Giscard d'Estaing's "Constitution": Muddle and Danger
Presented in Absurd Prolixity
Leolin Price CBE QC
Part I Title One
Part II Title Two
- Masquerading as a "Constitution", the Giscard draft does not
succeed in defining a permanent constitution or constitutional settlement for
the European Union or any permanent or lasting balance between its powers and
authority and those of its Member States.
- It does not present itself as such a document. Its adoption would
intensify and continue what has been a process of constant constitutional
change with summits and inter-governmental conferences, agreements and
treaties making new additions to the treaty framework within which an "ever
closer union" of the European peoples is to be achieved.
- Giscard d'Estaing does not present us with a simplifying and
clarifying finalisation of that process. Instead, his draft is a formula for
its continuation. Massively and frighteningly, in confusing complexity, with
pretentious rhetoric and language of depressing triviality, he provides an
Integrationist Manifesto. Some enthusiasts for a Union which never
stops adding to its "competences" may rejoice; but realists - whether they are
enthusiasts for Community or Union or opponents who believe that the
Treaty of Rome adopted what was, and has developed into, a tragically
mistaken system of law-making and government - will want to put this
imprecise, foolish and dangerous document into the dustbin of history.
- The preamble, presented as a draft by the Presidium, begins with a
quotation from Thucydides ("Our Constitution is called a democracy because
power is in the hands not of a minority but of the whole people").
Pretence is thus prominently placed at the very beginning of this
fascinatingly undemocratic document.
- What is said - badly, haphazardly and controversially - in this preamble
is not needed in a Constitution. Reference to "re-united Europe" invites
speculation as to which (if any) previous unity is now revived! Reference to
"the democratic nature" of the Community's "public life" defies what, in
government and law-making at the Community's integrationist centre, is the
reality. And who knows what is meant by "solidarity" in what is said to be a
striving for "peace, justice and solidarity throughout the world"?
(And why solidarity "throughout the world"?)
- More importantly, what in previous Treaty language has been "ever closer
union" now becomes our (supposed) determination, "united in ever closer
fashion, to forge a common destiny". Expressed in slightly changed words, this
draft commits us to that "ever closer union of the European peoples" which has
hitherto been the underlying motivation and label for a never-to-be-completed
process of transferring more and more power from Member States to the
Community. The continuation of that relentless policy is what this Manifesto
is about; but those who read beyond the preamble and understand, as the
starting position, the remarkable extent of law-making, government and power
already exercised at the centre of the Community, will recognise this draft as
a Constitution in at least this sense: that, if implausibly anyone denies that
there is already a centralised and integrating European State, the adoption of
this Constitution will confirm that State's existence and make it absurd to
persist in that denial.
- In this draft prolixity, complexity and confusion abound.
- Whatever is unnecessary should be removed.
- Complexity may be difficult to avoid but this draft makes no serious
attempt to avoid the sort of complexity, which makes it understandable only by
the dedicated and expert.
- In a constitution - as in any legal document - the same word or phrase
should always be used to convey the same concept.
- If those principles could be applied, the draft would be greatly
shortened; it would be more like a constitution; but it would still be a
framework for government and law-making by bodies which are unacceptably
centralising, authoritarian, unaccountable and inexorably pressing for more
and more power.
- Article I-1 (Establishment of the Union) could be trimmed of what is
unnecessary or controversial to read:
"This Constitution establishes the European Union, on which the Member
States confer competences [why not "powers"?] for the attainment of the
- Article I-2 (The Union's values) manages to treat "respect for human
dignity" and "respect for human rights" as two separate "values"; and in a
second sentence says that these and three other "values" (liberty, democracy
and the rule of law) -
"are common to the Member States in a society of pluralism, tolerance,
justice, equality, solidarity and non-discrimination".
Which "society"? Is that another word for the Union? And what "pluralism"
is referred to? The latest Oxford Dictionary has 2 definitions: can
the reader choose for himself? Or perhaps what is intended is "pluralist" as
the opposite of "totalitarian" (but it is not possible to recognise this
Constitution's further and continuing centralisation of power in
constitutionally unaccountable bodies as protectively "pluralist" in that
sense). Or perhaps "pluralism" is what the draft elsewhere refers to as
"diversity". And what is "solidarity"? Is there any meaningful feeling of
"one-ness" in the Union? Or does "solidarity" embrace trade union and other
concepts embodied under that heading in the Charter of Fundamental
Rights which is Part Two of this draft Constitution? And could it be
interpreted so that failure to join in any action is unforgivable
- That erratic second sentence could conveniently be omitted from Article
- Article I-3 (The Union's objectives) is long and most of its clauses raise
conceptual questions. Objective 1 states an "aim". Is an aim just an
"objective"? Or the overriding "objective"? Objective 2 states what the Union
"offers" to its citizen, and this includes "a single market where competition
is free and undistorted" (but there is no sign that distorting quotas,
subsidies and destructive derogations from anti-competition rules are to
disappear, or that what is a selfishly protectionist Zollverein is suddenly to
change its protectionist spots).
