A critical analysis of the EU draft Constitution

international | eu | opinion/analysis Monday December 08, 2003 19:43 by Anthony Coughlan - National Platform

"This is crossing the Rubicon, after which there will be no more sovereign
states in Europe with fully-fledged governments and parliaments which
represent legitimate interests of their citizens, but only one State will
remain. Basic things will be decided by a remote 'federal government' in
Brussels and, for example, Czech citizens will be only a tiny particle
whose voice and influence will be almost zero. ; We are against a European
superstate."

- Czech President Vaclav Klaus, Mlada Fronta Dnes, 29-9-2003

TEAM Working Paper No. 10, 2003:





A critical analysis of the EU draft Constitution














TEAM Secretariat, The European Parliament, Rue Wiertz 2H-246, B-1047 Brussels,
Tel. +32 2 284 65 67, Fax +32 2 284 91 44, E-mail: hdahlsson@europarl.eu.int,
Website: www.teameurope.info

__________________





"This is crossing the Rubicon, after which there will be no more sovereign
states in Europe with fully-fledged governments and parliaments which
represent legitimate interests of their citizens, but only one State will
remain. Basic things will be decided by a remote 'federal government' in
Brussels and, for example, Czech citizens will be only a tiny particle
whose voice and influence will be almost zero. ; We are against a European
superstate."

- Czech President Vaclav Klaus, Mlada Fronta Dnes, 29-9-2003


"We've got to be explicit that the road to greater economic success does
not lie in this cosy assumption that you can move from a single market
through a single currency to harmonising all your taxes and then having a
federal fiscal policy and then effectively having a federal State."

- Gordon Brown, British Chancellor of the Exchequer, The Guardian, 5-11-2003



"An enlarged Union based on Nice is not in the interest of any Member State
; This is not a threat. This is a messenger delivering news."

- German Foreign Minister Joschka Fischer, Irish Times, 14-11-2003


"I don't think any of us would want to put our fate in the hands of the big
countries now".

- Netherlands Finance Minister Gerrit Zalm, Irish Times, 29-11-2003


"One basic formula for understanding the Community is this: 'Take five
broken empires, add the sixth one later, and make one big neo-colonial
empire out of it all.' "

- Professor Johan Galtung, Norwegian sociologist, The European Community, a
Superpower in the Making, 1973, p. 16


__________________




SECTION HEADINGS

1. A Constitution and a Treaty
2. A more centralised, more unequal, more undemocratic EU
3. Where the Constitution comes from ; The undemocratic Convention
4. Refounding the EU on a State Constitution to overrule national Constitutions
5. Creating an EU citizenship ; One can only be a citizen of a State
6. Five ways in which the Constitution gives more power to the EU
- (a) using size of population to make EU laws;
- (b) more EU laws for the Commission to propose and the EU Parliament to
amend;
- ( c) abolishing the national veto in 27 new policy areas;
- (d) "communitising" all government policy under the EU;
- (e) widening the constitutional jurisdiction of the Court of Justice

7. A new Political President for the EU
8. Giving the unelected Commission power to make EU laws directly
9. EU powers and national ones ; The Court of Justice decides
10. Amending the Constitution without further treaties;"The Escalator" and
Flexibility Articles
11. Financing the Union from its own resources
12. An EU Foreign Minister ; A two-tier military Europe
13. The EU Charter of Fundamental Rights ; The ECJ to decide our rights
14. Harmonising civil and criminal law and procedures across the EU
15. A constitutional commitment to joining the euro and abolishing national
currencies
16. How many Protocols? ; Euratom
17. The democratic gloss on the EU Constitution
18. Voluntarily leaving the EU
19. Ratifying and amending the Constitution ; Franco-German threats
20. Conclusion


Appendix 1: Provisional list of new policy areas the Constitution moves
from national parliaments to majority voting on the EU Council of Ministers

Appendix 2: Why the Charter of Fundamental Rights should not be in an EU
Constitution

Appendix 3: Alternative proposals by some Convention members for a
slimmed-down EU: The Europe of Democracies



_________________




1. A CONSTITUTION AND A TREATY

A Constitution is the supreme law of a State, which has primacy over the
laws of its provinces or regions in any case of conflict. It is the
ultimate source of legal authority for the territory it governs. It is
enforced by a Supreme Court, in the EU's case its Court of Justice in
Luxembourg. A Treaty is an agreement between sovereign States, the High
Contracting Parties. What the EU Governments are now considering is a
"Draft Treaty Establishing a Constitution for Europe," to give it its
proper title. It is not a "Draft Constitutional Treaty for the European
Union," as some people who wish to distract attention from its
revolutionary character as an EU Constitution, misleadingly call it. It
re-founds the EU on an entirely new legal basis, its own Constitution, as
in the case of any normal State. It gives the EU legal personality for the
first time and makes it an international actor in its own right, separate
from and superior to its Member States. The new Constitution repeals all
the existing EU Treaties from the Treaty of Rome to the Treaty of Nice,
which become null and void (Article IV- 2). It turns the EU into an
entirely new legal entity, different from and successor to the EU that now
exists. Article IV-3 provides for the EU based on this Constitution to be
the legal successor to the rights, obligations, institutions and property
of the present EU. At the same time the Constitution changes the rules of
running the EU in the interest of the Big States. It adds considerably to
existing EU powers. It is misnomer of course to call it a Constitution for
"Europe." Properly it is "A Constitution for the European Union." Such
ancient European nations as Russia, Switzerland, Norway, Iceland are not
covered by it. The arrogant pretence that the EU is Europe is a piece of
propaganda "spin" that has gone on for years.


