European Law Constitutional Law

¶ … European Union has brought with it both triumph and controversy. The purpose of this discussion is to investigate the details of the draft constitution.

In particular, this discussion will seek to Critically evaluate the extent to which the draft Constitution creates an institutional architecture that both sustainable for the future of Europe and achieves an appropriate inter-institutional balance. Let us begin our discussion with a brief overview of the European Union and the nations that are a part of the entity.

Overview of the European Union

According to a book entitled, The Expanding European Union: Past, Present, Future, the European Union was formed in 1957 with the participation of Italy, France, Germany, Luxembourg. Belgium, and the Netherlands. (Redman 1998) The union was originally referred to as the European Economic Community (EC). (Redman 1998) The book explains the "EC" gradually expanded and became the European Union. The author asserts,

Any European State may apply to become a member of the Community." Thus, the way was opened up for three enlargements of its membership to include Denmark, Ireland, and the United Kingdom in 1973, Greece in 1981, and Spain and Portugal in 1986. The fourth enlargement took place on 1 January 1995, under the provisions of Article 238 of the Treaty on European Union signed in Maastricht in February 1992. Accession by Austria, Finland, and Sweden took the EU to its current membership of fifteen states. (Redman 1998)

Although the European Union is currently composed of 15 countries, it is expected to expand even more in the years to come. (European Union at a Glance) Twelve of the nations in the European Union currently share the same currency, which makes travel simple. (European Union at a Glance)

Main aspects of the constitution

According to an article published by the BBC, several changes will take place under the constitution. The BBC reports that these changes include:

Division of Responsibilities-under the constitution the rights of the European Union will be expanded to include immigration and asylum. In addition, the constitution will eliminate the pillar structure, which allowed policies to come under both intergovernmental and European Union arrangements. (What the EU constitution says, 2004)

This simply means that the European Union will have broader control over life in Europe. (What the EU constitution says, 2004)

Qualified Majority Voting- under the constitution a system of Quality majority voting will be implemented. (What the EU constitution says, 2004) This means that a qualified majority consists of 55% of the Council and 65% of the population. (What the EU constitution says, 2004) Under this standard larger and smaller countries in the union will have fairer voting rights. Under the old system, smaller countries did not have the same amount of voting power. (What the EU constitution says, 2004)

Presidency- under the constitution the European Council will elect the president. (What the EU constitution says, 2004) The president's term will last for 2.5 years and he/she can serve a maximum of two terms. (What the EU constitution says, 2004) This new system is different form the old system in that the old system rotated presidents every six months. In addition, under the old system the president was chosen by the member state and not the European Council. (What the EU constitution says, 2004) The BBC explains that the new presidential position under the constitution will give the president more power. (What the EU constitution says, 2004)

Commission Reform-under the European Union Constitution there will be a national form every state that will act as commissioner. • (What the EU constitution says, 2004) After five years the Commission will be reduced to include around 18 members. (What the EU constitution says, 2004) This is being done because many feel that the smaller countries are often ignored. In addition, the current size of the commission is too large and must be reduced. (What the EU constitution says, 2004)

Supremacy of Law- under the constitution the laws of the Union will have precedence over the law of the member states. When there are laws that have not been defined by the European Union the law of the member state will be used. This will allow the European Union to engage in international agreements. (What the EU constitution says, 2004)

Exiting the European Union - under the constitution member that want to exit the union will have to appear at a hearing. (What the EU constitution says, 2004)

The EU may attempt to negotiate their stay but ultimately the state will have the ability to leave if it so desires. (What the EU constitution says, 2004) Under the old system states, wanting to exit simply had to make a request to do so. (What the EU constitution says, 2004)

Foreign Policy-under the EU constitution the Union has the authority to implement and dictate foreign policy measures. (What the EU constitution says, 2004) Under the old system, there was not necessarily a consensus on foreign policy amongst the member states. (What the EU constitution says, 2004)

Indeed, the constitution has the potential drastically change Europe and the European community, as we know it. According to an article in the Washington Times, The other changes include, the appointment of a single EU foreign policy minister; new limits on the right of individual countries or small groups to veto EU decisions; increased power for the directly elected European Parliament; and greater authority for the European Union to act in such areas as energy policy, immigration, transportation and cross-border crime. (EU's Draft Constitution Sets Up Raucous Debate, 2003)

Opponents of the Constitution

There are many complaints surfacing concerning the constitution and the regulations that it brings. Many feel that the Union will have too much power, while others feel that it is a step in the right direction for the entire continent of Europe and the world. In any case, the constitution does grant the European Union with much of the authority that was once only exercised by the individual member states. Over the next few paragraphs, the discussion will explore the criticisms of the constitution.

Indeed, the draft constitution of the European Union brought with it controversy and skepticism. The draft constitution was written between February of 2003 and July of 2003. (Lucier 2003) An article found in the magazine Insight on the News explains that the new constitution would finally create a centralized superstate, which many in the Union have sought for fifty years. (Lucier 2003) The article asserts that the draft constitution has been controversial because,

Critics have charged that the delegates who prepared the document had no mandate to do so, but that the suggestion of a constitution "was rapidly seized upon... without any study of either the alternatives or the long-term consequences of such an act," according to a minority report. Until now the EU was a creature of four multilateral treaties, and never had what the international lawyers call "a legal personality." But if this constitution is adopted (and its proponents hope it will be signed by May 2004), it will be a legal personality on steroids. (Lucier 2003)

The article goes on to explain that some of the delegates to the Convention on the Future of Europe vehemently oppose some aspects of the constitution. The article contends that their opposition to the constitution is because the constitution takes a great deal of the decision-making power away from the member states and gives the power to the European Union. (Lucier 2003)

