Understanding the Constitutional Treaty, and why it must be stopped.


March 25, 2005 10:24 | by Irish National Platform

The Irish National Platform, an EU critical research group based in Dublin, has produced the following detailed analysis of the proposed EU Constitutional Treaty, which British readers will have the chance to vote on next year, while those in the Netherlands (1 June) and France (29 May) will be able to do so sooner than that.


The most important thing the proposed Constitution does is to give the EU the constitutional form of a European Federal State. This EU State would not yet have all the powers of a fully-fledged State. It could not yet impose taxes or force its members to go to war against their will. But apart from that, a post-Constitution EU would have most of the powers and features of Statehood.

The Constitution proposes to give the EU the constitutional form of a State by four logical legal steps:

(1) It repeals the existing EU and EC treaties and thereby abolishes the existing European Union and Community(Article IV-437);

(2) It establishes in their place what would constitutionally,legally and politically be quite a new European Union, based like any State upon itsown Constitution(Article I-1);

(3) It asserts the primacy of this Constitution and laws made under it over the Constitutions and laws of its Member States(Article I-6);

(4) It gives this new Union legal personality for the first time so that it may conduct itself as a State amongst the international community of States(Article I-7).

The Constitution also proposes important changes in the rules of running the EU. It would surrender some 60 further areas of national policy or decision-making to Brussels. It would take significant steps towards militarizing the EU. It would give the new Union the power to decide our basic rights for the first time in all areas covered by EU law, which is now vast and growing.

Most national political leaders can be expected to take a wholly uncritical view of the EU Constitution because the more national powers are transferred to Brussels,the more power accrues to themselves personally,as they make supranational laws for 450 million people on the 25-member EU Council of Ministers. However citizens lose their power to decide their own laws thereby. They lose their right to political self-determination and their national independence and democracy.

Every effort has been made to ensure that the legal facts on the proposed Constitution in this 12-point Summary are correct. The political judgements are of course a matter ofopinion. In the comments below on the national vetoes abolished we have drawn on thevaluable legal notes on the Constitution carried on the web-site of the British Vote No Campaign, www.vote-no.com, as well as on material published by the Democracy Movement.

Summary of the EU Constitution and why it should concern us


Below is a 12-point summary of the EU Constitution, which is contained in the "Treaty Establishing a Constitution for Europe" that was signed in October 2004. Some 10 countries will be holding referendums on this between now and autumn 2006. Download the "Reader-Friendly Edition of the EU Constitution", which will give you its full text, together with a useful index, glossary and other information, from http://www.euabc

The Constitution has 448 Articles and is divided into four parts, indicated by Roman numerals.It has 36 Protocols and 48 political Declarations attached and is over 400 pages long.

Where the EU Constitution came from

In 2001 the Laeken Declaration of EU Presidents and Prime Ministers set upthe "Convention on the Future of Europe" to consider the widely acknowledged problem of the lack of democracy in the EU, and how to make the EU less centralised and bring it closer to citizens. The Declaration referred to the possibility of restoring powers from the EU to its Member States and mentioned the drafting of a Constitution only as a possibility "in the long run". But instead of making proposals for a more democraticand less centralised EU, the Euro-federalists who dominated the Convention rushed headlong into drafting a Constitution which proposes replacing the existing EU by a new Union in the constitutional form of an EU Federation.

The Constitution they drafted does not propose restoring a single power from Brussels to the Member States, but instead shifts many more powers from the Member States to Brussels. One reason why most national political leaders can be expected to take a wholly uncritical view of it is that every transfer of national power to Brussels increases their own personal power at EU level, where they make laws for 450 million Europeans on the EU Council of Ministers. At national level Government Ministers are part of the executive arm of government and require the support of elected national parliaments for their policies. At EU level these same people are transformed into supranational legislators for over half a continent. It is unsurprising that this appeals to Ministers and aspiring Ministers. This huge increase in the power of a tiny number of politicians comes at at the expense of a reduced say for ordinary citizens, the loss of their right to decide who will make their laws and with it their national independence and democracy.


