|Friday, 13 May 2005||
“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 most important thing the “Treaty Establishing a Constitution for Europe” would do would be to replace the present EU with a new Union in the constitutional form of a supranational Federal State. It would make us real citizens of this new EU for the first time, and no longer just notional or honorary EU citizens as now. We would owe this EU Federation the prime duty of citizenship, namely to obey its laws and to give it our loyalty and allegiance.
The new Union would be a weak State and immature. It would not yet have all the features of a fully developed Federation – most obviously taxing powers and the capacity to force its constituent states to go to war aganst their will. But historically all the classical Federations have developed in such gradualist fashion.
One can only be a citizen of a State and the proposed EU Constitution would turn 450 million Europeans into citizens of a new EU State by five logical legal steps:
1. ABOLISHING THE EXISTING EU AND EC: Art.IV-437 would repeal all the existing treaties and thereby abolish the present EU and EC: “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 or amended them …”
2. CREATING A NEW EU BASED ON ITS OWN STATE CONSTITUTION: Art.I-1 would replace the existing EU with what would be constitutionally, legally and politically quite a new Union: “Reflecting the will of the citizens and States of Europe to build a common future, this Constitution establishes the European UnionŠ” Clearly this would be a different EU from the one that currently exists, although it would have the same name. Simultaneously Art.IV-438 would transfer the existing Community laws and institutions from the present EU to the new one.
3. GIVING THE NEW EU FEDERAL STATE POWERS: Art.I-6 would assert the primacy of this new EU’s Constitution and laws over the national Constitutions and laws of its Member States: “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, Art.I-1 of the Constitution would give the new EU a coordinating federal power over all the policies by which the Member States aim to achieve the objectives they have in common. These are set out in Art.I-3. They include promoting the values and interests of the Union and “the well-being of its peoples” and are about as 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 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.”
4. GIVING THE NEW EU LEGAL PERSONALITY LIKE OTHER STATES: This would enable the new EU to 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 would be given a proper legal basis for the first time by Art.I-8 of the Constitution.
5. MAKING US REAL CITIZENS OF THIS NEW EU FEDERATION: Art. I-10 would then make us real citizens for the first time of this new EU Federation, established by the previous four steps, which would become our new legal supreme sovereign and ruler and to which we would owe the civic duties of obedience and loyalty. It 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 a “pretend” EU citizenship as at present. The present EU does not have “real” citizens, for it 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 may serve to mislead people into thinking that the proposed Treaty-cum-Constitution would make no real change to their legal-political status, whereas it would change it fundamentally. Ratification of the Treaty requires national constitutions to be changed to recognise this.
Supporters of the constitutional Treaty contend that in the new EU it would establish, the Member States would still have primacy of authority because it is they that would have conferred powers on the Union, under the “principle of conferral” (Art.I-11). They ignore the fact that this is how the classical Federal States have historically developed: by smaller political units coming together and transferring powers to a superior.
The best example is 19th-century Germany. Others are the USA, Canada and Australia. Where else after all could Brussels obtain its powers if not from its Member States, just as the Federal States whose capitals were 19th century Berlin, or today’s Washington, Ottawa and Canberra did before it? In the latter cases however the political units that came together to form Federations belonged wholly or mainly to one nation or people, with a common language, culture and history, and the social solidarity engendered by that, once their populations had settled.
That gave these States a popular democratic basis and with it a natural legitimacy and authority. This contrasts with the proposed Constitution’s ambition to establish “a new country called Europe” organised in an EU Federation, despite the real Europe consisting of many nations and peoples who desire to make their own laws and elect their own rulers.
Member States would still retain their national constitutions under the proposed EU Constitution, but these would no longer be constitutions of sovereign States but of provincial states, just as Texas, California and New York still retain their own constitutions within the Federal USA.
It is truly a momentous historical development, this attempt to incorporate 25 Nation States of Europe into a supranational Federation. People may regard it as a good thing or a bad thing, as realistic or misguided, but it would surely be ludicrous for the educated, politically sophisticated peoples of our continent to debate and vote on the EU Constitution without being aware that this is the central matter that is at issue.
By Anthony Coughlan
Anthony Coughlan is Senior Lecturer Emeritus in Social Policy at Trinity College, Dublin, Ireland. Please feel free to translate this article or reproduce it in whole or in part for use in the French or Dutch EU Constitution referendum campaigns, or to forward it to others, without any need of reference to or acknowledgement of its author.