Title: Calls for a fundamental law for Europe to turn to current lacks in democracy in EC Law-making ignore the fact that the EC Treaty ( as amended ) already is a fundamental law in all but name, yet still missing in democracy. Critically evaluate the above statement.


This observer mostly disagrees with the statement under treatment. The determined political and institutional thrust towards a new constitutional pact is obliging grounds that the current EC Treaties are considered unequal to carry through the function of an effectual constitutional papers. One must inquire the inquiry as to why the member provinces, in peculiar those enthusiastic about the chance of an EU fundamental law, have subjected themselves to the arduous, time-consuming, hazardous and finally awkward [ 1 ] undertaking of trying to set up a new constitutional pact, if one is already in topographic point in all but name?

The Treaty of Rome was signed in 1957 with the intent of set uping an economic relationship between six European provinces – France, Germany, Italy, Belgium, The Netherlands and Luxembourg. The papers was intended to cover with such affairs as duties and barriers to merchandise, competition jurisprudence and the free motion of workers sole to the economic system. Although the designers of the European Economic Community such as Monnet and Schumann were intimidated by the chance of a 3rd universe war on the European continent and tidal bore to see the European provinces associate more closely together, the Treaty of Rome was merely nondesignedto hold a constitutional range or footing and did non address affairs appropriate to such an overarching papers.

All that said, of all time since the sign language of the Single European Act in 1986 [ 2 ] a deliberate and sustained program to convey the provinces of Europe towards a more incorporate theoretical account of Union which might near a constitutional position has been pursued by the major European participants, in peculiar France and Germany.

The Single European Act was dressed in footings of market fusion but in fact the Act initiated policies aimed at well more than mere economic consolidation and integrating. [ 3 ] The establishments of the EEC were famously criticised as working under a allegeddemocratic shortage, which referred to the fact that there was a common populace and media perceptual experience that the establishments were making jurisprudence under the protections of administrative officials instead than representatives elected by direct cosmopolitan right to vote. To counter this, among other reforms, in a elusive move the Assembly was renamed the European Parliament, to give it a more important and democratically-friendly sounding name, and given new powers in the jurisprudence doing procedure of the Community.

The Treaty on European Union [ 4 ] , popularly known as the Maastricht Treaty, was signed in February 1992. It is submitted that this Treaty was overtly designed to convey into action indispensable institutional reforms to shift the European Economic Community, which was renamed the European Community by Maastricht, so as to convey forward the greater integrating of its member provinces. The Community’s new name – dropping the wordEconomic– broadcast the fact that the administration had developed from its exclusively economic beginnings and cultivated legal powers and competences in other countries. For illustration and in peculiar, the Treaty on European Union set in topographic point the strategy for pecuniary brotherhood and a individual currency, which is one necessary constituent of a federal brotherhood that would necessitate a fundamental law. Again, the jurisprudence doing powers of the European Parliament were increased, this clip well so, in order to pacify farther those critical of the democratic shortage of the Community. Concerns about the deficiency of democracy in the Community’s legislative procedure had persisted since the sign language of the SEA, but now the to the full elected Parliament had a existent and effectual portion to play in the jurisprudence devising government.

Those purpose on a federal finish for the Community were acute to integrate other new powers in the domain of foreign policy, and in respects to condemnable and military cooperation in the Maastricht Treaty. [ 5 ] However, member provinces such as the United Kingdom, considered these Fieldss to be excessively sensitive to be controlled by the European Community and its establishments, and were determined to continue the sovereignty of national authoritiess in these countries of activity. There were besides frights that other established international administrations, such as, in peculiar, the North Atlantic Treaty Organisation ( NATO ) , might be weakened or even jeopardised by deeper integrating in these domains.

