A Constitution for a Federal European State

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Anthony Coughlan considers some key issues surrounding Giscard's Convention on the Future of Europe and its proposed outline for an EU Constitution.



The peoples of the EU have not sought a Union State Constitution. The decision to draw one up has come from the top down, not from the bottom up. Four-fifths of the members of the Convention on the Future of Europe are federalists, who want a more centralised supranational EU, with consequent further diminution of national democracy and independence, and less control over policy by elected national parliaments. The fact that governments have nominated senior politicians to the Convention, such as German Foreign Minister Joschka Fischer, is an indication that the document finally adopted will be close to the Constitution or Constitutional Treaty that will eventually be signed by the EU Member Governments, and that will be put around for ratification in 2004.



The Convention drafting this Constitution is fundamentally undemocratic. There has been no consultation with citizens on the subjects it will discuss. There is no provision for members of the Convention to get the views of their national parliaments and peoples beforehand on the topics being considered. Nor will there be any chance for the peoples of the EU Member States, or their national parliaments, to give their views or to vote on the recommendations of the Convention before their incorporation into the next EU Treaty. Once incorporated, this Treaty will be pushed around for ratification in all the EU States, only a handful of which will have referendums on it.



A union constitution will override national constitutions in any case of conflict



This is already a basic principle of EU law. The superiority of the EU Constitution is explicitly set out in Article 8 of the proposed draft Treaty. This is a constitution for an EU federal state, within which national states must necessarily become local states, provinces or regions, rather than international actors in their own right.  There is no European "demos" or people that could give legitimacy to a democratic EU federation, unlike, for example, the American, German or Australian peoples, who are citizens of federal states.



Article 1 of the draft Treaty establishing a Constitution for Europe refers to the decision to establish "a Union of European States which, while retaining their national identities, closely coordinate their policies at the European level, and administer certain common competences on a federal basis."



This proposes for the first time that the word "federal," which refers to a State, should be used in an EU Treaty. While the word may be dropped in the final version because of its political sensitivity, it recognises the reality that the EU already has many of the features of a Federation, that is, a State where governmental power is divided between the Federal and national/provincial/regional levels, and where federal law takes precedence over local state law. For example, the EU has its own citizenship, and one can only be a citizen of a State. It has clearly defined external borders and free movement of persons within those borders. It has its own Executive (the EU Commission), Legislature (the EU Council of Ministers and the European Parliament) and Judiciary (the EU Court of Justice). It has its own currency, economic policy, common foreign and security policy, army ("Rapid Reaction Force") and social policy. It has an embryonic police force in Europol, an embryonic judiciary in Eurojust, a common European arrest warrant that is currently in preparation, and common policies on various justice, home affairs, immigration, visa and asylum matters.



Note the phrase in Article 1 above, "While retaining their national identities." Retaining national identity can be quite consistent with abolishing national independence. Identity and independence are different things. The Irish people were identifiably Irish while they were members of the British Union during the 19th century, as Scotland and Wales maintain their national identities within the UK today, as Bavaria has its identity within the German Federation, Florida within the US one, and Quebec within Canada. Kurds, Palestinians, Chechyns and many other peoples around the world possess a clear national identity, but do not have political independence or a State and Government of their own.



The name. EC? EU? United States of Europe? United Europe?















 

What the Union State is called (Article 1) is of small importance compared to what it is. Talk of a name is likely to lead to much irrelevant posturing, designed to conceal rather than draw attention to the nature of the animal being created. Article 1 states that the "Union is open to all European States which share the same values and commit themselves to promote them jointly." This implies that Russia should, in principle, be able to join the EU, but is Turkey, most of whose people live in Asia, a European State?



A new constitutional basis for the EU: The EU to have legal personality distinct from its member states

 

Article 4 of the Constitution gives the Union legal personality. Up to now the EU has been the creature of its Member States. It is an international organisation established by treaties between its members, with some agreed supranational elements. Large areas of policy, such as foreign affairs and justice and home affairs are still "intergovernmental" rather than supranational. A Union Constitution is conceptually different. It aims to give the EU a new constitutional basis by establishing it as an international federal actor in its own right, with its own legal personality different from, and in some respects superior to, the legal personality of its Member States. The Constitution sets out the division of power between the Federal level of the Union and its Member States, making clear that the former is superior (v Article 8). It breaks down the existing division between the three "Pillars" of the Treaties - the supranational Community pillar where EU law applies, and the intergovernmental pillars of foreign policy and justice/home affairs policy, and creates one unified constitutional political system, with a single institutional structure (Article 14).



