The Constitution Theory Essay Example for Free

The Constitution Theory Essay INTRODUCTION: Main purpose of this article is to review the European Union Constitution and to find out how it will allocate power within the EU member states. The present debate about the EU’s constitution is about its balance of power. Under the new expanded market, how the common market is going to be managed. How the government social policy is to be determined? Under common constitution, how the defense and foreign affairs is going to be accomplished? Is integration is necessary and if so, by how much? As regards to EU and member States, where the institutional power is going to be housed? If and when the EU constitution is approved by its Citizens and successive ratification of the respective Member governments, the EU Constitution will simplify and speed up the matters relating to home affairs and justice as these are all going to be dealt with at European level itself but also fostering more democratic accountability and transparency into decision making. EVALUTION OF EUROPEAN UNION CONSTITUTION: The EU constitution is divided into four parts. Part 1 deals with the definition of Union, its institution’s competences. Part II deals with the fundamental rights of the Union. Part III explains EC treaty and TEU with broad details on social, economical, detail on internal market, external action, monetary policy and the activities of the EU institutions. Part IV consists of various declarations and protocols. Under the present EU constitution, how the relationships between Union and its member states are going to be maintained is the main focal point of this essay. The uniqueness of EU like its state –like characteristic and the mandate and independence of its various institutions are evaluated. Further the declared objectives and values of the Union are briefly explained with critical attention to safeguard of human rights. The substantial authority enshrined to EU based on a number of stated or implied principles underlying union action. This analysis also evaluates the five exceptional articles in EU constitution that underscore the Union’s continuing commitment to Member State sovereignty. The constitution stipulates that most of its decisions at EU level will be approved only by the unanimous vote or common accord or consensus. Thus it confers to the State the right to block the decision and veto and this symbolizes a unique reservation of power to the Member states. EU has the autonomy as a governmental entity and it resembles those of modern nation-states and EU is composed of official bodies of national government. But in reality, there exists certain limitation on the Union and its institutions. EU is a distinct authority and its existence is separated by its Member States. It is established as a constitutional authority and posse’s legal personality.   EU is enjoying certain constitutional rights and protection for the execution of its tasks. Since the EU is a juristic person, it has the privileges of owning property and to be a party to legal proceedings. The EU constitution accords EU with symbols like a national anthem, a flag, an annual holiday, a motto and Union common currency ‘Euro’. EU comprises of specific set of institutions and of ‘institutional framework’ and these institutions is authorized to constitute law for the Union and its majority of its regulative activities are to be carried out at the central, EU level. Thus the activities of these institutions are subject to oversee by independent ombudsman of the European Parliament. Thus the EU has been established on permanent basis with its own constitution. There is also room for the further expansion of the EU and is open ‘to all â€Å"European States† willing to promote the Union’s values. Constitution of the EU stipulates that EU has the duty to ‘respect the equality of Members States, to honour their national identities and to recognise their essential state functions. In the eyes of the constitution, the Union and its Member States are alike and each of them is necessitated to follow to ‘the code of sincere cooperation’. The constitution requires the Union and Member States to exhibit mutual respect, help each other in accomplishing tasks which originates from the constitution. The Article 1-60 grants exit power to the Member States and authorizes a State to unilaterally withdraw from the EU. The Member State can grant certain rights to EU under its law like ownership of property. This right underscores the EU constitution the strength of the Member State as well as the legal personality of the EU. Further the EU is subject to the contract law and tort law of individual Member States. The EU constitution will become effective only after the approval of the each Member States at its national level as per its own constitutional requirements and it should be ratified by all States. Any proposed amendment to constitution is required the unanimous consent of the Member States who are awarded with right of veto and can exercise this right even on minor change that may affect them . Further any new accession to EU is to be approved by the existing members of EU through their national procedure. Certain sensitive issues like official use of languages within the institution and location of the institutions are subject to unanimous approval of the Member States. EU constitution stipulates that ‘European framework laws’ will be binding ‘as to the results to be accomplished’ but leaving to the Member States ‘the Choice of form and methods.’ Further certain European regulations may stipulate that the States will select how to apply the desired policy.   Further under certain veiled circumstances, States may be authorised to initiate the EU legislative process. 