The "Treaty Establishing a Constitution for Europe" sets out to create an entirely new, totally different and vastly more powerful EU entity in the constitutional form of a Federal European State, without changing the "EU" name.

What is called the "European Union" at present is a descriptive term for various forms of cooperation between its Member States(See Title 1,Article A, of the Maastricht Treaty on European Union,1993). One of these forms is the European Community(EC). This still exists. It has legal personality separate from its Member States, all 25 of which still belong to it. In the 1960s the EC Court of Justice declared Community(EC) law to be supranational and to have primacy over national law in any case of conflict between the two,although this has never been laid down in any Treaty. The European Community(EC) covers mainly the economic and single market area, including the euro-currency. Here the Community Member States are regarded as having "pooled" their sovereignty and the EC Commission as having the exclusive right to propose EC laws.

In all other areas of government the EU Member States have retained their independence and sovereignty, and cooperate with one another as free and equal partners internationally, or "intergovernmentally" in EU terminology: in foreign and military matters, crime and justice matters, and national policy on health, housing, education,social security, culture etc. If the proposed Constitution were ratified we would stand to lose our independence from the EU in such areas.

The proposed Treaty-cum-Constitution would equip the EU with teeth. The "European Union" that we are currently members of refers to all these different forms of cooperation taken together. However the present EU does not have legal personality or an independent corporate existence in its own right. There is therefore, strictly speaking, no such thing as "European Union" law, only "European Community" or "EC" law. The Constitution's supporters generally mix up the terms "Union" and "Community" to prevent people realising that the proposed new European Union, based on its own Constitution, would in legal and political terms be fundamentally different from the EU that we are currently members of. The new Union would become our real sovereign. We would be real citizens of it for the first time, not just honorary ones as we are told we are at present, and we would owe it and its institutions real allegiance.


The "Treaty Establishing a Constitution for Europe" gives the EU the constitutional form of a European Federation in four logical legal steps:

STEP ONE is to repeal all the previous European treaties from the 1957 Treaty of Rome to the 2003 Nice Treaty and thereby abolish the existing European Union and European Community. Article IV-437 provides: "This Treaty establishing a Constitution for Europe shall repeal the Treaty establishing the European Community, the Treaty on European Union and...the acts and treaties which have supplemented and amended them."

STEP TWO is to establish in their place what is constitutionally, legally and politically quite a new European Union,founded like any State upon its own Constitution. Article I-1 provides: "Reflecting the will of the citizens and States of Europe to build a common future, this Constitution establishes the European Union..." A Constitution in this context, as distinct from a Treaty, is an independent source of legal authority for a State. The EU Constitution lays down that the new Union would be the legal successor of the existing EU and EC and that it would take over the 100,000 or so pages of existing Community law, as the Community would be henceforth defunct(Art.IV-438). Those pushing the Constitution believe that because the same name,"European Union",is used before and after, people will not notice the enormous legal-political significance of the change being proposed.

STEP THREE is to lay down that the EU Constitution and laws made under it shall have primacy over the law, including the Constitutional Law,of its Member States, just as in any Federal State, without any qualification or exclusions. Article I-6 provides: "The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States." This primacy of supranational European law has never been stated in a European Treaty before. Unlike the present EU and the treaties it is based on, which recognise that Member States remain independent and sovereign in certain areas, the proposed Constitution for this new Union would bring ALL areas of government policy within its scope either actually or potentially. The EU Constitution would become the fundamental source of legal authority for the new Union, supplanting the national constitutions of the Member States in that respect,and national constitutions and laws would have to be changed to recognise this fact. The superiority of the EU over its Member States is also evident in the important second sentence of Article I-1 which establishes the new Union: "The Union shall coordinate the policies by which the Member States aim to achieve these objectives(i.e.the objectives and values they have in common), and shall exercise on a Community basis the competences they confer on it." As Convention Chairman V.Giscard d'Estaing has remarked: "It wasn't worth creating a negativecommotion with the British. I rewrote my text with the word federal replaced by communautaire, which means exactly the same thing."

