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Democrat Broadsheet (Number 15)

Oppose this totally undemocratic EU Constitution

Stop this wholesale attack on all forms of
Democracy and the Nation State

The Convention drafting an EU constitution is fundamentally undemocratic and a facade of democratic legitimacy. The Convention's 105 members consists of two representatives from each national parliament of EU members and the applicant countries plus MEPs and Commissioners.

1. Making an undemocratic Constitution in an undemocratic way

Their project is to foist a Constitution on the EU to enable major new initiatives for closer integration to be taken without consideration of the peoples within the EU or the parliaments they elect.

The peoples of the EU have not sought a Union State Constitution, that decision has come from the top down not from the bottom up. Four-fifths of the 105 member Convention are federalists. They want a more centralised supranational EU as a world power which necessitates a further demise of national democracy, independence and elected parliaments.

Governments have nominated senior politicians to the Convention, including the German and French foreign ministers. This indicates the document will be close to the "Constitutional Treaty" eventually signed at an Intergovernmental Conference (IGC). It is the governments who will take the final decision on this Treaty for signing and ratification in 2004.

There is no provision for consultation with citizens or national parliaments by Convention members. There will be no opportunity for the peoples of Member State or their national parliaments to give their point of view or vote either beforehand on the Convention or incorporation into the next EU Treaty. There will be few subsequent referendums during the ratification process.

The basis of democratic state and liberty of citizens rests on the separation of powers between the legislature, executive and judiciary. The EU violates this separation and the outline EU Constitution retains the status quo.

The term "Constitutional Treaty" is a contradiction. A treaty is an agreement between two or more international legal persons, which continues in being after its conclusion. A constitution is a domestic legal document that constitutes or sets up a new political entity. In Britain there is no written constitution and government ministers can sign treaties using the royal prerogative.

The Convention consists of nominees with no popular mandate from either their fellow national citizens or EU citizens generally. The EU Constitution will override the sovereignty of Member States and shift those powers to the EU level. To disguise this audacity and assault on democracy the Convention document will be called a treaty. This implies Member State will remain juridically unchanged after ratification. In reality it will be a Constitution without democratic legitimacy and will give the coup de grace to national Constitutions that do have such legitimacy such as Ireland.

The house of Europe is being built on the ruins of national democracy and independence of the EU's member States.

2. EU State Constitution

To establish "a Union of European States which, while retaining their national identities, closely co-ordinate their policies at the European level, and administer certain common competences on a federal basis." (Article 1 of outline Constitutional Treaty)

Although the word may be dropped because of political sensitivity, "federal" - a form of State, is used for the first time in an EU Treaty and recognises the EU has many features of a Federation. This is where a State divides governmental powers between the Federal, national, provincial or regional levels where federal law takes precedence over local state law.

In some respects, the EU is more centralised than existing Federations - the US Federation maintains equality between its states by ensuring each has two Senators. No such equality exists between EU member states, either through the Council of Ministers with unequal voting weights or so called European Parliament. The EU behaves ever more like a State or Superstate under the hegemony of the Major Members.

The Executive of the EU is the Commission which proposes all EU laws as though the legislature. It has judicial powers and imposes fines. Even though an appeal can be made to the Court of Justice, the Commission acts as a lower court. It also draws up and administers its own budget, with minimal democratic control.

The Council of Ministers makes laws as if it was a parliament and takes some executive decisions. The European Parliament cannot legislate any law and acts more like a Council or Assembly. The Court of Justice is not just a court but occasionally acts like a parliament - in the way the judgements have hugely extended the legal competence of the EU.

The EU has its own citizenship, and one can only be a citizen of one state. The EU has clearly defined borders and free movement of persons within them. The EU has its own currency, economic policy, common foreign and security policy - Rapid Reaction Force, and social policy. There is an embryonic police force in Europol, an embryonic judiciary in Eurojust, and a common European Arrest Warrant in preparation. There are common policies on various justice, home affairs, immigration, visa and asylum matters.

The American, German and Austrian peoples are members of national communities and in their own right give these federal states their legitimacy. There is no such European "demos" to give legitimacy to a "democratic" EU. Therefore the EU Constitution project is fundamentally flawed and misguided from the democratic point of view.

