The Convention on the Future of Europe was established in December 2001, composed of representatives of the European Parliament, the European Commission, national governments and parliament, with representatives of the European employers and trade unions being associated as observers. Representatives of the then 10 accession countries were full members of the Convention although the last enlargement of the EU was only formally concluded on the 1 May 2004. The Convention was presided by Valéry Giscard d’Estaing, former President of France. The Convention undertook the marathon task of reviewing the current maze of different Treaties in a period of roughly 17 months. The draft Constitution was submitted to the European Council Meeting in Thessaloniki on 20 June 2003.There was failure to agree it at the European Summit in December 2003 but on 18 June 2004, the Heads of Government and State finally came to an agreement on the first Constitution the European Union ever had. The Constitution will enter into to force when all Member States have ratified it. They have two years in which to complete this process.

‘The Draft European Union Constitution Treaty - what’s in it for the trade union movement?’ This question was raised at the meeting of the EPSU (1) Executive Committee on 23 September last. The discussion on the EU Constitution was not concluded. It will continue. John Monks, ETUC General Secretary, presented the arguments in support of the Constitutional Treaty, as outlined in the ETUC resolution on the subject (2). “The new European Constitution is a clear improvement over the present Treaties which have established the European Community/Union” the ETUC resolution states from the outset. This is also the firm view of the author of this article (3).

Admittedly, it is less ambitious than the ETUC proposals. It is less than EPSU had aspired for in terms of recognition of public services referred to in European jargon as services of general interest. It is also less than the European Convention put forward in its final report. The text contains weaknesses, possibly even risks, in some places the ‘internal market logic’ is all too evident. It is highly irritating, to say the least, that apparently at the behest of the President of the European Central Bank, ‘price stability’ has been inserted into the objectives of the Constitution, possibly in an effort to supersede the concept of a ‘social market economy’. Clearly, the text, which is on the table, does not give full satisfaction to all trade union demands. All that is true. It is for these very reasons that there is also critical discussion on the Constitution within national trade unions. We should respect these critical voices. But this Constitution is the result of a very complex political process. There is currently no alternative and going back to the negotiating table now is not an option.

And at the end of the day, we have to look at the half full glass rather than the half empty one. Political processes are hardly ever about fully-fledged victories. In other words: This European Constitution offers an opportunity to further develop the political, economic and social Union. It is a step forward compared to the now EC / EU Treaties as agreed in Nice in 2000 and hence support is really the only pragmatic and realistic approach for trade unions. This does not mean that discussion and information about the contents of the European Constitution should not continue. On the contrary, this is all the more important as, in at least 9 countries, ratification will be subject to a referendum. It is therefore imperative to assess the Constitutional Treaty from a trade union perspective, especially in the current political context, where there are numerous challenges to the social Europe. The proposed draft services directive (so-called ‘Bolkestein’ directive) is just one example. Still, a rejection of the Constitution would leave the European Union in utter limbo. Former Socialist Member of the European Parliament from Luxembourg, Ben Fayot (4), was cited in Agence Europe of 5 October: “The Constitution is a compromise text”, and it is “the European compromise” which has allowed us to “bypass rampant nationalism as well capitalism à l’américaine”. It allows us to “defend the values of democracy and human rights against fanaticism, blind violence and a blind eye to international law.” That is a fitting summary of the situation.

So what can the Constitutional Treaty provide for trade unions? Let us have a look at some of the details:

 Article I-3 of the Draft Constitution contains many aims, to which we can subscribe. And, at least implicitly, it suggests that public services are necessary if citizens are to enjoy their basic rights. The Union’s objectives encompass the promotion of peace and the well being of its peoples. The Union is committed to work for sustainable development of Europe, based on balanced economic growth and a social market economy. This social market economy has to be highly competitive, aiming at full employment and social progress, with a high level of protection of the environment. The Union engages itself to combat social exclusion and discrimination, to promote social justice and protection, equality between men and women, solidarity between generations and protection of children’s rights. In the wider world, the European Union commits to the sustainable development of the earth, free and fair trade and the eradication of poverty.

