Legal Eye: Life goes on without the Constitution
Why a new Constitution?
In a nutshell, to simplify governance and to give the EU a single legal personality. Currently, the EU is governed by a collection of treaties, some dating back more than 50 years. Additionally, each Treaty of Accession entered into by the Member States also governs the operation of the EU. The Constitution is intended to replace all of these treaties, thereby incorporating EU law into one document.
Business as usual?
For the most part, yes. The Treaty of the European Union and the various treaties of accession will continue to apply. Polish citizens will continue to "have the right to move and reside freely within the territory of the Member States" - as provided by Article 18 of the Treaty of the European Union. Moreover, the EU will continue to function as an internal market "without internal barriers in which the free movement of goods" will be protected, subject to different derogation periods which have been negotiated. In other words, all of the rights and obligations previously enjoyed by EU citizens will continue unabated.
A blow against EU central authority
The Constitution, if adopted, would have conferred exclusive jurisdiction to the EU over matters involving "all areas of foreign policy and all questions relating to the Union's security, including the progressive framing of a common defense policy." To achieve this goal, the Constitution provided for the creation of a new post of EU Foreign Minister, and, even more importantly, would require each Member State to "actively and unreservedly support the Union's common foreign and security policy in a spirit of loyalty and mutual solidarity ... and to refrain from any action contrary to the Union's interests or likely to impair its effectiveness." Under the current set of treaties Poland and each of the Member States are free to conduct their own foreign policy.
Governance will prove difficult
The Constitution provided for a major overhaul of the day-to-day governance of EU institutions, necessitated by the need to accommodate the accession of 10 new Member States. All of these proposed changes will now be shelved for the time being. As such, the Presidency of the European Council will continue to rotate among Member States every six months. Under the current system, Poland's vote in the Council is weighted at 27 votes, in comparison to 29 votes for each of France, the UK and Italy, even though each of these Member States have approximately 20 million more citizens. Under the proposed changes mandated by the Constitution, the weight of Poland's vote would have been reduced to better reflect the difference in population, but Poland will now retain its current voting power. The same is true with respect to the number of votes apportioned to each Member State by the Treaty of Nice in the European Parliament.
What next?
For the time being, nothing. Polish citizens will continue to enjoy the benefits of EU membership as before. And, in an ironic twist of fate, the French and Dutch voters have actually improved Poland's position within the EU with regard to their own governments, by preserving the existing apportionment of votes established by the Treaty of Nice among EU Member States. Viva la France.
Paul Fogo is a senior attorney with Miller, Canfield, W. Babicki & Partners
In a nutshell, to simplify governance and to give the EU a single legal personality. Currently, the EU is governed by a collection of treaties, some dating back more than 50 years. Additionally, each Treaty of Accession entered into by the Member States also governs the operation of the EU. The Constitution is intended to replace all of these treaties, thereby incorporating EU law into one document.
Business as usual?
For the most part, yes. The Treaty of the European Union and the various treaties of accession will continue to apply. Polish citizens will continue to "have the right to move and reside freely within the territory of the Member States" - as provided by Article 18 of the Treaty of the European Union. Moreover, the EU will continue to function as an internal market "without internal barriers in which the free movement of goods" will be protected, subject to different derogation periods which have been negotiated. In other words, all of the rights and obligations previously enjoyed by EU citizens will continue unabated.
A blow against EU central authority
The Constitution, if adopted, would have conferred exclusive jurisdiction to the EU over matters involving "all areas of foreign policy and all questions relating to the Union's security, including the progressive framing of a common defense policy." To achieve this goal, the Constitution provided for the creation of a new post of EU Foreign Minister, and, even more importantly, would require each Member State to "actively and unreservedly support the Union's common foreign and security policy in a spirit of loyalty and mutual solidarity ... and to refrain from any action contrary to the Union's interests or likely to impair its effectiveness." Under the current set of treaties Poland and each of the Member States are free to conduct their own foreign policy.
Governance will prove difficult
The Constitution provided for a major overhaul of the day-to-day governance of EU institutions, necessitated by the need to accommodate the accession of 10 new Member States. All of these proposed changes will now be shelved for the time being. As such, the Presidency of the European Council will continue to rotate among Member States every six months. Under the current system, Poland's vote in the Council is weighted at 27 votes, in comparison to 29 votes for each of France, the UK and Italy, even though each of these Member States have approximately 20 million more citizens. Under the proposed changes mandated by the Constitution, the weight of Poland's vote would have been reduced to better reflect the difference in population, but Poland will now retain its current voting power. The same is true with respect to the number of votes apportioned to each Member State by the Treaty of Nice in the European Parliament.
What next?
For the time being, nothing. Polish citizens will continue to enjoy the benefits of EU membership as before. And, in an ironic twist of fate, the French and Dutch voters have actually improved Poland's position within the EU with regard to their own governments, by preserving the existing apportionment of votes established by the Treaty of Nice among EU Member States. Viva la France.
Paul Fogo is a senior attorney with Miller, Canfield, W. Babicki & Partners
