13.10.2004

Against the European constitutional treaty

The so-called EU constitution is thoroughly undemocratic, argues Mike Macnair. The European working class needs its own agenda; European communists and revolutionary socialists need unity

On June 18 2004 an intergovernmental conference approved a ‘Constitution of the European Union’, which has now to be ratified by member-states before it comes into effect. Blair has promised that if Labour wins the next election British voters will be given an opportunity to accept or reject this document in a referendum. Of course, this will not happen if before the date, the people of some other European country vote ‘no’ and send the governments back to the negotiating table.

‘No’ is the right way to vote. The right way to vote not just in Britain, but for everybody in European Union countries who will be given an opportunity to vote - and for elected representatives in countries like Germany, which will not hold a referendum.

The reasons for rejecting the ‘EU constitution’ are not mainly about what it changes - it does not change a great deal. They are partly about what it codifies: the existing underlying character of the EU institutions. And they are partly about what the so-called ‘constitution’ does not change. It is not really a constitution for Europe, but just another treaty consolidating the existing legal instruments. And it does not address the EU’s notorious democratic deficit.

A vote against the constitution is not a vote against European unification. Indeed, it could be a vote for European unification. By codifying most of the existing position and calling it a ‘constitution’, the proposers hope to give added political legitimacy to what already exists. If anything, it would shift more veto power, but not more constructive power, to the member-states. By doing so, it would tend to create a dynamic towards what the US and its British sidekick want: a European free-trade area in which states will be forced to compete among themselves to attract corporations by attacking the social gains of the working class and its organisations, without the power to make laws in the interests of the European working class.

The existing EU
The EU is not a state. It does not dispose of its own armed forces, but is dependent on those of the member-states. It does not directly collect taxes, but is funded by revenue raised - principally VAT - for EU purposes by member-states.

The EU was created by a body of treaties between the states. On this basis it has acquired its own Court of Justice, and the law practised in this court is ‘EU law’. But EU law derives from the treaties, and its enforcement depends on the member-states. The constitution, like the previous treaties, says that EU law has “primacy over the law of the member-states”. But it actually only has this effect to the extent to which the state legal systems are prepared to give it primacy.

The existing treaties do make up a ‘constitution’ in one sense: they set limits to what can be effective laws made by the council of ministers (and parliament). These limits are a lot tighter than those in any state constitution. The reason is that the EU has only those powers that the states give it - and the states do not give it general powers, but powers to act for specific purposes. This is reflected in the new document and accounts for a great deal of its length: it contains not merely institutional structures and a charter of rights, but a lot of substantive policy.

Anything which is in the treaties (or, in the future, in the constitution) can only be amended by a new treaty. We have had a fair number of these over the last 20 years. It is unsurprising in this light that the primary provision in the new constitution for its own amendment (article IV-7) amounts to convening another convention and another intergovernmental conference to adopt another treaty - just like the procedure that created it. It is, after all, just another treaty.

But since it attempts to codify the body of the existing treaties, while making some amendments to them, the right way to approach it is not to consider mainly the ways it changes the existing rules. It is to consider the constitution as a whole. What sort of sense does this way of ‘governing the EU’ make?

The constitutional treaty
The treaty has four parts. Part I gives the aims of the EU and its basic institutional structure, and part II is the ‘Charter of fundamental rights’ - these are elements one would normally expect to find in a written constitution. Part III is entitled ‘The policies and functioning of the union’ and contains over 340 individual ‘articles’ of varying length. In a state constitution a great deal of this would not be included, but provided by legislation. Part IV is much briefer and deals with technical aspects.

The document is written in a curious mixture of styles. Much of it is in the windy and indeterminate language of diplomacy and of agreements which are intended to make the parties look good, not to decide anything definite. Other parts of it are in the French laconic style, which likes to state broad principles. Yet others are in the style of sharply technical and precisely tied-down rules beloved of the British parliamentary draftsman’s office.

A fairly superficial reading makes clear that the variations relate to the subject-matter of the articles. In general, limitations on the power of the EU relative to the member-states are tightly worded. So are the economic rules which are at the heart of the system. The concessions to ‘social Europe’ are characterised by the use of generalities and by apparently broad powers - which are actually narrowed down by limitations and procedural rules.

Thus, for example, article III-104 seems to give the EU competence to make laws to address health and safety, working conditions, social security and a range of issues of interest to workers. But by section 2 (b) of the article such laws “shall avoid imposing administrative, financial and legal constraints in a way which would hold back the development of small and medium-size undertakings”; by section 3 the council can only act unanimously in a range of matters; and by section 6 the whole article “shall not apply to pay, the right of association, the right to strike or the right to impose lockouts”.
The treaty, like its predecessors, can thus appear to make concessions to the workers’ movement (or, in the popular-frontist code of the current European left, the ‘social movements’) without actually doing so.

Aims and values
Article I-2 says: “The union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the member-states in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” Wordy platitudes: “human dignity” is part of the language of catholic social teaching and has been used in that context to ground opposition to abortion rights. And for the last 25 years “the rule of law and respect for human rights” has been common code for the dictatorship of the bourgeoisie and specifically the right of intervention of the US in other countries.

