Key steps to an EU Federal Constitution
… A constitutional revolution by stealth
Three factors explain the historical development of supranationalism in Europe since the end of World War 2: (1) The desire of the USA to federalize important functions of Europe’s Nation States as an economic underpinning of NATO and to overcome French unhappiness at German rearmament at the start of the Cold War; (2) The desire of the continent’s former imperial powers, all defeated, ravaged and occupied during World War 2, to have more influence collectively in the post-War world than they could have individually – in the process freeing their ruling elites from democratic control by their own peoples at the national level; and (3) The desire of American and European-based transnational Business and High Finance to be free of the social controls on private capital that alone can be imposed by Governments responsive to their own peoples at the national level [See end-note below for recent developments countering these factors].
The following are the key steps in the development of the EU as a supranational quasi-federal entity from 1951 to the present day:
1. In 1951 The European Coal and Steel Community, established by the Treaty of Paris, was the first European supranational community, formed by the original six Member States: France, Germany, Italy, Belgium, Holland and Luxembourg – the latter three known as “Benelux.” The Coal and Steel Community’s formation was announced in the Schuman Declaration of 9 May 1950, which referred to it as“the first step in the federation of Europe”. This indicates that the long-term goal of a European Federation has been there from the start. The date of the Schuman Declaration is commemorated by the EU on its “Europe Day”, 9 May, each year. The ECSC Treaty was for a period of 50 years, so that the Coal and Steel Community went legally out of existence in 2002, when its powers and institutions were taken on by the later European Community that had been established by then.
2. The 1957 Treaty of Rome established the European Economic Community (EEC),which was originally called the Common Market. This consisted of a customs union with a common external tariff, a Common Agricultural Policy, Common Fisheries Policy and various Funds, principally a Social Fund and Regional Development Fund, and supranational administrative institutions: the Commission, Court of Justice, Council of Ministers and Assembly, later called a Parliament. The same year, 1957, also saw the European Atomic Energy Treaty which established the EURATOM community. That treaty is still in force.
3. The 1965 Merger Treaty merged the institutions governing the three European communities, so that the Brussels Commission became the “Commission of the European Communities”, all three of them – the Coal and Steel Community (ECSC), the Economic Community (EEC) and the Atomic Energy Community (EURATOM) – and the nameplates on the Commission’s offices had to be changed to reflect that.
4. The supranational powers of the European Communities were added to by successive treaties over later decades, and national State powers were correspondingly reduced in successive stages: viz. the 1986 Single European Act, which turned the “common market” into the “single market”; the 1992 Maastricht Treaty on European Union (note the word “on”, not “of”, in this title) which produced the euro-currency; the 1997 Amsterdam Treaty; the 2001 Nice Treaty; the 2009 Lisbon Treaty; the 2012 Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (also known as the Fiscal Compact treaty) and the European Stability Mechanism Treaty of the same year. The detailed provisions of each of these treaties can be easily consulted on the internet. Ireland, uniquely among EU Member States, had referendums on all of them because of the 1987 Crotty judgement by Ireland’s Supreme Court.
5. In 1992 Title 2 of the Maastricht Treaty on European Union renamed the European Economic Community (EEC)the European Community so that the Brussels Commission thereafter became the Commission of the European “Community” – singular – rather than of the three “Communities” – and again its office nameplates had to be changed. From 1992 until the Lisbon Treaty of 2009, the Consolidated European Treaties were this Treaty on European Union and the Treaty Establishing the European Community. Maastricht also laid the basis for a Monetary Union and the euro-currency. The Maastricht Treaty on European Union formally introduced the concept of a “European Union”, most obviously in the title of that treaty, although it did not at the time actually establish such an entity with legal personality. The term “European Union” was instead applied to what was called the “inter-governmental” cooperation between the three so-called “pillars” of what was thereafter called the European Union: namely, the supranational pillar of the European Community, and the two national pillars of foreign and security policy on the one hand and crime and justice policy on the other – the latter two remaining under national Member State control. The idea was to get people used to the notion of a European Union that was intended to become in time a European Federation, while not alarming them by giving it immediate institutional content. That is why Maastricht was called a Treaty “on” European Union rather than “of” union. What was called “the European Union” between 1992, when the Maastricht Treaty onEuropean Union was signed, and 2009, when virtually all of the provisions of the Treaty Establishing a Constitution for Europe were adopted indirectly by means of the amendments to the Consolidated Treaties put through by the Treaty of Lisbon, was therefore this “intergovernmental” arrangement, and what was called a European Union at that time did not have legal personality and was not an international political actor in those years. The European Community remained effectively the supranational actor internationally.