STEP FOUR is for the EU Constitution to give this new European Union legal personality and its own separate corporate existence for the first time, so that it can make treaties in its own right with other States and conduct itself as a State in the international community of States. Article I-7 provides: "The Union shall have legal personality." This Article would make the new EU legally separate from its Members, just as the USA Federation is separate from its constituent members states such as Texas or New York, which retain their own state constitutions but are subordinate to the US Constitution.

By these four steps the "Treaty Establishing a Constitution for Europe" would establish a new European Union in the constitutional form of a Federal European State, within which the present sovereign Member States would have the constitutional form of provinces or regions. This new federal EU would not yet have all the powers of a fully-fledged Federation.

The two principal powers it would lack would be the power to levy taxes and to compel its component memers to go to war against their will. But otherwise it would possess all the main features of Statehood, including those set out in the Montevideo Convention governing the recognition of States in international law. Those pushing the EU integration project are confident the EU will obtain these two remaining powers in time. The Constitution gives the EU flag,anthem, motto and annual Europe Day a legal basis in a European treaty for the first time,as the State symbols of the EU Federation it establishes(Art.I-8).


The Constitution would replace the system of weighted voting for making EU laws that was agreed in the Nice Treaty to allow for EU enlargement, by a new "double majority" system of States and populations(Art.I-25). This would mean that 55% of the Member States, at least 15, could outvote 10 as long as they included 65% of the EU's total population.

The Constitution would abolish some 60 further national vetoes on areas of EU public policy-making or decision-taking, in addition to those already abolished by the Nice Treaty and earlier treaties(See the list below). The abolition of the national veto in so many policy areas, so that countries can increasingly be out-voted by other countries on new EU laws, would cost us crucial influence in the EU Council of Ministers. This is the 25-member body that makes EU laws based on proposals from the Commission. On it each Member State has one Minister out of 25 and has a percentage of the EU's total population weight.

Influence is based on power - without the power to veto EU laws, we can make our views about them known but there is no reason why they should be taken into account. The proposed shift to a mainly population-based system for EU law-making would make it easier for Big States to get their way, especially if they combine, as France and Germany continually do, and would reduce the relative voting strength of medium-sized States. It would make EU laws easier to pass,which means there would be more of them. Ministers claim this would be an increase in efficiency, but more EU laws do not necessarily mean better ones.

The Constitution would also create a full-time EU President for up to five years by majority vote of the EU Presidents and Prime Ministers(Art.I-22). This new EU President would be a considerably more powerful figure than the existing rotating Council presidents and would preside over EU "summit" meetings, yet would not be directly elected by voters or even the European Parliament. The Constitution also provides for a rotating EU Commission so that individual Member States would have no representative for one-third of the time on this body that proposes EU laws to the Council of Ministers, which then makes them(Art.I-26).


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, competition rules for the internal market,fisheries conservation and trade agreements with other countries(Art.I-13). The EU's sole power to sign international treaties with other States in these areas would be extended to cover international agreements arising from other Union policies(Art.I-13.2). Together with the treaties to be signed under the Common Foreign and Security Policy or by the new EU Foreign Minister(see Point 6 below), the Constitution would deprive Member States of most of their present treaty-making powers (Art.III-323).


The Constitution lists a wide range of government policies where power is stated to be "shared" between the EU and its Member States(Art.I-14). These include the internal market, social policy, agriculture and fisheries, environment, consumer protection, transport, energy, the area of freedom, security and justice,and "common safety concerns in public health matters".

This is a peculiar kind of sharing,for as the new Union is constitutionally primary or superior, the power of elected governments to make laws unless the EU decides not to is essentially residual and on sufferance.Thus Article I-12 provides: "The Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising,its competence."


The Constitution would give the EU the power to take "supporting, co-ordinating or complementary action" in a further range of vaguely-defined areas including the "protection and improvement of human health", industry, culture,tourism, education, youth, sport, vocational training, civil protection and administrative co-operation(Art.I-17).

