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WHY THE LEFT SHOULD OPPOSE THE EU CONSTITUTION

The National Platform
- January 2005

The Constitution of any normal State lays down the rules and institutional framework for political decision-making. It does not seek to forestall the ideological content of those decisions. That is left to political debate between the political parties of Left and Right, abiding by those decision-making rules. The EU Constitution contained in the "Treaty Establishing a Constitution for Europe", which we will have a referendum on in 2005, is different in that it lays down such rules, but it also lays down a right-wing economic ideology which those rules must implement.

1. THE CONSTITUTION ENSHRINES EXTREME NEO-LIBERALISM AS THE BASIS OF THE EU ECONOMY
It turns the fundamental principles of laissez-faire,i.e.free competition across national borders on the basis of the unimpeded movement of goods, services, capital and labour, into constitutional obligations (Arts.I-3 and 4, Arts.III-130, 166 and 167). These are to be implemented by small committees of supranational politicians and bureaucrats under the influence of the big corporate lobbyists such as the European Roundtable of Industrialists, outside democratic control. This is the opposite of public control and economic planning of any kind, which all sections of the Left recognise as necessary in some areas. The EU Constitution suppresses political alternatives. If implemented it would reduce workers' capacity to mobilise and would restrict the policy areas their organisations can effect change in;for they would be constitutionally obliged to conform to neo-liberal economic principles at both EU and national levels. It does not advance a social Europe,which requires social controls on capital, not capital that is free of controls as a matter of constitutional principle. It prevents public enterprises and State aids from serving national social purposes(Arts.III-161 and 162, Arts.166 and 167). The Constitution amounts in effect to a contract not to have socialism, understanding the concept socialism as requiring the imposition of social controls on capital in the interest of workers and the common good, something that socialists and social democrats of all shades have always advocated. The new EC/EU Commission,the body of government nominees that has the exclusive power of proposing EU laws,is dominated by economic neo-liberals. The new Commission President, Jose Manuel Barroso, led an assault on public services and workers' living standards while he was Prime Minister of Portugal.

2. IT ENCOURAGES THE PRIVATISATION OF PUBLIC SERVICES and enshrines a heavy bias against public enterprise in favour of private capital. The Constitution gives Brussels powers to decide by majority vote what counts as a "public service"(Art.III-166). This could mean that it is up to the EU to identify which areas of public health and education services, for example, would be exempt from competition policy, and which areas would be opened up to private sector competitition. It permits such policies to be imposed on developing countries through the trade treaties the EU concludes under the Common Commercial Policy, and the invesment rules it lays down(Arts.III-314,317).

3. IT ENSHRINES THE PERMANENT DOMINANCE OF CAPITAL OVER LABOUR
Article III-156  provides that there shall be no control on the movement of capital either within the Union or between the Union and the rest of the world, even though such controls may periodically be required to serve the social interest.

4. IT MAKES THE MONETARIST ECONOMIC POLICY OF THE EUROPEAN CENTRAL BANK CONSTITUTIONALLY MANDATORY
The ECB's sole brief in setting interest rates and controlling the money supply of the eurozone is to ensure price stability, not maximize economic growth, create jobs or reduce inequalities(Art.III-185). This imposes deflation on the larger eurozone economies. It prevents national governments expanding demand to counter recession and unemployment. It removes credit and financial policy from the sphere of public debate, subordinating it to the priorities of bankers, big business and technical experts, and effectively makes democratic electoral mandates relating to the control of credit, money and interest rates redundant. The Stability and Growth Pact,which imposes rules for national budgets,is regularly flouted by the Big States but has led to smaller States like Ireland being censured.

5. IT MAKES THE ADOPTION OT THE EURO A CONSTITUTIONAL REQUIREMENT, even though 13 of the 25 Member States still retain their own national currencies(Arts.I-8 and III-177). Ireland's surrender of its ability to control credit and decide its rate of interest has been an important factor in the country's soaring house prices. If the dollar continues to fall and the euro to rise, as at present, Irish business competitiveness must deteriorate, for we do two-thirds of our trade outside the eurozone. We can no longer counter this by varying our currency exchange rate,something from which we benefited enormously during the "Celtic Tiger" years 1993-1999, for we have surrendered that power by adopting the euro.

