Treaty establishing a Constitution for Europe

The Treaty establishing a Constitution for Europe, commonly referred to as the European Constitution, is an international treaty signed in 2004 and currently awaiting ratification, intended to create a constitution for the European Union. Its main aims are to replace the overlapping set of existing treaties that comprise the Union's current constitution, and to streamline decision-making in what is now a 25-member organisation. Despite its name, it only covers the European Union, not the whole of Europe in the geographical sense.

The Constitution was drafted by the European Convention, convened for the purpose as a result of the Laeken Declaration of 2001. The Convention published its draft in July 2003, and ensuing negotiations between member states, which were often fraught, ended with agreement on a final document the following June. The constitutional treaty was signed on October 29, 2004, and now awaits ratification by all member states. The treaty is scheduled to enter into force on November 1, 2006 provided that it is ratified by all 25 member states of the Union. Critically, this will be subject to a referendum in ten countries.

History and ratification

Main article: History of the European Constitution

The Constitution is based on the EU's two primary existing treaties, the Treaty of Rome of 1957 and the Maastricht treaty of 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 Convention was established to produce a draft of the Constitution, which was eventually published in July 2003. After protracted negotiations during which disputes arose over the proposed framework for qualified majority voting, the final text of the proposed Constitution was agreed upon in June 2004.

The constitutional treaty was signed in a ceremony at Rome on October 29, 2004. Before it enters into force, however, it must also be ratified by each member state. This process is likely to take around two years to complete. Ratification takes different forms in each country, depending on its traditions, constitutional arrangements, and political processes. Lithuania, Hungary, Slovenia, Italy, Greece and Slovakia have already completed parliamentary ratification of the treaty. In addition the European Parliament has also approved the treaty by a huge majority (in a symbolic rather than a binding vote). Ten of the 25 member states have announced their intention to hold a referendum on the subject, one of which has now taken place and led to Spain ratifying the constitution. In some cases, the result will be legally binding; in others it will be consultative (as is the case in The Netherlands):

Existing, newly codified and strengthened provisions

Functioning of the Union

• 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 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 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 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 endanger 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.

Common agenda

• Mutual values of the Union's member states

As stated in Articles I-1 and I-2, the Union is open to all European States which respect the following common values:

• human dignity
• freedom
• democracy
• equality
• the rule of law
• respect for human rights
• minority rights

Member states also declare that the following principles prevail in their society:

• pluralism
• non-discrimination
• tolerance
• justice
• solidarity
• equality of the sexes

These provisions are not new, but some of them are codified for the first time.

• Aims of the Union

The aims of the EU are made explicit (Article I-3):

• promotion of peace, its values and the well-being of its people
• maintenance of freedom, security and justice without internal frontiers, and an internal market where competition is free and undistorted
• sustainable development based on balanced economic growth and price stability, a highly competitive social market economy
• social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child
• economic, social and territorial cohesion, and solidarity among member states
• respect for linguistic and cultural diversity

In its relations with the wider world the Union's objectives are:

• to uphold and promote its values and interests
• to contribute to peace, security, the sustainable development of the Earth
• solidarity and mutual respect among people
• free and fair trade
• eradication of poverty and the protection of human rights, in particular the rights of the child
• strict observance and development of international law, including respect for the principles of the United Nations Charter.

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.

Miscellaneous

• Institutions

Main article: Institutions of the European Union

The institutional structure of the Union is unchanged. The Council of the European Union is now formally renamed as the 'Council of Ministers', which had already been its informal title. The "General Affairs Council" is formally split from the "Foreign Affairs Council". (previously the "General Affairs and External Relations" configuration was technically a single formation, but since June 2002, they already held separate meetings).

• 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

Scope of the Union

• 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 type of assistance to be offered is not specified. Instead, the arrangements will be decided by the Council of Ministers should the situation arise.

• 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.

Simplification

• 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 new 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.

Functioning of the 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 per cent majority of member states representing a 65 per cent majority of citizens. (The 55 per cent is raised to 72 per cent 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 2½ years and renewable once. The role will be the same as now, i.e. administrative and non-executive, but rather than the Presidency being held by a member state as at present, it will be held by an individual elected by and accountable to the Council.

• 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 Affairs 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.

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.

• Parliament as co-legislature

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

• Meeting in public

The Council of Ministers will be required to meet in public when debating new laws. Currently, it meets in public for texts covered under the Codecision procedure since the decision of the European Council of Sevilla.

• 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.)