The author explains that the decision-making abilities that the Union will have under the constitution is related to criminal justice and certain areas of domestic policy. (Lucier 2003) Those that oppose the constitution believe that the ability of the union to make these decisions will create a government that is out of touch with the will of the people. (Lucier 2003)

Those that oppose the constitution also have other problems associated with the powers given to the Union under the constitution. The article contends that The constitution gives more power to all the existing EU institutions and creates a Europe of presidents, with more jobs for politicians and less influence for the people." Complaining that the constitution concentrates more executive and budgetary power in the very institutions that have been unable in recent years to produce a verifiable audit of expenditures, the minority concludes that the constitution "creates a new centralized European state, more powerful, more remote, with more politicians, more bureaucracy and a wider gap between the rulers and the ruled." (Lucier 2003)

Another article found in the Washington Times contends that those that oppose the constitution are also fearful of the constitutions view of religion. The constitution seems to aim to leave out historical information pertaining to the role of Christianity in European society. (EU's Draft Constitution Sets Up Raucous Debate, 2003) The article reports that The first words of the draft provoked one of the first controversies, as spokesmen for both the Roman Catholic Church and the Greek Orthodox Church condemned the omission of any reference to Europe's Christian heritage in the preamble..."The text has not had the courage to recognize the historical fact of the influence of Christianity in European culture," said Cardinal Roberto Tucci, president of Radio Vatican. (EU's Draft Constitution Sets Up Raucous Debate, 2003)

The article also reports that some oppose the preamble to the constitution because they feel that it contains political rhetoric. (EU's Draft Constitution Sets Up Raucous Debate, 2003) The author asserts that the wording of the document is dry and lacks the simplicity that is present in the American preamble, which simply reads "We The People." (EU's Draft Constitution Sets Up Raucous Debate, 2003) They feel that the constitution does not focus enough on the citizens that it will serve. (EU's Draft Constitution Sets Up Raucous Debate, 2003)

In short, people that are opposed to the constitution believe that it will give the Union to much power at the expense of the individual member states and the citizens of those states. The article also explains that the constitution does not give the Union powers that are "clear and enforceable." (Lucier 2003) This lack of specificity could be detrimental to member states and result in great divisiveness amongst citizens.

Critical Evaluation

Now that we understand the main powers that are being given to the Union through the constitution and the criticisms of the constitution we can evaluate the extent to which the draft Constitution creates an institutional architecture that both sustainable for the future of Europe and achieves an appropriate inter-institutional balance. We must also take into consideration the original purpose of the EU and the way Europe has evolved. In addition, our evaluation must address the concerns of the European community and the world.

The architecture of the constitution is such that it does have the ability to grow and it also makes concessions for the addition of new nations into the union. In addition, the Union will be responsible for making decisions concerning the international community. This decision making ability will allow the European Union to make definitive decisions regarding support for military and humanitarian efforts throughout the world.

In addition, the architecture of the constitution also gives the European Union even greater control over economic aspects of the continent. Theses economic factors include agriculture and the energy policies. Power over these areas will allow for the economic expansion of an already strong economy.

The architecture of the constitution also attempts to ensure that all of the member states have equal voting rights. The ability of smaller nations to have a fair say in the voting process is essential to the growth of Europe. This means that smaller nations are likely to join the union because they believe that they will be treated fairly.

Overall, the architecture of the constitution will definitely allow for the economic and p[political growth of Europe and the European Union. The drafters of the constitution were able to create a constitution that addressed the concerns of some European nations. In addition, the constitution provides the European Union with definitive power and authority.

The question of whether or not the constitution provides for appropriate inter-institutional balance is a bit more complicated. It seems that in most respects the European Union has been given too much power. A prime example of this is the newfound authority that the European Union has over criminal justice. As we mentioned previously in our discussion, the European Union will have the authority to override the laws of its member states. This amount of power is seen as monumental throughout Europe and the World.

In addition, it seems that in some respects the European Union is attempting to eliminate religious freedom and tolerance. The Union's constitution wants to abandon even the mention of the Christian history of Europe. The problem with this also relates to the Union's ability to override the laws of member nations. For instance, some of the member nations may embrace religious diversity and the mention of the continents Christian history. However, if the EU declares such exercise illegal, there is not much the individual nations can do to reverse the declaration. Many would argue that the European Union would have too much power under the constitution.

This also means that the inter-institutional balance of power is uneven.

Indeed, for an entity that prides itself on being democratic, some of the standards presented in the constitution have many of the leanings of a dictatorship. If the Union is not careful, Europe will become just that. The constitution fails to give the appropriate powers to the individual nations and may run the risk of alienating citizens.

The original purpose of the European Union was to create a unified front. Since the inception and consequent membership of several nations, the EU has accomplished this goal. However, the constitution threatens to create a Europe that is extremely divided. Nations that are not members of the European Union may be forced to join the union because of the economic and political pressures that they will face. On the other hand, nations that are members of the union may feel forced to stay in the union.

There is also some criticism of the constitution in other democratic nations, namely the United States. The United States feels that the European Union will ultimately become a super power that will compete with the United States both economically and militarily. An article in the Washington Times asserts,

European officials on a visit to Washington have sought to ease fears that a European constitution will turn the continent into a political and military rival to the United States. Addressing a conference at the American Enterprise Institute on Tuesday, the European officials noted rising concern on this side of the Atlantic as the European Union moves toward closer consolidation and discussions about raising an independent military force. "Doubts about America's attitude towards a political, and especially military, union in Europe have recently emerged on this side of the Atlantic...a school of thinking in the United States "tends to greet new European initiatives with a mixture of ambivalence, trepidation and skepticism."(Soulas 2003)