2.1 The Union name

Various proposals have been put forward such as Union State: European Community, European Union, United States of Europe or United Europe. This is of minor importance but will generate irrelevant posturing to hide what the beast is about rather than its real nature. The Article states the "Union is open to all European States..." This implies that Russia, the Ukraine, Byelorussia and neighbouring states should be able to join the EU. But is Turkey with most of its peoples in Asia a European State?

Article 1 also states: "While retaining their national identities." This can be consistent with abolishing national independence. Many national identities around the world do not have political independence, a State and Government of their own.

2.2 New Constitutional basis for the EU

Article 4 of the outline Constitution gives the Union legal personality. The EU is an international organization established by treaties between member states, with some supranational elements. A Union Constitution is different and aims to give the EU a new constitutional basis establishing it as an international federal actor in its own right with a legal personality different from and superior to the legal personality of member states.

The Constitution breaks down the division between the three "Pillars" of the treaties. These are the supranational pillar where EU law applies, and the intergovernmental pillars of foreign policy, and justice and home affairs policy. That is according to Article 14, one unified constitutional political system, with a single institutional structure. This gives the Commission an initiating role in the intergovernmental pillars where to date it has had none. With its own legal personality, international treaties could be signed by the EU, which would not require ratification by member states.

3. A new citizenship

Article 5 states that every citizen of a Member State is a citizen of the Union and enjoys dual citizenship and established the "principle that there shall be no discrimination between cities of the Union on grounds of nationality."

This means any "EU citizen" could become President, Prime Minister, member of parliament or a Judge in any Member State. Non-nationals would acquire the right to vote in national general elections and all civic and national rights of citizens in every EU country would be acquirable automatically by the nationals of other EU States. The EU could confer citizenship on any person from outside the EU.

> Even though the federalists might well create an EU State with citizens endowed with civic nationality, those citizens can never look on the EU as they do their own national states. They will regard EU citizenship as nothing more than an artificial construct. Only within the national community does there exist sufficient solidarity, mutual identification and mutuality of interest amongst people as to induce minorities to consent to majority rule, and obey a government based on that.

Such solidarity normally requires a common language and is the basis of a shared citizenship which people feel is real and is the basis of real political democracy. This underpins a people's allegiance to a government as "their" government and willingness to finance tax and an income transfer system which ties the richer and poorer regions and social classes of a Nation State together.

People will not look on the EU in the same way, whatever ambitious imaginings the Euro-federalists have - the EU is doomed, regardless of the Constitutional Treaty. EU citizens will never be willing to die for the EU, and will only notionally live for it. There is no European people or "demos", except in Eurobarometer statistics. There is no "we" comparable to a national "we". An EU State or Constitution can never obtain the legitimacy, authority and citizens' respect that national states and Constitutions are freely accorded and are entitled to demand. A democratic EU, like meaningful EU citizenship, must remain an impossible dream.

4. Making the EU Charter ofFundamental Rights legally binding

Article 6 aims to make the EU Charter of Fundamental Rights binding in EU law as part of the Constitution. This was politically endorsed in the Treaty of Nice which has now been ratified. These rights are a core element of national Constitutions and go to the heart of each State's juridical sys tem and sovereignty. The EU should abide by human rights, but it is a different matter to say the 15 judges or the Court of Justice should be given the final power to decide our rights. The objective is to give the EU Court of Justice (ECJ) a final competence in human rights matters, as against national Constitutions and Supreme Courts, and Court of Human Rights in Strasbourg. This is to be the keystone of an EU Federal Union.

Elements of the Charter are matters for Member States. If the Charter becomes justiciable before the EU Court of Justice through the Constitution, such a development would be a further instrument for subordinating the Member States to the EU centre. Some rights listed refer to areas of shared competence between the EU and Member States and others are largely nationally based like health care and education. If the Charter becomes justiciable in EU law and a citizen sues for breach of rights, the ECJ will have major scope for deciding the boundaries between the EU at national levels. This will be used to extend the scope of the EU as widely as possible, which has always been the thrust since its establishment.

Human rights standards in the Member State are not so defective that they require improvement by giving final control over them to the EU Court in Luxembourg. If the EU wishes to be bound by a code of rights, why does it not accede to the European Convention of Human Rights, as all 15 Member States have already done? This would put the ECJ under Jurisdiction of the Court of Human Rights in Strasbourg, which adjudicates on the Convention. The Parliamentary Assembly of the Council of Europe unanimously warned against the creation of the two different categories of rights - the long established Convention on Human Rights and the fledgling Charter of Fundamental Rights.

