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The New EU Constitutional Treaty - What Does It Entail?

With the agreement on the new European Constitutional Treaty now behind us it is time to explain what changes are in prospect as a result.

We Don't Start with a Blank Sheet of Paper

The European Union is the product of almost fifty years of growth and development. The new Constitution could therefore not be written on a blank sheet of paper. The authors had to take account of the institutions and agreements that had come into being in this period.

Since 1957, membership of what has become the EU has increased from six to twenty-five member states and the range of policy issues addressed by its institutions has deepened out of all recognition.

The EU has become the largest trading bloc in the world with enormous influence on world trade. It has its own currency - the euro. It now participates, in its own right, in international peacekeeping initiatives such as the Middle East 'roadmap.' With its member states it is responsible for more overseas aid than Japan and the United States of America combined. None of this has been achieved without detailed rules and regulations. We might call these the EU's existing constitution.

We are not therefore stating with a blank sheet of paper on which a whole institutional structure can be sketched in a few elegant phrases. We start with structures already in place and procedures already documented.

Building on What is Already in Place

This documentation is contained in a succession of intergovernmental treaties, starting with the Treaty of Rome signed in 1956, and finishing with the Treaty of Nice in 2000. These treaties have addressed, and amended, the Union's membership, created its institutions, laid down their operating procedures, created the Single Market and the Single Currency and set out the subjects and policy issues that member states have agreed to tackle at the European level.

The EU's new Constitutional treaty builds on these past treaties, frequently incorporating their provisions lock, stock and barrel, to arrive at a single document.
But where possible the new treaty simplifies and clarifies existing arrangements, makes explicit certain assumptions that hitherto have been implicit and fills in gaps not covered by the previous texts. It also makes some new provisions.

But the key point is that although the recently agreed Constitutional treaty appears to be offering Europe a new Constitution, the bulk of it is simply the existing constitution in a different format. And where changes and new provisions have been made the development has been on a scale which is rather less grand than that of previous treaties. The implications of creating a Single Market and a Single Currency were certainly far broader in scope than anything in this new treaty.

The new Constitutional treaty should therefore be seen in the context of a succession of European treaties and not seen as a unique treaty that makes a step change in the European Union. It is primarily a treaty of consolidation.

That is not to say that the treaty does not contain important revisions and developments to the EU's institutions, its competences, its operating procedures and its relationship with its member states. The treaty does break new ground in search of a number of aims. These aims include efficiency and transparency of decision making, improved constitutional safeguards, greater democracy and rendering the Union a more effective vehicle through which member states can express and achieve their common interest.

The push for progress in these areas has come from member states concerned to secure a satisfactory modus operandi given the prospect of a Union of 30 or more member states in the not too distant future. Criticism of the lack of transparency in the Union's decision making was another factor. Leaders also felt that there should be mechanisms in places that would let the Union play a more effective part in world affairs.

In explaining the developments contained in the new treaty it helps to be mindful of what the European Union is and the purposes for which it exists. The Union is a voluntary association of 25 member states that have come together in order to be able to undertake certain actions designed to promote the common good. These actions include the preservation of peace and good will in Europe, and more generally in the world, the fostering of sustainable prosperity, the protection of human rights, and of Europe's diverse environment and cultural heritage, and the provision of plenty of food at stable prices by sustainable rural communities.

To achieve these and similar goals the member states have created a series of supranational institutions with legislative powers and have agreed that European law made on such a basis for the common good should - in the event of a conflict - override national law. This provision, implicit in all previous treaties, is made explicit in the new Constitutional treaty.

Simplifications in the new Treaty

The new Constitutional treaty proposes a major simplification in the organisation of the Union's business. Present arrangements separate the Union's work into three 'pillars' represented by Foreign and Security policy, Justice and Home Affairs policy and the last by everything else including Economic, Agricultural and Social policy.
The new Constitution scraps the three pillar arrangement; it proposes that all the work should be brought within the ambit of the European Commission, although some special arrangements are to be made in the foreign policy field to reflect the unique nature of the external representation of the Union. But basically all the Union's policies and procedures will now be handled in broadly the same institutional way.

A second substantial simplification will be in the way that future European laws will be approved. At present only about half of all legislation requires the approval of both the European Parliament and the Council of Ministers. Under the terms of the new Constitution practically all decisions (that is some 95 per cent) will be made in the same way, that is jointly by the Council and the Parliament. The new Constitutional treaty thus speaks of a single 'legislative procedure.' The change both standardises the taking of legislative decisions and makes the process more democratic.

