The new EU Constitution is in danger of installing a citizens’ rights regime rather than one of legislative solutions.

The Treaty establishing a Constitution for Europe marks real progress in strengthening the position of the citizen with the Union. Citizens are mentioned in article one. They will benefit from a legally binding charter of fundamental rights, at least the beginning of direct access to the European Court of Justice and accession to the European Convention on human rights.

Principles of openness and transparency are extended and participatory democracy introduced, including the principle that the Union Institutions “maintain an open, transparent and regular dialogue with representative associations of civil society.” ECAS would still like to see an obligation too on the Institutions to inform citizens of their rights.

In its blueprint on European Citizenship www.ecas.org, ECAS called for recognition of citizens’ initiatives “on the basis of a petition which had received about one million signatures” and this idea is included in the Constitution. The Constitution is a step towards creating a space for European civil society to develop. The citizen should now become an actor who counts with the EU Institutions, and the expectation that the EU will be able to respond to citizens demands will increase.

In the area where a high proportion of questions and complaints arise - European citizenship and free movement of people - there is a gap between constitutional objectives and the capacity to deliver:

Citizens are given prominence but European citizenship has not been touched by the Convention except to strengthen “the right to move and reside freely within the territory of the member states” in article 1-8 by linking free movement less directly to the limits i.e. the requirement to have sufficient resources. No new European citizenship rights have been introduced let alone extended to third country nationals legally resident in the EU, despite several amendments. It is extraordinary that a constitutional assembly did not have more to say and do about citizenship than just rubber stamp the status quo. Citizenship rather than just citizens should be a subject for the intergovernmental conference and a future convention.

European citizenship will not even be allowed to develop through new legislation, because unanimity is maintained. The effect of unanimity – the ability of one member state out of 25 to veto proposals – is a recipe for European citizenship to remain a dead letter. The Commission will hesitate to put forward legislative proposals in the first place, because they would stand little chance to go through, encouraging citizens to go to court instead. In terms of the Constitution, unanimity is introduced for measures concerning passports, identity cards, residence permits or social security. The same unanimity rule applies even to any proposal by the Commission to add to the rights of European citizens. Where unanimity is required, the Council’s ability to negotiate with the European Parliament and move beyond a lowest common denominator position is severely restricted, and so are the real possibilities of parliamentary control and amendment.

And for measures to combat discrimination of all kinds, the current Constitution in article 111-5 makes no attempt to improve on the existing Treaty article 13: the Council acts unanimously and merely consults the European Parliament which has no legislative power on particularly sensitive issues of civil liberties.

It is not too late.!!!! The Convention can create a better balance between on the one hand encouraging citizens to complain to the Institutions and go to court, and on the other encouraging the national governments to create the modern legislative framework to make that less necessary. In his inaugural speech to the European Convention,
Mr. Giscard d’Estaing spoke of a reunited Europe where people can move around freely. That vision can only be realized by extending majority voting when the Convention considers the detail of part 111 of the Constitution.

By:
Nathalie Calmčjane
Project co-ordinator ECAS
n.calmejane@ecas.org
conference@cas.org