05/05/30 EU Constitution #7
05/05/22 EU Constitution #6
05/05/17 EU Constitution #5
05/05/08 EU Constitution #4, links
05/05/01 EU Constitution #3, links
05/05/30 EU Constitution #7
05/05/22 EU Constitution #6
05/05/17 EU Constitution #5
05/05/08 EU Constitution #4, links
05/05/01 EU Constitution #3, links
(Still looking at the European Constitution. Still no lawyer. You know the drill.)
On Sunday, a large percentage of the French electorate have turned out resulting in a clear majority of 'no' votes, and the same may happen here in the Netherlands on Wednesday. This means that the Constitution is in serious trouble, and may never be ratified. Time for some closure, of sorts.
Having read the Constitution so far, I can see three reasons to be in favour or against:
The real deal-breaker, for me, is item 1. This is a vision that, to a large extent, I don't share, and that I don't wish to endorse by a 'yes' vote.
I feel unqualified to judge whether what's in the Constitution with regard to items 2 and 3 is good or not. I haven't made the comparison with the existing treaties, and the points that I have heard brought up in debates about them have been wildly contradictory - the large countries get too much power... too much power is taken away from the large countries... the new Constitution is more democratic than what we have now... no it isn't, and even if it is, it's not good enough... What does strike me here is that, reading the relevant parts of the Constitution, I see layer upon layer of broad definitions and vague language, further specifications and exceptions. Though I'm not a lawyer, the Constitution doesn't strike me as a piece of elegant, well-designed legislation.
With all that in mind, I've decided to vote 'no'. Not that I'm happy about it - I like Europe, and I have little doubt that the current treaties are not the bee's knees either. But I fear that a 'yes' vote will constitute a mandate to continue in the same direction, while an abstination will be seen as a sign of a lack of interest.
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(Still looking at the European Constitution. Still no lawyer. You know the drill.)
On June 1st we'll be voting in the referendum. The French are a bit ahead of us, with their referendum taking place on May 29th.
At the moment, the 'no' camp appears to be slightly ahead here in the Netherlands. The government has decided to invest another EUR 3,500,000 in the pro-Constitution campaign, to the indignation of the opposition. My guess is there's a real chance that the extra effort won't help, and that the Dutch are going to vote 'no'.
Of course these things are unpredictable, and I could very well be wrong. But what I'm seeing, and what I'm basing my expectations on with regard to the results of the referendum, are some striking parallels with the Dutch general elections of 2002. Those elections were dominated by two issues: immigration, and the voters' sense of alienation from a political establishment that, they felt, didn't listen and pursued its own agenda. These same two issues are at play when it comes to the European Constitution. Immigration is an issue in the form of Turkey's possible membership of the EU (which doesn't have anything to do with the Constitution) and the influx of cheap labour from, particularly, Eastern Europe (which does). The sense of alienation between the electorate and the EU is deep and wide-spread, far more so than it was in 2002 with regard to the national government. There's also a great deal of residual resentment of the introduction of the euro, which many people feel has been a change for the worse. In combination with other factors, like the lack of a sense of a European identity and the fear of loss of national autonomy, these issues will give the pro-Constitution camp a hard time achieving a 'yes'.
Articles I-33 to I-39 deal with the means that the European Union has to have an impact on its member states and the world around it.
So, let's have a look.
| European laws | Binding in their entirety and directly applicable in all member states | Adopted by the European Parliament and the Council of Ministers, on the basis of proposals from the European Commission. Both the European Parliament and the Council of Ministers need to agree in order for a law to be adopted. In specific cases that are provided for in the Constitution, laws may be adopted by the European Parliament with the participation of the Council, or by the Council with the participation of the European Parliament. Also, in specific cases provided for in the Constitution, laws may be adopted at the initiative of a group of member states or of the European Parliament, on a recommendation from the European Central Bank, or at the request of the Court of Justice or the European Investment Bank. |
| European framework laws | Binding with regard to the results that are to be achieved, but leaves choice of form and methods to the member states | Adopted in the same way as European laws |
| European regulations | May either be binding in their entirety and directly applicable to all member states, or binding with regard to result, leaving the choice of form and methods to the member states | In specific cases that are provided for in the Constitution, the Council of Ministers, the European Commission or the European Central bank may adopt regulations |
| European decisions | Binding in their entirety | Adopted by the European Council. In specific cases that are provided for in the Constitution, the Council of Ministers, the European Commission orthe European Central bank may adopt decisions |
| Recommendations and opinions | Non-binding | Recommendations are adopted by the Council of Ministers. In specific cases that are provided for in the Constitution the European Commission or the European Central Bank may adopt recommendations |
What we see here is that European laws and framework laws need to be approved both by the European Parliament (representing the people) and by the Council of Ministers (representing the governments of the member states). This is good. However, in cases provided for in the Constitution, (binding) regulations or decisions may be adopted by other European institutions. This may or may not be a problem, depending on how much room the Constitution gives these institutions to do so.
