Why The Left Should Oppose the EU Constitution

international | eu | opinion/analysis Saturday January 15, 2005 16:14 by The National Platform - EU Research and Information Centre

Dear Friends,
I sent you a document for your information last November on "Why the Left
should  oppose the EU Constitution". This had been drawn up by some members
of the National Platform in consultation with various people on the Irish
political Left.

Unfortunately this contained one error in stating that EURATOM, the
European Atomic Energy Community, which is continued in being indefinitely
by the proposed EU Constitution, was due to end in 2007; for that is not
the case.

May I send you below a revised version of this document in which this error
is corrected, various other points in the earlier document are expanded,the
actual Article numbers from "The Treaty Establishing a Constitution for
Europe" are inserted where relevant, and an additional numbered Point has
been added, No.15.

Every attempt has been made to ensure that the factual references to the
proposed European Union Constitution are legally accurate.

Please feel free to use or adapt the material in this document in any way
you may wish, without any need of acknowledgement to its source.

If you care to make any suggestions for further improvement to it, those
responsible for it would be grateful to receive them.

A detailed analysis by this organisation of the "Treaty Establishing a
Constitution for Europe" will be sent to you for your information before
the end of the month.

Yours faithfully

Anthony Coughlan

Secretary

________________
Revised text of "Why the Left should oppose the EU Constitution" - January
2005
___________________



WHY THE LEFT SHOULD OPPOSE THE EU CONSTITUTION


* * *


"The Constitution is the capstone of a European Federal State."
-  Guy Verhofstadt, Belgian Prime Minister, Financial Times, 21-6-2004



"For the first time, Europe has a shared Constitution. This pact is the
point of no return. Europe is becoming an irreversible project,
irrevocable  after the ratification of this treaty. It is  a new era for
Europe, a new geography, a new history."
- French Prime Minister Jean-Pierre Raffarin, Le Metro, 7-10-2004



"It wasn't worth creating a negative commotion with the British. I rewrote
my text with the word federal replaced by communautaire, which means
exactly the same thing."
-  President of the European Convention Valery Giscard d'Estaing, Wall
Street  Journal Europe, 7-7-2003



"We know that nine out of 10 people will not have read the Constitution and
will vote on the basis  of what politicians and journalists say. More than
that, if the answer is No, the vote will probably have to be done again,
because it absolutely has to be Yes."
-  Jean-Luc Dehaene, Former Belgian Prime Minister and Vice-President of
the EU Convention, Irish Times,  2-6-2004



"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. S We are against a European
superstate."
-  Czech President Vaclav Klaus, Mlada Fronta Dnes,  29-9-2003



"Our Constitution cannot be reduced to a mere treaty for cooperation
between governments. Anyone who has not yet grasped this fact deserves to
wear the dunce's cap."
-  President of the European Convention V.Giscard d'Estaing, speech
accepting the Charlemagne Prize for European Integration, Aachen, 29-5-2003



(The Constitution is ) "a big change from the basic concept of nation
states. It's a change of centuries of history ."
-  EU Commission President Romano Prodi, The Times, 10-11-2003



"Creating a single European State bound by one European Constitution is the
decisive task of our time."
-  German Foreign Minister Joschka Fischer, Daily Telegraph, 27-12-1998


* * *




The Constitution of any normal State lays down the rules and institutional
framework for making political decisions. But it does not seek to forestall
the ideological content of those decisions. That is left to political
debate between the political parties of Left and Right, abiding by the
decision-making rules.  The EU Constitution that is set out in the "Treaty
Establishing a Constitution for Europe" is different from a  normal
Constitution in that while it lays down decision-making rules, it also lays
down a right-wing economic ideology which those rules must implement.



