Democrat Broadsheet 27 November 2007 (Number 23)
Lisbon Treaty will give the
EU a Federal State Constitution
Submission by CAEF to House of Lords EU Select Committee
1. Preamble
We submit that the "Treaty of Lisbon" or European Reform Treaty aims to achieve the same result as the 2004 "Treaty Establishing a Constitution for Europe" which was rejected by the French and Netherlands electorates in referendums in 2005. Both Treaties would establish what would be constitutionally, legally and politically quite a new European Union with the constitutional form of a supranational Federal State and would make us real citizens of that State, with real citizens' duties of obedience to its laws and loyalty to its authority, instead of our being nominal or notional EU "citizens" as at present.
For ease of reference we refer to the two treaties that have aimed or are aiming to establish an EU Constitution as the 2004 Treaty and the 2007 Treaty.
2. The 2004 and 2007 EU Constitutional Treaties
The 2004 Treaty was both a Constitutional Treaty and a Constitution, as indicated by its title: "Treaty Establishing a Constitution for Europe".
The 2007 Treaty, while being an EU Constitutional Treaty in that it amends the two existing European Treaties, namely the "Treaty on European Union" (TEU) and the "Treaty Establishing the European Community" (TEC), and thereby turns these two treaties together into the Constitution of the legally new European Union they would establish, it is not in itself that Constitution. The two amended treaties, the second of them renamed "Treaty on the Functioning of the Union", would be that. Together these two amended treaties would have exactly the same legal effect as the 2004 "Treaty Establishing a Constitution for Europe" in that they would establish what would be constitutionally, legally and politically a wholly new European Union which would be fundamentally different from the EU we have at present. They would give this new EU the constitutional form of a State for the first time, a supranational European Federation, and would make us all real citizens of this State instead of our being merely notional or honorary "EU citizens" as at present.
The amended "Treaty on European Union" (TEU) would become the constitutional part of the new EU Constitution, the part which would establish a new European Union quite different from the present EU. The "Treaty on the Functioning of the Union" (currently the TEC) would become the Constitution's "implementational" part, which would set out how the new Union would work and its main policies. The effect of this amending and renaming process would be that the Constitution of the new Union would be set out in two treaties instead of one, both having equal legal value. Thus the 2007 Lisbon Treaty would constitute a new European Union and give it a Constitution indirectly rather than directly, in contrast to the 2004 Constitutional Treaty.
3. The "constitutional concept" in the two Treaties
When the IGC Mandate for the Lisbon Treaty stated that "the constitutional concept is abandoned" and "the TEU and the Treaty on the Functioning of the Union will not have a constitutional character", or when Foreign Secretary David Miliband states that the 2007 Treaty differs "in absolute essence" from the 2004 Treaty, we submit they are seeking to distract attention from the new method of giving the EU the Constitution of a supranational EU Federation, without actually calling it a Constitution or without admitting that they are engaged in a Constitution-making process.
The 2004 and 2007 Treaties are both international treaties which would hand over national State powers to a supranational Federal-type entity. The content of the handover and the extent of the diminution of national sovereignty involved are to all intents and purposes identical in each Treaty. It has been estimated by the London-based Open Europe organisation that all except 10 of the 250 or so Articles of the new Treaty would be the same in legal substance as its predecessor. They would be mostly identical in wording also, except that the word "Constitution" would be omitted throughout. In other words, 96% of the new text would be the same as the EU Constitution which was rejected by the peoples of France and the Netherlands in their 2005 referendums.
We submit that what makes the Lisbon Treaty a Constitutional Treaty is that it would constitute a new European Union in the constitutional form of a State, not that it uses the word "constitution" in its title or text. We submit that the peoples of Britain and the other Member States are entitled to be made aware of the fundamental political character of the European Federation which the new Treaty would have the effect of establishing. They are entitled to know that the abandonment of the word "Constitution" the second time around has no practical significance.
4. The existing and proposed new European Union
What we call the European Union today - a name which derives from the Maastricht "Treaty on European Union" - is merely a general descriptive term for the various areas of cooperation between its 27 Member States: the so-called "Community" area of supranational European law deriving from our continuing membership of the European Community, and the "intergovernmental" areas of foreign policy and justice and home affairs, in which Member States still interact on the basis of retained sovereignty (v.TEU, Article 1). The present EU does not have legal personality or distinct corporate existence in its own right. It is clearly not a State, so that citizenship of it is purely notional or honorary, for one can only be a citizen of a State. That is why Maastricht was a "Treaty ON European Union", not "OF" Union. The proposed EU Constitution which would be brought into being by the Lisbon Treaty amending the two existing basic Treaties would in effect be the "Treaty OF European Union".