(To be continued.)
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Shaister
Sorry I'm late. No links or other goodies today, there will be all-fresh linkage on Sunday.
For the past couple of weeks I've been blogging about the European Constitution. Here in the Netherlands the referendum will be on June 1st (a couple of days after the French one) and I'm still not sure what to vote. Also, at this rate, the most that I can expect is to get through the first 60 articles. Now, a lot of the important stuff is in there, but then again the devil is in the details (a lot of which can be found in chapters III and following).
In articles I-11 to I-18 the Constitution's authors show us the perimeter of the sandbox in which the European Union gets to play, and we get some idea of what impact what goes on in the sandbox may have on the world outside it. In articles I-19 to I-32 we see who'll be playing in the sandbox, and we get some idea of the rules they'll be playing by.
So, let's see.
| Who? | Does what? | Appointed how? |
| European Parliament | Exercises legislative and budgetary functions, jointly with the Council of Ministers. Excercises functions of political control and consultation as laid down in the Constitution. | Elected by the Union's citizens |
| European Council | Defines general political directions and priorities. Does not legislate | Consists of the heads of state or government of the member states, together with its president and the president of the European Commission |
| European Council President | Chairs the European Commission | Elected by the European Council. Cannot hold a national office |
| Council of Ministers | Excercises legislative and budgetary functions, jointly with the European Parliament. Carries out policy-making and co-ordinating functions as laid down in the Constitution | Consists of a representative of each member state at ministerial level |
| European Commission | (And here's where things get complicated. Try reading this text and figuring out what the European Commission actually does.) The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Constitution, and measures adopted by the institutions pursuant of the Constitution. It shall oversee the application of Union law under the control of the Court of Justice of the European Union. It shall execute the budget and manage programmes. It shall exercise co-ordinating, executive and management functions, as laid down in the Constitution. With the exception of the common foreign and security policy, and other cases provided for in the Constitution, it shall ensure the Union's external representation. It shall initiate the Union's annual and multiannual programming with a view to achieving interinstitutional agreements. (Right. And apparently they get to make laws as well. Or something.) Union legislative acts may be adopted only on the basis of a Commission proposal, except where the Constitution provides otherwise. Other acts shall be adopted on the basis of a Commission proposal where the Constitution so provides. | The members of the Commission shall be chosen on the ground of their general competence and European commitment from persons whose independence is beyond doubt. (Whoa. I'm tempted to read that as "if you're not a member of the European old boys' and girls' network you need not apply", but that would be bad. Come to think of it - I'm really, really independent. And I think I could make myself available if they asked nicely.) The President [of the European Commission], the Union Minister for Foreign Affairs and the other members of the Commission shall be subject as a body to a vote of consent by the European Parliament. On the basis of this consent the Commission shall be appointed by the European Council, acting by a qualified majority. |
| President of the European Commission | Chairs the European Commission | Elected by the European Parliament |
| Union Minister for Foreign Affairs | Conducts the Union's common foreign and security policy, and contributes to the development of that policy. The same applies to the common security and defence policy. | Appointed by the European Council |
The articles go on to talk about the Court of Justice of the European Union, The European Central Bank, the Court of Auditors and the Union's advisory bodies, but let's skip those for now.
My main question after reading all this: how do European laws get made? Apparently the European Commission, the Council of Ministers and the European Parliament are all somehow involved in this process but, based on articles I-19 to I-32, who does what is anyone's guess. From these articles, it's also unclear what the European Parliament's exercising of functions of political control and consultation will actually mean. Will it need to approve all European laws? Or will it only get a chance to speak up when the European Commission or the Council of Ministers cares to ask for its opinion?
