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Democrat Broadsheet September 2007 (Number 22)

What the so-called "Reform Treaty" - the renamed EU Constitutional Treaty - would do

The so-called EU "Reform Treaty" - which is the EU Constitutional Treaty under another name - would do six important things. It would do them by amending the two existing European Treaties, which would be called henceforth the "Treaty on European Union" and the "Treaty on the Functioning of the Union". These two amended treaties would together become the Constitution of the new Federal European Union they would establish.

Giving the European Union the power to make laws binding on us in over 40 more policy areas: The new Treaty would add to the powers of the Brussels institutions, which already make the majority of our laws, in over 40 new policy areas - including civil and criminal law, public services, energy, transport, tourism, space, sport, civil protection, public health and the EU budget. This would greatly increase the personal power of the 27 politicians on the EU Council of Ministers by enabling them to make further laws for 500 million Europeans, while taking power away from the citizens and national Parliaments that elect those politicians and that have made these laws for their own countries up to now. It would also increase the power of the non-elected Brussels Commission, which has the monopoly of making proposals for European laws to the Council of Ministers, by giving it many new policy areas to propose laws for.

Giving more voting power to the Big EU States:

In making European laws in the Council of Ministers the new Treaty would increase the voting weight of the bigger EU States, in particular Germany, and reduce that of the middle-sized and smaller EU States.

Removing the right of each Member State to have a permanent EU Commissioner:

The new Treaty would deprive Member States of the right to have a representative at all times on the Brussels Commission, the body which proposes
European laws. Big States as well as small ones would lose a permanent Commissioner, but the economic and political weight of the former makes them inherently better able to defend their interests without such representation.

Making this into a self-amending Treaty:

The new Treaty would contain a mechanism to enable majority voting for European law-making to be extended to new policy areas by agreement among Member State governments, without need for new treaties or treaty ratification.

Giving the EU final power to decide our rights:

The new Treaty would make the EU Charter of Fundamental Rights legally binding on the EU Member States and their citizens in all areas of European law, which now makes up the majority of new laws we must obey each year. This would give the 27 judges of the European Court of Justice in Luxembourg the final decision on the wide range of human rights issues covered by the Charter, as against national Constitutions and Supreme Courts or the European Court of Human Rights in Strasbourg. This would greatly extend the power of the Court of Justice, which one of its judges once characterised as "a court with a mission" - that mission being to extend the powers of the EU as widely as possible by means of the case law of a Court that has become notorious for "competency creep".

The Charter would apply in all areas of EU law-making, whether by the Brussels institutions or by Member States when implementing European laws. It would open the possibility of uniform standards being imposed over time across the new Union as regards sensitive human rights areas where there are significant national differences at present: for example, rules of evidence in court, trial by jury, censorship law, the legalisation of hard drugs and prostitution, rights attaching to State churches, conscientious objection to military service, the right to life, euthanasia, succession, rights to property, family law, the rights of children and the elderly etc. It could lead to jurisdictional disputes between the EU Court of Justice in Luxembourg and the Court of Human Rights in Strasbourg, for the EU court would have supremacy in any case of conflict between the two as to what their respective powers are.

Some trade unions have supported the Fundamental Rights Charter in the belief that it would strengthen their rights to collective bargaining and strike action, thinking that European law would override national law in such areas to their advantage. This is an illusion. The new treaty would provide that the Charter of Fundamental Rights is to be interpreted in the light of the Explanations set out in an accompanying Declaration (No.12 in the 2004 Constitutional Treaty). These Explanations state that "the modalities and limits for the exercise of collective action, including strike action, come under national law and practices".

Moreover the new Treaty would provide that the exercise of the rights and freedoms recognised by the Charter of Fundamental Rights may be limited "to meet objectives of general interest recognised by the Union". This means that the rights set out in the Charter would not be so fundamental after all. Giving the EU Court of Justice final competence to decide our rights over the large area of public policy covered by the EU is more about power than rights. Human rights standards in the EU Member States are not so defective that they require a supranational EU Court to lay down a superior norm or impose a common standard across the EU States and their Constitutions.

