The Current EU Constitution - an undemocratic and largely federal Europe

EUROPE'S

LEGAL

ORDER

What is a 'Constitution' does not seem to be officially defined anywhere, but the Concise Oxford Dictionary suggests: "fundamental principles according to which a State or other organisation is governed".

By that chalk, the EU already has a Constitution. Alan Dashwood, a law professor at Cambridge University agrees. He told a New Europe meeting (Chatham House, 10.1.01): "I think that any lawyer looking at the EU as it functions at present would take the very clear view that this is a constitutional order".

(Dashwood is both the Government's Constitutional adviser and a member of pro-EU 'Action Centre for Europe' run by ex-Tory MEP Michael Welsh; hardly a 'Eurosceptic').

The current Treaty defining the EU constitutional order is the Treaty of Nice, signed in 2000, and brought into force after the Irish Republic's referendum in October 2002.

It defines the roles of EU institutions and the rules governing EU Member States, absorbing the powers agreed in previous Treaties, such as the Treaty of Rome, Maastricht, etc.

It refers to the 'acquis communautaire' - which is the entire body of Community Law, including Treaties, all secondary legislation, decisions etc. (Technically the legislation is still 'EC legislation' even though most people refer to the organisation as the EU).

The fundamental principles are summarised below in as much 'everyday language' as possible:

Commitments to the EU arising from a Treaty are binding obligations on a member state.

Where power has been transferred to EU level, a member state cannot have its own laws against the EU commitment.

This limitation of national sovereignty is permanent.

Member states are committed to EU goals and objectives, and undertake to do nothing that goes against them.

Member states must do everything they can to meet these obligations and support the achievement of the EU's tasks.

The European Court of Justice's interpretation of a member state's obligations is final.

EU institutions, such as the Court, will not only work to preserve the EU's level of powers, but also build on them.

The EU's tasks include:

Organising relations between member states and between their peoples.

Developing an economic and monetary union.

Defining common objectives.

Implementing common policies and activities.

(Treaty of Nice, Title I Art. 1, Title II Art. 2-4)

The EU's objectives include :

Developing an economic and monetary union, including eventually a single currency.

Implementing a common foreign and security policy (NB 'security' can be very broadly defined).

Developing a common defence policy.

Creation of an area without internal frontiers ('national borders'?).

Operating EU Citizenship, with obligations upon individuals.

Developing a European legal ("justice") system.

Maintaining the 'acquis communautaire' - power of EU institutions and the European legal order - and building upon it..

(Treaty of Nice, Title I Art. 2)

In many areas, it already has the attributes of a supra-national state; for instance it is empowered to conclude commercial agreements on behalf of member states. Most decisions are made by majority voting or by binding decisions and regulations handed down by EU institutions. The Treaty only specifies limited areas in which the EU is not allowed to act, and also a procedure for suspending member states' voting rights.

If member states wish to stay in this "club", they have to be bound by some very stringent rules! And the return of power to national level is permanently ruled out by case law. However they are still sovereign in their right to end ("abrogate") a membership Treaty and negotiate a different relationship with the EU. A court decision confirmed this in 2002.

For detailed references and commentary on European legal judgements and the current Treaty (The Treaty of Nice in Perspective; by Cowgill and Cowgill) please click on the first link below.

NB Some of the language in the Treaty is very gushing and flowery and should not be taken too literally as actual achievements.

This page updated: 26 June 2004