The eurozone crisis has made reforming the EU’s institutional framework an urgent priority. Based on a recent speech to the Federal Trust, Andrew Duff MEP argues that without revision of the EU’s treaties to create a fiscal union, the EU’s very survival is now in jeopardy. He advocates the merging of the two EU treaties into one Fundamental Law of the EU, and the creation of a federal economic government for the fiscal union.
Reluctance to embark on the complex and serious business of EU treaty reform is perfectly understandable. Many are intimidated by the relative failure of the last big effort to develop the Union along more federal lines, which started in 2001 at Laeken but stumbled in the humiliation of the French and Dutch referendums in 2005. We can surely do better this time. The scale of the present crisis changes the context in which this latest constitutional exercise is carried out as well as providing the occasion for it.
Treaty revision is inescapable if the Union is to prosper. A new treaty is badly needed to mark the important new stage in European integration in which the eurozone is transformed into a fiscal union. To fail to make this transformation jeopardises the EU’s very survival. Not only is it not possible to do enough under the present treaties to salvage the euro, the present treaties are being stretched to breaking point by the welter of crisis management measures. The European Council, for instance, has no legitimate authority to impose on Greece or Portugal tax rises and wage cuts. While such a situation might be tolerable on the grounds of expediency in the very short term, there will soon be a serious reaction in the markets and in the courts, to say nothing of on the streets, if nothing is done to regularise affairs and to restore the democratic rule of law.
The treaty amendment process will start with a Convention, opening probably in February 2015, will continue with an Intergovernmental Conference in 2016 and will conclude with ratification by all 28 member states of the Union according to their own constitutional requirements in 2017. In several countries, not least the UK, either those constitutional requirements or political expediency means holding a referendum.
How successful this constitutional exercise will be depends to some extent on the quality of its preparation. The EU institutions will play their part – although the European Commission plans not to present its proposals for treaty change until spring 2014 (too late to influence the European Parliamentary elections); and the European Council has decided woefully to put off real discussion of these issues until December that year once a new EU leadership is in place. Moreover, no group of reflection of the kind which prepared the Laeken Declaration is foreseen. The political agenda in 2013, it seems, is to be devoted only to the re-election of the German Bundestag.
So it is high time that the federalist movement got down to drafting a new constitutional treaty for a federal European Union. Nobody else will do it. Only the federalists can bring radical fresh thinking to answering the question of how a more united Europe should best be governed.
Form, structure, tone and terminology
For the sake of argument, let us call our new constitutional treaty the Fundamental Law of the European Union. Merging the current two Treaties on European Union and on the Functioning of the European Union into one document allows us to substantially shorten the whole by reducing repetition and eliminating duplication (for instance, by having only one preamble). In this way too we reverse some of the obfuscation which was at the time deemed necessary in order to turn the 2003 Treaty establishing a Constitution for Europe into the 2007 Treaty of Lisbon.
We should indicate therefore some reordering of articles – for example, the uniting of all the relevant articles concerned with the international policies of the Union into one chapter. In a similar vein, the articles on categories and areas of Union competence should be shifted to follow the provision on the principle of competence conferral. More of this logical structural amendment can usefully be done, not least with the institutional provisions, to bestow greater simplicity and clarity on the question of ‘who does what’.
In view of the distinctly more federal character of the Union, ‘Member States’ become ‘States’ and ‘national Parliaments’ become ‘State Parliaments’. And the rather non-federal (because over-centralising) ‘ever closer union’ becomes, indeed, ‘federal union’.
We need a more self-confident tone and less clunky text than that arrived at in the later treaty revisions. The excessively nervous checks on the powers of the European Commission, European Parliament and European Court of Justice should be dispelled. The number of different types of decision-making procedure should be reduced, getting rid of passerelles, emergency brakes and automatic accelerators ‑ clever devices which may or may not have been intended ever to be used but the inclusion of which in the Lisbon treaty has led in practice to nervosity. This time, we invite the states to commit themselves without equivocation to stronger federal institutions which will be more overtly political and less officiously bureaucratic. We need to enhance the capacity of the Union to act in any given field, lifting certain prohibitions on the harmonisation of national laws. The Fundamental Law aims to be a durable settlement to the business of the governance of the Union, along with a clearer sense of things to come.
