Memorandum by the Campaign against Euro-federalism
THE LISBON
TREATY AS
GIVING THE
EU A FEDERAL
STATE CONSTITUTION
1. Preamble
We submit that the "Treaty of Lisbon"
or European Reform Treaty aims to achieve the same result as the
2004 "Treaty Establishing a Constitution for Europe"
which was rejected by the French and Netherlands electorates in
referendums in 2005. Both Treaties would establish what would
be constitutionally, legally and politically quite a new European
Union with the constitutional form of a supranational Federal
State and would make us real citizens of that State, with real
citizens' duties of obedience to its laws and loyalty to its authority,
instead of our being nominal or notional EU "citizens"
as at present.
For ease of reference we refer to the two
treaties that have aimed or are aiming to establish an EU Constitution
as the 2004 Treaty and the 2007 Treaty.
2. The 2004 and 2007 EU Constitutional Treaties
The 2004 Treaty was both a Constitutional Treaty
and a Constitution, as indicated by its title: "Treaty Establishing
a Constitution for Europe".
The 2007 Treaty, while being an EU Constitutional
Treaty in that it amends the two existing European Treaties, namely
the "Treaty on European Union" (TEU) and the "Treaty
Establishing the European Community" (TEC), and thereby turns
these two treaties together into the Constitution of the legally
new European Union they would establish, it is not in itself that
Constitution. The two amended treaties, the second of them renamed
"Treaty on the Functioning of the Union", would be that.
Together these two amended treaties would have exactly the same
legal effect as the 2004 "Treaty Establishing a Constitution
for Europe" in that they would establish what would be constitutionally,
legally and politically a wholly new European Union which would
be fundamentally different from the EU we have at present. They
would give this new EU the constitutional form of a State for
the first time, a supranational European Federation, and would
make us all real citizens of this State instead of our being merely
notional or honorary "EU citizens" as at present.
The amended "Treaty on European Union"
(TEU) would become the constitutional part of the new EU Constitution,
the part which would establish a new European Union quite different
from the present EU. The "Treaty on the Functioning of the
Union" (currently the TEC) would become the Constitution's
"implementational" part, which would set out how the
new Union would work and its main policies. The effect of this
amending and renaming process would be that the Constitution of
the new Union would be set out in two treaties instead of one,
both having equal legal value. Thus the 2007 Lisbon Treaty would
constitute a new European Union and give it a Constitution indirectly
rather than directly, in contrast to the 2004 Constitutional Treaty.
3. The "constitutional concept"
in the two Treaties
When the IGC Mandate for the Lisbon Treaty stated
that "the constitutional concept is abandoned" and "the
TEU and the Treaty on the Functioning of the Union will not have
a constitutional character", or when Foreign Secretary David
Miliband states that the 2007 Treaty differs "in absolute
essence" from the 2004 Treaty, we submit they are seeking
to distract attention from the new method of giving the EU the
Constitution of a supranational EU Federation, without actually
calling it a Constitution or without admitting that they are engaged
in a Constitution-making process.
The 2004 and 2007 Treaties are both international
treaties which would hand over national State powers to a supranational
Federal-type entity. The content of the handover and the extent
of the diminution of national sovereignty involved are to all
intents and purposes identical in each Treaty. It has been estimated
by the London-based Open Europe organisation that all except 10
of the 250 or so Articles of the new Treaty would be the same
in legal substance as its predecessor. They would be mostly identical
in wording also, except that the word "Constitution"
would be omitted throughout. In other words, 96% of the new text
would be the same as the EU Constitution which was rejected by
the peoples of France and the Netherlands in their 2005 referendums.
We submit that what makes the Lisbon Treaty
a Constitutional Treaty is that it would constitute a new European
Union in the constitutional form of a State, not that it uses
the word "constitution" in its title or text. We submit
that the peoples of Britain and the other Member States are entitled
to be made aware of the fundamental political character of the
European Federation which the new Treaty would have the effect
of establishing. They are entitled to know that the abandonment
of the word "Constitution" the second time around has
no practical significance.
4. The existing and proposed new European
Union
What we call the European Union today—a
name which derives from the Maastricht "Treaty on European
Union"—is merely a general descriptive term for the
various areas of cooperation between its 27 Member States: the
so-called "Community" area of supranational European
law deriving from our continuing membership of the European Community,
and the "intergovernmental" areas of foreign policy
and justice and home affairs, in which Member States still interact
on the basis of retained sovereignty (v.TEU, Article 1). The present
EU does not have legal personality or distinct corporate existence
in its own right. It is clearly not a State, so that citizenship
of it is purely notional or honorary, for one can only be a citizen
of a State. That is why Maastricht was a "Treaty ON European
Union", not "OF" Union. The proposed EU Constitution
which would be brought into being by the Lisbon Treaty amending
the two existing basic Treaties would in effect be the "Treaty
OF European Union".
