The prospect of multiple referenda on the European Union Constitution has dramatically altered the betting on ratification. Both europhiles and eurocrats shudder at the prospect that rejection in several member states, particularly in a large one, might kill the project, leaving the Union to muddle through with the Nice Treaty. On the other hand, if the protagonists are patient, the winds of democracy could lead to a stronger constitution, free of the risks of economic and judicial nightmare that some aspects of the present draft entail.
The EU urgently needs to democratize its procedures and reorganize its institutions to ensure that this year's enlargement does not lead to bureaucratic deadlock. The draft Constitution provides acceptable answers to many questions of governance. But the elevation of the Social Chapter, previously a list of good intentions, to the status of fundamental constitutional rights, threatens to encumber workers and businesses in the member states with burdensome judicial proceedings and expensive social entitlements written by judges in Luxembourg whose last word is beyond appeal.
The inclusion in Part II of the draft on "social rights" - such as the right not to be unjustly dismissed, or the right to receive old-age pensions, unemployment compensation, and health benefits (regardless of cost) - is in no way necessary to the functioning of the whole. These social protections are laudable, but all have a cost.
The very term "social right" is a misnomer. If something is a "right," then cost is not an issue. For instance, no economic cost is too great for the defense of freedom of speech. The desirability of generous public pensions, on the other hand, cannot be dissociated from their cost to taxpayers.
Social protections should be framed in laws enacted by democratically elected legislators, who are well placed to weigh the costs and benefits for their constituents. The most ardent advocate of expanded health care rights should agree that the forum for that advocacy is the Parliament, not the European Court of Justice. These protections have no place in a constitution, particularly one that cannot be easily amended.
The fact that certain "social rights" have made their way into some national constitutions on the Continent is no reason to impose them, as the present draft does, on the entire Union. It is noteworthy that in the Scandinavian countries, which enjoy some of the most progressive social protections in Europe, these benefits are provided by statutory laws enacted by legislatures rather than by courts enacting constitutional "rights." They are the social dividend, allocated by national parliaments, of real economic growth.
Supporters of the European Constitution in France, on both the left and the right, shrug and say that including the Social Chapter in the draft is a compromise. The "social rights" in Part II are seen as compensating voters on the left for, say, enshrining "competition" as a fundamental objective of the Union in Part I. But neither provision belongs in the Constitution. Natural monopolies are sometimes economically desirable, and it is legislators, not judges, who should decide whether and when they are to be permitted.
For a decade, Britain stood almost alone against expanding the Social Chapter. In the constitutional convention, the Blair government accepted the inclusion of its provisions in the body of the text, but insisted on language limiting their reach.
The trouble is that the British safeguards do not work. Article II-52 states that the Fundamental Rights in the Constitution (including its 12 "social rights") apply only to the actions of the Union, and of member states when they are implementing Union decisions . But as Europe integrates, these decisions will become pervasive. If EU environmental directives, for instance, call for the closure of a heavily polluting plant in Britain, the Constitution would give labor unions the right to judicial appeals against the resulting redundancies.
Fortunately, this fault line in the British safeguards can be corrected without jeopardizing the document. The simplest solution is to remove the Fundamental Rights of Part II from the body of the text, and give them the status the Social Chapter had in the Treaty of Amsterdam: a declaration of intentions appended to the Treaty. All traditional individual rights are already covered in the Declaration of Human Rights, which will continue to be enforced by the court in Strasbourg.
"Social rights" should not become mandates for judges; they should remain a guide to legislators. If a political compromise is needed, "competition" should be removed as a fundamental Union objective. Free movement of goods, services, labor, and capital certainly suffices.
If this preferred solution proves unacceptable, an alternative would be to strengthen Article II-52, to state clearly that the twelve "social rights" of Part II apply to the Union, but not to the member states, even when these are implementing Union directives. If the Union decides, as it could, that all member states must provide public health care for all unemployed persons, it would be up to national parliaments, not 25 judges in Luxembourg, to determine how to address that objective. This would take some of the teeth out of the Union's social directives, and would give real substance to the principle of subsidiarity.
By excising from the draft Constitution the prospect of a welfare state run by judges, its framers will increase the chances that Britain and other doubters will, in the end, ratify the final product.