June 21, 2003

EUROPE'S NEW CONSTITUTION: NO SUPERSTATE, YET

by Srdja Trifkovic

Beethoven’s Ode to Joy, the anthem of the European Union, accompanied the official presentation of the Union’s draft constitution last week. The 75-page document was prepared by a 15-member “Presidency” representing 105 members of the Convention on the Future of Europe, headed by former French president Valery Giscard d’Estaing. The insanely grandiloquent Ode to Joy quite properly makes a sensible person weary of any event it accompanies—such as Hitler’s birthdays and East German state ceremonies—and the launching of the EU constitution was no exception. Its preposterous Preamble opens with a quote by Thucydides (“Our Constitution is called a democracy because power is in the hands not of a minority but of the greatest number”). Both in sentiment and style it would be approvingly signed by any Jacobin fanatic sitting at the EvÚchÙ:

Conscious that Europe is a continent that has brought forth civilization; that its inhabitants, arriving in successive waves since the first ages of mankind, have gradually developed the values underlying humanism: equality of persons, freedom, respect for reason,

Drawing inspiration from the cultural, religious and humanist inheritance of Europe, the values of which, still present in its heritage, have embedded within the life of society its perception of the central role of the human person and his inviolable and inalienable rights, and of respect for law,

Believing that reunited Europe intends to continue along this path of civilization, progress and prosperity, for the good of all its inhabitants, including the weakest and most deprived; that it wishes to remain a continent open to culture, learning, and social progress; and that it wishes to deepen the democratic and transparent nature of its public life, and to strive for peace, justice and solidarity throughout the world,

… etcetera, etcetera; you get the idea. The best that can be said of the document is that in some important respects it does not appear to be quite as bad as some anti-federalists had feared. The EU shall in future have “legal personality” and a president, but the dreaded word “federal” has been dropped in favor of the more vague “Community way.” Any European State can join or leave the Union. The proposal that the EU’s current designation be changed to “United Europe” has been abandoned, and Article 1 of the constitution recognizes that the Union derives its power and authority from the member states:

Reflecting the will of the citizens and States of Europe to build a common future, this Constitution establishes the European Union, on which the Member States confer competences to attain objectives they have in common. The Union shall coordinate the policies by which the Member States aim to achieve these objectives, and shall exercise in the Community way the competences they confer on it.

The federalists had hoped for an “improvement” in the machinery of foreign policy making but they have failed. The crisis surrounding the war in Iraq demonstrated the divisions within the Union on a major foreign policy issue and led to a weakening of the original proposal. The new post of EU “foreign minister” (possibly under a different designation) will combine the roles currently played by Common Foreign and Security Policy Commissioner Javier Solana and the External Affairs Commissioner Chris Patten, but the position will not have any additional powers. There will be no qualified majority voting over CFSP: intergovernmental procedures will continue to rule most, if not all, policy decisions.

To Britain’s Foreign Secretary Jack Straw all this was sufficient to attack the Euro-skeptics’ “myths and hysteria” that surrounded the constitution’s public presentation. “The treaty confirms the EU as a union of nations, not a super-state,” he said, pointing out that there would be no substantial expansion of Union-wide powers, and no radical overhaul of its existing Treaties and competences: “We are talking about a Treaty which can bring much needed clarity to European citizens, which equips the Union with the machinery it needs to embrace the challenge of enlargement.”

The main bodies of the Union will be a Council with Ministers from each member state; a European Parliament with MEPs from each member state; a slimmed-down executive European Commission of 15 full members; and a Court with Judges from each member state. The European Council (member-countries’ prime ministers in concert) will be in charge of the Union’s political direction. Acting within its guidance the Commission will propose EU laws, and the Council will decide on them, often by majority vote, and jointly with the European Parliament.

The novelty comes with the proposal for a President of the EU Council of Ministers, with a mandate of up to five years. By replacing the current system of six-monthly rotating presidencies, it ensures that the major countries, such as France, Germany, Italy, and Britain, will retain most influence, since the president will be elected by qualified majority. Future smaller members of the club, such as Malta, Slovenia, and the Baltic countries, will not be able to grandstand as Greece, Denmark, Ireland, and Luxembourg had been able to do at times over the past decade. They may fret at the strengthening of the Council and the weakening of the Commission, which is seen as the champion of the small countries, but they will not be able to change the end result.

On balance, however, the beleaguered British and Continental Euro-skeptics have little to celebrate. Article 10 establishes the primacy of EU law over national law, and Article 15 also hints at supra-nationalism by obliging member states to “actively and unreservedly support the Union’s common foreign and security policy in a spirit of loyalty and mutual solidarity. They shall refrain from action contrary to the Union’s interests or likely to impair its effectiveness.” In the economic sphere, “[t]he Union shall have competence to co-ordinate the economic and employment policies of the member states.”

Furthermore, a legally binding Charter of Fundamental Rights, including labor and social policies, forms the entire second part of the document and presents as great a threat to national sovereignty and good life as any overt federalist declaration. It introduces references to equality and non-discrimination, specifically with reference to homosexuals, and invokes the need to combat “social exclusion” and respect “diversity.” The Constitution and EU law are to have “primacy over the law of member states” formally making the EU superior to national constitutions and parliaments. Member-states can only act “to the extent that the Union has not exercised, or has decided to cease exercising, its competence.” In case of doubt, the European Court will have the power, under Article 28, to “ensure respect for the Constitution and Union law” and to rule on the Charter of Fundamental Rights, which is to be made legally binding.

All this has prompted a British representative on Giscard’s commission, Conservative MP David Heathcoat-Amory, to assert that the entire exercise was integrationist by nature. He warns that the constitution will mean more decisions on foreign policy, criminal justice, economics and employment being taken in Brussels. He is calling for a referendum on the constitution—something that Prime Minister Blair has rejected so far—saying that “this must be challenged by all who believe that democracy is more important than expedience, and that constitutions must be decided by the people.”

The draft will be presented to EU leaders at next Friday’s summit in Salonika, and its details will be subsequently discussed by an intergovernmental conference (ICG) next fall. The formal approval will come some time after May 1 of next year, when the next round of enlargement is supposed to take place.

Even if it is subsequently subjected to a test of electoral acceptability—and nine out of ten Britons demand a referendum—it is clear that the EU constitution in its present form cannot significantly impact, let alone overhaul, the current structure of the Union’s institutions. That structure will remain inherently bureaucratic rather than democratic, reflecting the aspirations and interests of the post-national, post-Christian ruling elites rather than the people. This was amply demonstrated in the Convention’s specific support for unnatural lifestyles in the Charter of Fundamental Rights, and in its refusal to include Christianity in the Preamble as part of Europe’s “cultural, religious and humanist inheritance.”

Even so M. Giscard would claim that he has come some way to meeting his critics: when he first unveiled the preamble—penned by his own hand—it included specific references to Greece, Rome, and the Enlightenment, with a yawning thousand-year gap in between. The pagans and Voltaire would approve, but an overwhelming majority of all Europeans who have ever lived would turn in their graves.

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