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Wednesday, April 06, 2005

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FIVE STEPS

THE FIVE STEPS THAT WOULD MAKE US CITIZENS OF AN EU FEDERATION

The Treaty Establishing a Constitution for Europe would give the EU the constitutional form of a European State in five logical legal steps:

STEP ONE to an EU Federation would be to repeal all the previous European treaties from the 1957 Treaty of Rome to the 2003 Nice Treaty and thereby abolish the existing European Union and European Community. Article IV-437 provides: "This Treaty establishing a Constitution for Europe shall repeal the Treaty establishing the European Community, the Treaty on European Union and … the acts and treaties which have supplemented and amended them."

STEP TWO would be to establish in their place what would be constitutionally, legally and politically quite a new European Union, founded like any State upon its own Constitution. Article I-1 provides: "Reflecting the will of the citizens and States of Europe to build a common future, this Constitution establishes the European Union..." The plain meaning of these words is that the new European Union would be a different Union from that which currently exists. A Constitution in this context, as distinct from a Treaty, is an independent source of legal authority for a State. The Constitution lays down that the new Union would be the legal successor of the existing Union and Community and that it would take on board the 100,000 or so pages of existing Community law, as the European Community would be henceforth defunct (Art.IV-438). Those pushing the Constitution may well have the hope that because the same name, "European Union", is used before and after, people will not notice the profound legal-political significance of the change being proposed.

STEP THREE to an EU State would be to lay down that the Constitution of this new Union and the laws made under it shall have primacy over the law, including the constitutional law, of its Member States, just as in any Federation, without any qualifications or exclusions that would reserve some policy areas for "intergovernmental" action among States that still retained some sovereignty. If that had been done, as in the original Maastricht Treaty, it would have kept such policy areas beyond the reach of supranational Federal law. Article I-6 provides: "The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States." This primacy of supranational European law has never been stated in a European Treaty before. Unlike the present EU and the treaties it is based on, which recognise that Member States remain independent and sovereign in certain policy areas - as the "pillar structure" of the Maastricht Treaty shows - the proposed Constitution would bring all areas of government policy within the scope of either the direct laws or the coordinating powers of the new European Union. The Constitution rather than a series of treaties would become the fundamental source of legal authority for this new EU, supplanting the national constitutions of the Member States in that respect, although these constitutions would still continue to exist. This would be the same as in the Federal USA, where individual states still retain their state constitutions, in some cases from their pre-Federal Union days. National constitutions and laws would however have to be changed in the course of ratifying the Treaty Establishing a Constitution for Europe, precisely in order to recognise the constitutional primacy of the new Union. The ratification process of this Treaty is therefore a process whereby the 25 Member States formally strip themselves of their constitutional sovereignty as States and subordinate themselves to the authority of a supranational entity that possesses all but two of the key features of a fully-developed Federation.(For these two features see Step 5 below.)

If Article I-6 gives the proposed new European Union direct federal authority and power, Article I-1 gives it indirect coordinating power. The constitutional and political superiority of the EU over its Member States is first asserted in the important second sentence of Article I-1 , which establishes the new EU: “The Union shall coordinate the policies by which the Member States aim to achieve these objectives (i.e. the objectives they have in common), and shall exercise on a Community basis the competences they confer on it.” Convention Chairman Valery Giscard d'Estaing has helpfully explained in a press interview (Wall Street Journal Europe, 7-7-2003) what exercising EU powers “on a Community basis” means: “It wasn't worth creating a negative commotion with the British. I rewrote my text with the word federal replaced by communautaire (i.e. “on a Community basis”) which means exactly the same thing.” (also reported in Hansard). So the new Union established by the Constitution would exercise manifest federal authority and powers. This second sentence of Article I-1 makes it constitutionally mandatory (“The Union shall coordinate”) on this new, superior EU entity to coordinate all the policies by which its Member States aim to achieve their common objectives. These objectives are set out in Article I-3 and are about as wide and all-encompassing as could be. They include, inter alia, promoting the Union’s values, which are set out in Article I-2, as well as promoting the well-being of its peoples and its interests vis-a-vis the wider world. This second sentence of Article I-1 has the legal-constitutional effect of giving the proposed new Union sweeping general coordinating powers of government over 450 million people. Legally speaking, Article I-1 is an important indirect buttress of the direct powers of Federal European government provided for in Article I-6 .

