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Democrat April-May 2005 (Number 87)

What the EU Constitution does

A 14-point critical analysis

This 40 page pamphlet is absolutely essential reading for all activists who oppose ratification of the EU state Constitution.

There are 14 points and an appendix which lists 69 further national vetoes that would be abolished in establishing a Constitution for Europe and would increase the EU's powers.

The introduction to the pamphlet explains where the Constitution came from and that there are 448 articles divided into four parts in 400 pages. In 2001 the Laeken Declaration of the EU summit set up the Convention on the Future of Europe, meaning the EU. The objective given was to address the problem of the lack of democracy within the EU, how best to bring it closer to its peoples and make the whole thing less centralised. That was the declared objective. As you read this pamphlet something quite different would be put in place if the Treaty for a European Constitution were ratified.

Extracts from the 14 points are as follows:-

1. Giving the EU the constitutional form of a State

The most important thing the Treaty establishing a Constitution for Europe sets out to do is to create an entirely new, different and vastly more powerful EU entity in the constitutional form of a Federal European State, without changing the ‘EU’ name.

The Treaty would turn the EU into a State in five logical steps

Step one repealing all previous treaties to abolish the existing European Community and European Union.

Step two establish constitutionally, legally and politically quite a new EU founded on its own Constitution.

Step three lays down that the Constitution of this new Union, and the laws made under it give primacy over the law, including the constitutional law, of its Member States.

Step four would be for the EU Constitution to give this new EU legal personality and its own separate corporate existence for the first time.

Step five would be to make us all real citizens of a real EU with its own legal personality for the first time.

Advocates of the EU Constitution contend that Member States would retain primacy of authority because they have conferred powers on the EU. Classical-type Federal States have developed by smaller units coming together and transferring powers to a superior, e.g. Germany, the USA, Canada, Australia.

2. Institutional changes made by the EU Constitution

The Constitution would replace the system of weighted voting for making EU laws agreed at Nice with a new "double majority" system of States and populations. This would mean 55% of Member States, at least 15, could outvote 10 States if the 15 includes 65% of the total population.

3. The new EU's exclusive and treaty making powers

The Constitution would give the new Union sole and "exclusive" legal power to decide policy as regards trade tariffs and quotas, monetary policy for the eurozone...fisheries conservation and trade agreements with other countries

4. The new EU's shared powers with its Member States

The Constitution lists a wide range of government policies where power is stated to be "shared" between the EU and its Member States. These include the internal market...agriculture and fisheries...transport, and justice...

This is a peculiar kind of sharing, the new Union is constitutionally superior. The power of elected governments to make laws would be residual.

5. The new EU's supporting, co-ordinating and complementary powers

These would be a further range of vaguely defined areas including the protection and improvement of human health, protection and administrative co-operation.

6. The new EU's foreign policy and military powers

These powers would give the new Union the power to "define and implement" a common foreign and security policy which would "cover all areas of foreign policy" and which all Member States would be required to "actively and unreservedly support ... in a spirit of loyalty and mutual solidarity". It would impose on Member States a new obligation to "comply with" the Union's actions in foreign policy, in contrast to the expisting treaty requirement to "support" these.

An EU Foreign Minister would be created who would be reponsible for conducting the common foreign and security policy and preside over the Council of Foreign Ministers. He would chair meetings to consider his own proposals. Only states have foreign ministers.

7. The new EU's crime, justice and policing powers

These powers would open the possibility of movement towards an EU criminal justice system on the continental model - Corpus Juris, which does not have trial by jury, operates by means of inquisitorial magistrates and permits preventive detention in some countries. An EU criminal justice system would be achieved by means of harmonisation of national laws. By giving the EU this power the EU could lay down common definition of offences and sanctions for serious crime with a cross-border dimension.

The role of Eurojust would be extended from "co-ordination" of criminal prosecutions to include also their "initiation".

