Despite the Failure of the Constitutional Treaty in 2005, Europe Truly Has a Constitution - Essay Example

?Despite the failure of the Constitutional Treaty in 2005, Europe truly has a constitution. This fact gives support to the existence of European Public Law. Discuss. Introduction This essay shall evaluate whether European Public Law exists. Its discussion shall be based on the fact that even with the failure of the 2005 Constitutional Treaty in Europe, the region does have a constitution and functioning provisions which help manage the relations between member states. Within European Public Law, there seems to be much issue on the combined impact of the EC Law, as well as the ECHR and local legislation. Specifically, this article shall evaluate the impact of European laws on UK law and how UK laws have changed with such impact. The implication is that the positive impact is founded on the existence of European Public Law. It is important to understand whether European Public Law does exist today and what form it has at present. Various manifestations have been seen throughout the years, including the Roman Law during the Roman Empire (Birkinshaw, 2001). The discussion shall now cover an overview of public law, moving into a more detailed attempt to determine the manifestation of the European Public Law. Discussion Public law implies a system of provisions which manages public activities and affairs. It mainly relates to the application and non-exercise of public powers, including the private actors, legality, and rationality. It also represents provisions which are founded on historical and cultural elements, including political practice (Birkinshaw, 2003). Public law also manifests differently in other European processes where it is indicated via special courts and differentiated from private law as it is not as stable as in the English and Irish laws. There are various incarnations of the European Public Law. The first is the law of the European Union which can be considered a part or function of the European Public Law supported by the administrative and constitutional law, including the Charter of Human Rights (Birkinshaw, 2003). The application of judicial review was supported by the French practices, including important practices in much the same way as the purely declaratory processes in judgment which cannot be judicially imposed (Birkinshaw, 2001). EU law includes the relations between the EU, the member states, the citizens, EU organizations and agencies, citizens from non-member states, as well as regulatory law. Such regulatory laws have become more imposing throughout the years, with competition laws impacting so much on Europe. A common law of Europe seems to be viewed negatively, even as it supports the growing number of scholars and their research goals in public as well as private law (Birkinshaw, 2003). It is not favourable if it is perceived as a monument being imposed by higher authorities without much consideration to the general sensitivities for member states, possible new members, the Council of Europe, including other non-members (Majone, 2002). The goal of supporters is to secure provisions inching towards common effects and goals. There should be an acceptance on the lack of boundaries in common laws. There are rich sources for common law, including those which relate to human rights, political, and religious ideals. Another possible incarnation for the European Public Law is the European Convention on Human Rights (Birkinshaw, 2001). The success of this law has also impacted on English legal practitioners, specifically in instances where there is an objection to the fact that treaties set by these practitioners seek to prevent the mistakes of the Second World War; such contention has often been used mostly against the UK, not other ratifying countries (Hunt, 1997). English judges have suggested preferences for patriation, not the blending of the Convention into the UK laws with the Human Rights Act of 1998. Even prior to the incorporation, case laws have indicated the focus on common laws on its traditions for the management of human rights, with the inclusion of US and the Commonwealth provisions (Derbyshire County Council v Times Newpapers Ltd [1993]). It has been indicated that the level of appreciation doctrine would not be seen in the observance of the Human Rights Act under the local courts, even as discretion may be supported (R v DPP ex p Kebilene [1999]). This would imply that in understanding the local provisions under the HRA, there is no need to focus on local traditions and practices. This is often seen in the constitution of the Republic of Ireland (Open Door Counselling v Ireland 1991). However, as indicated by Laws, the ECHR would be understood based on the local courts. This seems to be expected under the functions of the HRA which tells the domestic courts that they must consider and not ignore the laws for the Convention when trying to understand the issue based on Convention provisions (Human Rights Act, 1998). The European Public Laws can also be observed when considering the impact of the EU provisions and the effect of the laws on the EU processes (Birkinshaw, 2001). There are different processes upon which these