Tuesday, 26 April 2005

What the treaty establishing a constitution for europe would do – 10 smaller things and one Big Thing

“The EU Constitution is the birth certificate of the United States of Europe.”
– German Minister for Europe Hans Martin Bury, Die Welt, 25-2-2005

“The Constitution is the capstone of a European Federal State.”
- Guy Verhofstadt, Belgian Prime Minister, Financial Times, 21-6-2004

“It wasn’t worth creating a negative commotion with the British. I rewrote my text with the word federal replaced by communautaire, which means exactly the same thing.”
- Valery Giscard d’Estaing, Wall Street Journal Europe, 7-7-2003

The “Treaty Establishing a Constitution for Europe” consists of 448 Articles, 36 Protocols and 48 attached political Declarations. The most important thing about it is that it is a Constitution as well as a Treaty. The proposed Constitution would do many things,including:

1. ABOLISHING 69 FURTHER NATIONAL VETOES: It would abolish some 69 further national vetoes, contained in 63 Treaty Articles, deprive national Parliaments and citizens of power in relation to them, and transfer those powers to the EU Commission, Council of Ministers, Court and Parliament. Over half of these would be new areas for EU law-making. The rest would replace unanimity by majority voting for exercising existing EU powers. As a result National Parliaments and the citizens that elect them would have to obey new EU laws or decisions covering civil and criminal law, justice and policing; border controls, asylum and immigration; implementing decisions in foreign policy; diplomatic and consular protection; trade in services; public health; energy; tourism; sport; culture; intellectual property etc. The Constitution does not propose to repatriate a single power from the EU to its Member States, although that was suggested as a possibility by the Laeken Declaration which established the Convention on the Future of Europe that drafted the Constitution.

2. GIVING THE EU THE POWER TO DECIDE OUR HUMAN AND CIVIL RIGHTS: It would give the 25 judges of the EU Court the power to decide our personal human and civil rights in all areas covered by EU law. This would mean a new tier of lawyers and judges between citizens and those with final power to decide our rights. The “Explanations” which the Constitution lays down as a guide for interpreting the Fundamental Rights set out in its Part II provide for the death-penalty to be imposed “in time of war or during the immediate threat of war”, presumably for supranational EU-conducted operations, for all Member States have abolished the death penalty at national level.

3. GIVING MORE POWER TO THE BIG STATES IN MAKING EU LAWS: It would introduce a mainly population-based system for making EU laws, which means there would be more of them, and it would increase the influence of big States like Germany, the largest EU country, as well as populous countries like Romania, Turkey etc.in due course, in deciding the laws that we would have to obey as citizens of the proposed new EU.

4. CREATING AN EU PRESIDENT, FOREIGN MINISTER AND PUBLIC PROSECUTOR: It would create a permanent EU Political President by abolishing the present six-monthly rotating EU presidency, as well as an EU Foreign Minister and diplomatic corps, and an EU Public Prosecutor’s Office.

5. NO NATIONAL COMMISSIONER FOR EVERY 5 YEARS OUT OF 15: It would reduce the number of EU Commissioners by one-third so that individual Member States would go unrepresented for five years out of every 15 on the body that proposes all EU laws. 6. AMENDING THE CONSTITUTION WITHOUT FURTHER TREATIES: It would enable EU law-making in most areas to be shifted from unanimity to majority voting by consensus amongst the 25 Presidents and Prime Ministers, without need of further treaties and referendums;

7. COMPLYING WITH A SUPERIOR EU FOREIGN POLICY: It would make compliance with a common EU foreign policy constitutionally mandatory, would replace most of the treaty-making powers of the EU’s Member States and pass these to the new Union based on its own Constitution, and would significantly militarize this new Union.

8. A CONSTITUTIONAL REQUIREMENT TO ABOLISH NATIONAL CURRENCIES: It would make the adoption of the euro-currency constitutionally mandatory for all EU States by providing that “The currency of the Union shall be the euro”(Art.I-8), even though 13 of the 25 EU Members still retain their national currencies, and by including Protocol 12 on the Euro-Group, which is an integral part of the proposed Treaty-cum-Constitution, agreed to by all 25 EU Member States, which lays down special arrangements for the eurozone countries “pending the euro becoming the currency of all Member States of the Union”.