STEP FOUR to a Federal EU would be for the EU Constitution to give this new European Union legal personality and its own separate corporate existence for the first time. This would allow it to make treaties in its own right with other States and conduct itself as a State in the international community of States. Article I-7 provides: "The Union shall have legal personality." This Article would make the new EU legally separate from its Members, just as the Federal USA is separate from its constituent member states like Texas, New York, California etc., which retain their own state constitutions but are subordinate to the Federal US Constitution. In the USA local states still have taxation powers, different laws on the death penalty, marriage, education, social security etc., but they do not delude themselves that they are independent states. The Federal USA is sovereign over them and is recognised as such by other States. Likewise in the former Soviet Union such states as Ukraine, Byelorussia etc. had their own foreign ministers, separate seats at the UN, state governments etc., but they recognised their subordination to the sovereign Federal USSR, as did everyone else.

STEP FIVE would be to make us all real citizens of a real European Union with its own legal personality for the first time. Article I-10 provides: "Every national of a Member State shall be a citizen of the Union … Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Constitution." This is real citizenship, not a pretend citizenship as at present. For one can only be a citizen of a State, an entity possessing legal personality, whose government and institutions make laws one must obey. Obedience to those laws is the first duty of citizenship. The pre-Constitution EU does not have real citizens. The post-Constitution EU would have. The pretence that we are already EU citizens in some vague honorary sense serves to deceive people into thinking that the proposed Treaty-cum-Constitution would make no real change to their legal-political status, whereas it would fundamentally change it. It is the counterpart of the pretence that a fully-fledged European Union that we are already fully members of already exists, established by the Treaty on European Union (Maastricht), so that people will not notice the transition to a real European Union in the constitutional form of a supranational state by means of the Treaty Establishing a Constitution for Europe, for it will have the same name the name although its legal-political reality will be profoundly different. "Citizenship of the Union shall be additional to national citizenship and shall not replace it," states the Article. But our Union citizenship would be our primary citizenship henceforth. It would be made so if the Treaty is ratified so as to make the EU Constitution and law made under it primary and superior over national Constitutions and law - with national Constitutions being amended to recognise this.

By these five legal steps the Treaty Establishing a Constitution for Europe would establish a new European Union in the constitutional form of a European Federation, within which the present sovereign Member States would, by corollary, be reduced to the constitutional status of provincial states or regions. Their citizens in turn would have the new European Union with its Constitution installed over them as their new sovereign ruler and government. This new EU would not yet have all the powers of a fully-fledged Federation. The two principal powers it would lack would be the right to levy taxes and to compel its component Members to go to war against their will, although the new Union would be able to go to war on the basis of a sub-set of its Member States as long as the others "constructively abstained"".

Apart from these two aspects of taxes and war, the new Union would have all the key features of a developed Federal State: a population, a territory, a Constitution, citizenship, 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 impose fines and other sanctions on its Member States for failing to obey that law, the right to conclude international treaties with other States - and now of course its own flag, anthem and annual public holiday, which would be given a legal basis in the Treaty Establishing a Constitution for Europe for the first time (Art.I-8). If the Constitution is ratified and brings the new Federal EU into being, its advocates are confident that it only a matter of time before it would get these remaining taxation and military powers to complete the structure of a fully-fledged Federation.

For those of you who wish to follow up my suggestion of renouncing EU citizenship, you can find information in my previous posts here renunciation-of-eu-citizenship and here solemn-treaty-obligations and here UN-1503-procedure.

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