(To be continued.)
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Permanent link.
05/05/17
(Still looking at the European Constitution. Still no lawyer. You know the drill.)
In articles I-11 to I-18 we're coming to a core topic within the Constitution: the relationship between the European member states and the European Union. If you can't get yourself to slog through the entire text of the Treaty these are certainly among the articles that you should read.
Article I-11 describes three 'principles' that aren't going to ring a bell for most non-lawyers: conferral, subsidiarity and proportionality. Let's try to shed some light on those - and please keep in mind that I'm not a lawyer.
Conferral. The EU has no power, apart from the power that the member states are giving it in the Constitution. The EU can only do what the member states allow it to do.
Subsidiarity. The EU should, basically, mind its own business as much as possible and allow the member states to do the same. It shouldn't act, unless it is to achieve some goal that the member states can't achieve on their own.
Proportionality. Whenever the EU decides to act, it shouldn't do more than strictly necessary.
All three of these fundamental principles are good things. However, as is usually the case with principles, much depends on implementation.
What conferral is going to mean in the real world has much to do with how clearly the boundaries of EU power are defined within the Constitution, and what options the member states have if the Union oversteps those boundaries.
Within the 'Protocols annexed to the Treaty establishing a Constitution for Europe' there is a 'Protocol on the application of the principles of subsidiarity and proportionality' which should give us some idea of how these principles are going to be applied in the real world. This protocol is included in the published text of the Treaty, and I hope to get to it later.
Here things get (potentially) problematic.
This article describes 'categories of competence' - ways in which power can be shared between the member states and the European Union. There are two categories: the Union can have exclusive competence in an area, or the competence can be shared between the EU and the member state.
The meaning of exclusive competence is pretty clear from the text: only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts. So far, so good.
But, when we get to competence shared between the EU and the member states things get tricky. It starts off pretty harmless. When the Constitution confers on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. Um, OK. But... The Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence. It's important to remember that, when it comes to legislation, the EU and the member states are not equals. Article I-6 states that EU law has primacy over national law - is there anything stopping the EU from making new laws in areas where there is shared competence? Reading this article, I can't help feeling a nagging suspicion that competence, or power, will only be shared between the EU and the member states to the extent that the EU is willing to share.
To complicate things even further, article I-12 specifies a number of things that fall outside the definitions of exclusive competence and shared competence, but that may have an impact on the balance of power between the EU and the governments of the member states. The Union is being given the competence to define and implement a common foreign and security policy, including the progressive framing of a common defence policy. (Here we get another indication of how the authors of the Constitution see the future - the EU acting as one political entity as far as foreign policy and defence are concerned.) Also, the EU can provide arrangements within which the member states have to co-ordinate their economic and employment policies. Whatever that means - supposedly part III of the Constitution will shed more light on that.
To summarise: in this article we see a lot of power being given to the EU, no clear definition of where the power of the EU ends and the autonomy of the member states begins, and no clear course of action for the member states to follow in case the EU oversteps the boundaries (blurry as they are) set out in the Constitution.
This article lists the areas where the EU will have exclusive competence, as specified in the previous article:
Which doesn't sound unreasonable, as these are all matters that go beyond national interests. (Though I'm not sure what a common commercial policy actually is.)
And here things get really interesting: the areas where the European Union and the member states share (or, as the case may turn out to be, compete for) power.
These are:
Some of these areas are quite broad (internal market) or vaguely defined (economic, social and territorial cohesion). In combination with the definition of shared competence in article I-12, I've honestly got no idea how this will work out in the real world.
This article expands on the co-ordination of the member states' employment and economic policies that was mentioned in article I-12. Apparently the Council of Ministers is expected to provide broad guidelines for this purpose. It may also provide guidelines for the co-ordination of the member states' social policies.
On the one hand, this is understandable. In Europe, especially within the euro-zone, policies in one country may have an impact on what happens elsewhere. Also, with an open market where anyone is free to live and work anywhere in the EU, some level of co-ordination may be inevitable. On the other hand, at present policies vary widely between countries, and emotions tend to run high when topics like social security are concerned. It's questionable how much 'co-ordination' will prove feasible, and again it's unclear how this article will be put into practice.