5. The three legal steps which the 2007 Treaty
would take to turn the EU into a supranational European Federal
State are, we submit
(i) Giving the EU legal personality
The first legal step would be for the 2007 Treaty
to give the new European Union which it would establish its own
legal personality and distinct corporate existence for the first
time, something that all States possess. This new Union would
be separate from and superior to its Member States, just as the
USA is separate from and superior to California or Maine, or,
the Federal Republic of Germany is separate from and superior
to Bavaria or Brandenburg. Giving legal personality to this newly
constituted Federal EU would enable it to sign treaties with other
States in all the areas of its competence and conduct itself as
a State in the international community of States. It would speak
at the United Nations on agreed foreign policy positions of its
Member States, just as in the days of the Soviet Union the USSR
had a UN seat while Russia, Ukraine and Byelorussia had UN seats
too. It would have have its own permanent political President,
Foreign Minister—to be called a High Representative—diplomatic
corps and Public Prosecutor, and take to itself all the powers
and institutions of the existing European Community, as well as
the many new powers set out in the new Treaty.
The first sentence of the first Article of the
2004 Treaty stated: "This Constitution establishes the European
Union". Clearly this would have been quite a new Union in
constitutional terms compared with the EU which currently exists.
The 2004 Treaty-cum-Constitution would have created a Federal
European Union distinct from and superior to its Member States,
with its own legal personality and distinct corporate existence
in its own right, empowered to interact with the other sovereign
States that make up the international community. The proposed
2007 Lisbon Treaty would achieve exactly the same constitutional
result by inserting the following amendment in Article 1 of the
"Treaty on European Union": "The Union shall be
founded on the present Treaty and on the Treaty on the Functioning
of the European Union. It shall replace and succeed the European
Community". The 2004 Treaty said "this Constitution
establishes" a new Union; the 2007 Treaty says the new Union,
now endowed with legal personality, "shall be founded on"
the two amended constituent treaties. The 2004 and 2007 treaties
do exactly the same thing.
(ii) Merging the supranational "Community"
and "intergovernmental" areas
The second legal step in giving the constitutional
status of statehood to the new EU Federation would be to abolish
the distinction between the supranational "Community"
and the "intergovernmental" areas of the two existing
European Treaties (TEU and TEC). This would be done by replacing
the word "Community" by the word "Union" throughout
the Treaties, thereby bringing the previously intergovernmental
areas, where Member States retained their sovereignty, within
the scope of the supranational law of the new Union and giving
the latter a unified constitutional structure. All spheres of
public policy would thus come within the scope of supranational
EU law-making either actually or potentially, as in any constitutionally
unified State. One says "potentially" because further
inter-State treaties would still be required to transfer the minority
of law-making powers still remaining with the Member States to
the new Union in the future, or to shift powers from the Union
to its Member States.
An important "federalising" aspect
of the new Union's constitutional structure would be the Treaty
provision which would for the first time turn the European Council,
the quarterly meetings of Member State Heads of State and Government,
into one of the institutions of the new Union. This would mean
that in constitutional terms European Council meetings would no
longer be "intergovernmental" gatherings of Prime Ministers
and Presidents outside supranational European structures. Those
taking part, whether collectively or individually, would be legally
bound to act in accordance with their obligations under the EU
Constitution, which would have primacy over their responsibilities
and duties as ministers of national governments in any case of
conflict between the two. The Treaty lays down that the European
Council shall define the general political directions and priorities
of the new Union and that as one of the new Union's institutions
it "shall aim to promote its values, advance its objectives,
serve its interests" and "ensure the consistency, effectiveness
and continuity of its policies and actions". The European
Council would thus become in effect the Cabinet Government of
the new Federal European Union. Its individual members would be
expected to represent the Union to their Member States rather
than their Member States to the Union—at least if they take
their EU constitutional obligations seriously.
Furthermore, like all the Union's institutions,
acts of the European Council, or if it "fails to act",
would be subject to review by the European Court of Justice (Article
230 ff TEC as applied in the TEU). All spheres of public policy,
supranational and national, would thus in principle come within
the purview of the EU Heads of State or Government in the European
Council as they exercise the political government of the new Union.
Another feature showing the state-like character
of the new constitutional structure is the Treaty provision that
the President of the European Council would preside over the summit
meetings of Prime Ministers and Presidents for up to five years
(two and half years renewable once). This further emphasises the
new federalist nature of the European Council. There is no gathering
or meeting of Heads of State and Government in other international
contexts which maintains the same chairman or president for several
years while the individual national politicians come and go.
We submit that the Treaty underlines the subordinate
role of National Parliaments in the constitutional structure of
the new Union by stating that "National Parliaments will
contribute actively to the good functioning of the Union"
by various methods set out in Article 8c. At present, National
Parliaments have in any case already lost most of their law-making
powers to the EC/EU. The citizens who elect them have lost their
powers to decide these laws too. The provision of the Treaty that
if one-third of the National Parliaments object to a Commission
proposal, the Commission will have to reconsider it, but not necessarily
abandon it, is small compensation for the loss of democracy involved.
