controversy
Length and complexity
Critics of the Constitution point out that, compared to many existing national constitutions (e.g. the 4,600-word US Constitution), the European Constitution is very long, at around 265 pages and over 60,000 words in its English text.
A common response to this is to point out that the document nevertheless remains considerably shorter and less complex than the existing set of treaties that it consolidates. Defenders also point out that it must logically be longer, since it is not an all-embracing, general constitution, but rather a document that precisely delineates the limited areas where the European Union has competence to act over and above the competences of member states.
Qualified majority voting
For about 26 decision-making areas, the requirement for unanimity in the Council has been changed to a requirement for a qualified majority of both member states and citizens. Opponents of the Constitution argue that this demonstrates a palpable loss of sovereignty and decision-making power for individual countries. Defenders argue that it was necessary to prevent decision-making from grinding to a halt in the enlarged Union.
Defenders of the constitution point out that it has always been the case that EU law supersedes national law, and that it has long been accepted in European nations that international law which a nation subscribed to overrides national law. The proposed Constitution does not change this arrangement for either existing or future EU law. However, the question of whether the arrangement is considered acceptable in the first place is still an issue for debate.
With the widening of Qualified Majority Voting also envisaged in the constitution, however, the issue of the primacy of EU law becomes more sensitive. This is because there is an increase in the number of areas in which laws can be passed by majority vote. It is therefore possible for an individual country to vote against a proposal (unsuccessfully) and subsequently find its national legislature to be bound by it.
Defenders of the constitution have pointed out that none of these elements are new, and that many of them are also used by other international organisations. They also argue that key principles enshrined in the constitution, such as the principles of conferral and subsidiarity, are designed to reinforce the status of member states as cooperating sovereign nations, not to erode it.
It has likewise been argued that to call the document a 'Constitution' rather than a 'treaty' implies a change in the nature of the EU, from an association of cooperating countries to a single state or something approaching a state. In response, it has been pointed out that many international organisations, including the World Health Organisation, have constitutions, without this implying that they are states. From a legal point of view the European Constitution will still be a treaty between independent states.
Some of the articles, which may seem very democratic at a first glance are said by some to be pointless when read more carefully. For instance, the obligation for the Commission to consider a petition by 1 million citizens only invites such a petition to be considered. It is open to the Commission to decide how to react, including ignoring the petition if they wish.
Defenders of the Constitution point out that the European Parliament does have the power to oblige the Commission to bring forward a legislative proposal which Parliament and Council may then amend as they see fit. It has been argued that this is sufficient to address the potential democratic deficit. It has also been argued that it would not be feasible in practice for the Commission to ignore a mandate from a million citizens, despite the wording in the Constitution.
The creation of an European weapon office may also lead to an increase of the worldwide weapon race, according to some analyses.
The European Central Bank remains independent from any democratic institution, and its only purpose is to fight inflation. This contrasts with other organisations, such as the Federal Reserve, which has a double goal: to fight inflation, and to fight unemployment.
It has been argued that existing national Constitutions, including the Constitution of the United States, do not fix economic policies inside the Constitution itself. It is more common for an elected government to retain the power to decide on economic policy.
Defenders of the Constitution point out that it has always required unanimity to change a treaty, and since there are no new mandatory policies in the Constitution, this is nothing more than a retaining of the status quo.
It should also be mentioned that there is provision for enhanced co-operation among member countries, under which some countries can choose to integrate more closely in some areas than others. However, this does not constitute an opt-out from the universally agreed provisions in the Constitution.
Also, for the first time, the Constitution provides an explicit means by which a member state can entirely withdraw from the EU without violating treaty obligations.
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Critics sometimes claim that it is unacceptable for the Constitution to enshrine European laws as taking precedence over national laws, and argue that this is an erosion of national sovereignty.Trappings of statehood
It has been argued that the constitution introduces a number of elements that are traditionally the province of sovereign states: flag, motto, anthem. This is something many eurosceptics see as a shift towards the future creation of a single European state, and the corresponding loss of national identity. Lack of democracy
It has been argued that the proposed treaty still grants a lot of power to the European Commission, which is not directly elected. The European Parliament, seen by some as the true voice of the people as the only directly elected EU institution, still cannot propose new laws, for example.Militarism
The proposed treaty (article I-41-3) states: "Member States shall undertake progressively to improve their military capabilities.". It has been argued that such a sentence, put in a Constitution, will prevent all partial disarming of any of the states and require them to increase military capabilities without taking into account the geopolitical situation, or the will of the people.Contested economic policies
Some left-wing commentators have expressed a fear that the proposed Constitution may force upon European countries a Neo-Liberal economic framework, and may therefore threaten the European social model. The principles of the "free flow of capital" (both inside Europe and with other countries), and of "free and undistorted competition", are stated several times in the text. It has been argued that these principles cover all areas, from healthcare to energy to transports.Unanimity requirement for changes
The Constitution can only be changed with the unanimous agreement of all countries. This requirement of unanimity will effectively prevent further transfer of competences to the Union if a single member state objects. At the same time, it means that unanimity is required to modify or repeal any of the policies currently included in the Constitution. According to what a person feels about the level of integration in the European Union, and the specific policies concerned, either or both of these points can be considered either positive or negative.Reaction
Jeremy Rifkin (as cited in the Utne article listed in the "References" section) praised the treaty as follows.The EU Constitution is something new in human history. Though it is not as eloquent as the French and U.S. constitutions, it is the first governing document of its kind to expand the human franchise to the level of global consciousness. The language throughout the draft constitution speaks of universalism, making it clear that its focus is not a people, or a territory, or a nation, but rather the human race and the planet we inhabit.
External links
References
See Also