General provisions

-->Section General provisions is a section that usually stands near the beginning of constitution texts and is different from a preamble. The section contains such general informations like a name of the state, its capital, its state symbols, statements about the state's territory, a general character of the state and similarly. These things I consider to be appropriate to mention in this section of the European constitution.

First thing will be a name of the European federal state. What do we want to be the name? There may probably be several possibilities, the most frequented suggestion - I suppose – is the name “The United States of Europe”. As I was able to find, the first one who used this name was French writer and politician Victor Hugo at the International Peace Congress in 1849, so the term has already its history. The present name (The European Union) can also be used and besides other names can be invented; The European Federal Union, The Federal Republic of Europe, The European Federation, The European Commonwealth or The Commonwealth of Europe come into consideration from a pattern of world's federations official names (Switzerland has an unusual name in German language – The “Oathfellowship” what is inapplicable for a European federation). Which of these names is mostly suited for a European federal state? The United States of Europe? The text For a federal pact among Europe's founder member states requires explicitly the newly founded federal state to be called so, also many other authors join this name with a European state. I will write it directly: I consider the present name “The European Union” as fully suitable for future federal state in Europe. Some objections can be raised the name is the name of the present union – but that is more an alliance than a union in fact and the word “union” not corresponds to the present condition, it is rather an optimistic belief in future unity. The main reason why I prefer present name before the United States of Europe is that Europe needs not to “ape” the United States of America. The American federation choose some name in its beginning but there is no reason the European federation must adopt the same name. Must every federation in the world be called “The United States of ...”? It suffices that Mexico has already imitated the USA (“Estados Unidos Mexicanos”, literally “The United Mexican States”), Europe let go along its own way. From the other potential names – The Commonwealth is unusual for Europe, one federation of the world (Australia) holds this name already; besides there is also a problem to translate accurately this term to other languages. Then, we can take into consideration other names, the federal republic and the federal union. I do not like the term “federal republic”, it sounds few as a name for a union, though there is the attribute federal near it. The last question is whether the attribute “federal” should be by the name “union”. If the present alliance should transform in real union, an addition of the word “federal” would seem appropriate. All the same I do not favour it; if some true union of the European states (not only international alliance like the present “union”) arises, its substance will be automatically federal and no extra accentutation will be necessary.

Besides the name of union's form itself, I deliberated how to cite the name in the constitution. It should be mentioned right in the first place of the General provisions. But I did not invent any suitable formulation (“The name of the union is The European Union” sounds not comfortable for me). At last, I found most proper to state the union name already in the Preamble. So I adjusted the text of the previous article about the Preamble and its end reads now:

… adopt this Constitution of the European Union.

If the name of the union is not the first statement of the section General provisions then a statement about democratic substance of the European Union should stand in first place. Also a statement that the European Union is a federation can be placed here. The first article should thus run:
The European Union is a federal democratic state based on the will of the people. The people is the only source of state power.

Next issue that is suitable to be included in the General provisions is the territory of the union. In the Swiss constitution which is one of patterns for the European constitution, the member states of the federation are enumerated. Our second pattern, the USA constitution, contain nothing similar, it is however contained in a constitution of other European federations, first of all in the German and Austrian constitution. I consider it suitable also for the European constitution and I will explain why. I will deal with it only in other place but I write now that the constitution will be able to be changed only by the people's consent, that is by a people vote (a referendum). If member states are enumerated in the constitution it means it is impossible to admit any new state to the union without consent of the people of the union. It will result in two consequences: on one hand, it will not be possible to admit to the union a state what would the people believe about that it would be heterogeneous in the union and would damage the union. The second consequence will be that every enumerated member state will have its existence guaranteed by the constitution of the union. Any attempt to divide any member state or to join it to another would be anti-constitutional if not approved by the people of the union and the federal bodies would be able to intervene. The enumeration of the member states means not that new member states cannot be established by secession of the current ones but it must however occur in democratic way so that people of other member states may be able to agree to it. This is the way that in 1979, the state Jura came away from the state Bern and was admitted to the Swiss federation as a new member state with approval of all Swiss citizens.

