Tuesday, 12 May 2009

European Union: A short and readable basic law?

Is a short and readable basic law for the European Union pure fantasy, or could it become a reality?

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Piecemeal amendments and minute compromises between member states under veto threat have resulted in detailed treaties. They are unsystematic, hard to read and contain redundant material.

The draft Constitution by the European Convention and the Constitutional Treaty by the intergovernmental conference made an attempt at reform of the institutions, but they produced updated and more systematic texts as well.

The Treaty of Lisbon meant a backward step, but many of the substantial and systematic improvements were preserved. In the end, the Lisbon Treaty is more readable than the existing treaties.


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Structure

The Lisbon Treaty is structured in a more logical way than the current treaties. Basic provisions are situated in the amended Treaty on European Union (TEU), while more technical details and policy areas are found in the Treaty on the Functioning of the European Union (TFEU), which replaces the Treaty establishing the European Community (TEC).

Clarity is added by abolishing the distinction between the European Union and the European Community.


But the latest intergovernmental conference (IGC 2007) baulked at placing the whole of external action into the TFEU. Not only did it preserve the intergovernmental character of the common foreign and security policy (CFSP) and the common security and defence policy (CSDP); the provisions remained in the TEU, together with general provisions on the European Union’s external action.

The substantial limitations mean that, despite incremental improvements, the European Union will remain unable to speak with one voice in the world.

But here we are more interested in the supposition that the European Union could have a short and readable basic law.


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Technically possible

Leaving the Table of Contents outside, and shifting the external action including the CFSP and the CSDP to a second order document would leave us with us with a basic document of less than twenty pages.

Even as it is, the TEU text proper is only about thirty pages long.

As a literary document the TEU is nowhere near the level of the US Constitutions, but tolerably readable if ridded from the references to the TFEU and Protocols.

If the US Constitution could be re-written today, including the amendments, it would get rid of redundant provisions, and it would be even more elegant the existing one.

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Political difficulties

The main problem is not technical, but political. The European Union is based on international treaties between member states, not a union by the people.

About 200 pages of treaty text and about 160 pages of protocols and declarations follow from the member states’ desire to control events in minute detail.

This is the old covenant, European Union 1.0 based on diplomats and technocrats.

The Lisbon Treaty is version EU 1.1 with added powers for the European Parliament and other reforms.

To demand, as Libertas does, a strong TREATY, but short and readable, is not realistic. Where should the detailed provisions be placed? Would the member states suddenly let go their grip?

As long as the basic documents are international treaties between member states, I see no inherent reason to accept the calls for referendums. (Ireland, due to a domestic constitutional interpretation, happens to be the odd man out.)

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Solution

If the power is vested in the people, the European Union could have a strong, short and readable basic document.

It would not be a treaty, but a basic law or constitution. This would be the new covenant, EU 2.0.

The shift from the old covenant to the new – from EU 1.0 (or 1.1) to EU 2.0 – would leave the detailed legislation to be approved by the European Parliament and the policies to be pursued by an accountable government.

The federation’s Constitution could be short and clear for all to understand.

The move from EU 1.0 (or 1.x) to EU 2.0 would be groundbreaking. Therefore, as a union of people, the new European Union would need the consent of the governed.

In my view, the willing electorates would form the new union, and the states with negative referendum results would stay outside the new union.

But afterwards the Constitution could be amended by the Parliament, probably by a qualified majority. Representative democracy is the norm; referendums the exception.


Ralf Grahn