It is hard to think of a major function of a State which the new
European Union would not have if the Lisbon Treaty were to be
ratified. The main one would seem to be the power to make its
Member States go to war against their will, although the Treaty
provides that the EU may go to war while individual Member States
may opt out. The obligation on the Union to raise its "own
resources" in order to finance the attainment of its objectives
confers on it taxation powers, although these would require unanimity
to exercise. The new Union would have its own government, with
a legislative, executive and judicial arm, its own political President,
its own citizenry and citizenship, its own human and civil rights
code, its own currency, economic policy and revenue, its own international
treaty-making powers, foreign policy, foreign minister, diplomatic
corps and United Nations voice, its own crime and justice code
and Public Prosecutor. It already has its own flag, anthem, motto
and annual official holiday de facto.
All the classical Federal States which have
been formed on the basis of power being gradually surrendered
by lower constituent states to a higher Federal authority have
developed in this way, sometimes over quite a long period of time.
Nineteenth century Germany, the USA, Canada, Australia and Switzerland
are the principal examples. Indeed the EU has accumulated its
powers much more rapidly than some of these classical Federations,
in the short historical time-span of some sixty years. The key
difference between these classical Federal States and the new
European Union, however, is that the former were established by
distinct national communities with their own languages, histories,
cultures and communal solidarities, which gave them a democratic
basis. There is no European people or "demos" except
statistically. In our submission the Lisbon Treaty is an attempt
to construct a highly centralised European Federation artificially,
from the top down, out of Europe's many nations, peoples and States,
without their free consent and knowledge.
(iii) Transforming the peoples of the Member
State from notional EU citizens into real ones
The third legal step would be to make us all
real citizens of this new EU State entity, with the normal citizens'
duties of obedience to its laws and loyalty to its authority and
institutions. A State must have citizens, who are its members
and inhabitants, and it cannot exist without them. One can only
be a citizen of a State. If the 2007 Treaty is ratified, the new
European Union which it would establish would thereafter have
prime call on its citizens' allegiances as the constitutionally,
legally and politically superior entity, over and above their
obligations to their national constitutions and laws, with all
the implications of that.
At present EU "citizenship" is an
entirely notional status attaching to membership of one of the
27 Nation States that make up the current EU/EC. Citizens of the
Member States have certain European Community rights attaching
to their national citizenship, but they are not citizens of a
supranational entity, for one can only be a citizen of a State
and neither the Union nor Community is yet that. The 2007 Treaty
would radically alter this position by establishing a real supranational
EU Federation which people would be made real and not just notional
or honorary citizens of. One illustration of the constitutional
shift the Treaty would make from the present European Union of
national States and peoples to a new federal Union of European
citizens is that the European Parliament, which at present consists
of "representatives of the peoples" of the Member States,
would under the Lisbon Treaty consist of "representatives
of the Union's citizens".
All States have codes setting out the rights
of their citizens. The EU Charter of Fundamental Rights would
be that. It would be made legally binding by the Treaty and would
become an essential part of the new Union's constitutional structure.
The Charter, which constituted Part 2 of the 2004 "Treaty
Establishing a Constitution for Europe", is no longer set
out in full in the 2007 Treaty although it is made legally binding
by it. It would be binding on the Union's own institutions and
on Member States in implementing European laws, which nowadays
make up well over half of all new laws we must obey each year.
This would give a new and extensive human and civil rights jurisdiction
to the EU Court of Justice and would make that Court the final
body to decide what people's rights are in the vast area covered
by European law, as against national Supreme Courts and the Court
of Human Rights in Strasbourg, which are our final fundamental
rights courts today. Henceforth EU citizenship would entail real
and not just notional rights and duties vis-a"-vis the
new Union, over and above the rights and duties entailed by national
citizenship. In any case of conflict between the two the rights
and duties attaching to the Union level would be primary because
of the legal superiority of European over national law. The final
decision on any boundary issues would be made by the EU Court
of Justice as the new Union's Supreme Court. The federalizing
influence of a Supreme Court as it exercises a rights jurisdiction
is well illustrated by the role of the US Supreme Court in the
constitutional evolution of that country.
6. Conclusion
Our submission is that the central constitutional
purpose of the Lisbon Treaty is to turn the citizens of the 27
EU Members States into citizens of a supranational European Federation,
with all the implications of that, if possible without their realising
it and without permitting them any say in the matter.
Because the terms European Union and EU "citizen"
and "citizenship" have been in use since the 1992 Maastricht
Treaty, those pushing the EU State-building project hope that
the peoples of the Member States will not notice the enormity
of the constitutional change proposed. These already familiar
terms would continue to be used as if nothing had changed, although
their legal substance would be transformed fundamentally by the
new Treaty and the EU Constitution which it would establish. This
is central to the strategy of deception being employed by those
who deny that Lisbon is a Constitutional Treaty which would fundamentally
affect our democracy, national institutions—including parliament,
independence and civil rights and those of our children, grandchildren
and future generations.
John Boyd
Secretary
26 November 2007
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