The EU Constitution: acting within limits

Those who want to denigrate the draft EU Constitution often try to give the impression that all decisions will now start to be taken by the EU. Well, the EU Constitution does not say that.

According to the draft EU Constitution, the EU can only act within the limits of the powers given to it by the member states. In other words it can only act in those matters which the member states themselves have decided to exercise together in the Union.

In exercising these powers the EU must respect the principles of subsidiarity and proportionality. The 'subsidiarity' test means that in decisions which do not fall within its competence, the EU will act only insofar as the objectives of the proposed action cannot be sufficiently achieved by the member states - by either their national government or by their regional or local authorities.

The Constitution gives the national parliaments the special task of scrutinising draft EU laws to ensure that they conform to this principle.

As for proportionality, what this means is that the EU's actions shall not exceed what is necessary to achieve the objectives of the Constitution.

The competences which the EU exercises on its own cover five main areas as well as some international agreements. The five areas are the customs union, the establishment of competition rules for the functioning of the internal market, monetary policy, the conservation of marine biological resources and the common commercial policy.

In some 11 areas of policy-making which among others include the management of the internal market, the environment, energy, transport and consumer protection, the EU and the member states share competences, which means that both can legislate and adopt legally binding acts.

In other areas the EU has been given powers to carry out supporting, co-ordinating and complementary actions at the European level. The areas include the protection and improvement of human health, industry, culture, tourism, education, youth, sport, vocational training, civil protection and administrative protection.

Most EU decisions will be adopted by the Council of Ministers, in which each EU member state is represented, together with the European Parliament. The European Commission's role remains that of proposing legislation.

What about the primacy of EU law? The Constitution and law adopted by the institutions of the EU shall have primacy over the law of the member states only in those cases where the competence to make such laws has been entrusted to the EU.

Indeed, the Constitution specifies very clearly that the EU shall respect the equality of the member states before the Constitution, as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government.

It is easy to see, then, that even in those areas in which it is the competence of the EU to decide, in reality it is not the EU which is deciding but the governments of the member states and the European Parliament.