6. IT MILITARIZES THE EU
The Constitution points to the end of the formal military neutrality of Ireland, Denmark, Sweden, Austria and Malta by replacing the Nice Treaty provision that the progressive framing of a common defence policy "MIGHT lead to a common defence, SHOULD the European Council so decide with the provision in the Constitution that it "WILL lead to a common defence, WHEN the European Council, acting unanimously, so decides" (Art.I-41). This is clearly only a matter of time. It requires all Member States "to make civilian and military capabilities available to the Union for the implementation of the common security and defence policy" and "to undertake progressively to improve their military capabilities"  etc. It permits EU military operations to take place without a UN Charter mandate. Article I-16 gives the EU the power to conduct a common foreign and security policy covering "all areas of foreign policy and all questions relating to the Union's security, including the progressive framing of a common defence policy that might lead to a common defence". The same Article places Member States under an explicit constitutional obligation to refrain from following an independent foreign policy if that clashes with the EU one: "Member States shall actively and unreservedly support the Union's common foreign and security policy in a spirit of loyalty and mutual solidarity and shall comply with the Union's action in this area. They shall refrain from action contrary to the Union's interests or likely to impair its effectiveness."

7. IT CENTRALISES THE EU FURTHER AND TAKES AWAY MORE POWERS FROM NATIONAL PARLIAMENTS AND CITIZENS, TRANSFERRING THEM TO A TINY HANDFUL OF EU POLITICIANS AND CIVIL SERVANTS
The Constitution abolishes existing national vetoes or gives new law-making powers to the EU in relation to over 60 policy areas or issues: for example, harmonising crime and justice matters, criminal sanctions and the definition of offences; border controls; asylum and immigration; energy; culture;tourism; sport; the market for public services; Europol and Eurojust; social security for migrant workers; public health; rules of the structural and cohesion funds etc. This suerrender of over 60 national vetoes is a more extensive transfer of powers to the EU than the 35 areas in relation to which national Parliaments and citizens lost their right to legislate in the 2003 Nice Treaty, or the 19 areas lost under the 1998 Amsterdam Treaty.

8. IT ALLOWS THE POLITICIANS TO AMEND THE CONSTITUTION WITHOUT NEED OF FURTHER TREATY RATIFICATION
An "escalator clause" (Art.IV-444) allows the 25 Presidents and Prime Ministers to shift further policy areas - for example harmonizing indirect taxes (Art.III-171) - from unanimity to majority voting without need of new treaties, parliamentary approval or referendums, as long as there is consensus amongst themselves and national parliaments do not object. This creates a permanent democratic deficit and means that the text of the Constitution is not a fully accurate guide to its own provisions. A so-called "Flexibility Clause" (Art.I-18) permits EU Ministers to take new powers to themselves if they think the Constitution does not give the EU sufficient power to attain its very wide objectives. At present they have this power with regard to the single market. The Constitution extends it to all areas of government policy. These two provisions have no place in any democratic Constitution.

9. IT TRANSFERS POWER TO THE NEW EU TO DECIDE OUR FUNDAMENTAL RIGHTS IN THE LARGE AND EXPANDING AREA COVERED BY EU LAW.
At present it is national Constitutions and Supreme Courts that ultimately decide our rights, as well as the Court of Human Rights in Strasbourg, which is quite independent of and separate from the EU Court of Justice (ECJ) in Luxembourg. The Constitution gives the EU Court a human rights competence for the first time, which would confer on this "court with a mission", as one of its own judges once called it - that mission being to extend EU powers to the maximum possible extent through its case law - a vast new legal territory to rule over. The EU should respect our human rights; it should not have the power to decide what they are. Giving the EU Court the power to do decide human rights matters would introduce a new and expensive tier of judges and lawyers between citizens and the final Court that decides their rights in all areas covered by EU law. That includes national States when implementing EU law, which nowadays makes up the greater part of national legislation. The Constitution then makes it possible for these rights to be undermined by providing that the rights set out in the Charter of Fundamental Rights(Part II of the Constitution) may be limited "to meet objectives of general interest recognised by the Union" (Art.II-112). The Charter permits the death penalty to be imposed in time of war for EU-mandated military operations, even though all the individual Member States have decided to abolish the death-penalty in war-time (Art.II-62 and Declaration 12 on the Explanations of the Charter of Fundamental Rights).

