Select Committee on European Union Written Evidence

Memorandum by Professor Eileen Denza


Would the Treaty constitute a penultimate step towards a European Superstate?

  The draft Constitutional Treaty takes the form of an international treaty, capable of amendment only by a further treaty. The Constitutional Treaty, and any amendment to it would require ratification by all Member States of the European Union. Article 1 implies that power derives from the sovereign States who establish the Union and delegate certain competences to it. Although Article 1 says that the Constitution reflects the will of the citizens and States of Europe to build a common future, it does not imply that the Constitution derives from the will of the people of Europe. It may be contrasted with the Constitution of the United States of America, which in 1789 transformed the United States from a confederacy of thirteen States into a single federal State. In this case, sovereignty lies with the people, and the Constitution begins

    "We the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

  The draft Constitution for the European Union however marks a further stage in the long-running battle between "supranationalists" seeking the ultimate goal of Europe as a federal State and the "intergovernmentalists" convinced that Europe should remain a Union of sovereign nation States. The original mandate given by the Intergovernmental Conference at Nice for

    "a simplification of the Treaties with a view to making them clearer and better understood without changing their meaning"

was largely disregarded by the Convention. In particular, the structural changes resulting from the proposed fusion of the First and Second Pillars would in important respects be inconsistent with ultimate independence of the Member States in the conduct of their external relations.

  Under public international law, a sovereign State is defined by four criterias—territory, population, a government exercising effective control of that territory, and independence in the conduct of its external relations. When sovereign States fuse, or move from a confederal or divided structure into a single State, their separate treaty relationships, separate armies, separate embassies, separate membership of international organisations such as the United Nations disappear and the new State begins to conduct a single foreign policy. The crucial importance of foreign policy in the definition of a sovereign State is the reason why great care has always been taken within Europe to distinguish between a common foreign and security policy and a single foreign and security policy.

  When European Political Co-operation was placed on a treaty basis by the Single European Act in 1987, and then on a binding legal basis by the Treaty of Maastricht in 1993, the safeguard for ultimate national independence lay in the fact that foreign, and later defence policy, was kept clearly outside the European Community. The Common Foreign and Security Policy (CFSP) which formed the Second Pillar made use of the same institutions as the Community, but was quite separate from it. There were institutional differences such as the Council's overwhelming power and the total exclusion of the European Court of Justice. But the most important difference was that legal obligations under the Second Pillar had the character of international law. Primacy in the strong form which is characteristic of the Community legal order, and loss of national legislative and treaty-making competence where the Community had exclusive competence or exercised shared competence, do not apply within the Second Pillar. In the United Kingdom, the Second Pillar is NOT covered by the European Communities Act because it does NOT give rise to Community rights or Community obligations.

  The draft Constitution in its understandable desire for a marriage between the European Community and the European Union has obscured this clear preservation of the intergovernmental character of the Common Foreign and Security Policy (CFSP). The special institutional features of the existing Second Pillar are on the whole preserved. But Article I-1 in providing that the Union "shall exercise in the Community way the competences they confer on it" by implication excludes the possibility that certain competences—notably in foreign and defence policy—could be exercised under the different legal order of public international law. Articles I-9 and I-17 in describing and allocating exclusive and shared competence as well as "competence to support, co-ordinate or supplement the actions of the Member States" leave CFSP competence in limbo. It is not allocated to any one of the three "Community" categories and is not separately defined. Given the mandate from the Nice Intergovernmental Conference to establish a more precise delimitation of powers between the Union and the Member States, this is unsatisfactory.

  Article I-39.5 would also require Member States to consult the others "before undertaking any action on the international scene or any commitment which could affect the Union's interests". This commitment is sufficiently open-ended to include even action taken by a Member State in self-defence in the face of an armed attack and is inconsistent with the ultimate independence in external matters characteristic of an independent State.


  At present, unanimity is the basic rule for foreign policy decisions. There are limited possibilities of "constructive abstention" and of taking "implementing decisions" by QMV. They have apparently never been used. It is said that Member States have been reluctant to adopt common strategies because they would under the terms of the Treaty of Amsterdam open the door to implementing decisions which could be taken by QMV. The draft Treaty (Article III-201) would not greatly extend the present possibilities. A Member State would retain the ultimate right not to be outvoted on a vital question of national policy. The argument against extension of QMV is not that it would imperil national sovereignty. Even the Security Council may adopt a resolution binding on all Members of the United Nations by majority vote and only the Permanent Members have the right of veto. The argument is rather that if a position on European external policy were adopted by majority vote, this would become known and the policy would fail to carry conviction. Since CFSP was established, there have been only two important matters where consensus could not be achieved, and QMV would not have changed the result in either case.

