Legal Foundations of the European Nation - Report Example

Legal Foundations of the European Nation The integration of Europe was first spurred by functionalist interests – that is, the desire to manage efficiently, technocratically but discreetly common economic resources like coal and steel. This was in the 1950s but later in the same decade, this interest further evolved into the non-functionalist and transitioned into the Economic Community from the Coal and Steel Community. Thus, the European Economic Community Treaty also known as the Treaty of Rome was established in 1957. The integration process suffered a lull however in the 1970s as represented by the Luxembourg veto – the right of a state whose interests is at stake in a Commission proposal to invoke its veto power – which then became the usual scapegoat of Member States out of an EC legislative proposal. In addition, the EC expansion from six to nine members as well as the worldwide recession in 1974 contributed to the stalling of the European integration. However, the EC integration was not totally stopped as the community spirit continued to linger in some form or another. The European Political Cooperation was eventually established, European Community meetings became regular and the elections to the European Parliament began taking place. In 1986, the Single European Act (SEA) was passed – a historical watershed in the European integration – where the then 12-member states committed themselves, among others, to become one common economic market.1 On December 10, 1991, the Treaty of European Union also known as the Treaty of Maastricht was passed and this treaty introduced three important policies into the EU: monetary policy; fiscal policy, and; structural adjustment policy. It amended and extended the earlier Treaty of Rome with respect to the areas covered by the EC like the creation of a central banking system called the European System of Central Banks and paved the way for the creation of a new currency, the ECU, for the region.2 From then on, European integration was well on its way albeit the emergence of certain obstacles along the way like the rejection France and the Netherlands of the Constitutional Treaty in 2005 and recently,3 by the non-ratification of the Lisbon Treaty by the Irish Republic citizens in a public referendum.4 The Differences between the Treaty of Lisbon and the 2004 Constitutional Treaty On October 29, 2004, the Treaty establishing a Constitution for Europe was signed but as earlier stated it met a tragic fate as the countries of France and Netherlands failed to ratify the same and since ratification by all member countries was sine qua non to its existence, the treaty was therefore deemed dead for all intents and purposes. Intent on pursuing European integration, the European Union tried to amend the Constitutional Treaty and came out with the Lisbon Treaty which was likewise rejected by the people of the Irish Republic in a referendum held in June 2008. The Constitutional Treaty was a lengthy legislation which had four parts and several annexes, a big disappointment for those who expected a shorter but comprehensive document. The First Part gave the basics of the EU, the Second Part detailed the Charter of Human Rights, the Third Part expanded and detailed the first part, and the Fourth Part included the usual provisions of treaties. 5 The Treaty of Lisbon, on the other hand, is divided into three parts: the First Part provides for ways with which the legislation and European system is made easier; the Second Part details the provisions being introduced by the treaty which will have the effect of making the EU more democratic as not only national parliaments are provided for more involvement but the citizens as well who will have direct participation in EU elections, and; the Third Part essays the Political Changes in the EU starting with the creation of a single security and defence system. 6 The differences between the previously enacted Constitutional Treaty and the newer Treaty of Lisbon can also be gleaned from the implementation of the European justice system. Between the substantive and procedural aspects of the European Court of Justice, it is the changes in the procedural aspects in the Lisbon Treaty which will have a significant impact on the structure of the ECJ. Substantively, the difference between the two treaties is that in the Constitutional Treaty, the purpose of the ECJ is defined as “supporting coordination between national prosecuting authorities” and the Lisbon Treaty, on the other hand, defines it as “coordination between both investigating and prosecuting authorities.” This tenor is also echoed elsewhere in the provision regarding tasks. Thus while the Constitutional Treaty describes the same as the “initiation and coordination of criminal prosecutions,” the Lisbon Treaty explains it as “both investigation and prosecution” which may include initiating criminal investigations and initiating prosecutions. 