10. AS A CONCESSION TO EUROPEAN EMPLOYERS, THE CHARTER OF FUNDAMENTAL RIGHTS FAILS TO STRENGTHEN WORKERS' RIGHTS TO ORGANISE AND ACT COLLECTIVELY
Article II-88 provides that workers have these rights "in accordance with Union law and national laws and practices". The Constitution protects an employer's right to lock out his employees, quite as much as an employee's right to go on strike, depending on what their national labour law lays down. In so far as the Constitution allows fundamental rights to be limited in the interests of the EU, some future ECJ judgement could threaten workers' rights that have been long fought for and established at national level. The Charter of Fundamental Rights is essentially secondary and subordinate to EU commercial and economic policy and is circumscribed by that policy.

11. EURATOM, THE EUROPEAN ATOMIC ENERGY TREATY,WHICH PROMOTES NUCLEAR POWER, IS MADE PART OF THE CONSTITUTION
Protocol 36 continues the EURATOM Community in being indefinitely, side by side with the new EU, and commits the EU Member States to supporting nuclear energy. With the advent of the East European members, the majority of EU States now use nuclear power for civil purposes.

12. THE CONSTITUTION ENSHRINES IRELAND'S ABORTION PROTOCOL, WHICH PREVENTS EU INTERFERENCE WITH IRELAND'S ABORTION LAW, OVER WHICH THERE WAS CONTROVERSY IN THE 1992 MAASTRICHT TREATY REFERENDUM
The Maastricht Treaty is now repealed and the relevant provision is reconstituted as Protocol 31 of the Treaty Establishing a Constitution for Europe.

13. IT SHIFTS EU LAW-MAKING BY THE COUNCIL OF MINISTERS TO A POPULATION-BASED VOTING SYSTEM WHICH ADVANTAGES THE BIG STATES AND RELATIVELY DISADVANTAGES MIDDLE-SIZED STATES LIKE IRELAND
The Constitution abolishes the weighted voting system that was agreed in the Treaty of Nice to provide for EU enlargement, and ordains that EU laws will be made in future by a "double majority" of States and population: 55% of the Member States, at least 15, as long as they include 65% of the EU's population (Art.I-25). Thus 15 States, if they satisfy the 65% population criterion, would be able to outvote 10. On the number-of-States criterion a blocking minority must be at least 11 States, so that that will be harder to assemble than before. This shift to a mainly population criterion for EU law-making makes it easier for the Big States with their big populations to get their way. It reduces the relative voting weight of middle-rank  Member States like Ireland. It would make EU laws easier to pass, which means there would be more of them. Legislative "efficiency" in the EU is not best gauged by the  quantity of laws it makes, but by their quality and democratic character. People want good laws, not more laws.

14. THE CONSTITUTION TRANSFORMS THE PRESENT "EUROPEAN UNION", WHICH IS A DESCRIPTIVE TITLE FOR VARIOUS FORMS OF COOPERATION BETWEEN ITS MEMBER COUNTRIES, INTO AN EU FEDERAL STATE, AND REDUCES IRELAND AND THE OTHER MEMBER STATES TO THE CONSTITUTIONAL STATUS OF PROVINCES INSIDE THIS NEW EUROPEAN FEDERATION
What is called the "European Union" at present  is  a descriptive term for various forms of cooperation between its Member States (See Title 1, Article A, of the Maastricht Treaty on European Union,1993, which states this). One of these forms is the European Community (EC). This Community still exists. It has legal personality separate from its Member States, all 25 of which still belong to it. Community (EC) law is supranational and has primacy over national law in any case of conflict between the two. The European Community (EC) covers mainly the economic and single market area, including the euro-currency.  Here the EC Member States have "pooled" their sovereignty and the EC Commission has the exclusive right to propose EC laws. In all other areas of government, however, the Member States have retained their independence and sovereignty, and cooperate with one another as free and equal partners internationally - or "intergovernmentally" in EU jargon: in  foreign affairs and military matters, crime and justice matters, and national  policy  on health, housing, education, social security etc.

