2.8 Aspects of the Constitutional Treaty
The notes discussed below are under the following headings:
(I) The Constitution's main proposals: resumé
(II) The Constitutional Treaty: institutional changes
(III) Checklist of competences under the Constitutional Treaty
General note: Many of the comments below now also apply to the Treaty of Lisbon
(I) The Constitution's main proposals: resumé
The EU is not yet a single "European State" in several important respects:
- The EU has no formal constitution as such but its essential structure revolved round two sets of documents:
- The Treaty of Rome (1957), as amended by the Single European Act (1986), the Maastricht Treaty (1992), the Treaty of Amsterdam (1997) and the Treaty of Nice (2001).
- The intergovernmental segments of the Maastricht Treaty, as amended by the Treaty of Amsterdam and the Treaty of Nice.
- Even though EC law has supremacy over national law, as tested in the Court of Justice, this is not currently applicable to the EU.
- The EU is not a single "European State" in the sense that the powers of the EU currently derive from the member states as set out in the treaties and not from some higher constitutional authority.
The Constitution, if it had been enforced, would have radically change the situation:
- The Constitution would have given the EU full legal personality for the first time. The proposed Constitution would have created a new Union, separate from member states and with its own legal personality and status, allowing it to sign international agreements and play a full part on the world stage, like a state. At present only the Community has such a capacity under treaty law.
- The European Constitution would have provided for a full written constitution. Moreover, the EU would derive its powers from this constitution and not as derived from the member states under the treaties.
- The European Constitution would have, therefore, put all the necessary legal requirements in place for the creation of a single "European State". And the member states and their constitutions would have been increasingly subordinate to the EU and the European Constitution.
- EU law would have had complete supremacy over national law.
- Maastricht's three pillars would be consigned to history and the EU would have become a unitary structure.
- For the first time, there were specific procedures for withdrawal from the Union.
- There were further extensions of QMV in the Council of Ministers, which would have been the "normal" procedure. Unanimity would have been phased out; vetoes would only be retained where explicitly provided for.
- There would have been no repatriation of powers.
(II) The Constitutional Treaty: proposed institutional changes
The Constitution would have increased the powers of all the main individual Union institutions, with the possible exception of the Council of Ministers.
(i) The Commission
- The President of the Commission would have been elected by the European Parliament (EP), thus reinforcing the role.
- The Foreign Minister (see below) would have been a Vice-President. The present position of Commissioner for External Affairs would have ceased to exist.
- The Commission would have been accountable to the EP rather than the Council.
- The compromise on the Commission's composition would have come into place on 1 November 2009.
(ii) The Council of the EU (Council of Ministers)
- The Council of Ministers would have, for each of its formations, consisted of a representative of each member state. This is the currently the case.
- With the introduction of a President of the European Council (see below) the rotating system for Council of the EU presidencies would have been abolished.
- But the different Council formations, with the exception of the Foreign Affairs Council, would have been chaired by member states representatives on the basis of equal rotation, for periods of at least one year. The Foreign Affairs Council would have been chaired by the European Foreign Minister (see below) and would not have been part of this, revised, rotation system.
- The role allocated to the Council would have been diminished.
- Qualified Majority Voting (QMV) would have become the general procedure of decision-making, with the notable exceptions of taxation, some areas of social policy, and the CFSP.
- The calculation of a qualified majority would have changed, leaving behind the weighted voting system which has applied since the original Community treaties, and which was changed by the Treaty of Nice. A so-called "double-majority" system would have applied to Council decisions, defined as requiring at least 55% of members of the Council representing member states comprising at least 65% of the EU population.
(iii) European Council
- For the first time the European Council figures would have been part of the EU's institutional framework, with an elected full-time President. The President of the European Council would have acted as a de facto Head of State of the EU.
- It would have met quarterly and it's head would have been a permanent president or chair, so ending the current 6 monthly rotating presidency.
- The President of the European Council would have been elected by the European Council (by QMV) for a renewable term of 2 ½ years.
- The President of the Union would have been the effective Head of State of the European State.
- The new EU Foreign Minister would have been appointed by the European Council. They would have conducted the Union's CFSP, chaired the Foreign Affairs Council and become a Vice-President of the Commission.
(iv) European Parliament
- The European Parliament would have voted on the European Council's proposal for Commission President and generally held the Commission accountable.
- With the Council of Ministers it would have acted as the EU's co-legislator. (The co-decision procedure would become the general mode of decision-making.)
- Its competences would have been extended to include the EU's budget as well as justice and home affairs. The number of policy areas where its approval was required would have almost doubled.
(v) The Court of Justice
- With the primacy of EU law, the Court of Justice's remit and powers would have increased from EC competences to EU competences.
(III) Checklist of competences under the Constitutional Treaty
The Constitutional Treaty would substantially increase the powers of the EU. This is all the more true because the Constitution had been deliberately engineered as an "enabling" constitution and the powers of the member states were not always strictly specified. As the Constitution did not set limits to Union power, its powers, therefore, would be, de facto, limitless and the member states' powers would be those "permitted" by the Union. There were no new tax-raising powers.
