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October 07, 2003
Your Liberty Is at Risk
In the EU's New Constitution
By Angelo M. Petroni
ROME -- Much ink has been spilled criticizing European leaders for obstructionism at the intergovernmental conference that opened here last weekend. But they may be doing their best work yet. If the
new EU constitution being debated wins approval as it is, the "New Europe" will be more centrally controlled and anti-market than the old one already is. The IGC will debate the "Draft Treaty
establishing a Constitution for Europe" -- the product of months of work by a convention chaired by former French president Valery Giscard d'Estaing. The draft treaty basically has two functions. One is to
consolidate and reconcile previous treaties so that EU members have one, clear document to work from. The other is to establish new aims and new competences for the union.
European leaders afraid of domestic
opposition to the constitution -- Tony Blair comes to mind -- emphasize the first and act almost as though the second didn't exist. But the draft treaty does introduce significant changes. Here are just a few:
* The European Union is given a legal personality. This means that it can, and will, act as an sovereign state vis-a-vis other states.
* The scope of the action of the European Union is much widened,
especially in the fields of foreign policy, defense, fiscal policy, economic policy, criminal justice, social policy.
* The notion of "shared competences" -- essentially areas of harmonized policy
-- between the union and the member states is introduced, as well as a so-called Kompetenzkatalog. Shared competences apply to the following principal areas: internal market; area of freedom, security and justice;
agriculture and fisheries, excluding the conservation of marine biological resources; transport and trans-European networks; energy; social policy; economic, social and territorial cohesion; environment; consumer
protection; etc.
* The general principle of majority voting within EU institutions is affirmed, leaving unanimous ruling as an exception. This means fewer vetoes.
* Finally, and most importantly, it is
affirmed as a constitutional principle that "the Constitution, and law adopted by the union's institutions in exercising competences conferred on it, shall have primacy over the law of the member states."
True, despite these deep changes, it is still a matter of debate whether the text produced by the European Convention does represent a full-fledged constitution. Juridically, it is still a treaty among
sovereign states -- any future revision of the text would need to be decided by unanimous agreement of the member states, for example. However, from a substantive point of view there is no doubt that much more power
is conferred on Brussels, and that the sovereignty of individual states will be severely reduced.
Now, dispassionate observers -- and they are sometimes difficult to find on this issue -- should not
underestimate the benefits that have been brought by European institutions. They have represented nothing less than a remarkable instrument for taming the all-pervasive power that European nation-states have over
their citizens. The establishment of the European Community and then of the European Union was tremendously instrumental for opening European markets, deregulating national markets, and downsizing huge state-owned
industries. Most recently, the enlargement of the union has played a crucial role in stabilizing and democratizing the area of central and eastern Europe.
Starting from the late '80s -- not coincidentally,
corresponding to the 1985-1995 commission presidency of Jacques Delors -- the commission increasingly focused on social legislation, abolishing national and regional diversity, and reducing individuals' choices.
This gave birth to the criticism that the European Union was turning into a "superstate" whose powers were more distant from the citizens than the powers of the nation-state, and whose democratic
legitimacy was therefore weak. The draft treaty now represents the latest -- and biggest to date -- step in this direction. This is exposed by picking just two of the changes introduced by the constitution:
The first one is the enhanced notion of "shared competences" between the union and the member states. According to this notion -- significantly derived from the German Constitution, which in its case
addresses the federal republic and the Laender -- the "member states shall exercise their competence to the extent that the union has not exercised, or has decided to cease exercising, its competence."
This means that in many crucial areas the union's sovereignty will progressively replace, and not just complement, member states' sovereignties. The principle of "subsidiarity" would vanish. The second
concerns the view of the economy and markets that is contained in the draft treaty. The shift away from free-markets is dramatic.
The current treaties state that "the member states and the Community
shall act in accordance with the principles of an open market economy and free competition, favoring an efficient allocation of resources." Now Mr. Giscard's text states that "the union shall work for the
sustainable development of Europe based on balanced economic growth, a social-market economy, highly competitive and aiming at full employment and social progress." The union promotes "free and fair
trade," wrote the constitution drafters, probably fully aware that the second adjective undermines the first. The countless references to "social rights" and "social justice" makes clear the
intentions of the drafters.
Europe -- and Europeans -- deserved better. There is no doubt that the EU's institutional framework needs a thorough overhaul, to be made more supple as the body goes to 25
members. It is also certain that the member states have many common vital interests, which deserve to be promoted by stronger and more effective action at the union level. But Europe needs also to see a reduction of
the power that government has over its citizens and firms, and to become more economically competitive with the outside world. While it is doubtful that the EU's institutions will become more flexible once this
constitution is adopted, it is almost a certainty that the heavy hand of the state will grow.
Mr. Petroni is a professor of sociology at the University of Bologna and a director of the National School of
Public Administration in Rome.
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