It would give the EU new powers to "co-ordinate" economic, employment and social policies(Arts.I-15). A Federal cooordinator would be superior to the constituent states it coordinates and the new EU would be constitutionallyrequired to coordinate all policies by which the Member States aim to achieve the very wide objectives and values they have in common(Arts.I-1,second sentence, and I-3). Article III-210 lists the manyareas of social policy where the EU would have the right to "support and complement" the activities of Member States. Article III-147 would allow the EU to enforce the "liberalisation" and privatisation of "services",which would include public services like health, education, social security and housing, as well as cultural services.


The Constitution 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 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, as against the existing treaty requirement to "support" these (Art.I-16;ex-Art.11TEU).

A State could be referred to the EU Court of Justice for breach of its obligations under this Article, as the Court is not excluded from acting in relation to it(Art.III-376).

Member States would be constitutionally obliged to consult one another in the EU Council "on any foreign and security policy issue which is of general interest in order to determine a common approach" and "before undertaking any action on the international scene or any commitment which could affect the Union's interests"(Art.I-40). These provisions clearly rule out an EU Member State pursuing an independent foreign policy.

The Constitution would create an EU Foreign Minister, who would be responsible for conducting the common foreign and security policy and would preside over the Council of national Foreign Ministers. These nationally elected politicians would come and go while the EU Foreign Affairs Minister presided for five years (Art.I-28). The Constitution also provides that "When the Union has defined a position on a subject which is on the United Nations Security Council agenda, those Member States which sit on the Security Council shall request that the Union Minister for Foreign Affairs be asked to present the Union's position" (Art.III-305). The Constitution would also create an EU diplomatic service (Art.III-296). It would clear the way for the EU to negotiate, sign and ratify international treaties on foreign policy and security matters on behalf of its Member States (Arts.III-323 and 325). It would delete the clause in the current treaties which allows Member States to opt out of international agreements if their constitutions require them to be ratified by national parliaments (Art.III-325;ex-Art.24.5TEU).

The Constitution would require all Member States, including the neutral ones, to "make civilian and military capabilities available to the Union for the implementation of the common security and defence policy" and to "undertake progressively to improve their military capabilities" (Art.I-41) This provision amounts to a constitutional obligation on Member States to work towards a more militarized EU.

The provision in the Nice Treaty that the progressive framing of a common EU defence policy "MIGHT LEAD to a common defence, SHOULD the European Council so decide"(Art.17TEU), becomes in the Constitution that it "WILL LEAD to a common defence, WHEN the European Council,acting unanimously, so decides" (Art.I-41). The formal ending of the neutrality of the neutrals is clearly only a matter of time.

The Constitution would permit a sub-group of Member States to be formed by qualified majority vote in the military and defence area, even though some EU Members may be opposed to that(Art.III-312). Such a sub-group, to be known as "permanent structured cooperation", would be empowered to make special military arrangements among themselves, establish EU "battle-groups" and undertake military missions abroad without involving other EU members "in accordance with the principle of a single set of forces" (Protocol No.23). This "principle of a single set of forces" clearly points to an emerging EU army under "structured cooperation". Thismechanism would be a way for the EU's military heavyweights to get around the slowness of the neutrals to embrace EU militarization.

The Constitution also includes the EURATOM Protocol(No.36) which amends the European Atomic Energy Treaty that supports nuclear power and continues the EURATOM Community in being indefinitely under the Constitution's provisions.


The Constitution would allow movement towards an EU criminal justice system on the continental model, which does not have juries or "habeas corpus",i.e.the right to be brought before a judge to have one's detention legally and publicly justified. This is to be done through harmonisation of national laws and mutual recognition of judicial and extra-judicial decisions(Arts.I-42,III-260,269,270) and giving the new EU the power to set down common definitions of criminal offences and sanctions for serious crime with a cross-border dimension (Art.III-271).

The role of Eurojust, which links justice systems across the EU, would be extended from "co-ordination" of criminal prosecutions to include also their "initiation", and the extension of Eurojust's "structure, operation, field of action and tasks" would be permitted(Art.III-273). An EU Public Prosecutor's Office is proposed (Art.III-274), to undertake EU prosecutions in national courts,initially for offences of fraud against the new EU, but open to extension by unanimous agreement of the EU Presidents and PrimeMinisters to cover any serious crime with a cross-border dimension.

