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The Treaty establishing a Constitution for Europe (TCE), commonly referred to as the European Constitution, is an international treaty intended to create a constitution for the European Union. It was signed in 2004 by representatives of the member states of the Union but was subject to ratification by all member states, which has not yet come to pass. Its main aims were to replace the overlapping set of existing treaties (see Treaties of the European Union) that comprise the Union's current constitution, to codify uniform human rights throughout the EU, and to streamline decision-making in what is now a 25-member organisation.

The TCE was signed by representatives of the member states on October 29, 2004, and was in the process of ratification by the member states until, in 2005, French (May 29) and Dutch (June 1) voters rejected the treaty in referenda. The failure of the constitution to win popular support in these countries caused other countries to postpone or halt their ratification procedures, and the Constitution now has a highly uncertain future. Had it been ratified, the treaty would have come into force on November 1, 2006. As of May 2006, Austria, Belgium, Cyprus, Estonia, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Slovakia, Slovenia and Spain had ratified the constitutional treaty.

History

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Main article: History of the European Constitution

Drafting

The TCE took as its starting point the codification of the EU's two primary existing treaties, the Treaty of Rome of 1957 and the Maastricht treaty of 1992, as modified by the treaties of Amsterdam (1997) and Nice (2001). The current debate on the future of Europe is often said to have begun with a speech made by German Foreign Minister Joschka Fischer in Berlin in 2000 *, calling for a debate on the finality of European integration.

The process started following the Laeken declaration in December 2001, when the European Convention was established to produce a draft of the Constitution, headed by former French President Valéry Giscard d'Estaing. Giscard d'Estaing told the convention members that their countrymen would one day "build statues of you on horseback in the villages you all come from", a comment which provoked widespread derision, particularly when the unpopularity of the draft in Giscard's own country became clear. The "Draft Treaty establishing a Constitution for Europe" was published in July 2003. After protracted negotiations during which disputes arose over the proposed framework for qualified majority voting, the final text of the TCE was settled in June 2004.

Ratification

It was initially expected that almost all member states would ratify the TCE by a parliamentary or other high political process, which would be quite straightforward, given the support of all ruling governments. Indeed, the number of EU countries that approved the treaty by a parliamentary vote now forms a majority. However, unanimity is required before the TCE can come into force.

The first country to attempt a test of public opinion in a popular referendum was Spain and at that stage the campaign was framed simply as one of support for the European project, without much controversy about the particular form or content of the TCE. The TCE was approved in the referendum vote.

In the United Kingdom, however, Prime Minister Tony Blair unexpectedly promised a referendum in order to undercut opposition from the Conservative and UK Independence parties and to avoid division amongst his own supporters. It was widely recognised that the outcome of a United Kingdom referendum was likely to be a no vote. Also, the promise of a British referendum put pressure on French President Chirac, who also then promised a referendum in France.

Post-rejection

The rejection of the constitution in the referenda in France and the Netherlands, made the TCE's future and the implementation of its provisions highly uncertain, provoking a crisis of confidence in the project which has resulted, at least initially, in a degree of strategic paralysis. However, despite the enlargement of the Union to 25 states, it has continued to function without the TCE, the reforms agreed in the Treaty of Nice being particularly important in this respect. A long-planned referendum in Luxembourg went ahead after the defeats in the Netherlands and France, but even there the majority in favour of TCE was unexpectedly narrow. No other country has pursued plans for a referendum, including the United Kingdom, it being considered increasingly unlikely that such referenda could secure support for the TCE in the present political climate.

In France, rejection was considered a humiliation for president Jacques Chirac. The TCE was rejected both by right-wing proponents of national sovereignty, such as Charles Pasqua and Philippe de Villiers, and by the anti-globalization movement, gathered around Socialist Party MP Laurent Fabius, the Greens, the Communist Party, the Revolutionary Communist League and the Workers' Struggle party. The Socialist party split itself between Laurent Fabius and François Hollande.

