Letzte Aktualisierung: 10. Juni 2006, PK

[Zurück zur Bibliographie von Peter Knauer]

Peter Knauer

Thinking about the draft of a European Constitution

At the time of writing fifteen states have ratified the draft of a constitution, but two have rejected it. Six countries have postponed an eventual referendum or ratification, one (UK) has suspended the process and one is still, in the near future, expected to ratify the treaty. Anyhow, the European Union finds itself in an impasse.

According to some, the draft constitution is "dead", although those states which have already ratified the text disagree. Others say, that the text should be resubmitted, without substantial changes, to the rejecting states, though one may doubt that such a step respects the people of the states concerned. Still others argue that one can ‘cherry-pick’ the best elements of the text and throw the rest into the wastepaper bin: advice that ignores the political balance struck by the present text and which obviously provokes a new set of arguments about which were the cherries.

To escape the impasse, it may be helpful to look at the history and the structure of the current text and to ask what should be the meaning of a ‘constitution’.

The Beginnings

On 20 June 2003 the European Convention presented the ‘draft of a treaty establishing a constitution for Europe’ to the European Council at its conference in Thessaloniki. The official text of the German edition carries the © Europäische Gemeinschaften, 2003, ISBN 92-78-40169-2. This draft consisted of two parts, both of them including a preamble. The first part, which bears no title, is the draft of a Constitution proper and in this paperback-edition is 75 pages long. Part II comprises the ‘Charter of Fundamental Rights of the Union’; to a large extent these rights are general humans rights and do not merely concern citizens of the European Union. This second part is 32 pages long. These two parts are followed by three ‘protocols’: ‘on the role of national parliaments in the European Union’ (4 pages), ‘on the application of the principles of proportionality and subsidiarity’ (4 pages) and ‘on the representation of citizens in the European Parliament and the weighting of votes in the European Council and in the Council of Ministers’ (5 pages). Including the list of Convention members and a table of contents, the whole publication amounts to VIII + 169 pages.

In fact, a more correct title would have been: ‘... a Constitution for the European Union’. because the Union does not cover the whole of Europe.

Nevertheless, on the whole the draft text is transparent and readily understandable – maybe not even too long. However, this publication refers in several places to a Part III, for example in Part I, article 40, (5) - (7). This Part III is not included in the publication, yet nowhere is it said that the published text is incomplete.

But one may ask why the protocols were not included in Part I of the text itself.

In particular the protocol on the application of the principles of proportionality and subsidiarity goes to the very heart of the entire Constitution. The principle of proportionality postulates that the costs and drawbacks of any action be limited as far as possible, for whomsoever. I believe this principle to be the basic principle of the whole of ethics, and to constitute the most profound and characteristic cultural achievement of Europe. For all irresponsible actions can be recognised by their failure to correspond to the principle of proportionality: that is to say, they undermine in the long term and universally the very values, which they claim to promote in the short term. This would also be the case of a politics of mere economic gain: the very gain itself would be undermined in the long run.

In order to avoid that the principles of proportionality and of subsidiarity be only piously referred to but not adhered the protocol outlines the necessary measures in order to ensure adherence to these principles. It says, ‘Draft European legislative acts shall be justified with regard to the principles of subsidiarity and proportionality. Any draft European legislative act should contain a detailed statement making it possible to appraise compliance with the principles of subsidiarity and proportionality. This statement should contain some assessment of the proposal's financial impact and, in the case of a European framework law, of its implications for the rules to be put in place by Member States, including, where necessary, the regional legislation. The reasons for concluding that a Union objective can be better achieved at Union level shall be substantiated by qualitative and, wherever possible, quantitative indicators.’ (n. 4) In addition, the European institutions and the national Parliaments are asked to control the application of these principles.

The principle of proportionality is also really formulated only in the protocol itself: ‘Draft European legislative acts shall take account of the need for any burden, whether financial or administrative, falling upon the Union, national governments, regional or local authorities, economic operators and citizens, to be minimised and commensurate with the objective to be achieved.’ (n. 4).

The principle of subsidiarity – which in reality is only a consequence of the principle of proportionality – is also extremely important, since it rules out the ‘Brussels centralism’ that so many people insist they fear. By this principle, the European Union may become active only where problems cannot be appropriately resolved on the national, regional or local level.

That especially the principle of proportionality is really treated only in a protocol and not inserted in the main text, is, given its fundamental importance, extremely astonishing and might have contributed to many misunderstandings.

