Understanding the European Constitution

An Introduction to the EU Constitutional Treaty

Clive H. Church, David Phinnemore

• Publisher: Routledge
• Year: 2005
• ISBN:
  9781134227679
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

The European Union is now entering a crucial phase as the ratification process accelerates and key debates and referenda take place in existing and potentially new member states.

The Union's Constitutional treaty is often cast as either a blueprint for a centralized and protectionist super-state or as the triumph of Anglo-Saxon economics. Yet it has been little read, particularly in the United Kingdom. This book puts this right by publishing the full text of the crucial first part of the document and showing that it does not justify either of the extreme interpretations imposed on it.

Written by two experts of the treaties, Understanding the European Constitution sets the Constitutional Treaty in context, examining its main themes and content and considering the implications of any rejection. It does this in uncomplicated language and with the help of explanatory tables and a glossary. Those who wish to make a considered verdict on the basis of the facts will find it invaluable.

1 Introduction

The British public is normally profoundly unconcerned about matters constitutional, especially when these involve the European Union (EU). Interviewers asking about the European Parliament (EP) elections were often told ‘I am not interested’. And, when asked at an official reception about his views on the proposed referendum, pop star Peter Andre said ‘Er, blimey, you really got me there mate’. Moreover, the British are more likely to think there is too much media coverage of the European Union rather than too little.

This explains why the United Kingdom records high levels of ignorance about the Union. The Constitutional Treaty is no exception. Only six per cent, half the EU average, of a 2004 Eurobarometer poll admitted to knowing a lot about it, whereas 44 per cent knew a little and 50 per cent nothing at all–a figure only exceeded by Cypriots. The EU averages were, respectively, 56 per cent and 33 per cent. Recent reports have shown that BBC journalists and business leaders are equally poorly informed. So it is unsurprising that many letters to newspapers refer to what someone else has said about the Constitutional Treaty and not to what is actually in the text.

Yet the United Kingdom was the only country where opponents of the Constitutional Treaty always outnumbered supporters, by 30 per cent to 20 per cent. In the European Union as a whole, 16 per cent were opposed and 49 per cent in favour, with 35 per cent having no opinion (50 per cent in the United Kingdom). Lack of knowledge is often adduced as a major reason for being opposed. This reflects the lack of publications on the Constitutional Treaty in the United Kingdom. For, although it was easily available on the EU website (and many copies of the draft were circulated by the Convention) and the government published the Convention’s draft as a Command Paper in September 2003, there was nothing like the private-sector interest found elsewhere. Thus in France, where the text is also controversial, there appeared a dozen solid works, either printing the text or commenting on it from a variety of perspectives.

Contrary to previous treaties, even eurosceptic forces failed to publish the Constitutional Treaty until very late in the day. Initially, only Prospect magazine published the text of the draft and a fringe publisher produced a general booklet. None of the broadsheets chose to do more than publish potted summaries. The Command Paper containing the full text did not appear until Christmas 2004, with detailed commentary and brief guides following. Hence, even many members of the cabinet were said to be unfamiliar with the text. All this suggests that the contents of the document may not be the whole of the problem, which is why debate has focused on symbolism and major institutional and procedural changes, not on the whole package. So while, unusually, the Constitutional Treaty seems to be of concern to many people, this is not because it is familiar reading.

We hope to help change this by printing the core of the text so that it is more easily available. Equally, we would like to make it better understood. This we try to do by setting it in context and assessing its key elements. However, before looking at some of the questions thrown up by the Constitutional Treaty, we feel we should introduce the text itself. We hope this will enable readers to do what Commission President, José Manuel Barroso, urges: examine the text and not be swayed by national politics. For, although it seems to be at the centre of debate, this is not always the case. Because it is a long and complicated document, and reading it would normally be as attractive as a trip to the dentist for many people, attitudes to it are often based on wider and more political considerations. This leads to misunderstandings about its purpose and significance.