Article I-42 section 1 (a) gives the EU power to coordinate military intervention to “prevent the terrorist threat in the territory of the member-states” and “protect democratic institutions”. The ambiguities of “terrorist” makes this a potentially far-reaching instrument to allow joint action against insurrection. By article I-58 the EU may impose sanctions on member-states in the case of a “breach” of the “values mentioned in article I-2”. By article III-16 member-states are to “[take] together the steps needed to prevent the functioning of the internal market being affected by steps which a member-state may be called upon to take in the event of ... serious internal disturbances”. The EU thus attempts to guarantee the status quo.

Oliver Wendell Holmes famously said of the US constitution that “The 14th amendment does not enact Mr Herbert Spencer’s Social statics.” The treaty, in contrast, does enact professor Milton Friedman’s free-market and hard-money policy. Article I-29 provides explicitly that “The primary objective of the European System of Central Banks shall be to maintain price stability.” By article I-52, “The revenue and expenditure shown in the [EU] budget shall be in balance.” The first chapter of part III, title III, on the internal market, contains a range of general principles whose application will to an increasing extent oblige member-states to privatise public services. Article III-69 commits the EU’s economic policy to “be conducted in accordance with the principle of an open market economy with free competition”. And so on.

Institutional structures
The treaty substantially preserves the existing institutional structures of the EU, while making minor amendments.

The main operational elements of the current institutional structure of the EU are the commission and the bureaucracy it heads; the Court of Justice; the council of ministers; and the Central Bank. There are a number of other ornamental or ‘dignified’ elements, of which the most important is the parliament.
The commission and the bureaucracy is the main target of the Europhobic press. It is notorious for corruption, cronyism and weak financial control. It should be emphasised, however, that the scale of the EU as a bureaucratic operation is relatively small: the EU budget income for 2004 totalled around £72 billion (slightly less than half of it committed to the common agricultural policy), while UK local government expenditure in 1998-99 totalled £78 billion and the UK central government income for 2004 was around £420 billion. The commission has the power to propose legislation, but not to pass it.

The Court of Justice has in reality been one of the main engines of the degree of European integration which has taken place. Set up along French lines, it has tended to follow a ‘purposive’ interpretation of the treaties and other forms of legislation, which has favoured giving effect to the policy of integration. It is provided with a supply of cases which allow it to pursue this approach, because individuals and companies can sue states and EU institutions in the court directly. The constitution, by codifying the existing treaties, can be expected to reduce the court’s room for manoeuvre and hence the tendency of its proceedings to produce integrationist effects.

The council of ministers is, as its name suggests, a body which brings together government ministers from the member-states. Some of its meetings specialise in particular areas: eg, agriculture. Others are attended by heads of government and are in effect meetings between states as such, primarily characterised by diplomacy.

The council of ministers is in practice the primary EU legislator. The powers of the parliament in connection with legislation have been increased, but it will still not be able to initiate legislation, and the council of ministers will retain a veto. One of the main debated issues in relation to the draft constitution has been the change in voting rules in the council of ministers, designed to adapt the EU to enlargement. More areas are subject to ‘qualified majority’ voting (the majority of member-states, plus 51% of the population ‘represented’), as opposed to rule of unanimity. But rule of unanimity is retained for a large range of important questions.

Capitalist constitutions are in general designed to protect ‘minorities’: in reality a code for one particular minority - capitalists - by making it hard for majorities to take collective actions. In contrast the ability of ‘individuals’ - ie, property owners, including corporations - to act is to be as unfettered as possible.

The institutional designs of constitutions achieve this effect partly by the ‘rule of law’ and judicial review of legislation and/or of administrative or local action. Since the core of law is the protection of the right of property, judges can be expected to protect property-owners. They achieve it partly by dividing up the public power, so that elected bodies cannot act without the consent of unelected bodies. Local bodies are circumscribed by national bodies and national bodies are in some respects unable to override local bodies, and so on.

The institutional structure of the EU is a classic example. Legislation requires a proposal from the commission, in most cases a qualified majority in the council, and consent of the parliament. The parliament is unable to initiate legislation - this power is retained in the hands of the bureaucracy. The member-states have extensive blocking powers. But, on the other hand, the EU itself serves as a guarantee of the capitalist character of the member-states. The whole point is to protect capital from the threat of democracy. No surprise: the same is true both of all modern capitalist written constitutions since that of the US, and of the efficient parts of the ‘unwritten’ British constitution.

Our alternative
Communists approach constitutional design by starting from political democracy. Society is not yet ready to be rid of law and constitutions altogether. But our constitutional provisions should be aimed, not at committing the state to definite policies, but at enabling the people of Europe to come together to make our own collective choices about policy. This requires a single, fundamental commitment: that everyone is to be able to participate in political decision-making, and that no-one is to have an overriding voice because of who they are or what they own.

This requires, as Jack Conrad argues in his new book, Remaking Europe, the struggle for “a republican United States of Europe ... Abolish the council of ministers and sack the unelected commissioners. For a single-chamber, executive and legislative, continental congress of the peoples, elected by universal suffrage and proportional representation.”

This does not mean a ‘superstate’ with a super-bureaucracy at its core and the abolition of national and local political forms. Rather we fight for democracy at every level: European, national, regional and local, and for a constitution which at each of these levels subordinates the bureaucracy to the elected representatives and the elected representatives to their electors. This is the reverse, the negation, of the constitutional treaty, the so-called EU ‘constitution’.

How? Immediately, socialists across Europe need to come together in a common struggle against this treaty. But we need to move forward. We want not another intergovernmental conference, not another ‘convention’ of the sort which drew up the draft treaty: we want a directly elected constituent assembly for Europe, in which we can fight for the sort of constitution we need.