Europe and the law
Europe and the law

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Europe and the law

7 Part F The European Union as a constitutional project

7.1 Towards a constitution

The European treaties establishing the European Union:

  • create an institutional structure for decision making, and

  • set out the freedoms of the individuals and the limits of the decision-making powers over the citizens.

The treaty establishing a constitution for Europe was signed by the member states in October 2004. However, at the time of writing (2005), the process of ratification is in abeyance following the rejection of the constitution by France and the Netherlands in their referenda in 2005. The document put forward to date has been presented as a mere consolidation of the provisions already existent in the earlier European treaties. There are serious concerns about the constitutional treaty. On the one hand, it is said that the proposed document, by claiming to consolidate existing treaties, is in fact proposing a certain interpretation of those treaties, an interpretation which is not acceptable to all current EU member states. On the other hand, some critics oppose the mere adoption of a document which, regardless of its content and by its mere existence, makes the EU resemble a federal state.

The next activity will give you the opportunity to extract some of the main issues in the debate on the new European constitution.

Activity 6 A snapshot from the EU constitutional debate (1)

0 hours 30 minutes

Please read the article from the Guardian in Box 1 and then try to answer briefly the questions that follow:

Box 1 Q & A: The European constitution

What is the constitution?

It depends on who you listen to. Its severest critics have called it a blueprint for a European superstate, or for tyranny, while the foreign secretary, Jack Straw, and the prime minister, Tony Blair, prefer to describe it as a ‘tidying up exercise! […]

A series of proposals drawn up by the former French president, Valéry Giscard d'Estaing, are under discussion, but the key thing is that the constitution will not exist until those talks are over. A final text will, however, inevitably set out where power lies in the EU and, more likely than not, attempt to streamline the soon-to-be-enlarged bloc's decision-making processes.

What is happening now?

Plans for the constitution are back on track after a three-month hiatus. Talks on streamlining the way the EU works collapsed in December in a row over national voting power at the EU negotiating table.

However, EU leaders at a 25-nation summit appear to have entered a new era of closer cooperation following the Madrid bomb attacks. The summit, chaired by Irish Prime Minister Bertie Ahearn, set a deadline of June to agree a constitution and Tony Blair said ‘the sooner we do this the better’.

The Tories say that if the constitution were to be agreed in its present form, they would renegotiate it if and when they win power.

Britain has set a series of ‘red lines’ that it will not cross. These deal mainly with tax, defence and foreign policy. It is seeking concessions that will allow it to retain national control over these areas.

Following the latest breakthrough in negotiations, however, the Tories accused the government of preparing to back down in some areas, after the Europe minister, Denis MacShane, suggested there might be ‘wiggle room’ on the issue of judicial cooperation. He said the UK would accept common EU arrest standards, while insisting there would be no compromise on ‘keeping unanimity for key areas of criminal procedural law’

His comments were leapt on by Eurosceptics – who are demanding a referendum on the constitution – as further evidence of the surrender of what is left of Britain's sovereignty to Brussels.

However, Prime Minister Tony Blair immediately denied that the government was set to compromise, insisting that he would not abandon the national veto over judicial cooperation.

Is it just Britain that has problems?

Until now, Poland and Spain have been the constitution's two other main critics. Both stand to lose generous voting weights, in terms of their populations, if Mr Giscard d'Estaing's proposals on voting rights are accepted. But Spain's switch from centre-right to socialist leadership in the wake of the Madrid bombings brought an end to its policy of demanding disproportionate voting rights. The Poles, unwilling to fight on without the support of its senior partner, have also backed down. The Polish government also wants to see a reference to ‘Christian values’ in the constitution, but it remains to be seen whether this will remain a key sticking point in light of the new spirit of cooperation.

After smaller countries expressed concerns that plans for a slimmed-down 15-member European commission would leave them without a representative on the body, it is now likely that the commission will consist of 25 members, or 31 if some of the bigger countries are allowed two. Ireland shares Britain's opposition to giving up its veto on social security and judicial matters.

What else does the draft suggest?

The Giscard d'Estaing draft promised ‘a Europe with a single currency, common justice, a Europe [with] its own defence.’ In more specific terms, it proposed replacing the rotating EU presidency with [a] full time president; deciding some tax and immigration issues by majority vote; an EU foreign minister, and the creation of a European public prosecutor. Whether any of these make the final document with the powers that the writers of the draft constitution envisaged remains to be seen.

Is a constitution necessary?

Apart from Mr Giscard d'Estaing's pronouncements that his draft had ‘sown a seed [that] will grow and bear fruit’, the overriding pressure for a constitution comes from the need to make the EU workable when it becomes a 25-member bloc next May.

Part of the momentum behind the constitution was the fear that 25 governments, each with a veto, would turn policy and decision-making into an impossible task without an extension of majority voting and a clear setting out of the EU's remit.

Britain has however said that the 2000 Treaty of Nice created a ‘default setting’ to allow enlargement without an agreed constitution. It does not agree with Italy that there is a rush to agree on a final document before the end of the year.

(George Wright and Simon Jeffery (2004) ‘Q&A: the European constitution’, Guardian, 26 March) ©
Wright, G. and Jeffery, S. (2004) Q&A: the European constitution, Guardian, 26 March 2004. Copyright Guardian Newspapers Limited 2004
  1. Who has drawn up the proposals on which the draft constitution is based?

  2. What have the most severe critics called the European constitution? Why do you think this was so?

  3. What is the position of the British Government regarding the proposed document?

  4. What are those issues in the draft constitution regarding which the UK would rather hold on to its veto and its sovereign power of decision?

  5. Which other member states opposed the constitution and why?

  6. What specific issues were proposed by the writers of the draft constitution?

  7. What is the main argument for adopting an EU constitution?



  1. Valéry Giscard d'Estaing, former French president.

  2. They have called it ‘a blueprint for a European superstate, or for tyranny’. Given that the constitution would address issues related to the exercise of power within the EU, including some of the more sensitive issues related to the sovereignty of the member states, there is a concern that the new constitution would entrench a political entity which would take over important dimensions of the member states’ exercise of power.

  3. The British Government presented it as a mere ‘tidying up exercise’.

  4. Tax, defence, foreign policy and criminal procedural law.

  5. Poland and Spain also opposed the proposal for the new constitution. The new voting system proposed through the draft constitution would put Poland and Spain in a worse-off position.

  6. A single currency, a common justice system, common defence, a full-time president, majority vote rather than unanimity vote on some tax and immigration issues, an EU foreign minister and the creation of an EU public prosecutor.

  7. The EU constitution was drafted at a time when the EU was facing the biggest expansion since it was initially established. This created the need for some radical changes in the way the Union worked. A more flexible voting system was considered essential to the smooth running of the EU since the existing power to veto decisions would make almost any decision impossible to make in the context of any debate between 25 or more member states.


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