The 1992 Maastricht Treaty on European Union also introduced the concept of European citizenship as “complementary” to national citizenship, but as there was as yet no supranational Union that one could be a citizen of, the notion of Union citizenship had no special legal content or significance as yet. It did however help to get people used to the idea that EU citizenship was or would be something innocuous, without serious legal implications or consequences, when of course the reality when it came really into being was quite otherwise.
6. In 2004 the Treaty Establishing a Constitution for Europe was signed following a constitutional Convention that was chaired by former French President V. Giscard d’Estaing. Article 1 of this Treaty stated: “…this treaty establishes the European Union” –which clearly indicated that a European Union with legal personality did not previously exist. The constitutional treaty drafted by this Convention was therefore effectively the “Treaty of European Union”. However, in 2005 French and Dutch voters rejected it in referendums, following which, a couple of years later, all but a handful of its provisions were incorporated as amendments to the existing treaties in the form of the Treaty of Lisbon – only Ireland being allowed to hold a referendum on that. The provisions of the Treaty Establishing a Constitution for Europe that were omitted from the Treaty of Lisbon were those that gave a treaty base to the EU flag, anthem and annual “Europe Day”; so that these do not have any treaty base to this day, although that has not prevented their widespread use. The word “Constitution” was also omitted by the Treaty of Lisbon to avoid drawing attention to the fact that a Federal-style State Constitution was in fact being adopted for the new European Union. The reason was that these abandoned provisions would have alerted European public opinion to the constitutional revolution by stealth that was taking place. Former French President Valéry Giscard d’Estaing, who chaired the Convention that drew up the Treaty Establishing a Constitution for Europe, admitted the duplicity when he said of the Lisbon Treaty: “All of the earlier proposals will be in the new text but will be hidden or disguised in some way” By being denied a say in referendums the peoples of Europe were thus denied the knowledge that the Lisbon Treaty was constituting a new European Union, federal in legal character and structure, with its own legal personality for the first time, that this supranational Union was replacing the previously existing supranational European Community, and that everyone was being given an “additional” citizenship of this new post-Lisbon Union on top of their national citizenship. Because of the duplicitous character of this procedure – essentially geared at avoiding national referendums – most Europeans do not realise to this day that they are now real citizens of a Federal EU, which shares sovereignty with their national Member States. One can only be a citizen of a State and all States consist of their citizens. Of the 197 States in the contemporary world, 28 are Federations. The constitutional characteristics of a Federation are that State sovereignty is divided between a federal level and a national or regional level and everyone has two citizenships, one of each level, with citizens’ rights and duties at each level – the federal level having primacy in any case of legal conflict between the two levels. Such issues are decided by the EU Court of Justice (ECJ) in the case of the EU today.
7. The 2009 Treaty of Lisbon implemented the provisions of the Constitutional Treaty, the Treaty Establishing a Constitution for Europe, in the form of amendments to the existing treaties, whose implications were hard for voters to understand without detailed knowledge of those earlier treaties. Ireland was the only EU Member-State to hold a referendum on this manner of establishing a Federal EU indirectly rather than directly; and when Irish voters rejected the Lisbon Treaty in 2008, permission for its ratification was re-run unchanged and pushed through in a second referendum in 2009. The names of the two Consolidated Treaties, as amended by the Treaty of Lisbon, that form the Constitution of the current European Union are The Treaty on European Union (TEU) – the existing name for this treaty being kept, so that people would not notice that a constitutionally new Union was being established – and the Treaty on the Functioning of the Union (TFEU). The latter was the new name for the Treaty Establishing the European Community, for the pre-existing supranational European Community (EC) went legally out of existence with Lisbon, and its powers and institutions were transferred to the post-Lisbon EU. Following Lisbon the Brussels Commission became the “Commission of the European Union”, and the brass nameplates on its offices had once again to be changed.
