See between EU and Member States rights allocation

  • Created:
  • / Author: Aaron Lewis
From the perspective of Constitution Treaty power allocation between EU and Member States -- Comment on law, he veto of constitution and the significance
Xu Shanshan (Department of law, Fudan University, Shanghai 200433)
[Abstract] in order to understand the "the establishment of the European Constitution Treaty" in the Member States and EU institutions of power distribution, etc. This paper range from three jurisdiction, how the European Union in its authorized scope of legislative decision-making, EU Law Treaty for the point of view of the. As can be seen, EU wide authorized in the constitution at the same time, is still fundamentally safeguard of sovereignty, constitutional treaty to fundamentally promote the original and not from the treaty system integration. But the integration and ethnic characteristics of the EU itself is the most important innovation achievements of political civilization of twentieth Century, in other countries and learn.
[keyword] authorization principle; special procedure; principle; Nationalism
[b] DF996 [document code: A article number] [1003 - 4781 (2007) 05 - 0110 - 6
[ePub] 2007 - 01 - 12
[author introduction: Xu Shanshan (1976 -), female, Jiangxi Jiujiang people, doctoral students majoring in international law at Fudan University law school.
"The Treaty establishing a constitution for Europe" (hereinafter referred to as "the constitution") shall come into effect on November 1, 2006 , otherwise, will be at the end of a signatory of the document of approval after the entry into force of the first day of the second month. If the 4/5 EU member states have ratified the treaty, but at the same time with one or more members in the approval process encountered difficulties, problems will be submitted to the EU summit. ① if more countries rejected the constitutional treaty, constitutional treaty should be what kind of treatment is not clear, the treaty. At present, the constitutional treaty has obtained 10 approved by EU Member States, but in France and Holland, but was rejected, Britain announced the postponement of the referendum. Then, some European countries announced, in the EU constitution prospects before, not to ratify the constitution, the EU constitutional crisis. The Treaty establishing a constitution for future suddenly become very uncertain. People in France and Holland reject reason constitutional treaty was investigated and analyzed, think people worry that ratified the constitutional treaty will make home loss. [1] in 1951 from the "European Coal and Steel Community Treaty" in 2001 to "the Treaty of nice", are reflected in the post-war members power to europe. Therefore, people worried about the "constitutional treaty is the treaty or the Constitution? Asked. Who will have the right to decide the basic order of EU Law: EU member form of a country by agreement or consensus, the EU itself (regardless of whether the referendum) through its corresponding agency responsible for decisions and self-reliance of a basic order? lit. The EU Constitution Treaty on European Union Is it right? Basic legal order a final agreement legal documents?" [2] clearly understand the constitutional treaty design among member countries of the pattern of distribution of power, analyzes the worry, the Constitutional Treaty on several aspects of this paper from the following research, the first, permissions range second; scope, how the European Union in third, making the EU.                                                     
The "Treaty establishing a constitution for Europe" IV - 447.