2.1 FINANCE: EU has the financial independence. It does not depend upon the contribution from its members. EU raises its finances through taxation and also adopts its annual budget .Further EU is expected not to exceed its annual budgets. Thus the financial conduct of the EU is to be approved by the Member States and also unanimous approval by the council. In addition to this, each multi annual financial framework must be unanimously approved by the Council. It is pertinent to note that the lion’s share of EU’s finance is again diverted to as a financial support for agricultural and other programs of the Member States. 2.2 EXTERNAL RELATIONS: EU has to draft its own external relation policy. It’s relation with wider world and to contribute to security ,peace , sustainable development , mutual respect among subjects , poverty eradication, free and fair trade , human rights protection , observance of institutional law and respects for the principles of the United Nations Charter. It is worthwhile to mention that the authority of the EU to act in external affairs matters is cautiously limited. Member states are regarded as the Citizen of the EU. Thus the Member States as citizen of the EU has been granted with wide rights such as ‘right to move and reside freely in any member state ‘the right to vote and stand as a candidate in municipal and European parliament elections, the right to deal with the EU institutions in any official EU language and certain rights to diplomatic and consular assistance from any member state. Further EU has the obligation to serve to the interest of its citizens and to grant them ‘an area of security, freedom, justice without internal borders ‘along with the strong single market. EU has the obligation to treat all of its citizens impartially. The EU commitment to the principles of ‘participatory democracy ‘and ‘representative democracy ‘are of critical in nature and these articles offers citizens the right of representation in the EU parliament, the right to participate in the democratic life of the Union and the right to act through the EU-level political parties. Citizens can raise their voice through public forum, access for their representative association, can have consultation with the officials of EU and right of initiative. Further citizens have further rights like Union institutions should conduct open meetings, right of personal data protection, access to its important documents and respect for the national status of churches. EU offers dual citizenship to its members. Thus right to stand in the election is restricted to municipal and European parliament election.   No mention about the National and provincial election has been made and there is no explanation to what Municipal means. As such, the EU constitution has to be amended to include these provisions which requires the unanimous approval of its Members State This may provide derogation where warranted by problems specific to a Member State. The prerequisite of unanimity and possibilities for derogation exhibits limited power of the EU to delineate the rights of its citizens. One another outstanding aspect is that the tort claims may be initiated by the injured persons against EU ‘in accordance with the general laws of the Member States. Further Part 1 of the constitution of EU deals with the EU’s institutions like European Parliament, European Council, and Court of Justice .Significant activity of the institution is the creation of the EU’s legislation. The national parliaments of States must be informed all proposed EU legislation.   The States may object the any legislative part that violates the principles of its interest. One of the noteworthy is that EU Parliament is denied the right to introduce legislation as this power is vested with the Commission. Currently the decisions are taken by the qualified majority vote (QMV). But from 2009 onwards, QMV will to be approved by at least 55% of the members of the Council consisting of at least fifteen of them and representing member states comprising at least 65% of the population of the Union. Due to this policy, a small group of the largest state can able to prevent a successful vote although the Constitution stipulates at least four states to form a ‘blocking minority’. But under QMV, no single member is having the power to block EU legislation. Even though there exists QMV, the EU contains many provisions requiring the Council to act unanimously. 2.3 EUROPEAN COMMISSION: It acts as chief administrative body and permanent executive of the EU. EU acts as a guardian of the constitution and manager of the EU budget and programs. It has to remain as an independent body. Commission’s decision is taken by the majority of votes. The European Court of Justice (ECJ), European Central Bank (ECB) and Court of Auditors are bodies that are affiliated to EU and independent of other Union institutions. Both ECJ and ECB are vested with power over the Member States. ECJ will deal with the complaints from EU States on one another and will attempt to resolve the same. EU constitution contains the most of the values and objectives of EC Treaty and TEU. The preamble of the EU constitution includes ‘reunited Europe. The EU also wishes to remain as a continent open to learning, culture and social progress. To lead a democratic government, to strive for justice, peace and solidarity. It speaks about the protection of fundamental rights. The members are requested to help the EU to attain its objects and to refrain from any activity that would hamper the attainment of EU’s objectives. The EU constitution authorizes ‘improved cooperation’ among group of Member States an activity that undermines the cohesions of the EU. As per the provisions of the Article I-3, the Union is authorised to protect the well-being of it’s ‘peoples’ rather than its ‘People’. Further EU is authorised to exercise its conferred competences ‘in the community ways’ instead of federal basis as it was mentioned earlier. 