A constitution for Europe

Notes from Anthony Coughlan's address to the Desmond Greaves Summer School, Dublin, 27.08.04.

"The Constitution is the capstone of a European Federal State." - Guy Verhofstadt, Belgian prime minister, Financial Times, 21.06.04.

"We know that nine out of 10 people will not have read the Constitution and will vote on the basis of what politicians and journalists say. More than that, if the answer is No, the vote will probably have to be done again, because it absolutely has to be Yes." - Jean-Luc Dehaene, Former Belgian prime minister and vice-president of the EU Convention, Irish Times, 2.06.04.

BACKGROUND TO THE EU CONSTITUTION

THE PROPOSED EU Constitution is the latest and most decisive step in the 50-year-old process of EU integration. This is because it gives legal personality and a separate corporate existence to the European Union for the first time, making it separate from and superior to its particular member states as regards the main areas of government policy.

It thereby makes the EU an international actor on its own account for the first time, separate from any individual member state. It thereby effectively turns the EU into a state or virtual state in which its member states become like provinces or regions, with their national democracy, sovereignty and political independence formally ceded to the superior entity.

The new treaty-cum-constitution revokes all existing EC/EU treaties and reapplies the existing body of law of the European Union, which is vast and invasive, as if it were made under the constitutional primacy of the new constitution established in the new treaty.

The most revealing historical account in English of the history of EC/EU integration is Christopher Booker and Richard North's book, The Great Deception,The Secret History of the European Union (Continuum, London and New York, ISBN 0-8264-71056-6) A revised paperback edition of this book, bringing the story up to the signing of the Constitution, will be published in October.

Why do these writers speak of "deception"? Because the process of building a Europe-wide state has taken place by gradual steps, by stealth as it were, each of which has been represented to people as necessary and desirable for economic growth and jobs; but the political state-building aim has been subscribed to only by the key political, economic and bureaucratic elites 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, protected agriculture, supranational law through the EU Commission, Council of Ministers and EU Court of Justice;
1987: SINGLE EUROPEAN ACT - the internal market, wide use of majority Council voting;
1992: MAASTRICHT TREATY ON EUROPEAN UNION - the euro as a single currency; beginnings of a common foreign and security policy;
1998 AMSTERDAM TREATY - " progressive framing of a common defence policy";
2003: NICE TREATY - "enhanced cooperation"; sub-groups of states may use the EU institutions for closer integration among themselves even if others disagree, opening the way to an unequal EU.

The historical origins of the European integration project are in the 1920s and 1930s, with Monnet and other technocrats, following World War One. Three factors gave it real impetus after World War Two:-

POLITICAL: "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" (Johan Galtung, Norwegian sociologist, The European Community, a Superpower in the Making, 1973.) This is not the whole EC/EU story, but it is an essential part of the story.
The "foundation myth" of the EU is that it is a peace project 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 atom bomb anyway makes such wars impractical. Most wars are civil wars. The end of the Cold War in 1989 brought war back to Europe again after 45 years of armed peace, in Yugoslavia and Chechnya.
ECONOMIC: The aspiration of European-based transnational firms to be free of national state control and interference and to get maximum freedom of operations for their activities. Laissez-faire, a competitive market economy, free movement of goods, services, capital and labour, are erected into constitutional principles in the EU. Constitutions do not normally include such things, which are the stuff of debate between political right and left, but set general rules for working out such differences.
PERSONAL CAREERIST: 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 an oligarchy of 25 persons on the EU Council of Ministers, who make laws for 450 million people, irremoveable as a body; their willingly accepted task vis-Ã -vis their fellow ministers being to deliver their peoples and electorates to supporting further integration. National parliamentarians, who aspire to become ministers, go along with this without much demur.

This means that at national level the state itself is in a sense being turned against its own people, who lose their right to decide their own laws - generating a profound democratic crisis across Europe. Simultaneously at civil service level senior national bureaucrats are substantially freed from public scrutiny as powers are transferred to the Brussels bureaucracy with whom they regularly interact. Democracy, public accountability, wilts or disappears. If the EU constitution is ratified and comes into force, one can be certain the eventual implosion will be all the greater; for people will not resign themselves to losing their democracy indefinitely.

THE EU'S FUNDAMENTAL DEMOCRATIC PROBLEM:

How can the EU be democratic or be democratised when there is no European 'demos' or people, except in the statistical sense, and when the actual peoples of Europe, who constitute its real national communities, wish to make their own laws and self-determine themselves through representatives they elect and who are responsible to them? There is of course a European identity, however incipient, but it is not of the kind to sustain a state, let alone make that state democratic.

