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Treaty establishing a Constitution for Europe

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Family photo of the heads of State and government and the ministries of Foreign Affairs after the signing of the Constitutional Treaty.
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The Constitutional Treaty as signed in Rome, on 29 October 2004.

The Treaty establishing a constitution for Europe is a proposed constitutional treaty for the European Union. Its main aim is to replace the overlapping set of existing treaties that provides the current constitution for the Union. Despite its name, it only covers the European Union, not Europe in the geographical sense.

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 will be subject to referenda in at least twelve of the 25 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. In the latter case there is ongoing debate as to whether Germany's constitution should be amended to allow a referendum on the European Constitution as well.

So far, nine of the 25 EU member countries have announced their intention to hold a referendum on the subject:

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 October 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.

Lithuania

Lithuania became the first member state to ratify the treaty on 11 November 2004. Its parliament, the Seimas, approved the treaty by 84 votes to four, with three abstentions. Major European political figures were quick to congratulate Lithuania. Former French President Valéry Giscard d'Estaing, who led the European Convention which drafted the constitution, said: "This is a brave and a bold step... Thank you, men and women of Lithuania." A spokesman for the European Commission said: "We congratulate them wholeheartedly for that. It is a very positive development indeed."

Structure of the constitutional treaty

Main article: Structure of the proposed EU Constitution

The Constitution consists of the following parts, with articles numbered from 1 in each part:

  • Preamble
  • Part I (untitled)
  • Part II: Charter of Fundamental Rights
  • Part III: The Policies and Functioning of the Union
  • Part IV: General and Final Provisions
  • Annexes
  • Protocols
  • Declarations

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.

Existing provisions emphasised or newly codified

Relating to principles of functioning

  • The principle of conferral

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).

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.

  • The principle of subsidiarity

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

In all areas, the EU may only act to exactly the extent that is needed to achieve its objectives (the so-called principle of proportionality).

  • Obligations of member states

Member states have constitutional obligations. Since the Constitution has the legal status of a treaty, these obligations have the legal status of treaty obligations. They are:

  • 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.
  • Primacy of Union law

In accordance with the norms of international law among European countries, EU law has primacy over the laws of member states in the areas where member states allow it to legislate. In other words, no member state may pass a national law which is incompatible with an agreement already made at European level.

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.

Relating to the common agenda

  • Mutual values of the Union's member states

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.

  • Aims of the Union

The aims of the EU are made explicit, in an attempt to counter the accusation that the institutions are self-serving:

  • to practise full mutual cooperation;
  • to promote the agreed values of the Union;
  • to advance the Union's agreed objectives;
  • to serve the interests of the EU's three elements: citizens, member states, and Union;
  • to ensure the consistency, effectiveness and continuity of EU policies and actions.

Relating to the scope of the Union

  • Competences

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:

  • customs union;
  • those competition rules that govern the internal market;
  • eurozone monetary policy;
  • conservation of marine biological resources (the Common Fisheries Policy);
  • common commercial policy;
  • the conclusion of certain limited international agreements.

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).

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).

  • Flexibility clause

The Constitution's flexibility clause allows the EU to act in areas not made explicit in the Constitution, but:

  • only if all member states agree;
  • only with the consent of the European Parliament; and
  • only where this is necessary to achieve an agreed objective under the Constitution.

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 EU is charged with defining and implementing a common foreign and security policy in due time. The wording of this article is taken directly from the existing Treaty on European Union, with no new provisions.

Other

  • Institutions

Main article: Institutions of the European Union

The institutional structure of the Union is unchanged from its configuration under the preceding treaties.

  • Symbols of the Union

Main article: European symbols

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.

  • Dialogues with civic society

According to the Constitution, the EU maintains a dialogue with churches and non-confessional organisations.

New provisions

Relating to the scope of the EU

  • Legal personality

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.

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.

  • New competences

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.

The EU has conferred upon it as new areas of 'supporting, coordinating or complementary action' the areas of tourism, sport, and administrative co-operation.

  • Criminal justice proceedings

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:

  • terrorism;
  • trafficking in persons;
  • offences against children;
  • drugs trafficking;
  • arms trafficking;
  • corruption;
  • fraud.
  • Solidarity clause

The new solidarity clause specifies that any member state which falls victim to a terrorist attack or other disaster will receive assistance from other member states, if it requests it. This was already the case in practice, but it is now officially codified. The specific arrangements will be decided by the Council of Ministers.

  • European Public Prosecutor

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.

  • Charter of Fundamental Rights of the European Union

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"

  • Simplified jargon and legal instruments

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).

Specifically:

  • 'European Regulations' (of the Community pillar) and 'Decisions' (of the Police and Judicial Co-operation in Criminal Matters pillar) both become referred to as European laws.
  • 'European Directives' (of the Community pillar) and 'Framework Decisions' (of the PJC pillar) both become referred to as 'European framework laws'.
  • 'Conventions' (of the PJC pillar) are done away with, replaced in every case by either European laws or European framework laws.
  • 'Joint actions' and 'Common positions' (of what is now the Common Foreign and Security Policy Pillar) are both replaced by 'decisions'.
  • Merging of High Representative and external relations Commissioner

In the new Constitution, the present role of High Representative for the Common Foreign and Security Policy is amalgamated with the role of the Commissioner for External Relations.

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.