  One of these cases was Greece's obstruction of a common position of the Union on the recognition of Macedonia. This was a matter of vital political interst to Greece, and its position was understood and accepted by the other Member States. There will always be the possibility of issues arising which are for historical, geographical or political reasons, especially sensitive to one Member State, but they have been rare.


  Article I-41 of the draft Constitution would quietly abolish the existing Third Pillar of the European Union. Although under the Treaty of Amsterdam, asylum, immigration and other matters which the Treaty of Maastricht had allocated to intergovernmental co-operation were transferred into the European Community Treaty (with certain largely transitional special provisions), police co-operation and judicial co-operation in criminal matters were left within the Third Pillar. The intergovernmental Third Pillar was restructured to provide for greater efficiency, transparency and judicial supervision.

  The implications of the proposed transfer are less fundamental than those of the abolition of the distinct Second Pillar (discussed above). But these areas, particularly co-operation in criminal matters, are extremely sensitive within nation States. This has been apparent over the past year in the United Kingdom as the Extradition Bill (which would give effect to the European Arrest Warrant) and the Crime (International Co-operation) Bill which would give effect to several Third Pillar measures have made slow progress through both Houses of Parliament. Acceptance of primacy of European Union law, and gradual loss of national competence in the area of criminal justice would imply a very large transfer to power from Member States to the Union. Article III-171 provides that judicial co-operation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and include approximation of national laws and regulations on such matters as admission of evidence, individual rights in criminal procedure and the rights of victims of crime. This would be a very large application of a principle of which there is at present very little practical experience.


  The Treaty does not purport to make fundamental changes in the relations between the European Court and national constitutional courts. National constitutional courts have in several Member States continued to insist that their role is that of guardian of their national constitution and to question certain doctrines of the Community legal order where they see any incompatibility between these doctrines and their own role. This tension has generally been avoided in the United Kingdom by the highly effective terms of the European Communities Act.

  One consequence of the merger of the European Community and the European Union, when taken together with the continued exclusion of the jurisdiction of the European Court of Justice from common foreign and security policy matters, would be that such questions would be totally excluded from the jurisdiction of any court. It is true that instruments imposing sanctions—which have direct impact on individuals—would remain within the jurisdiction of the Court. Decisions or actions taken under CFSP powers could in theory now be challenged before national courts—even though it would be highly likely that these courts would find them non-justiciable. But it is open to question whether this would still be possible once the European Union was given full international legal personality, so extinguishing the individual liability of the Member States for actions taken by the Union.

  There are presentational, legal and political arguments for extending the jurisdiction of the European Court of Justice over the common foreign and security policy. There are likely to remain important ambiguities in the Constitution on external matters—in particular the effects on external international agreements of the Union—and it would at least be possible for these to be clarified in the longer term.


  It may be argued that changing the present title of the High Representative for the Common Foreign and Security Policy to "Minister for Foreign Affairs" indicates a desire to form the Union into a "proto-State". The proposal that he should "conduct" the Union's common foreign and security policy would greatly extend his existing powers to assist the Council in formulating foreign and defence policy and to represent the Union abroad on CFSP matters. There are also arguments that to appoint him also as a Vice-President of the Commission would compromise the balance of power and the creative tension between the Commission and the Council and would cause practical conflicts of interest where, as so often occurs, the Council and the Commissioner are in dispute.

  The present powers of the High Representative within the Second Pillar (which include defence) give him the right to contribute to the formulation, preparation and implementation of policy decisions. The Policy Planning and Early Warning Unit do in fact contribute to the formulation of proposals, even if these formally emanate from the Presidency. There seems no reason to exclude the "Foreign Minister" from making proposals directly to the Council, provided that the right is not an exclusive one.


  Two serious criticisms may however be made of Article I-40. The first is that Article 40.2 says that the progressive framing of a common Union defence policy "will lead to a common defence, when the European Council, acting unanimously, so decides". This wording is inconsistent with Article I-15.1 which reflects the current position and states that framing of a common defence policy "might lead to a common defence". It is also inconsistent with the following sentence which gives Member States, through national constitutional procedures, a discretion whether to accept the recommendation of the European Council.

  Article 40.6, which together with Article III-213 opens the way for structured cooperation among "Member States whose military capabilities fulfil higher criteria", is unnecessary, and incompatible with the principles on which European Union defence policy has developed since December 1998. These principles were summarised in a joint statement of November 2000 between the United States Secretary of State and the United Kingdom Foreign Secretary which said:

    "Europe's security and defence policy is not and will not become a European army run from Brussels. Any military operation organised by the EU will require the consent of every Member State. Any national deployment will be a matter for that nation to decide."

  The same principles were also reflected in the French Presidency Report to the European Council in Nice in December 2000.

  Article 40.7 raises the important political question whether the Constitution should include a possible treaty commitment by European Union Members to collective self-defence. Such a guarantee is contained in Article 5 of the North Atlantic Charter and in Article IV of the Brussels Treaty which established the Western European Union (though the latter may not provide long-term assurance).

