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Wikipedia: Treaty establishing a Constitution for Europe

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Treaty establishing a Constitution for Europe
Type of treaty Unimplemented constitution
Drafted June 2004
Signed
– location
29 October 2004
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Sealed 8 November 2004
Signatories 2004 EU members
Wikisource original text:
Treaty establishing a Constitution for Europe

The Treaty establishing a Constitution for Europe (TCE), commonly referred to as the European Constitution, was an unimplemented international treaty intended to create a constitution for the European Union. It was signed in 2004 by representatives of the 27 member states of the Union but was subject to ratification by all member states. Most of them did so, by parliamentary ratification or by referendums, but two (France and the Netherlands) rejected it in referendums. Its main aims were to replace the overlapping set of existing treaties (see Treaties of the European Union) that compose the Union’s current informal constitution, to codify human rights throughout the EU and to streamline decision-making in what is now a 27-member organisation.

The TCE was signed in Rome by representatives of the member states on 29 October 2004, and was in the process of ratification by the member states when, in 2005, French (29 May) and Dutch (1 June) voters rejected the treaty in referenda. The failure of the treaty to win popular support in these two countries caused some other countries to postpone or halt their ratification procedures, and the European Council (of heads of government of the Member States) to call a “period of reflection”. Had it been ratified by all Member States, the treaty would have come into force on 1 November 2006. In perspective, 18 member states ratified the text (three by referendum: Spain, Luxembourg and Romania) while 7 postponed the ratification process after the 2 rejections.

Following the period of reflection, the European Council meeting in June 2007 decided to start negotiations on a Reform Treaty as a replacement.[1]

Contents

History

“Family photo” of European leaders at the signing of the constitutional treaty in Rome; the classical Latin inscription ‘Europææ rei publicae status‘ translates as ‘Constitution of the European commonwealth’ (i.e. Union)

Main article: History of the European Constitution

Constitution issue

Formally, the approval of the treaty would have led to the adoption of a new rule-book, explicitly called a Constitution, for the European Union, but this new Constitution would not have replaced national constitutions. However, as already prepared by a number of precedent treaties, the provisions made by the TCE would override national law, thus leading individual countries to align their national constitution with the TCE.[citation needed]

Drafting

The TCE took as its starting point the codification of the EU’s two primary existing treaties, the Treaty of Rome of 1957 and the Maastricht treaty of 1992, as modified by the treaties of Amsterdam (1997) and Nice (2001). The current debate on the future of Europe is often said to have been given a major push by a speech made by German Foreign Minister Joschka Fischer in Berlin in 2000,[2][not in citation given] calling for a debate on the finality of European integration.

The process started following the Laeken declaration in December 2001, when the European Convention was established to produce a draft of the Constitution, chaired by former French President Valéry Giscard d’Estaing. Giscard d’Estaing told the convention members that their countrymen would one day “build statues of you on horseback in the villages you all come from”, a comment which provoked widespread derision, particularly when the unpopularity of the draft in Giscard’s own country became clear. The “Draft Treaty establishing a Constitution for Europe” was published in July 2003. After protracted negotiations during which disputes arose over the proposed framework for qualified majority voting, the final text of the TCE was settled in June 2004 under the Irish Presidency.

Ratification

A commemorative Italian euro coin depicting Europa holding a pen over the text of the Constitution was issued on the first anniversary of the signing of the Constitution.

A commemorative Italian euro coin depicting Europa holding a pen over the text of the Constitution was issued on the first anniversary of the signing of the Constitution.

It was initially expected that almost all member states (besides the Republic of Ireland, which must hold a referendum on all EU treaties) would ratify the TCE by a parliamentary or other high political process, which would be quite straightforward, given the support of all ruling governments and its approval by an overwhelming majority in the European Parliament (Report by Richard Corbett and Íñigo Méndez de Vigo). Indeed, the number of EU countries that approved the treaty by a parliamentary vote now forms a large majority. However, unanimity is required before any new treaty can come into force.

The first country to attempt a test of public opinion in a popular referendum was Spain. The TCE was approved in the referendum vote by almost 77% of the votes, although participation was around 43%.

In the United Kingdom, however, Prime Minister Tony Blair unexpectedly promised a referendum on April 20, 2004. The anti-treaty Conservatives and the pro-treaty Liberal Democrats were both in favour of a referendum. Together, these two parties had a majority in the House of Lords. The Lords could have delayed ratification until after the general election. If that happened, Labour would have been in the uncomfortable position of being the only party against a referendum. The promise of a British referendum put pressure on French President Jacques Chirac, who also then promised a referendum in France.

Post-rejection

Posters from French referendum

Posters from French referendum

The rejection of the constitution in the referendums in France and the Netherlands made the TCE’s future and the implementation of its provisions highly uncertain, provoking a crisis of confidence in the project which resulted, at least initially, in a degree of strategic paralysis. However, despite the enlargement of the Union to 27 states, it has continued to function without the TCE, the reforms agreed in the Treaty of Nice being particularly important in this respect. A long-planned referendum in Luxembourg went ahead after the defeats in the Netherlands and France, but even there the majority in favour of TCE was unexpectedly narrow. No other country has pursued plans for a referendum, including the United Kingdom. It was considered increasingly uncertain that such referenda could secure support for the TCE in the political climate following the French and Dutch rejections.