Relating to the functionality of institutions

  • Qualified majority voting

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 unanimous agreement of all member states is still required for decisions on more sensitive issues, such as tax, social security, foreign policy and defence.

  • President of the European Council

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 six-month rotating Presidency of the Council of Ministers, which currently coincides with the Presidency of the European Council, will be changed to an eighteen-month rotating Presidency shared by a trio of member countries, in an attempt to provide more continuity.

The exception is the Council's Foreign Affair configuration, which will be chaired by the newly-created Union Minister for Foreign Affairs.

  • Smaller Commission

The Commission is reduced in size from 2014. There will be fewer Commissioners, with member states taking it in turn to nominate Commissioners two times out of three.

Relating to parliamentary power and transparency

  • President of the Commission

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

The Council of Ministers will now meet in public when debating new laws.

  • Parliament as co-legislature

The European Parliament acquires equal legislative power with the Council in virtually all areas of policy (previously, it had this power in most cases, but not all).

  • Budget

The final say over the EU's annual budget is given to the European Parliament. Agricultural spending is no longer ring-fenced, and is brought under the Parliament's control.

  • Role of national parliaments

Member states' national parliaments are given a new role in scrutinising proposed EU laws, and are entitled to object if they feel a proposal oversteps the boundary of the Union's agreed areas of responsibility.

  • Popular mandate

The Commission is invited to consider any proposal "on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Constitution" which has the support of one million citizens. The mechanism by which this will be put into practice has yet to be agreed. (See article I-46-4 for details.)

Relating to further integration, amendment or withdrawal

  • Enhanced co-operation

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

Previously, alteration of treaties was decided by unanimous agreement of the European Council behind closed doors. Any amendments to the Constitutional treaty, however, will involve the convening of a new Convention, similar to that chaired by Valéry Giscard d'Estaing in drafting the Constitution itself. This process may be bypassed if the European Parliament agrees.

The final say on adopting proposals will continue to rest with the Council, and needs unanimity of the Council.

  • Withdrawal clause

A new clause allows for the withdrawal of any member state without renegotiation of the Constitution, which was not previously possible without violating treaty obligations.

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.

EU law and national law

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.

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.

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.

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.

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.

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.

Inclusion of contested policies

Militarism

The proposed treaty (article I-41-3) states: "Member States shall undertake progressively to improve their military capabilities". It has been argued that this 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. The creation of an European weapon office may also lead to an increase of the worldwide weapon race, according to some analyses.

Others point out that the same article limits any EU joint military action to "peace-keeping, conflict prevention and strengthening international security" based on UN principles. It is only under this framework that countries agree to develop their military capabilities.

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 which will threaten the European social model. The principles of the "free movement of capital" (both inside the EU and with third countries), and of "free and undistorted competition", are stated several times, and it has been argued that they cover all areas, from healthcare to energy to transports.

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 also has the goal to fight unemployment.

It has also been argued that existing national Constitutions do not fix economic policies inside the Constitution itself: It is more common for elected governments to retain the power to decide on economic policy.

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.

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.

Reaction

"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." Jeremy Rifkin in Utne, 24 October 2004

“I am totally opposed to the European Constitution. Countries have constitutions and I do not want to be part of a country called Europe." Michael Howard (Leader of the UK Conservative Party), 01 June 2004

“[The Constitution] will seal the victory of the nation-states over the European 'super-state'". Le Figaro (France), 21 April 2004

"The EU Constitution safeguards national sovereignty of Member States." Guilherme Oliveira Martins (Portugese Socialist MP), 19 June 2004

"this is a Constitution … which consecrates the EU as a union of sovereign states, which continues not to opt for federal institutions." El Mundo (Spain), 20 June 2004

"this Constitution does not reflect the thoughts, hopes and aspirations of ordinary people. It does nothing for jobs or economic growth and widens further still the democratic deficit. The gap between the governors and the governed is now a gaping chasm." Nigel Farage (Leader of UK Independence Party), 24 September 2003

"a consensus [that] has been established … around the British concept of a market system stretching from the Atlantic to the Urals, accompanied by intergovernmental co-operation in areas where collective action is more efficient, and a security policy integrated with that of the USA." Nicolas Baverez (French commentator and author), 2003

"There is no place for concern that it would change the structure and operation of the EU in a radical way. 90% of the constitution agreement is already in the current agreements. The innovations in the draft will clarify the structure of the EU and make its activity more efficient, as well as strengthen citizens’ rights." Egils Levits (Latvian ECJ Judge), Quoted in “Latvijas avize”, 21 June 2004

"Europe is and will be a Union of States." Jose Louis Zapatero (Prime Minister of Spain), Speech to Spanish Cortes, 15 June 2004

"The British won the day." Corriere della Sera (Italy), 19 Jun 2004

"An extraordinary disappointment." Elmar Brok MEP (German federalist), Economist, 31 May 2003

"I want to kill myself." Giuliano Amato (Italian federalist),Telegraph, 24 May 2003

References

  1. Consolidated Treaty establishing a constitution for Europe [2]
  2. "The European Dream: The New Europe has its own Cultural Vision—and it may be Better Than Ours", an article on p.78 of the September, 2004 – October, 2004 issue of Utne, copied from the book The European Dream: How Europe's Vision of the Future Is Quietly Eclipsing the American Dream by Jeremy Rifkin

See Also

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