A deep gap between the political elites and citizens:

On the European Constitution

 

Bingwan Xiong

Undergraduate majored in civillaw

Renmin University , Law School

 

This paper was accomplished in Jan 2007

Since the foundation of the European Coal and Steel Community in 1951, there have been many treaties made and amended to promote further development of the European Union, such as the Treaties of Rome (1957), the Single European Act (1986), the Maastricht Treaty (1992), The Amsterdam Treaty (1997) and the Nice Treaty (2001). On 18 June 2004, the most recent treaty, The European Constitution with a formal name as ‘the Treaty Establishing a Constitution for Europe‘ was agreed by the Heads of State and Government of the European Union's twenty-five Member States, which seeks to simplify and synthesize previous treaties within a single, clear, foundational document for the European Union.

In order to enter into force, it must be ratified by each Member State according to its constitutional requirements. Depending on the countries’ legal and historical traditions, the procedures laid down by the constitutions for this purpose are not identical: they comprise either or both of the following two types of mechanism: 1. The ‘parliamentary’ method: the text is adopted following a vote on a text ratifying an international Treaty by the State's parliamentary Chamber(s); 2. The ‘referendum’ method: a referendum, which can be either consultative or decisive, is held, submitting the text of the Treaty directly to citizens, who vote for or against it.

There may be variants or combinations of these two methods, depending on the states, or other requirements, e.g. when the ratification of the Treaty entails a prior adjustment of the national Constitution because of the content of the text.

Before 29 May 2005 , 15 Member States had already ratified the Constitution, which contain Austria , Belgium , Cyprus , Estonia , Germany , Greece , Hungary , Italy , Latvia , Lithuania , Luxembourg , Malta , Slovakia , Slovenia and Spain . However, on 29 May 2005 , the European Constitution was vetoed by a wide margin of nearly 10 points (54.87% for the No, 45.13% for the Yes) in France . What’s worse, another initiator of the European Union, Netherlands , vetoed the European Constitution in the referendum three days later.

Because of the vital status of the two member states in European Union, especially the France, the veto which led to the ‘constitutional crisis’ has attracted more and more attention in the world, some scholar even considered the veto as an end to the European Constitution. The rejection of the Constitution happened in France and Netherlands attributed to many complicate factors, including both historical and realistic reasons. The future of the European Constitution and the further development of the European integration seem unobvious.

In this article, through the explanation of the European Constitution, especially from legal perspective, I expect to depict the nature and the characteristics of the constitution; through the analysis of the factors that led to the rejection and the influence of the rejection, I try to clarify the possibility of the rest ratification process and the prospect of the European integration.

1. The explanation of the European Constitution

1.1. What is a constitution?

The constitutionalization of a community is mainly characterized as the ‘solidification of structures, the definition of community interests, and the creation of rights for individuals and the protection of such rights against violations.’ The traditional notion of a constitution is that of the ‘basic law of the state’, ‘governing law of the land’, or ‘fundamental law of society’, thus referring to the founding document of a nation-state that aims at self-rule and claims for itself ultimate authority. In modern democratic times, this claim to ‘ultimate authority’ usually requires, for the constitution to be legitimate, that the process of constitutionalization be a voluntary act involving direct participation of people.

Reviewing briefly the historical events, traditional constitution is mainly created during a period in which a previous government was replaced by a new one. In the modern age, however, the legislation process of various states mainly has two modes, some constitutions were created after the foundation of the states, for instance China created its constitution in 1954 while it was established in 1949, while the others were established before the overthrow movement, and the constitution of United States is the best example.

The constitution that is usually characterized as the fundamental document of a state, based on the widely participations of citizens, usually as concerning sovereignty mainly contains the content as follows: the preamble, the general principles which mainly outline the fundamental system (about political, economic, cultural aspects), the fundamental rights and obligations of the citizenship, the institutions, the symbols (flag, anthem and so on), the protocols. Generally speaking, most constitutions of different nations and states are embodied in a written text, for instance, most of the EU Member States do have a written constitution.

