The constitutional development of the european union

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BULL 10-8-07.DOC

10/10/07 1:52 PM




In the spring of 2005, something dramatic happened in the European Union (EU): on May 29, the French voters said “Non” to French ratification of a treaty entitled “Treaty Establishing a Constitution for Europe” and aimed at providing the EU with a new legal basis(54.9% against on a turnout of 69.7%).1 On June 1, in a consultative referendum, and the first referendum ever in the Netherlands, 61.6% of Dutch voters (on a turnout of 62.8%) also said “No.”2 By that time, Spain and Luxembourg had already held referenda, which had authorized ratification, and Lithuania, Hungary, Slovenia, Italy, Greece, Slovakia, Austria and Germany had ratified the treatyfollowing parliamentary approval of the same.3 The negative votes in France and the Netherlands immediately threw the EU into turmoil: several states postponed their approval procedures. The United Kingdom, Denmark, Ireland, Portugal, and Poland postponed their referenda indefinitely.4 The Czech Republic cancelled its referendum and opted for a purely parliamentary procedure instead, and that procedurehas been put on hold.5 Sweden postponed its parliamentary procedure indefinitely.6

Judge Henrik Bull is Norwegian. He presently sits as a Judge on the European Free Trade Association (EFTA) Court in Luxembourg, serving a six-year term which began in January of 2006. Prior to his time on the bench, Judge Bull served in several positions of responsibility in the Norwegian Ministry of Justice.Additionally, he served as the Director of the University of Oslo Faculty of Law Center for European Law from 2002 to 2005. 1. Vaughne Miller, The Future of the European Constitution 7 (Int’l Affairs & Def. Section, Research Paper No. 05/45, 2005), available at http://www/ rp2005/rp05-045.pdf. 2. Id. 3. Id. Whether the treaty can be ratified after a parliamentaryprocedure only, or whether it needs to be submitted to the people, is regulated by national constitutions. Some states, for political reasons, may choose to organize consultative referenda, as the Netherlands did. Politically, it would be near-to impossible for parliaments to ignore the result of such referenda, even if, as a matter of law, parliaments could still go ahead and approve the treaty. 4.BBC News, EU Constitution: Where Member States Stand, world/europe/3954327.stm (last visited June 22, 2007). 5. Id. 6. Id.


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Other states have gone ahead and approved the treaty after parliamentary procedures: Latvia (June 2, 2005), Cyprus (June 30, 2005), Malta (July 6, 2005),Belgium (February 8, 2006), Estonia (May 9, 2006), and Finland (May 12, 2006).7 How did this happen? Why did the French and the Dutch say “No”? Was it because they rejected the thought of a federal Europe, a “United States of Europe?” Would the Treaty Establishing a Constitution for Europe really have established this? And what happens now? In order to answer these questions, it is necessary, inparticular for an audience, which is probably not very familiar with the EU, to say something about the EU as it presently is and the achievements so far. II. THE INSTITUTIONAL SET-UP OF THE EUROPEAN UNION A. THE ORIGINAL MODEL: THE COAL AND STEEL COMMUNITY What today is known as the “European Union,” started out in 1952 as the “European Coal and Steel Community” between France, (West) Germany,Italy, the Netherlands, Belgium, and Luxembourg.8 The Treaty subjected the coal and steel industries of those nations to a common, independent authority (simply called “the High Authority”) in order to increase the efficiency of those industries.9 However, the establishment of an independent authority also removed the industries from national control. Since coal was the main source of energy and...
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