In the light of our more permissive approach, the institutions, especially the Commission, will need to live up to the assumption of new governmental responsibilities. The necessary constitutional checks and balances should reflect more correctly then they do at present the principle of the separation of powers. For example, we propose that if the Parliament sacks the Commission, it itself is dissolved and the MEPs face new elections. And as the Commission becomes more of a political government, it should shed its quasi-judicial powers, for example in competition policy. The spirit of Montesquieu will be gratified.
Substance
Mindful of the need to protect the integrity of the corpus of EU law, we need to make fairly minimal amendments to the substance of EU policy. The purpose of the Fundamental Law, after all, is to establish a better framework of European governance inside which governors and law makers can make more efficacious choices about the future direction of policy. At the same time, the new treaty must be responsive to the imperative of dealing with Europe’s contemporary challenges, not least the social crisis. We may propose to enlarge the competence of the Union over the choice of energy supply, to resurrect industrial policy and to upgrade public health.
The main purpose of the exercise, however, is to install a discernible federal economic government of the fiscal union. The precise balance between executive and legislative authority will be contested at the Convention. But it is our conviction that it was the failure of the Treaty of Maastricht (1991) to erect a serious political pillar in the construct of economic and monetary union that has led the single currency to near disaster. That lack of economic government was left unrectified by the subsequent Treaties of Amsterdam (1997), Nice (2000) andLisbon: it must not be neglected again.
So, ‘common economic policy’ should replace the mere coordination of national economic policies, becoming a fully-fledged shared competence of the Union run under the auspices of an EU Treasury Secretary. The new treaty must incorporate the essence of last year’s Fiscal Compact Treaty as well as provide for the European Stability Mechanism. It will also embrace the new supervisory powers of the European Central Bank and make other statutory adjustments to codify the establishment of the banking union. It will permit the progressive mutualisation of a portion of sovereign debt.
Institutional reforms
In terms of institutional change, the Fundamental Law needs, first, to render the two chambers of the legislature more equal and, second, to transfer most of the residual executive powers now held by the Council to the Commission. Bearing in mind the need to streamline the governance of the Union, we must invite the Economic and Social Committee and the Committee of the Regions to justify their continued existence.
In addition, I would:
- restrict the legislative procedures to two, ordinary and special;
- adjust the voting weights in the Council in favour of smaller states;
- promote the President of the Commission to the chair of the European Council;
- reduce the size of the Commission to fifteen members, essentially picked by the President-elect;
- introduce a pan-European constituency for the election of a certain number of MEPs;
- lift the restrictions on the scope of jurisdiction of the Court of Justice;
- introduce a more democratic procedure for seats and languages;
- give Parliament the right of consent to treaty changes and to enlargement.
There are two further reforms of major constitutional importance. The first concerns the method of future treaty change. Whereas unanimity must be kept for the decisions of the Intergovernmental Conference, the unanimously agreed revised treaty should be allowed to enter into force once ratified by only four fifths of the States (and the European Parliament). This more flexible approach would bring the EU into line with all other international organisations and federal states.
The second change flows directly from the first. States cannot be forced against their will to take the federal leap. A new category of associate membership would allow such states to move to an outer tier, keeping the Union’s values but reducing engagement in the Union’s political tasks. Associate membership would also cater for the needs of Norway and Switzerland, seeking to improve on their present unsatisfactory arrangements; of the Western Balkans, needful of a long and stable phase of preparation for full membership; and for third countries, choosing for reasons of their own not to join the EU but desiring and deserving a permanent, structured relationship with it.
Such a Fundamental Law would strengthen the governance and cohesion of the Union and bolster democratic confidence in our common endeavour to build a better Europe. Alternatives are hard to envisage. The Union which emerges from its present difficulties will not be the same as the Union which went into them. So ‘more of the same, but less’ – which seems to be the strategy of the coalition government in Britain – is not a realistic option. Better by far that the UK joins in the federal core, albeit with time to catch up, than that it distances itself from the federal project entirely. Doubtless Prime Minister Cameron will address these issues squarely when he gets round to making his Speech.
This is a version of Andrew Duff’s speech to the Federal Trust in London on 10 January.