Comparing to the traditional constitution which is as concerning sovereignty, some ‘constitutions’ are established as the fundamental document of special organizations, concerning little about sovereignty, such as the International Labour Organization and the Universal Postal Union and so on. These documents probably exclude the provisions about fundamental rights of the citizenship and the declaration of sovereignty which symbolize a state. In this vision, the ‘constitution’ concerned about the organization is not an exactly constitution and tends to be the treaty law which ordains the fundamental rights and obligations of the member states or organizations.

1.2. The legal nature of the European Constitution

The formal name of the ‘European Constitution’ is ‘the Treaty Establishing a Constitution for Europe’. It is not clearly that whether it is a traditional constitution of a state or just a treaty between 25 countries. In reference to the definition of constitution, the author considers the European Constitution as a document which possesses both constitutional nature and conventional nature.

1.2.1 The conventional nature

Literally speaking, this EU constitution is a treaty anyhow. Like all of its predecessors, the document is an international Treaty between the Member States of the Union . Its text had to be unanimously agreed by their governments. Before it can enter into force, it must be signed and ratified by all Member States. All the member states have to comply with the treaty As long as their governments ratify it. What’s more, the treaty ordains the relationship between the member states and the EU.

However, this treaty differs from common treaty significantly in some extent. Firstly, reservation in respect to specially provisions is not allowed in the process of ratification which happens frequently when some provisions of a treaty are opposite to the fundamental system of a state. Secondly, the fundamental rights of the citizenship in European Union differs this treaty from others obviously.

1.2.2 . The constitutional nature

As a fundamental document of the European Union, ‘the Treaty Establishing a Constitution for Europe’ contains many significant characteristics of a traditional constitution.

Most importantly, in respect to the constitution, European Union has its own citizenship and ordains the citizenship’s fundamental right. It will enhance the protection of individual rights in the operation of the European institutions and in the implementation of European law. With respect to traditional political theory, citizenship is the most vital factor of an independent state, paralleling with the territory, sovereignty and government. Besides, the treaty legitimates an independent entity which owns the sovereignty to some extent, such as making diplomatic policy decision, deciding security policy, and so on.

Furthermore, the treaty ordains the symbols as follows: the flag of the Union shall be a circle of twelve golden stars on a blue background, the anthem of the Union shall be based on the ‘Ode to Joy’ from the Ninth Symphony by Ludwig van Beethoven, the motto of the Union shall be: ‘United in diversity’, the currency of the Union shall be the Euro and that Europe day shall be celebrated on 9 May throughout the Union.

Some institutions of the entity characterized as common countries’ ordained in the treaty, such as the Ministry of Foreign Affairs, the Parliament, the Court, are convincing testimony of its constitutional nature.

2. The analysis of the veto of the European Constitution

With the motto of ‘United in diversity’, the Constitution was rejected by the people of France and Netherlands on 29 May and 1 June respectively. Even some citizen fares that the veto of the European Constitution means the abandoning of the Constitution project. As the French president Chirac said, ‘ France has expressed itself democratically, It is your sovereign decision’, and ‘The decision of France inevitably creates a difficult context for the defense of our interests in Europe .’ Anyhow, to find the efficient solutions about the deadlock, it is vital to find out the radical reasons for the rejection in France and Netherlands first.

2.1. The reasons of Veto in France

As a vital initiator of the European Steel and Coal Community (ESCC) and the European Community, France is primary accelerating power of the European Constitution. Former French president Valery Giscard d'Estaing helped draft the proposed constitution and lobbied for its passage, a stance shared by most French political leaders as well as the business and media elite. Virtually, European constitution reflects the design of European Union future in respect to the will and interest of France, such as the establishment of the president of the Council of the European Union to replace the alternating presidency, and the minister of the foreign affairs who will be responsible for the commercial and diplomatic policy, the simply double qualified majority voting to simplify the staff of the Council. However, the European Constitution was rejected by a wide margin about 54.68% in France . As a traditional proponent to European integration, this consequence is a heavy strike to the political elites in European Union. The veto demonstrated the distance felt by the citizens from their governments, not only due to the contents of the constitution but also in other unrelated factors such as high unemployment and other issues.