Obtaining its own legal personality would enable the EU to sign international treaties in its own right, without need of separate ratification by its Member States. It would permit the EU to have its own diplomatic representation and be represented, for example, on the UN Security Council, where two of its 15 Member States, Britain and France, have permanent seats at present.



Citizenship of the Union: One can only be the citizen of a state






Article 5 deals with Union citizenship. It states that every citizen of a Member State is a citizen of the Union and enjoys dual citizenship. "The article establishes the principle that there shall be no discrimination between citizens of the Union on grounds of nationality." On the face of it, this means that a foreign national could become President of one's country, or a member of its parliament, or a Judge, that non-nationals would acquire the right to vote in national general elections, and that the civic and national rights of citizens in every EU country should be acquirable automatically by the nationals of other EU States.



Handing control over our human rights to the EU Court of Justice



Article 6 aims to make the EU Charter of Fundamental Rights, which was endorsed politically in the Treaty of Nice, binding in EU law as part of the Union State Constitution. The EU should naturally respect and abide by human rights, but it is a different matter to say that the 15 male judges of the EU Court of Justice - the Court has no woman member - should be given the final power to decide what our rights are. The clear intention of those drafting this Constitution is to give the EU Court of Justice (ECJ) in Luxembourg a final competence in human rights matters, as against national Constitutions and Supreme Courts, and the Court of Human Rights in Strasbourg.



Many elements of the EU Charter of Fundamental Rights are matters for Member States. If the Charter becomes justiciable before the EU Court of Justice by means of this Constitution, such a development would be a further instrument for subordinating the Member States to the Union centre. Some rights listed in the Charter refer to areas of shared competence between the EU and Member States, e.g. consumer rights. Others are largely nationally based, for example rights to health care and education. If the Charter becomes justiciable in EU law and a citizen sues for breach of rights, the ECJ will have major scope for deciding the boundaries between the EU and national levels and for extending the scope of the former as widely as possible, as has been the tradition of its jurisprudence.



Human rights standards in the EU Member States are not so defective that they require improvement by giving final control over them to the EU Court in Luxembourg, which operates on the basis of the supremacy of EU law. If the EU wishes to be bound by a code of rights, why does it not accede to the EU Convention of Human Rights, as its 15 Member States have already done? But that would be to put the ECJ under the jurisdiction of the Court of Human Rights in Strasbourg, which adjudicates on the Convention. It would no longer be supreme. In January 2000 the Parliamentary Assembly of the Council of Europe unanimously warned against the creation of two different categories of rights, those long guaranteed uner the Council of Europe's Convention on Human Rights and the provisions of the EU Charter of Fundamental Rights if made binding in EU law, as is intended in Giscard's Constitution.



If the Charter is made binding in EU law by incorporating it in a Union Constitution, all EU legislation and all judgements of the Court of Justice will acquire a new legal dimension, that of human rights as defined in the Charter. This will open vast scope for new EU and ECJ legislative and judicial intervention in people's lives, ostensibly out of concern for people's rights, but in practice removing final jurisdiction over these from national Constitutions and the European Court of Human Rights and transferring it to Luxembourg and Brussels. The Euro-centralisers in the Convention that drew up the Charter envisaged that once it is supreme in

European law through incorporation in an EU Treaty, there will gradually be established a system of binding convergence indicators for cross-national "harmonisation" of rights, a multi-annual implementation programme and a system of monitoring of national human rights standards by the EU. The scope opened up thereby for Brussels interference in people's day-to-day lives and for social policy-making by non-elected Euro-judges rather than by national parliaments and governments, is mind-boggling.



The EU Charter of Fundamental Rights has more to do with power than rights. Most of the rights set out in the Charter sound splendid - except that we already possess them under our national Constitutions and the European Convention on Human Rights, and they are mostly already fully in being, guaranteed by our national laws and enforced by national courts. The only reason for seeking to give the EU a human rights competence is the desire to turn the EU into a State, with a Constitution and human rights code that gives its Supreme Court, the ECJ, the final say on what our rights are. This is because the historical experience of national and

multinational Federations has been that common human rights standards, enforced by a central legislative body and a federal Supreme Court, can be a powerful weapon in subordinating national and local courts and Constitutions to central rule.