One, the scope of authority
At present, the legal basis of the European Union is the four treaty, namely "the European Coal and Steel Community Treaty" (ECSC), "European Economic Community Treaty" (EEC) , "the European Atomic Energy Community Treaty" (Euratom) and the "Treaty of European Union" (TEU. According to the four treaty, the European Union by the "three pillars" common support: first pillar belongs to the integration of the field, second and third pillar belongs to the government's cooperation in the field, including foreign and security policy as well as the police and judicial cooperation. However, members gradually found that the treaty system of EU authority exists some disadvantages, such as: the European people often complain that do not know the EU's "who did what"; people EU gave the impression that it is often thought in the field of unauthorized or improper legislation, and the legislation is quite trivial; in addition permissions, the restriction mechanism is not. The to solve these problems, composed of representatives from different aspects of the European Congress of the European Constitution Treaty and hopes to clear the scope of authority of the European union. After the discussion of the European Convention, constitutional treaty reaffirms the fundamental first decided the scope authorized principle -- "". The Constitution Treaty "to reflect Europe's citizens and the state to build a common future aspirations, the establishment of EU, EU members to grant permissions to achieve their common." "The scope of authority of the EU standard by the principle of delegation." "According to the authorization principle, the EU should under this Constitution in member countries to achieve the objectives set for it within the scope of authorization." "Unauthorized access are still made by the member to exercise." The constitution amendment must be made each member's consent. In particular, constitutional treaty also first time defined members voluntarily withdraw from the EU. From these provisions can be seen, the treaties of the EU constitution construction is not a self reliant self for the Federal National or supranational organization of all, it functions must be delivered to its members, and each member country retained the will itself the right of final decision, it may decide to modify or withdraw. Not only that, the constitutional treaty has also carried on the development of "authority principle", in the form of the treaty will be "the auxiliary principle" and "appropriate" principle of. According to the principle of subsidiarity, in does not belong to the scope of the exclusive rights in , only when the suggested by the behaviour of the target cannot be fully member level at the central level, regional level in China or the local implementation of effect, as suggested by the behaviour of the scale or reasons can better realize the level in the EU, is by the European Union in this range. According to the principle of appropriate, the content and the form are behavior should not exceed the goal must be to the constitution. Through these two principles, we can see, constitutional treaty is not the pursuit of a more concentrated at EU level unified exercise of sovereignty, but is EU institutions to implement access control level of the EU, the EU Member States, regional, local, multi. Secondly, the Constitutional Treaty of the EU specific authorization according to the EU's action is divided into three types, namely "exclusive rights", "sharing authority" and "support, coordination or complementary powers", this provision of dual system according to the "target" and "events" simplification of the original treaty standard classification, root and broke the three pillar structure will belong to the second, the third pillars of foreign and security policy and the fight against crime, the police and judicial cooperation in. Specifically, the EU has "exclusive rights" in the field of , only the European Union can legislation and through legally binding act, members only when the EU on the authorization for the implementation of the act and the legislation or. The specific matters in the field with the current treaty system compared to no change, mainly relates to the operation of the internal market: necessary competition rules, have adopted the euro currency policy, common commercial policy, customs union and common fisheries policy of marine biological resources protection. For these policies, legislation for the implementation of the EU authority or influence within the EU must, also has exclusive rights to conclude an international. ⑤ with "matters share permissions" for the EU, EU and member states have the right of legislation or through the bill, but members only in the EU does not or decide to stop legislation or through the bill                                               
The "future of Europe -- the Laeken declaration".
The establishment of the European Constitutional Treaty "" I - 11, I - 60, IV - 444.
The establishment of the European Constitutional Treaty "" I - 11.
The establishment of the European Constitutional Treaty "" I - 12.
The establishment of the European Constitutional Treaty "" I - 13.
Can legislation or through the act of. The European Union and the member states in the most matters "power sharing", the constitutional treaty will also some formerly "additional permissions" EU range of matters into the field, the EU now has "share permissions" items include: internal market, area of freedom, security and justice, agriculture and fisheries, transport policy, trans European networks, energy, social policy, economy, society, environment and area closely, consumer protection, involving the public health affairs common security, scientific research, technical development and space, development cooperation and humanitarian assistance, economic and employment, the common foreign and security policy and social policy. Notable is, constitutional treaty although the common foreign and security policy are also included in the European Union and the member nation "power sharing", and made a lot of strengthening coordination rules, such as foreign affairs minister established European, European arms mechanism, strengthen cooperation, but also formulate relevant policy in this area are all members vote unanimously. II. That is to say, members still retained the final decision. Therefore, the constitutional treaty in this involves the core power issues also have no substantial breakthrough. For the EU only "support, coordination or additional permissions" matters, EU legislation does not constitute a force of members. These areas are also matters of no change, mainly including: between members of administrative cooperation, human health, industry, culture, tourism, education, youth, sports and occupation training, civil protection. Among them, in particular, youth education and problems in the constitutional treaty is still not to the European Union the political space. It seems, Member States still want to keep the national characteristics of the education, EU body to become a self-supporting necessary social foundation and premise -- - a European sense of the public also need longer. Generally speaking, new classification authority did not in the nature of EU enlargement. Once again, in addition to the specific authorization, the Constitution also provides an "elastic clause", allow EU in some cases beyond the authorized limit and take action, treaty to implement the constitution. The terms of the Treaty establishing the European Community "and" 308th of the content is the same, just apply market range from common policy of expanding to the European Union in addition to human rights issues other than. People use the terms as "a potentially long arm license", believes that the provision may make the EU "international conference to avoid government" and the constitutional treaty. [3] the author does not agree with this view. First of all, from making "elastic clause" substantive requirements, its role only in order to realize the constitutional treaty existing concrete and compensate for the likely target. Because, "the elasticity clause" must be "one goal" for the realization of the provisions of the constitution, "part of the constitution of the third provisions of the policy framework", and "if not specified in the constitution of a class member country's laws and regulations are harmonized, so pursuant to this clause and shall not these laws and regulations". Secondly, from the development of "elastic clause" program requirements, members can vote. The formulation of the "elastic" clauses must are made by the European Commission proposal and to seek the views of member of Parliament, if parliament that the proposal violates "the auxiliary principle" can raise objections, then, the proposal must also obtain the European Parliament agree, finally must pass by the Council of ministers in accordance with the "unanimously" in principle, every member has the opportunity to object to the proposal. In short, the provision is intended to compensate for the missing policy, but will not become an uncontrollable "long arm".