1. THE CONSTITUTION ENSHRINES EXTREME NEO-LIBERALISM AS THE BASIS OF THE EU
ECONOMY.  It turns the fundamental principles of laissez-faire,i.e.free
competition across national borders on the basis of the unimpeded movement
of goods, services, capital and labour, into constitutional
obligations(Arts.I-3 and 4, Arts.III-130, 166 and 167). These are to be
implemented by small committees of supranational politicians and
bureaucrats under the influence of the big corporate lobbyists such as the
European Roundtable of Industrialists, outside democratic control. This is
the opposite of public control and economic planning of any kind, which all
sections of the Left accept as necessary in some areas. The EU Constitution
suppresses political alternatives. If implemented it would reduce workers'
capacity to mobilise and would restrict the policy areas their
organisations can effect change in;for they would be constitutionally
obliged to conform to neo-liberal economic principles at EU and national
levels. It does not advance a social Europe,which requires social controls
on capital, not capital that is free of control as a matter of
constitutional principle. It prevents  public enterprises and State aids
from serving national social purposes(Arts.III-161,162,166 and 167). The
Constitution amounts in effect to a contract not to have socialism,
understanding the concept socialism as requiring the imposition of social
controls on capital in the interest of workers and the common good,
something that socialists and social democrats of all shades have always
advocated. The new EC/EU Commission,the body of government nominees that
has the exclusive power of proposing EU laws,is dominated by economic
neo-liberals. The new Commission President, Jose Manuel Barroso, led an
assault on public services and workers' living standards while he was Prime
Minister of Portugal.



2. IT ENCOURAGES THE PRIVATISATION OF PUBLIC SERVICES and enshrines a heavy
bias against public enterprise in favour of private capital. The
Constitution gives Brussels  powers to decide by majority vote what counts
as a "public service"(Art.III-166). This could mean that it is up to the EU
to identify which areas of public health and education services, for
example, would  be exempt from competition policy, and which areas would be
opened up to private sector competitition. It permits such policies to be
imposed on  developing countries through the trade treaties the EU
concludes under the Common Commercial Policy, and the invesment rules it
lays down(Arts.III-314,317).



3. IT ENSHRINES THE PERMANENT DOMINANCE OF CAPITAL OVER LABOUR. 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,
even though such controls may periodically be required to serve the social
interest.



4. IT MAKES THE MONETARIST ECONOMIC POLICY OF THE EUROPEAN CENTRAL BANK
CONSTITUTIONALLY MANDATORY. The ECB's sole brief in setting interest rates
and controlling the money supply of the eurozone is to ensure price
stability, not maximize economic growth, create jobs or reduce
inequalities(Art.III-185). This imposes deflation on the larger eurozone
economies. It prevents national governments expanding demand to counter
recession and unemployment. It removes credit and  financial policy from
the sphere of public debate, subordinating it to the priorities of bankers,
big business and technical experts. It effectively makes democratic
electoral mandates relating to the control of credit, money and interest
rates redundant. The Stability and Growth Pact,which imposes rules for
national budgets,is regularly flouted by the Big States, but has led to
smaller States like Ireland being censured.



5. IT MAKES THE ADOPTION OT THE EURO A CONSTITUTIONAL REQUIREMENT, even
though 13 of the 25 Member States still retain their own national
currencies(Arts.I-8 and III-177). Ireland's surrender of its ability to
control credit and decide its rate of interest has been an important factor
in the country's soaring house prices. If the dollar continues to fall and
the euro to rise, as at present, Irish business competitiveness must
significantly deteriorate, for we do two-thirds of our foreign trade
outside the eurozone. We can no longer counter this by varying our currency
exchange rate,something from which we benefited enormously during the
"Celtic Tiger" years 1993-1999, for the Government has surrendered that
power by adopting the euro.



6. IT MILITARIZES THE EU.  The Constitution points to the end of the formal
military neutrality of Ireland, Denmark, Sweden, Austria and Malta by
replacing the Nice Treaty provision that the progressive framing of a
common defence policy "MIGHT lead to a common defence, SHOULD the European
Council so decide"  with the provision in the Constitution that it "WILL
lead to a common defence, WHEN the European Council, acting unanimously, so
decides"(Art.I-41). That decision is clearly only a matter of time. The
same Article requires all Member States "to make civilian and military
capabilities available to the Union for the implementation of the common
security and defence policy" The Constitution permits EU military
operations to take place without a UN Charter mandate.  Article I-16 gives
the EU the power to conduct a common foreign and security policy covering
"all areas of foreign policy and all questions relating to the Union's
security, including the progressive framing of a common defence policy that
might lead to a common defence". The same Article places Member States
under an explicit constitutional obligation to refrain from following an
independent foreign policy if that clashes with the EU one: "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 Union's action in this area. They shall refrain from action
contrary to the Union's interests or likely to impair its effectiveness."