Giving the EU the Constitution of a supranational European Federal State, of which we would all be made real citizens for the first time, legally bound to give that EU Federation our prime allegiance:

Constitutionally and politically, the most important thing which the new Treaty would do would be to give the legally new European Union which it would establish the constitutional form of a supranational European Federation for the first time - in effect a State. Instead of the EU being coterminous with its 27 Member States as at present, the Treaty would establish a legally new Union that would be constitutionally separate from and superior to its Member States, as is normal in any Federation. This new Union would have its own government, legislature, executive and judiciary, its own political President, Foreign Minister, diplomatic corps, Public Prosecutor and right to sign international treaties with other States, its own citizenry and citizenship, its own human rights code, its own currency and economic policy, and indeed its own flag, anthem and annual official holiday, although the latter three symbols of statehood are to dropped from the new treaty, while continuing in use without a legal base, as they have done for decades.

The relation between the new EU which the "Reform Treaty" would bring into being and its 27 EU Member States would be like that between the Federal USA and California or Massachussetts, or like Federal Germany in relation to Bavaria, Saxony and the other German Länder. We would then all be made real citizens of this new EU Federation rather than notional or honorary "European citizens" as at present; for one can only be a citizen of a State.

This would be the most important step to affect the various EU States since they first came into being as members of the international community, for it would be a formal end to their national independence and democracy and their character as sovereign States. It would announce to the world that henceforth they would form part of another State, a Federal European Union. They would have become part of a new country called "Europe".

It is these provisions which give the so-called "Reform Treaty" the character of an EU Constitutional Treaty which, by amending and renaming the two existing European treaties, would constitute or establish a legally quite new European Union and give it a Constitution. This constitutional revolution in both the EU and its Member States would be accomplished by (a) giving the EU legal personality and its own corporate existence for the first time, making it separate from and superior to its Member States; (b) merging the supranational and "intergovernmental" areas so as to give the new Union a unified constitutional structure that would be capable of exercising all powers of government either actually or potentially; and (c) transforming national citizens into real EU citizens with the normal citizen's duty of giving obedience to the laws of the new Union and loyalty to its authority and institutions as having primacy over their national Constitutions and laws like in any Federation. (For more details on this point, see the accompanying document, Giving the EU a Federal State Constitution).

Let the people decide

"Of course there will be transfers of sovereignty. But would it be intelligent to draw the attention of public opinion to this fact?" - Jean Claude Juncker, Prime Minister of Luxembourg, Daily Telegraph, 3 July 2007
"Referendums make the process of approval of European treaties much more complicated and less predictable Š I was in favour of a referendum as a prime minister, but it does make our lives with 27 Member States in the EU much more difficult. If a referendum had to be held on the creation of the European Community or the introduction of the euro, do you think these would have passed?" - Commission President Jose M. Barroso, EUobserver, 6 February 2007

It is no small thing to attempt to turn the citizens of the 27 Member States of the EU into real and not just notional citizens of a supranational "United States of Europe" which is separate from and superior to their own national States and Constitutions. It can only be done by deception and bullying - and above all by avoiding referendums that would enable Europe's peoples to decide themselves whether they wish for such a fundamental constitutional change.

Those pushing the new treaty hope that we will thereby have real citizens' obligations of obedience, solidarity and loyalty to the new European Union imposed upon us without our knowing or realising that this is happening. By such sleight of hand - doubtless long concerted by the international European Movement and its allies - are we to be made real citizens of a real supranational European Federation that has primacy over our own national States. Simultaneously the latter would be reduced to the status of provinces or regions of the new Union, similar to the local states of the USA or Federal Gemany's Länder. If the deception succeeds, Europe's peoples will have had their national democracy and national independence filched from them without their scarcely noticing.

"People say 'We cannot vote again.' What is this joke? We have to vote again until the French see what the stakes are." - Valéry Giscard d'Estaing, former French President and Chairman of the Convention which drew up the EU Constitution, Agence Presse, 12 June 2006 If the European and national elites who are pushing this treaty should succeed, one can confidently predict that the popular reaction will be all the more explosive when people across Europe realise what has been done.

