Will the Proposed European Constitution Make the European Union More Democratic?
A Critical Analysis
(By Miguel Otero)

Introduction

The European Union, since its early beginning in 1951, with the creation of the European Coal and Steel Community, has been primarily an economic project. “Europeans seem to have rapidly grown accustomed to the elements of economic citizenship that the European Union has provided for them. Those freedoms to buy and sell goods, to invest and exchange currency, to receive and deliver services, to move personally, and to exercise one’s profession across national borders are positively appreciated (and largely taken for granted), but they certainly have not generated a high level of identification with the institution that produced them.”

This is what we know as the ‘democratic deficit’ of the European Union. The unelected character of the European Commission, the evident weakness of the European Parliament in many areas, the progressive withdrawal of power from national parliaments to Brussels, the absence of strong democratic intermediaries such as political parties, the extreme complexity of the treaties, the disproportionate influence of the economic elites, and the lack of transparency in the Union’s policy-making procedures are some features that might explain why there is no European political identity or ‘demos’. If we understand democracy, as what it literally means, ‘rule by the people’, we can without doubt state that the European Union is so far undemocratic.

With the proposal to change this situation and with the imminent enlargement to the East, with ten new member states, the European Union decided in the Treaty of Nice 2000 that it was time to start a deeper and wider debate on the future of Europe. Thus, the Nice Declaration no.23 annexed to the Treaty identified four main topics for consideration: How to establish, and then maintain, a more precise division of responsibilities between the Union and the Member States, in accordance with the principle of subsidiarity? What status was to be given to the Charter of Fundamental Rights proclaimed in Nice? How to simplify the Treaties in order to make them clearer and better understood without changing their meaning? And, what role should national parliaments have in the European architecture?

One year later, on 15th December, 2001, the Laeken European Council adopted the Declaration on the Future of the European Union thereby committing the Union to becoming more democratic, more transparent, more efficient, and to preparing the way for a Constitution for the citizens of Europe. In order to achieve this task, the Heads of State and Government agreed to create a Convention bringing together a wide range of different actors to “consider the key issues arising for the Union’s future development, such as:
• What do European citizens expect from the Union?
• How is the division of competences between the Union and the member states to be organised?
• Within the Union, how is the division of powers between the institutions to be organised?
• How can the efficiency and coherence of the Union’s external action be ensured?
• How can the Union’s democratic legitimacy be ensured?”

As we can see, one of the main goals of the Convention on the Future of Europe, which met from February 2002 to July 2003, was to reduce the democratic deficit of the European Union. In other words: to bring the Union closer to its citizens. The aim of this work therefore is to analyse, from a critical perspective, whether the methods used by the Convention, led by former-French President Valéry Giscard d’Estaing, and its end result, the draft Treaty for a European Constitution, are a significant contribution to challenge the so called “legitimacy crisis” of the European institutions.

The Convention Process

The Convention on the Future of Europe began its deliberations on 28th February 2002, in Brussels. This is the second convention the European Union has created, following the self-styled Convention which drafted the Charter of Fundamental Rights in 2000. As mentioned above, its chairman was Valéry Giscard d’Estaing. The rest of the Presidency appointed in the Laeken Declaration was formatted by Jean-Luc Dehaene and Giuliano Amato. Both are former Prime Ministers of Belgium and Italy respectively, and in the convention they functioned as Vice-Presidents.

The Praesidium of the Convention was composed of the Presidency, two representatives from the European Parliament, the Commission, and the national parliaments, the representatives of the governments holding the Presidency of the EU during the lifetime of the Convention and one ‘guest’ representing the accession countries. This body, that has driven the whole process, has been widely criticized because it “has always deliberated behind closed doors, and, notwithstanding objections, did not produce minutes of its meetings.”

In addition, the Laeken Declaration envisaged the following composition of the Convention:
• 15 representatives of the Heads of State or Government of the Member States (one from each Member State),
• 13 representatives of the Heads of State or Government of the candidate States (1 per candidate State),
• 30 representatives of the national parliaments of the Member States (two from each Member State),
• 26 representatives of the national parliaments of the candidate States (two from each candidate State),
• 16 members of the European Parliament,
• 2 representatives of the European Commission

In addition to members, there were observers:
• Three observers from the Economic and Social Committee
• Six observers from the Committee of the Regions
• Three observers representing the social partners
• The European Ombudsman

The first thing that stands out is that no constitutional lawyers actively participated in the process leading up to the drafting of the constitution.
The Convention work was divided in three phases: “a listening phase (through to summer 2002), where all the members presented their own draft suggestions, a phase of analysis, focused around Working Group discussions and reports (summer, autumn and winter 2002), and a third phase of drawing together the different proposals and drafting recommendations, which began in early 2003.” The Convention worked throughout the process on a mechanism of explicit consensus, defined by its President Giscard, as “less than unanimity but more than the majority.” However, it was he who decided when consensus had been achieved.