NAME AND STRUCTURE OF THE TREATY-CUM-CONSTITUTION

"The Treaty Establishing a Constitution for Europe", to call it by its proper name, repeals all the existing EC/EU treaties in their entirety and establishes what is legally, constitutionally and politically quite a new EU. This new EU is legally separate from and superior to any of its individual member states, just as Germany is distinct from Bavaria, the USA from California and Canada from Ontario. The EU constitution is the culmination to date of the EU integration process, although some Eurocrats are already speaking of a further treaty.

Note the proper name of the treaty. It is not 'The Constitutional Treaty', as the Irish foreign affairs people insist on calling it. Is it that they fear that citizens may not take kindly to the idea of having an EU constitution superimposed on the Irish constitution, so they want to avoid the very use of the word?

One should recall the scandal of the National Forum on Europe secretariat's 'Summary' of what was then the draft constitution, 8000 copies of which were published in December 2002, which calls it a 'constitutional treaty' throughout its 35 pages, and does NOT ONCE MENTION the word 'constitution', although that word occurs 16 times in the first 10 articles alone, and occurs in most of the constitution's other 450 or so Articles.

It is both a treaty and a constitution, a treaty-cum-constitution, but once it is ratified - if it is ratified - one can be certain that one will hear no more about the treaty, but only about the constitution.

Length of the Constitution: some 800 pages, when 'protocols' and 'declarations' are included.

To be signed in Rome on 20 October. Then it must be ratified by all 25 EU member states, at least 10 of which are holding referendums. It cannot come into force if any one of them says No.

The Reader-Friendly Edition of the EU Constitution by Danish MEP Jens-Peter Bonde is the most useful text to work from, because of its invaluable index and glossary. This can be downloaded from the internet at www.euabc.com and www.EUobserver.com This guide will be regularly updated until the Dutch produce the final legal text, with revised numbering, for the October signing ceremony.

THE CONSTITUTION IN FOUR PARTS, WITH A PREAMBLE:

Each part contains a set of articles - thus Article I-8, II-34; III-275; IV-6 etc.

PART 1 sets out the Union's objectives and values, its Institutions, and the respective powers and competences of the EU on the one hand and its member states on the other;

PART 2 is the Charter of Fundamental Rights, which gives the EU Court of Justice power to decide human rights matters in all areas covered by EU law;

PART 3, the largest part, details the policies and functioning of the EU - free movement of goods, services, capital and labour; social policy; agricultural and fisheries policy; economic and monetary policy; foreign and security policy; crime and justice policy; EU financing etc..

PART 4 gives general and final provisions dealing with ratification and amendment of the constitution, admission of new members,and providing for a member state that wishes to leave the EU.

PROTOCOLS: There are over 200 protocols or agreements on specific topics attached to the treaty. These now become part of the constitution and are as legally binding as its main text. They include THE IRISH ABORTION PROTOCOL, which generated controversy at the time of the 1992 Maastricht Treaty. They also include THE EURATOM PROTOCOL The Euratom Treaty, which supports nuclear power, was due to end in 2007 after being in existence 50 years. Now it is given an indefinite lease of life by being made part of an EU Constitution. In addition there are a number of clarifying political declarations, which are not legally binding.

WHERE THE CONSTITUTION COMES FROM: THE CONVENTION ON THE FUTURE OF EUROPE

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 criticised the lack of democracy and transparency in the EU, said that the EU needed to be brought closer to its citizens, referred to the possibility of "restoring tasks to the member states" and the possibility "in the long run" of adopting "a constitutional text."

The Convention, which was dominated by federalist EU-State-builders, rushed headlong into drafting a constitution that gives much further power to the EU, reduces the power of national parliaments and voters further, and contains not a single proposal to repatriate powers back from Brussels to member state parliaments. Over 1000 amendments were proposed, but the Convention chairman, former French president Valery Giscard d'Estaing, ruled out any votes. He decided when there was a consensus and that was that.

Giscard had a personal family interest in space engineering business, so an EU space policy was stuck into the constitution. 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 EU commissioners to two-thirds of the member states from 2014 etc.

The Dutch presidency is now revising the numbering of the final text.

There has been no popular demand for the EU to be founded like a state on the basis of its own constitution. It is Europe's powerful political and bureaucratic elites that are pushing this. The constitution comes from the top down, not the bottom up and if ratified will worsen, not remedy, the EU's democratic crisis.The influential Economist journal has expressed the hope that every country that votes on it will dump it.

