EU Law Making | Free EU Law Essay

Calls for a constitution for Europe to address current deficiencies in democracy in EC Law-making ignore the fact that the EC Treaty (as amended) already is a constitution in all but name, yet still lacking in democracy. Critically evaluate the above statement.

Introduction

This commentator largely disagrees with the statement under discussion. The determined political and institutional drive towards a new constitutional treaty is compelling evidence that the current EC Treaties are considered inadequate to fulfil the role of an effective constitutional document. One must ask the question as to why the member states, in particular those enthusiastic about the prospect of an EU constitution, have subjected themselves to the laborious, time-consuming, risky and ultimately embarrassing task of attempting to establish a new constitutional treaty, if one is already in place in all but name?

The Treaty of Rome was signed in 1957 with the purpose of establishing an economic relationship between six European states - France, Germany, Italy, Belgium, The Netherlands and Luxembourg. The document was intended to deal with such matters as tariffs and barriers to trade, competition law and the free movement of workers exclusive to the economy. Although the architects of the European Economic Community such as Monnet and Schumann were intimidated by the prospect of a third world war on the European continent and eager to see the European states associate more closely together, the Treaty of Rome was simply not designed to have a constitutional scope or basis and did not address matters appropriate to such an overarching document.

All that said, ever since the signing of the Single European Act in 1986 a deliberate and sustained plan to bring the states of Europe towards a more integrated model of Union which might approach a constitutional status has been pursued by the major European players, in particular France and Germany.

The Single European Act was dressed in terms of market unification but in fact the Act initiated policies aimed at considerably more than mere economic consolidation and integration. The institutions of the EEC were famously criticised as functioning under a so-called democratic deficit, which referred to the fact that there was a common public and media perception that the institutions were creating law under the auspices of bureaucrats rather than representatives elected by direct universal suffrage. To counter this, among other reforms, in a subtle move the Assembly was renamed the European Parliament, to give it a more authoritative and democratically-friendly sounding name, and given new powers in the law making process of the Community.

The Treaty on European Union , popularly known as the Maastricht Treaty, was signed in February 1992. It is submitted that this Treaty was overtly designed to bring into action essential institutional reforms to reposition the European Economic Community, which was renamed the European Community by Maastricht, so as to bring forward the greater integration of its member states. The Community's new name - dropping the word Economic - broadcast the fact that the organisation had developed from its exclusively economic beginnings and cultivated jurisdictions and competencies in other areas. For example and in particular, the Treaty on European Union set in place the scheme for monetary union and a single currency, which is one necessary component of a federal union that would require a constitution. Again, the law making powers of the European Parliament were increased, this time substantially so, in order to mollify further those critical of the democratic deficit of the Community. Concerns about the lack of democracy in the Community's legislative process had persisted since the signing of the SEA, but now the fully elected Parliament had a real and effective part to play in the law making regime.

Those intent on a federal destination for the Community were keen to incorporate other new powers in the sphere of foreign policy, and in regards to criminal and military cooperation in the Maastricht Treaty. However, member states such as the United Kingdom, considered these fields to be too sensitive to be controlled by the European Community and its institutions, and were determined to preserve the sovereignty of national governments in these areas of activity. There were also fears that other established international organisations, such as, in particular, the North Atlantic Treaty Organisation (NATO), might be weakened or even jeopardised by deeper integration in these spheres.

As a consequence it was an intergovernmental system, instead of a supranational, system, that was chosen to incorporate these new powers. A three pillar structure was therefore create to distinguish the new and traditional Community responsibilities from the new powers in areas of foreign policy and military cooperation (which was known as the "CFSP pillar") and criminal matters (which was known as the "JHA pillar"). Further steps, albeit some of them tentative, were thus taken towards a constitutional structure for the European Union.

The progress initiated by Maastricht towards an embryonic federation, which would ultimately need underpinning by a constitution, was built on by the Treaties of Amsterdam and Nice , but political development became sporadic, piecemeal and more reluctant in general terms . Both Amsterdam and Nice secured the further consolidation of policy in various areas, but the drive towards unity which would demand a constitutional status was hampered by a lack of unanimity among the member states and certain crucial reforms were kicked into the long grass of diplomatic negotiation.

The attempt to establish an EU Constitution

It was the Treaty of Nice that was aimed at reorganising the European Union institutions so that the EU could operate smoothly after its intended enlargement to 25 Member States. This enlargement has now taken place. It was intended that a new constitution could be adopted at the point of enlargement or soon after, in order to further deepen and improve the powers of the EU and the rights it could bestow.

The first formal step towards the creation of an EU constitution was the signing of the Treaty establishing a Constitution for Europe, which took place in Rome in October 2004. The draft Constitution represented the culmination of the process of integration set in train by the succession of Treaties since the Single European Act.

The Constitutional Treaty begins with a grand Preamble which states the history and heritage of Europe and the commitment and determination of the EU to transcend its divisions. It is thereafter organised in four sections - all of equal authority.

Part I concerns the objectives, principles and institutional provisions governing the EU. In particular it covers the fundamental rights and citizenship of the Union; Union competences and the exercise of that competence; the democratic life of the Union, its finances and its neighbours; and the membership of the Union.

