One major effect of the constitution on the existence of the union would be in addressing the various problems proposed in the white paper on good governance14. In respect to the issues of allegation of corruption and abuse of power by these running the organisation, who loyalty are placed on the institution of the states that has appointed them rather than on the citizens of the union and can only be controlled by states. 15 Also the lack of transparency in the decision making process of the union was observed in the white paper where it stated that “despite all the success of the union most Europeans feel alienated from the union works”16.
Therefore, effort ought to be made to restore the belief of citizens to the union’s institution, which citizens have seen as not being transparent and democratic enough to warrant their support. In accordance the draft constitution have provided answers to these problems. Firstly, it seeks ways of opening up the policy making process so that more people and organisation can contribute in the making of union policies. This has been addressed by the constitution when viewed from the perspective of the expansion of the role of the EP in union, who are the direct representative of the citizens.
Secondly, the draft constitution set procedure through which democratic deficiency or corrupt practises observed in the activities of the commission as well as that of other institutions within the EU could by monitored by the citizens of the various MS. This has been addressed by the draft constitution, when it stated “the any citizen of MS, or any natural or legal person residing, or having its registered office in a MS shall have access to the documents of the union institutions”17.
This power of questioning granted citizen would prevent the corrupt practices that had eroded the commission before it reform. Consequently, bring about transparency within the union activities since all it institutions are expected to be accountable to the citizens of the union. However, it may be noticed that this right does not only apply to the union citizens but was stretched to include non- citizens resident in the union. This goes to show the level of commitment put forward at making the union bodies more transparent and efficient in the discharging its duties.
On the other hand, the establishing of the post of the ombudsman18 in the constitution was another encouraging development that would check the excesses of the institutions, since he was expected to act independent of the union institutions in investigating allegation of corruption or misuse of power brought before him by the citizens against any of the institution. This will definitely lead to better administration of the institution by those responsible since they are aware that they are been monitored.
Sovereignty and legal personality The sovereignty of EU law over and above that of national laws has been established through its case laws though this was not explicitly stated in any of its treaties. Therefore necessitating the teleological interpretation of the treaties to determine what should have been obvious. This has been observed as one reason why it required a constitution in order for it to derive and assert the legitimacy of its laws.
Not minding that in the cases of Van Gend en loos and Costa v Enel on which the community law derived its superiority over national law due to the nature of supranational organisation created, upon which countries have limited their sovereignty on joining. Notwithstanding, this has not answered the question of legitimacy of the community law, since supremacy was more or less accepted on the premise that it conformed with national legal system. This had been argued by Steiner, J.
etal, when they argued that “the national courts have accepted supremacy of the community law on the basis of national legal provision, not on the provisions of the community law itself”19. However, this has been taken care of in the draft constitution. That has explicitly states that the laws adopted by union in the exercise of its competences shall have primacy over laws of MS20. Thus entrenching the supremacy of it laws over national laws and also conferring legitimacy on union laws.
The legitimacy and supremacy of the union laws can also be derived form the legal personality21 grant the union by the constitution, which has elevated it to the status of a state. This has given the EU the legal leverage to stand among nations and negotiate on behalf of its members. However, this idea has been refuted be some states that want to retain the right to enter into bilateral relationship with third countries irrespective of the union having done that on their behalf.
This fear of losing their right of negotiation has been because once the union assumes the overriding right on that, the states might be subsumed into the union no longer noticed in the outside world. Also the legal personality of the EU has granted it the status to be a member of the United Nations22. This may threaten the position of Britain and France in the Security Council later when states subsume into the EU. The ascension of new member and the effect of QMV
The ascension of new members was the main point that necessitated the urgency with which the EU required a workable constitution, since it was considered essential that for the union to function efficiently with an increased number of members and more been expected. There was need for the harmonisation and simplification of its laws into a constitution that would govern it activities as against the use of the various treaties, since the constitution was expected to simplify the legislative procedure of the union bring it to a level that would facilitate quicker decision making.
Therefore, it was expected that the use of unanimity in the decision process would be streamlined by the constitution and reduced to a minimum such that it would only be applied in measures of strategic interest to MS, while double qualified majority vote system (QMV) would be used to allow quicker passing of decisions. The essence of adopting QMV was to speed up decision making since it would be hard to achieve unanimity in an enlarged union. The simplification of the QMV by the constitution23 introduced the application of the majority or two third of MS representing at least three fifths of the population of the union24.