Further integration, amendment and 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. However, small revisions removing national vetoes can be made by unanimous agreement of the European Council through the Passerelle Clause (Article IV-444).

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 or violation of treaty commitments. 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.

While these provisions are technically new, the process described is a formalisation of the process which Greenland used to leave the EC in 1985.

Points of contention

Length and complexity

Critics of the Constitution point out that, compared to many existing national constitutions (such as the 4,600-word United States Constitution), the European Constitution is very long, at around 324 pages and over 60,000 words in its English text.

Proponents respond by stating 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

Qualified majority voting is extended to an additional 26 decision-making areas that had previously required unanimity. Opponents of the Constitution argue that this demonstrates a palpable loss of sovereignty and decision-making power for individual countries. Defenders argue that these provisions only apply in the areas where Member States have agreed it should and not otherwise; that it was necessary to prevent decision-making from grinding to a halt in the enlarged Union. (In the past, there have been cases when it appeared that "veto trading" was being used tactically rather than for issues of principle.) Further, the "qualified majority voting" mechanism is structured such that a blocking minority is not difficult to achieve for matters of substance.

Union 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 see as a shift towards the future creation of a single European state, and the corresponding loss of national identity. Many eurosceptics oppose the constitution for this reason.

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 constitution still grants a lot of power to the European Commission, which is appointed by the member states, 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 intended to enhance democracy 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 it wishes. It is also worth mentioning that European citizens are already entitled to submit a petition to the European Parliament (see [1]).

Defenders of the Constitution claim 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 and it has been argued that this would be sufficient to avoid what might otherwise be regarded as a democratic deficit.

The respective Article III-332[2] however contains:

“The European Parliament may, by a majority of its component Members, request the Commission to submit any appropriate proposal on matters on which it considers that a Union act is required for the purpose of implementing the Constitution. “If the Commission does not submit a proposal, it shall inform the European Parliament of the reasons.”

This means the Parliament cannot oblige the Commisison to issue a proposal, is also confirmed in the Article on 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. However, the Commission is not an elected body and the Commissioners have no electionate which could pressure the the Commissioners. Most Commissioners also do not apply for a 2nd term.

Further, it has also been argued that the Commission has no power to enact laws; like a Civil Service, it may only draft proposals into a legal form for others to ratify or reject.

However, the Commission can threaten the Parliament to take back it's proposal (Frits Bolkestein did this for example on 23 September 2003 in the debate on the Directive on the patentability of computer-implemented inventions) and can require the Council of Ministers to vote unanimously by not approving the amendments from Parliament under codecision. This means it excerpt pressure, also inside the Council. The responsible Commissioners are also present at all Councils and is invited to make changes by the Council Presidency if there is no sufficient majority.

See also democratic deficit.

Militarism

Article I-41(3) states that: "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 arms 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.

Economic policy

Some 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 transport.

The European Central Bank remains independent of 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 of fighting 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.

Human rights

Some opponents argue that certain important rights, such as that of habeas corpus, are not provided for or recognised by the Constitution. The Charter of Fundamental Rights of the Union forms Part II of the Constitution, and habeas corpus is not explicity mentioned among its provisions. However, Article I-9(2) of the Constitution says: "The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms", Article 5 of which includes the following:

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

Consequently, while the Constitution makes no explicit mention of habeas corpus, the Union must still uphold it because it is constitutionally bound to accede to the European Convention on Human Rights. Advocates of the Constitution often allege that in cases like this, eurosceptics seek to mislead the public by encouraging them to think that if the Constitution is adopted, habeas corpus will be abolished or might not be guaranteed in the future.

Timeline

Development of the Treaties into EU Constitution

External links and references

• A Constitution for Europe — EU's official Constitution site, including full text in the official languages.
• Reader-friendly edition of the EU Constitution — Highlights and commentary (PDFs).
• Good overview of Constitution from Chatham House
• History of the Constitution — Academic site linking to many documents concerning the preparation, negotiation and ratification stages of the Constitution and previous treaties.
• Constitution search engine — On-line search engine for the constitution text.
• EU Constitution at Law-Ref – fully indexed and crosslinked with other documents

• News coverage:
  • BBC: Questions and answers about the Constitution
  • BBC: Quick guide to the Constitution
  • BBC: Progress of ratification

• Campaigning and advocacy sites:
  • European Yes Campaign
  • European No Campaign
  • Centre for a Social Europe
  • Pro Euro Site – Graphics

• Discussion sites:
  • talkeuro – an open annotatable European Constitution in English and French