Human rights cover virtually every field of human life. While there is widespread consensus on what constitutes people's core human rights, there is no agreement on some highly sensitive areas. Due legal process, for example. Britain and Ireland have "habeas corpus" and trial by jury, whereas some EU States permit preventive detention, without the right to be brought before a court. Some countries legalise hard drugs and license prostitution. Others forbid these. Property rights, rights of succession, family law, rights relating to children, marriage and education, the gender exclusiveness of religious and clergy, rights attaching to State churches, the treatment of refugees, environmental controls, differ significantly between EU Member States. Everyone agrees that people have a right to life. But when does life begin, when does it end? Countries differ widely in their laws on abortion and euthanasia, which relate to the beginning and end of life. Should such matters be decided by a common standard laid down

in the case-law of the ECJ in Luxembourg which is applicable right across the European Union? All genuine democrats will resist such a development, whatever their views on specific rights or particular cases.



If a right is "fundamental" it must be valid in all circumstance. That is why many State Constitutions logically regard fundamental rights or human rights as being superior and antecedent to all positive law, and thus as based not on man-made law, but on the law of nature or natural law. This is not a principle accepted in the EU Treaties or the EU Charter of Fundamental Rights. The Charter begs the question of what constitutes a greater or lesser protection of a right. For example, euthanasia is legal in the Netherlands, but most countries forbid it. Any uniform system of EU fundamental rights would give the ECJ ultimate decision on such matters.


















 

There are many other similar issues in which the rights accorded by one EU country differ significantly from those of others. This Charter adds nothing new to the rights of citizens of the EU Member States and may in fact weaken certain rights when these come to be interpreted in the EU Court, if that court should obtain a human rights competence under the proposed Union Constitution.



In one respect the fundamental rights set out in the EU Charter do not appear to be so fundamental after all. Article 52 of the Charter permits limitations on these personal rights in pursuit of the objectives of the Union. How can a court, even an EU Court, override a fundamental right, or permit it to be limited in the interests of the Union? The objectives of the Union, set out in Article 3, are broad in scope and many-sided. Furthermore, transferring the ultimate protection of these rights to the EU, as against national Supreme Courts or the Court of Human Rights in Strasbourg, would involve further procedural delays and additional expense for individuals, all to enhance the status of the Union and its Court of Justice, but conferring no benefit on individuals and in no way strengthening the real rights of Member State citizens.



As with all EU social policy-making, the Fundamental Rights Charter, if made binding, will have economic effects. It will impose higher costs on businesses through imposing extra EU obligations on top of national ones. It will tend to raise taxes at national level by imposing new EU obligations on national governments. And as with all such measures, however desirable they may be in themselves, they will affect poorer countries more than rich ones and weaker companies more than strong ones, and thereby adversely affect employment and economic growth prospects in the poorer and weaker economies.



The primacy of European law over national law







Article 8 "establishes the primacy of Union law in the exercise of the competences conferred on the Union." It also says that "any competence not conferred on the Union by the Constitution rests with the Member States." This is like the 10th Amendment to the US Constitution, adopted in 1791, which says that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The 10th amendment has not prevented the USA from developing into a fully-fledged Federal State.



An obligation of "Loyal Cooperation" vis-à-vis the Union



Article 8 also "sets out the obligation of loyal cooperation of Member States vis-à-vis the Union, and the principle that the acts of the Institutions are implemented by the Member States." The word "loyal" is significant. The Member States owe an obligation of loyalty to the Union, which indicates the constitutional/political superiority of the latter and its Federal State character. This article would impose an obligation on Member States to refrain from any action at national level which is contrary to the interests of the Union or likely to impair its effectiveness. Such an article, if included in the Constitution, could be used by the EU Court of Justice when reaching its legally binding judgements.



