Aktualisierung: 10. Juni 2006,
Thinking about the draft of a
At the time of writing fifteen states have ratified the draft of a
constitution, but two have rejected it. Six countries have postponed an
eventual referendum or ratification, one (UK) has suspended the process
and one is still, in the near future, expected to ratify the treaty.
Anyhow, the European Union finds itself in an impasse.
According to some, the draft constitution is "dead", although those
states which have already ratified the text disagree. Others say, that
the text should be resubmitted, without substantial changes, to the
rejecting states, though one may doubt that such a step respects the
people of the states concerned. Still others argue that one can
‘cherry-pick’ the best elements of the text and throw the rest into the
wastepaper bin: advice that ignores the political balance struck by the
present text and which obviously provokes a new set of arguments about
which were the cherries.
To escape the impasse, it may be helpful to look at the history and the
structure of the current text and to ask what should be the meaning of
On 20 June 2003 the European Convention
presented the ‘draft of a
treaty establishing a constitution for Europe’ to the European Council
at its conference in Thessaloniki. The official text of the German
edition carries the © Europäische Gemeinschaften, 2003, ISBN
92-78-40169-2. This draft consisted of two parts, both of them
including a preamble. The first part, which bears no title, is the
draft of a Constitution proper and in this paperback-edition is 75
pages long. Part II comprises the ‘Charter of Fundamental Rights of the
Union’; to a large extent these rights are general humans rights and do
not merely concern citizens of the European Union. This second part is
32 pages long. These two parts are followed by three ‘protocols’: ‘on
the role of national parliaments in the European Union’ (4 pages), ‘on
the application of the principles of proportionality and subsidiarity’
(4 pages) and ‘on the representation of citizens in the European
Parliament and the weighting of votes in the European Council and in
the Council of Ministers’ (5 pages). Including the list of Convention
members and a table of contents, the whole publication amounts to VIII
+ 169 pages.
In fact, a more correct title would have been: ‘... a Constitution for
the European Union’. because the Union does not cover the whole of
Nevertheless, on the whole the draft text is transparent and readily
understandable – maybe not even too long. However, this publication
refers in several places to a Part III, for example in Part I, article
40, (5) - (7). This Part III is not included in the publication, yet
nowhere is it said that the published text is incomplete.
But one may ask why the protocols were not included in Part I of the
In particular the protocol on the application of the principles of
proportionality and subsidiarity goes to the very heart of the entire
Constitution. The principle of proportionality postulates that the
costs and drawbacks of any action be limited as far as possible, for
whomsoever. I believe this principle to be the basic principle of the
whole of ethics, and to constitute the most profound and characteristic
cultural achievement of Europe. For all irresponsible actions can be
recognised by their failure to correspond to the principle of
proportionality: that is to say, they undermine in the long term and
universally the very values, which they claim to promote in the short
term. This would also be the case of a politics of mere economic gain:
the very gain itself would be undermined in the long run.
In order to avoid that the principles of proportionality and
of subsidiarity be only piously referred to but not adhered the
protocol outlines the necessary measures in order to ensure adherence
to these principles. It says, ‘Draft European legislative acts shall be
justified with regard to the principles of subsidiarity and
proportionality. Any draft European legislative act should contain a
detailed statement making it possible to appraise compliance with the
principles of subsidiarity and proportionality. This statement should
contain some assessment of the proposal's financial impact and, in the
case of a European framework law, of its implications for the rules to
be put in place by Member States, including, where necessary, the
regional legislation. The reasons for concluding that a Union objective
can be better achieved at Union level shall be substantiated by
qualitative and, wherever possible, quantitative indicators.’ (n. 4) In
addition, the European institutions and the national Parliaments are
asked to control the application of these principles.
The principle of proportionality is also really formulated
only in the protocol itself: ‘Draft European legislative acts shall
take account of the need for any burden, whether financial or
administrative, falling upon the Union, national governments, regional
or local authorities, economic operators and citizens, to be minimised
and commensurate with the objective to be achieved.’ (n. 4).
The principle of subsidiarity – which in reality is only a consequence
of the principle of proportionality – is also extremely important,
since it rules out the ‘Brussels centralism’ that so many people insist
they fear. By this principle, the European Union may become active only
where problems cannot be appropriately resolved on the national,
regional or local level.
That especially the principle of proportionality is really treated only
in a protocol and not inserted in the main text, is, given its
fundamental importance, extremely astonishing and might have
contributed to many misunderstandings.