In France, rejection was considered a humiliation for then president Jacques Chirac. The TCE was rejected both by right-wing proponents of national sovereignty, such as Charles Pasqua and Philippe de Villiers, and by the anti-globalisation movement, gathered around Socialist Party MP Laurent Fabius, the Communist Party, the Revolutionary Communist League and the Workers’ Struggle party. The Socialist party, which had come out in favour after an internal referendum of all its members, saw some of its supporters follow Laurent Fabius instead of its leader François Hollande.

British Prime Minister Tony Blair supported the TCE and said he would campaign for its ratification in any British referendum. But after its rejection by the voters of France and the Netherlands, he stated in a speech in Oxford in February 2006[cite this quote] that

We locked ourselves in a room at the top of the tower and debated things no ordinary citizen could understand. And yet I remind you the Constitution was launched under the title of ‘Bringing Europe closer to its citizens’.

He went on:

The evening of the French result, I remember being in Italy with friends, and someone saying, in despair at the vote: ‘What’s wrong with them?’, meaning those who voted ‘no’. I said, ‘I’m afraid the question is: ‘What’s wrong with us?’, meaning ‘us’ the collective political leadership of Europe.

As of June 2007, when the Reform Treaty emerged as one solution to overcome the failed European Constitution, Austria, Belgium, Bulgaria, Cyprus, Estonia, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Romania, Slovenia and Spain had already ratified the constitutional treaty, either at parliamentary level or by referendum (Spain, Romania and Luxembourg held referenda, with clear majorities in favour). Finland, Germany and Slovakia completed parliamentary procedures required for ratification. The other member states had postponed ratification of EU constitution indefinitely after French/Dutch rejection. In total, 18 member states ratified or nearly ratified the text, 7 postponed the ratification process, and 2 rejected the text.

Debate about future possibilities for the Constitution

Further information: Proposed amendments to the European Constitution

The TCE’s rejection by France and the Netherlands sent shock waves through the Europe,

  1. ^ “Presidency Conclusions Brussels European Council 21/22 June 2007”, Council of the European Union, 23 June 2007.
  2. ^ “From Confederacy to Federation – Thoughts on the finality of European integration”, Joschka Fischer, 12 May 2000.
  1. ^ “Presidency Conclusions Brussels European Council 21/22 June 2007”, Council of the European Union, 23 June 2007.
  2. ^ “From Confederacy to Federation – Thoughts on the finality of European integration”, Joschka Fischer, 12 May 2000.

since these countries had been regarded as committed members of the European project. The failure of the TCE to win popular support in those countries forced a re-examination of the constitutional question.

Four options presented themselves. One was to do nothing for the time being in order to allow the dust to settle: this seemed to be the position favoured by the United Kingdom and Germany. A second was to attempt to persuade opponents to accept the TCE in its existing, or substantially in its existing, form: this appeared to be the ambition of Austria during its presidency of the Union, but it was persuaded that this was unrealistic. Another was to re-draft the TCE comprehensively so as to make it more palatable: however, there was no desire in any country to start from scratch. Finally, French president Jacques Chirac proposed to German Chancellor Angela Merkel to “cut it piece by piece”, in other words, to bring in parts only of the existing draft, so as to make the document more digestible and the process less controversial, but Merkel apparently thought it better to wait until 2007, when Germany was President of the European Council. In June 2006, Italian prime minister Romano Prodi said that he believed the treaty would be significantly revised, but that it should not take place until after the French presidential election, 2007.[1]

The Amato Group presented its proposal to replace the current Treaty on European Union, to amend the current Treaty establishing the European Community and to give the current Charter of Fundamental Rights of the European Union a legally binding status on June 4, 2007. The June 2007 European summit discussed the future of the European Constitution. The German presidency has proposed that a Reform Treaty instead of a constitution should be adopted.

Existing, newly codified and strengthened provisions

Functioning of the Union

Main articles: Institutions of the European Union and European symbols

Institutional structure

Under the TCE, the Council of the European Union would have been formally renamed the “Council of Ministers”, which is already its informal title. The “General Affairs Council” would have been formally split from the “Foreign Affairs Council”, which had informally held meetings separately since June 2002.

The TCE included a flag, an anthem and a motto, which had previously not had treaty recognition, although none of them are new.

Conferral, subsidiarity, proportionality

The TCE would have reiterated several key principles of how the Union functions:

  • the principle of conferral: that all EU competences are conferred on it voluntarily by member states;
  • the principle of subsidiarity: that governmental decisions should be taken at the lowest level possible while still remaining effective;
  • the principle of proportionality: that the EU may only act to exactly the extent that is needed to achieve its objectives;
  • the primacy of EU law: in areas where member states have made legally binding agreements at EU level, they may not then pass national laws incompatible with those EU laws.

The TCE would have specified that the EU is a union of member states, and that all its competences (areas of responsibility) are voluntarily conferred on it by its member states according to the principle of conferral. The EU would have no competences by right, and thus any areas of policy not explicitly specified in the Constitution would have remained the domain of the sovereign member states (notwithstanding the ‘flexibility clause’ – see below).

According to the TCE, the EU may act (i.e. make laws) only where its member states agree unanimously that actions by individual countries would be insufficient. This is the principle of subsidiarity, and is based on the legal and political principle that governmental decisions should be taken as close to the people as possible while still remaining effective. It is a main argument against claims that Europe limits national sovereignty but critics say that it is a principle to which lip service only is paid, and, in practice, the reach of the EU has been increasingly ambitious.