8. The new EU's powers to decide our rights

The Constitution would for the first time give the EU Court of Justice the power to decide our basic rights. This would be in all areas covered by EU law, which is now very large and growing.

The Constitution would give the new EU the power to decide peoples' rights by including the Charter of Fundamental Rights - Part II of the Constitution. In turn this would make the Charter legally binding on Member States and their citizens. EU human rights law would override any contrary national law and would have direct effect in all areas of EU law.

Giving the EU Court of Justice the power to decide our rights does not strengthen or improve them one iota.

9. The new EU's powers to extend its own powers

These powers would enable the EU to extend its own powers by two devices which avoid the need for new treaties and having to get these ratified by national parliaments or referendums in all 25 Member States.

The first device is the Escalator Clause which would allow the European Council of Presidents and Prime Ministers to move EU law-making from unanimity to majority voting - providing they agree unanimously amongst themselves and no national Parliament objects. The latter is highly unlikely as the Prime Minister would command a majority in their own parliament.

The second device is the flexibility Clause which says that if the Constitution has not given the EU sufficient powers to attain its very wide objectives, the Council of Ministers "shall adopt the appropriate measures" by unanimity.

These two devices would mean that the Constitution is not a full guide to its own provisions. If ratified it is highly likely that the EU's powers would be significantly expanded.

10. Setting in stone the EU's present undemocratic structure

The Constitution would give all the above powers to the new EU, while setting in stone the Union's present undemocratic structure. It would not repatriate a single power back from the EU to national parliaments.

11. Making the euro constitutionally mandatory

"The currency of the Union shall be the euro." The Constitution would make this so even though at present 13 of the 25 Member States still retain their national currencies.

12. Establishing an ideological Constitution

The Constitution of any normal State lays down the rules and institutional framework for making laws and deciding policies, but it leaves the ideological content of those measures to political debate between political parties of the Left, Centre and Right. The EU Constitution is lays down decision-making rules, it also lays down a rigid economic ideology which those rules must implement.

13. Laying down contradictory constitutional objectives

The European Court of Justice (ECJ), as the Supreme Court in the new EU, would interpret the Constitution if ratified. In its case law the ECJ follows the continental legal tradition of interpreting treaties and legal documents in relation to their "objectives and purposes". This is in contrast to the Anglo-Saxon tradition of emphasising the literal wording of legal provisions in the present sense. This has the effect of changing the legal basis of the EU from a series of treaties to a self-contained Constitution where all EU laws would be interpreted by the ECJ as having the force of constitutional law.

14. Positive things in the EU Constitution

One positive change proposed is that the Council of Ministers should meet in public when deliberating and voting on draft EU laws. However this would most likely be for TV cameras. Negotiations leading up to the laws would remain in private.

The Alternative to the EU Constitution

Far from being a "tidying up exercise" of the existing treaties and powers, the Treaty establishing a Constitution for Europe is a basic change in the nature of the EU.

If the Constitution is rejected, the present EU will continue based on the Treaty of Nice.

By rejecting the EU Constitution citizens can force a proper debate on the kind of Europe they really want. This could be a Europe with democratic National Parliaments elected by Europe's own citizens in the lead, rather than the small but powerful political and bureaucratic elites that are campaigning to push the Constitution through.

Appendix 1 consists of the 69 further national vetoes to add to EU powers.These would give more powers to the EU at the expense of National Parliaments. There are over 100 new powers altogether which would go to the EU.

Appendix 2 gives the Constitution's title and Preamble..

The preamble to this treaty is important because it gives the ECJ the right to interpret the Treaty. In Anglo-Saxon tradition the preamble is not given such importance.

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The text was issued by-

National Platform EU Research and Information Centre , Dublin, Ireland.

Both National Platform and CAEF are members of TEAM the European Alliance of 60 EU-critical organisations in 20 countries.

The text was published in pamphlet form in Britain by the Campaign against Euro-federalism.