conditions would unfold. EU laws may be seen directly in relation to domestic courts when the issue of EU law is considered (R v MAFF ex p First City Trading [1997]). With the end of the Commission in March 1999, various discussions were carried out in the press, mostly presenting the idea that the issue has not escalated into a crisis, but instead, it is the best thing which has occurred in relation to the protection of European unity. Democracy has emerged at the European level and the end of the commission is akin to the end of the European national government which has succumbed to the power of the majority (Monette, 2000). The European constitution was not successfully ratified in 2005, however, this does not imply that Europe has no constitution. For a while now, Europe has been ‘constitutionally’ managed via different treaties applicable to the region. Such treaties include the Treaty of Rome, Maastricht, Amsterdam, and Nice. These treaties being used as constitutions is not a new phenomenon, as this practice was already seen in the case of the US Constitution as well as the Constitution of the German Reich (Brunkhorst, 2006). In relation to constitutional theories, there is no question about European treaties can be classified as EU’s constitution. For one, these treaties are superior legislation applied to secure legal stasis. They also secure general supremacy for the European law against national law, alongside national constitutional law (Brunkhorst, 2006). With these European norms, the German Constitutional Courts also have generally protected claims that it must stay as the ultimate authority in understanding fundamental rights, and the European Court of Justice secures its power to apply competence in relation to European law (Church and Finnemore, 2005). Still, the link between the ECJ and the local courts is based on cooperation and is supported by observers based on constitutional collaborative processes. The European treaties also support independent European agencies which establish community laws and are also supportive of the Union. Since the establishment of the Treaties of Maastricht and Amsterdam, there is still one unitary European community which is not considered a state, but is accepted as a supranational group with autonomy and a legal personality recognized under international laws (Mayer, 2003). In securing new rights, the treaties support a united European citizenship which is differentiated from the current national and international citizens. The legal community and applications also often uses the term constitution in relation to European treaties. Under these conditions alone, it would be difficult to ignore the presence of a European constitution. The European constitution and treaties however have issues which relate to the equal application of the constitution to the people of Europe. Beyond the ruling class, the constitution does not seem to exist, but the constitution may relate more to the collaboration of the constitutional courts (Qvurtrap, 2006). Such processes may relate to complexity and awkwardness, mostly in terms of the application of old treaties and the introduction of the draft constitutions. In effect, it is not proper to indicate rights for citizens and still not secure for them the necessary tools to navigate away from legal issues and troubles. The issue relating to the tentative version of the constitution being inaccessible to the general population must not be viewed as prejudicial to the interests of the people because the constitution is still a document which is meant to favour the people (Breda, 2006). The decision-making authority is therefore very much lodged with the people and they hold sovereignty over specific policies. In some aspects however, treaties are already included as constitutions for citizens as they are representative of the egalitarian rules governing citizens as citizens of Europe who are able to use their rights to proper action and to secure their European rights (Breda, 2006). This would be a means for most people to apply their rights, even if the application would only be as an individual person. Treaties supporting the EU are based on more than just the usual international treaties in place, and they also include some elements defined by legal juries and dictionaries indicating what a constitution would actually cover (Hooghe and Marks, 2006). The EU founding treaties cover more than just the classic international conventions. Such quality can be easily seen because there are limited points negating such idea. In relation to other international agencies, the EU agencies have specific qualities. The Council may enter their vote through a majority vote and make effective decisions without having to make other interpretations from other provisions. The Commission can make independent decisions, even passing pertinent laws to support their actions (Piris, 2000). The European legislative body can make direct votes and in the same way as the council make decisions which can easily be implemented. The Court of Justice can also make independent decisions which can cover its member states. These agencies and councils have specific executive and legislative functions in different fields. In