2. A MORE CENTRALISED, MORE UNEQUAL, MORE UNDEMOCRATIC EU

The original European Economic Community (EEC) established by the Treaty of
Rome 1957 was a free trade area with a protectionist agricultural policy
attached. The proposed EU Constitution aims to turn the EU into a highly
centralised Federal-type State under the political hegemony of its bigger
members, in particular France and Germany. The EU already has many of the
features of a Multinational State. It makes laws and decides policy for
its member countries and their citizens. Its legislative acquis consists
of over 20,000 laws, amounting to some 100,000 pages of legal text. It has
its own currency and Central Bank, its own military "rapid reaction force,"
its own common foreign and security policy. It has its government
executive in the EU Commission, its legislature in the Council of Ministers
and EU Parliament, its Supreme Court in the EU Court of Justice. It has an
embryonic police force in Europol, an embryonic judiciary in Eurojust, a
common European arrest warrant currently in preparation and common policies
on various justice, criminal, immigration, visa and asylum matters. It has
its State symbols in the EU flag, EU anthem, EU passport, EU car number
plates, EU Olympics, EU youth orchestra, annual Europe Day etc., through
which its ideologues and propagandists seek to foster a kind of
supranational nationalism. It has its own territory and external borders
and a common frontier policing and immigration policy. Does there exist
anywhere in the world an entity with these features that is not a State?

An EU Constitution is an essential step towards full EU statehood.
Conferring legal personality on the EU separate from its Member States
enables it to sign international treaties in its own right and act
internationally like any other State. Article I-10 gives the Constitution
primacy over the national Constitutions of its Member States. It gives
the Union a permanent Political President, with representative functions
similar to the American or French Presidents, a Foreign Minister and a
European Public Prosecutor. It abolishes the rotating six-monthly EC/EU
presidencies that have existed since 1957. It gives it a Code of
Fundamental Rights, which the Court of Justice will apply, greatly
extending the powers of that body. It extends the EU's power to decide
policy and make laws by abolishing the national veto in some 27 new
governmental areas, including civil and criminal law and procedure, so that
national parliaments and citizens will no longer decide them. It changes
the rules for EU law-making to the advantage of the Big States and the
disadvantage of the Small by making size of a country's population central
to EU law-making. This makes it easier for the big Member States to push
through the EU laws they want on the Council of Ministers and block the
ones they do not want. If this Constitution is adopted, the only major
power of government the EU State will not possess will be the power to levy
taxes directly. The Eurofederalists are convinced this is only a matter of
time.

The draft Constitution of four parts, 465 articles and 250 pages that is
now before the Intergovernmental Conference (IGC) masquerades as being the
definitive EU treaty, but it does not succeed in defining a permanent
settlement for the EU, or any lasting balance between Union powers and
those of its Member States. The EU's permanent constitutional revolution is
set to continue. The Constitution envisages the continuation of the EU
escalator, carrying the peoples of Europe's nations towards ever further
integration, with ever more powers shifting from the national to the
supranational level of Brussels, and continual further erosion of the
democracy and independence of Europe's nation states. See Section 10 below
for examples of this.

Like the treaties of Nice and Amsterdam, the Constitution is being
presented as necessary to facilitate EU enlargement. But what have an EU
Foreign Minister, an EU Public Prosecutor, an EU military arm and new EU
powers to harmonise civil and criminal law to do with enlarging the EU?
The Constitution's advocates say that it aims to "simplify" or "codify"
the existing EU treaties. Simplicity is not the highest political value.
Dictatorship, after all, is a very simple form of government. Bureaucratic
centralisation and law-making by Big States over Small may be simple, but
are they democratic? Should not democrats be concerned that the 10 new EU
Member States, only a few months after they have ratified their Accession
Treaties to the EU, which were negotiated on the basis of the Nice Treaty,
are being asked to ratify a Constitution that puts them formally under the
control of what is virtually an EU State, with decision-making rules quite
different from Nice's, which are geared to giving much more power to the
Big EU States?

The question these proposals pose for European democrats is whether the
peoples of the different countries of Europe are willing to abandon their
national democracy and independence in favour of rule by this profoundly
undemocratic supranational EU State and Government in the making. This rule
has been foisted on them stealthily over decades in a series of treaties
whose implications their mainstream national political leaders failed to
spell out to them, and which citizens are only now beginning to understand?
Just as people often only appreciate the value of health when they get
sick, they realise the value of democracy only when they have lost it and
find themselves ruled by politicians, mostly foreign, over whom they have
no control.


3. WHERE THE CONSTITUTION COMES FROM ; THE UNDEMOCRATIC CONVENTION

Are the peoples of Europe willing to put themselves, their children and
their grandchildren under the rule of an EU Constitution, superior to their
national Constitutions, that has been drafted by an appointed not elected,
Convention, on which their country was represented by just three nominated
politicians? The Convention that drafted the Constitution was
fundamentally undemocratic. Its members, 105 in all, consisted of two
representatives from each national parliament of the EU Member and
Applicant countries, one from each national Government, and representatives
of the European Parliament and EU Commission. The Draft Treaty says the
Constitution was adopted "by consensus" at the EU Convention. The
consensus was largely inside the heads of its chairman, former French
President V.Giscard d'Estaing, and his 12-person Praesidum. No votes were
taken on the over 1000 amendments submitted. Minority and dissenting views
were ignored, for example the "Alternative Report: The Europe of
Democracies," advocating a more decentralised EU and a slimline treaty for
a "Union of Democracies" that was signed by eight members of the
Convention. (See Appandix 3).

A similar non-elected Convention was used to draw up the EU Charter of
Fundamental Rights, whose contents were never discussed by any national
parliament. The Convention proposed that this Charter be made legally
binding as Part 2 of the EU Constitution. For the Euro-State-builders what
they term this "convention method" has the advantage of enabling major new
initiatives for closer integration to be taken, without their desirability
or otherwise being considered in advance by the peoples of the Member
States, or by their elected representatives in their national parliaments.
The Convention's composition of nominated parliamentarian and government
representatives aimed to provide a facade of democratic legitimacy for the
elitist project of foisting a Constitution on the EU which citizens neither
sought nor wanted and for which there has been absolutely no popular
demand.