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Note: This article gives the views of the author, and not the position of EUROPP – European Politics and Policy, nor of the London School of Economics.
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Andrew Duff MEP– European Federalists
Andrew Duff is the Spokesman on Constitutional Affairs for the Alliance of Liberals and Democrats for Europe (ALDE) and President of the Union of European Federalists (UEF). He co-chairs the Spinelli Federalist Intergroup in the European Parliament. @Andrew_Duff_MEP.
Mr Duff,
thanks for your open and honest statement about where you see the consistutional evolution of the EU going; it’s useful to have it laid out like this.
Do you think it is appropriate for citizens of the EU to have any say in the adoption of your proposed new constitutional rules? If not, why not? Do you think such consent would be forthcoming in the UK, and in every other EU member state?
I am generally against referendums on complex constitutional matters unless something really big is going on – like legitimating a coup d’état or joining (or leaving) the EU.
Each state makes up its own constitutional rules for ratification of EU treaty change. Much to my regret, the UK parliament has decided in 2011 that there will always be a referendum in the UK when EU integration deepens, so there will certainly be one this time (whatever anybody puts in any party manifesto).
I don’t know whether it could be ‘won’ in Britain. It depends very much on the question(s). Referendums usually elicit the answer ‘no’.
I can see no other state willfully opting out of the federal core, by the way.
What of the consideration of abolishing the Commission and replacing it with Ministries formed from the European Parliament itself. This could be done via the transference of the staff and skills from each DG to the relevant new ministry. In many ways this could simplify the unwieldy constitutional character of the EU executive. Try and explain the dual hatted role of the HR/VP to the average voter and you will see what I mean.
It would, of course, also create an exec which is clearly accountable to the Parliament, and thus clearly responded to citizens. Many of the problems with the current exec. in the form of the Commission is that it is simply too far removed from citizens.
Chris,
Well I think the Commission would become a more legitimate government if it were elected equally by both the European Parliament and the Council. That would strengthen the concept of there being a bicameral legislature, with one chamber representing the citizens and the other the states.
In my draft treaty the Foreign Minister (Ashton job) and the Treasury Secretary will be the senior Vice-Presidents of the Commission, both chairing their respective formations of the Council, but both individually elected by the Parliament on the nomination of the Council.
Thanks.
Dear Mr. Duff,
I believe most necessary democratic reforms could be enacted via inter-institutional agreements and the ordinary process.
For instance:
– The EESC is now mostly defunct and the Commission parallelises it with myriads of stakeholder groups. It needs a new role which could be to carry out the public consultations for the Commission.
– Transparency: Get 1049 in line with Lisbon regime. The report of Cashman is blocked. Time to strike a deal. The Commission should make a proposal how it will keep its Art 15 TFEU obligations in the 133 funnel, to prevent further insufficent transparency in regulatory relations to third nations (cmp ACTA).
– It was announced that At4AM would become open source. That would facilitate the public to help prepare amendments for MEPs.
– Transform the Parliament into a bicameral system with one chamber in Brussels and the other chamber in Strassbourg/Kehl. These chambers could be like Committees in the current system and share tasks. That would solve the issue of insufficient plenary time and travel madness. The Strassbourg Plenary would additionally to its own tasks bulk-adopt the Brussels Plenary work. All this is possible under the current treaties.
– Actively counter the discrimination of German language in the institutiuonal process.
I don’t agree with your proposal to
– adjust the voting weights in the Council in favour of smaller states;
because right now smaller states drive the process while smaller states are less defended from dominating economical interests within their nation. You further have to consider the massive discrimination of citizens residing in Germany in the current system. You have only 99 MEPs and one Commissioner for 82 Million Germans. You have 6 MEPs and one Commissioner for 0.5 Mio citizens of Luxembourg. This cannot continue and it is completely unacceptable by democratic standards. Rather the citizens of the larger nations need to get more weight. It also drives the fragmentation of Europe. Think of Czech Republic 1 Commissioner and 22 MEPs for 10 Mio citizens and Slovakia 1 Commissioner 13 MEPs for 5 Mio citizens. And that was basically the same state “Czechoslowakia”. How many Commissioners and MEPs would they get if they were still united?