In summary, the constitutional treaty despite the "constitution", but still remain in the nature of a "treaty", the authority even the EU has not substantive changes and emphasis on the implementation of the rights. As the Constitution Treaty pointed out, the EU will respect members, including regional and local government in the country, the basic structure of natural, political, institutional characteristics, and will respect their critical state. ④
Two, the EU's decision-making mechanism
Although the EU mandate did not substantially change, but in the authorization scope can be said that the EU has supranational                                                 
The "Treaty establishing a constitution for Europe" I - 12.
The establishment of the European Constitutional Treaty "" I - 41.
The establishment of the European Constitutional Treaty "" I - 12.
The establishment of the European Constitutional Treaty "" I - 5.

Decision, and members will no longer enjoy sovereign? Therefore, mechanisms necessary for the decision of the constitutional treaty designed its "exclusive rights" or "share rights" of the EU in the field of research, section of the legislative procedure as an example. In the present treaty system, the approval of new European Union law there are three main procedures: negotiation procedures, voting and common. These procedures are required by the European Commission proposed legislation, whether by the EU Council of ministers and the European Parliament decided to pass, the main difference between them lies in the the European Parliament and of the Council of ministers negotiation. Generally speaking, according to the negotiation procedures and voting procedures, Parliament only put forward its opinion; according to the co decision procedure, the real Parliament and council. The European Commission must choose to follow the procedure in which proposed a new law, in principle, select the program depends on the proposal of the "basic law",
It terms to which the treaty based. The constitutional treaty was simplified to these procedures, will be "determined" program was necessary after the expansion is retained, and renamed the "ordinary legislative procedure"; and the need to "negotiation" and "voting" program of legislative matters unified to "according to" special legislative procedure. According to the ordinary legislative procedure to complete the European Parliament and Council of Ministers respectively to the majority and "specific most" by ; according to special procedures to complete the legislation that the Council of Ministers must "unanimously". The Council of Ministers is composed of representatives of the interests of all Member States government minister , therefore, these two kinds of decision-making difference is fundamental, namely whether a member state can auto complete. The constitutional treaty has exclusive authority or power sharing issues will apply the ordinary procedure of a majority of EU legislation. At this time, each member shall submit to the collective decision, reflects the integration of the EU has higher. Many people believe that the effective functioning of the EU is the mechanism of benefit from the collective decision, makes any member country can not block the EU council. According to the regulations of the constitutional treaty, the ordinary procedure for the Council of Ministers "specific most" is not very strict, generally speaking, may include
Case: not less than 15 and at least 55% of the total number of members on behalf of the EU, and more than 65% of the population; or a few opposition shall contain not less than 4 members, or is deemed to have reached a specific. 1. Notably, allocation of votes in the Council of Ministers of the original "qualified majority" voting system is conducive to the population, and the new "qualified majority" voting system appear to be more favorable. Compared with the ordinary procedure, the Constitution requires the legislative matters according to the "special program", means that even if the EU has "exclusive rights" or "power sharing" is in the field, members still have finally rejected the EU legislation. According to the constitution, such matters are sensitive to touch the core interests of member states. For example: citizenship; tax arrangement; labor protection; civil and criminal judicial cooperation concerning foreign affairs.
