How the new European Union Constitution will allocate power between the EU and its member states - a textual analysis.

• Author: Sieberson, Stephen C.

ABSTRACT

The new European Union Constitution, if ratified by the EU's Member States, will replace the existing EC Treaty and Treaty on European Union. The Author analyzes the text of the Constitution to determine how it balances the functions and powers of the EU institutions with the role of the Member State governments within the EU system. Topic areas include the characteristics of the EU, the Union's values and objectives, and the substantive areas of EU activity. In each area the Constitution reveals a determined effort by its drafters to emphasize the corresponding characteristics, values, and powers of the Member States. The Author's conclusion is that the treaties' delicate balance between the competences of the EU and the states has been attentively maintained in the Constitution.

TABLE OF CONTENTS

1. INTRODUCTION AND THEORIES ON THE STRUCTURE OF THE EUROPEAN UNION II. ANALYZING THE CONSTITUTION A. Characteristics of the EU 1. Basic State-Like Attributes 2. Mandate and Independence of the EU Institutions B. Values and Objectives 1. Union Values 2. Union Objectives 3. Protection of Rights of Individuals C. Relationship Between EU and Member State Competences 1. Principles Underlying EU Action 2. How the EU Exercises Its Competence 3. Subject Matters for EU Activity D. Five Remarkable Provisions III. CONCLUSION: A FINAL BALANCING A. Emphasis on the Union B. Emphasis on the Member States C. Holding the Middle Ground I. INTRODUCTION AND THEORIES ON THE STRUCTURE OF THE EUROPEAN UNION

   The Member States of the European Union (EU or Union) are now considering the ratification of a constitution (the Constitution) approved by the Intergovernmental Conference in June 2004. (1) The new instrument is intended to replace the two treaties currently serving as the EU's primary constituent documents, the Treaty Establishing the European Economic Community (EC Treaty) and the Treaty on European Union (TEU). (2)

   The focus of this Article is to review the Constitution to determine how it will distribute power within the EU. The balance of power has been the subject of debate throughout the EU's history, a debate stimulated by questions such as: What institutions and procedures are necessary to ensure that the EU reaches its potential? In an expanding Union, how should the common market be managed? At what level of government should social policy be determined? How should foreign affairs and defense be conducted? How much integration is necessary?

   At the heart of the discussion lies the relationship between the Union and its Member States, and in particular, where the institutional power should reside. The discourse has revealed serious differences of opinion as to how the EU should be organized and how it should operate, because the structure and competences granted to the Union will necessarily tip the scales toward centralized authority in Brussels or away from the center and toward the national governments. The debate has produced three principal schools of thought regarding the EU: (3)

   1. Intergovernmental. Many politicians and observers believe that the European Union is and must remain a treaty-based organization, with the Member States retaining their essential sovereignty as nations. The Union's powers must be carefully contained, and ultimate authority must remain at the national level. The EU must function as an intergovernmental organization (IGO), albeit a highly sophisticated one.

   2. Federal. European federalists insist that the EU is evolving from its intergovernmental roots into a federation. For the Union to prosper and assume its rightful place as a major economic and political force in the world, further centralization is necessary, and the process of integration must inevitably create a "United States of Europe." National and cultural identity may be maintained, but substantial or ultimate political authority must shift to the Union. For the sake of efficiency and fairness, EU institutions must operate on majoritarian principles.

   3. Hybrid or Confederal. A centrist position is espoused by those who assert that the EU has moved well beyond the IGO model but that it need not aspire to become a federation. Possessing both interstate and intrastate elements, the Union exists as a unique hybrid, a confederation of sorts. (4) The EU is successful at consolidating activities such as the internal market, where centralization is advantageous. However, in many areas it makes more sense to recognize the diversity of Europe and reserve authority to the separate Member States.