some areas, the EC is the recognized authority with member states not having as much power and authority as individual states in some commercial activities including agriculture, fisheries, as well as financial structures (Piris, 2000). The ICJ has also indicated that the EC has recognized powers which would support agreements with other states and international agencies. The EC provisions have a binding status as they directly impact on citizens without local interference. In the Van Gend en Loos (1963) case, the EC has taken on the nature of a new international provision which benefits states with limited authority, supporting citizens from member states. The court also indicated that treaty specifications being questioned here has a direct impact and causes specific rights which the courts must also protect (Piris, 2000). The EC law is also superior to national law with the court supporting such unspoken rule in several cases including the Costa v. Enel case (1964). Throughout the years, the EC’s court has laid out a legal system which has superior provisions, using primary decisions on interpretations made on the EC laws. The Commission also supports the EC laws by ensuring its implementation by the different member countries. Actions against member states can be brought before the Courts of Justice and the courts ensure that a precedent is set in the application of the EC provisions. Member states must also secure payment to individuals for loss of loss in profits, especially where the member countries do not apply and follow the community laws set (Habermas, 2000). Moreover, the courts may also indicate lump sums or penalties on member states not supporting with judgments and precedents. The Amsterdam Treaty has also indicated specific laws ensuring that EU institutions would resolve persistent violations by member states. Penalties include the suspension of rights allocated from treaties to violating member states, including its right to vote in the council (Article 7, EU Treaty and Article 309 of the EC Treaty). The EU’s supporting treaties also include crucial factors which would be qualified under constitutional provisions. The supporting treaties support the union of the European countries as it indicates the inclusive elements of the union and indicates the exercise of the powers of these members (Piris, 2000). The EC Court of Justice has understood that the EC supporting treaties can be qualified under a Constitutional Charter which is supported by the rule of law, indicates new legal orders separate from national provisions, and which secures protection of human rights. In the case of Les Verts (1986), the Court accepted for the first time the existence of the treaty as a constitutional charter. In its ruling, it indicated that the EC is a community supported by the rule of law with its member states not able to escape review on issues and provisions they support under the basic provisions of the constitutional charter, or the Treaty. This would support the notion that the Treaty has a significant value as far as the European community is concerned in the same way as a constitution would have in the different Member states (Piris, 2000). In effect, the member states are called on to support the rules of the Treaty. The rule of law is most likely the most basic constitutional provision and guarantee as most factors and elements applied among member states emanate from it. The Community provides different options for its citizens for individual member countries and for larger communities. This is a significant element which would not likely be supported by the usual tools seen in international treaties, for resolving issues between member states in relation to its application (Weiler, 2002). Furthermore, the Court of Justice has the final word on the interpretation of the legality of community declarations. This would support the fact that these acts are accepted and applied in a similar manner to the different member states. The Courts used the terms constitutional charter again in relation to the Community in an opinion on a case (Opinion of 14 December 1991, ECR 1991-10, p. 6102). It defined the Treaty in relation to Agreements founding the European Economic Area between the EC as well as member states on one side and members of the European Free Trade Association on the other side. The Court ruled that the Treaty is larger than the agreement involving the free trade area, indicating that the Treaty seeks to secure economic cooperation and causing the establishment of a focused market as well as an economic union (Piris, 2000). In the same vein, the Courts also highlighted the fact that the primary goal of the community is socio-economic as well as political. There are no specific lists for human rights found in European Treaties. However, Article 6(2) of the EU indicates that the Union supports human rights as indicated by the European Convention on Human Rights Protection ratified in 1950 in Rome. The Court of Justice has consistently supported the provisions from such convention, accepting the fact that basic rights also support a part of the general elements of law and in supporting such rights, the court is likely to include constitutional traditions