The member states should be enumerated in alphabetical order and not by their official names because it would prevent the states from changing it independently. But another problem arises here, that is to say that it can be not known in the process of constitution adoption what states will join to the federation in its beginning and accordingly what of them should be enumerated in the section General provisions. Here, it is difficult to follow any example because the states that have such provision in their constitutions knew in the moment of the constitution's ratification which states they consisted of. How to solve this problem cannot be easily said. Generally, I believe the best way is to draw up the constitution of the European federal state in that way as if the European federation would involve entire Europe just from the beginning, so that the constitution may not to have to be continually changed in accession of new states. The general principle should be that provisions of the constitution will be such ones, so that they may be satisfactory for great all-European federation; necessary amendments for initial smaller federation will be placed in Final and transitional provisions. I consider such method suitable in other cases (such as of the parliament's size) but not in this case. In my opinion, the best solution is that all current member states of the European union will be enumerated in the opening part of the constitution before the ratification and a provision will be added in Final and transitional provisions that after ratification, the legislative body of the union will be authorized to amend the provision on the member states in that way so that it may correspond to reality. Other future changes of this article will be tied only with admission of new member states and they will demand approval by a referendum.

State constitution contain also a provision about a state capital. Such provision is appropriate also for the European constitution, so that it may not happen (as today) that principal state bodies (a parliament, a government, a supreme court) and even their parts are situated in various, from each other distant towns (present condition in the EU). The question what should be the capital of the European federal state can hardly be answered otherwise then Brussels. There is a building of the European parliament there already and looking for another capital would raise only quarrels.

Let us shift to state symbols now. The decision about the European flag is clear in advance – like in the case of the name also in the case of the flag, it is absolutely suitable what the EU has now; it is unnecessary to invent anything else. UPDATE NOTE: I invented a new flag later - see this.

The question about the coat of arms of the federation is more difficult. As far as I know, nobody dealt with this issue so far. Therefore the question is now what to adopt as a coat of arms of the European federation. It can be a new coat of arms, an old no more used today, it is also possible to transfer the motive from the flag in the coat of arms. If a wholy new coat of arms would be created I do not know what sign should be in it. But I believe the best thing is to adopt a coat of arms already used in the past. The coat of arms I have in mind is the one of extincted Holy Roman Empire – the empire itself ceased to exist and nobody took over its coat of arms, it is therefore free to use. In following picture, there is its shape (small coat of arms, that is to say a mere shield):

Why just this coat of arms? The Holy Roman Empire was an indirect ideological heir of ancient Roman Empire and its effort was to unite whole (western) Christian Europe under its name. It succeeded not but theoretically the supreme rule of Roman kings and emperors over the whole (catholic) Europe was been acknowledged by other European monarchs. The Holy Roman Empire can therefore be seen as an attempt of its kind to unite Europe in the middle and early new ages and the objection is not sufficient that it was an imperial project whereas the European federation project is base on voluntary cooperation.

A question on a third usual state symbol, an anthem, is not too difficult. Here, it is the best to take over the present musical symbol of the EU, part of Beethoven's Ode to Joy, but with a modification. The modification consist in adding a text and in labeling the anthemn by a name, following examples of present states anthems. In the federal constitution would be only the name of the anthemn (probably "Joy of brothers") and its exact reading (melody, text) would by determined by a separate constitutional law. My opinion is the text should come out of the original Schiller's poem (Ode to Joy, Ode an die Freude), should not depart of it too much and should be written in a neutral language which is probably only Latin in Europe now. My provisional, temporaly idea (to be adapted) is as follows:

1. Laetitia, tu scintilla,

unitatis filia,

a te gaudemus accensi,

caelestia gaudia.

|: Tua venustas jungit nos

qui fuimus divisi,

Europaei fiunt fratres,

laetitia affecti. :|

2. Cui contigit facere

amico se amicum,

desine solus restare,

delecteris nobiscum!

|: Nunc una anima sumus,

communis Europae grex,

et qui non vult congaudere,

flens maneat devius. :|

Also the “Day of Europe”, May 9^th, in memory to Robert Schuman's speech in Paris in 1951, is considered to be a symbol of Europe. There are not many memorable days in constitutions, maybe it is very exceptional because I found only one example (in Swiss constitution in article 110, there is a provision about August, the 1st as a federal national holiday). Despite of it the Europe Day can be in the European constitution, no problem with it can raise. The best reading of this will be “The national holiday is the Day of Europe, May 9^th, and other days determined by the law.”