British Prime Minister Tony Blair initially supported the TCE and said he would campaign for its ratification in any British referendum. But after its rejection by the voters of France and the Netherlands, he complained in a speech in Oxford in February 2006 that "We locked ourselves in a room at the top of the tower and debated things no ordinary citizen could understand. And yet I remind you the Constitution was launched under the title of 'Bringing Europe closer to its citizens'". He went on: "The evening of the French result, I remember being in Italy with friends, and someone saying, in despair at the vote: 'What's wrong with them?', meaning those who voted 'no'. I said, 'I'm afraid the question is: 'What's wrong with us?', meaning 'us' the collective political leadership of Europe."

Debate about future possibilities for the Constitution

The TCE's rejection by France and the Netherlands sent shock waves through the European establishment since these countries had been regarded as committed members of the European project. The failure of the TCE to win popular support in those countries forced a re-examination of the constitutional question.

Four options present themselves. One is to do nothing for the time being in order to allow the dust to settle: this seems to be the position favoured by the United Kingdom and Germany. A second is to attempt to persuade opponents to accept the TCE in its existing, or substantially in its existing form: this appeared to be the ambition of Austria during its presidency of the Union, but it was persuaded that this was unrealistic. Another is to re-draft the TCE comprehensively so as to make it more palatable: however, there presently appears to be no desire in any country to start from scratch. Finally, French president Jacques Chirac has proposed German Chancellor Angela Merkel to "cut it piece by piece", in other words, to bring in parts only of the existing draft, so as to make the document more digestible and the process less controversial, but Merkel apparently thought it better to wait until 2007. In June 2006, Italian leader Romano Prodi said that he believed the treaty would be significantly revised, but that it should not take place until after the French presidential election, 2007 .

Existing, newly codified and strengthened provisions

Functioning of the Union

Main articles: Institutions of the European Union, European symbols
Institutional structure
Under the TCE, the Council of the European Union would have been formally renamed the 'Council of Ministers', which is already its informal title. The "General Affairs Council" would have been formally split from the "Foreign Affairs Council", which had informally held meetings separately since June 2002.

The TCE includes a flag, an anthem and a motto, which had previously not had treaty recognition, although none of them are new.

Conferral, subsidiarity, proportionality
The TCE would have reiterated several key principles of how the Union functions:

  • the principle of conferral - that all EU competences are conferred on it voluntarily by member states;
  • the principle of subsidiarity - that governmental decisions should be taken as close to the people as possible while still remaining effective;
  • the principle of proportionality - that the EU may only act to exactly the extent that is needed to achieve its objectives;
  • the primacy of EU law - in areas where member states have made legally binding agreements at EU level, they may not then pass national laws incompatible with those EU laws.

The TCE would have specified that the EU is a union of member states, and that all its competences (areas of responsibility) are voluntarily conferred on it by its member states according to the principle of conferral. The EU would have no competences by right, and thus any areas of policy not explicitly specified in the Constitution would have remained the domain of the sovereign member states (notwithstanding the ‘flexibility clause' – see below). Critics, however, say that the area of competences is so large as to make the exceptions less significant than the competences.

According to the TCE, the EU may act (i.e. make laws) only where its member states agree unanimously that actions by individual countries would be insufficient. This is the principle of subsidiarity, and is based on the legal and political principle that governmental decisions should be taken as close to the people as possible while still remaining effective. It is a main argument against claims that Europe limits national sovereignty but critics say that it is a principle to which lip service only is paid, and, in practice, the reach of the EU has been increasingly ambitious.

De jure, in all areas, the EU may act only to exactly the extent that is needed to achieve its objectives (the principle of proportionality).

Primacy of Union law
Amongst European countries, EU law has primacy over the laws of member states since 1964 in the areas where member states allow it to legislate. National law which is incompatible with an agreement already made at European level is deemed to be 'disapplied' when questions arise in courts. This controversial and fundamental principle of European Community law was first recognised in the case of Costa v ENEL in 1964, involving an Italian man refusing to pay his gas bill of 1925 Lira (€1).

