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The Constitution for Europe: What Next?
By Jean-Loup Archawski*
European leaders have taken initial steps toward the formation of a constitution for Europe (see http://european-convention.eu.int). The author examines this potentially momentous development in some detail and indicates how certain facets of the process indicate its "overall irresolute tentativeness." –Ed.
On October 29, 2004, the twenty-five Heads of the Governments forming the European Union assembled in Rome, Italy to sign the union's first constitutional treaty.
The constitutional project adopted by consensus by the European Convention on June 13 and July 10, 2003 was submitted to the President of the European Council in Rome on July 18, 2003.
The President of the constitutional convention, Valery Giscard d'Estaing, former President of the Republic of France (1974-1981) has presented the project in a book of 378 pages including 68 pages of introduction, 274 pages of constitutional text and 36 pages of appendixes. To be enforceable, the project has to be ratified by each of the 25 nations forming the European Union. In some countries, the ratification process will be by referendum. The rejection by one single country among the 25 will lead to the whole project being scrapped in its proposed form.
The text reflects the tremendous difficulty to find a workable compromise among countries of different cultures, histories, ethnicities that, for centuries, have been at war with one another. The form of suggested governance is neither a confederation nor a federation. The document reads more like the by-laws of a very large corporation or a bureaucratic behemoth rather than like a constitution organizing the executive, legislative and judicial branches of government.
Institutionally, the projected Constitution for Europe proposes no less than three (3) executive and two (2) legislative bodies: the European Parliament and the Council of Ministers which has BOTH executive AND legislative authority. However, while the Parliament can pass a law with a simple majority, the Council of Ministers will require for the same law a "qualified" majority defined as the majority of member countries representing at least three-fifths of the population of all member states.
The European Parliament is the only institution elected by popular vote. Its representative authority is somewhat tempered by the fact that to be enforceable, a law which is proposed by the European Commission has to be adopted jointly by the European Parliament and by the Council of Ministers. If the Council of Ministers and the Parliament do not agree, the proposed law is rejected. Article I-32 provides a range of rulings which can be issued by various Components of the executive branch of the Union including, in particular, "European Decisions" which are non-legislative rulings "compulsory in all of its elements" leaving the reader fearful of the possibility of arbitrary edicts.
The judicial branch will consist of one European court of justice, a high court and specialized courts with such sweeping, broad and ill-defined jurisdictions that the reader is left wondering how the European Justice System will overcome a crippling backlog of unresolved disputes.
One could question the merit of debating and voting on a text that has already demonstrated its inability to contain national budget deficits to 3 percent of GNP by member states. Two of the major countries, France and Germany, have repeatedly violated this containment without any foreseeable sanction. This hasn't prevented those two countries from complaining of the violations of Portugal, Italy, and Greece but with absolutely no consequence. If the other rules and regulations receive a similar treatment, doesn't the debate on the projected Constitution for Europe turn into an exercise of pure futility? Is the signing of the treaty on October 29, 2004, little more than a hypocritical farce?
The projected "Constitution for Europe" will have an effect extending far beyond the borders of the member states. It will govern the relationships of a population of 350-plus million people with the rest of the world, including the United States. This has already been spectacularly demonstrated by the European Trade Commissioner's ruling that the proposed merger of General Electric and Honeywell would violate European anti-monopolistic rules leading to the abortion of the merger. The ruling on Microsoft is still very much in balance. Disputes on interpretations of "subsidies" and their correlated legality have simmered all along between Boeing and Airbus Industry without resolution. Agricultural disputes on trade and subsidies between Europe and the United States have blossomed leading to sanctions and counter-sanctions. The ambiguous language of Articles I-40 and III-214 illustrates how military alliances will become more opened to interpretation in an effort to balance existing treaties such as NATO against the priority goal of European solidarity. There again, the proposed text is an artful compromise that fails to address the specific issues of potentially conflicting military and diplomatic obligations between European states and the United States within NATO.
Article I-27 establishes the office of Foreign Min-ister of the European Union appointed or terminated by the European Council voting at a "qualified" majority. The Foreign Minister will "lead the common foreign and security policies of the Union". The Foreign Minister will participate and offer suggestions in the elaboration of those policies which he/she will execute in accordance to a mandate from the Council of Ministers. The Foreign Minister will be a vice president of the European Commission and as such will operate in compliance with that body's procedures. Confronted by all this elaborate partition of loyalties, the reader is left wondering whether the Foreign Minister will be little more than a super yet powerless ambassador who will function like an errand boy.
There again, the example of the Foreign Minister's ambiguous status can be quite typical of the overall irresolute tentativeness of the whole proposed "Constitution for Europe." The text can leave the reader with the impression that while the members of the constitutional convention were leaning towards the projection of a sense of unity for the achievement of a common goal, at the same time, in what appears to be a mutually paranoid suspicion of each other, they were pulled back to protect and promote the perceived interests of the countries they represented by holding in check a delegation of power or responsibilities which might jeopardize their own independence.
It is often heard that the current text with its maze of rules and regulations is difficult to absorb for the layperson trying to weigh objectively the issues in good faith and who will be asked to vote. It is also said that due to its complexity, the interpretation and the understanding of that text opens it to the manipulation of the electorate by skilled politicians eager to promote their own interests and ideological views without too much concern for the actual intentions spelled out in the proposal. This can already be witnessed by the ongoing political debates in some of the countries member of the European Union. Many regret such distortions, which end up clouding the important matter at hand charting the destinies of a large part of the world's population.
There seems therefore to be a crying need for more simplicity and clarity in the definition of the institutional bodies, their interface and their interactions.
It could thus seem that this entire proposed "Constitution for Europe" may be the first draft needed to grow the concept out of its initial amorphous neutered stage into an organized system of mature checks and balances.
Many people convinced that the proposed "Constitution for Europe" doesn't have the slimmest chance of being ratified will consider the document to be irrelevant. Others hope the study of the document will offer an opportunity to open an important debate that will fashion the relationships of future generations.
Let's hope so. A vigorous debate might just create the conditions needed to transfer the discussion from the "artful compromise" full of brilliant yet seemingly paralyzing definitions to the design of a practical fundamental law democratically determined by an informed electorate.
December 31, 2004
Endnotes
Note *: Jean-Loup Archawski, a French national, is a retired businessman who has lived 33 years in the United States. He is a member of FPRI's Study Group on America and the West. Back