Treaty establishing a constitution for Europe

The draft Treaty establishing a constitution for Europe is a proposed constitutional treaty for the European Union. Its main aim is to replace the overlapping set of existing treaties that provides the current constitution for the Union.

On July 18, 2003, the constitution’s draft was published by the Praesidium of the Convention on the Future of Europe [1]. Following long negotiations, this draft was agreed by the European Council on June 18, 2004 in Brussels with some changes. It now awaits ratification by all EU member states.

Table of contents

1 Objectives
2 History of the Constitution
3 Ratification process
4 Summary of content

4.1 Existing provisions emphasised or newly codified
4.2 New provisions

5 Controversy

5.3 Length and complexity
5.4 Qualified majority voting
5.5 Status of the constitutional treaty
5.6 EU law and national law
5.7 Trappings of statehood

6 External links

Objectives

The main objectives of the proposed Constitution are:

to simplify the overlapping series of Treaties and Protocols providing the current legal constitution for Europe;
to enhance and streamline decision-making in the Union now that 10 new countries joined the previous 15 member states on 1 May 2004 (see EU enlargement).

History of the Constitution

The Constitution is based on the EU’s two primary existing treaties, the Treaty of Rome (1957) and the Maastricht treaty (1992), as modified by the more recent treaties of Amsterdam and Nice. 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 Council established the Convention on the Future of Europe. The role of the Convention, presided over by Valéry Giscard d'Estaing, was to consult as widely as possible with stakeholders across Europe and to produce a first draft of the Constitution for the Council to finalise and adopt.

The Convention published its draft in July 2003. This draft was then discussed at two meetings of the Council, in September and December, but agreement was not reached when Poland and Spain refused to accept the proposed framework for qualified majority voting. The incoming Irish Presidency then instigated a cooling-off period, following which the final text of the proposed Constitution was agreed at the summit meeting on 18-19 June 2004 under the presidency of Bertie Ahern.

Ratification process

The Constitution, having been agreed by heads of government from the the 25 member states, will be signed in a ceremony in Rome on 20 November 2004. Before it enters into force, however, it must also be ratified by each member state. This is likely to take around two years, and cannot begin until the text has been ‘tidied up’ and officially published in 21 languages.

Ratification takes different forms in each country, depending on the traditions, constitutions and political processes of the country in question. Ireland's own constitution, for example, insists that a referendum be held on all international treaties, while Germany's constitution prohibits referenda.

Many countries are expected to see the constitution as a significant change and will hold a referendum on the subject. On April 20, 2004, the British Prime Minister Tony Blair surprisingly announced that the treaty would be subject to a referendum in the United Kingdom. (See UK referendum on EU constitution.)

In the event that 80% of EU member states have ratified the treaty after two years (i.e. by June 2006), while one or more member states have “encountered difficulties in proceeding with ratification”, the European Council has agreed to reconvene and consider the situation. The agreement does not specify what the Council may decide to do.

Summary of content

The Constitution consists of the following parts:

Preamble
Part I (no title)
Part II: The Charter of Fundamental Rights of the Union
Part III: The Policies and Functioning of the Union
Part IV: General and Final Provisions
Annexes
Protocols
Declaration

No article in the Constitution is entirely new. Each article is based either on a provision from the existing treaties (revised to a greater or lesser extent, or taken verbatim), or on a provision from the existing Charter of Fundamental Rights of the European Union. Most articles are identical in wording or spirit to their predecessors, others are differently presented, and some are significantly modified.

Existing provisions emphasised or newly codified

The European Union has legal personality. (The European Community has always had legal personality, but the parallel Community and Union structures are now merged into a single legal entity.)
The EU is a union of member states, and all its competences are voluntarily conferred on it by its member states according to the so-called 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 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.
In all areas, the EU may only act (i.e. make laws) where member states agree that action of individual countries is insufficient (the so-called principle of subsidiarity).
In all areas, the EU may only act to exactly the extent that is needed to achieve its objectives (the so-called principle of proportionality).
Member states have obligations: to ensure implementation of what is decided at EU level; to support the EU in achieving its tasks; and not to jeopardise EU objectives.
EU law has primacy over the laws of member states in the areas where member states allow it to legislate. (This principle has been the case since the Community was founded in 1957. It is the principle from which the judgements of the European Court of Justice derive their legitimacy.)
The EU has a flag, an anthem, and a motto. (These have long been recognised, though never formally in a treaty.)
The member states declare that their mutual values are liberty, democracy, respect for human rights, the rule of law, human dignity, equality, and minority rights. Society within the EU is built on pluralism, non-discrimination, tolerance, justice, solidarity, and equality of the sexes. (These provisions are obviously not new, but some are codified for the first time.)
The institutional structure of the Union is unchanged: European Council and European Parliament legislate, European Commission makes proposals and carries out what is agreed. All EU laws are subject to the approval of both Council and Parliament.
The EU has six exclusive competences, unchanged from previous treaties. These are areas in which member states have agreed that they should act exclusively through the EU and not legislate at a national level at all:
- customs union;
- those competition rules that govern the internal market;
- eurozone monetary policy;
- conservation of marine biological resources (the Common Fisheries Policy);
- common commercial policy;
- the conclusion of certain limited international agreements.
There are a number of shared competences. These are areas in which member states may act alone only where they have not acted through the EU, or where the EU has ceased to act (except in a few areas, where member states may act both nationally and through the EU if they wish). These are mostly unchanged from previous treaties, with three new competences added (see below).
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, and the Union may only act to support the work of the member states. These areas are also mostly unchanged from previous treaties, with three new competences added (see below).
The EU is charged with defining and implementing a common foreign and security policy. (This has not yet been done, but the wording is taken directly from the Treaty on European Union.)
The flexibility clause allows the EU to act in areas not made explicit in the Constitution, but only if all member states agree, with the consent of the European Parliament, and where this is necessary to achieve an agreed EU objective. (This clause dates back to the Treaty of Rome in 1958.)
The EU maintains a dialogue with churches and non-confessional organisations.