The decision to draw up an EU Constitution came from the top down, not the
bottom up. As Appendix 3 shows, the Convention flouted the Laeken
Declaration of the EU Heads of State and Government that set it up. This
Declaration, adopted at the EU summit meeting at Laeken, Brussels, in
January 2001, called for "more democracy, transparency and efficiency" in
the EU and for reforms that would bring the EU closer to citizens. It
referred to the possibility of "restoring tasks to the Member States" and
the possibility "in the long run" of adopting a constitutional text for the
EU. However, no sooner had the Convention come together than the
Eurofederalists who dominated it proceeded headlong to draw up this
Constitution for a more centralised, more undemocratic, more unequal EU,
one more under the hegemony of the Big States, with 27 new policy areas
being shifted from national parliaments to Brussels, and not a single power
being repatriated to the Member States.


4. RE-FOUNDING THE EU ON A STATE CONSTITUTION TO OVERRULE NATIONAL
CONSTITUTIONS

The proposed Constitution changes fundamentally the legal relation between
the EU and its Member States. Hitherto the EU has been the creation of its
Member States under the treaties. The Union has had no legal existence
apart from its Members. The Draft Constitution changes that. It makes the
EU an international actor in its own right, with its own legal personality,
separate from and superior to its Members. Article I-1 states: ";this
Constitution establishes the European Union;" Yet the present European
Union was established by the 1992 Maastricht Treaty. The Constitution
proposes a new and quite different European Union, on a totally different
legal basis from what has existed since the 1957 Treaty of Rome.

Article I-12 (2) takes away from Member States most of their their power to
sign treaties with other States. Up to now the EU has negotiated treaties
on behalf of its members in relation to tariffs and trade matters. This
Article gives the EU power to sign treaties that affects any "internal
Union act." This greatly extends the EU's treaty-making powers. In future
the EU rather than its Member States will negotiate and sign international
treaties and conventions relating to criminal law for example, extradition,
foreign and security policy and much else.

Article I-5 (2) provides: "Following the principle of loyal cooperation,
the Union and the Member States shall ; assist each other in carrying out
tasks which flow from the Constitution." The word "loyal" is significant.
It implies that the Member States owe an obligation of loyalty to the Union
and again underlines the EU's constitutional/political superiority over its
Member States and its Federal State character. The Article goes on: "The
Member States shall facilitate the achievement of the Union's tasks and
refrain from any measure which could jeopardise the attainment of the
objectives set out in the Constitution." The import of this is that
national governments must give priority to Union objectives, even in areas
of policy that have not been transferred to the EU, because of the
overarching scope of the Union's objectives. But what if the Union's
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 breach of the EU's Growth and Stability Pact? This Article I-5
implies an obligation on Member States to refrain from any action at
national level that is contrary to the interests of the Union or likely to
impair its effectiveness. The Court of Justice will assuredly take that
view when reaching its legally binding judgements.

Article I-5(1) makes a gesture to "sovereignists" by stating that the Union
"shall respect the national identities of its Member States ;" This is
merely rhetoric, for national identity is not a justiciable concept.
National identity is quite different from national democracy or
independence, which the Constitution fundamentally subverts. A people
keeps its identity in servitude as well as freedom, as shown by the many
nations around the world that have an identity but no independence, e.g.
Kurds, Palestinians, Chechyns.

Most importantly of all, Article I-10(1) provides: "The Constitution, and
law adopted by the Union's Institutions in exercising competences conferred
on it, shall have primacy over the law of the Member States." Note the
comma after "Constitution." The EU Constitution has primacy over the
Member State Constitutions and their constitutional law. Clearly States
that put themselves under a Constitution containing such an Article can no
longer regard themselves as independent or sovereign in the way the world's
other 170 or so States are. The EU Member States become more like Bavaria,
Virginia, Quebec or New South Wales - subordinate states or provinces
within a superior European Federal State, which has primacy in representing
them internationally. This Article is conclusive as regards the federal
character of the EU. In Federal States government power is exercised at
the federal and local State level. An earlier version of the Draft
Constitution explictly referred to the EU exercising "certain common
competences on a federal basis." British and Irish politicians objected,
fearful of how their voters might react to such frankness. The
Constitution now speaks of exercising common competences "in the Community
way." (Article I-1) This is a Federal Statist way, even if the words
"Federal" and "State" are not used.

The largest Member States, in particular Germany and France, have little
fear of EU law having primacy over national law - indeed they are
positively pressing for that outcome - because they see themselves in the
leadership of this EU Superpower they are creating by virtue of their
political and economic weight based on their large populations.
Historically, the larger EU Members have all been big powers with colonial
empires. With the exception of Britain, they were all defeated,conquered
and occupied in World War 2, following which the lost their colonies and
found themselves in a world dominated by the USA and USSR. Their ruling
elites came to the conclusion that if they could no longer be big powers
individually, they could be so collectively through an EU over which they
held joint hegemony. At the same time, the development of a more powerful
and centralised EU frees its top politicians, its Heads of State and
Government and individual Ministers of the Member States, from the
democratic and popular controls that operate, and can only operate, at
national State level. It secures for them an enormous increase in their
personal power and influence, as they are transformed from executives
responsible to national parliaments at Member State level into legislators
for 450 million Europeans on the EU Council of Ministers, although at the
cost of eroding the democracy of their own parliaments and peoples.