Mutual values of the Union's member states
As stated in Treaty establishing a Constitution for Europe: Part I#Article I-1: Establishment of the Union and Treaty establishing a Constitution for Europe: Part I#Article I-2: The Union.27s values, the Union is open to all European States that respect the member states' common values, namely:

Member states also declare that the following principles prevail in their society:

Some of these provisions are codified for the first time in the TCE.

Aims of the Union
The aims of the EU, according to the TCE, are made explicit (Treaty establishing a Constitution for Europe: Part I#Article I-3: The Union.27s objectives):

In its relations with the wider world the Union's objectives are:

  • to uphold and promote its values and interests
  • to contribute to peace, security, the sustainable development of the Earth
  • solidarity and mutual respect among people
  • free and fair trade
  • eradication of poverty and the protection of human rights, in particular the rights of the child
  • strict observance and development of international law, including respect for the principles of the United Nations Charter.

Scope of the Union

Competences
The EU has six exclusive competences, policy areas in which member states have agreed that they should act exclusively through the EU and not legislate at a national level. The list remains unchanged from the previous treaties:

  • customs union;
  • those competition rules that govern the internal market;
  • eurozone monetary policy;
  • conservation of marine biological resources (the Common Fisheries Policy);
  • common commercial policy;
  • the conclusion of certain limited international agreements.

There are a number of shared competences. These are areas in which member states agree to act individually only where they have not already acted through the EU, or where the EU has ceased to act (though there are a few areas where member states may act both nationally and through the EU if they wish). Three new competences have been added to those in previous treaties (see below).

There are a number of areas where the EU may take only supporting, coordinating or complementary action. In these areas, member states do not confer any competences on the Union, but they agree to act through the Union in order to support their work at national level. Again, three new competences have been added to those from previous treaties (see below).

Flexibility clause
The TCE's flexibility clause allows the EU to act in areas not made explicit in the TCE, but only:

  • if all member states agree;
  • with the consent of the European Parliament; and
  • where this is necessary to achieve an agreed objective under the TCE.

This clause has been present in EU law since the original Treaty of Rome, which established the EEC in 1958.

Common foreign and security policy
The EU is charged with defining and implementing a common foreign and security policy in due time. The wording of this article is taken from the existing Treaty on European Union.

New provisions

Scope of the Union

Legal personality
The European Union for the first time has legal personality under the TCE. This means that it is able to represent itself as a single body in certain circumstances under international law. Most significantly, it is able to sign treaties as a single body where all its member states agree.

New competences
The TCE would have conferred upon the EU as new 'shared competences' the areas of territorial cohesion, energy, and space. These are areas where the EU may act alongside its individual member states. The EU has conferred upon it as new areas of 'supporting, coordinating or complementary action' the areas of tourism, sport, and administrative co-operation.

Criminal justice proceedings
Member states would have continued to co-operate in some areas of criminal judicial proceedings where they agree to do so, as at present. Under the TCE, seven new areas of co-operation would have been added:

Solidarity clause
The new solidarity clause of the TCE specifies that any member state which falls victim to a terrorist attack or other disaster will receive assistance from other member states, if it requests it. The type of assistance to be offered is not specified. Instead, the arrangements will be decided by the Council of Ministers should the situation arise.

European Public Prosecutor
Provision exists for the creation of a European Public Prosecutor's Office, if all member states agree to it and if the European Parliament gives its consent.

Charter of Fundamental Rights of the European Union
The TCE includes a copy of the Charter already agreed to by all EU member states. This is included in the Constitution so that EU institutions themselves are obliged to conform to the same standards of fundamental rights. At the time of the Charter's original agreement, the British Government said that it did not have binding effect. Incorporation into TCE would have put its importance beyond doubt.

Simplification

Simplified jargon and legal instruments
The TCE makes an effort to simplify jargon and reduce the number of EU legal instruments (ways in which EU countries may act). However, it is a long document couched in obscure and technical terms, which proved unpopular when presented (for example) to French voters in their referendum on the TCE.