7. IT CENTRALISES THE EU FURTHER, ABOLISHES OVER 60 NATIONAL VETOES, TAKES
AWAY FURTHER POWERS FROM NATIONAL PARLIAMENTS AND CITIZENS, AND TRANSFERS
THEM TO A TINY HANDFUL OF EU POLITICIANS AND CIVIL SERVANTS. The
Constitution abolishes existing national vetoes or gives new law-making
powers to the EU in relation to over 60 policy areas or issues: for
example, harmonising crime and justice matters, criminal sanctions and the
definition of offences; border controls; asylum and immigration; energy;
culture;tourism; sport; the market for public services; Europol and
Eurojust; social security for migrant workers; public health; rules of the
structural and cohesion funds etc. This surrender of over 60 national
vetoes is a more extensive transfer of powers to the EU than the 35  policy
areas in relation to which national Parliaments and citizens lost their
right to legislate in the 2003 Nice Treaty, or the 19 areas lost under the
1998 Amsterdam Treaty.



8. IT ALLOWS THE EU'S TOP POLITICIANS TO AMEND THE CONSTITUTION WITHOUT THE
NEED FOR NEW TREATIES. An "escalator clause"(Art.IV-444) allows the 25
Presidents and Prime Ministers to shift further policy areas - for example
harmonizing indirect taxes(Art.III-171) - from unanimity to majority voting
without need of new treaties, parliamentary approval or referendums, as
long as there is consensus amongst themselves and national parliaments do
not object. This creates a permanent democratic deficit and means that the
text of the Constitution is not a fully accurate guide to its own
provisions.  A so-called "Flexibility Clause"(Art.I-18) permits EU
Ministers to take new powers to themselves if they think the Constitution
does not give the EU sufficient power to attain its very wide objectives.
At present they have this power with regard to the single  market. The
Constitution extends it to all areas of government policy. These two
provisions have no place in any democratic Constitution.



9. IT TRANSFERS POWER TO THE NEW EU TO DECIDE OUR FUNDAMENTAL RIGHTS IN THE
LARGE AND EXPANDING AREA COVERED BY EU LAW. At present it is national
Constitutions and Supreme Courts that ultimately decide our rights, plus
the Court of Human Rights in Strasbourg, which is quite independent of and
separate from the EU Court of Justice(ECJ) in Luxembourg. The Constitution
gives the EU Court a human rights competence for the first time, which
would confer on this "court with a mission", as one of its own judges once
called it - that mission being to extend EU powers to the maximum possible
extent through its case law - a vast new legal territory to rule over. It
does this by making the EU Charter of Fundamental Rights legally binding.
The EU should respect human rights, but it should not have the power to
decide what they are. Giving the EU Court the power to do decide rights
matters would also introduce a new and expensive tier of judges and lawyers
between citizens and the final Court that decides their rights in all areas
covered by EU law. That includes national States when implementing EU law,
which nowadays makes up the greater part of national legislation. The
Constitution then makes it possible for these rights to be undermined by
providing that the rights set out in the Charter of Fundamental Rights(Part
II of the Constitution) may be limited "to meet objectives of general
interest recognised by the Union"(Art.II-112). The Charter permits the
death penalty to be imposed in time of war for EU-mandated military
operations, even though all the EU Member States have decided to abolish
the death-penalty in war-time(Art.II-62 and Declaration 12 on the
Explanations of the Charter of Fundamental Rights).