The primacy of supranational EU law over national law, characteristic of
Multinational Federal States, has never been stated in an EU Treaty before,
as Article I-10 of the Draft Constitution states it. This doctrine has been
developed over the years in the case-law of the EU Court of Justice, but it
has not been accepted by, for example, the German, French and Italian
Constitutional Courts. These have denied in various court judgements that
EU law has the supremacy of federal law. They have held that EU law is
binding in national law only to the extent that national law allows. The
draft Constitution abrogates this position by formally recognising that the
EU Court of Justice, like the supreme court of any Federal State, has the
legal power to define its own powers. It has "kompetenz kompetenz," as the
German lawyers call it, the legal power or competence to decide its own
competences. Article I-10 seeks to overcome the reservations of national
Constitutional Courts and Supreme Courts regarding the supremacy of EU law
and replaces national law with EU law as the supreme source of
constitutional authority. This amounts to a Constitutional revolution. But
it is the logic of giving the Union legal personality separate from its
Member States and extending EU supranationalism to all areas of government.


A relevant point here is that EU governments accepted the ECJ's assertion
of the primacy of EU law in the 1960s, when the then EEC dealt with a far
narrower range of issues than the EU does today. It is one thing for Member
States go along with a principle established by the EU Court and applied
to a restricted range of matters like customs duties or tariffs. It is
quite another to concede national sovereignty to an EU Constitution whose
writ covers everything from tax policy to criminal law to foreign policy
and fundamental human rights.

Article I-23 (1) provides that the terms "European laws" and "European
framework laws" shall replace the words "regulations" and "directives" used
at present. This is only a change of name, for EU regulations and
directives are of course laws, but the use of the more common word "law" is
another indication that this is meant to be the Constitution of an EU
State, for only States make laws.

States also need State symbols. The EU flag and anthem have been pushed by
the Commission and the EU-State-builders for decades, without any legal
basis in the treaties. Article IV-1 of the Constitution now supplies this.
The Article provides that the Union flag will be the twelve gold stars on a
blue background, its anthem Beethoven's Ode to Joy, its motto "Unity in
Diversity," its currency the euro, and that 9 May each year will be
celebrated as "Europe Day" - analogous to the national days of its EU's
Member States.

In the light of the these radical changes it is quite dishonest of some
national politicians to pretend that this EU Constitution is only "a
tidying up exercise" as regards the existing EU treaties.


5. CREATING AN EU CITIZENSHIP ... ONE CAN ONLY BE A CITIZEN OF A STATE

Article I-8 deals with Union citizenship. It provides that "Every national
of a Member State shall be a citizen of the Union," this new and
re-founded EU that is now constitutionally separate from its Member
States. One can only be a citizen of a State. The Article goes on:
"Citizens of the Union shall enjoy the rights and be subject to the duties
provided for in this Constitution."

Whilst one can create a Multinational EU State whose citizens are endowed
with civic nationality, those citizens will never look on the EU as they do
on their own national States, or regard EU citizenship as anything more
than an artificial construct. The reason is that it is within national
communities alone that there exists sufficient solidarity, mutual
identification and mutuality of interest amongst people as to induce
minorities freely to consent to majority rule, and obey a common government
based on that. Such solidarity, which normally requires a common language
to enable people to communicate with one another, is the basis of a shared
citizenship that people feel is real to them. This solidarity is also the
basis of a stable political democracy. It underpins a people's allegiance
to a government as "their" government, and their willingness to finance
that government's tax and income-transfer system, thereby tying the richer
and poorer social classes and regions of particular nation States together.

People do not - indeed cannot - look on the EU like that, however ambitious
the imaginings of the Euro-State-builders. So the EU is doomed, regardless
of the provisions of this proposed Constitution, to remain a politically
fragile construct, without the breath of real democratic life. The EU's
citizens will never be willing to die for the EU, and will only notionally
live for it. It is impossible that it should ever have real claim on their
allegiance. The reason is that there is no European people, no European
"demos," except in the statistical sense. There is no European "we" that
is comparable to an Irish, French, Polish or Greek "we." Hence an EU State
or Constitution can never have the legitimacy, authority and respect of its
citizens that national States and Constitutions are freely accorded and
which they are entitled to demand. A democratic EU, like a meaningful EU
citizenship, must therefore remain an impossibility.

6. FIVE WAYS IN WHICH THE CONSTITUTION GIVES MORE POWER TO THE EU

The EU increases its powers and competences in five main ways under the
Draft Constitution:-

(a) USING SIZE OF POPULATION TO MAKE EU LAWS:

Article I-24 (1) replaces the qualified majority weighted voting system
agreed in the Nice Treaty by a new system in which, from 2009, a simple
majority of Member States can make EU laws, as long as they represent 60%
of the EU's population. This simple majority of States plus a population
majority of 60% is known as the "double majority" rule. A simple majority
in an EU of 25 would be 13. Under the weighted voting system set out in the
Nice Treaty, the qualified majority needed to pass an EU law had to be at
least 72% of the votes in a 25-member EU. Under the proposed Constitution
it will be half by number of Member States and 60% by population size.
The proposed new scheme will thus make EU laws much easier to pass - as
long as the Big States with large populations agree to them. The Big
States will also find it easier to assemble a blocking minority to prevent
measures they do not like, because of their population weight. Under these
new rules some 40% of the power to make EU laws will be concentrated in
the hands of the four largest nations, Germany, France, Britain and Italy.
Most small and middle-ranking States lose power correspondingly and
consequently will be more likely to find themselves submitting to EU laws
they disagree with. Under the Constitution's proposed system, in an EU of
25 States 12 States could be outvoted and have a measure imposed on them by
13, as long as the latter contains 60% of the EU population.