- Objectives collected under the number 3 begin with a statement that the
Union shall "work for a Europe of sustainable development" and refers
to "a social market economy aiming at full employment and social
progress". But what is "social progress"? If it means whatever the reader
wishes, the words "and social progress" should be omitted.
- Objectives 3 next state another "aim", namely "a high level of protection
and improvement of the quality of the environment". Without internal commas
does that refer to protection of the environment? Or, as the same objective
says that the Union "shall promote scientific and technological advance", does
it refer to protection(ist) safeguarding of such advance? But why is there any
need to refer in this Constitution to such promotion, unless it is to
set down a marker for central interventionism in science and technology?
- The next part of Objectives 3 starts by saying that the Union "shall
combat social exclusion" - presumably a positive Union duty to be prayed in
aid of central interventionism in whatever "social exclusion" involves. But as
Objective 1 states an aim to promote the Union's "values" and those values
include "respect for human dignity" and "respect for human rights" express
reference to combating social exclusion is needless repetition. The same
passage in Objectives 3 states a positive Union duty to "promote social
justice and protection, ... solidarity between generations and protection of
children's rights". "Social justice" can mean what the reader prefers it to
mean; so can "protection" if it means "social protection"; "solidarity between
generations" has no clear practical meaning for compulsory positive Union
action; and all of that part of Objectives 3 could easily be prayed in aid to
justify busybodying central interventionism.
- Objectives 3 next states a positive Union obligation to "promote economic,
social and territorial cohesion, and solidarity among Member States" - another
incantation of "solidarity" (!); but what, in this statement of obligation, is
"social and territorial cohesion"; and what, in this linguistic
muddle, is "solidarity among Member States"? More scope for busybodying
central interventionism as an obligation!
- Objectives 3 next requires the Union to "respect its rich
cultural and linguistic diversity" and to "ensure that Europe's
cultural heritage is safeguarded and enhanced". But what is that particular
mixture of respect and obligation doing in a constitution? Is there "respect"
only if all the law-making and every judicial decision must be in every
language spoken anywhere in the Union? And is the Union out of its "own
resources" to bear the cost of translation?
- If at the Union's dirigiste centre nothing is done about
"cultural heritage" will it be open to a Member State or citizen to complain?
And if it does nothing to "ensure" the continuation of a long established
local repertory theatre will that be all right because the local repertory
theatre is not part of the apparently single, Europe-wide, cultural
- Objective 4 is a statement about the Union's relations with the wider
world: an obligation to uphold and promote the Union's "values and interests".
Nothing more is needed in Objective 4; but there is added a Union obligation
to contribute to a hotch-potch of matters none of which needs separate
articulation at this point in the statement of Objectives.
- Objective 5 says that these Union Objectives "shall be pursued by
appropriate means, depending on the extent to which the relevant competences
are attributed to the Union in this Constitution". The sceptical
reader will be sceptical about the reality of that as a restriction on the
Union's central powers ("competences").
- Title I continues with material which is either new or is, for greater
prominence, set out at the beginning of the Constitution.
- Article I-4 after referring acceptably to the free movement of persons,
goods, services and capital, and freedom of establishment, goes on to say that
"any discrimination on grounds of nationality shall be prohibited".
This prohibition could have unintended consequences. Citizens of other Member
States, if resident here, can vote in local elections. If they must be allowed
to vote in our national elections, important national decisions might
be affected by their votes. For example citizens of Member States cannot
appropriately vote on whether we in this country adopt the single currency or
join the euro-zone. But, under this new provision, it might perhaps be argued
that their exclusion from voting is prohibited!
- Article I-5 (Relations between the Union and Member States) is
new, and in paragraph 1 so oddly worded that it cries out for clarification
and simplification. Respect for the national identities of Member States is
not clarified by the added qualifying words; and respect for their "essential
State functions, including for" three matters which do not include the
administration of justice, the conduct of foreign policy and national security
(although internal security is one of the three matters) suggests
that there is a deliberate intention to leave open for future controversy what
functions are to be regarded as "essential State functions".