This has been applauded as a welcome development that would make the Union more efficient. However, there has been disagreement among MS in respect to what decision could be made by QMV and the struggle by some to maintain the QMV granted them in the treaty of Nice as against that suggested in the constitution. In the former, Britain have maintained that it will retain it veto and wants unanimity to be maintained in certain core issues. Thus she has refused waive its stands insisting that foreign policy and tax issues should remain a unanimous decision25, which would consequently slow down decision making in those areas.
In the later, Spain and Poland have refused accepting the new QMV since this would reduce their voting power, rather they want to maintain the existing more complex system of voting which gives them an unduly high number of 27 vote each as against Germany’s 29, even though it population is twice that of both countries26. However, Germany have insisted on the idea of double QMV since this would favour her as the most populous in the Union. Irrespective of this the idea of double QMV has been praised as the most sensible idea27 in the draft constitution and would have aided easy passing of laws. Union Institutions
The draft constitution has provided ways of restructuring the various institutions within the EU in order that they may be seen to be transparent in the discharge of their duties. Also it has delineated the functions, powers and structure of the various organs within the EU and the functional proceedings that would be in use within the union. I. The commission The draft constitution did not make any serious change to the operational proceeding of the commission. It therefore recognises it existence as the executive arm of the union with the sole right of legislative initiative within the union and the implementation of union legislatures.
One of the major changes introduced by the draft constitution was in the introducing of the post of foreign affairs minister which merges the external affairs commissioner and high representative of the council for common foreign and security policy positions. The foreign minister was expected to be the voice of the EU and its MS in matters of foreign and security with the outside world28, and also had the responsibility to negotiate all foreign agreement for the whole EU.
This has been opposed by Britain by stating that it would not endorse the foreign minister if he was not based in the council as against the constitutions suggestion of the commission29, and at the same time it wants to retain the right to negotiate international agreement. Another issue that has generated serious debate from the smaller members was the introducing of 15 voting commissioners and 10 non-voting commissioners, this has been criticised as granting unduly advantage to the bigger MS allowing them to dominate the affairs of the commission.
II. The council Apart from the sharing of the co-decision procedure by the council there was no major change within it. However, in the European council the draft proposed the election of a permanent president that would serve for a two and half year term renewable only once30. however, this has not gone down well with the smaller MS that feels this arrangement would only favour the bigger MS. Irrespective of this the main issue debated is on the existence of dual executive president i. e.
The double hat31 question about where the real power of the Union would be once this idea comes into practice and the likelihood of conflict and struggle for power between the two executive. III. The European Parliament (EP) The EP have been recognised as the people’s eye in the EU and subsequently granted more roles in the Union through the partaking in the consideration of legislature on an equal base with the council under the co-decision procedure32, which has been adopted as the only means of passing laws in the EU.
Also, it has been granted the power to elect the president of the commission as put forward by the European council33. This have served as a recognition of the powers and right of the electorates whose interest the Union was supposed to maintain by granting their representatives more power in the union. The effect of human right The EU existence has been base on the belief of the rule of law which incorporates and promotes fundamental human right and is requisite for ascendance to the EU.
Therefore in order for the union to better actualise integration there was the need for the enshrining of citizens rights within the union since it was moving toward statehood and to conform to the constitutional traditions of MS that had championed the cause of human rights. The accession of the EU to the European convention for the protection on human right and fundamental freedoms34, which has been included in its draft constitution, has addressed the question of the citizenship within the union, and also granted the Union the tangible proof that it is like any other state, whose exercise of authority enjoys the people legitimacy35.
which, bestowing on the Union legitimacy that had been lacking. Nevertheless, this has opened up more debate as to how it would by implemented despite the immense benefit that it had passed onto the citizens. This has to deal with the interpretation of human rights laws when there is a breach, it has been contended whether the ECJ or the European court of human right (ECHR) which should have the overriding competence in human right matters.
However, since the ECJ is more of a constitutional court there is the likelihood of conflict when interpreting human rights cases as against a more competent ECHR that is well grounded on fundamental rights issues. Finance The draft constitution provides that the union shall finance all its operation through the use of it own resources36, which has been interpreted by MS as a clause that could be inferred as giving the Union right to impose tax as an avenue of generating it own resources. This has been challenged by some MS that sees this as an intrusion on their exclusive preserves or competence that was not initially granted the union.
