The EU Constitution: what it means

Paul B. Fogo is a senior attorney with Miller, Canfield, Paddock & Stone.

"The Constitution and laws adopted by the Union's institutions in exercising competencies conferred on it shall have primacy over the law of Member States" - Art. I-10

Almost as quickly as Poles began to celebrate the EU accession referendum victory, complaints were raised about the changes being proposed in a new draft Constitution for the EU. Chief among them was the proposal to reduce Poland's voting power in the EU. Certain politicians were "indignant" that the EU would dare change the terms of accession just days after Poland had held its referendum.

However, the current draft of the Constitution should come as no surprise to anyone. The Treaty of Nice, ratified by the current member states in 2001, called for a "deeper and wider debate about the future of the EU," with the overall goal to "improve the democratic legitimacy and transparency of the EU." The European Council established a Convention on the future of Europe to draw up proposals to improve upon the current EU institutions and decision-making procedures, in addition to simplifying and restructuring the current treaties that form the basis of the EU. The Constitution incorporates several controversial new concepts and will require further negotiation during the coming months, but for the most part the document represents an attempt to unify existing EU law into one coherent body.

A work in progress

The initial draft was adopted on June 20, 2003 by the European Council in Thessaloniki, Greece. The Convention is scheduled to hammer out some "purely technical" issues no later than July 15. These issues include more than 1,700 additional amendments. In October the draft will be subject to further revisions by the Intergovernmental Conference, "which will prepare the final Treaty, the final Constitution of the EU," according to then-president of the European Council, Greek Prime Minister Costas Simitis. Poland, along with the other 12 accession countries, will fully participate in the Intergovernmental Conference on equal footing with the current member states.

Delegation of power to the EU

"The Union shall act within the limits of the competencies conferred upon it by the Member States in the Constitution...competencies not conferred upon the Union remain with the Member States" - Art. I-9

Art. I-15 delegates to the EU "all areas of foreign policy and all questions relating to the Union's security, including the progressive framing of a common defence policy." To this end, Art. I-27 creates the post of EU foreign minister, charged with conducting the union's common foreign and security policy. Even more controversial than this is Art. I-15, which requires member states to "actively and unreservedly support the Union's common foreign and security policy in a spirit of loyalty and mutual solidarity...and shall refrain from any action contrary to the Union's interests or likely to impair its effectiveness."

Art. I-13 provides the EU with shared jurisdiction with the member states over matters involving consumer protection, transport, energy, internal markets, agriculture, social policy, security and justice. As a result, under the proposed Constitution, internal security will become a shared power between the member states and the union. In particular, the union will be tasked with ensuring "operational cooperation between the Member States, including the police, customs and other services specializing in the prevention and detection of criminal offenses" (Art. I-41).

The union's institutions

The European Parliament, acting in tandem with the Council of Ministers, will enact legislation, administer the budget and elect the president of the European Commission (EC). Under the current system, the Parliament has legislative jurisdiction over 37 areas, while under the new Constitution the scope of its legislative power will expand to 80 areas. Member states will retain jurisdiction over certain sensitive areas, such as taxation and abortion.

The European Council shall "provide the Union with the necessary impetus for its development, and shall define its general political directions and priorities" (Art. I-20).

One of the most notable changes introduced by the Constitution extends the presidency of the council from the current six-month period to 2.5 years, with the ability to be reelected to an additional 2.5-year term. Each member state will continue to be represented by the head of its government or state on the council, together with its president and the president of the EC.

The EC has been significantly revamped under the Constitution. The Parliament is limited to only approving legislation "on the basis of a Commission proposal" (Art. I-25). Additionally, the commission's mandate will be expanded to "oversee the application of Union law under control of the Court of Justice," as well as the administration of the budget and union programs. Under the current system, each member state is represented on the commission. Pursuant to the draft Constitution, membership on the commission will be limited to its president, minister for foreign affairs, and "thirteen Commissioners selected on the basis of a system of equal rotation between the Member States" (Art. I-25). Despite the fact that this new limitation on membership is not scheduled to take effect before November 1, 2009, most of the accession countries, Poland included, have at best expressed their reservations on this proposal. As Marcos Kyprianou, the Cypriot minister of finance, explained, the smaller countries do not want to be "smothered by their big brothers."

Voting rights

"The working of the Union shall be founded on the principle of representative democracy"

- Art. I-45

One of the most controversial changes included in the Constitution would reduce the weight of Poland's vote in the European Council. Under the current terms agreed upon in the Treaty of Nice, Poland will have 27 votes in the European Council, as opposed to 29 votes for each of France, the United Kingdom and Italy. With a population of approximately 39 million, Poland will have only two votes less than each of these other member states with populations of approximately 60 million. Under the proposed changes, Poland, along with some other member states, would have the weight of its vote reduced to better reflect the size of its population in relation to other member states. Parliament would have 732 members, with Poland and Spain each having 50 representatives, while Germany would have 99. The U.K., France and Italy would each have 72 votes. The assignment of votes would be recalculated to "be digressively proportional, with a minimum threshold of four members per Member State" (Art. I-19). This change, however, will not take effect until November 1, 2009 at the earliest.

Another change affecting voting in EU institutions involves the concept of a "qualified majority." In order to pass, votes taken at the European Council or the Council of Ministers would require a "majority of Member States representing at least three fifths of the population of the Union" (Art. I-24). This change would also not take effect prior to November 1, 2009.

The role of national parliaments

One significant change proposed in the draft Constitution requires the EC to give national parliaments the opportunity to review and comment on any proposed legislation. The Commission will be obligated to provide the member states' national parliaments a six-week period to review a legislative proposal prior to being voted on by the European Parliament and Council of Ministers. National parliaments will be entitled to submit a "reasoned opinion," thus providing a system of checks and balances between the union and member states.

Next steps

The European Convention on the future of Europe will issue its final draft of the Constitution by July 15, as mandated by the Thessaloniki European Council. Outstanding issues include voting rights, EU policies and the delegation of powers by the member states to the union. The Intergovernmental Conference will take up the issue of the Constitution by October, with the goal of hammering out the final draft in advance of May 1, 2004.