- Paragraph 2 in Article I-5 could do without its references to "the
principle of loyal co-operation" and "full mutual respect" and merely say that
"the Union and Member States shall assist each other [to carry out tasks
which flow from the Constitution]"
but the quoted words which are there put into square brackets are
unsatisfactory. What is a task which "flows from the Constitution"?
Is it any action which is decided upon in accordance with the terms of the
Constitution, or only any action which can be spelt out of the Constitution
itself? Uncertainty of this kind in the Constitution for an ever closer union
encourages the centralising integrationists to argue for their escalating
accumulation of power at the centre.
- Paragraph 2 also adds repetitiously that "Member States shall facilitate
the achievement of" those tasks; and also "refrain from any measure which
could jeopardise the attainment of the" Objectives. Is a "measure"
legislation? Or is it action or conduct?
- Article I-6 then, with admirably brevity, gives the Union a new "legal
personality". But why is that necessary or desirable, if not to emphasise
that, with legal personality, it really is a State?
- In Article I-7 the Union's new (European) Charter of Fundamental
Rights is incorporated into the Constitution. Its terms do not coincide
with those of the European Convention for the Protection of Human Rights
and Fundamental Freedoms to which the Union is already committed; but
paragraph 2 of Article I-7 now says that the Union "shall seek accession" to
that Convention. The confusion created by this amalgamation of new
Charter and much older Convention is not removed by Title VII of the new
Charter (general provisions concerning the interpretation and application of
the Charter). The Charter is surely unacceptable. Instead of any "broad
consensus" in favour of it, the Charter - and Article I-7 and Part Two -
should be rejected.
- This new Charter - which previously had not received any support from our
government - has its own Preamble. It asserts that "the Union is founded on
the indivisible, universal values of human dignity, freedom, equality and
solidarity". That enumeration of values differs from the enumeration in
Article I-2, and, here, but not in Article I-2, the values are preceded by the
unnecessary adjectives "indivisible, universal". Apart from the
repetitious rhetoric, this new and unnecessary Charter is to be "interpreted
by the courts of the Union and the Member States with due regard for the
explanations prepared at the instigation of the Presidium of the Convention
which drafted the Charter". A Constitution which, for understanding and
interpretation, requires reference to external "explanations" is not a
- This paper will not comment in detail on this new Charter; but the
Charter's Title III confirms that "solidarity" includes, although it is not
confined to, workers' and trade union rights.
- Article I-8 and Title V in the Charter refer to Citizenship of the Union
and Citizens' Rights. Add-on citizenship of the Union goes back to Maastricht.
It was then said that Union citizenship, as an addition to national
citizenship, added rights but not duties, nor any new allegiance. Paragraph 2
of Article I-8, by saying that Citizens of the Union shall be subject to
duties, is not itself new. When that appeared in the Maastricht
Treaty it was shrugged off with the comforting but unconvincing
proposition that as the Treaties did not impose any duties on citizens, the
duties referred to were no duties and nothing like any new allegiance was
imposed. The Presidium insisted that in this Constitution the rights
should appear both in Article I-8 paragraph 2 and in Title V of the Charter;
but in the two places they are not the same. This is exactly the sort of
nonsense which cannot sensibly appear in a constitution.
* * *
- This Note does not attempt a detailed commentary on Part I of the
Constitution; and does not begin to examine in detail :
• in Part I, Title III (Union competences and actions); Title IV (The
Union's institutions); Title V (Exercise of Union Competences); Title VI (The
democratic life of the Union), Title VII (The Union's finances); Title VIII
(The Union and its immediate environment); Title IX (Union membership); and
the two Protocols; nor
• Part III (The Policies and Functions of the Union) with its 307 Articles
and annexed Protocols; or
• Part IV (General and Final Provisions).
- The operation and effect of those provisions is of massive importance, and
merits the same sort of detailed study. This Preliminary Study is reasonably
concerned with what appears in the opening Titles of Part I of this turgidly
unexciting but dangerous document, because the tone of this whole document is
set there. The remainder of this Note will present, without detail, a
selection of conclusions about the whole document.
- The Constitution's provisions about the Union's "competences": exclusive
in areas where only the Union may legislate; shared; and, as one
student of the Constitution thinks, other: are a maddening muddle. It
is true that Article I-9 refers to a principle of conferral: that the Union's
competences are conferred by Member States; but in the operation of this
Constitution that concession is of slight value: the practice hitherto of an
escalator, carrying us further and further into an ever closer union with
constantly new competences to continue and intensify the authoritarian,
irresponsible, unaccountable and uncontrolled character of Union law-making
and government is not to abate at all. It is to roll on relentlessly.