The fact that voting rarely takes place on the Council of Ministers and
decisions are mostly taken by "consensus" does not lessen the key
importance of these voting weights. If Member States know they would be
outvoted if a vote were to be taken on the Council, they usually make a
virtue of necessity by joining the consensus and pretending to a
"communautaire" attitude. So votes are not needed or are taken rarely.
However, without formal voting Member States go through a mental exercise
of "shadow voting" before deciding whether to join the majority consensus
or hold out against it. The ability to form coalitions to establish a
blocking minority is crucial if a State is to be able to prevent EU laws
being imposed on it that are against its interests or that it does not
want. It is much harder for the smaller States to do this under the draft
Constitution. (See on this point the revealing article by R.Baldwin and
M.Widgren, "Decision-making and the Constitutional Treaty,"
Baldwin@hei.unige.ch ; mika.widgren@tukkk.fi )


(b) MORE EU LAWS FOR THE COMMISSION TO PROPOSE AND THE EU PARLIAMENT TO AMEND:

As individual countries can be more easily outvoted and EU laws become
easier to pass under the proposed Constitution, the powers of the
Commission and EU Parliament, which derive from their role in EU
law-making, increase correspondingly. The Commission, with its monopoly in
proposing EU laws and setting the legislative agenda, gets a wider range
of measures to propose. The European Parliament, with its power to amend EU
laws emanating from the Council of Ministers, gets more laws it can amend.
The Draft Constitution also extends the range of laws coming from the
Council of Ministers that the Parliament is given power to amend under the
so-called "co-decision procedure." This gives the Parliament the power to
block EU laws if the Council does not accept its amendments. The EU
Parliament increases its legislative power in some 44 new areas in this
fashion. As the European Parliament is the EU institution that is most
committed to supranationalism, centralisation and reducing the powers of
national parliaments, an institutional power-play in which it cooperates
closely with the EU Commission, this is further evidence of how the
Constitution worsens rather than improves the EU's level of democracy.


(c) ABOLISHING THE NATIONAL VETO IN 27 NEW POLICY AREAS ; A FURTHER COUP BY
NATIONAL EXECUTIVES AGAINST NATIONAL LEGISLATURES

Under the Draft Constitution majority voting on the Council of Ministers
replaces unanimity in some 27 new policy areas, in addition to the 35 areas
agreed in the 2002 Treaty of Nice and the 19 areas in the 1998 Treaty of
Amsterdam. Appendix 1 below gives a provisional list of the new areas
where the national veto is abolished. They include judicial cooperation in
civil and criminal matters; approximation of laws on criminal procedures;
the definition of offences and criminal sanctions; border controls; asylum
and immigration; civil protection; Europol and Eurojust; structural and
cohesion funds; culture; commercial policy; energy; and initiatives by the
EU Foreign Minister at the request of the European Council.

It is proposed to make the remit of the EU's Common Commercial Policy
significantly wider by laying down as an EU aim "the progressive abolition
of restrictions on foreign direct investment" and the lowering of "other
barriers" than customs ones, for which the EU may conclude international
treaties by majority vote (Arts.III-216 and 217, formerly Arts.131 and 133
TEC, and Art.227). This opens the way for the EU to pressurise less
developed countries to abolish national controls on foreign investment, as
well as on their health, education and cultural services, and encourage
privatisation of the latter.

Article I-14 gives the EU power to adopt measures to coordinate the
economic, employment and social policies of Member States. Articles III-62
and III-63 provide for majority voting on company taxes relating to
"administrative cooperation or combating tax fraud and tax evasion", once
the Council has decided unanimously that these are desirable. This is the
thin end of a potentially wide wedge affecting national taxes. Article
III-157 introduces a Union policy on energy and provides for EU laws aimed
at ensuring security of energy supply in the Union and the functioning of
the energy market, and promoting enegy efficiency and the development of
new forms of energy. Oil industry spokesmen fear that this would give
Brussels power over national oil and gas reserves, exploration rights and
licensing and energy negotiations with third countries, and that national
policy would become subject to EU laws based on majority voting.

The extension of qualified majority voting to make EU laws and the
abolition of national vetoes has an alarming effect in subverting the
separation of powers between the executive, legislative and judicial arms
of government that has traditionally been the basis of democratic States.
In the first decades of the EEC majority voting was confined mostly to
trade matters. For an EU law to pass it had to be supported by a high
percentage of weighted votes and a clear majority of Member States. Over
time majority voting has been extended to more and more policy areas and
the threshold for a blocking minority has grown, making it easier to pass
ever more EU laws. The Draft Constitution extends majority voting much
further.

National Parliaments and citizens lose power correspondingly, for every
time lawmaking shifts to Brussels, they no longer have the final say in the
areas concerned. Simultaneously, individual Government Ministers, who are
members of the executive arm of government at national level and must have
a national parliamentary majority behind them for their policies, are
turned into legislators for several hundred million EU citizens as members
of its 15-person, or 25-person, Council of Ministers. European integration
and supranationalism mean that national politicians thus obtain a huge
accretion of personal power at the expense of their national parliaments
and electorates. This is true even if they may be outvoted on the EU
Council. This process is essential to understanding why Government
Ministers tend to be so europhile, so willing to cooperate in reducing the
power of their own national parliaments and peoples. The more policy areas
shift from the national level to Brussels, the more power shifts
simultaneously from national legislatures to national executives, and the
more the personal power of individual Ministers increases. Anecdotal
evidence suggests that keeping in with their fellow members in the
exclusive Council of Ministers "club" of EU legislators becomes personally
more important to many of them, rather than being awkward in defence of
their own peoples' interests. Behind the closed doors of the EU Council
national politicians, especially those from small countries, can deplore
the fact that the lack of "community spirit" of their parliaments and
peoples - that is, their reluctance to surrender more power to Brussels -
may force them on occasion to vote against the EU consensus, while they
assure their colleagues sotto voce that their hearts are still in the right
place. EU integration is therefore not just a process of depriving Europe's
nation States and peoples of their national democracy and independence.
Within each Member State it represents a gradual coup by government
Executives against Legislatures, by politicians against the citizens who
have elected them. It turns the State itself into an enemy of its own
people, turns national politics into provincial politics, disillusions
citizens - who are gradually becoming aware that little of importance is
decided any longer by the representatives they elect - reduces electoral
participation rates and points towards a developing crisis of democracy
across much of Europe.