The TCE unifies legal instruments across areas of policy (referred to as pillars of the European Union in previous treaties). Specifically:

  • 'European Regulations' (of the Community pillar) and 'Decisions' (of the Police and Judicial Co-operation in Criminal Matters (PJC) pillar) both become referred to as European laws.
  • 'European Directives' (of the Community pillar) and 'Framework Decisions' (of the PJC pillar) both become referred to as European framework laws'.
  • 'Conventions' (of the PJC pillar) are done away with, replaced in every case by either European laws or European framework laws.
  • 'Joint actions' and 'Common positions' (of what is now the Common Foreign and Security Policy Pillar) are both replaced by Decisions.

Position of Union Minister for Foreign Affairs
Under the TCE, the present role of High Representative for the Common Foreign and Security Policy would be amalgamated with the role of the Commissioner for External Relations. This would create a new Union Minister for Foreign Affairs who would also be a Vice President of the Commission. This individual would be responsible for co-ordinating foreign policy across the Union, representing the EU abroad in areas where member states agree to speak with one voice.

Functioning of the institutions

Qualified majority voting
More day-to-day decisions in the Council of Ministers would be to be taken by qualified majority voting, requiring a 55% majority of member states representing a 65% majority of citizens. (The 55% is raised to 72% when the Council acts on its own initiative rather than on a legislative proposal from the Commission or the Union Minister for Foreign Affairs.) The unanimous agreement of all member states would only be required for decisions on more sensitive issues, such as tax, social security, foreign policy and defence.

President of the European Council
The six-month rotating Presidency of the European Council would switch to a chair chosen by the heads of government, in office for 2½ years and renewable once. The role itself would remain administrative and non-executive, but rather than the Presidency being held by a member state as at present, it would be held by an individual elected by and accountable to the Council.

President of the Council of Ministers
The six-month rotating Presidency of the Council of Ministers, which currently coincides with the Presidency of the European Council, would be changed to an 18-month rotating Presidency shared by a trio of member countries, in an attempt to provide more continuity. The exception would be the Council's Foreign Affairs configuration, which would be chaired by the newly-created Union Minister for Foreign Affairs.

Smaller Commission
The Commission would be reduced in size from the year 2014. There would be fewer Commissioners, with member states taking it in turn to nominate Commissioners two times out of three.

Parliamentary power and transparency

  • President of the Commission - the candidate for President of the European Commission would be proposed by the European Council, after consultation with MEPs, and would be elected by the European Parliament. Parliament would have the final say.
  • Parliament as co-legislature - the European Parliament would acquire equal legislative power under the codecision procedure with the Council in virtually all areas of policy. Previously, it had this power in most cases but not all.
  • Meeting in public - the Council of Ministers would be required to meet in public when debating all new laws. Currently, it meets in public only for texts covered under the Codecision procedure.
  • Budget - the final say over the EU's annual budget would be given to the European Parliament. Agricultural spending would no longer be ring-fenced, and would be brought under the Parliament's control.
  • Role of national parliaments - Member states' national parliaments would be given a new role in scrutinising proposed EU laws, and would be entitled to object if they feel a proposal oversteps the boundary of the Union's agreed areas of responsibility. If the Commission wishes to ignore such an objection, it would be forced to submit an explanation to the parliament concerned and to the Council of Ministers.
  • Popular mandate - the Commission would be invited to consider any proposal "on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Constitution" which has the support of one million citizens. The mechanism by which this would be put into practice has yet to be agreed. (See Treaty establishing a Constitution for Europe: Part I#Article I-46: The principle of representative democracy for details.)

Further integration, amendment and withdrawal

Enhanced co-operation
There would be a tightening of existing rules for 'enhanced cooperation', where some member states would have chosen to act together more closely and others not. A minimum of one third of member states would now be forced to participate in any enhanced cooperation, and the agreement of the European Parliament is needed. The option for enhanced cooperation would also be widened to all areas of agreed EU policy.

Treaty revisions
Previously, alteration of treaties was decided by unanimous agreement of the European Council in private meeting. Proponents of the TCE claim that any amendments to the Constitutional treaty will involve the convening of a new Convention, similar to that chaired by Valéry Giscard d'Estaing in drafting the TCE. This process may be bypassed if the European Parliament agrees, in which case, the final say on adopting proposals will rest with the European Council, who must agree unanimously. However, small revisions (switching from unanimity voting to qualified majority voting in specific policy areas) can be made by the European Council through the so-called 'Passerelle Clause' (Treaty establishing a Constitution for Europe: Part IV - General and Final Provisions#Article IV-444: Simplified revision procedure) if every member state agrees.