TURNING THE EU INTO A STATE OR VIRTUAL STATE:

A treaty is an agreement between equal sovereign states acting as partners. A constitution is the basic law of a state setting out the relations between its subordinate parts. Hitherto the EU as an entity has been subordinate to its member states. Now we have a treaty that establishes a constitution which makes the EU legally and constitutionally superior from now on.

Article I.1: "This Constitution establishes the European Union, on which the Member States confer competences to attain objectives they have in common "

The objectives are set out in Article I-3 and are very wide, including promoting the EU's values - also very wide - establishing an area of security and justice without internal frontiers, sustainable development, economic growth, full employment, price stability, promoting social justice, upholding the EU's interests vis-a-vis the wider world etc.

Article I-6: "The Union shall have legal personality"

This is a fundamentally important article, for the EU has had no legal existence as a corporate entity separate from its member states or any particular member state before. This Article means that henceforth it has.

Article I-5a: "The Constitution, and law adopted by the Union's Institutions in exercising competences conferred on it, shall have primacy over the law of the Member States."

...Including their constitutional law of course. This gives primacy to the EU constitution over national constitutions, including the Irish one, in any case of conflict. This has never never stated in an EU treaty before. The doctrine of EU legal supremacy was developed by the EU Court of Justice over the years in relation to the mainly economic areas of the EU where 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 regarded as "intergovernmental" and outside the domain of supranational EU law. The EU Commission, the non-elected body which proposes all EU laws, had no function in these "intergovernmental" areas.

The most important thing the EU constitution does is to abolish this distinction between the supranational 'Community' areas where EU law was supreme, and the "intergovernmental" areas where it did not apply. It thus brings ALL government policy in principle within the scope of the EU, and for the present the foreign and security policy, and civil and criminal law areas in particular, while giving the EU as a whole a legal personality and corporate existence for the first time.

This makes the EU an international actor in its own right, entitled to sign treaties with third countries that bind its 25 members in the policy areas covered by the constitution. If adopted, the only significant power of statehood that the EU will not yet have got will be that of imposing taxes, and it clearly aspires to that in time.

As legal analyst Martin Howe has pointed out in his study of the draft constitution, it is important to appreciate that the European Court of Justice (the ECJ), which interprets EU treaties and will interpret the EU constitution if it is ratified, does so in relation to their "objects and purposes" - that being the continental legal tradition - not by reference to the strict wording of the actual text interpreted in the present, as in English-speaking countries like Ireland.

The ECJ has in fact laid down in the EEA Agreement Case(1992) that IDENTICALLY WORDED PROVISIONS IN TWO SEPARATE TREATIES CAN BE INTERPRETED TO HAVE VERY DIFFERENT EFFECTS. Clearly, changing the legal basis of the EU from a series of treaties to a self-contained constitution would fundamentally alter the EJC'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 have 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)

This would radically affect the EJC's interpretation and application of treaty provisions as well as of the scope of directives and regulations. Henceforth all EU laws will be interpreted by the EJC as having the force of constitutional law, and all areas of national government will be seen as subordinate in principle to the EU constitution.

STATE SYMBOLS:

A state must have its state symbols, so Article I-6a gives the EU anthem, flag, motto and annual holiday - Europe Day - a treaty-cum-constitutional basis for the first time. Previously these had no legal basis whatever. Also one can only be a citizen of a state, so the constitution makes us legally real EU citizens for the first time, as previously the EU as such did not have legal personality or an independent corporate existence; only the European Community(EC) had that.

The euro is also now constitutionally declared to be the currency of the Union, even the majority of the 25 EU States, 13 in all, retain their national currencies and have not joined the eurozone. Only states have currencies of course,and all currencies in the world belong to states.

SEVEN MAJOR PROVISIONS OF THE CONSTITUTION

EU POWERS AND COMPETENCES:

The ECJ decides on any disputes

"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."(Art.I-12)

Areas of shared competence 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. ... But it is the EU which decides which is which.

Article I-11 states: "The Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence." This Article clearly shows which is superior.

EU LAWS TO BE BASED ON POPULATION SIZE, WHICH ADVANTAGES THE BIG STATES

Apart from the establishment of the EU as a state or virtual state, the most important provision of the constitution in power-political terms is the shift to a population-based voting system on the Council of Ministers. The Nice voting system is abolished and EU laws will in future be made by 55% of the member states, at least 15, as long as they include 65% of the EU's population. A blocking minority must include at least four member states. This population criterion reduces the relative voting weight of middle-rank states such as Ireland. It will make EU laws easier to pass, which means there will be more of them.