In 2012 the EU Member States agreed the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (often called the Fiscal Treaty or Stability Treaty) as well as the Treaty Establishing the European Stability Mechanism (ESM). These were geared a strengthening the single currency. Only Ireland had a referendum on the former.
8. The amendments to the Consolidated Treaties made by the 2009 Treaty of Lisbon that give the post-Lisbon EU a federal Constitution are the following [These can be easily checked by down-loading The EU Treaties: The Reader-Friendly Edition, with its invaluable Index on EU topics and issues, edited by the Danish MEP the late Jens-Peter Bonde, from www.euabc.com ] :-
(a) Art.1 TEU provides that “The Union shall replace and succeed the European Community.”
(b) Art.47 TEU states that “The Union shall have legal personality.”
(c) Lisbon brought foreign and security policy and crime and justice policy within the ambit of the post-Lisbon EU, so that the Union and its Member States now share powers and competences in virtually all areas of government. This is normal in Federal States, where State sovereignty is divided between the Federal level and the National or Regional level and everyone is a citizen of both levels, with citizens’ rights and duties at each level. The Federal level is implicitly regarded as primary: for example, Art. 2 TFEU states that where powers are shared between the EU level and Member State level, covering huge areas of public policy, “The Member States shall exercise their competence to the extent that the Union has not exercised its competence” and “The Member States shall again exercise their competence to the extent that the Union has decided to seize exercising its competence.”
(d) Declaration 17 Concerning Primacy, attached to the Treaties, states that EU law has primacy over national law in any case of conflict between the two, and cites the existing case-law of the Court of Justice to this effect.
(e) Art.20 TFEU gave the citizens of the Member States an “additional” citizenship – that of the newly constituted post-Lisbon EU – so that they all now have two citizenships – Germans and Austrians, being citizens of existing national Federations, having three – with appropriate citizens’ rights and duties at each level. This is just as in such classical Federations as the USA and Germany, where one is a citizen of New York or Texas, or Bavaria or Saxony, as well as of the Federal USA or Federal Germany.
(f) Art. 6 TEU gives the EU’s Charter of Fundamental Rights “the same legal value as the Treaties”, thereby making its provisions binding supranationally. The Charter of Fundamental Rights includes all sorts of items as rights that are not traditionally regarded as “fundamental” – that is, human – rights. This empowers the EU Court of Justice to lay down a common standard of rights across the post-Lisbon EU. An analogous power for the US Supreme Court has been hugely important in “federalizing” all sorts of public policies in the USA over the past two centuries.
(g) Having made these fundamental constitutional changes, the Lisbon Treaty/EU Constitution then put post-Lisbon EU law-making on a population basis, as is normal in States. Art.16 TEU lays down that a qualified majority for making laws in the post-Lisbon European Union shall consist of 55% of the members of the EU Council, currently 15 out of 27, as long as they comprise 65% of the total Union population. This has had the effect of doubling the voting weight of Germany, the most populous EU Member, from its pre-Lisbon level of 8% of the total number of votes on the Council of Ministers, to the current 16%. Lisbon also increased the voting weight of France and Italy from 8% to 12% each, while it reduced the voting weight of small countries like Ireland and Denmark from 2% to just under 1% each.
The EU’s Federal State Authority: As regards the “State authority” of the post-Lisbon European Union, this is embodied in the Union’s own executive, legislative and judicial institutions: the Commission, European Council, Council of Ministers, European Parliament and Court of Justice. It is embodied also in the Member States and their authorities as they implement and apply EU law and interpret and apply national law in conformity with Union law. This they are constitutionally obliged to do by the changes to their national Constitutions and laws that they have had to make on becoming members of the EU. Thus EU “State authorities” as represented by EU soldiers and policemen patrolling Europe’s streets in EU uniforms are not needed as such. Their absence makes it all the easier to hide from ordinary citizens the reality of Europe’s hollowed-out Nation States and the catastrophic failure of their own mainstream politicians to defend their national independence and national democracy.
