Why the EU Constitution is undemocratic

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Why the EU Constitution is undemocratic?!

• Contribution by Thomas RuppENC
  ConferenceAmsterdam 21 May 2005

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• This following presentation is based on a paper
  ofMEHR DEMOKRATIEwith the title
• Critical Analysis of the democratic aspectsof
  the European Union by Michael Efler and Percy
  Rohde

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Why to talk about democracy?

• Sui generis argument
• EU is incomparable - a class of its own -
  between a confederation of states and a federal
  state.
• Therefore Democracy could not be evaluated by
  conventional criteria.
• Why this is wrong?
• The member states Constitutions based on
  democratic principles
• Preamble strengthen democracy

• Output argument
• The positive outcomes of current integration
  process
• Such as internal market, peace, cheap flights,
  student exchange
• would justify a lack of democracy
• Why this is wrong?
• Should be no diversion from crucial problems
• Authoritarian regimes use the argument regularly
  to mask lack of democracy

Thomas Rupp Why the EU Constitution is
undemocratic ENC Conference - Amsterdam 21
May 2005
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Integration without legitimation

• Before Laeken
• Integration always designed as continuous
  creation of facts by an elite.
• Intransparent and inaccessible
• Declaration of Laeken
• Tasks of the Convention?
• The Convention set-up
• Neither appointed, elected nor confirmed by the
  citizens.
• Why then should the governments or EU
  institutions be authorized to develop EU
  constitution?

• Myth of transparency
• Convention itself did not make any decisions by
  vote.
• these taken solely by presidium, in private and
  without any recorded minutes.
• Draft constitution based on non-legitimised
  decision-making of a handful of presidium
  members.
• No real participation of citizens.

Thomas Rupp Why the EU Constitution is
undemocratic ENC Conference - Amsterdam 21
May 2005
5
Undemocratic ratification process

• Only 10 referendums
• Still countries where citizes were never asked.
• No real debate wanted
• Yes-side got x times as much public finance as
  the No-side
• Reporting in the media is biased
• Debate starts late without discussing content
• No debate at all in countries without referendum

• Early implementation
• Fundamental disregard of basic democratic values.
• Parliaments and citizens are faced with faits
  accomplis.
• No Consequences?

Thomas Rupp Why the EU Constitution is
undemocratic ENC Conference - Amsterdam 21
May 2005
6
The myth of simplification

• Constitution consists of
• 4 parts,
• 448 articles,
• 36 Protocols,
• 2 annexes,
• 30 Declarations
• to the regulations of Constitution,
• 11 Declarations to the attached Protocols,
• 9 Declarations of the member states.
• 349 p. of Constitution
• 382 p. of Protocols and Annexes
• 121 p. of Declarations
• Altogether 852 pages

• Hide and seek
• Very important regulations hidden in Protocols
  and Declarations
• For instance
• Subsidiarity Protocol,
• Restrictions of the Charter of Fundamental
  Rights,
• Immunity questions, etc.

Thomas Rupp Why the EU Constitution is
undemocratic ENC Conference - Amsterdam 21
May 2005
7
Centralisation of power

• One way street
• Since 1993 the EU has extended the scope of its
  power bit by bit.
• More and more important policy areas are ruled by
  the EU.
• Today far more than 50 of all new laws come from
  Brussels.
• Constitution cements this process, transfers more
  competence to EU.

• Supremacy of EU law
• Article I-6 The Constitution and law adopted by
  the institutions of the Union () shall have
  primacy over the law of Member States.
• Following the Constitution the EU can legislate
  or take action in virtually every area of policy.
• With respect to democracy the question must be
  posed
• In the long run, which legislative rights will
  remain in the national parliaments

Thomas Rupp Why the EU Constitution is
undemocratic ENC Conference - Amsterdam 21
May 2005
8
EU Competences

• Exclusive competence
• Shared Competence
• Art. I-12 (2) (..) The Member States shall
  exercise their competence to the extent that the
  Union has not exercised, () its competence
• In reality, the areas with shared competence are
  areas with the de facto right of primacy of the
  EU over the member states.

• Coordination and supplementary competences
• TODAY Supportive, coordinative and supplementary
  actions that do not entail harmonisation.
• FUTURE Following the EU logic, only question of
  time until these areas are a candidate for
  harmonisation
• CFSP, coordination of the economic, employment
  and social policy, industry, protection and
  improvement of human health, education, youth,
  sport and vocational training, culture, civil
  protection, tourism and administrative
  cooperation.

Thomas Rupp Why the EU Constitution is
undemocratic ENC Conference - Amsterdam 21
May 2005
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Flexibility vs. Subsidiarity

• If national parliaments consider EU law to
  violate the PRINCIPLE OF SUBSIDIARITY they have
  the right to complain
• But only if 1/3 of all the national parliaments
  submit a reasoned opinion within 6 weeks.
• Quite little time to observe national
  governments, national legislation PLUS the many
  draft legislative acts of the EU PLUS coordinate
  with other parliaments
• But IF they manage to do so this only leads to a
  review of the draft legislation by the EU
  Commission.

• EU is responsible only for areas for which tasks
  were conferred on it by the member states.
• With the FLEXIBILITY CLAUSE this principle can be
  overruled
• Article I-18 - If action by the Union should
  prove necessary, (...) to attain one of the
  objectives (...) the Council of Ministers (...)
  and () the European Parliament, shall adopt the
  appropriate measures.
• Instrument for further centralisation without
  legitimation by the member states.

Thomas Rupp Why the EU Constitution is
undemocratic ENC Conference - Amsterdam 21
May 2005
10
Some more keywords

• Qualified majority voting
• 63 areas submitted to qualified majority voting
  (QMV) in the Council of Ministers i.e. no more
  veto right of the member states.
• Powerful foreign minister
• The Foreign Minister is de facto a Home
  Secretary, Foreign Minister, Defence Minister and
  Development Aid Minister, all in one person.
• He is the Vice-President of the Commission and
  takes part in all European Council discussions

• Immunity of civil servants
• All EU officials and civil servant are immune
  from prosecution
• in relation to their official actions, including
  their spoken and written remarks.
• This applies even after they have left office.
• Uncontrolled CFSP
• Far-reaching changes to the Common Foreign and
  Security Policy (CFSP) with a lack of democratic
  control.
• Obligation to improve military capabilities and a
  European Defence Agency

Thomas Rupp Why the EU Constitution is
undemocratic ENC Conference - Amsterdam 21
May 2005
11
Undemocratic basic set-up

• Separation of power?
• EP no genuine parliament
• Commission initiates lawCouncil ratifies it
• ECJ will de facto legislate
• Charter of fundamental rights
• Influence of lobbyists
• At least 15,000 special interest representatives
• 6401 lobbyists registered in the European
  Parliament

• No European public
• European issues rarely play a role in national
  elections.
• Expansion of the EUs power largely unnoticed by
  public
• Heads of state can operate in a quite unobserved
  space
• They are rarely challenged by a critical public.
• Summary
• EU in its basic construction does not provide
  democracy
• EU Constitution is increasing and accelerate this
  process

Thomas Rupp Why the EU Constitution is
undemocratic ENC Conference - Amsterdam 21
May 2005