The Proposed Constitution for Europe - Towards an Effective Union or a Federal Superstate? A Sceptical Perspective
| Author | Aoife McMahon |
| Position | Senior Sophister Law, Trinity College, Dublin |
| Pages | 130-155 |
THE
PROPOSED
CONSTITUTION
FOR
EUROPE
-
TOWARDS
AN
EFFECTIVE
UNION
OR
A
FEDERAL
SUPERSTATE?
A
SCEPTICAL PERSPECTIVE
AoIFE
MCMAHON*
Having
just
given
in
to
the
plea
of
the
Government
to
accept
the
Treaty
of
Nice
we
the
Irish people will soon be
asked,
in a
referendum
proposed
for
2006,
to
repeal
that Treaty and
accept
a
new
Constitution
for
Europe
in
its
stead. This
referendum
will determine
whether
Ireland
can
ratify the
new
'Treaty
establishing
a
Constitution
for
Europe'
(the
Constitutional
Treaty)'
signed
by
the
Heads
of
the
Member
States on
the 29th
October 2004
in
Rome.
Against
this
backdrop
an
examination
of
exactly
what the
Irish
citizenry
will be
asked
to
accept
is
timely.
For
over
half
a
century
the entity
now
known
as
the
European
Union
has raced
forward,
energised
by
its
own
momentum
and
initiative.
In
its
current
state
of
development,
the
European
Union
is
almost unrecognisable
as the
same
entity
from
which
it
emerged.
It
has,
however,
retained
several
characteristics
throughout
its
journey.
One such
characteristic
is
evident
from
an
examination
of
the
reasons for
its
growth -
a
contributing factor
to
every stage
has
been
a
reactive
response
to
some
security
threat
or
political
pressure.
2 Another characteristic
is
that
it
has
continually
sought
to
balance
the
twin
necessities
of
effectiveness
and
accountability
in
order
to
retain
its
*
Senior
Sophister
Law,
Trinity
College,
Dublin. I
would
like
to
thank
Dr.
Diarmuid Rossa
Phelan
for
his
helpful
comments
on
an
earlier
draft
of
this
article
and
Cllr.
Eugene Regan
for
providing
me
with
information
on
the
topic.
I
would
also
like to
thank
Mr.
Anthony
Coughlan
whose
passion
on
this
subject
inspired
the
writing
of
this article.
Finally,
I
would
like
to thank
Mr. Gregory
Smith
for
his
helpful comments
on
a
previous
draft
of
this article.
All
errors
and
omissions
remain
my own.
i
Available
at
<http://www.euabc.com>
(last
visited
6
February
2005).
2
Its
inception
sought
to
counteract
the
harm
done
to
Europe
as
a
result
of
the
two
world
wars.
The period
of
political
stagnation
in
the
1960s
and extensive enlargement
prompted
the
introduction
of
the
Single
European
Act,
and
increased pressure
for
a
more
powerful
Union
resulted
in
the
transition
from
an
economic
to
a
political
union
in
the
Maastricht
Treaty.
The
Treaties
of
both Amsterdam
and
Nice
were
reactions
to
the
prospect
of
accession
of
new
European
democracies.
©
2005
Aoife McMahon and
Dublin
University
Law
Society
The
Proposed
Constitution
for
Europe
practical,
legal
and
democratic
legitimacy.
3
Walker
points
out
that
the
former
characteristic
has
influenced
the sway
of
the
latter:
by
reacting
in
response
to
external
events
4 "the danger
arises
that
this may
lead
... to
the
relegation
of
accountability
to
the
status
of
an
afterthought rather
than
an
equiprimordial
consideration".
This
concern
was
voiced
in
the
recent Laeken Declaration
6
of
the
European Council
in
December
2001
which
led
to
the
establishment
of
the
Convention
on
the
Future
of
the European
Union
in
October
2002.
This
declaration again
came about as a
reaction,
first
to
the
political
pressure
of
the
forthcoming
significant enlargement
of
the Union
to 25
Member
States
and
secondly
to
the
real
threat
of
terrorism
to
the
security
of
the Union
following the
terrorist attacks
on September
1 Ph.
It
set
out
the
first
challenge
for
the
renewed
Union
by stating
that
"the
Union
needs
to
become
more
democratic,
more transparent
and
more
efficient".
7
As
a
final
note
it
posed
the question:
"whether
this
simplification and
reorganisation
might
not
lead
in
the
long
run
to
the
adoption
of
a
constitutional
text
in
the
Union".
8
Walker
suggests
that
a
key factor
in
the
drive
towards a
documentary
constitution
"undoubtedly
lies
in
the
recognition
of
those
committed
to a
deep
supranational
trajectory
that
there
exists
a
significant
legitimacy
deficit
that
an
explicit constitution making
project
might
hope
to
fill".
9
To
maintain
the
legitimacy
of
a
further
integrated
Union,
a
more
conscientious
balance between
effectiveness and accountability
is
essential.
This
would
necessitate
a
less
reactive approach which
allowed
sufficient
time
to
achieve
the
best
constitutional settlement
for
a
responsible Union.
With
guidance
from
the
Laeken
Declaration, the ensuing Convention drew
up
the
main draft
of
the Constitutional
Treaty.
The
main concerns
of
this
article
are
to
determine
to
what
extent
an
appropriate balance
between
effectiveness
and
accountability
has been
achieved
in
the
final draft
of
the
3
See Walker
"In
Search
of
the
Area
of
Freedom
Security and
Justice:
A
Constitutional
Odyssey"
in
Walker
ed.,
Europe's
Area
of
Freedom
Security
and
Justice
(Oxford
University
Press,
2004)
1,
at
3
for
a
discussion
of
these characteristics.
4
Walker,
loc.
cit.
Walker
dealt specifically
with
security threats,
however,
the same
argument
is
viable
for
all
external
events.
5
Walker,
loc.
cit.,
at
28.
6
The
Laeken
Declaration
is
available
at
<http://europa.eu.int/constitution/futuruni/documents/offtext/doc
151201
en.htm> (visited 18
December
2004).
7
]bid.,
at
Part
11.
Slbid.
9
Walker,
loc.
cit.,
at
28.
2005]
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