Withdrawal clause
A new clause in the TCE allows for the withdrawal of any member state without renegotiation of the TCE or violation of treaty commitments (clause I-60). Under this clause, when a country notifies the Council of its intent to withdraw, a settlement is agreed in the Council with the consent of Parliament. If negotiations are not agreed within two years, the country leaves anyway. The process described is a formalisation of the process which Greenland used to leave the EC in 1985.

Points of contention

The TCE's attempt to codify all previous treaties increased its length and complexity tremendously and aroused deep suspicions of its effects among holders of widely differing European points of view. Eurosceptics (particularly in the United Kingdom) saw it as entrenching a European superstate, whilst socialists (particularly in France) alleged that it is a sort of neoliberal Washington consensus for Europe. It was also criticised for confusing constitutional and structural questions with questions of policy which would not usually be contained in a constitutional document (although they were contained in the various treaties which preceded it). Opponents to neoliberalism maintain their initial viewpoint, in favour of European integration, but against antisocial policies (it may be compared to the November 2005 Mar del Plata Summit of the Americas and to its opposition to the Free Trade Area of the Americas). Thus, the opposition between proponents and opponents of the TCE is both a "national sovereignty vs. European integration" debate and a "neoliberal vs. social policies" debate.

Length and complexity

Critics of the TCE point out that, compared to some existing national constitutions (such as the 4,600-word United States Constitution), it is very long, at over 60,000 words in its English version, including declarations and protocols. It is also written in technical legal language which has proved difficult even for specialists to understand, and highly inaccessible to the general public.

Proponents say that the document nevertheless remains considerably shorter and less complex than the existing set of treaties that it consolidates, but even the drafters of the CT have suggested that they were wrong to attempt, at the same time and in one document, both construction of a constitution and consolidation of all previous treaties, regardless of the nature of their provisions. Had they not done so, the TCE could have been much shorter, simpler and easier to grasp. Defenders of the length of the document say it is not an overarching general constitution, but a development of the previous treaties. Proponents also note that it is not vastly larger than some existing national constitutions, for example the Constitution of Sweden is over 43,000 words long.

Qualified majority voting

Qualified majority voting is extended to an additional 26 decision-making areas that had previously required unanimity. Opponents of the TCE argue that this involves a loss of sovereignty and decision-making power for individual countries. Defenders argue that these provisions only apply in the areas where member states have agreed it should and not otherwise; that it was necessary to prevent decision-making from grinding to a halt in the enlarged Union. (In the past, there have been cases when it appeared that "veto trading" was being used tactically rather than for issues of principle.) Further, the "qualified majority voting" mechanism is structured such that a blocking minority is not difficult to achieve for matters of substance.

Union law and national law

Critics sometimes claim that it is unacceptable for the TCE to enshrine European laws as taking precedence over national laws, because this is an erosion of national sovereignty.

Defenders say it has always been the case that EU law supersedes national law. The TCE does not change this arrangement for either existing or future EU law. However, the question of whether the arrangement is considered acceptable in the first place is still an issue for debate.

With the widening of qualified majority voting also envisaged in the TCE, however, the issue of the primacy of EU law becomes more sensitive. This is because there is an increase in the number of areas in which laws can be passed by majority vote, and thus an increase in the number of areas where it is possible for an individual country to vote against a proposal (unsuccessfully) and subsequently find its national legislature to be bound it.

Trappings of statehood

It has been argued that the TCE introduces a number of elements that are traditionally the province of sovereign states: flag, motto, anthem. While these have no special legal status, this is something many see as a shift towards the future creation of a single European state, and the corresponding loss of national identity. Many eurosceptics oppose the TCE for this reason.