The Constitutional Treaty in brief

Summing up the Constitutional Treaty is difficult. Reducing it to a few key points can mean that a lot is left out, including the overall packaging. So our account is a little longer because this provides a better basis for considering its overall significance, its evolution and the way it needs to be approached. What we find is that, although we now have a single, clarified and consolidated text, it is not a fully integrated document. As Box 1.1 shows, we are dealing with a seven-section treaty. The first, and shortest, is the Preamble, a brief statement, found in many treaties, which tries to sum up the motivation and spirit of the new document.

Then comes the Constitutional Treaty itself, which, like many books, is made up of ‘Parts’ or subdivisions. Although Part I, unlike the other three, has no label because it sets out in relatively simple language the basic structures and principles of the new Union, what it can do and how, it is the nub of the whole Constitutional Treaty. Hence many talk of it as ‘the Constitution’. If the reality is more complicated, Part I does constitute a new Union, replacing the confusing division into ‘Union’ and ‘Community’, and confirms the European Union’s existing institutions, upgrading the European Council and adding a permanent President of the European Council and a Union Minister for Foreign Affairs. However, the size and membership of many of the Brussels bodies are changed, while the European Parliament is given new powers, notably over the budget.

Box 1.1 The Treaty establishing a Constitution for Europe: an outline

In terms of principles the Constitutional Treaty now makes it clear that the Union derives its powers from the member states through the principle of ‘conferral’. And states can now go back on their original granting of power through the new right of secession. The Union has, moreover, to respect the identities of the member states. In turn, states are expected to live up to their obligations. Existing provisions for suspending the voting rights of member states who fail to live up to democratic standards continue.

However, the new Union has a dual legitimacy, resting on its peoples as well as it member states. This is underlined in several ways, notably by the repetition of present provisions on citizenship and the new right of popular initiative. At the same time, Part I lists the European Union’s values, objectives and principles. Great stress is laid on liberty, democracy and rights.

The Constitutional Treaty also classifies the powers conferred by the member states in new ways: exclusive, shared, supporting, coordinating or complementary. It then goes on to specify the ways in which the Union should work. Decision making is to reflect, at a minimum, the majority of member states and the majority of the population when, as will happen on an increasing scale, decisions are made by what is known as ‘qualified majority voting’ (QMV). This means that one member state cannot block all progress as can happen under unanimity. Both the EP and, to some extent, national parliaments are now involved in these processes.

Furthermore, Part I gives a good deal of attention to special arrangements for external affairs and internal security. These are no longer in separate ‘pillars’ subject to member-state control, but intergovernmental decision making remains the norm in these fields. Through the solidarity clause there is now provision for member states to aid each other in case of attack or natural disaster. And there is a new commitment to the European Union’s eastern neighbours.

Otherwise Part I does not really extend the European Union’s own policy competences apart from aspects of civil protection, energy, public health, sport and tourism. Exclusive competences are restricted to competition, monetary policy (for eurozone countries), external trade, customs and fisheries. The Internal Market remains untouched, as does economic and monetary union, although the member states involved gain new coordinating powers. Common action will continue in areas such as agriculture, environment and transport. The Constitutional Treaty also allows for future changes in decision making, allowing the heads of government to agree to use QMV.

All this is done through 60 articles. Some of these are very long, especially those on the Commission (Article I-25), foreign policy (Article I-40) and enhanced cooperation (Article I-43). Few are real ‘one liners’, most being ‘portmanteau’ articles with several paragraphs or elements to them. The articles, which are numbered consecutively and grouped into subsections known as Titles, also have a Latin numeral prefix indicating the ‘Part’ where they are found.

Overall, Part I has 10,800 words in the 29 pages of the Official Journal version. This compares with 9,372 in the 61 articles of the existing Treaty on European Union. It provides an introduction to, and basis for, the rest of the Constitutional Treaty. The whole document is much longer, running to 448 articles in the Treaty proper with a further 450 or so articles in its 36 Protocols and 50 Declarations. In all there are 482 pages and some 155,000 words.