(a)     Many French show their dissatisfaction on the local political and economic situation through ‘no’ voting.

In recent years, though the French government aims at creating more employment opportunities for citizens, there is no sign of exuberance in employment. The survey immediately after the referendum shows us that high unemployment is the most likely reason contributed to the veto.

Chirac, in his second presidency beginning in 2002, aims at enhancing the ability in competition through a series of reformation (retiring system, 35 working-hours, educational reformation). Opposite to his design, almost all the measures cause the violent opposing of French, and two strong strikes happened in January and February. Through the abreaction in the referendum, the French showed their dissatisfaction the government led by Chirac.

(b)    Many French voters oppose the E.U. expansion, pulling in most of Eastern Europe and express their indignation.

Many French voters who opposed the constitution said they were angry that they had not been given a chance to vote on E.U. expansion from 15 to 25 members last year, pulling in most of Eastern Europe . The prospect that Europe's boundaries might be extended even further -- to Muslim Turkey and impoverished Ukraine -- has also unsettled many people in France .

With France mired in double-digit unemployment rates, opponents said they worried that the constitution would enable low-wage workers from Eastern Europe to migrate to France and compete for scarce jobs. Others complained that the constitution increased the odds that French taxpayers would have to send more money to Brussels , which would in turn funnel it to poorer E.U. members.

Fatouma Diallo, 19, a nursing student in Paris , said she and many of her friends fretted that their job prospects would worsen under a stronger E.U. "They are already taking money from our paychecks," she said. "These changes are going to affect my generation more than others."

Even some supporters of the constitution acknowledged that the leaders of their side had failed to make a strong enough case. Michel Dumont, a deputy mayor in Paris who favored approval of the referendum, said France had waited too long to wrestle with the question of what its proper place in Europe should be.

Besides the economic consideration, some French worried that the European Union will lose its political power with too many member states and become an incompact organization. If so, France will probably lose its traditional influence in European Union. What’s worse, the dream to withstand USA through the power of European Integration will not come true.

(c)     Neoliberalism reflected in the Constitution goes against the French social mode.

In order to make it understood universally by the French, the government used to take a series of means to propagandize the document. It is a truth that the French understand the document well and participated in the referendum in their right sense. However, many French are scared of the future developing mode reflected in the constitution.

The second primary objective of the Union is ordained in the part 1 as follow: The Union shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance.

The highly competitive social market economy policy prevailing in Britain is adopted by the Constitution. Market economy principle exceeds social security, which will undermine the ‘French social mode’ that emphasizes on humanism, and do harms to the French welfare. The highly competitive social market economy policy will lead to cruel competition, salary decreasing, employment un-stabilization, inequity, all of which are unacceptable to the French. The veto to European Constitution is a rejection to the ‘Neoliberalism’ reflected in the Constitution virtually. The French request that the European Constitution be renegotiated, to emphasize the laborers’ interest and embody with French humanism.

(d)    The indignation of the French was utilized by the opposing power.

The extreme left-wing, extreme right-wing and the sovereign wing in France that are excluded by the mainstream politics are fiercely opposing the European Constitution. In order to gain more supporting from the French citizens and enlarge their influence, they merged united as an identity against the ratification. The resounding ‘no’ was the result of a broad political mobilization that developed at an astonishing pace over the last four weeks. Hundreds of thousands participated in numerous meetings for and against the constitution. Television discussions drew audiences of millions. The atmosphere in the country became akin to the campaign fever accompanying a parliamentary or presidential election. Voters became convinced they could put a stop to a social and political development that they opposed. Finally, 94 percent of the extreme-left wingers and 98 percent of the extreme-right wingers vetoed the Constitution in the referendum .