If the Charter is made binding in EU law, all EU legislation and all judgements of the Court of Justice will acquire a new legal dimension, that of human rights as defined in the Charter. This would open vast scope for new EU and ECJ legislative and judicial intervention in people's lives. This would be portrayed as being ostensibly out of concern for peoples' rights, but in practice removing final jurisdiction over these from national Constitutions and the Court in Strasbourg by transferring it to the Brussels and the ECJ in Luxembourg.

4.1 EU Charter has more to do with power than rights

The Euro-centralisers who drafted the Charter envisaged that once it is supreme in EU law through incorporation in and EU Treaty, there will gradually be established a system of binding convergence indicators for cross national "harmonisation" of rights, a multi-annual implementation programme and a system of monitoring of national human rights standards by the EU. This would open up the scope for Brussels Interference in people's daily lives and for social policy-making by non-elected Euro-judges rather than by national parliaments and government, boggles the mind.

The Charter has more to do with power than rights. Most of the rights in the Charter sound splendid - except we already have them under national laws and the European Convention on Human Rights. The real reason for seeking to give the EU a human rights competence is the desire to turn the EU into a State where its Supreme Court, the ECJ is given the final say on what our rights are.

Human rights cover virtually every field of human life. While there is widespread consensus on what constitutes peoples' core human rights, there is no agreement on some highly sensitive areas - due legal process for example. Britain and Ireland have habeas corpus and trial by jury, whereas some EU states permit preventative detention, without the right to go before a court - corpus juris. Some countries legalise drugs and license prostitution and others forbid these.

Property rights, family law, rights appertaining to children, marriage, treatment of refugees, environmental controls all differ significantly between Member States. Everyone agrees people have a right to life but when does that begin and end? States differ in their laws on abortion and euthanasia. Should such matters be decided by a common standard laid down in the case-law of the ECJ applicable across the EU? All genuine democrats will resist such a development whatever their particular views.

4.2 Undermining fundamental rights

A "fundamental" right is valid in all circumstances and is why many State Constitutions logically regard such rights as superior and prior to al positive law. This is not based on man-made law but on the law of nature or natural law. This basic principle is not accepted in EU Treaties or the EU Charter which begs the question of what constitutes a greater or lesser protection of a right?

Any uniform system of rights would give the ECJ ultimate decision on such matters. This Charter adds nothing new to the rights of citizens of the EU Member States and may in fact weaken certain rights when these come to be interpreted in this EU Court.

In one respect the fundamental rights set out in the EU Charter do not appear to be so fundamental after all. Article 52 of the Charter permits limitations on these personal rights in pursuit of the objectives of the Union. How can a court, even an EU Court, override a fundamental right, or permit it to be limited in the interests of the Union, even without the express consent of its Member States?

The objectives of the Union, set out in Article 3, are broad in scope and many-sided. Transferring the ultimate protection of these rights to the EU away from Supreme national courts and Strasbourg Court, would involve further procedural delays and expenses for individuals - all to enhance the status of the EU and ECJ. At the same time no benefits would be conferred on individuals and real rights of Member State citizens would not be strengthened.

4.3 Economic effects of enforcing common social rights

As with all EU social policy-making, the EU Charter, if made binding in EU law, will have economic effects. Higher costs on businesses through extra EU obligations on top of national ones would be imposed. In addition taxes will be imposed at the national level, poorer States will be affected more than richer ones and weaker companies more than strong ones. This would adversely influence employment and economic growth prospects in the poorer and weaker economies.

5. Obligation of "loyal co-operation"

Article 8 also "sets out the obligation of loyal co-operation of Member States vis--vis the Union, and the principle that the acts of the Institution are implemented by the Member States."

The world "loyal" means the Member States owe an obligation of loyalty to the EU which indicates the superiority of the latter and underlines its Federal character. The article imposes on Member States an obligation to refrain from any action at the national level which is contrary to the interests of the EU. Such an article could be used by the ECJ when reaching its legally binding judgements.

In other words, national government must give priority to EU objectives, in matters not transferred to the EU. But what if these EU objectives conflict with national political objectives? For example an electoral mandate may oppose the EU Rapid Reaction Force's involvement in a war, or to resist EU tax harmonisation, or a government's expansion to increase public sector spending - even if that breached the Growth and Stability Pact.