5. The three legal steps which the 2007 Treaty would take to turn the EU into a supranational European Federal State are, we submit:
i) Giving the EU legal personality
The first legal step would be for the 2007 Treaty to give the new European Union which it would establish its own legal personality and distinct corporate existence for the first time, something that all States possess. This new Union would be separate from and superior to its Member States, just as the USA is separate from and superior to California or Maine, or, the Federal Republic of Germany is separate from and superior to Bavaria or Brandenburg. Giving legal personality to this newly constituted Federal EU would enable it to sign treaties with other States in all the areas of its competence and conduct itself as a State in the international community of States. It would speak at the United Nations on agreed foreign policy positions of its Member States, just as in the days of the Soviet Union the USSR had a UN seat while Russia, Ukraine and Byelorussia had UN seats too. It would have its own permanent political President, Foreign Minister - to be called a High Representative - diplomatic corps and Public Prosecutor, and take to itself all the powers and institutions of the existing European Community, as well as the many new powers set out in the new Treaty.
The first sentence of the first Article of the 2004 Treaty stated: "This Constitution establishes the European Union." Clearly this would have been quite a new Union in constitutional terms compared with the EU which currently exists. The 2004 Treaty-cum-Constitution would have created a Federal European Union distinct from and superior to its Member States, with its own legal personality and distinct corporate existence in its own right, empowered to interact with the other sovereign States that make up the international community. The proposed 2007 Lisbon Treaty would achieve exactly the same constitutional result by inserting the following amendment in Article 1 of the "Treaty on European Union": "The Union shall be founded on the present Treaty and on the Treaty on the Functioning of the European Union. It shall replace and succeed the European Community". The 2004 Treaty said "this Constitution establishes" a new Union; the 2007 Treaty says the new Union, now endowed with legal personality, "shall be founded on" the two amended constituent treaties. The 2004 and 2007 treaties do exactly the same thing.
ii) Merging the supranational "Community" and "intergovernmental" areas
The second legal step in giving the constitutional status of statehood to the new EU Federation would be to abolish the distinction between the supranational "Community" and the "intergovernmental" areas of the two existing European Treaties (TEU and TEC). This would be done by replacing the word "Community" by the word "Union" throughout the Treaties, thereby bringing the previously intergovernmental areas, where Member States retained their sovereignty, within the scope of the supranational law of the new Union and giving the latter a unified constitutional structure. All spheres of public policy would thus come within the scope of supranational EU law-making either actually or potentially, as in any constitutionally unified State. One says "potentially" because further inter-State treaties would still be required to transfer the minority of law-making powers still remaining with the Member States to the new Union in the future, or to shift powers from the Union to its Member States.
An important "federalising" aspect of the new Union's constitutional structure would be the Treaty provision which would for the first time turn the European Council, the quarterly meetings of Member State Heads of State and Government, into one of the institutions of the new Union. This would mean that in constitutional terms European Council meetings would no longer be "intergovernmental" gatherings of Prime Ministers and Presidents outside supranational European structures, Those taking part, whether collectively or individually, would be legally bound to act in accordance with their obligations under the EU Constitution, which would have primacy over their responsibilities and duties as ministers of national governments in any case of conflict between the two. The Treaty lays down that the European Council shall define the general political directions and priorities of the new Union and that as one of the new Union's institutions it "shall aim to promote its values, advance its objectives, serve its interests" and "ensure the consistency, effectiveness and continuity of its policies and actions". The European Council would thus become in effect the Cabinet Government of the new Federal European Union. Its individual members would be expected to represent the Union to their Member States rather than their Member States to the Union - at least if they take their EU constitutional obligations seriously.
Furthermore, like all the Union's institutions, acts of the European Council, or if it "fails to act", would be subject to review by the European Court of Justice (Article 230 ff TEC as applied in the TEU). All spheres of public policy, supranational and national, would thus in principle come within the purview of the EU Heads of State or Government in the European Council as they exercise the political government of the new Union.
Another feature showing the state-like character of the new constitutional structure is the Treaty provision that the President of the European Council would preside over the summit meetings of Prime Ministers and Presidents for up to five years (two and half years renewable once). This further emphasises the new federalist nature of the European Council. There is no gathering or meeting of Heads of State and Government in other international contexts which maintains the same chairman or president for several years while the individual national politicians come and go.