Primacy of Union law

Amongst European countries, the European Court of Justice has consistently ruled since 1964 that EU law has primacy over the laws of member states in the areas where member states allow it to legislate. National law which is incompatible with an agreement already made at European level is deemed to be ‘disapplied’ when questions arise in courts. This controversial and fundamental principle of European Community law was first recognised in the case of Van Gend en Loos in 1963 which was followed in Costa v. ENEL in 1964.

Common values of the Union’s member states

As stated in Articles I-1 and I-2, the Union is open to all European States that respect the member states’ common values, namely:

  • human dignity
  • freedom
  • democracy
  • equality
  • the rule of law
  • respect for human rights
  • minority rights
  • free market

Member states also declare that the following principles prevail in their society:

  • pluralism
  • non-discrimination
  • tolerance
  • justice
  • solidarity
  • equality of the sexes

Some of these provisions are codified for the first time in the TCE.

Aims of the Union

The aims of the EU, according to the TCE, are made explicit (Article I-3):

  • promotion of peace, its values and the well-being of its people
  • maintenance of freedom, security and justice without internal borders, and an internal market where competition is free and undistorted
  • sustainable development based on balanced economic growth and price stability, a highly competitive social market economy
  • social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child
  • economic, social and territorial cohesion, and solidarity among member states
  • respect for linguistic and cultural diversity

In its relations with the wider world the Union’s objectives are:

  • to uphold and promote its values and interests
  • to contribute to peace, security, the sustainable development of the Earth
  • solidarity and mutual respect among people
  • free and fair trade
  • eradication of poverty and the protection of human rights, in particular the rights of the child
  • strict observance and development of international law, including respect for the principles of the United Nations Charter.

Scope of the Union

Competences

The EU has six exclusive competences, policy areas in which member states have agreed that they should act exclusively through the EU and not legislate at a national level. The list remains unchanged from the previous treaties:

  • customs union;
  • those competition rules that govern the internal market;
  • eurozone monetary policy;
  • conservation of marine biological resources (the Common Fisheries Policy);
  • common commercial policy;
  • the conclusion of certain limited international agreements.

There are a number of shared competences. These are areas in which member states agree to act individually only where they have not already acted through the EU, or where the EU has ceased to act (though these are areas where member states may act both nationally and through the EU if they wish). Three new competences have been added to those in previous treaties (see below).

There are a number of areas where the EU may take only supporting, coordinating or complementary action. In these areas, member states do not confer any competences on the Union, but they agree to act through the Union in order to support their work at national level. Again, three new competences have been added to those from previous treaties (see below).

Flexibility clause

The TCE’s flexibility clause allows the EU to act in areas not made explicit in the TCE, but only:

  • if all member states agree;
  • with the consent of the European Parliament; and
  • where this is necessary to achieve an agreed objective under the TCE.

This clause has been present in EU law since the original Treaty of Rome, which established the EEC in 1958.

Common foreign and security policy

The EU is charged with defining and implementing a common foreign and security policy in due time. The wording of this article is taken from the existing Treaty on European Union.

New provisions

Scope of the Union

Legal personality

The European Union for the first time has legal personality under the TCE. This means that it is able to represent itself as a single body in certain circumstances under international law. Most significantly, it is able to sign treaties as a single body where all its member states agree.

New competences

The TCE would have conferred upon the EU as new ‘shared competences’ the areas of territorial cohesion, energy, and space. These are areas where the EU may act alongside its individual member states. The EU has conferred upon it as new areas of ‘supporting, coordinating or complementary action’ the areas of tourism, sport, and administrative co-operation.

Criminal justice proceedings

Member states would have continued to co-operate in some areas of criminal judicial proceedings where they agree to do so, as at present. Under the TCE, seven new areas of co-operation would have been added:

  • terrorism;
  • trafficking in persons;
  • offences against children;
  • drug trafficking;
  • arms trafficking;
  • corruption;
  • fraud.

Solidarity clause

The new solidarity clause of the TCE specifies that any member state which falls victim to a terrorist attack or other disaster will receive assistance from other member states, if it requests it. The type of assistance to be offered is not specified. Instead, the arrangements will be decided by the Council of Ministers should the situation arise.

European Public Prosecutor

Provision exists for the creation of a European Public Prosecutor’s Office, if all member states agree to it and if the European Parliament gives its consent.

Charter of Fundamental Rights of the European Union

Main article: Charter of Fundamental Rights of the European Union

The TCE includes a copy of the Charter already agreed to by all EU member states. This is included in the Constitution so that EU institutions themselves are obliged to conform to the same standards of fundamental rights. At the time of the Charter’s original agreement, the British Government said that it did not have binding effect. Incorporation into TCE would have put its importance beyond doubt.

Simplification

Simplified jargon and legal instruments

The TCE makes an effort to simplify jargon and reduce the number of EU legal instruments (ways in which EU countries may act). However, it is a long document couched in obscure and technical terms, which proved unpopular when presented (for example) to French voters in their referendum on the TCE.

