How the New European Union Constitution Will Allocate Power between the EU and Its Member States-A Textual Analysis

By Sieberson, Stephen C. | Vanderbilt Journal of Transnational Law, October 2004 | Go to article overview

How the New European Union Constitution Will Allocate Power between the EU and Its Member States-A Textual Analysis


Sieberson, Stephen C., Vanderbilt Journal of Transnational Law


ABSTRACT

The new European Union Constitution, if ratified by the EU's Member States, will replace the existing EC Treaty and Treaty on European Union. The Author analyzes the text of the Constitution to determine how it balances the functions and powers of the EU institutions with the role of the Member State governments within the EU system. Topic areas include the characteristics of the EU, the Union's values and objectives, and the substantive areas of EU activity. In each area the Constitution reveals a determined effort by its drafters to emphasize the corresponding characteristics, values, and powers of the Member States. The Author's conclusion is that the treaties' delicate balance between the competences of the EU and the states has been attentively maintained in the Constitution.

TABLE OF CONTENTS

  I. INTRODUCTION AND THEORIES ON THE
     STRUCTURE OF THE EUROPEAN UNION
 II. ANALYZING THE CONSTITUTION
     A. Characteristics of the EU
        1. Basic State-Like Attributes
        2. Mandate and Independence of
           the EU Institutions
     B. Values and Objectives
        1. Union Values
        2. Union Objectives
        3. Protection of Rights of Individuals
     C. Relationship Between EU and Member
        State Competences
        1. Principles Underlying EU Action
        2. How the EU Exercises Its Competence
        3. Subject Matters for EU Activity
     D. Five Remarkable Provisions

III. CONCLUSION: A FINAL BALANCING
     A. Emphasis on the Union
     B. Emphasis on the Member States
     C. Holding the Middle Ground

I. INTRODUCTION AND THEORIES ON THE STRUCTURE OF THE EUROPEAN UNION

The Member States of the European Union (EU or Union) are now considering the ratification of a constitution (the Constitution) approved by the Intergovernmental Conference in June 2004. (1) The new instrument is intended to replace the two treaties currently serving as the EU's primary constituent documents, the Treaty Establishing the European Economic Community (EC Treaty) and the Treaty on European Union (TEU). (2)

The focus of this Article is to review the Constitution to determine how it will distribute power within the EU. The balance of power has been the subject of debate throughout the EU's history, a debate stimulated by questions such as: What institutions and procedures are necessary to ensure that the EU reaches its potential? In an expanding Union, how should the common market be managed? At what level of government should social policy be determined? How should foreign affairs and defense be conducted? How much integration is necessary?

At the heart of the discussion lies the relationship between the Union and its Member States, and in particular, where the institutional power should reside. The discourse has revealed serious differences of opinion as to how the EU should be organized and how it should operate, because the structure and competences granted to the Union will necessarily tip the scales toward centralized authority in Brussels or away from the center and toward the national governments. The debate has produced three principal schools of thought regarding the EU: (3)

1. Intergovernmental. Many politicians and observers believe that the European Union is and must remain a treaty-based organization, with the Member States retaining their essential sovereignty as nations. The Union's powers must be carefully contained, and ultimate authority must remain at the national level. The EU must function as an intergovernmental organization (IGO), albeit a highly sophisticated one.

2. Federal. European federalists insist that the EU is evolving from its intergovernmental roots into a federation. For the Union to prosper and assume its rightful place as a major economic and political force in the world, further centralization is necessary, and the process of integration must inevitably create a "United States of Europe. …

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