But they must not succeed. The monstrous deception must and can be exposed. The EU elites must not get away with their plan to pretend that they are not giving the EU the Constitution of a Federal State because they no longer call it that, when it patently is such. They must not succeed in their plan to get around the rejection of the Constitution by the peoples of France and the Netherlands by attempting to push through a treaty which has essentially the same effect, by calling it something else and avoiding holding referendums on it.

Europe's peoples alone have the right to decide whether they should be made citizens of an EU State or not Š Whether they should agree to abandoning their own national democracy and national independence Š Whether they should hand over massive new powers to the non-elected Brussels Commission and to the 27 politicians on the EU Council of Ministers who now make most of our laws. Democracy requires that there be a referendum on this Renamed EU Constitution in every EU country.

"At every stage of this craze, from 1996 until 2005, a more reasonable choice could have been made, a calmer rhythm could have been adopted, that would not have deepened the gap between the elites and the population, that would have better consolidated the real Europe and spared us the present crisis. But in saying this, I underestimate the religious fervour that has seized the European project. For all those who believed in the various ideologies of the second half of the 20th century, but survived their ruin, the rush into European integration became a substitute ideology." - Hubert Védrine, former French Foreign Minister, Irish Times, 8 August 2005


This publication is based on a document prepared by The National Platform EU Research and Information Centre, 24 Crawford Avenue, Dublin 9, Ireland; Secretary: Anthony Coughlan; Tel.: 00-353-1-8305792. This document has been vetted for legal accuracy by authorities on European and constitutional law. The Centre is affiliated to The European Alliance of EU-critical Movements (TEAM). [CAEF is also affiliated to TEAM] The document may be used or adapted as people may see fit, without any need of reference to or acknowledgement of its source.

September 2007

Former President of Germany

What the former German President said

"The German Ministry of Justice has compared the legal acts adopted by the Federal Republic of Germany between 1998 and 2004 with those adopted by the European Union in the same period. Results: 84 percent come from Brussels, with only 16 percent coming originally from Berlin ... These figures, stated by the German Ministry of Justice make it quite clear. By far the large majority of legislation valid in Germany is adopted by the German Government in the Council of Ministers, and not by the German Parliament ... And so the question arises whether Germany can still be referred to unconditionally as a parliamentary democracy at all, because the separation of powers as a fundamental constituting principle of the constitutional order in Germany has been cancelled out for large sections of the legislation applying to this country"

Roman Herzog, former German President and former President of the German Federal Constitutional Court, Welt Am Sonntag, 14.1. 2007

"The substance of the constitution is preserved. That is a fact."

Angela Mekel German Chancellor at European Parliament 27 June 2007

"Public opinion will be led to adopt, without knowing it, the proposals that we dare not present to them directly" ... "All the earlier proposals will be in the new text, but will be hidden and disguised in some way."

V.Giscard D'Estaing

Chairman of the Convention which drew up the EU Constitution - Le Monde, 14 June 2007, and Sunday Telegraph, 1 July 2007

"They decided that the document should be unreadable. If it is unreadable, it is not constitutional, that was the sort of perception. Where they got this perception from is a mystery to me. In order to make our citizens happy, to produce a document that they will never understand! But, there is some truth [in it]. Because if this is the kind of document that the IGC will produce, any Prime Minister - imagine the UK Prime Minister - can go to the Commons and say 'Look, you see, it's absolutely unreadable, it's the typical Brussels treaty, nothing new, no need for a referendum.' Should you succeed in understanding it at first sight there might be some reason for a referendum, because it would mean that there is something new."

Giuliano Amato

Former Italian Prime Minister and Vice-Chairman of the Convention which drew up the EU Constitution over two years ago. - recorded by Open Europe, The Centre for European Reform, London, 12 July 2007

What Trade Union leaders said

"We have had a belly full of broken promises and what we have here is another broken promise. Promises should not be made in the heat of an election, they should be kept and they should be brave enough to go to the people of this country and ask them... if they say 'no', that should be the answer."

Colin Moses
Prison Officers Association - TUC Congress 12 September 2007

"If it is good enough for the Irish to have a vote in a referendum, then it should be good enough for British workers. We should have the arguments and a full debate. People should be able to decide their own destiny."

Bob Crow
General Secretary, Rail Maritime and Transport Workers - TUC Congress 12 September 2007