The extension of powers can be listed under three headings:
(i) Exclusive competences.
(ii) Shared competences.
(i) Exclusive competences
The EU's exclusive powers would have been extended. Under the Constitution the EU would have had exclusive competence in the following areas:
- Competition rules necessary for the functioning of the internal market (replacing the Community).
- The conservation of marine biological resources under the CFP, a new competence.
Customs Union (replacing the Community).
- Common Commercial Policy (replacing the Community).
- Monetary policy for the eurozone (replacing the Community).
- The EU would also have the ability to negotiate and sign all international agreements and treaties in policy areas including transport, communications, public health, energy, commercial policy and criminal justice (an extension of the Community's powers).
(ii) Shared competences
These constituted a new category, where member states could exercise their "competence" only if, and to the extent that, the Union had not exercised its competence. If, therefore, the Union chose to legislate in an area, member states would be unable to do so.
The "shared competences" would have been:
- The internal market, which is decided by QMV. Note also:
- If agreed by unanimity, measures on company taxation relating to administrative cooperation or combating tax fraud and tax evasion could have been adopted by QMV. This could have well been the "thin end of the wedge" for converting company tax decisions from unanimity to QMV. All tax policies are currently decided by unanimity.
- In addition, the Union would have drawn up a space policy to promote scientific and technical progress.
- The area of freedom, security and justice, which was known as Justice and Home Affairs (JHA) under Maastricht. The remaining parts of the Maastricht's intergovernmental 3rd pillar of JHA, relating to police and judicial cooperation in criminal matters, would have become an EU competence. Note also:
- The Union would have developed a common policy on asylum and a common policy on immigration.
- The Union would have developed judicial cooperation in civil matters having cross-border implications. Such cooperation would have included the adoption of measures for the "approximation" of the laws and regulations in member states.
- The Union would have developed judicial cooperation in criminal matters and included the adoption of measures for the "approximation" of the laws and regulations in member states.
- The Constitution provided for a European Public Prosecutor (EPP) with powers of investigation and prosecution in each member state.
- There would have been the expansion of the role of Eurojust (the existing joint prosecuting authority) and extra tasks for Europol (which deals with cooperation between police forces). The rules of Eurojust and Europol would have been decided by QMV instead of the present unanimity.
- Agriculture and fisheries, excluding the conservation of marine biological resources. There would have been a common agriculture and fisheries policy (CAFP) instead of CAP and CFP. These issues are currently determined by QMV.
- Transport and Trans-European Networks (TENs), QMV would have applied.
- Energy (a new competence). The Union would "share competence" for the new competence of energy. QMV would apply. North Sea Oil could have become a common resource. Note that EU policy on energy aims to ensure the functioning of the energy market, ensure security of energy supply in the Union & promote energy efficiency and saving and the development of new and renewable forms of energy.
- Social policy. Note that social policy is currently subject to QMV except for 4 issues, where unanimity still applies: (1) social security and the social protection of workers, (2) protection of workers where their employment contract is terminated, (3) representation and collective defence of the interests of workers and employers and (4) conditions of employment for third-country nationals legally residing in Community territory". Under the Constitution this would have changed. The Council would be able to act by QMV, if it had first unanimously agreed to do so.
- Economic, social and territorial cohesion. Most of these policies are discharged through various structural funds.
- Environment. Currently QMV applies to all environment areas except to planning, water management, land management and choices between energy sources - these are currently decided by unanimity. The Constitution would have introduced a change. The Council would have been able to act by QMV, if it had first unanimously agreed to do so.
- Consumer protection, QMV applies.
- Common safety concerns in public health matters, QMV applies.
(iii) Other powers
- The coordination of EU economic and employment policies, whether in or out of the euro, a new competence.
- The incorporation of the EU Charter of Fundamental Rights (from the Nice Treaty) into a legally binding (judiciable) document. The Charter would have inevitably influenced the ECJ's adjudications on employment law. It would have initially only applied to the Union and its agencies and would apply to member states only when they are implementing Union law, but, given EU "competence creep", this would inevitably spread. The Charter has major implications for employment law. For example it includes the right to strike and the right to "fair and just working conditions". The EU would have also acceded to the European Convention on Human Rights (ECHR), which is the basis of the UK Human Rights Act. As the Charter and ECHR are not consistent, there would inevitably be conflicts.
- Common Foreign and Security Policy (CFSP) would have ceased being inter-governmental (Maastricht's second pillar) and would have become an EU competence. Note:
- The CFSP part of the draft Constitution included a very general "solidarity clause" and a proposal for an ever-increasing degree of convergence of member states' actions. Member states, acting in international conferences, would be expected to support the Union's interests. They would be required to ‘actively and unreservedly support' the CFSP ‘in a spirit of loyalty and mutual solidarity'.
- European Council would have identified the Union's CFSP's strategic interests unanimously, but the actual policy will be decided by QMV.
- The Articles on defence require that member states make military and civilian capabilities available to the Common Security and Defence Policy (CSDP) (formerly the European Security and Defence Policy (ESDP)).
- There would have also been a permanent Foreign Minister, who would have conducted the Union's CFSP (see above).
RL, February 2008