New provisions

The EU has conferred upon it as shared competences the areas of territorial cohesion, energy, and space.

The EU has conferred upon it as areas of supporting, coordinating or complementary action the areas of tourism, sport, and administrative co-operation.

The aims of the EU are made explicit, in an attempt to counter the accusation that the institutions are self-serving:

to practise full mutual cooperation;
to promote the agreed values of the Union;
to advance the Union’s agreed objectives;
to serve the interests of the EU’s three elements: citizens, member states, and Union;
to ensure the consistency, effectiveness and continuity of EU policies and actions.

The Commission is obliged to consider any constitutional proposal with the support of one million citizens.

Member states’ national parliaments are given a new role in scrutinising proposed EU laws, and are entitled to object if they feel a proposal oversteps the boundary of the Union’s conferred competences.

Jargon is simplified: ‘European Regulations’ become ‘European laws’, ‘European Directives’ become ‘European framework laws’.

EU institutions are obliged to conform to the same standards of fundamental rights as national institutions.

More decisions in the Council of Ministers are to be taken by qualified majority voting, requiring a 55% majority of member states representing a 65% majority of citizens. The 55% is raised to 72% when the Council is acting on its own initiative. The agreement of all member states is still required for decisions on more sensitive issues, such as tax, social security, foreign policy and defence.
The final say over the EU’s budget is given to the European Parliament. Agricultural spending is no longer ring-fenced, and is brought under the Parliament’s control.
The current six-month rotating Presidency of the European Council will switch to a chair chosen by the heads of government, in office for 2½ years and renewable once. The role will be the same as now, i.e. administrative and non-executive.
The six-month rotating Presidency of the Council of Ministers, which currently coincides with Presidency of the European Council, will be changed to an eighteen-month rotating Presidency shared by a triptych of member countries, in an attempt to provide more continuity. The exception is the Foreign Ministers' Council, which will be chaired by whoever currently holds the office of 'Foreign Minister' (see below).
The present role of Foreign Policy High Representative (currently held by Javier Solana) is amalgamated with the role of the Commissioner for External Relations (currently held by Chris Patten) to create a new so-called ‘Foreign Minister’ and Vice President of the Commission, responsible for co-ordinating foreign policy across the Union and able to represent the EU abroad, where mandated by member states.
The candidate for President of the European Commission is proposed by the European Council, after consultation with MEPs, and elected by the Parliament. Parliament has the final say.
The Commission is to be reduced in size from 2014. There will be fewer Commissioners, with member states taking it in turn to nominate Commissioners.
The Council of Ministers will now meet in public when debating new laws.
The European Parliament acquires equal legislative power with the Council in more areas of policy.
The rules for ‘enhanced cooperation’ are tightened (by which some member states may choose to integrate more closely while others do not). A minimum of two thirds of member states are now needed and the agreement of all member states is needed. On the other hand, the option for enhanced cooperation is widened to all areas of EU policy.
Provision exists for the future creation of a European Public Prosecutor’s Office, if all member states agree and if the European Parliament gives its consent.
Member states will co-operate in criminal judicial proceedings, as at present, but new areas are added: terrorism, trafficking in persons, offences against children, drugs trafficking, arms trafficking, corruption, and fraud.
Previously, treaties could be altered by unanimous agreement of European Council behind closed doors. Any amendments to the Constitutional treaty, however, will involve the convening of a new Convention, similar to that chaired by Valéry Giscard d'Estaing in drafting the original Constitution. This process may be bypassed if the European Parliament agrees. The final say on adopting proposals will continue to rest with the Council.
The solidarity clause specifies that any member state which falls victim to a terrorist attack or other disaster will receive assistance from other member states, if it requests it. Arrangements will be decided by the Council.
A new clause allows for the withdrawal of any member state without renegotiation of the Constitution (or current treaties), which was not previously possible. Under this clause, when a country notifies the Council of its intent to withdraw, a settlement is agreed in the Council with the consent of the Parliament. If negotiations are not agreed within two years, the country leaves anyway.

Controversy

Length and complexity

Critics of the Constitution point out that, compared to many existing national constitutions (e.g. the 4,600-word US Constitution), the European Constitution is very long, at around 265 pages and over 60,000 words in its English text.

A common response to this is to point out 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 voting

For about 26 decision-making areas, the requirement for unanimity in the Council has been changed to a requirement for a qualified majority of both member states and citizens. Opponents of the Constitution argue that this demonstrates a palpable loss of sovereignty and decision-making power for individual countries. Defenders argue that it was necessary to prevent decision-making from grinding to a halt in the enlarged Union.

Status of the constitutional treaty

It has been argued that to call the document a ‘Constitution’ rather than a ‘treaty’ implies an unacceptable 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.

EU law and national law

Critics 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.

However, the question of whether the arrangement is considered acceptable in the first place is still an issue for debate.

Trappings of statehood

It 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 eurosceptics see as a shift towards the future creation of a single European state, and the corresponding loss of national identity.

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.