The "European Union" that we currently belong to refers to all these different forms of cooperation taken together. But the EU does not exist as a legal entity as such. The present EU does not have legal personality  or an independent corporate existence in its own right. Therefore there is no such thing as "European Union" law, only "European Community" or "EC" law. Propagandists for the  Constitution confuse  the terms "Union" and "Community" deliberately, to prevent people realising that the proposed new Union, based on its own Constitution, would in legal terms be fundamentally different from the European Union that we are told we are honorary citizens of at present.  This new EU would have become a supranational Federal State, within which the present Member States would be reduced to the constitutional status of provincial states. Because the new Union would have the same name as the existing EU,the Federalist State-builders hope that people will not realise what is happening. Their long-concerted plan has been to get people accustomed to the name "European Union" first, and then change its constitutional and legal essence. That is why the 1993 Maastricht Treaty, from which the name "European Union" came, was titled the Treaty "on" European Union, not "of"  Union.  Maastricht did not set up a real Union that could act in its own right either internally or externally. Only the European Community, which the Constitution abolishes, could do that. The transformation of the present European Union from a mixture of different forms of cooperation between States into a European Federal State, is being done now with the proposed Constitution. Those pushing the Constitution hope that people will not notice the legal sleight-of-hand. If the Constitution is ratified we would become real citizens of a European Union for the first time,and  not just honorary ones as at present. We would owe this new Union real allegiance as a State and have obligations directly to it and not just through our own national States, for national Constitutions must be changed to transfer svereignty to the Union and give its Constitution primacy.  As with many Federal Constitutions the European Constitution provides that a Member State may withdraw from the new Union if it wishes, although the procedure it lays down for doing this makes it difficult(Art.I-60). Historical experience suggests that individual withdrawals from Federal States seldom take place. The more usual pattern in the case of Federations that do not last, is that they break up because of conflict between their members, so that everyone leaves, as it were.

The EU Constitution turns the EU into a State by means of four precise legal steps. FIRST, it repeals the existing EC and EU treaties (Art.IV-437). It thereby abolishes the existing European Union and European Community. SECOND, it establishes a new European Union founded on its own Constitution rather than on treaties between sovereign Member States (Art.I-1). A Constitution, as distinct from a Treaty, is an independent source of legal authority for a State,although history also shows many examples of States being set up by treaties. THIRD, it lays down that this Constitution and law made under it has primacy over the law, including the constitutional law, of its Member States, without any qualification or exclusions that would reserve powers to its Member States indefinitely (Arts.I-6). This makes the European Constitution the fundamental source of legal authority in the new EU, supplanting the constitutions of the Member States in that respect. FOURTH, it gives this new European Union, which henceforth derives its authority and legitimacy from its own Constitution, legal personality and independent corporate existence for the first time (Art.I-7). This makes the new EU legally separate from its individual Member States, just as Texas and Virginia are legally  separate from the US Federation and vice versa, even though the USA includes these provincial states. The Constitution enables the new EU State to act as sovereign over its Members and to enter into treaty relations with other States, just like any other member of the international community of States.

The Constitution could have excluded some national powers and competences permanently from the scope of this new EU and the primacy of its laws, in which case Member States would have retained  some of their original sovereignty and independence. But it did not do that. Member States still retain their own national Constitutions of course, just as Texas and Virginia do, but they are subordinate to the new EU Constitution, which is the fundamental source of authority for the new Union, just as the Federal Constitution has primacy in the USA and other Federations.

This does not mean that the new EU State will run everything, anymore than the early American or German or Indian or Russian Federations run, or ran, everything. The EU actually runs lots of things and potentially runs a lot more.  How much more will depend on which of their remaining powers or competences the Member States may agree to transfer to the new EU in the future.

