Light and Shade of a quasi-Constitution

This EPC issue paper compares the final Constitutional Treaty with the Convention’s draft.

Introduction

The ‘Treaty establishing a Constitution for Europe’ marks very considerable progress compared to the current Treaty of Nice. The final version of the document, however, includes some setbacks with respect to the draft submitted by the Convention a year ago, notably with respect to decision-making. Decision-making procedures are more complicated and less efficient. The scope for qualified majority voting (QMV) has been cut back in key domains, and the so-called passerelle clauses, allowing for lighter procedures to move toward majority voting are severely restricted. Newly introduced ’emergency brakes’, whereby one country can delay or prevent the adoption of a decision, are, in part, compensated by the opportunity to establish enhanced cooperation among willing and able Member States, and thus overcome the blockage. Most worrying of all, no amendment to any part of the Treaty can be introduced other than by unanimous agreement followed by unanimous ratification. This amounts to suffocating the growing body of the Union into an anachronistic straitjacket. For this reason in particular, and also bearing in mind the narrow and rigid definition of EU competences under the strict application of the principle of conferral, it would be technically correct to refer to the new text as another international Treaty, rather than as a Constitution.

From a broader political standpoint, however, the alternative, progressive definition of ‘Constitutional Treaty’ (CT) is highly preferable. Not only does the Treaty include a binding Charter of Fundamental Rights, filling the empty shell of European citizenship with substance, but it brings to the forefront some of the most state-like aspects of the Union. EU law has primacy over national law (the CT confirming existing jurisprudence); the President of the Commission is (theoretically for the time being) ‘elected’ by the European Parliament, whose powers are enhanced; the Union has a single legal personality with a new Foreign Minister who will conduct its foreign policy. Most importantly, the CT is regarded by many as the essential platform for sound political debate to take place across the Union, at the national and at the European level. If democratic debate is to prevail progressively over sterile diplomatic skirmishes, then the formal Treaty has to take on a new life as the material Constitution of a supra-national polity, albeit with safeguards for Member States.

Inevitably, dilemmas about the best definition of the new text reflect long-running questions about the nature and purpose of the Union. The same, unresolved, questions have undermined the European political debate of the last year, and prevented the achievement of more ambitious goals for institutional reform. Diplomatic wrangling, inconclusive meetings of variable geometry, and popular disregard for European elections, hardly bode well for the future of European integration. On the other hand, there is a sense in many quarters that Europe cannot stop now, and alternative solutions may well be elaborated to allow for further progress. The best that can be said is that the constitutional text reflects the Union of today: a hybrid beast with little sense of direction.

The introduction has been taken directly from the

EPC’s website.Click hereto read the paper in full.

Visit the EPC website to readother EPC analyses.