From Socialist Voice, October 2007

A final abandonment of national independence

The revised EU constitution, whose main elements were agreed at the German-chaired EU summit meeting at the end of June, will take the form of amendments to the two existing treaties, the “Treaty on European Union” and the “Treaty Establishing the European Community.” This will be a change from the proposal to repeal the existing treaties entirely and substitute for them the “Treaty Establishing a Constitution for Europe,” which was signed in October 2004 but was rejected by French and Dutch voters in the summer of 2005.
     The new treaty will be called something different, and the word “constitution” will not occur in either its text or its title. The provisions to give a legal basis to the symbols of EU statehood—the flag, anthem, motto, and annual day—will be dropped, while at the same time the reality of the EU statehood that they symbolise will be brought into being, and the flag, anthem etc. will continue in use anyway, as they have already existed for years without any legal basis.
     Some other presentational changes will be made, but the new treaty will be legally as much a constitution as the previous one, for it will constitute or establish for the first time a legally new European Union in the constitutional form of a state, and will make us all real citizens of that state.
     This would be the most important step to affect the Irish state since its establishment in 1922. It would be the final abandonment by Fianna Fáil and the principal Irish political parties of all pretence to concern for democracy or national independence, on which their claim to historical legitimacy has rested.
     The Taoiseach, Bertie Ahern, the German Chancellor, Angela Merkel, and other EU politicians have admitted frankly that the revised treaty will contain 90 per cent or more of the constitution that French and Dutch voters rejected two years ago. By not calling it a constitution, the EU elite hope that they will be able to avoid referendums and will be able to push it through national parliaments without giving citizens a say.

What it aims to do

The treaty embodying the revised EU constitution (though it will not be called that) would do six important things.
     1. The new treaty would add to the powers of the Brussels institutions—which already make the majority of our laws—in more than forty new policy areas, including energy, transport, tourism, public services, space, civil and criminal law, civil protection, public health, and budget, while correspondingly reducing the powers of national states, their national parliaments and citizens.
     2. In making those laws, the new treaty would increase the voting weight of the bigger states and reduce that of smaller states, such as Ireland.
     3. It would deprive member-states of the right to have a representative at all times on the European Commission, the body that has the monopoly of proposing European laws. Big states as well as small ones would lose a permanent commissioner; but the economic and political weight of the former makes them inherently better able to defend their interests without such representation.
     4. It would contain a mechanism to enable majority voting for European law-making to be extended to new policy areas by agreement among governments, without the need for new treaties or treaty ratification.
     5. It would make the EU “Charter of Fundamental Rights” legally binding on member-states and their citizens. This would give the twenty-seven judges of the European Court of Justice in Luxembourg—which has one Irish representative—the final decision on the wide range of human rights matters covered by the charter, as against national constitutions and supreme courts or the Court of Human Rights in Strasbourg. This would greatly extend the power of the EU court, an institution notorious for “competence creep,” which one of its own judges once characterised as “a court with a mission”—that mission being to extend the powers of the European Union as widely as possible by means of its case law.
     The charter would apply in all areas of EU decision-making, which now makes most of our laws. It could lead to uniform standards being imposed throughout the European Union in areas of human rights, where there are significant national differences—for example trial by jury, rules of evidence, censorship laws, conscientious objection to military service, succession rights to property, family law, and the rights of children and the elderly. It could lead to jurisdictional disputes between the EU Court of Justice in Luxembourg and the Court of Human Rights in Strasbourg, as the former would have supremacy in the event of any conflict between the two.
     Moreover, the constitution would provide that the exercise of the rights and freedoms recognised by the charter could be limited “to meet objectives of general interest recognised by the Union.” This means that the rights set out in the Charter of Fundamental Rights would not be fundamental after all but could be varied in the interests of the smooth running of the market. Our rights would no longer be decided by democratic contestation but would become “marketised.”
     6. The most important thing the new treaty would do would be to give to the new European Union that it would legally establish the constitutional form of a supranational state for the first time, making this new union separate from and superior to its twenty-seven member-states. This would make the European Union like the United States, in that the United States is separate from, and constitutionally superior to, California or New York. We would all be made real citizens of this new EU state, rather than notional or honorary European “citizens,” as at present; for one can only be a citizen of a state.
     It is this that gives the new treaty the character of a constitution or basic law for the legally new European Union that it would establish.

The three legal steps to EU statehood

This change would be accomplished by three essential legal steps.
     1. The first legal step would be for the treaty to give the new European Union for the first time its own legal personality and distinct corporate existence—something that all states possess. This would enable the newly constituted European Union to sign treaties with other states, have its own president, foreign minister (whatever called), diplomatic corps and public prosecutor and to take to itself all the powers and institutions of the existing European Community, which already has legal personality and which now makes most of our laws.
     It is important to realise that what is called the European Union at present has no legal personality or corporate existence in its own right, and what is termed EU “citizenship” has no legal content. Properly speaking, there is no such thing as European Union law, only European Community law. That would change with the proposed new treaty.
     What we call the European Union now—a name that derives from the Maastricht Treaty on European Union (1992)—is merely a general descriptive term for the various areas of co-operation between its twenty-seven member-states, the area of supranational European law deriving from our continuing membership of the European Community and the “intergovernmental” areas of foreign, justice and home affairs, where member-states still interact on the basis of retained sovereignty.
     2. The second legal step would be to abolish this distinction between the supranational “community” and the “intergovernmental” areas of the two existing treaties, the Treaty on European Union and the Treaty Establishing the European Community. All spheres of public policy would thus come within the scope of supranational EU law-making.
     The newly established union would then possess all the essential features of a fully developed state, except the power to impose taxes and the power to take its constituent member-states to war against their will.
     3. The third legal step would be to make us all real citizens of this new EU state entity, with the normal citizens’ duties of obedience to its laws and institutions and loyalty to its authority, over and above our obligations to our national constitutions and laws.
     Those pushing the EU state-building project hope that voters will not notice the radical character of the proposed changes: after all, does the European Union not exist already, and are we not already EU “citizens”? These familiar terms would continue to be used, as if nothing had changed, though their legal substance would be transformed.
     It is a big step to turn the citizens of the twenty-seven member-states into citizens of a supranational United States of Europe that is separate from and superior to their own national states and constitutions. It can be done only by deception and bullying—and above all by avoiding referendums that would enable people to decide such a fundamental constitutional change themselves.
     The strategic deception lies in the elaborate charade of the Maastricht Treaty on European Union (1992) and the new Treaty of European Union, which the proposed Revised Constitutional Treaty in effect would be, though it will be given some spin-doctor’s title such as “Reform Treaty,” to make it easier for the EU elite to get it ratified.
     By such sleight of hand we are to be made real citizens of a real European state that is superior to our own national states.
     Those pushing the new treaty hope that we will have real obligations of obedience, solidarity and loyalty to the new European Union imposed upon us without our knowing or realising that this is happening. If they succeed we can predict that the popular reaction will be all the more explosive when people realise in time what has been done.

“The substance of the Constitution is preserved. That is a fact.” —Angela Merkel, Chancellor of Germany

“We have not let a single substantial point of the Constitutional Treaty go.”—José Zapatero, Prime Minister of Spain

“All the earlier proposals will be in the new text but will be hidden or disguised in some way.”—Valéry Giscard d’Estaing, former President of France and chief architect of the original EU Constitution


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