As a effect it was an intergovernmental system, alternatively of a supranational, system, that was chosen to integrate these new powers. Athree pillarconstruction was hence create to separate the new and traditional Community duties from the new powers in countries of foreign policy and military cooperation ( which was known as the “CFSP pillar” ) and condemnable affairs ( which was known as the “JHA pillar” ) . Further stairss, albeit some of them tentative, were therefore taken towards a constitutional construction for the European Union.

The advancement initiated by Maastricht towards an embryologic federation, which would finally necessitate underpinning by a fundamental law, was built on by the Treaties of Amsterdam [ 6 ] and Nice [ 7 ] , but political development became sporadic, bit-by-bit and more loath in general footings [ 8 ] . Both Amsterdam and Nice secured the farther consolidation of policy in assorted countries, but the thrust towards integrity which would demand a constitutional position was hampered by a deficiency of unanimity among the member provinces and certain important reforms were kicked into the long grass of diplomatic dialogue.

The effort to set up an EU Fundamental law

It was the Treaty of Nice that was aimed at reorganizing the European Union establishments so that the EU could run swimmingly after its intended expansion to 25 Member States. This expansion has now taken topographic point. [ 9 ] It was intended that a new fundamental law could be adopted at the point of expansion or shortly after, in order to foster deepen and better the powers of the EU and the rights it could confer.

The first formal measure towards the creative activity of an EU fundamental law was the sign language of the Treaty set uping a Fundamental law for Europe, which took topographic point in Rome in October 2004. [ 10 ] The bill of exchange Constitution represented the apogee of the procedure of integrating set in train by the sequence of Treaties since the Single European Act.

The Constitutional Treaty begins with a expansive Preamble which states the history and heritage of Europe and the committedness and finding of the EU to exceed its divisions. It is thenceforth organised in four subdivisions – all of equal authorization.

Part I concerns the aims, rules and institutional commissariats regulating the EU. In peculiar it covers the cardinal rights and citizenship of the Union ; Union competencies and the exercising of that competency ; the democratic life of the Union, its fundss and its neighbors ; and the rank of the Union.

Part II of the bill of exchange Treaty embraces the European Charter of Fundamental Rights. It contains seven Titles which are: self-respect ; freedoms ; equality ; solidarity ; citizens ‘ rights ; justness ; and general commissariats.

Part III sets out regulations regulating the operation of the Union and its internal and external policies are stated. These include commissariats associating to economic and pecuniary brotherhood, the individual market, the CFSP pillar and the operation of the establishments. Seven Titles are besides contained in Part III, viz. : commissariats of general application ; non-discrimination and citizenship ; internal policies and action ; association with abroad states and districts ; the Union ‘s external activity ; the operation of the Union ; and other common commissariats.

Part IV deals with the entry into force of the Treaty, the process for its amendment Fundamental law and the abrogation of earlier Treaties. In add-on, a figure of protocols are annexed to the bill of exchange Treaty in peculiar statements on the function of national parliaments in the European Union and the application of the rules of subordinateness and proportionality.

The content of the Constitutional Treaty hence significantly surpasses that which is already enshrined in the EU Treaties and it is submitted that this observation serves to underscore this paper’s opening statement that the currentacquis communautaire[ 11 ] falls some manner short of set uping an effectual fundamental law for the EU.

The Constitutional Treaty incorporates many inventions that take it beyond the current province of EU jurisprudence. The values and aims of the Union and the rights of European citizens are amalgamate, as a effect of the incorporation into the Constitution of the European Charter of Fundamental Rights. Furthermore, the Union is accorded a individual legal personality – an of import precursor to a fundamental law – by unifying the European Community and the European Union. In add-on, for the first clip the bill of exchange Treaty defines the democratic underpinnings of the Union, including participatory democracy and an effectual right of popular legislative enterprise is set in topographic point.