- The use of these competences is said to be governed by the
principles of subsidiarity and proportionality. At Maastricht we were led to
expect that the then new buzz-word subsidiarity would introduce a bonfire of
unnecessary Union law; but it did not happen. After Laeken we were encouraged
to think that the Convention might consider returning some powers from Union
to Member States; but nothing of that sort finds place in this Constitution.
The Protocol on subsidiarity and proportionality begins with a wish "to ensure
that decisions are taken as closely as possible to the citizens of the Union"
- a meaningless wish as the mass of Union law-making and other decisions are
taken, far away from the people, in the work of the Union's unaccountable
institutions. Complicated provision is made for consultation and monitoring
but attainment of the Constitution's Objectives remains paramount. A
confident prediction is that subsidiarity and proportionality will not, and
are not designed to, curb the legislative and governing ambitions of those who
run the Union nor bother those who are enthusiastic for union with or without
understanding what is constitutionally involved.
- With startling clarity the Constitution, and the law of the Union, are
declared to "have primacy over the law of the Member States" (Article
I-10); and Member States are required "to take all appropriate measures to
ensure fulfilment of their obligations flowing from the Constitution or
resulting from the Union's acts". Domination by the Union is of the very
essence of this Constitution.
- Those who run the dominating Union institutions are not, like our
Westminster government, subject to the discipline of having to face
our next general election. We cannot dismiss them by our votes even
though expanded membership of the Union and extension of majority voting mean
that our Westminster government and Parliament will have less and less control
over what is decided; we, having none, will be increasingly deprived of our
democratic power; and our national sovereignty, already sadly diminished, will
be constantly and dangerously disappearing.
- There are some areas in which unanimity will still be required, such as
taxation; and changes to the Constitution itself, for example by creating new
exclusive competences, will also require unanimous agreement; but for how
long? The pressure, and middle-of-the-night-rush at intergovernmental
conferences or summits, will continue to create an expectation of
horse-trading and concession which will give initiative and power for change
to the powerful institutions of the Union. Pressure for Union-wide tax
harmonisation and Union taxation will not stop if this Constitution is
- What is said about foreign policy is a masterpiece of confusion; and what
is said about defence promises an alarming future for those who regard
our defence as a national priority in which we must be free to make
- This Constitution would provide 2 European Presidents, of the Commission
and of the Council. Remarkably, the proposal for a President of the Council
was supported by our UK government. But the oddly organised State to be
established by this Constitution would be, even more than now, in form and
substance a true State and one which, on the international stage and in
international negotiations, could gradually - or perhaps very quickly indeed -
reduce and displace the role and status of our own government and state.
- Justice and criminal law, affected already (in early prospect) by the
infamous European Arrest Warrant, and to be further affected by a harmonising
of criminal law and procedure which can be introduced by majority voting, is
truly alarming. Sadly, our present illiberal government, does not hold
habeas corpus and the right to trial by jury and other incidental
characteristics of our common law in jealous high regard; and we could easily
find ourselves sliding quickly and unthinkably into a Union-wide system of
criminal law and criminal justice.
- One continuing worry is about the Committee of Regions. Consultation with
the Committee of Regions, including Committee members from UK regions, does
not include consultation at the same time with Member State governments. Mr
Prescott's curious assertion that regional government is not local government
could prove prophetic: with "regional" government enhanced as national
- In the newly enlarged federal State, attempting Union government and
rule-making under this authoritarian Constitution for a collection of nations
which do not have any recognisable sense of being a single nation or any
common identity is not a promising prospect for those on whom it is
- But, it may be asked, why not adopt this authoritarian, undemocratic and
muddled Constitution and rely on the provision in Article I-59 allowing a
Member State to withdraw from the Union? Tempting as that might be to some, it
is not a sensible policy. The only sensible way of dealing with this
astonishing Constitutional document is to reject it. There may be amendments
to it at the impending inter-governmental conference; but no conceivable
amendments can make it acceptable to a responsible government of the United
Kingdom. The Constitution cannot be adopted without unanimous agreement of all
Member States. Refusing agreement is a bit uncomfortable for those who, on our
behalf at the Convention, have already appeared to accept provisions now
included in the draft. Such discomfort is not accompanied by any political or
moral obligation to reach agreement at the conference. Our national interest
has priority and it would be a massive disservice to our nation if we were to
be committed to this monstrously dangerous, confused and confusing
- Let us, therefore, reject this document. It is a muddle. It is dangerous.
It is not for us.