The TCE unifies legal instruments across areas of policy (referred to as pillars of the European Union in previous treaties). Specifically:

  • ‘European Regulations’ (of the Community pillar) and ‘Decisions’ (of the Police and Judicial Co-operation in Criminal Matters (PJC) pillar) both become referred to as European laws.
  • ‘European Directives’ (of the Community pillar) and ‘Framework Decisions’ (of the PJC pillar) both become referred to as European framework laws.
  • ‘Conventions’ (of the PJC pillar) are done away with, replaced in every case by either European laws or European framework laws.
  • ‘Joint actions’ and ‘Common positions’ (of what is now the Common Foreign and Security Policy Pillar) are both replaced by Decisions.

Position of Union Minister for Foreign Affairs

Under the TCE, the present role of High Representative for the Common Foreign and Security Policy would be amalgamated with the role of the Commissioner for External Relations. This would create a new Union Minister for Foreign Affairs who would also be a Vice President of the Commission. This individual would be responsible for co-ordinating foreign policy across the Union, representing the EU abroad in areas where member states agree to speak with one voice.

Functioning of the institutions

Qualified majority voting

More day-to-day decisions in the Council of Ministers would be to be taken by qualified majority voting, requiring a 55% majority of members of the Council representing a 65% majority of citizens. (The 55% is raised to 72% when the Council acts on its own initiative rather than on a legislative proposal from the Commission or the Union Minister for Foreign Affairs.) The unanimous agreement of all member states would only be required for decisions on more sensitive issues, such as tax, social security, foreign policy and defense.

President of the European Council

The six-month rotating Presidency of the European Council would switch to a chair chosen by the heads of government, in office for 2½ years and renewable once. The role itself would remain administrative and non-executive, but rather than the Presidency being held by a member state as at present, it would be held by an individual elected by and accountable to the Council.

President of the Council of Ministers

The six-month rotating Presidency of the Council of Ministers, which currently coincides with the Presidency of the European Council, would be changed to an 18-month rotating Presidency shared by a trio of member countries, in an attempt to provide more continuity. The exception would be the Council’s Foreign Affairs configuration, which would be chaired by the newly-created Union Minister for Foreign Affairs.

Smaller Commission

The Commission would be reduced in size from 27 to 15 by the year 2014. There would be fewer Commissioners, with member states taking it in turn to nominate Commissioners two times out of three.

Parliamentary power and transparency

  • President of the Commission: The candidate for President of the European Commission would be proposed by the European Council, after consultation with MEPs, and would be elected by the European Parliament. Parliament would have the final say.
  • Parliament as co-legislature: The European Parliament would acquire equal legislative power under the codecision procedure with the Council in virtually all areas of policy. Previously, it had this power in most cases but not all.
  • Meeting in public: The Council of Ministers would be required to meet in public when debating all new laws. Currently, it meets in public only for texts covered under the Codecision procedure.
  • Budget: The final say over the EU’s annual budget would be given to the European Parliament. Agricultural spending would no longer be ring-fenced, and would be brought under the Parliament’s control.
  • Role of national parliaments: Member states’ national parliaments would be given a new role in scrutinising proposed EU laws, and would be entitled to object if they feel a proposal oversteps the boundary of the Union’s agreed areas of responsibility. If the Commission wishes to ignore such an objection, it would be forced to submit an explanation to the parliament concerned and to the Council of Ministers.
  • Popular mandate (aka initiative): The Commission would be invited to consider any proposal “on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Constitution” which has the support of one million citizens. The mechanism by which this would be put into practice has yet to be agreed. (See Article I-46(4) for details.)

Further integration, amendment and withdrawal

Enhanced co-operation

There would be a tightening of existing rules for ‘enhanced cooperation’, where some member states would have chosen to act together more closely and others not. A minimum of one third of member states would now be forced to participate in any enhanced cooperation, and the agreement of the European Parliament is needed. The option for enhanced cooperation would also be widened to all areas of agreed EU policy.

Treaty revisions

Previously, alteration of treaties was decided by unanimous agreement of the European Council in private meeting. Proponents of the TCE claim that any amendments to the Constitutional treaty will involve the convening of a new Convention, similar to that chaired by Valéry Giscard d’Estaing in drafting the TCE. This process may be bypassed if the European Parliament agrees, in which case, the final say on adopting proposals will rest with the European Council, who must agree unanimously. However, small revisions (switching from unanimity voting to qualified majority voting in specific policy areas) can be made by the European Council through the so-called ‘Passerelle Clause’ (Article IV-444) if every member state agrees.

Withdrawal clause

A new clause in the TCE allows for the withdrawal of any member state without renegotiation of the TCE or violation of treaty commitments (clause I-60). Under this clause, when a country notifies the Council of its intent to withdraw, a settlement is agreed in the Council with the consent of Parliament. If negotiations are not agreed within two years, the country leaves anyway. The process described is a formalisation of the process which Greenland used to leave the EC in 1985.

Points of contention

Versions of the Treaty establishing a Constitution for Europe in the English language, published by the European Union for the general public.  From left to right: the draft by the European Convention; the full Intergovernmental Conference version (text as signed by plenipotentiaries to be ratified) with the protocols and annexes; the abridged version with the European Parliament's resolution of endorsement, but without the protocols and annexes, for visitors to the European Parliament.  Versions in other European languages were also published.

Versions of the Treaty establishing a Constitution for Europe in the English language, published by the European Union for the general public. From left to right: the draft by the European Convention; the full Intergovernmental Conference version (text as signed by plenipotentiaries to be ratified) with the protocols and annexes; the abridged version with the European Parliament’s resolution of endorsement, but without the protocols and annexes, for visitors to the European Parliament. Versions in other European languages were also published.