The new Constitution does not set out greatly to alter either the extent of the policies and programmes that member states have decided should be tackled wholly or partly at the European level, nor change the basic supranational institutions - the European Commission, Parliament etc. The main changes relate instead to what might be termed 'operating procedures.'

Revised Procedures Reflect External Changes

The reason for the focus on 'operating procedures' is to improve the efficiency with which the European Union takes decisions following the accession of ten new member states in 2004 and with the probability of another three states joining in 2007 and still more later on. Currently many of the Union's decisions have to be taken by unanimity - that is to say that any one country can veto was is being proposed.

With the arrival of new member states a way needed to be found to allow more of the Union's business to be done on the basis of a majority rather than a unanimous vote. For taking decisions on a unanimous basis clearly gets slower and harder as the number of states involved increases.

Under the new Constitution therefore decisions in some forty new policy areas that are now subject to unanimity will be, when the new Constitution comes into force, taken by majority decision. At the same time the opportunity has been taken to make the basis for taking such majority decisions more transparent.

As for external affairs, we have seen how, over the last fifty years, the European Union's role in the world has become steadily more important. The Union undoubtedly now makes a substantial contribution to world affairs. This is recognised by the new Constitution with arrangements that include a new EU Foreign Minister position that will enable the Union to make its voice better heard in international councils in the years to come.

The EU' s Fundamental Purpose

Because the EU's existing constitutional arrangements have come about as a result of a number of intergovernmental treaties, each building on the one before, there has not occurred a suitable opportunity to set out clearly and in broad perspective the Union's fundamental purpose. In the early days the aims of the Community, as it then was, were limited and simple, a few countries coming together primarily for economic reasons on the basis that one of the better ways of preventing future war was by establishing an intricate and interdependent web of trading relationships.

Even so the EU's founding fathers had a vision of 'an ever closer union' of countries and peoples. This phrase found its way into successive treaties to the consternation of some who saw such an aim as symbolising the eventual creation of a single 'superstate' or at best a 'United States of Europe.' Apart from this phrase there was no statement of what mission the member states saw the EU as fulfilling. Neither was there in the existing treaties any opportunity for a state to leave the Union.

The new Constitutional treaty was therefore an opportunity for the Union to rectify these deficiencies with a few clear statements of what it stood for. At the same time the vague and - for some - threatening phrase about an 'ever closer union' was withdrawn and an 'departure' clause was written in allowing a state to leave the Union.

The present vision of the Union is contained in the initial articles. These speak of a 'common future' for the citizens and states of Europe and a Union founded on respect for 'human dignity, liberty, democracy, equality, the rule of law and respect for human rights.' Its aim is to 'promote peace, its values and the well-being of its peoples.' It will 'work for the sustainable development of Europe….aiming at full employment and social progress' while safeguarding Europe's diverse cultural and linguistic heritage. In the wider world it will 'contribute to peace, security and the sustainable development of the earth and observe the principles of the United Nations Charter.

Relations with Member States

Another gap in the constitutional arrangements provided by the previous amalgam of treaties was any statement of whence the EU derived its powers. Were the EU's supranational institutions centres of power in their own right, or were they merely acting on behalf of the member states? This was a question too important to be left fudged and vague.

The Constitution therefore makes a series of clear statements of principle that set out the relationship between the supranational Union institutions and the member states. These statements make clear that the Union is the servant of the member states, rather than vice versa, and that all the Union's powers derive from the member states. Such clauses provide an important safeguard against the development of the Union by its Brussels institutions in ways not wholly sanctioned by its member states.

That is not to say that no further European integration is possible. Further integration is indeed possible to the extent that member states wish it. The new Constitution is permissive in this regard. It follows existing arrangements in allowing opportunities for groups of states to work together more closely on certain issues. Just as a group of states has embraced the euro, another group the Schengen (free travel) area and a third defence co-operation, so the new arrangements provide for such 'variable geometry' to continue.

Institutional Change

So much for clarifying the role of the EU as a whole, but the Constitution also clarifies the roles of the major EU institutions. The basic institutional structure - the Commission, the Parliament, the Council, the Court of Justice, the Court of Auditors, the Committee of the Regions, the Economic and Social Committee - will, with the exception of the Council, not be changed appreciably and in some cases not at all. The Commission will still act executively in administering European law and will still - with advice from the two Committees - propose legislation for the Council and Parliament to consider.