Europol,the EU's embryonic federal police force, whose officers enjoy immunity from criminal prosecution (Protocol 7), would be given new powers, including the collection and processing of information and "the coordination, organisation and implementation of investigative and operational action carried out jointly with the Member States' competentauthorities or in the context of joint investgative teams" (Art.III-276;ex-Art.30TEU).


The EU Constitution would for the first time give the EU Court of Justice the power to decide our rights. This would be in all areas covered by EU law, which is now vast and growing. Most EU policies and decisions can be construed as having a human rights dimension. It would remove the final say on rights issues in these areas from national Constitutions and Supreme Courts,or the Court of Human Rights in Strasbourg, which is independent of the EU Court.

It does this by including the EU's "Charter of Fundamental Rights" as Part II of the four-part Constitution, making it legally binding and giving the EU Court the power to apply it. EU rights law in these areas would override national law and have direct effect. This includes Article II-112 which sinisterly allows "limitations" of basic rights in the general interests of the EU. The Preamble to the Charter in the Constitution states that it will be interpreted in the light of the "Explanations" set out in Declaration 12. One of these allows the death-penalty to be imposed "in time of war or during the immediate threat of war",even though all Member States have abolished the death penalty nationally.

Article II-114 would forbid any political campaigning to reverse any aspects of the Charter. Giving the EU Court of Justice the power to decide our rights does not strengthen or improve them one iota. This is more about power than rights,for it would give wide scope for reaching into some of the most intimate areas of our lives to a Court that is notorious for using its case-law to extend EU powers to the utmost. This development would also instal a new tier of expensive lawyers and judges between citizens and the final court of appeal that would decide their rights.


The Constitution would give the EU power to extend its own powers by two devices which avoid the need for new treaties and having to get these approved by citizens in constitutional referendums.

Firstly, the Escalator or "passerelle" clause (Art.IV-444) would allow the European Council of Presidents and Prime Ministers to move EU law-making for many policy areas from unanimity to majority voting, as long as they agree unanimously among themselves and no national Parliament objects; and these days governments determined on a course of action can usually get their way with national parliaments. This provision would allow the Constitution to be amended and the powers of the EU to be significantly extended without further treaty ratification.

Secondly,the Flexibility Clause (Art.I-18) provides 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" on the basis of unanimity. The Constitution replaces an existing Community treaty article which applies only to the internal market, and extends its scope to all policy areas of the new EU, economic policy, monetary policy for the eurozone, civil and criminal law matters, foreign policy, social policy, industry, culture, education, public health etc. These two clauses would mean that the Constitution is not a full guide to its own provisions. The EU's powers are not restricted by the explicit terms of the Constitution and would be likely in time to be extended by these two articles.


The Constitution would give all the above powers to the new EU while setting in stone the EU's current undemocratic structure. The unelected European Commission would keep the sole right to propose new EU laws(Art.I-26). The European Central Bank would stay politically unaccountable through a commitment by all MEPs, EU officials and national governments "not to seek to influence the ... European Central Bank"(Art.III-188). With increased use of Qualified Majority Voting in the Council of Ministers, the chances of being out-voted on EU laws and their being imposed on a country regardless of whether its Government, Parliament and people all oppose them, would increase.


Article I-8 provides that "The currency of the Union shall be the euro." This is so even though at present 13 of the 25 Member States still retain their national currencies and the Constitution enshrines the legal opt-outs of Britain and Denmark from the euro(Protocols 13 and 14). The non-euro countries are regarded as "Member States with a derogation". This includes Sweden, which is legally committed to adopting the euro even though its citizens voted by referendum to retain the Swedish crown as their national currency by 56% to 42% in 2003. The Accession Treaties of the 10 new EU Members commit them to adopting the euro. By ratifying the Constitution all EU States would accept an implicit obligation to do this in time, regardless of the legal opt-outs of the UK and Denmark. The Protocol on the Euro-Group, which is a full part of the Constitution, legally binding on all and signed up to by the 25 Governments, refers to special arrangements among the eurozone countries "pending the euro becoming the currency of all Member States of the Union". Articles III-198 to 202 deal with the transition to the euro for the 23 Member States with a derogation.

