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Encyclopedia :
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Treaty establishing a Constitution for Europe |
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Treaty establishing a Constitution for EuropeThe 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 is ratified by all 25 member states of the Union. Critically, this will be subject to a referendum in ten countries. History and ratificationMain article: History of the European ConstitutionThe 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 and Greece 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. In some cases, the result will be legally binding; in others it will be consultative: Strengthened or newly codified provisionsFunctioning of the UnionThe 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.
Common agendaAs stated in and , the Union is open to all European States which respect the following common values:
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).
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).
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.
:* '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'.
Functioning of the institutionsMore 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.
Points of contentionLength and complexityCritics of the Constitution point out that, compared to many existing national constitutions (such as the 4,600-word US 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 votingQualified 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 ("competency") 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 lawCritics 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 statehoodIt 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 democracyIt 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, which may seem very democratic at a first glance 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 they wish. It is also worth mentioning that european citizens could already submit a petition to the European Parliament, see [1]. Defenders of the Constitution point out 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. It has been argued that this is sufficient to avoid what might otherwise be regarded as a 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. Further, 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. Its only real power is to investigate breaches of agreements that the member states themselves have made. See also democratic deficit. Militarismstates 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 policySome 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 from 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. Unanimity requirement for changesThe major provisions contained in , and of the Constitution can only be changed with the unanimous agreement of all countries. This requirement for unanimity will effectively prevent further transfer of competences to the Union if a single member state objects. Defenders of the Constitution point out that it has always required unanimity among member state governments to change a treaty, so this is nothing more than a retaining of the status quo. It should also be mentioned that there is provision for enhanced cooperation among member countries, under which some countries can choose to integrate more closely in some areas than others. However, this does not constitute an opt-out from the universally agreed provisions in the Constitution. Moreover, enhanced co-operation can be established only the conditions described in , according to which both the Commission and the Council, acting unanimously, must agree. In fact, it is easier to establish an enhanced cooperation under the present law of the Union (as modified by the treaty of Nice); compare for example Article III-419 of the constitutional treaty and Article 27-E of the current treaty. At the same time, (the Passerelle Clause) allows decisions currently subject to unanimity to be shifted to Qualified Majority Voting if all governments agree, without the need for ratification by national parliaments (though national parliaments would have a six-month period in which they could object if they wish). Also, for the first time, the Constitution provides an explicit means by which a member state can entirely withdraw from the EU without violating treaty obligations. However, some people have pointed out that this just formalises the existing situation, given that Greenland successfully negotiated withdrawal using this method in 1985. Human rightsSome 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 of the Constitution, and habeas corpus is not explicity mentioned among its provisions. However, of the Constitution says: "The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms", of which includes the following:
TimelineDevelopment of the Treaties into EU ConstitutionExternal links and references
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