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Key Developments
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February 2002: Convention starts work
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June 2003: Draft submitted to EU Thessaloniki Summit
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December 2003: Brussels summit fails to agree final text
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May 2004: EU enlarges to 25
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June 2004: Text agreed
A constitution for the European Union was agreed in Brussels on 18 June 2004. The constitution brings together for the first time the many treaties and agreements on which the EU is based. It defines the powers of the EU, stating where it can and cannot act and where the member states retain their right of veto. It also defines the role of the EU institutions.
Given below is a brief enumeration of the EU Constitution under various heads.
President
The constitution says that the European Council, i.e., the heads of state or government of the member states, “shall elect its President, by qualified majority, for a term of two and a half years, renewable once.” The candidate will then have to be approved by the European Parliament. The President will “chair (the Council) and drive its work forward and ensure, at his level, the external representation of the Union.”
This is a new post created to maintain continuity and make the office of the Council President permanent. At present it rotates among member states every six months, so the element of continuity is not there. The incumbent President will therefore be a permanent figure with a much greater say. His post will also have much greater political weightage than before. But since he or she will be under the purview of the Council, the powers of the post would be by no means unlimited.
European Parliament
The European Parliament is to have powers of “codecision” with the Council of Ministers for those policies requiring a decision by qualified majority.
The idea behind this is to strengthen democracy as the parliament is the only place where the voters have a say. European Parliament has over the years acquired real power and the constitution confirms this. If the parliament disagrees on any relevant legislation, it will not pass.
Foreign Minister
“The European Council, deciding by qualified majority, with the agreement of the president of the Commission, shall appoint the Union Minister of Foreign Affairs... [who] shall conduct the Union’s common foreign and security policy.”
Despite sounding lofty, the minister’s role is limited to issues on which there has been an agreement. A ready reference is the Middle- East roadmap on which members have come to a consensus. The post will be more active in negotiating trade and aid agreements as it will amalgamate the present roles of the external affairs member of the commission with that of the High Representative on foreign policy .The EU has also introduced its diplomatic service which will eventually translate in strengthening the Minister’s role.
Powers of the EU
This principle is established with the view that the Union derives its powers from the member states. The Union is considered to be subsidiary to member states and can act only in those areas where “the objectives of the intended action cannot be sufficiently achieved by the member states but can rather... be better achieved at Union level.”
The idea is to prevent the Union’s excessive involvement on the rights of member states except in areas where the members have themselves conceded it. Since the EU can act in a large number of areas, critics are of the opinion that this clause is toothless. But supporters hold it to be an important constitutional principle as it will curb the powers of the Union.
Division of Responsibilities
The EU has the right to legislate over external trade and customs policy, areas of domestic law, which include environment, health and safety at workplace, the internal market, agriculture and fisheries, and the monetary policy of countries in the eurozone.
Apart from these, the constitution will also extend its rights into some new areas, such as justice policy dealing especially with asylum and immigration. It does away with the old structure of division of responsibilities whereby policies were divided under the EU and inter-governmental arrangements.
It suggests an enhanced role for the EU in more aspects of life. The EU will have a shared competence in some areas, whereas in others it will either play an exclusive role or a mere supporting role, depending on the responsibility.
Decision Making
With regard to decision making, voting is conducted on the basis of a qualified majority. This is done to prevent any inaction because getting the support of all the 25 members on any issue is otherwise difficult. But the veto provision for member states on issues of foreign policy, defence and taxation remains. In effect to this, there is something called an “emergency brake” in which a country outvoted on an issue can take its case to the European Council, though it can still be outvoted there. On decisions requiring majority voting the European Parliament will have an equal say.
Qualified Majority Voting
“A qualified majority shall be defined as at least 55 percent of the members of the Council, comprising at least 15 of them and representing Member States comprising at least 65 percent of the population of the Union.”
It replaces the old system where countries got a specific number of votes. This method is supposed to represent a fair balance between large and small countries as there were objections that Spain and Poland had too many votes. Though it will lead to complex permutations, the final results of the “double majority” should command more general respect.
The proposed procedure under which the European Council could have altered an area of policy to QMV has been eliminated through an amendment. Now such proposals need not be placed before the national parliaments and on objection, the measure will be defeated.
Foreign and Defence Policy
“The Union shall have competence to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.”
It does not entail a thrusting of a common foreign or defence policy on member states. The states will keep their right to veto. Thus major international policies pertaining to Europe are not likely to be affected by this common policy. The aim, however, is to come to an agreement as often as possible.
Reforms of the Commission
The Commission, the body which proposes and executes EU laws, “will consist of one national from each Member State” for its first term of five years which started in November 2004. After that it will be slimmed down to “a number of members corresponding to two thirds of the number of Member States, unless the European Council, acting unanimously, decides to alter this figure.”
To assuage the fears of the member states that they will be ignored, as a transnational measure each member state has a Commissioner (only one each) since November. The aim after five years is to downsize the Commission from 25 to 18 (or one or two more if there are more member states by then). The perception behind this is that the Commission is too big with not enough jobs.
Charter of Fundamental Rights
It sets out “rights, freedoms and principles.” The charter includes the fundamental rights for EU citizens, such as non-discrimination, right to life and liberty, down to the right to strike.
The wide ranging Charter needs to be tested in the courts before its exact status is established.
Legal Supremacy
The EU will for the first time have a “legal personality” and its laws will supersede those of national parliaments: “The Constitution and law adopted by the Union institutions in exercising competence conferred upon it by the Constitution shall have primacy over the law of the member states.”
This is a status quo provision. In areas where the EU is allowed to legislate its law will prevail over the national law and where it does not legislate, the national law prevails.
By having a “legal personality”, the EU as an organisation will be able to enter into international agreements. Its status in world diplomacy is also increased due to this.
Leaving the EU
A new procedure describes how a member would leave the EU: “A member state which decides to withdraw shall notify the Council of its intention... The Union shall negotiate and conclude an agreement with that state, setting out the arrangements for its withdrawal.”
The provision for leaving the Union for any member state by simply repealing its own legislation was always there. Now there is a formal procedure designed to show that the EU is a voluntary association. However, a departing member would have to agree to the terms of the Union which would definitely not be easy. This clause is expected to be of little practical use.
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