In the simplified and adjusting the legislative process at the same time, the Constitution also stressed that the world legislative supervision procedures in the European Union, provisions on legislative procedures shall be in accordance with the "auxiliary". In order to make sure that the items that do not belong to the exclusive rights, should as far as possible by the Member States, regional or local legislation, constitutional treaty EU legislation for all trends, parliament members shall have the right to learn and have the right to oppose them, 2 as a violation of the "raw". The if the opposition did not play the desired effect, members of the group can request to reconsider, and any country can be sued in the European Court of justice to oppose the legislation. The design of the this program can play each member of Parliament for the supervisory role of the EU legislation, so as to restrain the legislative eu.
In summary, the constitutional treaty to continue a certain mechanism existing treaty system of collective decision, on the other hand, strengthened the control of EU legislation. In order to improve the EU's "democratic", Constitutional Treaty on European Parliament and member of Parliament, and many in the country involved characteristics still decision will be final right to members.
Three, the effectiveness of EU law
The constitutional treaty, despite the "constitution", but still remain in the nature of a "treaty", therefore, the effectiveness of European Union Law                                                 
The "Treaty establishing a constitution for Europe" I - 25.
Protocol on the role of countries members of Parliament within the European Union. "".
Protocol relating to the application of auxiliary and equilibrium principle. "".
④ "on the application of auxiliary and equilibrium principle Protocol" and "establishing the European Constitution Treaty" III - 365.

The relationship is still the problem of domestic and international law. The need to discuss the issue from two angles of the constitutional treaty and domestic law of the member for consideration.
First, to further clarify the EU law, constitutional treaty introduced two principles developed in the decisions of the European Court -- the "first principles" and "the principle of direct effect". The provisions of the treaty, constitution and the EU institutions in the implementation of the rights granted by law should be legal than members. The European law and some European regulations are directly applicable to members. The but at the same time, the EU constitutional treaty on the types of legal documents for "first principle" to a strict limit, only the European law and European frame method can be called "law", European regulations, decisions, recommendations and opinions and other legal documents do not belong to the "first principles" means the. ③ and, as the European framework method does not have direct applicability, members only "to achieve its goal", and have complete freedom to choose the implementation method, and also make it a priority to also. So, truly has the priority is the Constitution itself and europe. In addition, it should be noted that, the constitutional treaty does not provide for the EU law prior to the member of the constitution, that is to say, the highest by preserving their constitutional status, Member States still retained the compliance with EU law.
Secondly, from the member's perspective, all the Constitution for the status of international law are not the same, therefore, theoretically speaking, the EU law has priority and directly home is not in the member states apply. In the UK, law even with the requirements of international law conflict, the court is binding for British forces. In Germany, all provisions of political relations or relating to federal legislation matters of the treaty should be the federal law. In Italy, treaty in Italy domestic effect must have the Treaty of Italy into the law or administrative. In Austria, the treaty if nature performed automatically, law directly from Austria. In France, where the official approved and promulgated by the treaty, even conflict with domestic law, also has legal effect. In Holland, the treaty is better than that of the constitution. [4] ( P204 - 208) generally speaking, in Austria, France, Holland, recognizing the validity of EU law has priority status and directly applicable, Italy but in the UK, Germany and.
Of course, from the point of view, effect, still need to maintain their legal documents for this purpose, the constitutional treaty reaffirms the relief the final method, namely "suspension of membership". The constitutional treaty, summit according to a strict procedural requirements, can be considered a member country "serious, sustained a violation of the EU's". The Council of Ministers may suspend certain rights of the illegal members under the constitution, included in the Council of ministers vote. The illegal members still need to "continue to fulfill its obligations under the constitution. The suspended right is the countermeasure treaty Shouyuefang typically taken for breach of contract. This measure is based on: the defaulting country with sovereignty and because there is no higher than the sovereign power of the central government, in other countries is not enforceable. Therefore, the constitutional treaty recognized members is the European Union organization within the sovereign entities, the core power is not controlled by a centralized.