The bill of exchange Treaty will besides guarantee that seats in the European Parliament are distributed on a degressive relative footing and cut down the Commission ( which is still identified as missing democratic authorization ) in size from 2014, so as to do the figure of Commissioners tantamount to two-thirds of the figure of member provinces. The Treaty besides states that the President of the Commission is to be elected by the ( democratically elected ) European Parliament based on a proposal from the European Council and a Minister for Foreign Affairs would be appointed to presume the function of the External Relations Commissioner and the High Representative for the Common Foreign and Security Policy attached to the Council.

As to the of import and cardinal inquiry of the European Union’s jurisprudence doing powers the bill of exchange Treaty establishes a new qualified bulk system, under which 55 % of the Member States stand foring 65 % of the population will represent a qualified bulk. This will guarantee it is easier to obtain sufficient support to go through jurisprudence in a Union which has dramatically expanded late. Furthermore, qualified bulk vote in the Council of Ministers would be extended to cover more countries of legislative competency and, significantly, the standard jurisprudence devising process will go one necessitating the joint acceptance of Torahs by the European Parliament and the Council. This will guarantee that legislative activity is focused on democratically elected representatives from the member provinces. [ 12 ]

It seems therefore that the bill of exchange fundamental law would present more democracy into the European Union legislative model. However, the bill of exchange Constitutional Treaty looks most improbable to go through into force in its present signifier after its rejection in 2005. Because the bill of exchange Treaty makes amendments to the establishing pacts of the European Union legal system, it must procure the support ofallmember province signers to the EU. In simple footings unanimity is indispensable. Unfortunately, although 13 member provinces, including Germany, Italy and Spain, ratified the Treaty, it was rejected by France and the Netherlands after national referenda earlier in the twelvemonth.

As a effect many of the EU states yet to sign hold confirmed their purpose either to abandon or indefinitely postpone referenda on confirmation. These provinces include Portugal, Sweden and the United Kingdom. [ 13 ] Therefore it is highly improbable that the member province confirmation procedure of the Constitutional Treaty will be completed while the Treaty remains in its current bill of exchange.

Reasoning Remarks

In decision it is submitted that theacquis communautaire, as it stands in 2005, does non incorporate either the proficient content or the sort of comprehensive statement of rights and rules that one would anticipate to happen in a full constitutional papers. It is argued hence that the EC Treaty isnona fundamental law in all but name, being deficient in certain cardinal respects. If itdidpossess such features it is improbable that such clip and attempt would hold been invested by the member provinces and establishments of Europe to make a new fundamental law.

It is true, nevertheless, that the EC Treaty remains pregnable to criticisms that a allegeddemocratic shortagestill exists. Among the establishments that operate under the authorization of the EC Treaty, the Commission is most vulnerable in this respect. [ 14 ] It is unfortunate that those reforms embedded in the bill of exchange Constitutional Treaty designed to better the democratic certificates of the supranational administration will now be delayed or lost as a effect of the recent failure of the confirmation procedure. However, it is at least promoting to observe that those trying to pull the Union closer together under a fundamental law have recognised the fact that enhanced democracy is one indispensable constituent of that procedure.

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Steiner and Woods,Textbook on EC Law, ( 2003 ) Blackstone

Kent,Law of the European Union, ( 2001 ) Longman

The Treaty of Rome( 1957 ) ( as amended )

hypertext transfer protocol: //europa.eu.int/abc/obj/treaties/en/entoc05.htm

The Single European Act 1987:

hypertext transfer protocol: //europa.eu.int/abc/obj/treaties/en/entr14a.htm

The Treaty on European Union 1992:

hypertext transfer protocol: //europa.eu.int/eur-lex/en/treaties/dat/EU_treaty.html # 0001000001

The Treaty of Amsterdam1997:

hypertext transfer protocol: //europa.eu.int/abc/treaties/index_en.htm

The Treaty of Nice 2001:

hypertext transfer protocol: //europa.eu.int/abc/treaties/index_en.htm

Europa: Gateway to the European Union:hypertext transfer protocol: //europa.eu.int/index_en.htm

EC Legislation, ( 2004 ) Blackstones Legislative acts