Christian evaluation of EU Constitutional Treaty

Much has been written in the Press on the Constitutional Treaty for the European Union, signed in Rome on October 29, 2004. A lot of what has been written refers to the "Christian imprint" or, as some would claim, the lack of it, in the text of this Treaty.

This text is very complex. It contains two preambles, 448 articles and several protocols, annexes and declarations which are supposed to establish the constitutional framework of the EU for the future.

The need for such a treaty had long been felt and became far more urgent with the latest enlargement following which the EU is now made up of 25 member states.

It is important to highlight the process that led to the text signed in Rome. The convention, composed mainly of representatives of governments and parliaments of the member states and the candidate countries, operated openly and transparently with wide consultation with civil society.

It presented its final draft to the Italian Presidency on July 18, 2003. An Inter-Governmental Conference (IGC) was convened and final agreement on the text of the treaty was reached in Brussels during the summit held on June 17-18, 2004, under the Irish Presidency.

The treaty consists of four parts, preceded by a preamble. Part I deals with the institutional framework. It includes references to the objectives and values of the Union. Part II contains the Charter of Fundamental Rights adopted in Nice in December 2000. Part III spells out in detail the areas of competence of the EU, the available instruments, and makes explicit the decision-making procedures. Part IV contains miscellaneous provisions.

Main institutional changes

The Treaty contains significant changes in the inter-institutional relations and in the relations between the EU and the member states, and the text adopted by the IGC bears a stronger mark of compromise than the proposal submitted by the convention.

Important novelties are the establishment of a President of the European Council, the establishment of a Foreign Minister, the composition of the Commission, and the position of the European Parliament as well as a redefinition of the formula for qualified decision-making in the Council.

The President of the European Council, currently a six-month term held by rotation between all member states, will be appointed by the Council for a two-and-a-half-year term (renewable only once) by a qualified majority. The President is not to be elected from among the Council.

As regards the Council of Ministers, the presidency will be held by a team presidency of three member states who will hold office for 18 months.

The Foreign Minister will be appointed by the European Council by qualified majority with the agreement of the President of the Commission, will preside over the Foreign Affairs Council and will also be one of the vice-presidents of the Commission.

As from November 1, 2009, where decisions in the Council of Ministers require qualified majority voting, they will be taken according to whether they are based on proposals from the Commission or from the Minister of Foreign Affairs on the one hand, and other Council decisions on the other.

In the former situation, qualified majority requires 55% of the member states, consisting of at least 15 member states and representing at least 65% of the population of the EU. For such a qualified majority, it is enough that less than four member states oppose. In the latter situation (other Council decisions), 72% of the member states are required to be in favour, comprising at least 65% of the EU population.

Unanimity will continue to apply in the field of taxation, partially in social policy and a number of areas in foreign, security and defence policy. Laws on own resources, the financial perspectives and future revisions of the Constitution itself will have to be adopted unanimously.

It is proposed that, as from 2014, the Commission will be composed of members from two-thirds of the member states, all with voting power. The required strict equal rotation will enable every member state to provide a Commissioner twice out of three rotations. The number of Commissioners is subject to change by a unanimous vote of the European Council. The President of the Commission will be elected by the EP following a proposal by the European Council.

The powers of the EP have in fact been increased as the co-decision procedure (the main legislative body in the EU is the Council and not the Parliament) - a procedure involving both the Council and the Parliament - has been extended to a number of policy areas (though not as extensively as had been proposed by the Convention); 95% of European laws will be adopted under the co-decision procedure (to be called the "ordinary legislative procedure"). The treaty establishes 750 as the maximum number of seats in the EP with a minimum of six seats per member state. Provision is made for a uniform system of EP elections for all member states.

Two new features introduced by the treaty relate directly to the citizen. The first provides that at least one million citizens from a "significant number of member states" can request the Commission to initiate an "appropriate proposal" in matters where they consider that a legal act of the Union is necessary to implement the Constitutional Treaty (Art I-47 4). The second states that, among other things, the institutions maintain an "open, transparent, and regular dialogue with representative associations and civil society" (Art I-47 2).

Competences

In the exercise of its powers, the EU is bound to observe the basic principles of attribution, subsidiarity and proportionality. The institutions can only act insofar as the power to do so has been conferred on them. In the area of non-exclusive competences, the Union acts only if it is better placed to do so than the national or sub-national level, and EU action "shall not exceed what is necessary to achieve the objectives of the Constitution" (Art I-11 4).

One new and important feature is the list of the EU's exclusive competences, in which the Union acts exclusively on behalf of the member states and where the latter have, so to say, given up their right to act. The treaty also lists areas where the EU takes supporting, co-co-ordinating or complementary action.

Two protocols specify the position of national parliaments in the EU and relate to the provision of information to and the advisory powers of national parliaments and involve national parliaments in a subsidiarity and proportionality test, respectively.

Legal personality

Currently, the EU is governed by several treaties that have been revised during its 50-year history. The three original treaties founding the European Communities were those establishing the European Coal and Steel Community (1951), the European Community (1957) and the Atomic Energy Community (1957). The fourth founding treaty is the Treaty of Maastricht (1992), which established the EU.

The founding treaties have been amended by the Merger Treaty (1965), the Single European Act (1986), the Treaty of Amsterdam (1997) and the Treaty of Nice (2001), in force since February 1, 2003. The Accession Treaties signed with new member states are additional examples of treaty amendments.

The "Treaty establishing a Constitution for Europe" (Constitutional Treaty) is a single text which replaces all the existing treaties and which, for the first time, gives the EU a single legal personality under domestic and international law. It also eliminates the three pillars which formerly made up the EU (the three Community treaties; the Common Foreign and Security Policy (CFSP), and the justice and home affairs (JHA)).

The primacy of Community law (the treaty and acts adopted by the institutions) over the law of member states is also explicitly laid down for the first time (Art I-6). Major amendments to the Treaty require a new Convention to be convened; however, minor changes may be adopted by the European Council acting unanimously. A member state may also voluntarily withdraw from the Union (Art I-60).

To be concluded. Fr Xuereb is president of the Commission for the Church in Malta & Europe (Maltese Episcopal Conference).