7 The procedural aspects however of the Eurojust as contemplated in the Lisbon Treaty will, if ever, leave a more significant impact than the substantive provisions of the new treaty – a change which will potentially imply alterations in the structure, operation, field of actions and tasks of Eurojust. An example of these changes under the Lisbon Treaty is the creation of a European Public Prosecutor’s Office (EPPO) and an accompanying setting of minimum powers and common tenure for European prosecutors. The EPPO’s mission is defined under the said Treaty as the undertaking of crimes affecting the financial interests of the Union, a mission already included under the present set-up of the European justice system. However, the new Treaty extended this mission to more serious crimes which requires the attendance of two or more Member States. In addition, the prosecutors under the proposed EPPO is also granted by the new Treaty, among others, an Emergency Cell for Coordination to deal with emergency cases, the power to appoint liaisons magistrates in third countries and advance information flow among Member States. These powers will prove vital in cases of crimes being committed at once in the different Member States like the crime of drug trafficking. Since Member States have different legislations especially procedurally, the ability to make requests for mutual assistance will come in handy, to enable prosecutors to make intrusive surveillance legally with the help of domestic prosecutors who have more knowledge of their local laws. Other important provisions in the new treaty where European justice is concerned are the extended jurisdiction of the European Court of Justice, qualified majority voting and the wider role that the Commission and the European parliament will play. 8 Reasons for the Rejection of the Lisbon Treaty by the Irish in 2008 The June 2008 referendum in the Irish republic that would have ratified the Lisbon Treaty, a requirement in the EU’s 27-member states, returned with a 53.4% vote as against a 46.6% vote in favor of the non-ratification of the Treaty. A referendum was necessary in the case of Ireland in lieu of an amendment of its own Constitution. This development has the effect of jeopardizing the new treaty, a repeat of the failed Constitutional Treaty drafted in 2002-2003 which was rejected by Netherlands and France in 2005. 9 In a survey conducted by the Gallup Organization after the Irish referendum on a random selected size of voters through the telephone, it was determined that the more than half of those who voted no did so because they were not able to comprehend fully the issues being discussed in the referendum. The said survey was commissioned by the European Union for the purpose of understanding the reasons behind the rejection of the Lisbon Treaty. Twelve per cent of those who voted ‘no’ said that they did so because they wanted to maintain the sovereignty and identity of Ireland. In addition, 6% voted ‘no’ because of lack of trust in politicians; another 6% wished to maintain Ireland’s neutrality in security and defence; still another 6% desired the maintenance of an Irish Commissioner in every Commission; also a 6% of those who voted ‘no’ wanted to protect the Irish tax system, and; 5% voted ’no’ thinking their voting so is a reflection of a European vote. Finally, 1% of the ‘no’ voters did so to evade the streaming of immigrants into the country or to signify that the present treaty is already satisfactory under the present condition. 10 The survey also showed that the personality profiles of the ‘no’ voters mostly constituted the 18-24 year old bracket (65%) as opposed to the 42% of those over 55 years old. Most women, 56% also voted ‘no’ and of these 63% were housewives or were taking charge of their homes, 72% were students, 58% were unemployed. Fifty-six per cent of those who voted ‘no’, men or women, were unemployed. 11 Some quarters do not see this development positively. Federiga Bindi, Director of the European Office and Jean Monnet Chair at the University of Rome Tor Vergata and a leading expert in European integration, for example, did not view Irish rejection of the Lisbon Treaty favorably, either for Europe or for Ireland. She provided three options with which events should be turning out after the rejection: “sack the treaty; change the treaty and start the referendum process over; Ireland secedes.” Sacking the treaty, according to her, is not a good option democratically since the Irish population constituted only 1% of the European population and the voter turn-out was below 50%, this in the face of an 18-member state which have already ratified the treaty. Besides, the Brooking Institution sees in the treaty a cure for many European ills which is beyond the mere panacea, like the simplification of the EU structure and allowing many more issues determinable by a simple majority vote and the blurring of the distinctions between ‘community policies’ and ‘inter-governmental.’ Likewise, the proposed legislation in open doors by the new treaty, according to her, would engender more transparency and the juridical personality that the treaty is proposing to grant the EU, rather than the EC, would give Europe a more solid front in world affairs. 