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Free 2.1 Law Essay

To what extent will the Constitutional Treaty, if ratified, settle the problems of EU constitutionalism?

It is pertinent to begin this work with a note to the effect that it is most unlikely that the Treaty establishing a Constitution for Europe, commonly referred to as the Constitutional Treaty, will complete the extended ratification process and pass into force in its current form. Given that the Treaty makes amendments to the Treaty of Rome and thus the very foundations and superstructure of the European Union legal order, it is necessary that it receives unanimous support from the member state signatories to the EU. Thirteen member states, including Germany, Italy and Spain, have already ratified the Treaty, but it has been rejected by France and the Netherlands after national referenda.

Given this situation, in particular the body blow served by EU founder member and chief architect France, no fewer than seven EU countries have confirmed their intention to abandon or indefinitely postpone referenda on ratification. These states include Sweden, Portugal and the United Kingdom, where Foreign Secretary Jack Straw famously commented that there is "no point" in pursuing plans for a referendum on the EU constitution after the decisions in France and the Netherlands.

Thus, in practical, theoretical and technical terms it is extremely doubtful that the national ratification process of the Constitutional Treaty will be completed while the Treaty is in its current form. It is far more likely that the Treaty will require extensive renegotiation - an exercise that will presumably take years given in particular the recent expansion of the EU to include ten new members - and the sanction of another Intergovernmental Conference, before being cast back into the ratification process at some distant later date.

‘I can tell a corpse when I see one and this constitution is a case for the morgue if ever I saw one - this is a dead constitution'
Dr Liam Fox
Shadow Foreign Secretary

Notwithstanding the reality of the situation, there is academic value in appraising the Treaty in its current form, with a view to its potential ability to address issues of constitutionalism within the EU. Selected points of interest and controversy are briefly considered below.

DEMOCRATIC DEFICIT

Because the Treaty fails to grasp the nettle and reduce the European Commission's powers, it has been argued that the constitution perpetuates the widely perceived democratic deficit of the European Union as a whole. It is often contended that the Commission is essentially the executive of the Union, and that it wields more power than it justifiably should in a democratic system.

The Commission is comprised of Commissioners proposed by national governments and thereafter approved by the European Parliament rather than being directly elected by EU citizens. While the Commission has no formal legislative power, it is the only body empowered to draft legislative proposals and therefore exercises considerable influence over the law making process. For example, the Commission is still entitled to threaten to withdraw a legislative proposal. Moreover, in some circumstances it may specify that the Council of Ministers achieves unanimous agreement instead of majority approval if it does not agree with any amendments proposed by the European Parliament during the co-decision procedure. Many commentators argue that Commissioners thus wield more power than is justified by their vicarious democratic mandate.

The Constitutional Treaty does contain new articles intended to enhance democracy but they have been criticised as ineffective on close inspection. The new provision for the Commission to consider a petition signed by 1 million EU citizens, for example, merely "invites" such a petition to be "considered." The Treaty leaves it open to the Commission to choose what action to take, which may presumably include sidelining or even ignoring the petition if it so desires. The counterpoint is that Members of the European Parliament, who are directly elected, are empowered to scrutinise, censure and at the last resort dismiss the entire Commission.

QUALIFIED MAJORITY VOTING

The Constitutional Treaty seeks to extend qualified majority voting (QMV) to an additional 26 areas of decision-making competence that currently require unanimity. Eurosceptics argue that this constitutes a substantial and unwarranted transfer of sovereignty and decision-making power from the member states. Supporters of the Treaty argue that this step is necessary in order to prevent deadlock and stagnation in the newly enlarged Union, which now embraces another ten member states with diverse interests. Furthermore, they contend that reforms to the QMV mechanism are structured in such a way that a blocking minority is fairly easy to achieve in relation to matters of significance.

EROSION OF NATIONAL SOVEREIGNTY

It has been argued that it is unacceptable for the Constitution to confirm the longstanding rule that EU law takes precedence over national laws. Unsurprisingly, those in favour of the Constitution vigorously contend that this rule has existed since the inception of the EEC in 1957 and that it is necessary for the smooth functioning and uniformity of the EU.

However, the proposed expansion of qualified majority voting under the Treaty inevitably increases sensitivity concerning the issue of the primacy of EU law. The proposed increase in the number and scope of areas in which laws may passed by majority vote makes it more likely that an individual country may vote against a proposal which is ultimately endorsed by QMV and thereafter find its national legislature to be bound by it.

BACKDOOR STATE-BUILDING

The Constitutional Treaty introduces a flag, motto and anthem - accoutrements that are traditionally associated with sovereign states. It should be noted that these are symbolic only - they have no particular legal status - however commentators have observed that this represents another stepping stone towards the future creation of a single European state, and a corresponding loss of national identity.

Treaty supporters are quick to stress that none of these elements are new, and that international organisations typically employ similar emblems. Defenders of the Constitution also argue that key provisions designed to reinforce and augment the independent status of member states as cooperating sovereign nations are enshrined in the Treaty. These include, for example, the principles of subsidiary and conferral.

Moreover, it has been claimed that to refer to the document as a ‘Constitution' rather than a ‘Treaty', such as Amsterdam, Maastricht or Nice, infers an evolution of the European Union, from a group of countries intent on close cooperation towards the embryo of a single state. Of course, in rebuttal it should be noted that many international organisations, such as NATO , operate under constitutions without aspiring to statehood.

The EU Constitution and Europe's Democratic Deficit, Casey L, Heritage Lecture 887, June 22, 2005

Europa Website: http://europa.eu.int/constitution/index_en.htm.

Wikipedia: http://en.wikipedia.org/wiki/Treaty_establishing_a_Constitution_for_Europe

BBC News: http://news.bbc.co.uk

House of Commons Hansard Debates

Analysis: A Constitution Fit For Europe, Harding G: Washington Times

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