(d) "COMMUNITISING" ALL GOVERNMENT POLICY UNDER THE EU

The draft Constitution, Article I-18 (1) abolishes the present
"three-pillar" structure of the EU and sets all areas of EU policy in "a
single institutional framework." It thereby gives the EU Commission and
Court a policy competence in the former "second-pillar" area of security
and foreign policy and the "third-pillar" area of justice and home
affairs. The Constitution thus eliminates "intergovernmental" policy areas
between Member States, where EU law has not applied up to now and the
Commission and EU Court have no function. It "communitises" and makes
supranational all the main areas of public policy under the EU. The
proposed Constitution thus gives the decisions of the EU Court of Justice
the force of law in Member States on present second-pillar and third-pillar
issues. Legally this gives the EU the full constitutional structure of a
Federal State. The only significant State power the EU will not have
obtained if the Constitution goes through is the power to tax people
directly.


(e) WIDENING THE CONSTITUTIONAL JURISDICTION OF THE COURT OF JUSTICE

Apologists for the EU Constitution say that while it gives the Union some
new powers, most of it consists of the provisions of the existing EU
treaties transposed unchanged into Part III of the Constitution, so that
the treaty bases of EU laws will stay the same. "This argument is
fallacious because it ignores two vital points," says British European law
expert Martin Howe QC in his valuable study, "A Constitution for Europe, a
Legal Assessment of the Draft Treaty," on which the present analysis draws
on a number of points. (2003, available from
www.congressfordemocracy.org.uk )

"First, in EC law the scope of specific Treaty bases is interpreted by
reference to general principles and the Constitution would alter the ground
rules on which those general principles are based. Secondly, alterations to
the basis of Qualified Majority Voting and extension of the 'co-decision'
procedure would make it much easier to force through legislation against
the wishes of a dissenting minority of states ; The European Court pointed
out in the EEA Agreement case that it interprets the legal texts which it
enforces largely by reference to their 'objects and purposes.' This means,
as pointed out in that case, that identically worded provisions in two
different treaties can be interpreted to have very different effects.
Clearly, changing the legal basis of the EU from a series of treaties to a
self-contained Constitution would fundamentally alter the Court's view of
the 'objects and purposes' of the legal texts which it is applying. This
would radically affect its interpretation and application of treaty
provisions as well as of the scope of directives and regulations. In
practice, there would be a presumption that the Member States are only
permitted to exercise power in the residual areas left to them under the
Constitution, and even in those areas they would have to fit in with any
over-arching EU policies or foreign policy imperatives in accordance with
their general duty to 'facilitate the attainment of the Union's tasks and
refrain from any measure which could jeopardise the objectives set out in
the Constitution.' (Art. I- 5(2)) ' "



7. A NEW POLITICAL PRESIDENT FOR THE EU

Article I-21 provides for a political president of the EU, elected by
qualified majority vote, to chair the European Council of Presidents and
Prime Ministers for a two and a half year term, renewable once. This
person, who will almost certainly be a former President or Prime Minister,
is to be the EU's top politician, to "drive forward the work" of the EU
summit meetings and represent the EU internationally "at his or her
level;without prejudice to the responsibilities of the Union Minister for
Foreign Affairs." Again Martin Howe comments (op. cit.,):

"These are the classic functions of a Head of State. He would receive
ambassadors to the EU and sign Treaties and important laws in its name. For
the first time, meetings of heads of state or government would be presided
over, not by one of their own number, but by someone at a higher level.
This is a profound change. There would be a Head of State of the European
Union, superior to the Heads of State of the Member States."

The Constitution's proposal for two cohabiting Presidents, one of the
European Council and one of the Commission, is modelled on the French
Constitution. The proposed five-year political President of the European
Council, with a particular brief for EU foreign policy, is like the
Pesident of the French Republic. The Commission President with his new
powers to select individual Commissioners, allocate and reshuffle their
portfolios and require their resignation if need be, is like the French
Prime Minister. In November 2003 a majority of the Swedish Parliament -
one of the few national assemblies to debate the proposals of the Draft EU
Constitution before it was adopted - voted that Sweden should oppose this
plan for an EU political President, on the ground that the new position
would be too powerful and end as a tool in the hands of the big Member
States. The Swedes want to keep the present system of rotating EU
presidencies between Member States. They also voted to keep the current
system of one Commissioner with full voting rights per Member State.


8. GIVING THE UNELECTED COMMISSION POWER TO MAKE LAWS DIRECTLY

Article I-35 empowers the Council of Ministers by majority vote to give the
Commission power to make laws itself - so-called delegated regulations,
supplementing or amending "non-essential elements" of European laws or
framework laws. But what is non-essential? Unless every Member State has a
representative with voting rights on the Commission, the peoples of the
Member States could periodically find themselves bound by a stream of EU
regulations, superior to national law, emanating from a law-making
Commission on which none of their citizens participates in making the
decisions.

Article I-25 (3) proposes that there should be a maximum of 15 voting
members on the EU Commission, the body of non-elected persons that has the
monopoly of proposing all EU laws, and which France's President de Gaulle
once described as "A conclave of technocrats without a country, responsible
to nobody." This contrasts with the Treaty of Nice position where each
Member State retains a Commissioner until the EU reaches 27 members. The
Nice Treaty already gives the Big States decisive political control of the
Commission by abolishing the unanimity requirement for appointing both the
Commission President and individual Commissioners that has prevailed since
the 1957 Treaty of Rome, and by giving the President the power to shuffle
and reshuffle the portfolios to Commissioners and obtain their individual
resignation if required. The Nice Treaty thereby turns the Commission into
a quasi-EU Government or Executive that is effectively under the thumb of
the Big States through their key role in appointing the Commission
President. The Draft Constitution proposes to halve the number of
portfolios the Commission President has to allocate. The Intergovernmental
Conference may abandon this idea and keep one Commissioner per Member
State, but introduce instead a hierarchy among the Commissioners. The
Commission President, once elected by majority vote of the Presidents and
Prime Ministers and approved by the European Parliament, choses the
Commissioners from a list of three persons submitted by each Member State,
with one of different gender to the other two, on the basis, inter alia, of
their "European commitment." (Art.I-26 (2)). That presumably refers to
their zeal for further EU integration and eliminating what is left of the
national democracy and independence of their countries of origin.