Part II of the draft Treaty embraces the European Charter of Fundamental Rights. It contains seven Titles which are: dignity; freedoms; equality; solidarity; citizens' rights; justice; and general provisions.

Part III sets out rules governing the functioning of the Union and its internal and external policies are stated. These include provisions relating to economic and monetary union, the single market, the CFSP pillar and the functioning of the institutions. Seven Titles are also contained in Part III, namely: provisions of general application; non-discrimination and citizenship; internal policies and action; association with overseas countries and territories; the Union's external activity; the operation of the Union; and other common provisions.

Part IV deals with the entry into force of the Treaty, the procedure for its amendment Constitution and the repeal of earlier Treaties. In addition, a number of protocols are annexed to the draft Treaty in particular statements on the role of national parliaments in the European Union and the application of the principles of subsidiarity and proportionality.

The content of the Constitutional Treaty therefore significantly surpasses that which is already enshrined in the EU Treaties and it is submitted that this observation serves to underline this paper's opening argument that the current acquis communautaire falls some way short of establishing an effective constitution for the EU.

The Constitutional Treaty incorporates many innovations that take it beyond the current state of EU law. The values and objectives of the Union and the rights of European citizens are consolidated, as a consequence of the incorporation into the Constitution of the European Charter of Fundamental Rights. Moreover, the Union is accorded a single legal personality - an important precursor to a constitution - by merging the European Community and the European Union. In addition, for the first time the draft Treaty defines the democratic underpinnings of the Union, including participatory democracy and an effective right of popular legislative initiative is set in place.

The draft Treaty will also ensure that seats in the European Parliament are distributed on a degressive proportional basis and reduce the Commission (which is still identified as lacking democratic authority) in size from 2014, so as to make the number of Commissioners equivalent to two-thirds of the number of member states. The Treaty also states that the President of the Commission is to be elected by the (democratically elected) European Parliament based on a proposal from the European Council and a Minister for Foreign Affairs would be appointed to assume the role of the External Relations Commissioner and the High Representative for the Common Foreign and Security Policy attached to the Council.

As to the important and central question of the European Union's law making powers the draft Treaty establishes a new qualified majority system, under which 55% of the Member States representing 65% of the population will constitute a qualified majority. This will ensure it is easier to obtain sufficient support to pass law in a Union which has dramatically expanded recently. Moreover, qualified majority voting in the Council of Ministers would be extended to cover more areas of legislative competence and, importantly, the standard law making procedure will become one requiring the joint adoption of laws by the European Parliament and the Council. This will ensure that legislative activity is focused on democratically elected representatives from the member states.

It seems therefore that the draft constitution would introduce more democracy into the European Union legislative framework. However, the draft Constitutional Treaty looks most unlikely to pass into force in its present form after its rejection in 2005. Because the draft Treaty makes amendments to the founding treaties of the European Union legal system, it must secure the support of all member state signatories to the EU. In simple terms unanimity is essential. Unfortunately, although thirteen member states, including Germany, Italy and Spain, ratified the Treaty, it was rejected by France and the Netherlands after national referenda earlier in the year.

As a consequence many of the EU countries yet to ratify have confirmed their intention either to abandon or indefinitely postpone referenda on ratification. These states include Portugal, Sweden and the United Kingdom. Therefore it is extremely unlikely that the member state ratification process of the Constitutional Treaty will be completed while the Treaty remains in its current draft.

Concluding Comments

In conclusion it is submitted that the acquis communautaire, as it stands in 2005, does not contain either the technical content or the kind of comprehensive statement of rights and principles that one would expect to find in a full constitutional document. It is argued therefore that the EC Treaty is not a constitution in all but name, being deficient in certain key respects. If it did possess such characteristics it is unlikely that such time and effort would have been invested by the member states and institutions of Europe to create a new constitution.

It is true, however, that the EC Treaty remains pregnable to criticisms that a so-called democratic deficit still exists. Among the institutions that operate under the authority of the EC Treaty, the Commission is most vulnerable in this regard. It is unfortunate that those reforms embedded in the draft Constitutional Treaty designed to improve the democratic credentials of the supranational organisation will now be delayed or lost as a consequence of the recent failure of the ratification process. However, it is at least encouraging to note that those attempting to draw the Union closer together under a constitution have recognised the fact that enhanced democracy is one essential component of that process.

BIBLIOGRAPHY

Steiner and Woods, Textbook on EC Law, (2003) Blackstone
Kent, Law of the European Union, (2001) Longman
The Treaty of Rome (1957) (as amended) http://europa.eu.int/abc/obj/treaties/en/entoc05.htm
The Single European Act 1987: http://europa.eu.int/abc/obj/treaties/en/entr14a.htm
The Treaty on European Union 1992: http://europa.eu.int/eur-lex/en/treaties/dat/EU_treaty.html#0001000001
The Treaty of Amsterdam1997: http://europa.eu.int/abc/treaties/index_en.htm
The Treaty of Nice 2001: http://europa.eu.int/abc/treaties/index_en.htm
Europa: Gateway to the European Union: http://europa.eu.int/index_en.htm
EC Legislation, (2004) Blackstones Statutes