The plenary sessions were once or twice a month, at the premises of the European Parliament. The sessions, centred always around one or two issues, were open, and took place over two and a half days. Given that there were 105 members, the amount of time that each had to speak was restricted. Besides, as Gawain Towler commented, most of them normally “spent their time congratulating the previous speaker.” On the other hand, “in many respects, for civil society lobbying the Convention was much like business as usual, involving contacts with sympathetic members and targeted distribution of materials presenting their arguments.”

The Convention created ten different Working Groups for as many different issues, although in October 2002 only two of them had finished their work. At that stage, the task of completing in time to present the Constitutional Treaty to the European Council of Thessalonika in June 2003 seemed impossible. Nevertheless, in this awkward situation, on 28th October Giscard and its Praesidium magically presented a skeleton draft of the Treaty. They had been working discreetly since July!

This is the turning point of the whole process. From this watershed onwards, all the debates were based on the skeleton draft. “This means that the ordinary convention members had little chance to change some of the foundational architectural features of the draft Constitutional Treaty, such as the order of different sections, and the decision to have one article on values, one on objectives, and so on. Furthermore the numerous drafts of model constitutions or treaties which have been presented by or sponsored by Convention members appear to have had little influence over the shape chosen by the Praesidium.”

It was also at this time that certain member states began to take an active role in the matter. Spain had already changed its representative on the Convention for its Foreign Minister, Ana Palacio, and so did Germany and France, with Joschka Fischer and Dominique de Villepin. Meanwhile Tony Blair presented the U.K draft with the so called red lines, drawn up by Cambridge legal expert Alan Dashwood. The Commission also came into play, handing in to Giscard, in December 2002, two different drafts. One called “Peace, Freedom, Solidarity”, and another titled “Operation Penelope” which was Commission President, Romano Prodi’s own suggestion. France and Germany, for their part, made their common position clear on 22nd January, coinciding with the 40th Anniversary of the Elysée Treaty that sealed the reconciliation between both countries.

The last phase of the Convention was characterized by the seeking of a common consensus. Generally speaking it can be argued that the debates were monopolised to a high degree by the representatives of the big four countries-Britain, Germany, France and Italy- and the Praesidium of the European Convention, headed by Giscard d’Estaing. The draft of the Constitutional Treaty was agreed by the Convention on 13th June 2003, just six days before the European Council of Thessalonika in Greece. Finally, the final Draft Treaty establishing a Constitution for Europe was submitted to the President of the European Council in Rome on 18 July 2003.

The contents of the Constitutional Treaty

The Constitutional Draft presented by the Convention has 265 pages and is divided into a preamble, a preface and four main parts. The first explains what the European Union is per se, its values, institutions and competences. The second is the Charter of Fundamental Rights. The third, and most extensive one, explains the policies and functioning of the European Union, and finally the fourth contains general and final provisions.

For many the most democratic article of the draft is the one that includes the European Citizens’ Initiative. A goal achieved by no less than 109 NGOs, which finally convinced 96 Convention members to vote in favour of the inclusion of this article in the draft. The citizens’ initiative means that “one million citizens coming from a significant number of Member States may invite the Commission to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Constitution.” In other words, if NGOs and civil groups collect one million signatures in a significant number of member states for a referendum on the Constitution, the Commission ‘might’ order a general referendum across the entire European Union.

This, which is presented as a great victory of civil society, is not as marvellous as it appears. The words used in the article show us the possible inefficiency of this right. “One million people ‘may invite’ the Commission” is such an ambiguous statement that it means practically nothing. As the promoters of the initiative point out: “the European Citizens’ Initiative cannot trigger any referendums. Even the power to trigger proper lawmaking will be filtered through the EU Commission.” In essence, the Initiative will work as a statutory procedure without the possibility of proposing changes to the EU Constitution. It can only be used for non-legislative acts such as regulations and recommendations.

