Global Policy Forum

Seeking Unity, Europe Drafts a Constitution


By Eliane Sciolino

New York Times
June 15, 2003

It will be much less than a United States of Europe. But it will be more than the distillation of five decades of treaties into one document. For 16 months, Europe's most important and exclusive club has struggled to draft its first constitution. The process has been awkward and unpredictable, ambitious and timid, as delegates from the 15 member nations of the European Union and the 10 that are to join next year fight to protect their countries' national interests even as they agree to cede bits of sovereignty.

Philadelphia it ain't.

The founding fathers came together in 1787 for a Constitutional Convention to forge a document that created a national identity and institutionalized the sovereignty of the American people in one nation-state. The 105 delegates who made up the Convention on the Future of Europe tried to do something much more modest: codifying common ground among long-established states that will give their union more of a logical structure — and perhaps more power — as they expand eastward. "Until now, Europe was mainly associated with a common market," Ana Palacio, Spain's foreign minister and a delegate representing her government, said in an interview. "Now Europe will be more and more a place of citizenship. Now people will associate Europe with a constitution." Indeed, one article in the draft constitution states, "Every national of a member state shall be a citizen of the union." When the union expands, that means a mega-Europe of 450 million citizens, larger than any population mass except for China and India, and an economy of more than $9 trillion, close to that of the United States.

The proposed constitution also states that European Union law will have primacy over that of member states. It simplifies voting rules and spells out areas like trade policy in which the union will have full authority and other areas to be shared with the member states, including justice, transportation and economic and social policy. It will also set up a new structure for an organization that was created for only 6 states and will soon have 25, with two permanent presidents, one foreign minister, a stronger administrative arm and a Parliament with expanded power to pass more legislation. But for many participants in the process, including Giuliano Amato, a former Italian prime minister and a constitutional law expert who is one of two vice presidents of the convention, the proposed constitution is lacking because it fails to create a common foreign and security policy.

"I'm not entirely satisfied," he said in an interview. "Too many member states are defending themselves instead of sharing power at the European level to make things better. It's each state beyond the constitution. That's why I'm not even sure we are entitled to call it a constitution." [On Friday, despite deep disagreements within the delegation, Valéry Giscard d'Estaing, the former French president who is the convention's president, told the final plenary session in Brussels that the convention had adopted a historic first draft. The forum rose for the union's anthem, Beethoven's "Ode to Joy," and toasted their endeavor with Champagne.]

With over 400 articles, the constitution is very much a work in progress. Mr. Giscard d'Estaing will present it to a summit meeting of the member heads of state in Greece next week. Then, in October, it will go into intergovernmental review, in which each member state has the right to demand changes. Each parliament — including those of next year's 10 newcomers — must ratify the document before it comes into force. Some countries, like Ireland and Denmark, will have national referendums — as required by their constitutions. Even the pope has weighed in, lobbying — thus far successfully — for a specific reference in the text to God and Europe's Christian heritage. After all, the union's debt to the "civilizations of Greece and Rome" and later "by the philosophical currents of the Enlightenment" are mentioned.

One of the main challenges to forming a more perfect European Union is one that the American founding fathers confronted: how to find a way for big states and small states to share power. France and other big states would like a strong president from a large country who would reflect their views, an idea that is anathema to the smaller states. Spain has vowed to fight to retain complex voting rules that give it power disproportionate to its population. (Spain has 27 votes in the union, only 2 fewer than Germany, which has more than twice its population.)

Britain, which is skeptical about creating anything that looks like a European state, is demanding the absolute right for any member nation to veto decisions on foreign policy and taxation. Sometimes the big-small divide is trumped by history. Germany, for example, is more inclined to create a federal structure that would more closely resemble a United States of Europe.

Another issue yet to be resolved is how to make the union more accountable to its citizens by opening the decision-making process to public scrutiny. "Right now, if my prime minister goes to Brussels and makes decisions behind closed doors, I as a parliamentarian cannot hold him to account because I only know the outcome, I don't know the process," said Gisela Stuart, a member of the British delegation and of the European Parliament. "It's the same with the ministers. They can tell me anything."