Part II is the ‘Charter of Fundamental Rights’, which sets out the political and social rights already enjoyed by EU citizens through earlier treaties. It was drafted in 1999–2000 by a Convention. This is why, confusingly, it has a Preamble of its own. Including the Charter here gives it more salience and more authority and allows it to be used before the courts in cases involving the application of EU law. It links to the commitment in Part I to signing up to the wider 1950 European Convention on the Protection of Human Rights. Doing this cannot give the Union extra powers or override national legislation.

Although there are problems with the Charter, it was left unaltered. However, additional elements have been tacked on at the insistence of the UK government to ensure that it cannot be used to allow the European Union into new areas of national life. In fact, it applies mainly to the institutions, and only affects member states when implementing EU rules. Other parts of the Constitutional Treaty contain further constraining provisions and notes. Moreover, it is made clear that rights have to be interpreted in the light of national views and do not affect member states’ own ‘rights’ jurisdiction.

These understandings are contained in Title VII of Part II. They follow on six other Titles setting out rights in various fields: basic, economic, personal, social, political and judicial. The articles are much shorter than those in Part I. Very often they start with a statement of the basic principle and go on to give guidance on implementation.

Part III: The policies and functioning of the Union is by far the longest Part of the whole Constitutional Treaty, bringing together as it does all those other elements of the Treaty establishing the European Community (TEC) and the Treaty on European Union (TEU) which are still needed. The reason for this is that the Union’s nature actually depends on the agreements which constitute it. To drop these would mean giving up the achievements and understandings of the past and would create confusion and instability. So Part III reformulates existing articles and partially brings them into line with Part I. Hence article order sometimes diverges from that in the existing treaties. Numbering is always different. More technical language is used although redundant or repeated elements are excised.

In some cases the way Part III develops and adapts ideas outlined in Part I brings out points of principle that are not made clear in the latter. And, in detailing how principles are to be applied, it further defines institutions and procedures. So Part III cannot be treated purely and simply as an exemplification of Part I. It has its own value and importance, being partly constitutive and not just derivative.

It is divided into seven Titles. The first two are short. Title I sets out considerations to be borne in mind when applying the Constitutional Treaty, including social inclusion, consistency and animal welfare. The next states the legal powers for taking and monitoring measures to prevent discrimination. It also lays down where specific decision-making procedures apply.

Title III is much longer since it deals with Internal Policies and Actions and it is subdivided into five chapters. The first, on the internal market, brings in the basic freedoms and competition policy and, again, specifies which instruments are to be used. There are new provisions on intellectual property rights. The chapter on economic and monetary policies includes new clauses on the running of the eurozone, while the rights of member states not using the euro are maintained. Chapter III covers employment and social policy. Agricultural policy remains and there are a few new provisions on, for example, energy. There is more change in the so-called ‘area of freedom, security and justice’. New provisions for the European Council and national parliaments to play a part are included along with measures on solidarity, cross-border crime and the possible creation of an office to prosecute financial fraud against the Union. Harmonization of national criminal laws is ruled out. The final chapter deals with coordinating and supporting policies in other areas, including the new ones of civil protection and tourism.

Title IV is a somewhat dated set of provisions on relations between the Union and remaining colonial dependencies. The next Title, on external relations, is more significant, bringing together previously separated elements on external relations from the two main treaties. It maintains separate ways of working but updates them to take account of the new Minister for Foreign Affairs and the fact that groups of member states, along with the new diplomatic delegations and the European Defence Agency, can implement policies. The Court of Justice is largely excluded from this.

Title VI covers institutions, finance and ‘enhanced cooperation’, thus reformulating the detailed procedures for the functioning of the Union found in the existing treaties. There are very few institutional changes apart from new rules for the European Council, the European Union’s administrative services and institutional cooperation. Equally, the financial provisions are little changed except that they write in the multiannual framework and grant the EP a fuller role. Enhanced cooperation, as now, allows a group of member states to integrate further subject to tight safeguards. The final Title is relatively brief and mainly deals with the legal standing of staff, member states and the Union.