2.4 PROTECTION OF INDIVIDUAL RIGHTS. Part II of the constitution describes the Fundamental Rights of the Union into the European Union Law. Some argue that EU must extend its objectives beyond the economic sphere and insertion of human rights charter in the constitution. The preamble concludes as follows: The Union therefore recognises the freedom, rights and principles set out hereafter. Thus the EU constitution structure has established institutions and explains its areas of activity, all are subject to the restriction on the EU and reservation in favour of the Member States. The following five provisions of the constitution deserve attention as it offers powerful statement on the status of the Member States within the Union. Article 1-5. Respect – The Union must respect the territorial integrity of the state thereby safeguarding the national security. These instructions may be intended to prohibit a hegemonic relationship. Article 1.44 – Enhanced Cooperation- Enhanced cooperation is aberrant of a true federal system in which powers are segregated vertically between the States and the central government. Article 1-59- Suspension of Rights: If any of the Member States has committed a ‘serious and persistent breach ‘of EU core values, the council has the power to suspend the membership of such states and despite of such suspension, the State is still bound by its obligations under the Constitution Article 1-60- Amending the constitution-   Any amendment of constitution   requires ratification by all the Member States and in Part III , unanimous voting can be changed to QMV . Further European Council must unanimously approve such amendments and must be referred to national parliaments and disagreement by any parliament may obstruct the amendment. CONCLUSION: The one question that arises is whether the creation of European Union is going to dominate its Creators. One has to remember that EU is a striking force not only in Europe but also in the rest of the world. As such, the Member States need not slide into stupor or inappropriateness. Thus EU Constitution will make the EU as an amalgam system. Most of the central features allocated to the Union under the Constitution will be carryover from the treaties. The EU Constitution has the following striking characteristics. EU citizenship will afford the nationals of EU the freedom to reside, vote, work anywhere in the EU.   The EU levies its own taxes and collects thereby revenues and meets its budget requirement on its own and is not depend on any contribution to from its member states. The EU has its own currency managed by its own central bank. It has its own Parliament, Council of ministers, commissions. The Union legislation is to be adopted by majority voting in the Council and European Parliament. Further EU law is having supremacy over the laws of its all Member States. EU has to act only within the restrictions of the power conferred on it by the Member States. Competences are still remaining with the Member States. Certain policy decisions have to be taken only on unanimous voting by all the Member States. Further without the consensus, the Council can not proceed in certain key decisions. Thus a single member has the ability to block any resolution and has the bargaining power and can demand concessions as the price for its voting. Another striking factor of EU is that foreign policy and defense are untouched and left with the respective Member States. EU constitution stipulates that it has to respect the integrity of the Member State as sovereign nation. EU has the right to suspension of rights of Member States and offers the Member States withdrawal rights from the EU. EU constitution can not be amended with out approval of each Member of the State. Last but not the least, as the world is facing constant shifting winds of international affairs, it is arduous to foresee whether the EU Constitution after its ratification will take the EU to success path? The balance of power as suggested by the EU Constitution is workable or not?   Whether its political concession can be sustained? Is the tremendous power among the Member States to transfer power to Brussels is going to succeed or not? Are some core group of states is going to be unwind for an enhanced co-operation between themselves? Only time has to answer all these questions. EU Constitution is aimed to maintain the Union’ current system of duality of Authority thereby facilitating the members to retain their position as sovereign nation in the EU with significant central features. Thus the EU constitution aims to bring all the Europeans under one umbrella and it provides more effective and simpler legal base for EU activities to promote security, freedom and justice and exactly explaining the responsibilities and aims already provided in successive EU treaties and thus assisting Europeans to be aware of them. REFERENCES: Dale, R. European Union, Properly Construed. Policy Review, (122), 2003 39+. European Union at Crossroads; Referendum on Constitution Set to Begin; French Vote Critical. The Washington Times, p. A08 February 6, 2005. The European Union Constitution on Border Checks, Asylum and Immigration. Population and Development Review, 30(4), 2004. 789+. Muller, K. Problems of European Union Citizenship Rights at the Periphery. The Australian Journal of Politics and History, 45(1), 1999, 35. Sieberson, S. C. How the New European Union Constitution Will Allocate Power between the EU and Its Member States a Textual Analysis. Vanderbilt Journal of Transnational Law, 37(4), 2004. 993+. Steunenberg, B. (Ed.). Widening the European Union: The Politics of Institutional Change and Reform. New York: Routledge, 2002. Van Gerven, W. The European Union: a Polity of States and Peoples. Stanford, CA: Stanford University Press. 2005. Wallace, H. Wallace, W. (Eds.). Policy-Making in the European Union (4th ed.). Oxford: Oxford University Press. 2000.