CONSTITUTIONAL PRINCIPLES

In the interests of clarity and transparency, the current Treaty on European Union (TEU), the Treaty on the Functioning of the Union (TFEU), the Euratom treaty and the Charter of Fundamental Rights should be streamlined into one constitutional treaty. 

Reference should be made to the symbols of the EU: the flag, the anthem, the motto and the 9 May holiday. These dignities befit a sovereign Union. 

The EU is already obliged by treaty to respect the domestic constitutions of the states, regions and municipalities [9].  The new treaty should require the states, when amending their national constitutions, to ensure that the envisaged changes are compatible with their duties stemming from EU membership. Those include, notably, the independence of the judiciary, the primacy of EU law, and the principle of sincere cooperation with EU partners and institutions. 

Another new clause could be added to clarify that the European Parliament and the Council form the two chambers of the EU legislature and budgetary authority, and that the Commission is appointed by and is answerable to the legislature [10].

The remit of the European Citizens’ Initiative should be broadened to allow demands to be made on the institutions to take either a legislative or a political initiative, for instance in foreign policy [11].

There are two very sensitive issues in the design of any federal system: the balance of power between the representatives of the people and the representatives of the states; and the allocation of power to states of differing size and strength. In the European Union the composition and voting systems of the two chambers of the legislature have developed over the years haphazardly. It is high time to review the situation in a holistic way, taking the Parliament and Council together. 

Regarding Parliament, the new treaty should insert a mathematical formula, respecting the federalist principle of degressive proportionality, for the apportionment of parliamentary seats between the states in an objective, fair, durable and transparent way [12].  The effect of introducing an objective method would be to reduce the current over-representation in the Parliament of the middling sized states. 

In the Council, a qualified majority (QMV) is at present normally achieved by a vote of 55% of the states representing 65% of the population. A blocking minority has to comprise at least four states [13] .  The smaller states benefit from the first criterion and the larger states from the second. Before the Treaty of Nice (2001) the Council voted on the basis of a system of weighted votes. A return to that principle according to a formula that gave a uniform voting value to every citizen would redress the balance in the Council in favour of the middling sized states. 

Such a comprehensive reform of both chambers of the legislature would establish a fairer inter-institutional balance, be easier for the citizen to understand, and be resilient for future shifts in demography and the number of member states. The more constitutional approach would also meet criticism levelled at the present ad hoc arrangements by the German Federal Constitutional Court [14].  

[9] Article 4 TEU. 
[10] Article 10 TEU.
[11] Article 11 TEU. 
[12] Article 14(2) TEU. Degressive proportionality was finally defined in the June 2018 decision of the European Council establishing the composition of the Parliament for 2019-24. 
[13] Articles 16(4) TEU. Furthermore, a blocking minority opposing a QMV vote can insist that the Council shall continue to “discuss the issue” (Declaration 7 to the Treaty of Lisbon).
[14] Notably in its judgment on the Lisbon treaty, 30 June 2009. 

 

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