On the 14th October, Peter Hain, Minister for Europe presented a Draft Constitutional Text of the European Union. This text, he claimed was an independent view, not the considered view of the Government. However its gestation has brought this claim into disrepute. The author, Professor Alan Dashwood is a long time member of the cross border academic praetorian guard of the European project. Currently Professor of European Law and Director of the Centre for European Legal Studies based at Sydney Sussex College, Cambridge University, he has also lectured at the European Institute at Florence and was for a time the head of legal affairs for the Council of Ministers. As such the independence which Mr Hain trumpeted in Brussels may well be in a strict sense true, that is independent of British interests. However the simple fact that this Constitutional Text was both conceived and paid for by the British Government puts the lie to these claims.
The text itself is particularly important for what appears in Prof. Dashwood's Article 7.
'The Organising Principles of the Constitutional Order'
In this article Dashwood redefines what it is that the project is all about. The four principles are simplified and set out very clearly:
"1. The following shall be general and fundamental principles of the constitutional order established pursuant to this Treaty:
the principle of conferred powers;
the principle of subsidiarity;
the principle of proportionality; and
the principle of loyal cooperation."
The first simply states that the EU can only do what the member states have agreed to let the EU do. Importantly though it states that, "All powers which the Member States enjoy by virtue of their sovereignty, and which they have not conferred on the Union pursuant to this Treaty, remain within the exclusive competence of the Member States". But even this guarantee is circumscribed, "except in the areas identified in Article 9 of this Treaty as falling within the exclusive competence of the Union", (Trade, fisheries and monetary policy for the Eurozone).
The second is the famously weasel Subsidiarity clause. It has to be remembered of course that Jacques Delor's €1,000 prize for an effective definition of this concept has never been collected. The problem being is that when there is any dispute between a member state and the EU as to the areas of competence the place of Solomon is taken by the European Court of Justice(ECJ) which has as been charged in its defining role to strengthen the Union. The problem being put as 'and there is no demonstrable common advantage in acting at the level of the Union", there is always demonstrable common advantage.
The third Proportionality is an attempt to beef up subsidiarity but again falls within the remit of the ECJ thus neutering it's beneficial effect. However the one that is new and is the focus of this short note is the Principle of Loyal Cooperation.
5. The principle of loyal cooperation requires that the Member States support the actions and policies of the Union actively and unreservedly in a spirit of loyalty and mutual solidarity, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Union.
The Member States shall facilitate the achievement of the Union's tasks as provided for in the Act on Economic and Social Policy and in the Act on Foreign, Security and Defence Policy. They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness'.
This principle of Loyal Cooperation is an entirely new construction that has never been so baldly put. The first know reference to it came in a note in the EU's official journal in November 1995.
Notice on cooperation between national courts and the Commission in the State aid field
OJ C 312, 23.11.1995, p. 8
4. Article 5 of the EC Treaty establishes the principle of loyal and constant peration between the Community institutions and the Member States with a view to attaining the objectives of the Treaty, including implementation of Article 3 (g), which provides for the establishment of a system ensuring that competition in the internal market is not distorted. This principle involves obligations and duties of mutual assistance, both for the Member States and for the Community institutions. Under Article 5, (Article 10 of the ECT Consolidated treaty - Ex 5) the Commission has a duty of cooperation with the judicial authorities of the Member States which are responsible for ensuring that Community law is applied and respected in the national legal order.
It next appears in an amendment to the Parliamentary report on public access to European Parliament, Council and Commission documents. This report buy the Labour MEP Michael Cashman and Hanja Maij-Weggen a Dutch Christian Democrat was tabled in April 2001 and refers specifically to the security field.
Even though it is neither the object nor the effect of this Regulation to amend existing national legislation on access to documents, it is nevertheless clear that, by virtue of the principle of loyal cooperation which governs relations between the Community institutions and the Member States, Member States should take care not to hamper the proper application of this Regulation and respect the security regulations of the institutions.
Later in October 2001 Graham Watson MEP (then leader of the British Liberal Democrats and now head of the Pan-European Democrat group in the European Parliament) included the phrase in his motion for a resolution on Criminal Sanctions and Community Law.
D. whereas the Community law system relies on general principles of law common to the national legal systems and Article 10 of the EC Treaty, the principle of loyal cooperation, for competence to require Member States to provide appropriate sanctions including sanctions of a criminal nature to ensure fulfilment of obligations arising from the EC Treaty or its implementing measures, as recognised by the European Court of Justice,
Again this seems to concentrate on security matters. And again it refers to the same article in the Consolidated Treaty on European Union.
However when one looks at the Treaty and the reference that the Commission and others use as the basis for there claims it is simple to note that the claims made for the defined principle do not hold water.
Article 10 (ex Article 5)
Member States should take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.
Though a level of co-operation is suggested in the Treaty itself, there is no way in which the Treaty can be used to justify the greater claims made by Dashwood in his Draft Constitution which defines a new principle to cover areas previously covered by member states such as Foreign and Defence policy.
The net result of such a broadening of scope in the Treaty would be to emasculate the ability of a Member State to proceed in Foreign, Defence Security Policy in ways in which a majority of fellow member states deemed inappropriate. Thus the current British stance on Iraq could be deemed 'contrary to the interests of the Union', as would have the Falklands war, or possible an action by Spain to defend its territories in North Africa.
The last word on this newly defined principle, no less a guiding principle must rest with Jean Luc Dehane, former Prime Minister of Belgium and Vice President of the Constitutional Convention. "Federalism always presupposes loyal cooperation."