Because there are also other state symbols except the mentioned (for example state colours, state seal, presidential flag and so on), it is appropriate to leave their enumeration and form to the legislators.

There is another thing mentioned in some constitutions in their opening parts – a state or official language. But there are many different national languages in Europe and none of them is common for all Europeans and intelligible for all of them; maybe except of English but it is not a neutral language – today, English is a working language, but it is something different. Too many fights would be over this issue, so it is better to omit it in the constitution; moreover, such by a language homogeneous federation like the USA has no provision about the state/official language, Europe also needs not any – it excludes not a chance Europe will agree on a suitable language someday.

In the end, how the section General provisions in my opinion should run (apology for the imperfect heraldic and vexillological terminology in English which I do not know):

1. The European Union is a democratic federal state based on the will of the people. The people is the only source of state power.

2. The European Union is composed of states Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Nederlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, the United Kingdom.
3. The capital of the European Union is the Federal Region of Brussels.
4. (a) The state symbols of the European Union are state coat of arms, state flag, state anthem and other state symbols determined by a law;
(b) the state coat of arms of the European Union is the shield or, on it double-headed eagle displayed sable with nimbuses or over its heads;
(c) the state flag of the European Union is a yellow banner with a red cross in it and a circle of twelve yellow five-pointed stars round the cross' center on a blue circle put under the cross' limbs;
(d) the state anthem of the European Union is the Joy of brothers;
(e) the national holiday of the European Union is the Day of Europe, May 9^th, and other days determined by a law;

(f) the law will provide details of the form and use of the symbols of the Union.

Preamble

Not every state's constitution has a preamble in the beginning. Nothing urges Europe to have any preamble in its federal constitution, but the two greatest patterns for the European federal constitution, the constitution of the United States of America and the constitution of Switzerland, begin with a preamble. A preamble is a solemn introductory statement bringing general ideas of the following text and circumstances of its origin. The preamble of the constitution can be useful in that it clarifies the sense and the objective of the provisions done in the constitution. In other words, the concrete provisions should be seen as an implementation of the preamble and the preamble can thus convey the spirit of the constitution.

So what should the preamble of the European federal constitution involve? Three things in my opinion: why the constitution is given (reasons for the federal arrangement of Europe), who gives the constitution and what its provisions should provide.

Why the constitution is given – these should be reasons why a federation in Europe. In fact, it should be something like a history lesson. So: suggestions for a unification of Europe have been presented for centuries already and they have had many in common – they called for peace in Europe, for the securing of human rights, for the creation of uniform economic area as a means of welfare, against fall of Europe's importance in the world, against supremacy of a foreign power in Europe. These issues should be reflected in the preamble of the federal constitution because all of them had their not small importance in Europe's history. The entire history of Europe is filled by smaller or (in the course of time) grater wars and these armed conflicts were largely the main cause of suggestions how to prevent them by unification of European states. But Europeans did not want hear out the suggestions until they came to two-staged civil war (usually entitled as world wars) which extensively devastated Europe. And also another prediction took place then – Europe was divided and subjected to alien powers (the Soviet union and the United states of America). The power of Europe and its influence in the world was past (in fact, has been, few has changed to now). The division of Europe into separate hostile states led also to the rise of totalitarian and undemocratic, mostly aggressive state regimes, especially in armistice time of the European civil war. Those regimes not only unleashed wars with other states but also demolished lives of their own citizens, committed crimes reminded up to this day that could not be prevented by divided Europe and quarrelled with each other. Next, the hostile division of Europe led not only to a two-phase great war but due to it also to a great demolition of material goods, to a damage of many artistic works and historical relics, to a demolition of industrial capabilities and a fall of the people living standard. Europe even needed an external economic aid to survive (the Marshall plan). So a declaration should be present in the Preamble that Europeans are aware of prior division and of its adverse consequences together with a manifestation of a will to disallow a repetition of history – political and economic.