12 Anent changing the treaty, Bindi is of the opinion that this is not a serious option since it could not prevent the same scenario that happened in the Irish rejection of the Lisbon Treaty. It will not, for example, guaranty that voters will understand the issues more and change their minds. Besides, the question is what particular changes should be made? To Bindi then, the only viable option is for Ireland to secede, a scenario which has a parallelism with what Greenland did in 1982 when it seceded from the EEC after it was granted independence from Denmark in 1979. The case, according to Bindi, illustrates that secession is a possibility even though the provisions of the law, in this case the Lisbon treaty, do not provide for it. 13 Distinctions from the Treaty of Nice The Nice Treaty which was concluded in 2000 is made up of two components: the first, which contains the substantial amendments to earlier treaties, and; the second, which contains the final and intermediary provisions. In addition, four set of rules were taken up: on EU enlargement; the Court of Justice Statute; the expiration of the ECSC Treaty and financial consequences, and; the free movement of European citizens. The significant changes it made on previous treaties are the following: institutional changes to be followed in the Council, parliament and Commission with respect to weighting of votes, allocation of seats and composition; the introduction of a triple majority where decisions must be decided by two-thirds of the total number of Member States if the proposal did not originate from the Commission, or 169 out 237 votes and on enlargement, 258 out of 345 votes, or 62% of the EU population, if so requested by any of the Member States; in the event of enlargement of membership, the allowance of a higher ceiling of seats in the Parliament and a corresponding reduction of seats held by member states; a compromise agreement of Commission membership in which the previous system of one Commissioner per member state is retained subject to reduction and the implementation of the rotational system in the event of the enlargement of the number of states to the EU; the enhancement of the European President’s powers; the enhancement of the powers of the court system, and; economic, financial and technical cooperation with third countries were fostered. 14 On the other hand, the failed Constitutional Treaty as amended in 2007 by the Treaty of Lisbon has the following features: a more democratic and transparent system where the European Parliament is directly elected by European citizens and granted the power of more co-decision with the Commission, a greater participation by the national parliaments with EU activities, a Citizens’ Initiative system where at least a million citizens can band together to propose policies to the Commission, competences are categorised resulting in a clearer relationship between member states and the EU, and the possibility of a state withdrawal from the EU; a more efficient European system with the extension of the qualified majority which will be computed beginning 2014 on the basis of double majority of Member States and people, more organized institutional structure with a President elected for two and a half years, a smaller Commission and a potentially improved European life through the creation of policies in the handling of crimes and terrorism, among others, and also even in specific areas like “energy, public health, civil protection, climate change, services of general interest, research, space, territorial cohesion, commercial policy, humanitarian aid, sport, tourism and administrative cooperation” and, a greater representation of Europe in world affairs through the creation of the position of a High Representative for the Union in Foreign Affairs and Security Policy, the creation of a European External Action Service and a single Security and Defence Policy which will strengthen and make coherent security and defence strategies for all of Europe.15 Consequences of Current Regime The Irish rejection of the Lisbon Treaty implies that the current regime of the Nice Treaty is retained and continues to underpin European Union political and judicial systems. Bindi has a very bleak view of how the current regime, if allowed to continue, will fare and in the event the new Treaty of Lisbon is totally abandoned as a result of its initial rejection of the Irish people. She sees the end of the treaty as a destruction of the recently re-born democracies in the same way that the EU was in the 1950s and the 1970s. It’s abandonment can shatter the hopes of the Balkan republics that hoped to join the EU soon after the ratification of the treaty. 16 Malta, for example, will suffer the consequence of losing its sixth seat in the EU Parliament, one of the positions negotiated by Malta and incorporated in the treaty. 17 The continuation of the current regime will imply that many of the provisions which underlie the European Union political, judicial and economic system are outdated as they were drafted to adapt and respond to past local and current events. Since the Nice Treaty was adopted eight years ago, a lot of developments had overtaken events and left untouched by amendments to conform to recent events will become antiquated vis-à-vis current events. Read More