Defenders of the TCE argue that none of these elements are new, although their formal inclusion in a constitution is obviously new, and that many of them are also used by other international organisations. They also argue that key principles enshrined in the TCE, such as the principles of conferral and subsidiarity, reinforce the status of member states as cooperating sovereign nations.

It has likewise been argued that to call the document a 'Constitution' rather than a 'treaty' implies a change in the nature of the EU, from an association of cooperating countries to a single state or something approaching a state. In response, it has been pointed out that many international organisations, including the World Health Organisation, have constitutions, without implying that they are states. The World Health Organisation, however, is a "coordinating authority" rather than a source of higher law. From a legal point of view the TCE will still be a treaty between independent states.

Some people have said that it may be more appropriate to hold Europe Day on the original Council of Europe designated date of May 5, as opposed to the current EU and TCE-proposed May 9, the commemoration date of the end of the Second World War in Europe for much of formerly Soviet dominated eastern Europe - many of which are now EU member states. The western European equivalent, VE Day is on May 8. The choice of May 9 by the European Community in 1985 was because that was the day on which the Schuman declaration was made. Some eurosceptics have said that the Council of Europe day of May 5, celebrating the Council of Europe and its values of human rights, parliamentary democracy and the rule of law, would be more worth celebrating than the presentation of proposals about coal and steel by a French minister to the German government - symbolising as it does the founding of the Franco-German engine, a concept which many see as a mechanism for excluding others from EU decision making. (The symbols of the EU in the proposed constitution are listed in Article I-8 of the full document)

Lack of democracy

While the TCE does not give any more power to the European Commission, it has been argued that by failing to reduce the Commission's powers, it perpetuates the perceived democratic deficit of the European Union as a whole.

As Commissioners are nominated by member countries and approved by the European Parliament, rather than being directly elected by the people, it is argued that the Commission - essentially the executive of the Union - holds more power than it could in an optimally democratic system.

Although it remains the case that the Commission has no law-making power, and may only draft proposals for the consideration of directly elected representatives in Parliament and Council, there are several ways in which the Commission can bring pressure to bear on these two bodies nonetheless. It may, for instance, threaten to withdraw a legislative proposal (as in the debate on the Directive on the patentability of computer-implemented inventions on 23 September 2003). It may also require the Council of Ministers to reach unanimous agreement rather than majority approval if the Commission does not approve Parliament's proposed amendments during the codecision procedure.

Some of the TCE's new articles intended to enhance democracy are said by some to be unavailing. For instance, the obligation for the Commission to consider a petition by 1 million citizens only "invites" such a petition to be "considered"; it is open to the Commission to decide how to react, including ignoring the petition if it wishes. Detractors thus argues that this new provision is pointless.

In response, it has been argued that it would not be feasible in practice for the Commission to ignore a mandate from a million citizens. Opponents argue that the Commission is not a directly elected body and therefore have no electorate which could bring such pressure to bear against the will of Commissioners, but defenders further point out that MEPs, who are directly elected, have the power to scrutinise, censure and if necessary dismiss the Commission.

Drawing on parallels with UK civil service traditions, many in the UK would like to see the power to propose legislation removed from the Commission, and the Commission turned into a less politicised body along UK civil service lines. This is an alternative to other proposals to make the Commission "more democratic". The power to propose legislation would fall to the legislature, either the Council of Ministers, or the European Parliament, or both. This would remove one of the frequent charges of some quarters of the UK press - that of the Commission being "faceless unelected bureaucrats".

See also democratic deficit.

Secularism

There was a debate about whether to include a reference to Christianity in the TCE. The Roman Catholic Church and even Polish president Aleksander Kwaśniewski, who himself is an agnostic, advocated such a move to reflect Europe's Christian history, but France and some NGOs took a strongly secular stance. In the end, a compromise agreement included a reference in the Treaty establishing a Constitution for Europe: Preamble to "the cultural, religious and humanist inheritance of Europe".

Militarism

Treaty establishing a Constitution for Europe: Part I#Article I-41: Specific provisions relating to the common security and defence policy states that: "Member States shall undertake progressively to improve their military capabilities". It has been argued that this will prevent all partial disarming of any of the states and require them to increase military capabilities without taking into account the geopolitical situation, or the will of the people. The creation of a European weapon office may also lead to an increase of the worldwide arms race, according to some analyses.