Who will give the constitution – it will be written by only few, three or four, words in it, in spite of that it can cause a controversy. Should the first words of the constitution sound “we, the people of Europe” or “we, the peoples of Europe” or “we, the states or Europe” or “we, the people and the states of Europe”? Though it can be seen as irrelevant, in fact, it has its importance. The question who brought the European federal constitution and who built up the federal authorities is not unimportant for future legal disputes about the power of the federal bodies (indeed, supreme courts of some states adjudged in some cases according to the constitution preambles). In the case it will be a controversy about an extent of the federal bodies competencies towards the states' competencies, the provision that the people of Europe was who has given itself the federal constitution will have a crucial importance for the federal constitutional institutions – the competencies of the federal bodies are derived from the federal constitution given by the people, not from the power of the member states, so the member states will not be able to restrict or to change the power of the federation. The rise of the federation is due to the will of the European people, not due to the states – it can be claimed if the constitution contain the words “we, the people of Europe”. “We, the states of Europe” is a declaration quite contrary to an intent to establish a strong federation. It suffices to observe how the power of states causes a weak position of the present EU. What about “we, the peoples of Europe”? Thus similar it is written in the preamble of in a comment to my first article in this blog mentioned draft of the European federal constitution (“We, the peoples of the European Union”). But this declaration is in an ideological conflict with a concept of a federal union. If one European federal state should be established, all European peoples act in that case as one people, for the federal state all are its one people. The peoples – that sounds as if the peoples (die Nazionen) only gathered together but not united itself, like in the present EU. Nobody says the diversity of European peoples has to be erased, but an union of Europe cannot be based on the peoples but the people. “We, the peoples establish the Union” is something insane like “we, the citizens of villages and towns establish the state of …” If we look in the constitution of the United states of America, we find there bright “we the people of the United states of America”. On the other hand, after opening the federal constitution of Switzerland, you can read “Das Schweizervolk und die Kantone” (“the Swiss people and the states”). Somebody can hold it suitable to imitate in the whole Europe (“we the European people and (our) states”) but despite of that it is already written in some constitution (of Switzerland) I do not consider it suitable. The words about the states can be seen as a useful measure for a guarantee the (present) states will not be destroyed by the federation. But such fears are quite needless, the federation cannot destroy the existence of its member states, it depends only on their peoples and it is even contradictory to the principles of federalism. The states may be (beside the people) mentioned in the Swiss constitution but Switzerland is something else than the whole Europe; because in Europe the states were the main cause of wars and inhuman crimes, it is not proper to name the states in European federal constitution. - although the federation should not destroy the states, it should struggle to overcome division of Europe in states.

What the constitution should provide result from the first: why constitution is given. So the things are providing peace and democracy, safeguarding the independence of Europe, setting Europe again an example for the world, promoting the common welfare, preserving cultural and national diversity. These are the general objectives, the other ones which can be conceived are involved in the previous ones such as a struggle for intact environment (common welfare). In my opinion, the one more thing should be mentioned in the preamble – perpetuity of the union. The union will provide neither peace nor democracy nor the common welfare nor the other named matters if it could disintegrate any time. But I will comment more this thing in other place later in an article dedicated to general provisions.

Yet another thing I can refer to – a religion. Almost everyone knows the European Convention disputed about that the Christianity heritage should be mentioned in the preamble of a (so called) European constitution. But what for? Today, the Christianity is a private thing of every person and none and nothing will take it out from it, the European federal constitution being no exception. It may be admitted that the God appears in the Swiss constitution in the words “im Namen Gottes des Allmächtigen!” (“in the name of Almighty God!”). So, the Swiss people is strongly religious. But so do (and always did) the people of the United states of America and look at the preamble of their constitution – the religion is absolutely absent. While the Americans was already at that time religious we must suppose that the absenting religion in the constitution's preamble is an expression of a fact the religion cannot be commingled with politics. And we in Europe should do the same.