Part IV: General and final provisions is much the shortest Part of the Constitutional Treaty and has no subdivisions. It is a very traditional piece of treaty technology, dealing with five sets of questions: how the new Union links to the old Community and Union; the states and territories where it applies; the status of the various language versions and the protocols; when (and for how long) it is to come into force; and how it is to be revised. It makes clear that all previous decisions still apply even though many treaties are repealed. Equally it continues to establish that certain national territories are outside its influence.

All language versions are equally valid. Like its predecessors, the new Union is an ongoing body. The clauses on revision are new and allow, in certain instances, for less constraining ways of change. For historical reasons there is also an odd permissive reference to the Benelux Union.

Protocols and Declarations: Although all this is complex and detailed enough, there are further attachments. The most important and weighty of these are the Protocols, fully binding texts which are printed separately because they contain codes for specific bodies or detail which might otherwise overload the main treaty. Many refer either to individual articles and facets of the Constitutional Treaty or to specific national interests. Many, like the standing orders of bodies of the ECJ, the European Central Bank and the European Investment Bank, have been transferred from earlier agreements. Some are new, such as those which list the treaties being repealed and the elements of the accession treaties being retained. There is also a protocol on transitional arrangements for bringing the Constitutional Treaty into force.

Declarations are less authoritative texts which are not technically part of the Constitutional Treaty proper. They give guidance on how it will be understood and applied. Most of them relate to specific articles but others, inherited from the existing treaties, deal with the protocols. Most were accepted by all the member states. However, individual member states have added thoughts of their own. All this makes for a package which is still long and difficult, thanks in part to its own inconsistencies, and which does not greatly change the status quo.

Why all the fuss?

If this is so, why has the Constitutional Treaty caused so much excitement? It is primarily because the Constitutional Treaty has become caught up in an intensifying general campaign against ‘Europe’. This included the question of how such changes should be approved in the United Kingdom. It is also because the meaning of the Constitutional Treaty is open to interpretation.

Essentially the Constitutional Treaty has become as much part of general political debate as a document in its own right. In fact, much of the tabloid press has long attacked all things to do with the Union in an attempt to shape policy. The Conservatives have also, since the late 1980s, become increasingly eurosceptic if not anti-European, egged on by the well-organized extra-parliamentary opposition to the Union. This reflects the way that politics has become both less parliamentary and more populist, focusing on single issues, such as the euro.

The Constitutional Treaty offers opponents of European integration a new target and one which, because so little was known about the treaties, served as a surrogate for the more basic question of membership. Hence, like most treaty amendments, the Constitutional Treaty has been attacked as creating a superstate. Indeed, in May 2003 an early draft was described by the Daily Mail as a ‘blueprint for tyranny’. And much of the press, along with many letter writers, has taken this view. The Conservatives also condemned it root-and-branch as taking the Union in the wrong direction and threatening national independence, a view somewhat oddly supported by Gisela Stuart MP, a Labour member of the Convention.

Because of such views there was also a vigorous campaign, inspired by the right but supported by others, that there should be a referendum on its adoption. This developed a good head of steam because so many believed the Constitutional Treaty was more than the ‘simple tidying-up exercise’ that Jack Straw once rashly called it. ‘Constitution’ is understood as a big word which suggests sudden and major moves towards statehood and which cannot be seen as either evolutionary or a mere titivating. Hence it needed popular approval. So, on the 60th anniversary of D-Day, a copy of the Constitutional Treaty was ceremonially thrown into the Thames by a UKIP activist.

In March 2004 the Prime Minister conceded a referendum on the grounds that the issue was obscuring the actual merits of the case. Despite this, there was a new wave...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Illustrations
• Preface
• Acknowledgement
• Abbreviations
• 1 Introduction
• 2 The context
• 3 Thinking about the Constitutional Treaty
• 4 Part I–The official text
• 5 Part I–A thematic analysis of the Constitutional Treaty’s fundamentals
• 6 Parts II–IV and beyond: An introduction
• 7 Coming to a decision
• Glossary
• Finding out more