Others point out that the same article limits any EU joint military action to "peace-keeping, conflict prevention and strengthening international security" based on UN principles. It is only under this framework that countries agree to develop their military capabilities.

Economic policy

Some commentators, especially within France, have expressed a fear that the proposed Constitution may force upon European countries a Neo-Liberal economic framework which will threaten the European social model. The principles of the "free movement of capital" (both inside the EU and with third countries), and of "free and undistorted competition", are stated several times, and it has been argued that they cover all areas, from health care to energy to transport. However, there are also concerns among commentators in Britain as well as Central and Eastern European countries that it enshrines too many socialist principles, such as central planning in the CAP, the rights of workers' unions, and the right to strike.

The European Central Bank remains independent of any democratic institution, and its only purpose is to fight inflation. This contrasts with other organisations, such as the Federal Reserve, which also has the goal of fighting unemployment.

It has also been argued that existing national constitutions do not fix economic policies inside the TCE itself: it is more common for elected governments to retain the power to decide on economic policy.

Human rights

Some opponents argue that since some fundamental human rights are not explicitly enumerated by the TCE's Charter of Fundamental Rights, they are not recognized by that charter.

In response, defenders point out that the charter does not affect the laws of EU member states, since all member states are already signatories to the European Convention on Human Rights.

Instead, the charter applies only to the EU institutions themselves. The EU's accession to the Convention is intended to solve the question of clash between two human rights bills, so that in actual fact the Constitution's charter would be construed in exactly the same way as the existing and binding Convention. There would thus be no change in legal position. *

Exclusions

In regions such as Catalonia, opposition to the TCE exists on the basis of language exclusion. The TCE does not recognize Catalan as a European language. The region, culture and language had been long suppressed in Spain, especially under Francisco Franco, and there is a strong sense of Catalan nationalism.

Ratification

The TCE was signed in a ceremony at Rome on October 29, 2004. Before it enters into force, however, it must be ratified by each member state. Ratification takes different forms in each country, depending on its traditions, constitutional arrangements, and political processes. In several member states, the head of state is also required to approve the TCE once it has been approved by parliament or referendum. The President of Germany has not yet done so, due to a pending legal challenge over the way ratification was handled without a referendum. Slovakia's president has also not yet approved the constitution.

Lithuania, Hungary, Slovenia, Italy, Greece, Slovakia, Austria, Germany, Latvia, Cyprus, Malta, Belgium and Estonia have already completed parliamentary ratification of the TCE. In addition, the European Parliament has also approved the treaty (in a symbolic vote).

Ten of the 25 member states have announced their intention to hold a referendum on the subject. In some cases, the result will be legally binding; in others it will be consultative (as was the case in the Netherlands). Four referenda have now taken place, resulting in Spain and Luxembourg ratifying the TCE, and its being rejected in both France and the Netherlands. While the referendum in the Netherlands was consultative only, the Dutch government has pledged that it will not ratify.

Since the French vote, some EU countries have confirmed their intention to abandon or postpone referenda on ratification, including the United Kingdom, where Foreign Secretary Jack Straw has said there is "no point" in planning a referendum following the decisions in France and the Netherlands Other countries have continued with ratification procedures, including Luxembourg, which approved the treaty in a referendum on 10 July 2005 [http://news.bbc.co.uk/1/hi/world/europe/4668527.stm.

On 15 September 2005, MEPs Johannes Voggenhuber of the Austrian Green Party and Andrew Duff of the Liberal Democrats suggested the following plan of action:

  • before the end of 2006, write a strongly reduced treaty containing only the non-controversial points (i.e., charter of fundamental rights, European referendum, the principle of "no law without parliament").
  • before the end of 2009, a new constitutional convention should decide on a new European Constitution, especially regarding the favoured social system and the Common Foreign and Security Policy.
  • together with the elections for European Parliament in 2009, a European referendum on the constitutional treaty should be called.

A resolution closely resembling this plan was passed by the European Parliament on 19 January 2006 by 385 in favour to 125 against.