The limited changes proposed to the European Commission are to make it more efficient and to stop it from becoming unwieldy as a result of an ever increasing number of Commissioners as new member states join the Union.

Current treaties will reduce the number of Commissioners per country to one from October 2004 and this will remain the case until 2014 unless European leaders decide otherwise. After this the agreement states that the number of Commissioners will fall to a figure equivalent to two-thirds of the number of member states.

Greater changes are envisaged for the Council of Ministers. This is the body that at present brings together the member states at either Ministerial or Head of Government level to take decisions, some of them legislative. At present the Council (sitting either at Ministerial or Head of Government level) is chaired by the appropriate Minister from whichever country is holding the current six monthly rotating Presidency. This system of rotation is set to continue although each presidency will be supported by the presidencies that immediately proceed and immediately follow it - an arrangement that both shares the Presidency load and provides greater continuity.

Under the new Constitution the Council would no longer bring together Heads of Government. Instead these leaders would meet in their own distinct institution - the European Council - charged with the responsibility of setting the strategic political framework of the European Union on both foreign and domestic policy agendas.

And to help it better to discharge this strategic role the European Council will be chaired by its own permanent President appointed with limited powers for two and a half years, renewable once. The role of this President will be to provide more continuity and direction than is possible for Heads of Government at present under the rotating system which will continue to apply (as now) to the Council of Ministers to which the European Council will give strategic guidance and direction.

Decisions in the Council

Legislative decisions have merely to command a majority in the European Parliament the requirements are tougher in the Council - the other half of the legislative engine. Many decisions at present require a unanimous vote - or in other words - can be vetoed by a single country even though all the others are in accord. The more states that join the Union the more prospect there is of one state feeling sufficiently discontented to veto a proposed piece of legislation. Therefore, as we have seen, there is a widely recognised need to broaden the scope of majority voting if decision taking in the Council is not to be seriously impaired as a result of the recent enlargement of the Union.

Much of the debate and argument over the new Constitution has concerned the matter of decisions in the Council. This debate has embraced both the subjects on which unanimity should be maintained and the definition of what is known as a 'qualified majority' - that is what combination of states big and small should be held to constitute a sufficient majority for the purpose of taking legislative decisions.

The original proposals drawn up by the Convention on the Future of Europe went further in extending the scope of majority voting, and in relaxing the hurdle of what represented a qualified majority, than the text that has now been agreed. There is a balance to be struck between being able to facilitate decisions and to block decisions. The discussions between member states in the recent intergovernmental conference clearly resulted in a compromise that placed more weight on the ability to block decisions than to facilitate them.

Nevertheless the scope of majority voting was substantially extended to include some forty additional subjects, although most do not represent key political issues. Apart from a few important exceptions, voting by majority will now be the norm once the new Constitution has come into force. These exceptions include major issues such as foreign and defence policy, aspects of social security, future reviews of the Constitution and tax policy, including provisions to combat cross border fiscal fraud. These remain subjects on which action can only be taken if all 25 states of the Union agree.

One exception to this rule of unanimity is where the European Foreign Minister has, unanimously, been invited to submit a proposal to the European Council. The proposal may then be accepted by a so-called 'supermajority' of 18 states out of the 25, provided these states represent 65 per cent of the population

The Constitution does allow the twelve states that have opted to join the Single Currency to take, on a majority basis, tax decisions that affect only themselves. Thus they could choose to boost trade by harmonising VAT, for instance, or to introduce green taxes, providing a level playing field for ecological taxation across the eurozone. And they could do it by means of a qualified majority vote.

When the Constitution is ratified qualified majority voting will become the norm. But what constitutes a qualified majority? The issue proved most controversial; indeed it was the cause of the collapse of the first round of constitutional talks in December 2003.

Until the Constitution comes into force qualified majority decisions will continue to be made in the Council on the basis of a number of votes allocated to each state by the Treaty of Nice, signed in 2000. This treaty was the result of an unsatisfactory compromise and the allocation of votes therein is neither transparent nor entirely logical. Spain and Poland, for instance, are countries with less than half the population of Germany, yet under the Nice treaty they each obtained almost as many votes as Germany to use in the Council.

The Convention therefore proposed, and the Constitutional treaty now incorporates, a system known as the 'double majority' - that is decisions have to be taken on the basis of a majority of states and a majority of the Union's population.

