euconst2

Issue #44

Last Update March 2, 2006

International The EU Constitution (2) by David Katz September 8, 2005 In our previous article on this subject (The EU Constitution, June 11, 2005) we gave an overview of this document that has been accepted by most European countries but was rejected in June by the French and the Dutch. In this article, the various governmental bodies defined by the constitution, and the limitations to which these are subject, will be described. No part of this document better illustrates the ambivalence between nationalism and pan-Europium that made this constitution so awkward and unwieldy. It is this same ambivalence that is the root cause of the Constitution's rejection.

Before looking at the Constitutional institutions, we should examine Title III, Union Competencies, to see the limitations placed on the EU vis a vis the various national sovereignties. Although it is clearly stated that the EU Constitution “shall have primacy over the law of Member States”, in those areas not specifically designated as being within its exclusive competence, “the Union shall act if and only if and insofar as the objectives of the intended action cannot be sufficiently achieved by the member states ... but can rather, by reason of the scale of the effects of the proposed action, be better achieved at the Union level.” Which areas are within the exclusive competence of the Union? These include monetary policy (though only for those member states that have adopted the Euro), common commercial policy, customs union, marine conservation and fisheries, and the conclusion of international agreements binding on the entire Union. From the list of these mainly economic areas, it is easy to see that the Constitution is really an enhanced codification of the European Economic Market, rather than the foundation document of a nation.

A curious “flexibility clause” allows the EU to take actions where the Constitution has not provided the necessary powers, providing the European Commission proposes it, The European Parliament approves, and the Council of Ministers acts unanimously to implement these actions.

Title IV, The Union's Institutions, defines the various bodies of the EU. These include the European Parliament, the European Council, the Council of Minsters, the European Commission, and the Court of Justice. Under a separate Article, several other bodies are defined: the European Central Bank, the Court of Auditors, two advisory bodies, the Committee of the Regions, and the Economic and Social Committee. This jumble of institutions, with overlapping, and, to some extent, mutually contradicting mandates, stands in place of the American three branches of government: legislative, judicial and executive.

The easier bodies to understand include the European Central Bank, a combination of our Federal Reserve Bank and our Treasury Department; and the Court of Auditors, which has no precise equivalent in the American system (perhaps a combination of GAO and the Congressional Budget Office) and is responsible for auditing all EU expenditures. The European Central Bank sets monetary policy and, like our Treasury department, issues currency, but unlike the US, where states are forbidden to have their own currencies, the EU permits member states not participating in the Euro to have their own currencies and monetary policies, and restricts the actions of the Central Bank to Euro nations only.

The other institutions form a hodge-podge of legislative, executive and advisory bodies. The European Council, which does not have legislative authority, is composed of the Heads of State of the member nations, and is charged with setting general political directions and policies. Decisions are made by consensus. The Council elects a President, for a two and a half year term, renewable once, by a “qualified majority”. (A qualified majority is a majority of the member states, representing at least three fifths of the population of the Union, thus giving the larger states a somewhat disproportionate power.) The President acts as EU head of state to the outside world, and deals with other nations in conjunction with the Union Minister for Foreign Affairs.

The Council of Ministers and the European Parliament are the two legislative bodies of the EU. The European Parliament is elected by direct universal suffrage of EU citizens, for a term of five years. The number of members is proportional to the population of each EU state, with each state to have no less than four representatives. The Parliament, jointly with the Council of Minsters, enacts legislation and is responsible for the budgetary function. The Parliament elects the President of the European Commission, the EU's executive branch. The Council of Ministers consists of a representative of each member state at Ministerial (US cabinet) level. Decisions of the Council of Minsters are by qualified majority. The Council has two “formations”, the Legislative and General Affairs Council, which handles legislation and prepares meetings of the European Council, and the Foreign Affairs Council, charged by the Union Minister for Foreign Affairs, which fleshes out the EU's external policies, following policies created by the European Council. Unlike the US Congress, the Parliament and Council of Ministers, except where the Constitution provides otherwise, can only adopt legislation on the basis of a European Commission proposal. This is as if the House and Senate could only consider legislation proposed by the President, and could not initiate legislation on its own.

The European Commission is the executive body of the EU, charged with overseeing the application of Union Law under control of the Court of Justice, execute the budget and manage programs. The Commission consists of a College consisting of its President, the Union Minister of Foreign Affairs/Vice President, and thirteen commissioners selected on equal rotation from member states. Non-voting Commissioners from all the remaining member states are appointed by the President. This Commission initiates legislation in the two legislative bodies. It is responsible to the Parliament, which may cause the resignation of all Commissioners by passing a censure motion. In addition, an individual Commissioner must resign if the President requests it. The Union Minster for Foreign Affairs, who is one of the Vice Presidents of the Commission, is appointed by the European Council with the approval of the Commission President.

The European Court of Justice, consisting of one judge from each member state, includes the High Court and specialized courts. It is charged with interpretation of the Constitution. Judges serve for six years.

The entire EU institutional structure is a balancing act between the EU and the member states, but without the clear notion of national primacy embodied in our US constitution. In our next article, we will discuss the internal contradictions and inefficiencies of these institutions, and touch on some of the reasons that the Dutch and French said “No” after so many other nations said “Yes”.