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".

Regardless of the history of the EU Contitutional Treaty before 2005, the EU has long had a Constitution by the above standard. 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 v 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 Lisbon, brought into force in 2009.

It defines the roles of EU institutions and the rules governing EU Member States, absorbing the powers agreed in previous Treaties. It succeeded the Treaty of Nice, which provided for 'the consistency and the continuity of activities' (Title II, Art. 10)

The Treaty of Nice referred to the 'acquis communautaire' - which is the entire body of Community Law, including Treaties, all secondary legislation, decisions etc. (Title I, Art. 3)

(Legislation is now referred to as 'EU Law' after the Treaty of Lisbon, which also gave the EU unified legal personality and tasked its institutions to 'ensure consistency and continuity' (Lisbon ref. TEU, Title III, Art. 13 & 17; TFEU, Part 6, Title I, Art. 256).

Spiritually, the Treaty of Lisbon makes its direction clear, setting out 'further steps to be taken in order to advance European integration', with (e.g.) 'convergence of economies' and 'ever increasing convergence of Member States' actions' in foreign and security policy', (ref. Lisbon TEU Preamble; TEU, Title V, Art. 24).

The fundamental principles derived from the Treaty of Nice 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 under the Treaty of Nice included:

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 under the Treaty of Nice included: :

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)

From then, it already had the attributes of a supra-national state; for instance it is empowered to conclude commercial agreements on behalf of member states. Most decisions were to be made by majority voting or by binding decisions and regulations handed down by EU institutions. Each 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 UK court decision confirmed the latter in 2002, and provision for EU withdrawal has since been written into the Treaty of Lisbon (ref. TEU, Title VI, Art 50).

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

NB Some of the language in the Treaties is very gushing and flowery (e.g. on 'highly competitive social market economy') and should not be taken too literally as actual achievements.

This page updated: 4 May 2012