The two main powers  of Statehood the new  EU would not yet possess if the Constitution is ratified is the power to impose taxes and the power to force its Member States to go to war against their will. However the "escalator" clause (Art.IV-444) would allow the European Council of Presidents and Prime Ministers to replace unanimity by majority voting for harmonizing indirect taxes. And the Constitution's Foreign Policy and Security provisions (Arts.I-41 and III-310) would permit some Member States to take the EU to war, so long as others do not object but "constructively abstain".

Apart from that, the new Union would have all the key features of Statehood: a Constitution, citizenship, a population, a territory, a currency, armed forces, a legislature, executive and judiciary, a Foreign Minister and diplomatic corps, some 100,000 pages of federal law, the right to conclude international treaties with other States in the ever-growing area of its exclusive competence -  and  now of course its own flag, anthem and annual public holiday, which are given a legal basis for the first time in the Treaty Establishing a Constitution for Europe. Moreover, it would have acquired these features  in a much shorter period of time than it took the US Federation historically to acquire them, although unlike the latter there is no European people or national community to give them a democratic basis, legitimacy and authority.

15. THE CONSTITUTION WAS DRAWN UP BY A CONVENTION THAT FAILED TO DO ITS JOB
This Convention was set up by the 2001 Laeken Declaration of EU Presidents and Prime Ministers. This Declaration charged the Convention with the task of producing proposals to make the EU more democractic, more transparent and closer to citizens. It was told to consider the possibility of restoring powers from the supranational level to the Member States, and the possibility "in the long run" of an EU Constitution. Instead of doing that the Convention, which overwhelmingly consisted of Federalist EU-State-builders, rushed headlong into drafting an EU State Constitution that does not propose rapatriating a single power from the supranational to the national level, but proposes rather to transfer over 60 further policy areas from Member States to the EU. ange a single European law, even if they wish overwhelmingly to do that.

16. THE CONSTITUTION FUNDAMENTALLY UNDERMINES DEMOCRACY
The Left has always been among the strongest upholders of democracy. The Left has traditionally stood for the right of peoples to self-determination and to chose their own government. This fundamental democratic right, which is a basic principle of international law, enshrined in the United Nations Charter, is violated by the Constitution's proposal to make the proposed new European Union, founded now for the first time on its own State Constitution, into the supreme source of lawful authority for its 25 Member States. The EU becomes the new legal sovereign for EU citizens, who will owe it real allegiance for the first time, over and above their own national States. Under the Constitution the sovereign powers of the new EU would be vested in its Council, Commission, Court and Parliament, to which we would all owe loyalty and obedience. We would become real citizens of the EU for the first time, not just as an honorary title, an adjunct to national citizenship, as at present under the 1993 Treaty of Maastricht, but with rights and obligations direct to the EU Institutions rather than through our national institutions as hitherto. In this EU Federation the laws for 450 million Europeans would be made by what is effectively an oligarchy, a legislative committee, of 25 politicians on the Council of Ministers, who are irremoveable as a group and collectively responsible to nobody. Those laws in turn are based on proposals from the 25-member, eventually 18-member, EU Commission, who are governmental nominees and not individually elected. European laws may be amended by the elected European Parliament, but only with the agreement of the Council and Commission, whose law-making power is therefore primary. The citizens of any EU Member State cannot change a single European law, even if they wish overwhelmingly to do that.

CONCLUSION
These proposed governmental structures for the greater part of Europe are profoundly undemocratic, quite apart from the neo-liberal economic ideology the Constitution makes it legally imperative for them to implement.  As democrats therefore, all socialists, Greens, anti-war activists, genuine liberals  and others on the Left, need to work side by side with democratic non-socialists and others, rejecting all association with racist or fascist elements, in the common international struggle to defend democracy in face of the proposed EU Constitution.

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SOURCE:  This document has been issued for public information.  It represents the views of some members of the National Platform who are on the political Left. It  has been vetted for legal accuracy by authorities in European law. It may be adapted or used in whole or in part in any way whatever, without need for acknowledgement to its source.  Please feel free to draw it to the attention of others who may be interested in this subject.

January 2005

 

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