Ratification of the TCE via referenda

Member State Date Result: % thus voting (of % turnout) Details
20 February, 2005: 76.7% (of 42.3%) Consultative referendum
29 May, 2005: 54.7% (of 69.3%) Referendum
1 June, 2005: 61.6% (of 62.8%) Consultative referendum
CancelledParliamentary ratification instead Referendum proposed
10 July, 2005: 56.5% (of 87.77%) Consultative referendum
Postponed indefinitely Referendum
Postponed indefinitely Referendum
Postponed indefinitely Referendum
Postponed indefinitely Referendum
Postponed indefinitely  Referendum

Parliamentary approval of the Treaty

European Parliament || 12 January, 2005 || . 500 to 137 in favour || n/a
Parliament Date Result Signature of head of state
11 November, 2004 . 84 to 4 in favour
20 December, 2004 . 322 to 12 in favour
1 February, 2005 . 79 to 4 in favour
6 April, 2005 . Lower house: 436 to 28 in favour.
. Upper house: 217 to 16 in favour
19 April, 2005 . 268 to 17 in favour.
11 May, 2005 . 116 to 27 in favour Pending
18 May, 2005 . Lower house: 319 to 19 in favour.
. Upper house: 225 to 6 in favour
25 May, 2005 . Lower house: 182 to 1 in favour.
. Upper house: 59 to 3 in favour
27 May, 2005 . Lower house: 569 to 23 in favour.
. Upper house: 66 to 3 in favour. 		Pending
2 June, 2005 . 71 to 5 in favour
30 June, 2005 . 30 to 19 in favour
6 July, 2005 . 65 to 0 in favour
25 October, 2005 . 57 to 1 in favour
8 February 2006 . Lower house: 118 to 18 in favour.
. Upper house: 54 to 9 in favour.
. Brussels Regional Parliament: 69 to 10 in favour.
. German Community Parliament: 21 to 2 in favor.
. Walloon Regional Parliament: ?? to ?? in favour.
. French Community Parliament: ?? to ?? in favour.
. Flemish Regional Parliament: 84 to 29 in favour.
(All regional governments also approved the TCE, fullfiling the requirements of the Belgian ratification procedure.) 		Pending
9 May, 2006 . 73 to 1 in favour. Pending
12 May, 2006
(Expected) 2006 		. First vote: 104 to 24 in favour.
Second vote: Not yet. 		 
Postponed indefinitely  
Postponed indefinitely  

Accession countries

The two countries due to join the European Union in 2007, Bulgaria and Romania, have already accepted the TCE by ratifying their accession treaties.

Parliament Date Result Signature of head of state
11 May, 2005. 231 to 1 in favour.
17 May, 2005. 434 to 0 in favour.

Quotes

  • "Our Constitution ... is called a democracy because power is in the hands not of a minority but of the greatest number." (Thucydides II, 37.) This was the first sentence of the preamble of the draft treaty establishing a constitution for Europe in the version of the European Convention. The Heads of State and Government deleted it during their Intergovernmental Conference.

External links and references

References

Links

  • Everyone's a Citizen Baby, writing A People’s EU Constitution – http://everyones-a-citizen-baby.org

European Constitution

Tractat pel qual s'establix una Constitució per a Europa | Smlouva o Ústavě pro Evropu | EU's forfatningstraktat | Vertrag über eine Verfassung für Europa | Eŭropa Konstitucio | Tratado por el que se establece una Constitución para Europa | Traité de Rome de 2004 | Samningur um stjórnarskrá fyrir Evrópu | Costituzione Europea | 欧州憲法 | 유럽 헌법 | Verdrag tot vaststelling van een Grondwet voor Europa | Traktaten om en forfatning for Europa | Konstytucja dla Europy | Constituição Europeia | Constituţia europeană | Zmluva o Ústave pre Európu | Sopimus Euroopan perustuslaista | Europeiska konstitutionen | 欧盟宪法

 

This article is licensed under the GNU Free Documentation License. It uses material from the "Treaty establishing a Constitution for Europe".

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