Under this system a qualified majority will consists of at least 55 per cent of states in the Union - that is at least 14 states out of the 25 - provided these also represent 65 per cent of the EU's population. Decisions can be blocked if at least four member states object.

When the Constitutional treaty comes into force this will be the normal basis on which the Council will put into law (subject to acceptance by the European Parliament) legislative proposals advanced by the European Commission. However the Constitution will require an even higher threshold where certain highly sensitive issues in the fields of justice, foreign and security policy, and economic and monetary policy are being discussed. Here the requirement is for 72 per cent of member states to agree - that is 18 out of the 25 - provided, of course, that they represent at least 65 per cent of the population. The same higher thresholds will also apply when decisions are to be taken that could involve the suspension or withdrawal of a member state from the Union.

The new system is fairer, democratically more transparent, and clearer than the present system agreed at Nice in 2000. Moreover, by the use of percentages the text of the Constitutional treaty can accommodate without difficulty the further expansion of the Union.

Democracy and Human Rights

The EU has been widely criticised in the past for operating procedures that are not as democratic or accountable as they could be. This charge was recognised in the terms of reference given to the Convention on the Future of Europe that produced the initial text of the Constitutional treaty. The new Constitution makes considerable advances in the fields of democracy and human rights.

First, by incorporating, in the text of the Constitution, a Charter of Fundamental Rights European citizens will be have their fundamental human rights enshrined in law. The Charter is not intended to change current domestic law in the member states but future European laws (assuming the Constitution comes into force) will need to respect its provisions.

Secondly, there is now a provision in the new Constitution that will allow a million or more EU citizens to petition the Commission for a legislative proposal. In other words a European political campaign, mounted by individuals, will be able, potentially, to secure a change in European law - something for which no provision currently exists.

Thirdly, as we have seen, the powers of the European Parliament are to be enhanced and its legislative role dramatically increased. The Parliament's ability to veto proposals for membership of the European Commission, including its President, and to veto the European Union's budget are also enshrined in the new Constitution. The Parliament will now therefore be a body with real power. Reflecting the enlargement of the Union, the number of seats in the Parliament has been increased to 750. Each state will elect between 6 and 96 members, depending on the size of its population.

Fourthly, national parliaments - that is parliaments within member states - will also in future have an enhanced role in the European legislative process. The Commission will consult them during the drafting stages and where they express concern - particularly about whether the proposed legislation trespasses on issues that, in their opinion, ought properly to be handled at member state level - then they can require the Commission to think again.

Lastly, the European Council has come in for much criticism for its procedure (under current rules) of passing legislation behind closed doors. At present the public is not allowed to know what compromises were offered to secure a deal, nor how each member state voted. Council decisions are therefore not transparent and its members not fully accountable. The new Constitution proposes that the Council should sit in public when legislating so that the public and the press can see and report the legislative process in full.

World Role

The European Union is increasingly called upon to play a wider role on the world stage. The present constitutional arrangements that regulate the EU's external relations are messy. In the Commission there is a Commissioner responsible for External Relations; outside the Commission there if a 'High Representative' for Foreign and Security Policy who reports to the Council.

The new Constitution combines these roles, in the newly-created person of 'Foreign Minister.' Now that Foreign and Security Policy no longer has its own 'pillar,' the Foreign Minister will sit in the Commission as one of its vice-Presidents. But the person fulfilling the role will work primarily to the Council and will chair all Council of Ministers meetings devoted to external relations and similar subjects. The Constitution permits the creation of an EU diplomatic service as appropriate to support the Foreign Minister.

The effect of these changes will be to give the EU a more powerful voice in world affairs appropriate to its developing interests in peacekeeping, international development, humanitarian affairs and the management of conflict situations such as that in the Middle East.

Development of the European Union

The Constitution cannot be amended or reviewed other than on the basis of a unanimous decision by all the EU's member states. However, clauses in the Constitution will enable the scope of majority voting to be extended at some later date if this is what member states - acting unanimously - wish. Such clauses known as 'passerelle' or bridge clauses allow such amendments by simple decision without requiring a new constitutional treaty.

Public Prosecutor

The new Constitution also makes provision for a new European Public Prosecutor - to help in the fight against cross border fraud and similar crimes.

Conclusion

Taken together these proposed changes are deemed sufficient to allow the EU to function effectively for some considerable time to come. However, the Constitutional treaty requires ratification by each member state, something that can’t be taken for granted. If the treaty is not ratified then the EU will continue to operate on the basis provided for in the existing treaties.