The fact that the EU's founding Treaties may be characterized as a "Constitutional Charter" could lead one to describe them as "a Constitution". However, this does not necessarily mean that they are identical or similar to the Constitution of a State. Actually, the founding Treaties reflect the fact that the EU, which derives its authority from its Member States, lacks some of the essential characteristics of a State.
Let us put aside the question of democracy (i.e. the more or less democratic contents of the EU's Constitutional Charter), at least for the time being. It has little to do with the comparison we are trying to make : there have been and there still are non-democratic States with Constitutions. Therefore, that should not be our criteria : we are not trying to assess whether the EU has a good Constitution, just whether it has one at all, which could be assimilated to the Constitution of a State. The same thing could be said about the system of separation of powers. In other words, the question is whether the founding Treaties of the EU give it the essential elements which characterize sovereign States.
Actually, the Union is far from having the means and resources which are necessary for a complete system of governance :
- legal means : the implementation and control of Community law, for the most part, probably more than 90 per cent, lies in the hands of national administrations and courts;
- human resources : the total number of staff of the EC is just about half of the municipal staff of a city like Paris35 ;
- financial resources : the EC budget represents a tiny proportion of the gross domestic product of the Member States, i.e. 1.13% in 1999, and the major part of its expenses (85%) is managed by the Member States' administrations36 and paid directly to their beneficiaries by them; although the EU has its own resources (i.e. its budget does not depend, unlike the UN or other international organizations, on contributions by Member States), it has neither the power to levy taxes, nor to establish these resources, whose nature and level are laid down in a Decision which has to be ratified by the Member States;
- administrative and technical capacities : the Community has very little operational means of control and action at its disposal; administrative expenditure represents only 4.6% of the total Community budget;
- means of coercion: the EU also lacks the means of coercion which are usually the attributes of a sovereign State : police and army37.
Therefore, the EU is, and will probably remain, almost entirely dependent on its Member States and on their legislative, executive, administrative and judicial authorities, firstly for inspiring and secondly for applying and controlling the implementation of the rules which it adopts. One has fully to grasp this feature, in order to avoid falling into a misconception of the EU system.
One thing which is probably clear for all citizens of the EU is that it is not a State: they know, for instance, that the EU has no Head of State. On the other hand, the component Members of the EU do have all the attributes of States : Head of State, Head of Government, army, police, courts, prisons, ...38
· The EU is not a Nation State
An important criterion in the law dictionary definitions of a Constitution refers to "a Nation or State". On this point, the answer is clear and straightforward. The EU, although it has some attributes of a State, is clearly not a State; nor do the citizens of the Union make up a single Nation.
Black's Law Dictionary defines a State as :
"A people permanently occupying a fixed territory bound together by common-law habits and custom into one body politic exercising, through the medium of an organized government, independent sovereignty and control over all persons and things within its boundaries, capable of making war and peace and of entering into international relations with other communities of the globe".
Let us consider some of the elements of this definition.
- A single people, or several peoples ?
The first element in this definition of a State refers to "a people" in the singular, and so does the preamble of the USA Constitution, which begins with the words "We the People of the United States". As far as the EU is concerned, it is undeniably made up of several Nations, and the Community Treaty refers in its very first preambular clause to "an ever closer union among the peoples of Europe", in the plural.
The notion of the existence of a single people should not, however, be exaggerated. There are many States whose citizens have different origins and who speak different mother-tongues, and it is quite normal for everyone to have multiple affinities and loyalties. We can think of ourselves not only in terms of national citizenship or by reference to a common language, but also to the locality or region where we come from (for example, a Frenchman may also think of himself as being from Brittany, a German from Bavaria, and so on), and these affinities can also embrace factors going beyond national boundaries. It is undoubtedly the case that Europeans share some important and distinctive things in common, distinguishing them from other peoples and societies, geographically, historically and culturally :
Geographically, Europe is a more or less distinct entity, forming a peninsula with its extensive sea-coasts in the North, the West and the South. As far as a land frontier in the East is concerned, the Ural Mountains form natural landmarks separating Europe from Asia, but one has to admit that it is not always obvious to decide, on purely geographical grounds, exactly where the limits are.