Four, the conclusion and the enlightenment
To sum up, the Constitution did not weaken the sovereignty of member states. Perhaps, for the relatively small population of Holland, the decision new mechanism may make it exist "weaken the voting rights" and "power holding run" worry, but for France, worried about the loss of sovereignty is. The other reason for France and Holland rejected the constitutional treaty, I feel this veto does not seem to constitutional treaty itself, but expressed a wish to protect its own interests desire further European and expanding and deepening of integration. Someone will this emotion called "new nationalism". From the beginning of nineteenth Century against Napoleon by force, unified Europe, European countries will in uniting the country from foreign invaders in the struggle to hold the banner of national feelings, thus sowing nationalism. However, even during the war, the national idea                                             
The "Treaty establishing a constitution for Europe" I - 6.
The establishment of the European Constitutional Treaty "" I - 33.
The establishment of the European Constitutional Treaty "" I - 33.
The establishment of the European Constitutional Treaty "" I - 33.
The establishment of the European Constitutional Treaty "" I - 59.

Strong ownership still make people have a sense of belonging to your own country. [5] (P467 - 559) after the war, through the reflection on war painful lessons, Europeans aware of each other in common, it than on nationalism, but also includes the values of democracy and human rights, democracy based on the people achieve Europe against and give up national base began in the hope of. Under the influence of these thoughts, Europe embarked on the path of integration. However, national sentiment is still European construction. As mentioned above, the Constitution did not enhance the degree of integration in Europe, EU member states the EU mandate, the European Union legislation decision-making mechanism, the EU law aspects of well-designed and retain the key countries. Visible, they still want to maintain their ethnic. In general, the constitutional treaty symbolic significance than its significance in the legal norm. Nevertheless, constitutional treaty or by France and Holland. But this veto in nature are dissatisfied with their economic status, anti integration deepened the country's employment and tax revenue caused by the adverse effects, itself does not know the content of the constitutional treaty. Then the constitutional treaty finally fate? Interests nationalism and Europe between the whole game always is to solve key problems within europe. However, regardless of the outcome, the EU itself is a very great achievement, as regional integration initiatives, have begun to areas other world learning paradigm; and constitutional treaty as the development of human civilization is also a synthesizer. This model is particularly suitable for those trying to cause conflict in the liberation war from ingrained, often, and cooperation to improve the behavior you want by ability, but does not want to sacrifice tradition, characteristics and preferences. For seeking the establishment of multi-level regional integrated China, the distribution of power in the Constitutional Treaty of the EU design of its members is very useful.
Reference.
[1] The Associated Press analysis rejected the European Constitution: fear the loss of sovereignty and social welfare. Http: / /news. anhuinews. com / system /2005 /05 /30 /
1272527 shtml; report: Holland refused to seven reasons EU constitutional treaty. Http: / /news. anhuinews. com / system /2005 /
06 /02 /001275577. shtml
[2] Dieter Graeme. Our era's greatest creation [J] China Journal Net
[3] Peter Ludlow, The Thessaloniki European Council Euro Comment Briefing [J] Note No. 2.3, at 28 (July 3,
2003.
[4] Wang Tieya. International law [M. Beijing: Peking University press, 1998
[5] Deniz Gajall. The history of Europe [M. Haikou: Hainan press, 2002
Editor: He Zhipeng
Power Alloca tion between EU andMember States
Form the Perspective of Constitution Treaty
XU Shan2shan
(Law School, Fudan University, Shanghai, 200433)
Abstract: In order to understand the power allocation system enacted in the Constitution Treaty, this
Article analyzed the treaty form three perspectives: the scope of authorization, the decision making
P rocess and the effectiveness of EU law. Apparently, the constitution treaty admit the sovereignty of each
Member state of EU and doesn 't go further on the road of integration of Europe, though it confers a lot of
Power to EU. Undoubtedly, EU, taking account of the integration of EU and the diversity of nations, is
One of the most important and unp recedented innovations of human being
Key words: P rincip le of conferral; special p rocedure; P rincip le of P rimacy; Nationalism