used by member states to ensure that the provisions also advocate the rights as indicated by the constitution of member states (Eriksen, et.al., 2004). The Court also usually uses the European Convention in Human Rights Protection in order to support the rights indicated by the succeeding Protocols. In understanding the issue of the existence of a European Constitution, it is safe to accept that Europe indeed has a constitution as supported by the EC Court of Justice in its recognition of a European Constitutional Charter. Such Charter has been further supported by treaties which have also been applied by member states (Eriksen, et.al., 2004). Recognizing the existence of a constitution for Europe is also not as simple especially as different elements have to be in place, including a clear delineation of powers as supported by the treaties and the recognition of the individual place each member has within the union. These elements also represent challenges in the recognition of a European Constitution, within the same light as those issues met with the establishment of the Constitutional Charter for Europe. This does not mean however that a generally supported uniform provision of laws is not being followed in Europe. Such provisions may not be labelled strictly under the term constitution, but its application and qualities are akin to that of a working constitution. Conclusion In understanding the political workings of Europe and the member countries within this community, the existence of the European Union cannot be dismissed. Under the strict provisions and specifications of a constitution very much like that seen in specific states, such constitution does not exist for Europe. This is because, Europe is not a state, it is continent with independent member states which all have independence and sovereignty from each other. However, this does not mean that a constitution for Europe or the European Union does not exist. In considering how the political and legal elements and factors are worked out in Europe, it is safe to assume that a European constitution does to some extent, exist. The EU and everything it represents is considered sui generis as it is able to implement decisions on its member states, including the citizens of such member states. As such, it is important to allocate on this body the necessary rules to support its related entities and citizens with as much clarity as possible, including the power to ensure that its decisions are based on the rule of law and respect for individual provisions. Even with the failure of the Constitutional Charter or Treaty in 2005, it is a charter which is very much still in play and still awaiting some form of perfection. Improvements are essential in order to improve efficacy and transparency of the provisions. Such improvements would only likely be achieved with the implementation of a more effective commission, an effective Council, and better control of the legislative bodies of the member states. Although an actual constitution for Europe does not exist in its perfect form, a semblance is already in place, one which would likely stay open for deliberation and discussion, eventually with the end goal of reaching full formulation. References Article 7 of the EU Treaty and Article 309 of the EC Treaty. Birkinshaw, P., 2001. Does European Public Law Exist? University of Hull. Available at: http://www.qub.ac.uk/schools/SchoolofPoliticsInternationalStudiesandPhilosophy/FileStore/EuropeanisationFiles/Filetoupload,38429,en.pdf [Accessed 14 December 2013]. Birkinshaw, P., 2003. European public law. Cambridge: Cambridge University Press. Breda, V., 2006. A European Constitution in a Multinational Europe or a Multinational Constitution for Europe?. European Law Journal, 12(3), 330-344. Church, C. H., & Phinnemore, D., 2005. Understanding the European Constitution: an introduction to the EU constitutional treaty. London: Routledge. Eriksen, E. O., Fossum, J. E., & Menendez, A. (Eds.)., 2004. Developing a constitution for Europe. London: Routledge. Habermas, J., 2004. Why Europe needs a constitution. Developing a Constitution for Europe, 17-33. Hooghe, L., & Marks, G., 2006. Europe's blues: Theoretical soul-searching after the rejection of the European Constitution. PS-WASHINGTON-, 39(2), 247. Human Rights Act, 1998, s.2(1) Hunt, M. (1997). Using human rights law in English courts. London: Hart Publishing. Majone, G., 2002. Regulating Europe. London: Routledge. Mayer, F. C. (2003). The European Constitution and the Courts: Adjudicating European constitutional law in a multilevel system. NYU School of Law. Piris, J. C., 2000. Does the European Union have a constitution? Does it need one?. Harvard Law School. Qvortrup, M. (2006). The three referendums on the European Constitution treaty in 2005. The Political Quarterly, 77(1), 89-97. Weiler, J. H. (2002). A constitution for Europe? Some hard choices. JCMS: Journal of Common Market Studies, 40(4), 563-580. Cases Costa v. Enel 1964 Derbyshire County Council v Times Newpapers Ltd [1993] 1 All ER 1011 (HL) Open Door Counselling v Ireland etc 15 EHRR 244 R v DPP ex p Kebilene [1999] 4 All ER 801 R v MAFF ex p First City Trading [1997] 1 CMLR 250 Van Gend en Loos [1963] ECR 1) Read More