9. ESTABLISHING AN IDEOLOGICAL CONSTITUTION: It would erect an extreme ideological neo-liberalism into mandatory constitutional principles for 450 million people. A proper Constitution by contrast lays down rules for State decision-making, but leaves the ideological content of public policy to political debate between parties of the Centre, Right and Left. Under the heading “Economic Policy”, Art.III-178 of the EU Constitution provides: “The Member States and the Union shall act in accordance with the principle of an open market economy with free competition, favouring an efficient allocation of resources.” The Constitution would make mandatory for the indefinite future the deflationary and monetarist economic policy of the European Central Bank, which has contributed to the present high unemployment levels of the core EU economies, especially France and Germany(Art.III-185). It would make”liberalisation” of services constitutionally mandatory(Art.III-147) and would permit the EU to decide the boundary between public and private services, which could imperil publicly-provided health, education, transport and cultural services in the Member States(Art.III-122). These are issues for public debate and contention, not for a Constitution.

10. EURATOM TO CONTINUE INDEFINITELY: It would continue the European Atomic Energy Community in being indefinitely. The obligations of the Euratom Treaty which favours nuclear power would be made constitutionally mandatory on all 25 EU Member States.

BUT THE MOST IMPORTANT THING THE PROPOSED CONSTITUTION WOULD DO would be legally to abolish the European Union and European Community that we are currently members of and establish in their place quite a new European Union in the constitutional form of a supranational EU Federation – while still using the same “EU” name and transferring existing European laws and institutions into the new Union.

Giving this new EU the constitutional form of a State would, by corollary, reduce the present EU Member States to the constitutional status of provincial or regional states within a superior Federal EU. This new EU would not yet have all the powers of a fully-fledged Federation. Historically it takes time for these to develop. It could not yet impose taxes or force its members to go to war against their will. But apart from that, a post-Constitution Union would possess all the main powers and features of a supranational Federation, and the Constitution’s advocates are confident of obtaining these two remaining powers in time.

THE FIVE STEPS THAT WOULD MAKE US REAL CITIZENS OF A NEW EU STATE: The “Treaty Establishing a Constitution for Europe” would give a new EU the constitutional form of a supranational European Federation and would make us real citizens of that State for the first time in five logical legal steps:-

STEP 1 would repeal the existing EU and EC treaties and thereby abolish the existing European Union and European Community. Art.IV-437 provides: “This Treaty establishing a Constitution for Europe shall repeal the treaty establishing the European Community, the Treaty on European Union and Š the acts and treaties which have supplemented and amended them.”

STEP 2 would establish in place of the existing EU and EC what would be constitutionally, legally and politically quite a new European Union, based like any State upon its own Constitution. Art.I-1 provides: “Reflecting the will of the citizens and States of
Europe to build a common future, this Constitution establishes the European Union.” Clearly this would be a different Union from the present one. Simultaneously Art.IV-438 of the Constitution would transfer the existing Community laws and institutions into the new EU.

STEP 3 would assert the primacy of the EU Constitution and laws made under it over the national Constitutions and laws of its Member States. Art.I-6 provides: “The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States.” In addition, the Constitution would give the new Union a coordinating federal-style power and authority over all the policies by which the Member States aim to achieve the objectives they have in common, which are set out in Art.I-3 and are about as wide and all-encompassing as could be. Art.I-1 provides: “The Union shall coordinate the policies by which the Member States aim to achieve these objectives (i.e. the objectives they have in common)and shall exercise on a Community basis the competences they confer on it.” Convention Chairman V.Giscard d’Estaing has explained what exercising EU powers “on a Community basis” means: “It wasn’t worth creating a negative commotion with the British. I rewrote my text with the word federal replaced by communautaire(i.e.”on a Community basis”) which means exactly the same thing.”

STEP 4 would give this new Union legal personality, which the present EU does not have, so that it might conduct itself as a State in the international community of States, sign treaties with other States, have a President, Foreign Minister, Public Prosecutor etc., as well as its own currency and State symbols, flag, anthem and annual public holiday, just like other States. Art.I-7 provides: “The Union shall have legal personality.” The EU’s State symbols are given a proper legal basis for the first time by Art.I-8 of the Constitution.

STEP 5 would then for the first time make us real citizens of this new EU Federation, established by the previous four steps, which would become our new legal sovereign and ruler, and to which we would owe the prime duty of citizenship, namely to obey its laws and give it our full allegiance. Art.I-10 provides: “Every national of a Member State shall be a citizen of the Union Š Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Constitution.” This is real citizenship, not an honorary or “pretend” EU citizenship as at present, for one can only be a citizen of a State. The pre-Constitution EU does not have real citizens, for the present EU does not have the constitutional form of Statehood. It does not even have its own legal personality. The post-Constitution EU however would have both. The pretence that we are already EU citizens in some vague honorary sense serves to deceive people into thinking that the proposed Treaty-cum-Constitution would make no real change to their legal-political status, whereas it would fundamentally change it.

The establishment of a supranational European Federation may be judged a good or a bad thing, but it would be ludicrous if the educated, politically sophisticated peoples of France, the Netherlands, Ireland etc. were to consent to turn their countries into provinces or regions of such an entity, and themselves into real citizens of it – not just honorary or “pretend” citizens, as with the present EU – without their realising that this is what they are being asked to do!