Historically, Europeans share their roots in the civilisations of Ancient Greece, Rome and Judaeo-Christianity. By the time of the Enlightenment, the term "Europe" as such had gradually been adopted. Rousseau even went so far as to announce that: "Il n'y a plus aujourd'hui de Français, d'Allemands, d'Espagnols, d'Anglais même, quoi qu'on en dise; il n'y a que des Européens."39
Culturally, notwithstanding its richness and diversity, Europe is clearly quite distinct from other continents, although the cultural differences between Europe and America are naturally lesser; but one could also stress that the so-called "European social model" is different from the American one.
- Sovereignty and the attribution of powers
Turning to the second element of the definition of a State: a State is said to have "independent sovereignty". Black's dictionary defines "sovereignty as "the self-sufficient source of political power, from which all specific political powers are derived".. In other words, a State enjoys sovereignty and power as a matter of right, over all fields of government except for those which are specifically removed from the remit of the State by the Constitution.
Very clearly, the EU and the EC do not have such "independent sovereignty" or "Kompetenz-Kompetenz" , as the Germans call it. On the contrary, the EC is governed by the principle of the attribution of powers, which is enshrined in the EC Treaty40 : "The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein."41.. This means that, in contrast to Nation States, which are sovereign by definition, the EC has no power, except for those powers which have been specifically attributed to it by the Treaties. Each time the EC acts, it must do so on the basis of a specific Treaty provision which gives it the corresponding power, and this requirement is strictly controlled by the Court of Justice42.
Contrary to what some still think, Article 308 (ex-Article 235) of the EC Treaty does not allow for the exercise of any power falling outside the scope of the Treaty. Whilst it is true that the formulation of that Article is not very precise, such an extensive recourse to it is not possible (at any rate, it is no longer possible), either politically or legally. The Council takes a much more restrictive approach now to the use of this provision than it did in the past43, especially after the Court of Justice handed down its Opinions 1/9444 and 2/9445. One could also mention, in this connection, the "Maastricht judgments" given by the German46 and the Danish47 Supreme Courts.
- Control over all persons and things
The third element in Black's definition of a State refers to it as having "control over all persons and things within its boundaries". On this point, although the Community has the power to regulate many sectors of the economy, it does not actually have control over all persons and things. It has to rely on the Member States to use the administrative and coercive machinery which is at their disposal alone, in order to ensure the proper application of Community law.
- War and peace
A State, according to the fourth element in Black's definition of this term, is "capable of making war and peace". The EU does not have any such power : it has no army, no common defence, and it does not participate in a military alliance. Nevertheless, the Community and the Union are able to take certain other steps which are considered as unfriendly in international law, for example by imposing a trade embargo or other sanctions on a third State. Moreover, the progressive framing of a common defence policy is explicitly contemplated by the Treaty 48, and is now being actively discussed.
- International relations
One of the last elements in Black's definition of a State mentions "entering into international relations with other communities of the globe".. The EC has legal personality and treaty-making power, but it can only conclude international agreements in respect of those matters which fall within its powers. To the extent that an international agreement covers matters over which powers are shared between the Community and the Member States, the Member States remain free to exercise these powers themselves, by concluding the agreement on their own behalf. As far as the EU is concerned, it now has treaty-making power in the fields covered by Titles V and VI of the EU Treaty49. This reinforces the argument that implicitly the EU has legal personality, even in the absence of an express provision to that effect.50
After having reviewed these different elements of the definition of a State, one can reach two conclusions: on the one hand, the EU is not a State, but on the other hand, its Member States have not retained their full sovereignty and complete freedom to act; they have accepted to give up some of their powers to the EC or to share them within the Union.
· The EU does not derive its authority directly from its citizens but rather from its Member States
An important element of Black's Law Dictionary definition of a Constitution describes it as "deriving its whole authority from the governed". This is indeed the case of the United States Constitution, whose preamble says "We the People of the United States ... do ordain and establish this Constitution".
By contrast, the EU's founding Treaties were concluded in the form of international agreements between His Majesty the King of the Belgians, Her Majesty the Queen of Denmark, and so on. However, the Court of Justice ruled in its Opinion nº 1/91 that the Treaty is a "constitutional charter ... the subjects of which comprise not only Member States but also their nationals".. In other words, the Community brings together not only the Member States, but also their peoples, the "citizens of the Union".