The German basic law has clear principles about elections and by these standards the EU is still a democracy in the making because it discriminates citizens of the larger nations. I can’t see why one would want to aggravate the current discrimination by getting smaller states more voting weight in the Council.
Thanks for this.
Treaty amendment is unavoidable in the short to medium run, not least because of the BVerfG at Karlsruhe.
The adjustment of voting weights in the Council is to be balanced by a counter balance of seat apportionment in the European Parliament.
Mr Duff,
Not that I particularly like the idea of giving smaller states a larger share of the vote, it is hard to come up with an alternative. The European Union has been driven forward by France and Germany in the past five years, and though in itself this was and is in Europe’s best interest – unless you want the Union to collapse – it is not a viable option for the future.
Yet I am worried about the democratic prospects – legitimacy has become an universal word, so would it not be better just to opt for a pan-European constituency, which is already long-overdue, in the same way as the Germans elect their governments? Some changes will have to be made of course, and you can give a slight edge to the smaller member states, but if you by-pass the debate, will you not avoid the confrontation the current system keeps bringing up, as well as exert a clear political message: If you want influence, you will have to vote. Deciding on the size of the number of trans-nationally elected members will prove a nightmare, but then again treaty reform will undoubtedly be that on its own.
Also, you state that you would like to see the Commission president gets hold of a seat at the Council’s table. This is something I wholeheartedly agree with, but I’ve also wondered why on earth we need so many presidents and high-profile jobs, at least on paper. If, as you propose, the European Commission president gets a set at the table of the European Council, then why not combine the Commission and Council presidency? I’ve never been much of a fan of the current set-up, it is needlessly complex. Even under our current Treaty this could be achieved, the Council president cannot hold another political office in a nation state, but to my awareness he or she will find no obstacles in the way for holding two European Union positions.
Jurnan,
I know many Hollanders find it difficult to know whether their country is large or small! But see my comment above on the balance between the two chambers of the legislature.
I agree about the plethora of presidents. That’s why I’m really abolishing the Van Rompuy post.
Nah not really. The country I come from is small, but size is not all that matters in politics, nor do I believe that a share of the vote is our real problem. It’s a side-dish, so to speak. We’ve got stuff on our plate that demands much more attention.
All the best in your project though. You remain one of the few well known MEP’s who has consequently backed the European project, it is much appreciated, and one sees more and more MEP’s doing their job as representatives of a larger community these days. Too bad we don’t have any real household names from the Commission, like Delors for instance.
This is how people outside EU see the situation in it.
“Most of the Keynesian-Marxist economic analysts in their quest for the cause of financial collapse of Eurozone pointed their fingers towards the huge capital owners, stock speculators and other ones that are to be blamed by default. As it was during the Roosevelt’s era, they found their salvation in state – fresh money taken from the taxpayers wallets got redirected to bail out companies that would cease their existence in new, crisis-based circumstances. Stronger monetary control, uncontrolled print of the money bills without the real reserve and raise of taxes according to the cast criteria is something that is widely accepted. However, what distinguishes the current economic crisis and the Great Depression of the early thirties of the twentieth century was the fact that the latter is effectively ended in the outbreak of World War II by putting cobwebs wrapped American war industrial plants into operation, heavy overseas investment in the recovery, and strong economic growth of the post-war Western Europe. As nobody projects something similar to that today, it is likely that a contemporary crisis will be with us for some time. This means that the Eurozone will hardly get over this financial disease, and it is certain that prolonged lying in its sickbed leaves heavy consequences to the political project of the European Union.
According to the recent statements of the high European Union officials, if even one of the members is to be allowed to get out of the Eurozone, this will, and most certainly, lead to the breakup of EU. After all, it seems that basic pillars of EU, like European Coal and Steel Union of 1951, and European Economic Community of 1958, got heavily undermined by the fresh Brussels bureaucrats born in Maastricht in 1993, centralization of monetary politics and aggressive legislative activities of the European parliament, and that the road that leads to the consolidation will be a long and dangerous one. Sadly, no commissars, no directives, and even no Merkel’s, Barosso’s and Van Rompuy’s frozen smiles can be of help now.”
http://www.balkaninside.com/gooses-in-the-fog/
I’m sorry my friends you can paper up the cracks for as long as you like, but the paper will only remain waterproof for so long. The cracks will eventually let water through and the whole EU will descend into a soggy mess! UKIP
Comment number 14 and up to now no one has seen the flaw in the whole debate.. Every treaty giving away sovereignty is against the UK common law which is always superior to statute law. Edward Heath knew this when he signed the first treaty because the attorney general told him in a letter that it wiould be illegal to sign up. Edward Heath kept this letter secret under the thirty year rule but it is now available to read..