Opposite to the opposing alliance, Chirac government had failed in persuading the voters efficiently attributed to the gap between the French political elites and the common citizens. The Constitution promoted by the political elites was supposed to represent the interest of common citizens, but it refers to too many about ‘market’ and ‘competition’ (‘market’ appears 88 times, ‘competition’ appears 29 times) which have frightened the common citizens in some extent. The survey in the end of referendum showed that the French political elites and the common citizens hold strict opposite opinion to the Constitution.

2.2. The reasons of Veto in Netherlands

Netherlands , with a population of 16 million, was one of the six founding members of the European Common Market and has been a bedrock of the European Union project ever since. It ever tended to support unionism of the European and was recognized as the model of the member states in the process of integration. However, in the referendum three days after the veto in France , with 99.8% of ballots counted, unofficial results showed 61.6% had voted no to the constitution, with 38.4% saying yes. The level of opposition, and the turnout of 62.8%, exceeded all projections. That it votes ‘no’ is perhaps not as dramatic as the ‘no’ registered in France . But it confirms the widening gulf between the mass of European workers and the ruling elites in every country, which has thrown their plans for political union, economic counter-reform and military build-up into disarray.

(a)    The dissatisfaction of the financial transformation and the economic stagnant.

As the biggest per capita contributors to the Brussels budget, the Dutch feel bullied by bigger countries and let down by the single currency, which is seen as having brought steep price rises. Netherlands economy is stagnant, and unemployment has risen to 7%.

What’s more, the immigration is free according to some provisions of the Constitution, which will influence the Dutch’s welfare and employment opportunities. Both the French and the Dutch have the same worry in this aspect.

(b)  The Dutch oppose ‘a highly competitive social market economy’ fiercely.

Indeed, it was opposition to the insistence on creating ‘a highly competitive social market economy’ that was the main reason for the popular rejection of the constitution. Fears that European legislation would be less liberal than that of Netherlands on many social questions―a concern raised by both right-wing and left-wing opponents of the constitution―were combined with anger at rising prices since the adoption of the Euro currency and general hostility to a government that has imposed major social attacks and supported the US-led war against Iraq.

The ‘no’ vote is a rebuff not only to the governing right-wing coalition led by Prime Minister Jan Peter Balkenende, but to the main opposition parties who also called for a ‘yes’ vote.

(c)  Instigation by Pim Fortuyn List (LPF) and Geert Wilders played an important role.

Opposition to the constitution and to the government was exploited by the right-wing Pim Fortuyn List (LPF) and Geert Wilders, a former member of the Freedom and Democracy Party (VVD), who is seeking to establish a rival populist organization based on a xenophobic stance similar to that of the LPF. The LPF dresses up its anti-immigrant, anti-Muslim stance as a defence of the liberal social traditions of Netherlands . For his part, Wilders made anti-Muslim sentiment against Turkey becoming an EU member state central to his attacks on the constitution. Both stressed that the key issue was to preserve the national sovereignty of Netherlands .

On this issue they were united with the former Maoists of the Socialist Party (SP), who also stressed their opposition to what they described as the constitution’s neo-liberal economic agenda and the project of creating an imperialist European militarism.

It’s obvious that the basic reason for rejection isn’t the text of Constitution, but the other comprehensive causes.

2.3. The influence of the Veto in E.U.

As the French president, Jacques Chirac, said the Dutch vote - which came just three days after France rejected the EU constitution - had exposed ‘questions and concerns about the development of the European project’. ‘The idea of Europe has lived for the politicians, but not the Dutch people, that will have to change.’

With the failure of the referendum, France ’s ruling elite confronts the fragmentation of its domestic and foreign policy. Rejection of the constitution means a decisive personal and political defeat for President Chirac, the greatest since he took office ten years ago. Replacing the prime minister will not dispel the crisis. Chirac accepted the resignation of Prime Minister Jean-Pierre Raffarin and appointed his ally Dominique de Villepin to the post, rejecting his bitterest party rival, UMP ( Union for a Popular Movement) chairman Nicolas Sarkozy, the advocate of a ‘French Thatcherism.’ But trench warfare within the government camp is bound to intensify and its unpopularity amongst voters will inevitably grow.