5.1 The Union adopts "laws anda change of name

Article 25 refers to the "procedures for the adoption of laws and framework laws..." This is only a change of name as the EU's directives and regulation are of course laws, but the use of the common word "law" underlines the fact this is a Constitution for an EU State, which makes laws just like other States.

5.2 Subsidiarity remains just a word

Article 7 "sets out the principles of Union action which must be carried out in accordance with the provisions of the treaty, within the limits of the competences conferred by the treaty, and in compliance with the principles of subsidiarity and proportionality."

Genuine respect for the principle of subsidiarity would indicate a major repatriation of competences to the Member States from the supranational level - a fundamental shift of gear from centralisation to decentralisation. There is no indication whatsoever the outline Constitution envisage anything like that.

Article 10 indicates the "areas of exclusive Union competence." Article 11 "the areas of competence shared between the Union and the Member States," and Article 12 "areas where the Union supports or coordinates action by the Member States, but does not have competence to legislate."

It is the Union through the ECJ which will decide the boundaries and extent of the relevant legislative competences in any case of dispute. These articles provide considerable scope for the EU to usurp many of the remaining powers of national governments.

5.3 Abuse of power - as long as it is unanimous

Article 8 of the Constitution envisages continuance of an Article contained in the 1957 Rome Treaty. This provides that if action should prove necessary to attain one of the EU's objectives, where the treaty had not provided the necessary powers, the Council, acting unanimously on a proposal of the Commission, may take the appropriate measures.

Seldom used before the 1980's, since then this article has been used for a major extension of EU policy-making and legislation into areas not provided for in treaties. Many regard this as quite illegal. This article effectively permits the EU to do what it likes - as long as the Council acts unanimously. Such provision has no place in any democratic Constitution.

5.4 The Union to be "fully financedby its own resources".

Article 38 "states that the Union budget is fully financed by own resources and sets out the procedure for establishing the system of own resources."

On the face of it, this impliest he end of national contributions by Governments to the EU and total reliance instead on EU levies and taxes imposed on citizens and economic actors. Full financing from "own resources" makes the EU budget wholly independent of its Member States, as is the norm with national Federations.

5.5 Suspension of all rightsof Union membership

Article 45 "establishes the procedure for suspension of Union membership rights if a Member State violates the principles and values of the Union."

On the face of it this goes further than Article 7 of the EU Treaty which provides for States being deprived of "certain of the rights" of membership. This a very drastic sanction, which in practice is more likely to be sued against small States rather than big. Ostensibly directed against support for neo-Nazism, it installs a form of totalitarianism at EU level.

5.6 Withdrawal from the Union
Article 46 "would mention the possibility of establishing a procedure for voluntary withdrawal from the Union by decision of a Member State, and the institutional consequences of such a withdrawal". The former USSR Constitution had a similar provision but none of the constituent republics exercised this right.

6. Same undemocratic EU - only with more powers for Big Members

6.1 Commission remains in driving seat of EU legislation

Article 18 confirms the non-elected Commission would retain the monopoly of legislative initiative in the EU, as against elected parliament or the Council of Ministers. This has been regarded as a basic principle of supranationalism and the "Community method" making the Commission into the "guardian of the treaties". Under the Treaty of Nice the Commission comes more under the influence of the Big States than before, through their voting weight in appointing the Commissioners by qualified majority.

6.2 Creating an EU Presidentand EU Prime Minster

Article 15 bis reads: "When the Convention has discussed it, this article could establish the terms of office and appointment procedure for the Presidency of the European Council, its role and responsibilities."

The Big States are pushing for a permanent European Council President, instead of the present six-monthly EU presidencies that are shared equally amongst all the member States.

Article 18 bis "would establish the role and appointment procedure for the Presidency of the Commission." The Treaty of Nice confers on the Commission President powers similar to those of a national Prime Minister, such as the right to shuffle portfolios, require the resignation of national Commissioners and have a significant role in their nomination. The relation between the Council and Commission Presidents under the EU Constitution could be similar to that between an executive national President and a national Prime Minster, as in France and the USA. The President of the European Council would have a major role in representing the EU internationally and in foreign policy.

6.3 A common EU defence policy

Article 30 "would set out implementing procedures in the sphere of common defence policy."