The TCE’s attempt to codify all previous treaties increased its length and complexity tremendously and aroused deep suspicions of its effects among holders of widely differing European points of view. Eurosceptics (particularly in the United Kingdom) saw it as entrenching a European superstate, whilst the left (particularly in France) alleged that it is a sort of neoliberal Washington consensus for Europe. It was also criticised for confusing constitutional and structural questions with questions of policy which would not usually be contained in a constitutional document (although they were contained in the various treaties which preceded it). Opponents to neoliberalism maintain their initial viewpoint, in favour of European integration, but against antisocial policies (it may be compared to the November 2005 Mar del Plata Summit of the Americas and to its opposition to the Free Trade Area of the Americas). Thus, the opposition between proponents and opponents of the TCE is both a “national sovereignty vs. European integration” debate and a “neoliberal vs. social policies” debate.

Length and complexity

Critics of the TCE point out that, compared to some existing national constitutions (such as the 4,600-word United States Constitution), it is very long, at over 160,000 words in its English version, including declarations and protocols. It is also written in technical legal language which has proved difficult even for specialists to understand, and highly inaccessible to the general public.

Proponents say that the document nevertheless remains considerably shorter and less complex than the existing set of treaties that it consolidates, but even the drafters of the CT have suggested that they were wrong to attempt, at the same time and in one document, both construction of a constitution and consolidation of all previous treaties, regardless of the nature of their provisions. Had they not done so, the TCE could have been much shorter, simpler and easier to grasp. Defenders of the length of the document say it is not an overarching general constitution, but a development of the previous treaties.

Qualified majority voting

Qualified majority voting is extended to an additional 26 decision-making areas that had previously required unanimity. Opponents of the TCE argue that this involves a loss of sovereignty and decision-making power for individual countries. Defenders argue that these provisions only apply in the areas where member states have agreed it should and not otherwise; that it was necessary to prevent decision-making from grinding to a halt in the enlarged Union. (In the past, there have been cases when it appeared that “veto trading” was being used tactically rather than for issues of principle.) Further, the “qualified majority voting” mechanism is structured such that a blocking minority is not difficult to achieve for matters of substance.

Union law and national law

Critics sometimes claim that it is unacceptable for the TCE to enshrine European laws as taking precedence over national laws, because this is an erosion of national sovereignty.

Defenders say it has always been the case that EU law supersedes national law. The TCE does not change this arrangement for either existing or future EU law. However, the question of whether the arrangement is considered acceptable in the first place is still an issue for debate.

With the widening of qualified majority voting also envisaged in the TCE, however, the issue of the primacy of EU law becomes more sensitive. This is because there is an increase in the number of areas in which laws can be passed by majority vote, and thus an increase in the number of areas where it is possible for an individual country to vote against a proposal (unsuccessfully) and subsequently find its national legislature to be bound it.

Trappings of statehood

It has been argued that the TCE introduces a number of elements that are traditionally the province of sovereign states: flag, motto, anthem. While these have no special legal status, and all exist already, this is something some see as a shift towards the future creation of a single European state, and a possible corresponding loss of national identity. The symbols of the EU in the proposed constitution are listed in Article I-8 of the full document. Many eurosceptics oppose the TCE for this reason.

Defenders of the TCE argue that none of these elements are new, although their formal inclusion in a constitutional treaty is obviously new, and that many of them are also used by other international organisations. They also argue that key principles enshrined in the TCE, such as the principles of conferral and subsidiarity, reinforce the status of member states as cooperating sovereign nations.

It has likewise been argued that to call the document a “Constitution” rather than a “treaty” implies a change in the nature of the EU, from an association of cooperating countries to a single state or something approaching a state. In response, it has been pointed out that many international organisations, including the World Health Organisation, have constitutions, without implying that they are states. From a legal point of view the TCE will still be a treaty among independent states.

Some people have said that it may be more appropriate to hold Europe Day on the original Council of Europe designated date of May 5, as opposed to the current EU and TCE-proposed May 9, the commemoration date of the end of the Second World War in Europe for much of formerly Soviet dominated eastern Europe – many of which are now EU member states. The western European equivalent, VE Day is on May 8. The choice of May 9 by the European Community in 1985 was because that was the day on which the Schuman declaration was made. Some eurosceptics have said that the Council of Europe day of May 5, celebrating the Council of Europe and its values of human rights, parliamentary democracy and the rule of law, would be more worth celebrating than the presentation of proposals about coal and steel by a French minister to the German government – symbolising as it does the founding of the Franco-German engine, a concept which many see as a mechanism for excluding others from EU decision making.

Democracy

See also: Democratic deficit

While the TCE does not give any more power to the European Commission, it has been argued that by failing to reduce the Commission’s powers, it perpetuates the perceived democratic deficit of the European Union as a whole.

As Commissioners are nominated by member countries and approved by the European Parliament, rather than being directly elected by the people, it is argued that the Commission – essentially the executive of the Union – holds more power than it should in an optimally democratic system.

Although it remains the case that the Commission has no law-making power, and may only draft proposals for the consideration of directly elected representatives in Parliament and Council, there are several ways in which the Commission can bring pressure to bear on these two bodies nonetheless. It may, for instance, threaten to withdraw a legislative proposal (as in the debate on the Directive on the patentability of computer-implemented inventions on 23 September 2003[1]). It may also require the Council of Ministers to reach unanimous agreement rather than majority approval if the Commission does not approve Parliament’s proposed amendments during the first reading of the codecision procedure. However, it cannot impose any laws, as the approval of at least a qualified majority (well over two-thirds of the votes) in the Council and usually of the European Parliament is needed.