Political Consequences of giving the EU a Federal Constitution
The EU Treaties have shifted power away from citizen voters in all EU countries and from small and middle-sized Member States to the larger ones. The post-Lisbon Treaty European Union has its own Government, with a legislative, executive and judicial arm, although without the separation of powers that is to be found in every proper democracy. It has its own political President, its own citizens and citizenship, its own human and civil rights code, its own currency, economic policy and revenue, its own international treaty-making powers, foreign policy, foreign minister, diplomatic corps and United Nations voice, its own crime and justice code and Public Prosecutor’s Office. The Lisbon Treaty gave the EU a treaty base for the EU army, which the EU’s leaders now openly talk about establishing. From the inside the EU looks like an arrangement between States; from the outside it looks like a State itself.
Some Federal States take a long time to develop. It has taken the USA over two centuries and there is still tension over “state rights” issues between the federal level of Washington and the 50 local states of the American Union. The only major features of a fully-fledged Federation that the EU does not yet have are its own direct taxes and its own army. However, the Lisbon Treaty gives the post-Lisbon European Union the power to impose its own taxes as long as its Member States agree unanimously to do that, and recent years have seen significant steps to militarizing the EU in the context of the Ukraine war.
Although the EU has most of the formal features of a State and Euro-federalists aspire to see it becoming a United States of Europe comparable to the USA, outsiders hesitate to regard it as a State in its own right. They think that if it were such it must surely have its own people, its own “demos” – Greek for “people” – who would identify with it and insist on endowing it with some meaningful democratic life. But such a European people, analogous to a national people, does not exist. Democracy, rule by the people, can exist only at the level of the Nation State, for it is only there that sufficient solidarity, mutual interest and mutual identification exist between citizens as to induce minorities freely to accept majority rule. Virtually everyone identifies with their own country first and their own democratic institutions if they have such. Few people really identify with the EU, and virtually nobody would give their lives for it, in contrast to peoples’ loyalty to their own countries and their Nation States.
The EU is most accurately seen as a supranational anti-democratic system that deprives Europe’s diverse nations and peoples of their national democracy and independence, while serving the political interests of its Big States, in particular Germany and France, as mediated through their ruling politico-economic elites, interacting with the Brussels bureaucracy, while on the economic side it serves the interests of EU-based High Finance and transnational Corporate Capital. It represents an erosion and surrender of the national independence and democracy of Europe’s Nation States by their ruling elites and classes to supranational undemocratic institutions with which those elites now primarily identify.
Recent developments
Since the euro-currency was established in 1999-2000 US administrations generally, and much of Wall Street, have lost their enthusiasm for supranational integration in Europe. Nowadays it is in America’s national interest to deal separately with Europe’s different Nation States rather than with a centralised interlocutor in Brussels. The UK left the EU in 2019, “taking control” once again of its own laws and international relations. In the major EU countries popular movements are now emerging with the aim of restoring their national democracy and political independence and opposing the betrayal of their own national elites in surrendering sovereignty to Brussels. Parties on the political Left and political Right are finding common cause these days in working in parallel for the destruction of the anti-democratic monstrosity that is the European Union – an outcome that is historically inevitable.
The EU’s gaming with nomenclature
The European Parliament was called an “Assembly” in the 1957 Treaty of Rome, but Euro-federalists referred to it as a “Parliament” for decades before it was legally given that title in the 1986 Single European Act. Similarly, the name “European Community” was used for years to refer to the three supranational communities, the Coal and Steel Community (ECSC), the European Economic Community (EEC) and the Atomic Energy Community (EURATOM), before the 1992 Maastricht Treaty on European Union actually established that Community as a single legal entity. Likewise the name “European Union” was introduced in the 1992 Maastricht Treaty “on” European Union even though a treaty actually establishing such a union, a treaty “of” union, did not come into being until the 2009 Lisbon Treaty made the appropriate amendments in the two Consolidated EU Treaties, the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU).
By such sleights-of-hand the European public was conditioned to accept initially seemingly innocuously titled supranational institutions, only for them to be filled with substantial constitutional content years later.
This gaming with nomenclature was the counterpart at supranational level of what was simultaneously happening at national level, as the words “Government”, “Parliament” and “Supreme Court” were still used for the governmental institutions of each EU Member State, while their essential substance was sucked out of them as their national Constitutions were hollowed out.
[This item was compiled by Professor Anthony Coughlan of the National Platform EU Research and Information Centre, Dublin, Ireland. It may be reproduced or adapted as people wish, without any need of reference to or acknowledgement of its source, but any additional material should not be ascribed to its original compiler.]
(2026)