Moreover, any EU country that is a member of the UN Security Council (like France -- or, as in a proposed future enlargement of the Security Council, Germany) would be hobbled in its ability to take an anti-Washington position without consensus approval by all the EU countries as represented in the (un-elected) EU Commission headquartered in Brussels.

Whether the Constitution project will be abandoned or not became ambiguous. The rejection in France and Dutch makes the rest member states difficult to achieve affirmative decisions about the future.

The integration of European Union is baffled badly. The Constitution, aiming at making the Union more efficient and steady, came across the bad lose, and will be hard to help realize the elites’ dream.

3. The possible scenarios in the coming years on the ratification of the constitution.

The resounding ‘no’ in the two member states has discouraged the political elites extremely, especially for the Chirac government, which makes them difficult to restart the referendum. However, the Constitution is the consequence of negotiations without numbers, it is also impossible for the member states to make substantial amendment recently. France, one vital core of the E.U and the main initiator of E.U, possesses an un-representative position in the E.U, without which, the European Constitution is unable to be implemented.

External reality has caused the shortage of impetus in the process of ratification. Since the rejection in France and Netherlands , the rest member states would also ratify the Constitution through referendum. Although the political elites are appealing for efforts to overcome the deadlock, as Jean-Claude Juncker, who holds the rotating E.U. presidency, said at a press conference at the Brussels headquarters, ‘The European process does not come to a halt today, the ratification procedure must be pursued in other countries,’ it’s obvious that there will be little progress recently.

Considering that ‘we do not feel that the date initially planned for a report on ratification of the Treaty, 1 November 2006, is still tenable, since those countries which have not yet ratified the Treaty will be unable to furnish a clear reply before mid?2007,’ the European Council, meeting on 16 and 17, June 2005, delayed the time to ratification in other member states, which made the timetable unpredictable.

Some official have showed their disbelief in the Constitution and thought it was meaningless to hold referendum again. Blair has decided to give up on Europe and focus his premiership instead on campaigning against poverty in Africa , close allies have revealed. Some authoritative surveys showed that the ‘no’ tendency is rising in Denmark and Poland .

In conclusion, since it is impossible for the member states to make substantial amendment recently, France and Netherlands , both of which will hold the general election in the coming year, will not restart the referendum recently. Without the unambiguous attitude of France , the other member states tend to take go-it-alone policy. Finally, the existing European Constitution will be abandoned unless it’s substantially amended, which is impossible to happen recently.

According to the analysis about the veto in France and Netherlands , the most important thing the political elites have to do is to improve the economic situation (especially to solve unemployment and maintain the citizens’ welfare) and the political issues concerned by the citizens.

4. The latest development about the Constitution.

On October 11, 2006 , Chancellor Angela Merkel has spoken to José Manuel Barroso, President of the European Commission, about the coming German presidency of the European Council. One of the main items on the agenda for Germany 's presidency would be the constitutional treaty. During its presidency, Germany wants to develop a timetable for a new EU constitutional treaty. However, the drafting of the constitutional provisions could not be completed in the first half of 2007, before the end the German presidency. The new constitutional treaty is to be finished in 2009 when the new European Commission will be constructed.

On December 18, 2006 , the president of European Parliament Jose Borrell and German Chancellor Angela Merkel held a press conference in Berlin . Jose Borrell said, European Parliament will support German’s plan to amend the constitutional treaty with substantial provisions remained.

According to the attitude of Merkel and Borrell, we have enough reasons to believe that the existing document will be suspended before a new version created, which will maintain the substantial provisions of the existing document. As Merkel’s plan showed, the new version will emphasis on closing to its citizens and lessening bureaucratic.

Before 2009, there is 3 years for the member states and European Union to adjust their relative situation. Only with the problems mentioned in the previous passage solved efficiently, which means the deep gap between the political elites and citizens is narrowed, ratification in France and Netherlands are possible to accomplish.