   Although form often follows function in architecture, the very ability of the EU to function depends upon the form it is given. Of critical importance are the competences granted to its institutions and the interface between those institutions and the Member State governments. The new Constitution is the culmination of the most recent debates on these matters. (5) This Article will analyze the text of the Constitution to determine how it articulates the newest version of allocation of power between the Union and its members.

2. ANALYZING THE CONSTITUTION

   The Constitution is divided into four parts. Part I, which is untitled, broadly defines the Union, its competences, and its institutions. Part II is captioned "The Charter of Fundamental Rights of the Union," and it sets forth the Charter that had previously been adopted as a "solemn proclamation" of the EU but was not included in the treaties. (6) Part III, the longest section, is titled "The Policies and Functioning of the Union." It incorporates much of the EC Treaty and TEU, with considerable detail on internal market, social, economic, and monetary policy; external action; and the activities of the EU institutions. Part IV contains "General and Final Provisions" and is followed by various protocols and declarations.

   This analysis of the Constitution is organized into categories that are intended to illustrate critical aspects of the relationship between the Union and its Member States. First, certain key characteristics of the EU are examined, including its state-like attributes and the mandate and independence of its institutions. Second, the stated values and objectives of the Union are described, with special attention paid to protection of human rights. Third, there is a review of provisions that assign substantive authority to the EU based on a number of stated or implied principles underlying Union action. Finally, the analysis focuses on five exceptional articles that underscore the Union's continuing commitment to Member State sovereignty.

   It should be noted that this Article is focused primarily on the textual content of the Constitution. It is beyond the scope of this analysis to conduct a detailed comparison of the Constitution's provisions with their counterparts in the treaties. Likewise, it will be left to others to evaluate the legislative history of the document. (7) Comments in this Article on the substantive merits of the Constitution are for illustrative purposes only and are not meant to be comprehensive.

   The text of this Article will be set out in point/counterpoint fashion. In general, matters of EU authority will be described first, followed by contrasting comments related to the power reserved to the Member States. For illustrative purposes, descriptions of EU competence will be given in Roman type, and their counterparts printed in italics.

   Comment on unanimous voting. The Constitution prescribes that many decisions at the EU level will be adopted only by unanimous vote, also described as consensus or common accord, either of the European Council or Council of Ministers. (8) Each of these instances affords each Member State the opportunity to block a decision, (9) and the veto represents a substantial reservation of power to the Member States. To avoid repetition, the implications of unanimous voting will not be mentioned in each instance that this Article refers to such a requirement in the Constitution.

   1. Characteristics of the EU

      The European Union has been endowed with a number of characteristics that demonstrate its autonomy as a governmental entity. These include certain attributes that resemble those of modern nation-states. In addition, the EU is composed of official bodies that are similar to those found in a typical national government. However, a closer look reveals a variety of carefully crafted limitations on the Union and its institutions.

      1. Basic State-Like Attributes

         Independent existence; integrity. The European Union is an entity created by, but existing apart from, the Member States. It is established by the Constitution, (10) which declares that "[t]he Union shall have legal personality." (11) Within the territory of the Member States, the EU is allowed "such privileges and immunities as are necessary for the performance of its tasks." (12) The Union is also granted "the most extensive legal capacity accorded to legal persons" under the laws of the states, and in particular, the rights to own property and to be a party to legal proceedings. (13)

         The Constitution provides the EU with the typical symbols of nationhood such as a flag, an anthem, a motto, and an annual holiday, as well as a Union currency, the euro. (14)

         The EU is to consist of "an institutional framework" and a specific set of institutions (15) whose carefully delineated powers and responsibilities comprise a significant percentage of the Constitution's text. The institutions are empowered to create law for the Union in its variety of forms, and much of the EU's regulatory activity is to be carried out at the central, EU level. (16) The activities of the institutions are subject to review by a completely independent Ombudsman appointed by the European Parliament. (17)

         Like a nation-state, the EU is intended to be a permanent entity with its Constitution intended to be in place "for an unlimited period." (18) However, the Union's further expansion is also...