9. EU POWERS AND NATIONAL ONES ; THE ECJ DECIDES WHICH IS WHICH

Article I-12 (1) sets out the areas of exclusive EU legislative competence,
that is, powers: monetary policy for the eurozone, the common commercial
policy, the customs union, fish conservation. It also extends further the
area of exclusive competence by providing that the EU alone shall conclude
any international agreements that is necessary "to enable the Union to
exercise its competence internally, or affects an internal Union act." At
present the EU negotiates international treaties on behalf of its Members
mainly in relation to trade and tariff matters. This Article of the
Constitution would give the EU power to negotiate and sign treaties on its
own behalf in relation, for instance, to international conventions
governing extradition, migration, the environment, banking standards and
the like. This Article, together with the Common Foreign and Security
Policy articles, "would deprive the Member States of most of their present
treaty-making powers," states Martin Howe (op.cit.).

Article I-13 set out the areas of shared competence between the EU and
Member States: the internal market; the area of freedom, security and
justice; agriculture and fisheries, excluding conservation; transport;
energy; social policy for certain areas; economic and social cohesion;
environment; consumer protection; common safety concerns in public health.
Article I-11 (2) 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." It is thus the Union, not its Member
States, that has primacy even in these shared areas. In jurisdictional
disputes it is the EU, through the Court of Justice, that will decide the
policy boundaries, that is, whether it is the Union or national States will
make the laws. It is not even stated that Union competences must be
"expressly" conferred, which would limit them somewhat. The Court of
Justice can decide that the EU has had powers implicitly conferred on it.

A gesture towards placating concerned "sovereignists" is Article I-9(2):
"Competences not conferred upon the Union in the Constitution remain 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." However, the
10th Amendment has not prevented the USA from becoming a fully-fledged
Federal State, with provincial states like New York, Idaho and Kansas quite
subordinate to the Federal authorities in Washington. The similar Article
in the EU Constitution can offer no such reassurance either.

Article I-11 (3) provides that "The Union shall have competence to promote
and coordinate the economic and employment policies of the Member States."
This gives the EU a very large and imprecise jurisdiction. Article I-11 (4)
provides that "The Union shall have competence to define and implement a
common foreign and security policy, including the progressive framing of a
common defence policy." Article I-16 provides for the Union to "take
supporting, coordinating or complementary action" vis-a-vis its Member
States. The areas for such action at European level are stated to be
"industry; protection and improvement of human health; education,
vocational training, youth and sport; culture, and civil protection."
Indeed virtually no field of public policy would remains unaffected by EU
action. On the face of it, Article I-16 could cover EU supporting or
coordinating action in areas where it has no competence at present. Again
who decides such matters? Could the Union support a Member Government in a
national referendum, on the grounds that this was in the Union's interests?
The Constitution does not provide that EU supporting and coordinating
action will take place only at the request of Member States. The Union
retains the power of initiative here. These divisions of spheres of
competence cover budget matters also and could affect the financing and
co-financing of policies and projects at both national and EU levels.

Genuine respect for the principle of subsidiarity(Article I-9(3)) would
indicate a major repatriation of powers to the Member States from the
supranational level, a fundamental shift of gear from centralisation to
decentralisation. The Constitution provides for asolutely nothing like that.



10.AMENDING THE CONSTITUTION WITHOUT FURTHER TREATIES ; THE "ESCALATOR" AND
FLEXIBILITY ARTICLES

Article I-24 (4) provides that: "Where the Constitution provides in Part 3
for the Council of Ministers to act unanimously in a given area, the
European Council can adopt, on its own initiative and by unanimity, a
European decision allowing the Council of Ministers to act by qualified
majority in that area." This extraordinary provision enables a summit
meeting of EU Presidents and Prime Ministers to move policy areas from
unanimity to majority voting without having to draw up new treaties and
get them ratified by parliamentary vote or referendum. It allows the EU to
abolish national vetoes on any item without the agreement of national
parliaments. National parliaments are to be given four months notice before
this is done, but their permission is not required. This Article is a way
around the present Treaty revision process for future amendments to the
EU's major policies, for Part 3 of the Constitution, where the Article
applies, covers 342 of the Constitution's 465 articles. It enables a caucus
of the EU's top politicians to shift legislative power from elected
national parliaments to the EU without having to get permission from their
parliaments or their citizens. Effectively it endows them with the power of
autocrats. Peter Hain, Labour Party leader of the British House of
Commons, has dubbed this escalator Article "a formula for permanent
revolution." Convention President Giscard d'Estaing, referred to it as the
passerelle or "bridge" clause and called it "a central innovation" of the
draft Constitution (European Parliament, 4-9-2003). It is not hard to see
why.

In addition, Article I-17, titled the "flexibility clause," states that if
the Constitution has not given the EU sufficient power to attain one of its
very wide objectives, the Council of Ministers, acting unanimously, "shall
take the appropriate measures." Originally Article 235 of the 1957
Treaty of Rome, this provision was seldom used before the 1980s, but since
then it has been the basis of a major extension of EU policy-making and
legislation into areas that were not specifically provided for in the
treaties, and which some authorities regard therefore as quite illegal.
Certainty of provision and precision of expression are the foundations of
legality. This article effectively permits the EU to do what it likes, as
long as the Council of Ministers acts unanimously. It has enabled the EU
to take extra powers to itself without further treaty renegotiation. It
offers wide scope to the EU to implement policy in whatever way it wishes,
without constitutional control, in pursuit of its very wide objectives.
Moreover, this Article I-17 replaces the existing Article 308, which
applies to the single market, and extends its scope to everything in the
Constitution. Such a provision has no place in any democratic
Constitution.