The import of this article is that national governments must give priority to Union objectives, even in areas of policy that have not been transferred to the EU. But what if these Union objectives conflict with national political objectives, especially if the latter have been democratically confirmed by an electoral mandate at home - for example a country's desire to oppose the EU Rapid Reaction Forces's involvement in a war, or to resist EU tax harmonisation, or a government's commitment to expand public spending to counter deflation, even if that might be in defiance of the EU's Growth and Stability Pact?





The President of the Council as an EU President, with the Commission President as an EU Prime Minister

Article 15 b reads: "When the Convention has discussed it, this article could establish the terms of office and appointment procedure for the Presidency of the European Council, its role and responsibilities." The Big States are pushing for a permanent European Council President, instead of the present six-monthly EU presidencies that are shared equally amongst the Member States. Article 18 bis "would establish the role and appointment procedure for the Presidency of the Commission." The Treaty of Nice confers on the Commission President powers similar to those of a national Prime Minister, such as the right to shuffle and reshuffle cabinet portfolios, to require the resignation of national Commissioners and to have a significant role in their nomination. The relation between the Council President and the Commission President under the Union Constitution could be similar to that between an executive national President, as in France or the USA, and a national Prime Minister, with the European Council President having a major role in representing the EU internationally and in foreign policy.










The Commission remains in the driving seat of EU legislation



Article 18 confirms that the non-elected Commission would retain the monopoly of legislative initiative in the EU, as against elected parliaments. Under the Treaty of Nice the Commission comes much more under the influence of the Big States than hitherto, through their weight in appointing the Commission President and national Commissioners by means of qualified majority voting, and the increased powers of the President.



A Congress of the Peoples of Europe



Article 19 is "To be drafted in the light of the Convention's work." This proposed new EU institution is very much Giscard d'Estaing's own idea. The Article "would determine the composition of such a Congress, the procedure for appointing its members and define its powers."



A Common Defence Policy



Article 30 "would set out implementing procedures in the sphere of common defence policy."



Participatory democracy through "Citizens' Organisations"



Article 34 "sets out the principle of participatory democracy. The Institutions are to ensure a high level of openness, permitting citizens' organisations of all kinds to play a full part in the Union's affairs." Brussels is already peopled by self-appointed citizens' organisations, many of them funded by the EU, whose purpose is to lobby for EU funds or be nominally consulted by the EU institutions. They provide the facade rather than reality of democracy however. The Union's key decisions are taken elsewhere, with minimal popular control and democratic involvement.



A uniform election procedure for the European Parliament



Article 35 "would refer to a protocol containing provisions for elections to the European Parliament by a uniform procedure in all Member States." This entails the same election system for the European Parliament in all EU States, with EU funding for cross-national political parties, as provided in the Treaty of Nice.



Withdrawal from the Union



Article 46 "would mention the possibility of establishing a procedure for voluntary withdrawal from the Union by decision of a Member State, and the institutional consequences of such a withdrawal." The Constitution of the former USSR had a similar provision, which none of its constituent republics ever exercised.



Constitutional ratification and simplification of the EC/EU Treaties



The draft Union Constitution is envisaged as being divided between fundamental and non-fundamental elements, with the former, "Part 1: Constitutional Structure," requiring treaty ratification for their amendment, and the latter, "Part 2: Union policies and their implementation," probably not requiring that. It has been suggested that the Union Constitution should provide that States that do not ratify it should have to leave the EU or have some semi-detached relation with the Union. Another possibility is that some provisions of the Constitution should come into force for an inner group of States that wanted them, but remain optional for others, as is now legally permissible under the "enhanced cooperation" provisions of Treaty of Nice.




























Anthony Couglan is national secretary of Ireland's EU-critical National Platform. The National platform is a broad movement rather than part of the left, and welcomes the participation of EU critics from across the democratic political spectrum. There are clearly parts of this analysis with which Spectre readers who share our broad views would not agree. We publish it to provoke debate around the issue of the Convention and proposed EU Constitution, and will publish more articles on the subject in the near future. The National Platform, can be reached at 24 Crawford Ave., Dublin 9, Ireland. It is affiliated to The European Alliance of EU-Criticalv Movements(TEAM), which can be contacted via its Secretary-General Henrik Dahlsson, at TEAM,The European Parliament, rue Wiertz 2H 246, 1047 Brussels, BELGIUM; E-mail: hdahlsson@europarl.eu.int;  Website: www.teameurope.info