Do the previous commentators not know this. If they do then they are being decietful (perhaps the moderator will use this as an excuse to refuse to publish my comment but I cannot put it any other way)
If they did not know the facts, they should ask themsevels “why” and perhaps they will realise that the whole EU is a house of cards based on lies and ignorance of how human nature works. How else can you explain the fact that the accounts of the EU have never been signed off.. Would you put money into a project when you knew that the managers were fiddling? Of course not, so why do you support the EU which was and still is illegal. No amount of tinkering with treaties can make it legal.
This isn’t a new argument – it gets put forward on a regular basis as part of the “Heath lied” dogma that UKIP supporters regularly bring up.
What it basically amounts to is arguing that it’s illegitimate for our democratically elected government to voluntarily sign up to a treaty to which we then held a referendum in 1975. It says more about the arbitrary and backwards nature of our common law than it does about the legitimacy of the EU (and, more to the point, why we should have long ago drafted a formal constitution).
You’re also completely conflating arguments by claiming that this makes “the EU illegal” when in fact what you’re objecting to is the UK’s membership of the EU, not the EU itself – which exists independently of our common law. You also managed to throw in the UKIP soundbite about the EU’s accounts “never being signed off” that’s been debunked countless times. If we’re going to moan about other people’s ignorance then it might be an idea to make sure our own arguments are up to date.
I don’t know what you mean about an arbitrary law. The law is still law and cannot be cancelled by statute. I doubt if you will research the subject which in fact you can do if you devote an hour to it. If you do you will find that Common Law is superior to statute law. That old law and modern law relies on precedents. Precedents established for over 500 years are not altered and cannot be altered.because they are so fundamental to human existance that everybody accepts them .I suggest that you read the basic common law which gives you many rights and privelages. When you do I would like you to spread the word because many like you think they know the law but you do not. I personally am not arguing with you it is the most senior judges in this country who you are disagreeing with.
Since 1972 our parliament has whittled away at certan of our rights and privelages which people did not realise what they were losing until the problem was forced down their throats when they saw the problem of too many immigrants overloading our hospitals and schools and realisin that our own laws were superseeded by EU law.. It was and stil is illegal. And by the way UKIP wil not confirm what I say as you allege because they do not want to be classed as cranks. Cranks is a term used for people like me who would like to return to the rule of law.
And whilst I’m at it , because people like you dismiss previous illegalities people in high places know that they do not need to follow the law themselves. This is why only dead paedophiles are exposed. Saville an Cyril Smith. The corruption in the police is rife and I speak as an exPC. Please wake up and seek the truth and then act on it.Want proof? watch Sir Bernard Hogan Howe tomorrow before the Home affairs Select Committee try and justify shredding disciplinary documents concerning a previous met commissioner . Listen to today’s news where a constable resigned because he was disciplined for exposing the fact that serious crimes were covered up. Then go though the list of previous home secretaries to find how one is still in public office. It’s to do with photos taken in a boy’s care home. Then check out the report by a PC in the underfunded unit i.e. no prosecutions, who stated that paedophilia is going on in an industrial scale..
” I doubt if you will research the subject which in fact you can do if you devote an hour to it. If you do you will find that Common Law is superior to statute law. That old law and modern law relies on precedents. Precedents established for over 500 years are not altered and cannot be altered.because they are so fundamental to human existance that everybody accepts them”
Whereas I am very sympathetic to your overall position, being a democratic Eurosceptic who questions the legitimacy (though not legality) of the EU treaties, what you’ve written above is nonsense.
You say that if someone researches the subject, they’ll discover that common law is superior to statute law. I studied law at the University of Cambridge, for considerably longer than one hour. Indeed, my constitutional law lecturer was himself a Eurosceptic. What you’re saying about the primacy of common law is just false, and has been for centuries, if it were ever true at all.