AN EU POLITICAL PRESIDENT, AN EU FOREIGN MINISTER, AN EU PUBLIC PROSECUTOR

The European Council of presidents and prime ministers will elect a permanent Council president for up to five years. The six-monthly revolving EU presidency will disappear. The Council president will be the EU's top job, the chief political representative of the EU and in effect its Head of state.
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 as Commission vice-president. Only states have forerign ministers.
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.

AMENDING THE EU CONSTITUTION WITHOUT NEED OF IRISH REFERENDUMS

Article IV-7a 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. If a national parliament objects, this cannot be done. This means that policy areas where states now have a national veto can be put under EU majority voting without constitutional referendums, as would at present be required in Ireland for any such move. Convention chairman Giscard d'Estaing dubbed this escalator article, the "passerelle" or bridge clause, "a central innovation of the Constitution". It is not hard to see why.
In addition there is the "flexibility clause", Article I-17, which states 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 take the appropriate measures". This enables the Council of Ministers to extend their own powers as long as they act unanimously, and it has been widely used over the years. It replaces an existing treaty article( Art.308), which applies only to the common market, and extends its scope to everything in the EU constitution. Such a provision has no place in any democratic constitution.
Article I-35 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. What is "non-essential"?
COMMON EU DEFENCE MOVES FROM "MAY" TO "WILL"
- Article I-40 of the constitution provides that the Nice Treaty's provision that the progressive framing of a common defence policy "MIGHT lead to a common defence, SHOULD the European Council so decide" becomes "WILL lead to a common defence, WHEN the European Council, acting unanimously, so decides."
- "Enhanced cooperation", permitting sub-groups of States to use the EU institutions for special purposes, may be formed in relation to security and defence, which was not permitted by the Nice Treaty. It is to be called "structured cooperation" in this area. This inner group of States will be bound by a mutual defence guarantee, will work closely with NATO and will be served by the EU Foreign Minister.
  THE EU CHARTER OF FUNDAMENTAL RIGHTS - PART 2 OF THE CONSTITUTION - GIVES THE EU COURT OF JUSTICE(ECJ) POWER TO DECIDE OUR RIGHTS
  
  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 legally binding. This gives the EU Court of Justice power to decide our rights in all areas covered by EU law, including member states when implementing EU law, which is now vast. In any disputes as to the respective boundary between EU law and national law, it is the EU court that will decide. This Part 2 of the constitution will in effect add a further tier of judges and lawyers, at EU level, for people seeking redress in human rights matters. Justice delayed can be justice denied.
  
  Neither is there any agreement across Europe on a wide range of human rights matters that could arise in an EU context - for example hard drugs, trial by jury, the presumption of innocence until proved guilty, euthanasia, succession law. Should the EU court have power to lay down a common standard through its case-law for such sensitive areas? The article stating that the death penalty shall not be imposed implicitly permits it in time of war for EU forces and EU-sponsored military missions, according to the interpretative explanation referred to in the constitution, even though most member states have agreed to abolish the death penalty in war-time.
  
  Then it turns out that the catalogue of fundamental rights are not so fundamental after all, for Article II-52 allows all the rights set out in the constitution/charter to be overridden by providing that they may be limited by law "to meet objectives of general interest recognised by the Union." Giving the EU the power to decide our rights is more about power than rights and does not improve the real protection of the fundamental rights of European or Irish citizens one whit.
  
  NEW POWERS TO THE EU:
  
  The EU constitution extends EU powers to make laws that override national law in 25 or so new areas, in addition to the 35 areas agreed in the 2003 Nice Treaty and the 19 areas in the 1998 Amsterdam Treaty. The new areas include judicial cooperation in civil and criminal matters; the definition of offences and criminal sanctions; border controls; asylum and immigration; civil protection; Europol and Eurojust; energy, culture etc.
  
  Article I-11 lays down that "Member States shall coordinate their economic and employment policies within arrangements Å which the Union shall have competence to provide." This implies extensive economic supervision and coordination powers for the Union over its members.
  
  Trade in services: The constitution proposes to make the remit of the EU's Common Commercial Policy significantly wider by laying down as an EU aim "the progressive abolition of restrictions Å on foreign direct investment" and the lowering of "other barriers" than customs ones, for which the EU concludes international treaties by majority vote (Arts.III-216, 217 and 227). This opens the way for the EU to pressurise less developed countries to abolish their national controls on foreign investment as well as on their health, education and cultural services, and encourage the privatisation of the latter.
  
  These and other provisions of the EU constitution incorporate an ultra-liberal economic agenda. They have no part in any proper constitution, which lays down rules whereby different political parties and economic actors can resolve policy differences on such matters. A proper constitution does not give the force of constitutional law to one ideological economic position over another. Such matters are not the proper sphere of constitutions.