I should summarize in the end, so I express my notion about a shape of the preamble. Here it is:

We, the people of Europe,

conscious of prior division and dissensions sequent on it;
conscious of prior tyrannies which brought about the worst suffering and destruction in history;
striving therefore for a permanent union
that will ensure peace, democracy, mutual solidarity,
that will ensure liberty for its people,
that will promote the common welfare through social justice,
that will preserve its diversity,
that will preserve natural environment,

adopt this Constitution of the European Union.

Adoption of the constitution

The adoption of the constitution is the only matter discussed here that will not be explicitly written in the constitution. But it means not it is less important. The main thing that cannot be passed and that has to sound first is: the constitution has to be approved by the people in a direct vote, a plebiscite. A meaning of this is double: The first is the question of democracy - the constitution is a thing which will regulate the life of the society and therefore it is very important thing that cannot be adopted without people; not in vain it is usually written in constitutions something like "the people is the source of all power". The second meaning of the direct vote is that the people will identify itself with the European federation much more if it adopt the constitution itself than if the constitution is adopted by some politicians distant of the people (like in present EU).

But this is the easier matter to be solved. There is more difficult question here, namely who will prepare a proposal of the constitution and what people will have an occasion to vote about it. I begin with the second one - the people of only selected European states should decide on it through the popular vote or the whole people of all EU member states should do it? I am inclined to the possibility that the plebiscite about the federal constitution should be open to the people of all current member states so that no European nation could not say it was neglected from the very beginning. The principle let be: the European federation will be established in (only) that states of Europe whose people will approve its constitution in a plebiscite. This seems to be simple; but there is one great problem with that - if the vote about the constitution should be open to the people of all present EU member states, the adoption-of-the-constitution process should be also open for them. However I doubt it is possible establish some sort of constituent assembly representing by own elected delegates all EU member states and adopt a true federal constitution in it. Antifederal movement (though maybe unorganized) is not strongest but exists and in the moment the election to the constituent assembly is proclaimed, many of these antifederalists will be sure elected - in the case the assembly would something like the former European Convention. (I do not mention a possibility of an assembly established by the national governments and their representatives - they do not want European federation at all, maybe apart from the German or Be-Ne-Lux governments.)

The precedent we have at hand - the Convention on the Future of Europe held 2002-2003. This Convention was composed first of all by delegates of the national parliaments and governments (beside the delegates of the EU Commission and the European Parliament) - despite the fact that the European federation seemed a matter of close future to some people at that time, the members of the Convention managed to do nothing more than to prepare a summary of then valid intergovernmental treaties, that is a new intergovernmental treaty. The adopted treaty (proposal) had nothing to do with a constitution (let alone federal) and its name "Treaty establishing a Constitution for Europe" is an exhibition of impudence. So let us establish new constituent assembly open to everybody and I fear we will come to something similar. The assembly that should adopt a federal constitution has to consist of representatives of people elected directly by it. I do not know however a way how to prohibit antifederalists and so called Eurosceptics to be elected to it. I bet you they would be elected if such an assembly is proposed.