It is, nevertheless, an undeniable fact that the constitutive authority for negotiating and adopting Treaty amendments remains with the Member States.
The answer to be given to the second question is, therefore, that the Constitutional Charter of the European Union is not comparable to the Constitution of a State. One must stress that the Treaties stipulate that:
"the Union shall respect the national identities of its Member States";51
and also that :
"citizenship of the Union shall complement and not replace national citizenship".52
35 On 1 January 1999, the total staff, including temporary agents, was around 30,500, i.e. 17,000 in the Commission; 4,500 in decentralized bodies including the Research Centre; 4,000 in the European Parliament; 2,500 in the Council; and 2,500 in the other institutions and bodies (Court of Justice, Court of Auditors, Economic and Social Committee, Committee of the Regions). The total number of municipal staff of the city of Paris was 56,000 in March 1996 ("Les agents des collectivités locales", édition 1996, Ministère de l'Intérieur).
36 Interview with Jan O. Karlsson, President of the EU Court of Auditors, "El País", 14 March 1999 : "Los Estados miembros administran el 85% del presupuesto". One may add that recent experience shows that giving the Commission responsibility for directly managing huge sums of money and important programmes, including in third countries, has not been a great success.
37 Even though it is true that some States have no army (Iceland), and that some federal or confederal States have no federal police (Switzerland), this is never the case for larger States.
38The matter of a common language will not be dealt with in this paper, because that is not necessarily a characteristic of a State (see Switzerland, Belgium, India or South Africa). Nor shall we be discussing the existence of a territory and of a population, which are always talked of as being the basic constitutive elements of a State: one can argue that both those elements exist in the case of the EC, albeit with a more or less precise definition.
39 "Considérations sur le Gouvernement de Pologne, et sur sa réformation projetée," April 1772.
40 First sub-paragraph of Article 5 (ex-Article 3b) of the EC Treaty.
41 The two other sub-paragraphs of Article 5 deal with the principles of subsidiarity and of proportionality :
"In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.
Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty."
42 Alan A. Dashwood, inaugural lecture in Cambridge, 13 November 1995 on "The Limits of European Community Powers", European Law Review, 1996, pp.113-128.
43 The "great period" of ex-Article 235 began in 1973 (after the Paris European Council of 19-21 October 1972, which made an explicit reference to making full use of Article 235: "[The Heads of Government] ... agreed that in order to accomplish the tasks laid out in the different action programmes, it was advisable to use as widely as possible all the provisions of the Treaties including Article 235 of the EEC Treaty") and ended in 1988 (with the implementation of the Single European Act).
44 Opinion of 15 November 1994, ECR 1994-11/12, I-5267.
45 Opinion of 28 March 1996, ECR 1996-3, I-1788, on the question as to whether the Community could accede to the European Convention on Human Rights.
46 Judgment of 12 October 1993 by the German Bundesverfassungsgericht , in the Brunner Case, 89, VBerfGE 155.
47 Judgment of 6 April 1998 by the Danish Højesteret in the Carlsen Case.
48 Article 17, paragraph 1, of the EU Treaty:
"The common foreign and security policy shall include all questions relating to the security of the Union, including the progressive framing of a common defence policy, in accordance with the second subparagraph, which might lead to a common defence, should the European Council so decide".
49 Article 24 of the EU Treaty:
"When it is necessary to conclude an agreement with one or more States or international organisations in implementation of this Title, the Council, acting unanimously, may authorise the Presidency, assisted by the Commission as appropriate, to open negotiations to that effect. Such agreements shall be concluded by the Council acting unanimously on a recommendation from the Presidency. No agreement shall be binding on a Member State whose representative in the Council states that is has to comply with the requirements of its own constitutional procedure; the other members of the Council may agree that the agreement shall apply provisionally to them.
The provisions of this Article shall also apply to matters falling under Title VI."
50 See Antonio Tizzano: "La personnalité juridique de l'Union européenne", Revue du Marché Unique Européen 4/1998.
51 Article 6 § 3 (ex-Article F § 3) of the EU Treaty.
52 Article 17 § 1 (ex-Article 8 § 1) of the EC Treaty.
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