by Anthony Coughlan
THE BASIC choice put before citizens in the recent referendums on the EU constitution was whether to become citizens of an EU federal state run on extreme neo-liberal lines, obeying its laws and giving it loyal allegiance, or to remain citizens of their own independent nation state, where their rulers are democratically accountable to them?
The most important legal change the European constitution would be to replace the present European Union and Community, which still legally co-exist, with a new European Union in the constitutional form of a highly centralised supranational federation.
A post-constitution EU would not yet be a fully developed state. It would not yet have the power to impose taxes on its citizens or to force its constituent states to go to war against their will. But apart from these two powers, which the constitution's advocates are confident would come in time, this new EU would have all the powers and functions of a fully developed state.
Politicians in countries not holding referendums are more candid about this than where citizens have to vote on it.
Thus, for Belgium's Prime Minister, Guy Verhofstadt, the constitution is, "the capstone of a European federal state".
For Germany's Europe minister, Hans Martin Bury, it is, "the birth certificate of the United States of Europe".
Whereas British Foreign Minister, Jack Straw, has said the EU constitution is, "a mere tidying-up exercise".
Irish taoiseach, Bertie Ahern has described it as just a way to make an enlarged EU "easier to run".
But it would be ludicrous if the peoples of Europe were to consent to turn their countries into state-provinces of an EU federation, and themselves into real citizens of it, without their realising that that is what they are being asked to do.
There are five logical legal steps that would make us real citizens of an EU federation clearly set out in the Treaty Establishing a Constitution for Europe.
The first step would repeal the existing EU and EC treaties, thereby abolishing the existing European Union and European Community.
"This Treaty establishing a Constitution for Europe shall repeal the treaty establishing the European Community, the Treaty on European Union and the acts and treaties which have supplemented and amended them."
The second would establish in place of the existing EU and EC what would be constitutionally, legally and politically quite a new European Union, based like any state upon its own constitution.
Art.I-1 provides that:
"Reflecting the will of the citizens and States of Europe to build a common future, this Constitution establishes the European Union."
Clearly this would legally be a different EU from the present one, although it would keep the same name. Simultaneously Art.IV-438 of the constitution would transfer the existing Community laws and institutions from the present EU to the new one.
The next step would assert the primacy of this new EU's constitution and laws over the national constitutions and laws of its member states. Art.I-6 provides that:
"The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the member states."
In addition, Art.I-1 of the constitution would give the new union a coordinating federal-style power and authority over all the policies by which the member states aim to achieve the objectives they have in common. These objectives are set out in Art.I-3 and are about as wide and all-encompassing as could be, and include promoting the values and interests of the new Union.
Art.I-1 states that:
"The Union shall coordinate the policies by which the Member States aim to achieve these objectives (i.e. the objectives they have in common) and shall exercise on a community basis the competences they confer on it."
Convention chairman, V. Giscard d'Estaing, recently explained what exercising EU powers "on a Community basis" means. He said:
"It wasn't worth creating a negative commotion with the British. I rewrote my text with the word federal replaced by communautaire, ("on a community basis") which means exactly the same thing."
Step four would give this new Union what Art.1-7 terms "a legal personality", so that it might conduct itself as a state in the international community of states, sign treaties with other states, have a president, foreign minister, public prosecutor and the like.
Other personality traits include its own currency and state symbols, flag, anthem and annual public holiday, just like other states.
And finally, step five would make us real citizens of this new EU federation, established by the previous four steps, which would become our new legal sovereign and ruler. This is outlined clearly in Art.I-10, which says:
"Every national of a Member State shall be a citizen of the Union. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Constitution."
The EU at present does not have real citizens or its own legal personality. The post-constitution EU however would have both.
The pretence that we are already EU citizens in some vague honorary sense serves to deceive people into thinking that the proposed treaty-cum-constitution would make no real change to their legal-political status, whereas it would change it fundamentally.
For the Irish people to ratify the EU constitution and transform ourselves thereby into real citizens of an EU federation, amending the Irish constitution to permit this would, in truth, be the end to an old song. It would be the formal abandonment of the project begun in December 1921 - the endeavour to establish an independent democratic Irish state within which the Irish people would decide their own laws and how their state should interact with the other members of the international community of states.
Supporters of the Treaty Establishing a Constitution for Europe contend that, in the new EU it would establish, member states would still have primacy of authority because it is they that would have conferred powers on the Union, under the so-called "principle of conferral".
They forget that this is how classical federal states have historically developed, by smaller political units coming together and transferring powers to a superior. Nineteenth century Germany, the USA, Canada and Australia are all examples.
This process did not occur all at once in any of these cases. It took place over decades, just as with the EU.
Where else after all could Brussels get its powers if not from its member states, just as the federal states whose capitals were 19th century Berlin, or today's Washington, Ottawa and Canberra did before it?
In the latter cases however, the political units that came together to form federations belonging wholly or mainly to one nation or people, whose members shared a common language, culture and history. That gave these states a popular democratic basis, and with it a natural legitimacy and authority. This contrasts deeply with the EU's attempt to establish a 'new country called Europe', organised in a constitutional federation, when there is no such thing as a European people or 'demos' that could give a stable democratic basis to such an EU state.
If a federal EU were to be established on the basis of the proposed constitution, its lack of democracy and public acceptability would inevitably blow it apart.
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Copyright © 2005 Anthony Coughlan