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Constitutional changes - they're mega!

Posted by Richard Friday, May 07, 2004

Even after only a partial analysis of the Irish presidency's amendment document, it is very clear that there are some very significant changes to the original draft constitution. These substantially extend the powers of the European Union, at the expense of member states. Yet none of the changes outlined here have been flagged up for public attention.

Below are these changes, not yet in the order of greatest importance.

Foreign Affairs

One key and very fundamental change is in the powers of the Union Minister for Foreign Affairs. Under the draft Article I-27, he is a Commission vice-president and is appointed by the European Council under Qualified Majority Voting (unchanged) BUT under the amended Art I-27 (3) shall preside over the Council for Foreign Affairs…

In the original draft, he is responsible for “handling external relations and for co-ordinating other aspects of the Union’s external action, but in the amended version this becomes:

“He shall ensure the consistency of the Union’s external action…”

This represents a very significant increase in the power of the Union’s Foreign Minister (note they are calling him/her a Minister). We have a situation now where a Commissioner (i.e. unelected official, appointed by QMV, over which the UK has no veto) presides over the Foreign Affairs Council, made up of member states foreign ministers (as against previously one of their own number).

He as absolute power within his terms of reference to ensure – i.e., proactive – consistency of action, which means in practice he can over-ride “inconsistent” views (such as, we [the UK] want to go to war with Iraq?), instead as previously, merely “co-ordinating” action.

By any measure, this does represent a significant increase in the power of the EU in relation to foreign policy and a weakening of the powers of the member states.

Article III-197(3)

The original draft Article reads: “…This (European External Action) Service shall work in co-operation with the diplomatic services of the Member States”.

After this, is added:

“The organisation and functioning of the European External Action Service shall be established by a European Decision on a proposal from the Union Minister for Foreign Affairs. The Council shall act after consulting the European Parliament and after obtaining the consent of the Commission”.

In my view, this gives the Union Foreign minister the power to control what amounts to the EU’s own diplomatic service, and gives the Commission the veto over the Council’s power to change his arrangements.

Neutering the European Council

As a subsidiary and continuing theme (there are other examples) the European Council (comprised of Heads of States and Governments) are brought more into the maw of the EU as a Community institution, their freedoms of action being circumscribed by the Constitution imposing Qualified Majority Voting on them in key areas.

This essentially turns an intergovernmental institution into a supranational institution – the change is quite profound.

National identity

Article I-5. an apparently obscure but important amendment here.

The original article reads: “The Union shall respect the national identities of Member States…”

This now changes to:

“The Union shall respect the equality of Member States before the Constitution…”

In my view, this arcane change in phraseology changes the fundamental relationship between the Member States, placing them co-equal under the Constitution, thus elevating the constitution to a superior level.

This needs a constitutional lawyer’s opinion, but I certainly do not see this as a minor and consequential amendment.

European Central Bank

There are some problems here with numbering. I have the definitive copy of the draft Constitution which refers to Article III-84 concerning the European Central Bank. The Irish Presidency amendments, however, refer to Article III-289a. (Changes we don’t know about!!!)

However, the key change is major. The original reads:

2. (b) The President, the Vice-President and the other members of the Executive Board shall be appointed from among persons of recognised standing and professional experience in monetary or banking matters by common accord of the governments of the Member States at the level of Heads of State or Government, on a recommendation from the Council of Ministers, after it has consulted the European Parliament and the Governing Council of the European Central Bank.

This means that the officials must be appointed by a unanimous decision of the member state governments, each of whom have a veto.

This is now changed to… shall be appointed by the European Council, acting by qualified majority voting…”

The obvious and major change here is that the appointment is by QMV, but the other change, of equal significance, it that the decision is taken out of the hands of member state governments, acting individually, and into the institutional framework of the European Council, acting as a European institution.

The obvious consequence of this is that the UK could easily be over-ruled as to the President and other officials, and also that France, etc., could have an easier task in imposing their own candidate on the Bank.

The Formations of the Council of Ministers

Article I-23

Here the Constitution makes provision for the creation of additional Councils, for dealing with new competences as they arise. The existing Article I-23(3) states that: “The European Council shall adopt a European Decision establishing the further formations in which the Council of Ministers may meet”.

This is changed to: “…shall adopt by qualified majority voting…”

As the European Council determines its own rules (although in contested issues works by absolute majority), this the import of this is not one hundred percent clear but, effectively, a member state which wanted to block the formation of a new Council could block it. Under the proposed new rules, however, the procedure is institutionalised, and the UK would have no ability to block the formation of a new Council.

Economic Policy

Article I-14

Existing draft (1) reads: “The Union shall adopt measures to ensure co-ordination of the economic policies of the Member States by adopting broad guidelines for these policies”.

This changes to: “The Member States shall co-ordinate their economic policies within the Union. To this end, measures, in particular broad guidelines, shall be adopted”.

This refocuses the Article, imposing specific duties on the Member States and, rather than a weak, permissory statement, makes the adoption, not only of “broad guidelines” but also “measures” (unspecified) mandatory. This is a significant toughening up of the article, strengthening the grip of the EU over economic policy.

More to follow.