The TCE would have enhanced parliamentary scrutiny by widening the areas on which the European Parliament’s approval is needed to cover almost all legislation adopted by the Council, by providing for the President of the Commission to be elected by the Parliament, by giving national parliaments a right of prior scrutiny before proposals are dealt with by the Council of Ministers and by enhancing parliamentary scrutiny over secondary implementing measures.

But some of the other of the TCE’s measures intended to enhance democracy are said by some to be unavailing. For instance, the obligation for the Commission to consider a petition by 1 million citizens only “invites” such a petition to be “considered”; it is open to the Commission to decide how to react, including ignoring the petition if it wishes. Detractors thus argue that this new provision is pointless. In response, it has been argued that it would not be feasible in practice for the Commission to ignore a mandate from a million citizens.

Some argue that the Commission is not a directly elected body and therefore has no electorate which could bring such pressure to bear against the will of Commissioners, but defenders further point out that MEPs, who are directly elected, have the power to scrutinise, censure and if necessary dismiss the Commission. This is, in fact, similar to the relationships between national parliaments and their executives, as governments are not directly elected in most European countries, but depend on parliamentary majorities.

Nonetheless, some would like to see the power to propose legislation removed from the Commission, and the Commission turned into a less political body along UK civil service lines. They argue that the power to propose legislation would fall to the legislature, either the Council of Ministers, or the European Parliament, or both. This was not retained in the TCE, which instead provided for the Commission President to be elected by the European Parliament, thereby making it clear that the Commission is a political executive and that Commissioners are not “faceless unelected bureaucrats”.

Secularism

There was a debate about whether to include a reference to Christianity in the TCE. The Roman Catholic Church and even the former Polish president Aleksander Kwaśniewski, who himself is an agnostic, advocated such a move to reflect Europe’s Christian history, but France and some NGOs took a strongly secular stance. In the end, a compromise agreement included a reference in the preamble to “the cultural, religious and humanist inheritance of Europe”.

Militarism

Article I-41(3) states that: “Member States shall undertake progressively to improve their military capabilities“. It has been argued that this will prevent all partial disarming of any of the states to require them to increase military capabilities without taking into account the geopolitical situation, or the will of the people. The creation of a European weapon office may also lead to an increase of the worldwide arms race, according to some analyses.

Others point out that the same article limits any EU joint military action to “peace-keeping, conflict prevention and strengthening international security” based on UN principles. It is only under this framework that countries agree to develop their military capabilities.

Economic policy

Some commentators, especially within France, have expressed a fear that the proposed Constitution may force upon European countries a neoliberal economic framework which will threaten the “European social model”. The principles of the “free movement of capital” (both inside the EU and with third countries), and of “free and undistorted competition”, are stated several times, and it has been argued that they cover all areas, from health care to energy to transport. However, there are also concerns among commentators in Britain as well as Central and Eastern European countries that it enshrines too many socialist principles, such as the rights of workers’ unions, and the right to strike. The principle of free movement of capital and the goal of encouraging competition have already been included in the Treaties of Rome, dating from 1956.

The European Central Bank remains independent of any democratic institution, and its only purpose is to fight inflation. This contrasts with other organisations, such as the U.S. Federal Reserve, which also has the goal of fighting unemployment.

It has also been argued that existing national constitutions do not fix economic policies inside the TCE itself: it is more common for elected governments to retain the power to decide on economic policy.

Human rights

Some opponents argue that since some fundamental human rights are not explicitly enumerated by the TCE’s Charter of Fundamental Rights, they are not recognised by that charter.

In response, defenders point out that the charter does not affect the laws of EU member states, since all member states are already signatories to the European Convention on Human Rights.

Instead, the charter applies only to the EU institutions themselves. The EU’s accession to the Convention is intended to solve the question of clash between two human rights bills, so that in actual fact the Constitution’s charter would be construed in exactly the same way as the existing and binding Convention. There would thus be no change in legal position.[2]

Ratification

Further information: History of the European Constitution#Ratification
Ratification status in member states and candidate countries     Referendum announced      No referendum planned      Yes - Accession treaty      Yes - Parliament only      Yes - Referendum      No - Referendum      Referendum postponed indefinitely

Ratification status in member states and candidate countries Referendum announced No referendum planned Yes – Accession treaty Yes – Parliament only Yes – Referendum No – Referendum Referendum postponed indefinitely

The TCE was signed in a ceremony at Rome on 29 October 2004. Before it enters into force, however, it must be ratified by each member state. Ratification takes different forms in each country, depending on its traditions, constitutional arrangements, and political processes. In several member states, the head of state is also required to approve the TCE once it has been approved by parliament or referendum. The President of Germany has not yet done so, due to a pending legal challenge over the way ratification was handled without a referendum. Slovakia’s president has also not yet approved the constitution following a request from the country’s Constitutional Court.

On 12 January 2005 the European Parliament voted a legally non-binding resolution in support of the TCE by 500 votes in favour to 137 votes against, with 40 abstentions.[3]

Lithuania, Hungary, Slovenia, Italy, Greece, Slovakia, Austria, Germany, Latvia, Cyprus, Malta, Belgium, Estonia, Finland, Bulgaria and Romania have already completed parliamentary ratification of the TCE.