5. The further development of the European integration

Since the foundation of the European Coal and Steel Community in 1951, 55 years has passed in the process of European integration, during which several serious deadlock have happened, such as the empty-chair event. Through, they are overcame finally with great efforts of the elites and led to new achievements then. The rejection of European Constitution holdback the integration process obviously, however, it can’t finalize the tendency of integration. I just list the problems posed by the accident which need both the political elites and the Europeans to pay attention to and make efforts.

Firstly, the economic reformation of European Union will encounter serious holdback. The essential problem that the economic development is decreasing in recent years, especially in the traditional states, such as Germany , France and Italy has led to the high unemployment. Some reformation reflected in the Constitution, such as the high competition market, tends to influence the citizens’ welfare. To some extent, these reformation provisions of the Constitution had contributed to the No voting. Maybe the integrated measures to reform need to convert into reformation relatively in respect to their local circumstances.

Secondly, Europe ’s boundary is difficult to extent even further in recent years. Over the last decade, the EU has been enlarged twice, in 1995 and 2004. At the same time, the EU has been developing a body of law, and it seems that the EU never stops creating new law and new regulations. Many French voters who opposed the constitution said they were angry that they had not been given a chance to vote on E.U. expansion from 15 to 25 members last year, pulling in most of Eastern Europe . The prospect that Europe's boundaries might be extended even further -- to Muslim Turkey and impoverished Ukraine -- has also unsettled many people in France . France and Netherlands vetoed the Constitution showed their hostage to the further enlargement of European Union, which will probably impact their living environment under the blueprint of Constitution. Romania and Bulgaria have signed their accession treaties which are hopeful to join EU, however, it is hopeless for the other European countries to join recently.

Thirdly, with or without the Constitutional Treaty, EU decision-making will get far more complicated. At the moment, it takes nearly an hour just to hear introductions from every foreign minister. That affects the efficiency and effectiveness of decision-making and may lead to a tendency for backroom and corridor deals that then get brought forward. Making big deals will become difficult since, going forward, it is not certain where the leadership will come from given that in almost all of the big EU member states, the leaders are up for elections and will be preoccupied domestically.

Lastly, with regard to the competitiveness of Europe , it is going to be much more difficult for Europeans to sort out their economy. As was seen in the French referendum debate, it is going to be very difficult for the French government to pursue a liberalizing agenda. That will have implications at the European level. The great tragedy for the EU is that 75% of its GDP comes from services, which is the least liberalized sector of the EU market. That is a very significant problem for the future.

6. The role of the European Constitution

As a treaty, every member states who have ratified it must apply with the provisions unconditionally. Since reservations are forbidden according to the European Constitution, the member states have to adjust their previous legislation which is opposite to the Constitution.

As a constitution, the European Constitution endow the European Union with limited sovereignty, especially reflected by the competence of independent decision-making in some significant fields, which is organized into three categories. These are: exclusive competence, where the Union has the sole right to act (for example, competition rules in the internal market or monetary policy for the Euro); shared competence, where competence is shared between the Union and the Member States (for example, agriculture or energy); and areas in which the Union may only take supporting or coordinating actions (for example, culture or education). The coordination of economic policy and the common foreign and security policy are also listed as areas of Union competence. On the other hand, the citizenships of the Union have the opportunity to claim for fundamental rights in their own state.

In respect to the reality of European construction and the substantial provision, the European Union, as an organization primitively, has some characteristics of a state. In the process of integration, as a historical tendency, all the member states have to try their utmost to help the Union make the values come true, such as the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. And these values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. To some extent, these aims of the Union are heavy burdens especially for the relative developed member states, such as French, Dutch and so on.

In the process of European integration, the establishment of a European Constitution is necessary, so as to the substantial provisions, such as the values, objectives, institutions, competences, citizen’s fundamental rights and so on. As a fundamental and the most vital document for the European Union, the European Constitution ought to reflect all the citizens’ considerable interests and reconcile the conflicts between different states and areas. Besides, the other factor, as the most vital factor, is that the member states try their utmost to improve the local political and economic situation, until complying with the criteria required in the Constitution, and impetus the process of integration positively.

文章来源：中国宪政网 发布时间：2008/1/19