Another aspect that has been welcomed as a democratic achievement is the inclusion in the draft of the Charter of Fundamental Rights, after persuading Britain to abandon its strong opposition. Yet, here again things are not as they seem. One of Blair’s red lines was that the implementation of the Charter would only apply at European level and not have preference over existing national laws. With Article II-51-1 this aspect is more than secured: “The provisions of this Charter are addressed to the Institutions, bodies and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law.” This clause is a barrier to implementing the most fundamental democratic rights across European Union. The Charter of Fundamental Rights should form a positive obligation for the Member States instead of being left to their discretion.

Many NGOs, Amnesty International among them, have in recent times expressed their concerns in relation to Justice and Home Affairs. The draft contains a provision for “partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection.” Without clarification, as the NGOs alert, this provision “is open to misuse if Member States seek ‘to subcontract’ their protection duties to third countries.” We have already seen that Tony Blair wants to crate refugee camps on the external borders of the European Union. This kind of policy would be legitimated with this draft.

If the European Union really aspires to be an example of democracy, there should not be space for discrimination. However, Article I-8-1 implies intrinsically discrimination in itself when it says that European citizenship is only for nationals of the Member States and not for nationals of third countries. With this provision the constitutional draft denies basic rights to millions and millions of immigrants who have been working in Europe for many years or even decades. We should not confuse citizenship with nationality. Every single person that lives legally in Europe, therefore is a permanent resident, should be labelled a citizen of the European Union, if we want equality of rights for all.

The proposed Convention undermines as well one of the rights that is in the United Nations Universal Declaration of Human Rights, namely the right for a ‘folk’ to self-determination. The draft does not recognise even the political identity of regions , only that of states, which means that political parties such as the Spanish Convergència i Unió (CIU), Partido Nacionalista Vasco (PNV), Esquerra Republicana de Catalunya (ERC) or Bloque Nacionalista Galego (BNG), and their hundreds of thousands of voters, would not be recognised by the Carta Magna of the European Union. The idea of the ‘Europe of the Regions’ that once had created so many expectations seems to have been forgotten by the members of the Convention.

To continue with a critical perspective, one can argue that this constitutional treaty implies a militarization of the European Union. As Tobias Pflüger has mentioned “it seems that one of the central elements, if not the central one, of this Constitution has been the common military policy.” There is an explicit duty for Member States to increase their armament provisions: “Member States shall undertake progressively to improve their military capabilities.” A European Armaments, Research and Military Capabilities Agency shall also be established, among other aspects, “to contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector.” There is no need to point out that behind this article are military lobbies such as BAE Systems, former British Aerospace.

There is great doubt about whether European citizens are in agreement with the creation of a European military force. We should remember that the anti-war movement recently brought millions and millions of people on the streets of Europe’s cities to protest against a military intervention in Iraq. In London, the greatest demonstration in British history took place, with nearly two million people. Besides all these efforts from civil society, Tony Blair, George Bush and José María Aznar ignored the masses and went to war. With the new Constitution this will happen again as it is the Council of Ministers and not the Parliament, which would be the case in Germany, the institution that decides a military intervention.

Article III-210-1 states that the Union may use civilian and military means in the fight against terrorism, including by supporting third countries in combating terrorism in their territories. The European Union definition of terrorism was agreed by the European Council on 19 December 2002 and it says: “terrorist offences are acts committed with the aim of i) seriously intimidating a population, or ii) unduly compelling a Government or international organisation to perform or obtain from performing any act or iii) seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.” This definition is so broad and ambiguous that almost any act of protest might be considered a terrorist act.

Some of the protestors in recent demonstrations in Gothenburg, Genoa or Berlin seriously intimidated the population. Are they terrorists? Even the more peaceful demonstrators want surely to destabilize the political structure of the country. Are they terrorists? Are terrorists the strikers when they seriously destabilize the economic structure of their country? What exactly does unduly compelling a Government to perform or obtain from performing any act mean? With this broad definition of terrorism and the mention of third countries in the Convention article, “the EU is legitimated to take part in any kind of civil war with the only excuse being ‘fighting terrorism’.”