All I can say is that you did not study hard enough. Consider this 11 people in the country complained to their local police forces that the present prime minister committed treason. You can bet your life that the chief constables did as the law requires them to do, to examine the evidence and common law to make sure there was a prima facie case. They then passed the crime complaints to the crooked policeman Sir Bernard Hogan Howe. He refuses to investigate the crime. As the complaints arrived on his desk at the same time as he tendered his resignation I put two and together. Re our constitution which you allege you studied,answer me this. How did it come about. Every time a politician goes public and states that we need a constitution he quickly goes quiet because he soon finds out we have one and to attempt to change it would be impossible because to do so he would need to examine the present one which would bring into the open how the law has been broken. This is why the crook can continue in office because Cameron, well meaning he might be, cannot let the subject be discussed. The judges when asked will try to hide behind the rubbish you put out but eventually when you tie them down they will acknowledge that Lord Kimuir was correct. I suspect that you studied law after Lord Kilmuir’s letter became public. How did your tutor dismiss his view. I suggest that you read the letter. You might actually feel better because the common law ensures your freedom. At present any EU country can request a British person be arrested and taken to that country without the evidence being examined in this country. This would stop if people knew the common law because the arested person could demand to go before THE COMMON LAW COURT i.e the Queens Bench Division. If and when you research the subject I would appreciate a thank you or an apology.
If you want to know why this subject is not discussed in the media, It’s because of the paedophilia being rife
throughout society so certain crimes will not be investigated. Before I researched it I knew it went on but did not realise to what extent. Found out who the home secretary was yet?
I studied in the 1990s, probably before your Kilmuir letter, and before Mears v Mears, the case which documented the pseudolegal nonsense put out by cranks:
http://ablawg.ca/2012/10/30/the-organized-pseudolegal-commercial-argument-opca-litigant-case/
“What you’re saying about the primacy of common law is just false, and has been for centuries, if it were ever true at all.”
Quite. It doesn’t make the slightest bit of sense to suggest common law is superior to statute law in modern British society. Common law originated precisely because we lacked statute law – judges would assess individual disputes/cases on their own merits, but to give rulings consistency (in the absence of formal laws) the principle of basing cases on previous decisions (precedent) evolved. It was a mechanism for trying to have justice applied equally throughout a jurisdiction before it was possible for a legislature to draft formal laws.
Now (and indeed since about the 17th century – when Thomas Hobbes completely dismantled the principle of giving common law primacy) statute law has primacy over common law. That’s recognised by virtually every authority on the subject and if it weren’t the case then our entire legal and democratic system would grind to a halt.
The rest of this argument is just plain batty – paedophile rings, conspiracies, and all sorts. I don’t care how pro or anti-EU we all are, that kind of raving crackpottery doesn’t do anyone any favours. It has pretty much nothing whatsoever to do with the EU in the first place.
Even the supposed letter from the Attorney General doesn’t say what’s described (there’s a link to it here: http://www.cib4freedom.co.uk/?p=921 ). It actually explicitly says that constitutional issues don’t “tip the scale” and the key consideration is the economic impact of joining the European Community. At no point anywhere does it say common law has primacy over statute law, or make any argument even semi-approximating what our friend here has suggested.
There’s an important argument to be had about the UK’s EU membership, but this isn’t it.
you quote constitutional issues don’t tip the scale. The scale on one side is the advantageous monetry benefit of joining the community. On the other side is that by retaining or soveregnty under the constitution might be less advantageous from a monetry point of view.
What has become apparent is that this judgement was wrong at the time because our loss of freedoms and rights now seem more impotrtant to those who value those rights over monetry values. And the poor who have lost freedoms now are both poor and disadvantaged.
Basically your arguments are that making money is more important than freedom. You really are out of touch with voters who have more sense than you think when they see that the EU supporters are usually wealthy living off the backs of he poor who they seek to control. And Guess what I’m still a conservative at heart. But the rule of law, particularly common law is good for sound moral reasons. The British have surrendered their control of their finances as well as losing their freedoms. How else can you explain the EUs reluctance to allow the City of London’s dominence due to their expertise to continue.