10. AS A CONCESSION TO EUROPEAN EMPLOYERS, THE CHARTER OF FUNDAMENTAL
RIGHTS FAILS TO STRENGTHEN WORKERS' RIGHTS TO ORGANISE AND ACT
COLLECTIVELY. Article II-88 provides that workers have these rights "in
accordance with Union law and national laws and practices". The
Constitution protects an employer's right to lock out his employees, quite
as much as an employee's right to go on strike, depending on what their
national labour law lays down. In so far as the Constitution allows
fundamental rights to be limited in the interests of the EU, some future
ECJ judgement could threaten workers' rights that have been long fought for
and established at national level.  The Charter of Fundamental Rights is
essentially subordinate to EU commercial and economic policy and is
circumscribed by that policy.



11. EURATOM, THE EUROPEAN ATOMIC ENERGY TREATY,WHICH PROMOTES NUCLEAR
POWER, IS MADE PART OF THE CONSTITUTION. Protocol 36 continues the EURATOM
Community in being indefinitely, side by side with the new EU, and commits
the EU Member States to supporting nuclear energy. With the advent of the
new East European members, the majority of EU States now use nuclear power
for civil purposes.



12. THE CONSTITUTION ENSHRINES IRELAND'S ABORTION PROTOCOL, WHICH PREVENTS
EU INTERFERENCE WITH IRELAND'S ABORTION LAW, OVER WHICH THERE WAS
CONTROVERSY IN THE 1992 MAASTRICHT TREATY REFERENDUM. The Maastricht Treaty
is now repealed and the relevant provision is reconstituted as Protocol 31
of the Treaty Establishing a Constitution for Europe.



13. THE CONSTITUTION SHIFTS EU LAW-MAKING BY THE COUNCIL OF MINISTERS TO A
POPULATION-BASED VOTING SYSTEM WHICH ADVANTAGES THE BIG STATES AND
RELATIVELY DISADVANTAGES MIDDLE-SIZED STATES LIKE IRELAND. It abolishes the
weighted voting system that was agreed in the Treaty of Nice to provide for
EU enlargement, and ordains that EU laws will be made in future by a
"double majority" of States and population: 55% of the Member States, at
least 15, as long as they include 65% of the EU's population(Art.I-25).
Thus 15 States, if they satisfy the 65% population criterion, would be able
to outvote 10. On the number-of-States criterion a blocking minority must
be at least 11 States, so that that will be harder to assemble than before.
This shift to a mainly population criterion for EU law-making makes it
easier for the Big States with their big populations to get their way. It
reduces the relative voting weight of middle-rank  Member States like
Ireland. It would make EU laws easier to pass, which means there would be
more of them. Legislative "efficiency" in the EU is not best gauged by the
quantity of laws it makes, but by their quality and democratic character.
People want good laws, not more laws.



14. THE CONSTITUTION TRANSFORMS THE PRESENT "EUROPEAN UNION", WHICH IS A
DESCRIPTIVE TITLE FOR VARIOUS FORMS OF COOPERATION BETWEEN ITS MEMBER
COUNTRIES, INTO AN EU FEDERAL STATE, AND REDUCES IRELAND AND THE OTHER
MEMBER STATES TO THE CONSTITUTIONAL STATUS OF PROVINCES INSIDE THIS NEW
EUROPEAN FEDERATION

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, which makes this
clear). One of these forms is the European Community(EC). The European
Community still exists. It has legal personality separate from its Member
States, all 25 of which still belong to it. Community(EC) law is
supranational and has primacy over national law in any case of conflict
between the two. The European Community(EC) covers mainly the economic and
single market area, including the euro-currency.  Here the EC Member States
have "pooled" their sovereignty and the EC Commission has the exclusive
right to propose EC laws. In all other areas of government, however, the
Member States have retained their independence and sovereignty, and
cooperate with one another as free and equal partners internationally - or
"intergovernmentally" in EU jargon: in  foreign affairs and military
matters, crime and justice matters, and national  policy  on health,
housing, education, social security etc.