The Additon of part III
Later, the European Parliament published
text with the same
title, but this time with the additional rubric: ‘adopted by consensus
in the European Convention, and on the 13 June and 10 July 2003
presented to the president of the European Council in Rome’ (ISBN
92-78-40195-1). Compared with the publication mentioned above, we have
now a book of VIII + 352 pages. In this version, there is added to the
first two parts a Part III on ‘the policies and functioning of the
union’ (180 pages) and a Part IV, ‘general and final clauses’ (5
pages). Two further protocols were added, and three ‘declarations’ In
Part IV, Article 6 says explicitly: The protocols to this treaty form
an integral part thereof.’ (IV-442)
What has happened here? In essence, Part III attempts to summarise the
previous European treaties To a large extent it consists of specific
laws, which should not be part of a constitution. I take a random
example: in Section IV, speaking of agriculture and fisheries, Article
122 (3) says: ’For the products specified in Appendix I, Articles
III-123 to III-128 apply.’. In “appendix I” you find mentioned the
treatment of natural honey and birds’ eggs.
In the Inter-governmental Conference of 18 June 2004 some formulations
were changed and a continuous numbering of all the articles introduced.
In France, before the Referendum, copies
this second long text
were distributed to all households – but leaving out just those
protocols which are so important.
The European Parliament itself ordered a new edition entitled:
‘The European Parliament and ... the European Constitution’
(Publications’ Office, ISBN 92-823-1897-4). This paperback of 201 pages
in small print has a Preface by Josep Borrell Fontelles, President of
the European Parliament. Then it reports, "the resolution accepted by
the European Parliament on the 12th January 2005 on the Treaty for a
Constitution for Europe" and the text of the "Treaty for a constitution
for Europe" itself, which is no longer called a ‘draft treaty’. The
Parliament ‘endorses this ratification without difficulty’. It is
astonishing to realise that again, in this official publication which
appeared simultaneously in other European languages, all the protocols
and declarations are omitted, although they explicitly belong to the
Those who wish to procure themselves the actual protocols and
declarations, in the Information Office of the European Parliament in
Brussels, are referred to another desk outside this Office, where the
texts can be printed for them personally.
Meanwhile, we have 36 protocols and three annexes together with 30
declarations concerning articles of the four parts of the Constitution,
11 declarations on the protocols, and 7 declarations of individual
states: all these constitute no less than 197 A4 pages in small print.
There is an English edition (ISBN 92-824-3072-3) of 460 pages, of this
‘additional’ material, presented as a second volume of the draft.
This is the scandal. It seems that all these new supplementary
protocols and declarations only contribute to bury under them the heart
of the constitution so that it can be left aside “because nobody is
interested” in all these appendices.
To review: A constitution is the attempt
foundations of a community convincingly, and to serve its
self-government and its self-limitation. A constitution is a
fundamental mode by which a community guards against arbitrary
political action and avoides impasses for future action as are
represented just by the actual situation of the EU. It provides the
framework and the foundation of specific positive laws: but those laws
themselves do not belong to a constitution.
The text of a constitution needs to be accessible and
understandable for all citizens, including those without higher
education or special expertise.
The Constitutional Convention had begun its work with the following
goal: “It proposes measures to increase the democracy, transparency and
efficiency of the European Union, by clarifying the contribution of
national parliaments to the legitimate functioning of the Union, by
simplifying decision-making processes, and by making the functioning of
the European Institutions more transparent and comprehensible.”
(Preface to the first edition mentioned above)
After all the unfortunate complications I have described (and
especially the fact that in several versions of the text, integral
elements could be omitted without anyone being disturbed), it seems
evident that the draft of the Constitution requires a substantial
editorial re-treatment, in order to become actually ‘transparent and
comprehensible’. Individual laws do not belong into a constitution, and
it is meaningless to provide a constitution with 36 protocols and
countless supplementary declarations. Nor will the draft Constitution
be saved by adding still another protocol "on the social dimension of
Europe" as seems to have been proposed within the German Government..
My suggestion, therefore, is to restrain to the original parts I and
II, integrating part IV as a conclusion of part I. Especially the
protocol on the principles of proportionality and subsidiarity should
enter in the main text. One should also avoid unnecessary repetitions
within part I and part II (e.g. I-10 (2) b and II-100 are identical).
These should simply be omitted. Part III should appear in a separate
publication and not be part of the constitution.