11. FINANCING THE UNION FROM ITS OWN RESOURCES

Under the heading "The Union's Resources" Article I-53 lays down that "The
Union shall provide itself with the means necessary to attain its
objectives and carry through its policies" and "the Union's budget shall
be financed wholly from its own resources." It provides that "A European
law of the Council of Ministers shall lay down the limit of the Union's
resources and may establish new categories of resources or abolish an
existing category." Such a law would requires unanimity on the Council of
Ministers and approval by the Member States. In theory it could open the
way to ending national contributions by Governments to the EU and to total
reliance instead on EU levies and taxes imposed on citizens and economic
actors. Full financing from "own resources" would make the EU budget
wholly independent of its Member States, as is the norm with national
Federations. Articles III-308 to 320 give the detailed proposals for
financing the EU and drawing up its budget. With the next financing cycle
coming up in a couple of years, and most of the ten new Member States
seeking net transfers from the EU, some of these details are likely to be
causes of contention as between likely net contributors and net
beneficiaries.



12. AN EU FOREIGN MINISTER ; A TWO-TIER MILITARY EUROPE ; COMMON EU
DEFENCE MOVES FROM "MAY" TO "WILL"

Article I-15 (2) provides: "Member States shall actively and unreservedly
support the Union's common foreign and security policy in a spirit of
loyalty and mutual solidarity and shall comply with the acts adopted by the
Union in this area. They shall refrain from action contrary to the Union's
interests or likely to impair its effectiveness." A constitutional duty of
"loyalty" to and "solidarity" with an EU foreign policy, makes a mockery of
the pretensions of Member States, especially small ones, to have an
independent national foreign policy. Some legal opinion holds that this
article is justiciable before the EU Court of Justice (v.Articles III-282
and 209), with States being liable to heavy fines for failure to
comply(Articles III-265 to 267). One implication is that Member States
will be constitutionally obliged to present the common EU foreign policy
position when they are members of the UN Security Council.

The Constitution provides for an EU Minister for Foreign Affairs, distinct
from national Foreign Affairs Ministers (Articles I-27 and I-40 (4)) The
Foreign Minister shall be a Vice-President of the Commission, which will
give the non-elected Commission a role in EU foreign policy, security and
defence for the first time. Only sovereign States have Foreign Ministers.
This is further evidence of the EU moving towards statehood and becoming an
international actor in its own right, distinct from its individual Member
States. The very word "Foreign" before "Minister" implies that people
outside the EU superstate are foreigners, while those inside it are not.
The EU Foreign Minister will chair the Councils of national Foreign
Ministers. As he will be appointed by majority vote of the Presidents and
Prime Ministers at an EU summit, it is possible that under this
Constitution Member States will be represented internationally by an EU
Foreign Minster they do not want. The Union Foreign Minister "shall conduct
political dialogue on the Union's behalf and shall express the Union's
position in international organisations and at international
conferences"(Art.III-197 (2)). An EU diplomatic corps is also to be set
up, to be called the European External Action Service (Art.III-197 (3)), to
service the EU Foreign Minister and his foreign policy. A Declaration
attached to the draft Constitution states that this body will consist of
staff from the Commission and Council and diplomats seconded from national
diplomatic services.

Another development in the foreign policy section of the Constitution is
that the Nice Treaty's provision that the progressive framing of a common
defence policy "might lead to a common defence, should the European
Council so decide" becomes in the draft Constitution: " will lead to a
common defence, when the European Council, acting unanimously, so decides."
(Article I-40 (2)) This means that by adopting the Constitution all
Member States, including the current four neutrals, Ireland, Sweden,
Finland and Austria, become constitutionally committed at the Union level
to the ultimate goal of a common defence. It is a matter of when, not
whether, for the end result is quite explicit. This is the goal the EU
Common Foreign and Security Policy has been pointing to for years, eroding
the position of neutral and non-aligned States by gradual small steps in
each EU successive treaty. Article I-40 (3) requires all Member States 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." This
means there would be an EU constitutional obligation on every Member State
to provide military resources to the EU for its security and defence and
to increase its national military spending. The same Article provides for a
European Armaments, Research and Military Capabilities Agency to be
established to assist with this. The rationale of this provision is to
ensure that arms orders are placed with EU firms so far as possible.

The EU's Common Security and Defence Policy may use civil and military
assets for foreign interventions "in accordance with the principles of the
United Nations Charter," but the Constitution does not actually require
such missions to have a UN mandate (Art.I-40 (1)). The tasks envisaged for
these missions are wider than the current Petersberg tasks and amount to a
carte blanche for foreign intervention by EU forces. They "shall include
joint disarmament operations, humanitarian and rescue tasks, military
advice and assistance tasks, conflict prevention and peace-keeping tasks,
tasks of combat forces in crisis management, including peacemaking and
post-conflict stabilisation. All these tasks may contribute to the fight
against terrorism, including by supporting third countries in combating
terrorism in their territories."(Art.III-210 (1))

Pending all EU Member States adopting a mutual defence pact, the draft
Constitution extends the principle of "enhanced cooperation," which was
introduced by the Treaty of Nice, to security and military matters. This is
to be called "structured cooperation" and points the way to a two-tier
Europe in defence and military affairs (Art.I-40 (6 and 7) and Arts.
III-213 and 214)). It provides for a minority of EU Members, led by the Big
States and even against the wishes of some other EU Members, using the
common foreign, security and defence policy for their own purposes, as well
as the EU agencies set up to serve it. This inner group of States shall
be bound by a mutual defence guarantee and shall work closely with NATO.
This is a further major step towards a two-tier, two-class EU and a further
break with the notion of the EU as a partnership of legal equals that
prevailed up to the Treaty of Nice. The EU Minister for Foreign Affairs
will take part in the deliberations of this inner group and in effect will
be able to present the other Member States that are not involved in