We submit that the Treaty underlines the subordinate role of National Parliaments in the constitutional structure of the new Union by stating that "National Parliaments will contribute actively to the good functioning of the Union" by various methods set out in Article 8c. At present, National Parliaments have in any case already lost most of their law-making powers to the EC/EU. The citizens who elect them have lost their powers to decide these laws too. The provision of the Treaty that if one-third of the National Parliaments object to a Commission proposal, the Commission will have to reconsider it, but not necessarily abandon it, is small compensation for the loss of democracy involved. It is hard to think of a major function of a State which the new European Union would not have if the Lisbon Treaty were to be ratified. The main one would seem to be the power to make its Member States go to war against their will, although the Treaty provides that the EU may go to war while individual Member States may opt out. The obligation on the Union to raise its "own resources" in order to finance the attainment of its objectives confers on it taxation powers, although these would require unanimity to exercise. The new Union would have its own government, with a legislative, executive and judicial arm, its own political President, its own citizenry and citizenship, its own human and civil rights code, its own currency, economic policy and revenue, its own international treaty-making powers, foreign policy, foreign minister, diplomatic corps and United Nations voice, its own crime and justice code and Public Prosecutor. It already has its own flag, anthem, motto and annual official holiday de facto.
All the classical Federal States which have been formed on the basis of power being gradually surrendered by lower constituent states to a higher Federal authority have developed in this way, sometimes over quite a long period of time. Nineteenth century Germany, the USA, Canada, Australia and Switzerland are the principal examples. Indeed the EU has accumulated its powers much more rapidly than some of these classical Federations, in the short historical time-span of some sixty years. The key difference between these classical Federal States and the new European Union, however, is that the former were established by distinct national communities with their own languages, histories, cultures and communal solidarities, which gave them a democratic basis. There is no European people or "demos" except statistically. In our submission the Lisbon Treaty is an attempt to construct a highly centralised European Federation artificially, from the top down, out of Europe's many nations, peoples and States, without their free consent and knowledge.
iii) Transforming the peoples of the Member State from notional EU citizens into real ones
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 loyalty to its authority and institutions. A State must have citizens, who are its members and inhabitants, and it cannot exist without them. One can only be a citizen of a State. If the 2007 Treaty is ratified, the new European Union which it would establish would thereafter have prime call on its citizens' allegiances as the constitutionally, legally and politically superior entity, over and above their obligations to their national constitutions and laws, with all the implications of that.
At present EU "citizenship" is an entirely notional status attaching to membership of one of the 27 Nation States that make up the current EU/EC. Citizens of the Member States have certain European Community rights attaching to their national citizenship, but they are not citizens of a supranational entity, for one can only be a citizen of a State and neither the Union nor Community is yet that. The 2007 Treaty would radically alter this position by establishing a real supranational EU Federation which people would be made real and not just notional or honorary citizens of. One illustration of the constitutional shift the Treaty would make from the present European Union of national States and peoples to a new federal Union of European citizens is that the European Parliament, which at present consists of "representatives of the peoples" of the Member States, would under the Lisbon Treaty consist of "representatives of the Union's citizens".
All States have codes setting out the rights of their citizens. The EU Charter of Fundamental Rights would be that. It would be made legally binding by the Treaty and would become an essential part of the new Union's constitutional structure. The Charter, which constituted Part 2 of the 2004 "Treaty Establishing a Constitution for Europe", is no longer set out in full in the 2007 Treaty although it is made legally binding by it. It would be binding on the Union's own institutions and on Member States in implementing European laws, which nowadays make up well over half of all new laws we must obey each year. This would give a new and extensive human and civil rights jurisdiction to the EU Court of Justice and would make that Court the final body to decide what people's rights are in the vast area covered by European law, as against national Supreme Courts and the Court of Human Rights in Strasbourg, which are our final fundamental rights courts today. Henceforth EU citizenship would entail real and not just notional rights and duties vis-a-vis the new Union, over and above the rights and duties entailed by national citizenship. In any case of conflict between the two the rights and duties attaching to the Union level would be primary because of the legal superiority of European over national law. The final decision on any boundary issues would be made by the EU Court of Justice as the new Union's Supreme Court. The federalizing influence of a Supreme Court as it exercises a rights jurisdiction is well illustrated by the role of the US Supreme Court in the constitutional evolution of that country.
6. Conclusion
Our submission is that the central constitutional purpose of the Lisbon Treaty is to turn the citizens of the 27 EU Members States into citizens of a supranational European Federation, with all the implications of that, if possible without their realising it and without permitting them any say in the matter.
Because the terms European Union and EU "citizen" and "citizenship" have been in use since the 1992 Maastricht Treaty, those pushing the EU State-building project hope that the peoples of the Member States will not notice the enormity of the constitutional change proposed. These already familiar terms would continue to be used as if nothing had changed, although their legal substance would be transformed fundamentally by the new Treaty and the EU Constitution which it would establish. This is central to the strategy of deception being employed by those who deny that Lisbon is a Constitutional Treaty which would fundamentally affect our democracy, national institutions - including parliament, independence and civil rights and those of our children, grandchildren and future generations.
27 November 2007