Unfortunately, the political leaders of the 25 EU Governments take a wholly uncritical view of the proposed EU Constitution, because the more national powers are transferred to Brussels, THE MORE POWER ACCRUES TO THEMSELVES PERSONALLY as they make supranational laws on the 25-member EU Council of Ministers for 450 million people – with 150 million more expected to join in due course. Fundamentally, the EU is run by a small number of top politicians and bureaucrats. The more powers are transferred to Brussels, the more power these people obtain as individuals. However citizens lose thereby their power to decide their own laws in their elected National Parliaments. They lose their right to choose their own law-makers and rulers. They lose their right to political self-determination, and their national democracy and independence. There is no European people or “demos” that could confer democratic legitimacy and authority on such a new EU entity. Europe’s many peoples and nations wish to continue to be the prime decider of their own laws and rulers. This is why this proposed EU Constitution is fundamentally misguided, and why if it should come into force it could not possibly last. The sensible course is therefore to reject it now.


There are some positive things in the EU Constitution, although their importance is much exaggerated by its advocates. One positive change proposed is that the Council of Ministers should meet in public when deliberating and voting on draft EU laws, although this would be likely to be a formality for the TV cameras. The negotiating and bargaining leading up to those laws, the activity of the 15,000 Brussels corporate lobbyists that seek to influence them, would all still be in private(Art.I-24.6).

A second change is that the Constitution would require National Parliaments to be formally notified of new laws the Commission proposes. If one-third of the 25 Parliaments thought these laws went too far and violated the so-called principle of subsidiarity, they could object. The Commission would then have to review its proposal, but could still decide to go ahead with it (Protocol 2 on Subsidiarity). Supporters of the Constitution claim that this is a significant new power for National Parliaments. Yet the provision is not new, for the Parliaments can object already. It is not a power, as they can object all they like and the Commission can go on ignoring them. What National Parliaments get in this provision of the Constitution is a new right to be ignored. A proposal in the drafting Convention that if two-thirds of national Parliaments objected, the proposal would have to be abandoned altogether, was dropped.

A third change would be that one million EU citizens could petition the Commission to propose a new EU law to the Council of Ministers in furtherance of the Constitution, but neither the Commission nor Council need accede to any such petition(Art.I-47.4).

A fourth change is the provision that a Member State could withdraw from the new Union. Such a provision has featured in other Federal Constitutions. For example it featured in Josef Stalin’s 1936 Constitution for the USSR. The procedure proposed in the EU Constitution would tend in practice to discourage withdrawals(Art.I-60).

Nevertheless these are positive proposals, but they could all be introduced without setting up a new EU in the constitutional form of a European Federation, as described above, abolishing a further 69 national vetoes, giving the EU Court a wide-ranging competence over our basic human and civil rights, and creating a new, more centralised, undemocratic and militarized European Union than the EU that currently exists.


If the proposed Constitution is rejected, the present EU will continue on the basis of the Treaty of Nice. That Treaty was “sold” to citizens across Europe as being the EU enlargement treaty; whereas now the Constitution is being sold again as necessary for the “efficient” running of the enlarged EU. The voting system agreed in Nice was drawn up with the enlarged EU of 25 or more States in mind and is closer to the notion of the Member States as equal “partners” than the population-based scheme in the Constitution.

The Convention on the Future of Europe which drafted the Constitution failed to do the job it was mandated to do by the Laeken Declaration. Before it came together there was absolutely no discussion in any of Europe’s democratically elected National Parliaments on the principle of whether the EU should
have a Constitution at all, on whether deeper EU integration was desirable, or on what kind of future relations the peoples and Parliaments of Europe wanted with the EU or between their States.

By rejecting the EU Constitution citizens can force a proper debate on the kind of Europe they really want. They would certainly prefer a more democratic and less centralised EU, with the restoration of significant powers from Brussels to the Member States, as was mooted in the Laeken Declaration that established the Convention. When National Parliaments have first discussed the kind of Europe their peoples want, a new Convention on the Future of Europe might be called, put on a more democratic basis than Giscard d’Estaing’s Convention and told to make proposals for a decentralised EU of that kind in interaction with National Parliaments and citizens, but not to give us an EU State Constitution,.

Assuredly that would be a Europe with democratic National Parliaments elected by Europe’s own citizens in the lead, and not the small but powerful political and bureaucratic elites that are currently campaigning at both national and supranational levels to push through this Constitution for an EU Federation.

By the National Platform EU Research and Information Centre
24 Crawford Avenue
Dublin 9
Tel.: 00-353-1-8305792