  Article 40.3 and Article III-212 are wholly in line with recent decisions by Heads of State and Government to give the Union the means and capabilities of credible defence action.


  Given that the proposed Constitution is essentially a Treaty establishing a new structure for an international entity with a long history and extraordinarily wide powers, there is no way of making it shorter. The concept of dividing essential constitutional and institutional matters (Part I) and General and Final Provisions (Part IV) from a comprehensive list of existing, extended and modified powers and procedures (Part III) is a good one—though it is not likely that Part I will survive unchanged for several decades.

  The clarity of the structure is however greatly confused by the addition of Part II. The Charter was originally drafted as a self-contained instrument, and there is inevitably a large overlap between Part II and what is already in Parts I and III. Accession by the Union to the European Convention on Human Rights and Fundamental Freedoms and perhaps other human rights treaties is likely to cause further uncertainty over the relationship between obligations in Part II and external obligations to be assumed by the Union under international law.

  It may be argued on the other hand that inclusion of the Charter in Part II is politically and presentationally important and that following a period of extensive litigation (as occurred in the United Kingdom after the Human Rights Act), the relationship will in its essentials be clarified by the European Court of Justice.

  The structure will be further complicated if its meaning can only be understood if it is read together with a large number of Protocols and Declarations. Some important existing Protocols and Declarations have apparently been submerged without trace.

  The renaming of all the existing legal instruments available to the European Community and the European Union will for most of those studying and working in the field be disastrous in terms of comprehension. Those working within the institutions such as the Council and the European Parliament, concerned almost entirely with the making of new laws may find it marginally easier to have slightly fewer names for the available instruments. But in the rest of Europe the existing acquis will survive (Article IV-3) and it will be impossible to understand the Constitution to explain the legal order of the Union or to litigate before the European Court of Justice or before national courts without reference to the acquis and to the existing terminology. Even the re-numbering of Articles on entry into force of the Treaty of Amsterdam in 1999 made it much more difficult to teach or to discuss European law. Unless both the old and the new numbers are used (as is done by the European Court) there are now constant misunderstandings.

  The existing names for instruments of different kinds (with the possible exception of decisions) are self-explanatory and have become widely understood. The proposed total re-naming suggests that the new Constitution would be a rebuilding on a bomb site rather than a re-shaping of lived-in and familiar architecture.


  The proposals to give national parliaments a "yellow card" procedure to appraise the principle of subsidiarity are welcome. National parliaments would be the losers if legislation were adopted at Union level on matters which should more appropriately be regulated at national or local level, or perhaps on a worldwide basis. The Protocol will however only form a meaningful safeguard if national parliaments can use their new powers in a swift, effective and coordinated way. The precedents are not encouraging—for example, national parliaments are already losing their power to reject European Union conventions on Third Pillar matters because they have been incapable of taking decisions either to approve or to reject within any reasonable time-scale. The existence of a specific new power might however form an encouragement for parliaments to carry out scrutiny procedures in a more disciplined way (as is of course already done by some national parliaments). Even if only a few parliaments presented reasoned opinions suggesting non-compliance with subsidiarity, these would be examined by the Commission, by the government of that State and by the European Parliament and would enhance democratic legitimacy of the legislation.

  The proposal in paragraph 7 of the Protocol for the European Court to hear actions on grounds of infringement of subsidiarity brought by a Member State on behalf of its national parliament adds little to existing possibilities of challenge and is unlikely to enhance the powers of national parliaments collectively. Litigation brought directly by a national parliament is however difficult to imagine in practice, given that national parliaments do not have the kind of coordinating machinery to adopt positions on points of detail with the speed necessary for efficient conduct of proceedings. Disputes over subsidiarity are in any event not well suited to resolution by court proceedings. Decisions on the appropriate level for action are quite properly taken within a wide context which is political as well as legal.

  What would enhance the powers of national parliaments would be to give them a further "red card" before final adoption of legislation whether by the Council, or by the Council and European Parliament together under the ordinary legislative procedure. This power to block would be available only where the yellow card procedure had been used at the outset, but the Commission had maintained its proposal unchanged. It would therefore apply in only a very few cases, but would be available at a stage when parliaments had had full opportunity to consider the draft legislation and take into account a wide variety of opinions. It would be necesary to submit the text as amended during the legislative procedure, and to allow a further six week period after it was otherwise ready for adoption. The blocking threshold could be similar to what would be required under paragraph 6 of the Protocol for the Commission to review its proposal.

  It is probable that this suggested "red card" procedure would in practice never be used. It could however be a kind of nuclear weapon in the hands of national parliaments, encouraging them to more active involvement throughout the Union legislative process.

Eileen Denza

Visiting Professor of Law, University College London

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