 In Article I-47 the European Union explicitly recognises and promotes the role of the social partners at Union level. The European Union “shall facilitate dialogue between the social partners, respecting their autonomy.” The Tripartite Social Summit for Growth and Employment shall contribute to social dialogue. This constitutes a strong commitment and could be exploited.

 Gender equality has become a value of the EU in Article I-2 and as part of the objectives in Article I-3 (see above) commits the EU “to promote equality between men and women”. Part III equally commits the EU to “promote equality between men and women” in all the activities referred to in that part (gender mainstreaming).

 Article I-47 relates to the principle of participatory democracy. It provides amongst others for a citizens’ initiative through which the Commission can be invited to put forward a legal act. Such an initiative needs the support of at least 1 million citizens coming from a significant number of member states. This can potentially be a mobilising tool for European trade union organisations to utilise.

 The EU Charter of Fundamental Rights has been incorporated as part II of the Draft Constitution. It comprises civil, social, economic and trade union rights. The Charter establishes a minimum level but not necessarily the lowest possible denominator. A lot of last minute haggling instigated by the UK Government took place around the legal status of the Charter. There were attempts to weaken the legal character of the Charter by giving undue weight to the explanations of the Presidium of the Convention. These explanations were stated to have no legal value and intended to clarify the provisions of the Charter. Article 52-7 of part II now stipulates that these explanations “shall be given due regard”. But ‘due regard’ means ‘due regard’, not more and not less. It means the interpretation of the rights enshrined in the Charter have to take account of the explanations of the Presidium, it does not mean that the binding nature of the Charter would be put into question, as some governments would wish to insinuate. The President of the European Court of Justice, Vassilios Skouris, who was quoted in the Financial Times of 18 June 2004, said: “I am unable to promise that the Charter would not directly affect individual jurisdictions such as the UK.”

 The following provisions of part II have special significance from a trade union point of view:

Article II-31: provides for a limitation of maximum working hours, this could be very relevant in the topical context of revision of the working time directive, especially regarding individual opt-outs.

Article II-28: provides for the right of collective bargaining and collective action. Bringing a suitable case to the European Court of Justice could test the scope of collective action. The exclusion of German civil servants from the right to strike could be imagined by way of example.
Article II-27: information and consultation of workers or their representatives must be guaranteed in good time. Again, it could be explored whether the exclusion of national administrations from the scope of the information and consultation directive would reflect the spirit of this provision.

 There are areas in the new Constitution with a special interest for public service unions:

The most important change is in Article III-6. It now reads:” Given the place occupied by services of general economic interest as services to which all in the Union attribute value as well as their role in promoting social and territorial cohesion, the Union and the Member States, each within their respective competences and within the scope of application of the Constitution, shall take care that such services operate on the basis of principles and conditions, in particular economic and financial, which enable them to fulfil their missions. European laws shall define these principles and conditions without prejudice to the competence of Member States, in compliance with the Constitution, to provide, to commission and to fund such services.”(5)

Is this a very clear formulation? Unfortunately, it is not. The battle over words has been a particularly tricky one on this article. Ultimately, this is a battle on the general economic and political orientation of the EU as well, namely: the EU as merely a liberalised internal market or the EU as a social market economy aiming for social and territorial cohesion? In comparison with the current Article 16, the EU would now dispose of a base to legislate on public services or services in the public interest other from the exclusive and narrow internal market angle. This provision can be used to make some of the rights contained in part II, the Fundamental Rights Charter, operational, for example the right of access to services of general economic interest., the right of access to preventive health care and medical treatment, the right of access to free placement services, the right to free compulsory education.

This is progress and we can and should exploit this new article to challenge the Commission on their crude liberalisation agenda. It is what ‘business’ is worried about, according to the European Voice of 16 - 22 September. They fear “that under pressure from public service unions, national governments might try to weaken the rules governing state aid.” They are also worried “that the new constitution could damage the EU’s efforts to liberalise markets.”

In conclusion: The new EU Constitutional Treaty has its imperfections. It is not the political panacea to our ongoing political struggles. Once ratified though, it can provide us with a useful political framework. And as is stated in the ETUC resolution: “it needs to be seen as a starting point of a long process, certainly not the end of the story. “