The new constitution will introduce a single foreign minister to give the union a single actor on the international stage. It will also create a permanent president, elected by member heads of state, who will serve up to a five-year term to replace an unwieldy system in which the presidency rotates among member states every six months. Already there is intense speculation that Joschka Fischer, the German foreign minister as well as a convention delegate, is eager for the job of European foreign minister, even though it will probably not be created before 2006. In recent weeks, he suddenly began to talk to Anglophone journalists in English, and friends in Brussels said that he had asked them where one might want to live there.

But there will continue to be two presidents indefinitely — one for the Council of the European Union, which consists of the heads of state of each member country, another for the European Commission, a kind of executive body that is more federal in nature and tends to take the smaller states more seriously. "You have an animal with two heads," said Mr. Amato, who favored a proposal to merge the two presidencies in 2015. "Can an animal with two heads survive for long?" Mr. Giscard d'Estaing answered yes. "We still have seven monarchies in the system," he said in an interview. "Some went through violent revolutionary uprisings, like France. Some were under the Communist rule for 50 years, 70 years. So if we try for an oversimplified system it cannot work."

The draft constitution clearly states that "member states shall actively and unreservedly support the union's common foreign and security policy in a spirit of loyalty and mutual solidarity" and shall "refrain from action contrary to the union's interests or likely to impair its effectiveness." But that was language picked up from previous treaties and did not prevent the union's deeply painful split on Iraq, which pitted countries like France and Germany against Spain and Britain. In a setback to those who wanted a more powerful union to help counterbalance the United States when it comes to issues like foreign policy, defense and taxation, each country — even Luxembourg, with a population of 440,000 — has the right to veto any decision on foreign policy and defense.

In one of the most ambitious expansions of the union's authority, the draft constitution also would create a European public prosecutor to combat terrorism and cross-border crimes like corruption, fraud and people-trafficking. It simplifies legislative and legal procedures and extends decision-making by majority vote, particularly in areas like justice, law enforcement, immigration, asylum, energy and the annual European Union budget.

The draft document also gives the union a "legal personality" that would allow it to sign international treaties. A solidarity clause will require member states to provide mutual assistance in case of terrorist attack. The constitution also explicitly bans slavery (which the original United States Constitution did not) and the death penalty (which was never banned in the American Constitution). There is even an exit clause so that a member state can secede from the union if it chooses. On defense matters, the constitution pledges enhanced "structured cooperation" for "more demanding tasks," but does not pledge military resources for common purposes. Not surprisingly, no effort was made to coax France and Britain to give up their seats as permanent members of the United Nations Security Council.

Underscoring just how important national differences remain, the constitution will be published in the union's 11 current official languages — 21 when the 10 new members are admitted next year. There was no agreement on what to call the new union once it has a constitution, so delegates deleted the space in the draft's preamble where a new name would have appeared. Even the inclusion of the dreaded word "federal" as a description of way the union would function was found to be objectionable, particularly by Britain. It was replaced by anodyne phrases like "united in an ever closer fashion."

"The reality is that you have different visions for Europe," Jean-Luc Dehaene, the former Belgian prime minister who is a convention vice president, said in an interview. "So never fight for words. Just because someone doesn't want to name the baby, you don't throw out the baby." Even in the best of circumstances, the constitution will not come into effect for years. So it will not solve the immediate problem of how to absorb the 10 new countries next year. With the expansion, the population of the European club will increase by 20 percent, but the average wealth per person will fall by about 13 percent because most of the newcomers are relatively poor.

That means that the new union, which started out as a club for the rich, will have to find ways to balance the interests of a country like Luxembourg, which has a per capita gross domestic product of nearly $43,000, with a country like Lithuania, which has a per capita G.D.P. of $3,200. The constitution also will not do away with the 80,000 pages of European Union laws and regulations that dictate what members can and cannot do in some of the biggest and smallest areas of life. The rules govern such things as how to make cars and cigarettes, how corporations carry out acquisitions, how high a budget deficit a country is allowed to have, who is a dentist, what preservatives can be used to make beer, how many hours a week people can work and when hunters can shoot small birds.

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FAIR USE NOTICE: This page contains copyrighted material the use of which has not been specifically authorized by the copyright owner. Global Policy Forum distributes this material without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. We believe this constitutes a fair use of any such copyrighted material as provided for in 17 U.S.C § 107. If you wish to use copyrighted material from this site for purposes of your own that go beyond fair use, you must obtain permission from the copyright owner.