The "European Union" that we currently belong to refers to all these
different forms of cooperation taken together. But the EU does not exist as
a legal entity as such. The present EU does not have legal personality  or
an independent corporate existence in its own right. Therefore there is no
such thing as "European Union" law, only "European Community" or "EC" law.
Propagandists for the  Constitution confuse  the terms "Union" and
"Community" deliberately, to prevent people realising that the proposed new
Union, based on its own Constitution, would in legal terms be fundamentally
different from the European Union that we are told we are honorary citizens
of at present.  This new EU would have become a supranational Federal
State, within which the present Member States would be reduced to the
constitutional status of provincial states. Because the new Union would
have the same name as the existing EU,the Federalist State-builders hope
that people will not realise what is happening.  Their long-concerted plan
has been to get people accustomed to the name "European Union" first,and
then change its constitutional and legal essence. That is why the 1993
Maastricht Treaty, from which the name "European Union" came, was titled
the Treaty "on" European Union, not "of"  Union.  Maastricht did not set up
a real Union that could act in its own right either internally or
externally. Only the European Community, which the Constitution abolishes,
could act like that.  The transformation of the present European Union from
a mixture of different forms of cooperation between States into a European
Federal State, is being done now with the proposed Constitution. Those
pushing the Constitution hope that people will not notice the legal
sleight-of-hand. If the Constitution is ratified we would become real
citizens of a European Union for the first time,and  not just honorary ones
as at present. We would owe this new Union real allegiance as a State and
have obligations directly to it and not just through our own national
States. National Constitutions must be changed to transfer svereignty to
the new Union and give its Constitution primacy.  As with many Federal
Constitutions the European Constitution provides that a Member State may
withdraw from the new Union if it wishes, although the procedure it lays
down for doing this makes it difficult(Art.I-60). Historical experience
suggests that individual withdrawals from Federal States seldom take place.
The more usual pattern in the case of Federations that do not last, is that
they break up because of conflict between their members, so that everyone
leaves, as it were.


The EU Constitution turns the EU into a State by means of four precise
legal steps. FIRST, it repeals the existing EC and EU treaties(Art.IV-437).
It thereby abolishes the existing European Union and European Community.
SECOND, it establishes a new European Union founded on its own Constitution
rather than on treaties between sovereign Member States(Art.I-1). A
Constitution, as distinct from a Treaty, is an independent source of legal
authority for a State;although history also shows many examples of States
being set up by treaties. THIRD, it lays down that this Constitution and
law made under it has primacy over the law, including the constitutional
law, of its Member States, without any qualification or exclusions that
would reserve powers to its Member States indefinitely (Arts.I-6). This
makes the European Constitution the fundamental source of legal authority
in the new EU, supplanting the constitutions of the Member States in that
respect. FOURTH, it gives this new European Union, which henceforth derives
its authority and legitimacy from its own Constitution, legal personality
and independent corporate existence for the first time(Art.I-7). This makes
the new EU legally separate from its individual Member States, just as
Texas and Virginia are legally  separate from the US Federation and vice
versa, even though the USA includes these provincial states. The
Constitution enables the new EU State to act as sovereign over its Members
and to enter into treaty relations with other States, just like any other
member of the international community of States.


The Constitution could have excluded some national powers and competences
permanently from the scope of this new EU and the primacy of its laws, in
which case Member States would have retained  some of their original
sovereignty and independence. But it did not do that. Member States still
retain their own national constitutions of course, just as Texas and
Virginia have their own constitutions, but they are subordinate to the new
EU Constitution, which is the fundamental source of authority for the new
Union, just as the Federal Constitution has primacy in the USA and other
Federations.


This does not mean that the new EU State will run everything, anymore than
the early American or German or Indian or Russian Federations run, or ran,
everything. The EU actually runs lots of things and potentially runs a lot
more.  How much more will depend on which of their remaining powers or
competences the Member States may agree to transfer to the new EU in the
future.


The two main powers  of Statehood the new  EU would not yet possess if the
Constitution is ratified is the power to impose taxes and the power to
force its Member States to go to war against their will. However the
"escalator" clause(Art.IV-444) would allow the European Council of
Presidents and Prime Ministers to replace unanimity by majority voting for
harmonizing indirect taxes. And the Constitution's Foreign Policy and
Security provisions(Arts.I-41 and III-310) would permit some Member States
to take the EU to war, so long as others do not object but "constructively
abstain".