This argument was based on the notion that the union means of generating resources, which are through customs duties and agriculture levies are gradually reducing and therefore it could interpret the idea of own resources into reserved competences of MS. Common foreign and defence policies The aim of this pillar in the EU was to create common cooperation among MS in matters related to foreign and defence policies. This pillar that was established by the Maastricht treaty was left at the discretion of the IGC to initiate and implementation this policy.
However, in the constitution attempt was made to introduce QMV into the decision making of this pillar, but this was seriously challenged by Britain insisting that unanimity and the right to veto should be maintained37. On the issue of EU defence which has thrown up the anti- and pro-NATO, the first group made up of France, Germany, Belgium, and Luxembourg want to establish an independent EU military that would handle all European conflicts and had gone ahead to propose a headquarter in Tervuren outside Brussels38 for it army.
While the later Britain has maintained that any EU defence arrangement that would undermine the activities of NATO was not acceptable and would be vetoed by the UK. However, after much deliberation by the parties, it was agreed that NATO will continue to be the superior and permanent security organisation in Europe, but that EU military would exist as a last resort39 if all other alternatives have failed and this will require unanimity to come into force. While all this were happening some MS with traditions of neutrality want to be given the option to opt out of the defence arrangement40.
This shows that Conclusion The success of the EU in the over 50 years of its existence has enormous, progressing despite all the problems that it encounter in the forms of vetoing of decisions, holding tight to unanimity by MS, corruption, and failure to ratify treaties. Despite all these it is achieving integration as was expected by it initiators. That it would undergo development process of integration likened to a snow ball falling from a hill and gathering more and more snow as it descent accelerates41.
This has been true of the Union for not only has it increased in number, it has also increased it areas of competences. Thus widen its process of integrating the European states. The failure of the IGC to ratify the draft constitution has again highlighted the stumbling blocks before the EU, starting with the failure to ratify the TEU by Denmark and its marginal survival from other MS42, and then the failure to ratify the ToN. All these are in the past and MS have seen the benefits of those issues it vetoed or refused then.
However, it would be wise not to conclude that the constitution is prefect, because of the existence of absurdities and anomalies in it, which were as a result of excessive compromise43 during its drafting process. This has led to the contentious clauses that were refuted by MS. On this premise, it may be noted that the EU would definitely march forward not with standing the failure of the 2003 IGC to ratify its constitution, for surely at a future date when they are more aware of what they stand to gain from they would ratify it or take the option of withdrawal from the EU.
With regards to the absurdities in the constitution, the EU would surely function with it after surviving its treaties of utmost absurdities.
1 Weatherill, S. ; Beaumont, P. (1995) EC Law, p3, Penguin Books Ltd. , London, England. 2 USIA Staff, (1996), Regional trade: a help or hindrance to global liberalization, USIA electronic journals, Vol 1, No. 16, Available on http://usinfo. state. gov/journals/ites/1196/ijee/ej4schol. htm accessed on 9th December 2003. 3 Weatherill ; Beaumont Supra note 1 p2
4 Weatherill ; Beaumont Supra note 1 p3 5 Weatherill ; Beaumont Supra note 1 p4 6 see Weatherill ;Beaumont supra note 1 p4 7 The ten candidate countries expected to ascend to the EU by May 2004 are Poland, Hungary, The Czech Republic, Slovenia, Estonia, Cyprus, Lithuania, Latvia, Slovakia, and Malta. 8 Horspool, M. etal,, (1998), European Union law, pp13-14, Butterworths, London. 9 Steiner, J. etal (2003), EC Law, 8th edition, pp5-8 Oxford university Press Inc. , New York 10 Steiner, J.
etal, Supra note 9 p11 11 EU (2001), The future of the European Union – Leaken Declaration, Available on http://europa. eu. int/futurum/documents/offtext/doc151201_en. htm accessed on 15th December 2003. 12 Gangi, P. M. , The new European convention: some observations,(citing Weiler, J. H. (2000) Editorial: Does the European Union truly need a charter of rights, 6 ELJ 167. ) Available on http://www. dialettico. co. it/the_new_european_convention. htm accessed on 10 November 2003.