See the Editor’s Introduction to this article.

The new constitution equips the European Union with a new decision rule to replace the method used hitherto, namely unanimity assisted by arm-twisting and talking-to-exhaustion. Sheer cheek and nerve also had a role, often helping France to get her way when her case was seemingly hopeless.

Under the new system, three bodies reach decisions jointly. The Commission proposes, the Council of Ministers disposes, and the European Parliament approves.

The Commission is reformed, reduced to 15 voting members but enlarged by another 15 non-voting ones. A total of 30 seats should permit each of the 25 member states to nominate one commissioner, which means that the latter will increasingly become the spokesmen of their home states and not the impartial servants of all. So far so good—this is inefficient, but consistent with confederacy. The Commission will technically remain as powerful as before, for it retains control over what legislation is proposed. It has the executive staff to carry out eventual decisions. However, the Commission has but limited control over hiring and firing, hence the loyalties of the staff are in reality divided.

The whip hand is held by the Council of Ministers which adopts, rejects or modifies the Commission’s proposals. The new constitution enlarges the breach the Nice Treaty of 2001 drove into the former unanimity rule. It provides for “double majority” rule; a decision is carried if at least 50 per cent of the member states representing 60 per cent of the Union’s population vote for it. The 60 per cent provision prevents 3 small members of the 25-member Union from imposing decisions on 12 larger ones. In fact, as things now stand, the usual Franco-German coalition, by coopting two small to middle-sized states, can always form a blocking minority of 40 per cent of the population and use the block as a bargaining lever.

It is amusing, if that is the right word, that Europe’s politically correct circles have convinced themselves that Asia Minor is in Europe, Islam is as consistent with Human Rights as Christianity (or, as the new constitution prefers to put it, Graeco-Roman and Enlightenment tradition), and it is politically correct to admit Turkey to the Union without much further delay. They are likely to achieve this by 2010 or soon after. On foreseeable demographic trends, Turkey would then be the Union’s most influential member by mid-century.

Like any majority rule, the double majority rule, albeit less brutal, is inconsistent with confederacy. It has the irresistible force of a nuclear bomb to smash the ability of member states to decide matters for themselves. The very consciousness that the bomb is there helps steer the Union’s agenda in a federal direction. Moreover, any likely majority under the 50-cum-60 rule is rose-tinted: it wants Union legislation to be more “social”, to enshrine more “workers’ rights” and make taxation more “equitable” by stopping member states from undercutting each other’s taxes to attract young talent, entrepreneurs, inventors, research centers and company head offices.

Recognising the way the federal wind was going to blow, some states, notably Britain, The Netherlands and Ireland, obtained “nuclear-free zones”, areas where the majority rule would not apply. Defense and personal income taxes would remain “nuclear-free”, i.e. member states would have a veto over Union intervention in their own armed forces and income taxes.

However, the wording of these exceptions is weak, showing the marks of compromise, and while defence may remain under national control in the foreseeable future, taxation is unlikely to be left “nuclear-free” for long. Corporate income tax should be the first to go, for it will be deemed contrary to the conditions of a single market for the Union that the total tax charge on corporate profits should be four times as high in Germany as in Ireland—and it is not hard to guess which rate will be adjusted to harmonise with the other. After corporate taxes, excise and value added taxes should follow.

Two guiding principles of the constitution are supposed to determine whether a given issue is to be settled at the state or at the Council of Ministers level. One is subsidiarity. It means, roughly speaking, that everything should be dealt with at the lowest level capable of adequately handling it. If the principle had any objectively ascertainable meaning, it would safeguard against centralisation and federal hypertrophy. Obviously, however, whether an issue is handled adequately at a local level is a matter of subjective opinion and not of fact. The second principle, cohesion of the Union, supersedes subsidiary when the two conflict. If Madrid wishes to handle a Spanish problem in its own way, it would apparently be sufficient for a majority in the Council of Ministers to decide that cohesion demands that the matter be handled at their level in Brussels in harmony with the way it is handled elsewhere in the Union or, more radically, as it ought to be handled everywhere.

The constitution declares explicitly that Union law overrides state law. This gives enormous potential power to the European Court of Justice which has the mission to interpret Union law. The Court is destined over time to swell to many times its present size. The primacy of Union law has first been established by judicial precedent at a time when the scope of Union law was limited to matters concerning market freedom. Union law has since been expanding and is obviously destined to expand over many new areas. The Court will, in terms of the constitution, extend its jurisdiction over all of them.

The European Court of Human Rights, even without explicit constitutional mission, has already been active in overturning decisions by member state courts. An incident that is now merrily burgeoning and billowing, illustrates its impact. Two teenage Muslim girls in a French state school have after lengthy procedures been expelled because they refused to give up their veils, a religious symbol deemed incompatible with the lay character of a state institution, besides being awkward for taking swimming lessons. The girls’ father, a lawyer, is appealing to the administrative tribunal where he is predicted to lose, and will then appeal to the State Council where he is also predicted to lose. His object is to be able at that stage to appeal to the European Court of Human Rights, where he is predicted to win. His victory is feared to give much encouragement to Islamic defiance of school authority, an encouragement France does not exactly need.

Judicial influence in a unifying, federating direction should gain further authority from the deep bow the new constitution makes to political correctness by declaring a Charter of Fundamental Rights. They include a curious ragbag of wishes, aspirations and general directives, ranging from the right of workers to be consulted on major business decisions (without saying what is to happen if the consultation fails to produce agreement), the right of the unemployed to free placement services, the right of consumers to safe food, and other similarly “fundamental” rights that one is surprised to see as parts of a constitution. Perhaps the most baffling is the “right” to a job. Does your right to a job involve an obligation for me to employ you?—or merely your freedom to sue the government (of your state? Or of the Union?) in the European Court of Justice for failing to ensure full employment? Dizzying perspectives are opened up by the Charter in this and other ways.

Next to the Council of Ministers and the Commission, the third leg of the decision-making tripod, the European Parliament, is not really rescued from its present and staggeringly expensive irrelevance by the new constitution. Power is divided between two contestants only, the Council and the Commission. The former is to abandon its half-yearly rotating presidency. It is to get a permanent president and, significantly, a permanent staff. There will then be two rival institutions, two presidents, and two bureaucracies.

It looks a safe enough bet that this structure will not survive intact for very long, except perhaps in form but not in substance. One president will reduce the other to some subordinate role, and one bureaucracy will gradually take over the other. Of the two, the Council is the more likely survivor, partly because is destined to remain the Commission’s paymaster and partly because the power to settle issues by the weapon of majority rule lends you more power than the putting of issues on the agenda, important as the latter may be. Whichever institution will absorb the other, one can already discern on the future horizon, maybe by the mid-century, the contours of a strong single federal legislative-cum-executive body holding together a superstate on top of the member states—the frog that started off as a tadpole.


*Anthony de Jasay is an Anglo-Hungarian economist living in France. He is the author, a.o., of The State (Oxford, 1985), Social Contract, Free Ride (Oxford 1989) and Against Politics (London,1997). His latest book, Justice and Its Surroundings, was published by Liberty Fund in the summer of 2002.

The State is also available online on this website.

For more articles by Anthony de Jasay, see the Archive.