For example they are required to treat their exchange rate as "a matter of common interest" and the Commission will periodically report on their progress in moving towards adopting the euro.


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

This is economic neo-liberalism mixed with the corporatist traditions of Big States like Germany and France, whose population size would give them disproportionate influence on EU law-making under the new voting system proposed in the Constitution. Article III-185 makes the deflationary economic policy of the European Central Bank constitutionally mandatory and has contributed to the high unemployment levels of the continental eurozone economies. Article III-166 would permit the EU to decide by majority vote what counts as a public service, which could affect health,education and cultural services, as the Constitution makes "liberalisation" of services constitutionally manadatory (Art.III-147). Article III-156 provides that there shall be no control on the movement of capital either within the Union or between the Union and the rest of the world, although such controls may be called for on occasion to serve the public interest. The Stability and Growth Pact, which imposes rules on national budgets, has been regularly flouted by the Big States but has led to smaller States like Portugal and Ireland being censured (Art.III-194).


One positive change is that the Council of Ministers must meet in public when deliberating and voting on draft EU laws, but the negotiating and bargaining leading up to the laws would still be in private (Art.I-24). A second change is that national Parliaments must be told of new laws the Commission proposes. If one-third of the 25 Parliaments think these laws go too far, they can object. The Commission must then review its proposal, but can still decide to go ahead with it(Protocol No.2 on Subsidiarity). As David Heathcoat-Amory MP, one of the two House of Commons representatives on the Convention, said of this provision: "This is not new; we can object already. It is certainly not a power, as we can object all we like, and the Commission can go on ignoring us. All that we get in this Constitution is a new right to be ignored." A third change is that one million EU citizens could petition the Commission to propose a new EU law to the Council of Ministers, but neither the Commission nor Council need accede to such a petition (Art.I-47). A fourth change is that the Constitution would permit a Member State to withdraw from the new Union, a provision that has featured in other Federal Constitutions, although the arrangements for doing so here would tend to discourage withdrawals (Art.I-60). These are positive proposals, but they could all be introduced without setting up a new European Union in the form of a Federal European State, as described in Point 1 above.


Far from being a "tidying-up exercise" of existing treaties and powers, as governments claim, this constitutional proposal adds up to a fundamental change in the nature of the EU.

In this new Union in Federal constitutional form,the Member States would substantially lose their national independence and democracy and would find themselves reduced to provincial or regional status.

If the proposed Constitution is rejected, the EU will continue on the basis of the Treaty of Nice, with the voting arangements that treaty laid down for an EU of 27 States. The Convention that drafted the Constitution failed to do the job it was set up to do by the Laeken Declaration. By saying No to this EU Constitution citizens can force a proper debate on the kind of Europe that people really want - a more democratic EU,and the restoration of powers from Brussels to the Member States, as was mooted in the Laeken Declaration that established the Convention. The Convention on the Future of Europe should be recalled, put on a more democratic basis and told to make proposals for an EU of this kind. That would be a Europe with National Parliaments and citizens in the lead, not the tiny but powerful political and bureaucratic elites who are pushing this Constitution at national and supranational levels because it gives them personally more power.

This document has been prepared by a small EU-critical research and information centre in Dublin. We receive no public funds and our work is entirely financed out of our own pockets, apart from occasional private donations. We would like to publish this and related material in properly printed form for dissemination across the EU through TEAM, the European Alliance of EU-critical Movements, to which we are affiliated. If you think this work merits supporting, my colleagues and I would ask you to consider sending us a donation to the address below. Any such assistance would be used solely to further our EU-critical work and would of course be acknowledged. For more information, write to Anthony Coughlan, Secretary, The National Platform EU Research and Information Centre, 24 Crawford Ave, Dublin 9, Ireland, at jcoughln@tcd.ie

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