The European constitutional Treaty : Treaty or Constitution? - 04.02.2005

 Numerous Euro-enthusiasts call the document signed in Rome the European Constitution. But is it appropriate?
      

The European Commission, pro-European organisations and numerous media call "European Constitution" the document signed by the 25 Heads of State and Government on the 29th of October 2004 in Rome and currently submitted for ratification in each EU Member State. Legally, fundamentally and formally, however, this document is a Treaty and not a Constitution. Tactically also, promoters of European integration would benefit from calling this document a "Constitutional Treaty".

The document signed in Rome is titled « Treaty establishing a Constitution for Europe ». Hence, it is indeed legally foremost a Treaty.  

As to its content, the document takes up in part III, numerous dispositions contained in past European Treaties that are usually not part of a Constitution and do not respond to what  citizens legitimately expect to find in their Constitution.  The ratification campaign have revealed the numerous deficiencies of the proposed text. Here are a few that demonstrate that the text is indeed a Treaty designed to be completed in the near future and not a Constitution, usually expected to be lasting. These are just examples among many others.

Article III-214 point 4 refers to the North Atlantic Treaty : the document hereby puts itself at the level of Treaties and not Constitutions.  In the critical fields of economic and social governance, the text does not improve much upon previous treaties.  It falls short of the arrangement adopted for instance for foreign policy where the Commissioner in charge is regarded as a Minister, while in economic and financial matters, the Commissioner remains under the control of the ECOFIN where national Ministers dictate European policies . In the field of social protection, the institutional arrangements fall clearly short of the values listed in part I of the Treaty. Equally, the status of the Council remains ill-defined : it exercises both legislative and executive powers which is contrary to the basic principles of democracy.  Finally, the document can be approved and modified only through unanimity voting, a procedure generally reserved for Treaties, not Constitutions. These few examples show that the document contains numerous transitional dispositions and that the road to a full-fledge European Constitution remains long.

In its presentation as well, the document does not meet the requirements of a Constitution. It is long and complicated. Despite the declarations of the President of the European Convention that elaborated the text, school children and average citizens will find it difficult to understand. The text, like the Declaration of Independence of the United States, should have been edited by an appropriate committee. This revision was done by an international group on school teachers . The very lecture of their text of about twenty pages gives a good foretaste of what the true European Constitution will actually look like.

Finally, tactically, promoters of a European Constitution would benefit from qualifying the document as a Treaty rather than as a Constitution. Indeed, the adoption of the document signed in Rome depends on the outcome of referenda in countries where the population remains in majority hesitant towards greater European integration and hence, a fortiori to the adoption of a European Constitution. A Treaty that simplifies European procedures and enhances democracy should be more acceptable.  Furthermore, if the current ratification procedure fails, the pro-Constitution Europeans, should find it easier to relaunch the campaign in favour of a true European Constitution, if they have recognised that the past texts were only Treaties and did not meet their requirements to qualify for a proper Constitution.

For all these reasons, it would seem preferable that European Institutions and organisations preparing the ratification campaigns in favour of the document signed in Rome refrain from labelling it « Constitution » and instead restrain themselves to call it a « Constitutional Treaty ». This in no way undermines the symbolic importance of the document which all Heads of State and Governments have signed as leading toward a full-fledge European Constitution.
            Jean-Jacques SCHUL