Ten of the 27 member states had announced their intention to hold a referendum on the subject. In some cases, the result would be legally binding; in others it would be consultative (as was the case in the Netherlands). Five referenda have now taken place, resulting in Spain, Luxembourg and Romania ratifying the TCE, and it being rejected in France and the Netherlands. While the referendum in the Netherlands was consultative only, the Dutch government had pledged that it would not ratify.

Since the French vote, some EU countries have confirmed their intention to abandon or postpone referenda on ratification, including the United Kingdom, where then Foreign Secretary Jack Straw has said there is “no point” in planning a referendum following the decisions in France and the Netherlands.[4] Other countries have continued with ratification procedures, including Luxembourg, which approved the treaty in a referendum on 10 July 2005 albeit the result was very narrowly in favour.[5]

On 15 September 2005, MEPs Johannes Voggenhuber of the Austrian Green Party and Andrew Duff of the Liberal Democrats suggested the following plan of action:

  • before the end of 2006, write a strongly reduced treaty containing only the non-controversial points (i.e., charter of fundamental rights, European referendum, the principle of “no law without parliament”).
  • before the end of 2009, a new constitutional convention should decide on a new European Constitution, especially regarding the “favoured social system” and the Common Foreign and Security Policy.
  • together with the elections for European Parliament in 2009, a European referendum on the constitutional treaty should be called.

Their proposal was not followed by the European Parliament, which preferred to keep options open during the “period of reflection” that member states had agreed following the negative referendum results, in its resolution passed by on 19 January 2006 by 385 in favour to 125 against.

In 2007, Member States agreed to abandon the constitution and to amend the existing treaties, which would remain in force. At the European Council meeting of June 2007, they agreed a detailed mandate for a new intergovernmental conference (IGC) to negotiate a new treaty containing such amendments to the existing treaties (primarily the Treaty of Rome and the Treaty bof Maastricht). These negotiations were completed by the end of the year and Member States signed the new Treaty in Lisbon at the end of 2007. It is known as the “Reform treaty” or “Treaty of Lisbon” and is currently (early 2008) subject to national ratification.

Ratification of the Treaty

Member state[6] Date Result[7] Deposition with Italian Government[8]
Flag of Lithuania Lithuania 11 November 2004 Yes Yes. Seimas: 84 to 4 in favour, 3 abstentions.[9] 17 December 2004
Flag of Hungary Hungary 20 December 2004 Yes Yes. Országgyűlés: 323 to 12 in favour, 8 abstention.[10] 30 December 2004
Flag of Slovenia Slovenia 1 February 2005 Yes Yes. Državni zbor: 79 to 4 in favour, 0 abstentions.[11] 9 May 2005
Flag of Italy Italy 25 January 2005
6 April 2005
Yes Yes. Camera dei Deputati: 436 to 28 in favour, 5 abstentions.[12]
Yes Yes. Senato della Repubblica: 217 to 16 in favour, 0 abstentions.[13]
25 May 2005
Flag of Spain Spain 20 February 2005
28 April 2005
18 May 2005
Yes Yes. Consultative referendum: 76.73% to 17.24% in favour, 6.03% blanks, 42.32% participation.[14][15]
Yes Yes. Congreso de los Diputados: 311 to 19 in favour, 0 abstentions.[16]
Yes Yes. Senado: 225 to 6 in favour, 1 abstention.[17]
15 June 2005
Flag of Austria Austria 11 May 2005
25 May 2005
Yes Yes. Nationalrat: Approved by show of hands with 1 against.[18]
Yes Yes. Bundesrat: Approved by show of hands with three against.[19]
17 June 2005
Flag of Greece Greece 19 April 2005 Yes Yes. Βουλή των Ελλήνων: 268 to 17 in favour, 15 abstentions.[20] 28 July 2005
Flag of Malta Malta 6 July 2005 Yes Yes. Il-Kamra: Agreed without a division.[21] 2 August 2005
Flag of Cyprus Cyprus 30 June 2005 Yes Yes. Βουλή των Αντιπροσώπων: 30 to 19 in favour, one abstention.[22] 6 October 2005
Flag of Latvia Latvia 2 June 2005 Yes Yes. Saeima: 71 to 5 in favour, six abstentions.[23] 3 January 2006
Flag of Luxembourg Luxembourg 10 July 2005
25 October 2005
Yes Yes. Consultative referendum: 56.52% to 43.48% in favour, 87.77% participation.[24][25]
Yes Yes. Châmber: 57 to 1 in favour, no abstentions.[26]
30 January 2006
Flag of Belgium Belgium 28 April 2005
19 May 2005
17 June 2005
20 June 2005
29 June 2005
19 July 2005
8 February 2006
Yes Yes. Senaat/Sénat: 54 to 9 in favour, one abstention.[27]
Yes Yes. Kamer/Chambre: 118 to 18 in favour, one abstention.[28]
Yes Yes. Parlement Bruxellois/Brussels Hoofdstedelijk Parlement: 70 to 10 in favour, 0 abstentions.[29]
Yes Yes. Parlament der Deutschsprachigen Gemeinschaft: 21 to 2 in favour, no abstentions.[30]
Yes Yes. Parlement wallon: 55 to 2 in favour, 0 abstention.[31]
Yes Yes. Parlement de la Communauté française: 79 to 0 in favour, no abstentions.[32]
Yes Yes. Vlaams Parlement: 84 to 29 in favour, one abstention.[33]
13 June 2006
Flag of Estonia Estonia 9 May 2006 Yes Yes. Riigikogu: 73 to 1 in favour, no abstentions.[34] 26 September 2006
Flag of Bulgaria Bulgaria 1 January 2007 Yes Yes. Due to the provisions of Treaty of Accession 2005 Not required
Flag of Romania Romania 1 January 2007 Yes Yes. Due to the provisions of Treaty of Accession 2005 Not required
Flag of Slovakia Slovakia 11 May 2005 Yes Yes. Národná rada: 116 to 27 in favour, four abstentions.[35] Pending. President of the republic has not yet signed the law.
Flag of Germany Germany 12 May 2005
27 May 2005
Yes Yes. Bundestag: 569 to 23 in favour, two abstentions.[36]
Yes Yes. Bundesrat: 66 to 0 in favour, three abstentions.[37]
Pending. President of the republic has not yet signed the law (due to pending decisions of the Constitutional Court).[38]
Flag of Finland Finland
incl. Åland Åland[39]
5 December 2006
Cancelled
Yes Yes. Eduskunta/Riksdag: 125 to 39 in favour, four abstentions.[40]
Lagting[41]
Pending
Flag of France France 29 May 2005
Cancelled
Cancelled
No No. Referendum: 54.68% to 45.32% against, 69.34% participation.[42][43]
Assemblée Nationale:
Sénat:
Flag of the Netherlands Netherlands 1 June 2005
Cancelled
Cancelled
No No. Consultative referendum: 61.54% to 38.46% against, 63.30% participation.[44][45]
Tweede Kamer:
Eerste Kamer:
Flag of the Czech Republic Czech Republic Cancelled
Cancelled
Cancelled
Referendum:
Senát:
Poslanecká sněmovna:
Flag of Denmark Denmark Cancelled
Cancelled
Referendum:
Folketing:
Flag of Ireland Ireland Cancelled
Cancelled
Cancelled
Referendum:
Dáil Éireann:
Seanad Éireann:
Flag of Poland Poland Cancelled
Cancelled
Cancelled
Referendum:
Sejm:
Senat:
Flag of Portugal Portugal Cancelled
Cancelled
Referendum:
Assembleia da Republica:
Flag of Sweden Sweden Cancelled Riksdag:
Flag of the United Kingdom United Kingdom Cancelled
Cancelled
Cancelled
Referendum:
House of Commons:
House of Lords:

Status of ratification process as of 23 June 2007:

Stage of the process Number of countries with referenda
Ratification completed 15
Flag of Austria Austria
Flag of Belgium Belgium
Flag of Bulgaria Bulgaria
Flag of Cyprus Cyprus
Flag of Estonia Estonia
Flag of Greece Greece
Flag of Hungary Hungary
Flag of Italy Italy
Flag of Latvia Latvia
Flag of Lithuania Lithuania
Flag of Luxembourg Luxembourg
Flag of Malta Malta
Flag of Romania Romania
Flag of Slovenia Slovenia
Flag of Spain Spain
2

Flag of Luxembourg Luxembourg Flag of Spain Spain

Ratification by the parliament completed 3
Flag of Finland Finland
Flag of Germany Germany
Flag of Slovakia Slovakia
0
Rejected 2
Flag of France France
Flag of the Netherlands Netherlands
2
Flag of France France
Flag of the Netherlands Netherlands
Abandoned 7
Flag of the Czech Republic Czech Republic
Flag of Denmark Denmark
Flag of Ireland Ireland
Flag of Poland Poland
Flag of Portugal Portugal
Flag of Sweden Sweden
Flag of the United Kingdom United Kingdom
5

Flag of Denmark Denmark
Flag of Ireland Ireland
Flag of Poland Poland
Flag of Portugal Portugal Flag of the United Kingdom United Kingdom

Quotes

Our Constitution … is called a democracy because power is in the hands not of a minority but of the greatest number.

Thucydides II, 37.

This was the first sentence of the preamble of the draft treaty establishing a constitution for Europe in the version of the European Convention. The Heads of State and Government deleted it during their Intergovernmental Conference.

See also

  • Treaty of Lisbon
  • European Constitution in Interlingua

News coverage

  • BBC: Questions and answers about the TCE
    • BBC: Quick guide to the Constitution
  • BBC: Progress of ratification

Campaigning and advocacy sites

  • European Campaign for the Constitution
  • European Yes Campaign
  • European No Campaign
  • Democracy in Europe
  • our-constitution.org Our Constitution – grassroots campaign to include the people in the process of constitution building in Europe
  • ERC, European Referendum Campaign, demanding referenda on the European Constitution in all countries concerned
  • A roller coaster ride towards democracy – how the European Citizens Initiative found its way into the EU Constitution

Discussion sites

  • talkeuro – an open annotatable European Constitution in English and French

Monitoring reports

  • These reports evaluate the fairness of the referenda in Spain, France and the Netherlands using internationally recognised standards (p.4 250 KB pdf 20p.) for a referendum.

Commentary

  • The Future of the EU Constitution: Escaping the Ratification Maze, JURIST

Creative

  • Part Three, a story inspired by the draft EU constitution

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