Another negative consequence of the ratification of this Constitution would be the liberalization of crucial public sectors such as education and health. Currently the members of the World Trade Organization are bargaining over the GATS (General Agreement on Trade in Services). The European Union, headed by its trade commissioner Pascal Lamy, was firstly pushing strongly to achieve concessions to liberalise education, public health and audiovisual services. Nevertheless, thanks to a veto in the Council of Ministers, Pascal Lamy had to withdraw his propositions. This will not happen with the new Constitution. The Convention draft establishes that unanimity of the Council is only explicitly necessary in the audiovisual sector not in health and education. This implies a regression from the Nice Treaty which clearly specified in article 133 (paragraph 6) that every member state has a right of veto in the vote for the sectors of education, health and social policy. Here again the Constitution threatens some of the basic values of our democracies, namely the right to free medical treatment and education.

However, following Busters’ words, “the draft makes lawful the whole neo-liberal reform program, known as the ‘Lisboa spirit’, against which hundreds of thousands have protested since the strikes in the public sector in France in 1995.” Article I-3-2, dedicated to objectives, establishes “a single market where competition is free and undistorted”; article I-3-4 secures free trade; article I-4-1, the free movement of people, goods, services and capital, and article I-29-3 provides total independence in monetary affairs to the European Central Bank. The question is whether all these neo-liberal features of the Union are compatible with other novel objectives given in the Constitution such as (Article I-3-3): “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, and with a high level of protection and improvement of the quality of the environment.”

This might be one of the most democratic articles of the Constitution, because it mentions ‘balanced economic growth’, a ‘social market economy’ and ‘full employment’ and ‘social progress’. However there is no reference to a European Social Model or Advanced Social Democracy as was proposed by the European Trade Union Confederation. These suggestions were vetoed by the Union of Industrial and Employers’ Confederations of Europe (UNICE) and instead the expression Highly Competitive was included.

Conclusion

Despite all the arguments mentioned above the Convention on the Future of Europe has been in many aspects a positive and progressive attempt. The convention method is much more democratic than the Intergovernmental Conferences (IGC) where 15 exhausted ministers agreed the treaties behind closed doors at the end of the night. The plenary sessions of the Convention were surely more open, more transparent and more inclusive than an IGC. “One clearly important innovation, for example, was the presence of national opposition parties through the medium of national parliamentary representatives and European parliamentary representatives, sitting in the same debating chamber and round the same negotiating table as national governmental representatives.” Generally speaking it might be said as well that the Convention has achieved the opening up of the debate about the future of Europe. Never before has been the European Union under so much public scrutiny by the academia, press and civil society, as now.

Furthermore, and now focusing on the draft contents, the fact that the European Union annuls the ever complicated three pillar policy-making system should be welcomed. The extension to many areas of the Qualified Majority System will bring more dynamism in the integration process, even though fields such as health, education and culture should be decided by unanimity. Also positive is the election of a European Union President and a Minister for Foreign Affairs. It is important that citizens associate the Union with people with names and faces and not to an abstract body. This will help to create a European ‘demos’. In addition, it is noteworthy that the lonely European institution elected directly by the citizens, the European Parliament, acquires more co-decision power in the policy-making process, even in budget affairs. And not only this: Article I-26-1 establishes that the European Council, taking into account the elections to the European Parliament, proposes a candidate for the Presidency of the Commission, and that “this candidate shall be elected by the European Parliament by a majority of its members”.

Nevertheless, the constitutional draft cannot be overestimated. As a matter of fact the proposed Constitution consolidates the European Union as an economic giant, it pushes the Union to be also a military giant, but it maintains the Union as a political and democratic gnome. The limitations to the implementation of the Charter of Fundamental Rights, the non-recognition of the European regions undermining the diversity of Europe in a dangerously globalizing world, the acceptance of neo-liberalism as the economic ideology of the Union which brings inherently more inequalities and attacks on the welfare state for which previous generations had to fight so hard, and the creation of a European Army with licence to intervene all over the world, are only some examples that support this idea.

To finalize, and again taking Buster’s propositions, just a few ideas. Versus the European superpower: an explicit article in the Constitution that imposes the elimination of weapons of mass destruction within the borders of the European Union. Versus the European inequality in rights: the elimination of title VII from the Charter of Fundamental Rights and the integration of all resident immigrants in the Union allowing them to be citizens after five years. And, finally, versus the neo-liberal European ‘Lisboa spirit’: the universal provision through public services of all basic necessities such as social security, health, education, justice, energy, water, communications and housing.

Miguel Otero
GV9381: The European Union. Politics and Policy Making
Department of Government
University of Manchester
Manchester, the 16th of January of 2004