Apart from that, the new Union would have all the key features of
Statehood: a Constitution, citizenship, a population, a territory, a
currency, armed forces, a legislature, executive and judiciary, a Foreign
Minister and diplomatic corps, some 100,000 pages of federal law, the right
to conclude international treaties with other States in the ever-growing
area of its exclusive competence -  and  now of course its own flag, anthem
and annual public holiday, which are given a legal basis for the first time
in the Treaty Establishing a Constitution for Europe. Moreover,it would
have acquired these features  in a much shorter period of time than it took
the US Federation historically to acquire them, although unlike the latter
there is no European people or national community to give them a democratic
basis,legitimacy and authority.



15. THE CONSTITUTION WAS DRAWN UP BY A CONVENTION THAT FAILED TO DO ITS
JOB. This Convention was set up by the 2001 Laeken Declaration of EU
Presidents and Prime Ministers. This Declaration charged the Convention
with the task of producing proposals to make the EU more democractic, more
transparent and bring it closer to citizens. It was told to consider the
possibility of restoring powers from the supranational level to the Member
States, and consider "the possibility ... in the long run" of an EU
Constitution. Instead of doing that the Convention, which overwhelmingly
consisted of Federalist EU-State-builders, rushed headlong into drafting an
EU State Constitution that has the legal effect of turning the EU into a
State and does not propose rapatriating a single power from the
supranational to the national level, but proposes rather to transfer over
60 further policy areas from Member States to the EU.



16. THE CONSTITUTION FUNDAMENTALLY UNDERMINES DEMOCRACY

The Left has always been among the strongest upholders of democracy. The
Left has traditionally stood for the right of peoples to self-determination
and to chose their own government. This fundamental democratic right, which
is a basic principle of international law, enshrined in the United Nations
Charter, is violated by the Constitution's proposal to make the proposed
new European Union, founded now for the first time on its own State
Constitution, into the supreme source of lawful authority for its 25 Member
States. The EU becomes the new legal sovereign for EU citizens, who will
owe it real allegiance for the first time, over and above their own
national States. Under the Constitution the sovereign powers of the new EU
would be vested in its Council, Commission, Court and Parliament, to which
we would all owe loyalty and obedience. We would become real citizens of
the EU for the first time, not just as an honorary title, an adjunct to
national citizenship, as at present under the 1993 Treaty of Maastricht,
but with rights and obligations direct to the EU institutions rather than
through our national institutions as hitherto. In this EU Federation the
laws for 450 million Europeans would be made by what is effectively an
oligarchy, a legislative committee, of 25 politicians on the Council of
Ministers, who are irremoveable as a group and responsible collectively to
no one. Those laws in turn are based on proposals from the 25-member,
eventually 18-member, EU Commission, who are governmental nominees and not
individually elected. European laws may be amended by the elected European
Parliament, but only with the agreement of the Council and Commission,
whose law-making power is therefore primary. The citizens of any EU Member
State cannot change a single European law, even if they overwhelmingly wish
to do that.


CONCLUSION


These proposed governmental structures for the greater part of Europe are
profoundly undemocratic, quite apart from the neo-liberal economic ideology
the Treaty Establishing a Constitution for Europe requires them to
implement as a constitutional imperative. As democrats therefore, all
socialists, Greens, anti-war activists, genuine liberals  and others on the
Left, need to work in parallel with democratic non-socialists and others,
rejecting all association with racist or fascist elements, in the common
international struggle to defend democracy in face of the proposed EU
Constitution.


              *   *   *


SOURCE:  This document has been issued for public information. It has been
drawn up by some members of the National Platform in consultation with
various representatives of the Irish political Left. It  has been checked
for legal accuracy by authorities in European law. It may be adapted or
used in whole or in part in any way whatever, without need for
acknowledgement to its source.  Please feel free to draw it to the
attention of others who may be interested in this subject.



January 2005