Afterwards, there are also other ways. As you can read at http://www.euraction.org/lett/readen.htm (and not only there), in the present European union there are six states which have advanced more far than other European states in their integration and which are highly homogeneous, closely interdependent economically and socially, and in which (what is very important for our matter) the European idea is strongly rooted in public opinion. These six states are a core of the EU and can be a core of the newly constituted European federation; these are Belgium, France, Germany, Italy, Luxembourg and the United Kingdom (no, I am only joking, naturally the Netherlands). As the politicians (though not all) of these countries are close in the idea of the European federation and as most suggestions on European integration came just from this area, it is possible to elect the constituent assembly only in these six states and the constitution proposal to submit to the popular vote (plebiscite) also only in these six states. The success of the adoption of the constitution and by it of the establish European federation is in such case much more likely. But I do not know how to justify that only this states would proceed separately from the others. Naturally every European state (I mean its people by these words) can accede to this initially only by six states established federation in future and this has to be known to all Europe already in the moment of the proclaiming the constituent assembly and the vote to it, but the assembly cannot be established without a compliance of the governments of appropriate countries. For how to organize a vote to an assembly in any state without the will of its government? Can the vote be organized as a popular activity without an intervention of the state government? I doubt any European government would watch inactively the people would hold some activity without it (the government) that would heavily influence the future of the state it govern. So it has to be banked on that the constituent assembly cannot be established and work without the compliance of the governments of that states where the representatives to the assembly will be elected. But you know the way things are in the present EU - six governments will declare its will to permit the establishing the constituent assembly, next European Council (the summit of all EU member governments) will convene and other "non core" governments will want either to join to the assembly (in their state the citizens also would vote to it) or to defeat it as a danger (for the whole EU, for them, for the citizens and their freedoms, for the European nations and their identities or anything similar they will make up) or as a technically unrealisable thing or they will state it will not be yet time to realize it. Maybe I am a great pessimist but I am not able to imagine six national governments will declare they really will let convene a constituent assembly, adopt the federal constitution by it, let their citizens to vote about it, let their states accede to newly established federation, and the other national governments will only watch and say "we will let you act as you want and will only observe if you succeed". I believe there is another way besides how to obtain the federal constitution - to miss out the stage of the constituent assembly, to prepare the text of the constitution in the federalist circles throughout Europe and the governments only ask for the organizing the popular vote (plebiscite) about it. Thus the danger could be bypassed the antifederalist members of the constituent assembly would prevent the adoption of a federal constitution or they would like to adopt a constitution not truly federal but something like international treaty such as was the case of current Treaty establishing a Constitution for Europe. Despite of that the people of the European (EU) states will in every case vote about the federal constitution however way its proposal will be adopted, I am not sure this way is enough democratic. The main objective is the successful adoption of the federal constitution and establishing the European federation and there is the question how much the end can justify the means. What is your opinion to the possibilities?

Introduction to this blog

What means this blog? It is clear from its title that it is something about federalism in Europe. But if you look around, you find there are many webpages and blogs dedicated to this phenomenon on the Internet. This blog wants not bring other convincing of that the people(s) of Europe need a federal union for its (their) future. Its conviction (my conviction actually :-) ) is the current way of the European integration goes to the dead end or it cannot bring any progress in future. The better solution for Europe than current intergovernmental treaties is a true federation. But what federation? Do we require the concrete federation, the federation with the concrete features, or simply any federation? This blog wants give a place to discussions about the shape of the constitution of the federal European state. Something like a forum - that is what I want it to be. So your comments are very welcome. Somebody can object the concrete form of the constitution will be the business of a constituent assembly elected by the people (I am to write next article about it). Certainly, the final form will (probably) come from it but it is not necessary to let everything for the assembly. I do not need - I hope - explain the European federation has to arise from below, from the people. So why just we, the people, should not express themselves to that matter? Maybe only some vague draft of a constitution will come under the sunrays here, maybe even precisely formulated proposal. In every case it can have its reason: the suggestions expressed or formulated by me and you here need not be seen to be a definitive text which has to be adopted in unchanged form. But it can use as an object of wider popular discussion about the shape of construction of the European federation. I don't know if some similar suggestion that can be popularly discussed about already exists, at the least I did not find any. (I am adding that I do not consider the draft of so called Treaty establishing a Constitution for Europe to be a federal constitution, even a constitution at all.) The already (i. e. in future) existing suggestion can also serve as a reference point which the candidates to the constituent assembly can take up their points of view to.

In this blog I plan to publish my opinions to different things belonging to the sections Adoption and change, Preamble and general provisions, Competencies, Legislative power, Executive power, Judical power, Rights of people, Final and transitional provisions (not necessary in this sequence). Do not expect new articles (posts) too often. I have to do also other things except writing articles here, besides the theme requires a consideration, I cannot every day sit and compose something (to fill the place here). But if you comment my suggestions or add your own ones, it will not be dead here. You can post your comments except in English also in German or French, but in the case of the last one use rather a simple language please so that I understand it. It may happen that your eventual comment would be too extensive and it would be better to publish it like a stand-alone article. In that case send your text to my e-mail address (see the profile), I will read it and (in absence of obstacles) publish it. So it's all for the present and see you by next articles.