The Additon of part III

Later, the European Parliament published a text with the same title, but this time with the additional rubric: ‘adopted by consensus in the European Convention, and on the 13 June and 10 July 2003 presented to the president of the European Council in Rome’ (ISBN 92-78-40195-1). Compared with the publication mentioned above, we have now a book of VIII + 352 pages. In this version, there is added to the first two parts a Part III on ‘the policies and functioning of the union’ (180 pages) and a Part IV, ‘general and final clauses’ (5 pages). Two further protocols were added, and three ‘declarations’ In Part IV, Article 6 says explicitly: The protocols to this treaty form an integral part thereof.’ (IV-442)

What has happened here? In essence, Part III attempts to summarise the previous European treaties To a large extent it consists of specific laws, which should not be part of a constitution. I take a random example: in Section IV, speaking of agriculture and fisheries, Article 122 (3) says: ’For the products specified in Appendix I, Articles III-123 to III-128 apply.’. In “appendix I” you find mentioned the treatment of natural honey and birds’ eggs.

In the Inter-governmental Conference of 18 June 2004 some formulations were changed and a continuous numbering of all the articles introduced.

The Scandal

In France, before the Referendum, copies of this second long text were distributed to all households – but leaving out just those protocols which are so important.

The European Parliament itself ordered a new edition entitled: ‘The European Parliament and ... the European Constitution’ (Publications’ Office, ISBN 92-823-1897-4). This paperback of 201 pages in small print has a Preface by Josep Borrell Fontelles, President of the European Parliament. Then it reports, "the resolution accepted by the European Parliament on the 12th January 2005 on the Treaty for a Constitution for Europe" and the text of the "Treaty for a constitution for Europe" itself, which is no longer called a ‘draft treaty’. The Parliament ‘endorses this ratification without difficulty’. It is astonishing to realise that again, in this official publication which appeared simultaneously in other European languages, all the protocols and declarations are omitted, although they explicitly belong to the treaty.

Those who wish to procure themselves the actual protocols and declarations, in the Information Office of the European Parliament in Brussels, are referred to another desk outside this Office, where the texts can be printed for them personally.

Meanwhile, we have 36 protocols and three annexes together with 30 declarations concerning articles of the four parts of the Constitution, 11 declarations on the protocols, and 7 declarations of individual states: all these constitute no less than 197 A4 pages in small print. There is an English edition (ISBN 92-824-3072-3) of 460 pages, of this ‘additional’ material, presented as a second volume of the draft.

This is the scandal. It seems that all these new supplementary protocols and declarations only contribute to bury under them the heart of the constitution so that it can be left aside “because nobody is interested” in all these appendices.

A Proposal

To review: A constitution is the attempt to articulate the foundations of a community convincingly, and to serve its self-government and its self-limitation. A constitution is a fundamental mode by which a community guards against arbitrary political action and avoides impasses for future action as are represented just by the actual situation of the EU. It provides the framework and the foundation of specific positive laws: but those laws themselves do not belong to a constitution.

The text of a constitution needs to be accessible and understandable for all citizens, including those without higher education or special expertise.

The Constitutional Convention had begun its work with the following goal: “It proposes measures to increase the democracy, transparency and efficiency of the European Union, by clarifying the contribution of national parliaments to the legitimate functioning of the Union, by simplifying decision-making processes, and by making the functioning of the European Institutions more transparent and comprehensible.” (Preface to the first edition mentioned above)

After all the unfortunate complications I have described (and especially the fact that in several versions of the text, integral elements could be omitted without anyone being disturbed), it seems evident that the draft of the Constitution requires a substantial editorial re-treatment, in order to become actually ‘transparent and comprehensible’. Individual laws do not belong into a constitution, and it is meaningless to provide a constitution with 36 protocols and countless supplementary declarations. Nor will the draft Constitution be saved by adding still another protocol "on the social dimension of Europe" as seems to have been proposed within the German Government..

My suggestion, therefore, is to restrain to the original parts I and II, integrating part IV as a conclusion of part I. Especially the protocol on the principles of proportionality and subsidiarity should enter in the main text. One should also avoid unnecessary repetitions within part I and part II (e.g. I-10 (2) b and II-100 are identical). These should simply be omitted. Part III should appear in a separate publication and not be part of the constitution.

[Zurück zum Beginn] [Zurück zur Bibliographie von Peter Knauer]