Here the common foreign and security policy from article I-12 is discussed. This article takes things one step further than article I-12 did: here the progressive framing of a common defence policy [...] might lead to a common defence. The conclusion that the authors of the Constitution are aiming for a common European army here seems inevitable.
I can't help wondering, though, what will happen in case of another event like the invasion of Iraq. Will the member states be able to act as one political body, as the authors of the Constitution seem to envision, despite their deep-rooted differences?
This article introduces another level of involvement of the European Union in the affairs of the member states: the competence to carry out supporting, co-ordinating or complementary action, and specifies the areas in which this competence can be exercised. Which all seems pretty harmless.
This flexibility clause gives the EU the possibility to act outside the boundaries that are set out in the Constitution. Which isn't as bad as it sounds. To invoke the flexibility clause the Council of Ministers will be acting unanimously on a proposal from the European Commission, and the European Parliament's consent is required. Also, there seem to be some safeguards with regard to the subsidiarity principle. This clause isn't something that you'd want to be used on a regular basis, but I feel it's good to have it there, rather than having the EU rendered powerless in some situation that the Constitution fails to cover.
(To be continued.)
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(Still looking at the European Constitution. Still no lawyer. You know the drill.)
Before we get started, please allow me to rant for a bit.
Over the past weeks you've been telling us about all the bad things that will happen if we vote 'no' on the EU Constitution.
I can't help being rather puzzled, here. I mean, the Constitution is set to replace a number of existing treaties. If the Constitution is voted down, these treaties will remain in place and the Constitution goes back to the drawing-board, right? Granted, that might inconvenience the EU. It may also mean that the debate returns to the halls and chambers of the European institutions rather than being out in the open, which may or may not be a good thing. But it's not like the sky will be falling any time soon, is it?
And what if - as it has been said by some - the EU will be unwilling or unable to come up with a new draft if this one gets voted down?
Apart from the fact that this would be making the anti-Constitution camp very happy - if the EU has failed to consider what would happen in case of a 'no' vote, or is unable to deal with the consequences, it has only itself to blame. And if the decision-making process and the level of agreement between the member states are so fragile that they may not manage to agree on a new draft - well, then this Constitution might be too much too soon anyway, and we might do better calling the whole thing off.
(Right, that's off my chest now. On to the text.)
This one's called 'Relations between the Union and the Member States'. Basically, this article says they should all play nice and respect one another.
And yes, this is a zinger... The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States.
I am not a lawyer but, as far as I know, this is already the case. To my knowledge there's a provision in Dutch national law that specifies this, and something of the kind (which may also be a commitment to implement new or changed EU law within their national laws) is in place in all member states.
Does this mean that there's nothing to worry about? Well, maybe not.
One question is, what will happen if the EU starts making more or different laws than it is now. An increase in EU legislation may result in more cases where EU law has primacy over national law. It may also increase the potential for conflict - member states finding themselves forced to abide by laws that they strongly disagree with.
Is there anything in the EU Constitution that may cause an increase in EU legislation? Well, maybe. I believe that the ... exercising competences conferred on it... bit is a key phrase in this regard. Conferring competences is a phrase that we're going to see a lot in the rest of the Constitution. To a large extent the Constitution is about the member states doing just that - conferring competences upon the EU which means, in layman's terms, giving the EU power to do stuff. If I understand article I-6 correctly, the EU can only make laws in areas where the member states have given it the power to do so. This means that, if the member states give the EU more power, or power in areas where it currently has none, it may start making more laws and as a result there may be more potential for conflict.
Another question is, what if a member state is faced with a EU law that it really, really doesn't like? What would its options be, apart from leaving the EU or ignoring the law and hoping for the best? Ideally, the Constitution would provide an answer to this question.
Europe day (that we're supposed to be celebrating on May 9th) sounds like somewhat desperate attempt to make Europeans care about something that they currently don't care that much about. Nothing much to see here, move along.
'Mission statement' stuff about citizens' rights and human rights in general that you wouldn't expect anyone to object to.
(To be continued. Next week: conferring competences...)
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