The treaties of Amsterdam and Nice empower the EU to engage in offensive military action, thousands of miles beyond its borders. Presumably this article refers to an EU mutual defence commitment, comparable to the NATO and WEU Treaties. This could cause problems for the four EU members that are not yet in such an alliance: Sweden, Finland, Austria and Ireland. It is clear no military initiative will be taken unless it suits the larger Member States and is substantially under their control.

7. Democratic gloss on the EU State Constitution

7.1 A Congress of the Peoples of Europe

Article 19 "raises the possibility of a Congress of the Peoples of Europe", its composition, procedure and its powers to be "drafted in the light of the Conventions' work". There is no indication that the intention here is to give the peoples of Europe more power in the EU or to detract in any way from the Commission's monopoly of legislative initiative.

7.2 Participatory democracy through"citizens' organisations"?

Article 34 "sets out the principle of participatory democracy. The Institutions are to ensure a high level of openness, permitting citizens' organisation of all kinds to play a full part in the Union's affairs."

Brussels is already peopled by self-appointed citizens' organisations, many of them EU funded, and shows their purpose is to lobby for EU funds or to be nominally consulted by the EU institutions. They provide the facade rather than reality of democracy however. The Union's key decisions are taken elsewhere, with minimal popular control and democratic involvement.

7.3 A uniform election procedure for the European Parliament

Article 35 "would refer to a protocol containing provisions for elections to the European Parliament by a uniform procedure in all Member States."

This entailed the same election system for the European Parliament in all EU States, with EU funding for cross-national political parties, as provided in the Treaty of Nice.

People do not identify with the European Parliament and is the main reason why popular participation in elections to the European Parliament gets smaller each time in each country. The purpose of having a uniform election procedure throughout the EU, and provision for funding EU-wide political parties, is to get citizens to think "European" rather than nationally. It is unlikely to be successful despite the introduction of EU-wide party funding to encourage eager contest among politicians for such funds.

8. Ratifying the Constitution - repeal of previous Treaties

Article X in the Final Title provides for repeal of the previous EC/EU Treaties and their replacement by this Constitutional Treaty. This must be a breach of the sovereignty of national States if treaties which have been ratified by national parliament or approved in referendums are annulled in this way?

8.1 Constitutional ratification andsimplification of the Treaties

The draft Union Constitution is divided between fundamental and non-fundamental elements. The former, "Part 1: Constitutional Structure", requiring treaty ratification for their subsequent amendment. The latter, "Part 2: Union policies and their implementation", possibly not requiring that.

It has been suggested the Constitution should provide for States which do not ratify should be forced out of the EU or have a semi-detached relation. An alternative is for provision in the Constitution to come into force for an inner group of Member States that wanted them and remain optional for others. This is now legally permissible under the "enhanced co-operation" provisions of the Treaty of Nice.

9. Conclusion

The attempt to foist a Constitution on the EU and give it legal personality comparable to its Member States is a further giant step towards turning the EU into a highly centralised Federal-style State. Such an EU Constitution would override national Constitutions in any case of conflict. Yet there is no EU Community of people, no European "demos", to give it democratic legitimacy.

If, as intended, the proposed Constitution incorporates the EU Charter of Fundamental rights and makes that legally binding under the treaties, it would extend the competence of the EU Court of Justice into virtually every area of citizens' lives and make national Supreme Courts and the Court of Human Rights in Strasbourg subject to the EU in politically highly sensitive matters.

The outline constitution proposes to merge the intergovernmental and supranational areas of the Treaties under a single institutional structure. This would strengthen EU powers and competence over Member States in new and important ways. The proposals represent a further stage in the assault on the Nation States of Europe and national democracy that underpins them, by the powerful political, bureaucratic and economic elites that are pushing the EU integration project. That is why citizens in every European country should oppose this EU State Constitution scheme on democratic and internationalist grounds.

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Based on a TEAM Working Paper No.6 written by Anthony Coughlan - Senior Lecturer Emritus in Social Policy at Trinity College Dublin. He is also Secretary of the resarch and information group - National Platform of Ireland and a member of TEAM's Board.

Governments across the European Union are putting common austerity policies in place which include: massive cuts to welfare states, pressing down wages and pensions, and raising unemployment. The public sector is to be handed to privatisation with loss of accountability and no regard whatsoever for the social consequences.