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Treaty establishing a Constitution for Europe
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The Treaty establishing a Constitution for Europe (TCE), commonly referred to as the European Constitution, was an international treaty intended to create a constitution for the European Union. It would have replaced the existing Treaties of the European Union with a single text, given limited legal force to the Charter of Fundamental Rights (which was incorporated into the Constitution), and expanded Qualified Majority Voting into policy areas which had previously been decided by unanimity among member states.
It was signed in 2004 by representatives of the then 25 member states of the European Union and needed to be ratified by all member states to enter into force.
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The Treaty establishing a Constitution for Europe (TCE), commonly referred to as the European Constitution, was an international treaty intended to create a constitution for the European Union. It would have replaced the existing Treaties of the European Union with a single text, given limited legal force to the Charter of Fundamental Rights (which was incorporated into the Constitution), and expanded Qualified Majority Voting into policy areas which had previously been decided by unanimity among member states.
It was signed in 2004 by representatives of the then 25 member states of the European Union and needed to be ratified by all member states to enter into force. 13 member states completed the ratification procedure, but the rejection of the Constitution by French and Dutch voters in May and June 2005, called the future of the Constitution into question. In light of these developments three member states, Finland, Germany and Slovakia, abandoned their partially complete ratification procedures and a further seven member states indefinitely postponed consideration.
Following the period of reflection, the European Council meeting in June 2007 decided to start negotiations on a Reform Treaty as a replacement.
History
Drafting
The drafting for European Constitution began in a call for a new debate on the future of Europe at the Laeken European Council in December 2001. A European Convention was founded shortly afterwards which was chaired by former French President Valéry Giscard d'Estaing. Giscard d'Estaing proposed to draft a "European Constitution" and told the convention members that their countrymen would one day "build statues of you on horseback in the villages you all come from", a comment which provoked widespread derision, particularly when the unpopularity of the draft in Giscard's own country became clear. The "Draft Treaty establishing a Constitution for Europe" was published in July 2003.
In the meanwhile Romano Prodi, the President of the European Commission backed a draft text, called Penelope Project, which contained a deeper integration of the countries and a more clear institutional model.
After protracted negotiations in the Intergovernmental Conference (IGC) during Italian presidency, disputes arose over the proposed framework for qualified majority voting: the final text of the TCE was settled in June 2004 under the Irish presidency.
Signing and ratification
The Treaty establishing a Constitution for Europe was signed in Rome on 29 October 2004 by 53 senior political figures from the 25 member states of the European Union. In most cases heads of state designated plenipotentiaries to sign the treaty, but some presidents also signed on behalf of states which were republics. Most designated plenipotentiaries were prime ministers and foreign ministers.
On 12 January 2005 the European Parliament voted a legally non-binding resolution in support of the Constitution by 500 votes in favour to 137 votes against, with 40 abstentions.
Before a EU treaty can enter into force, it must be ratified by all member states. Ratification takes different forms in each country, depending on its traditions, constitutional arrangements and political processes. Most member states traditionally ratify EU treaties following parliamentary votes, while some — notably Ireland and Denmark — also hold referendums. As a reaction to what was seen as the novel nature of the Constitution, many advocates and opponents of the Constitution argued that it should be subjected to Referendums across the European Union.
On 20 April 2004 then British Prime Minister Tony Blair unexpectedly promised a referendum, a proposal which he had previously rejected. A further seven member states announed or had already announced that they would hold referendums on the Constitution. These being Denmark, France, Ireland, Luxembourg, the Netherlands, Spain and Portugal.
Spain was the first country to hold a referendum on the Constitution. The referendum approved the Constitution by 76% of the votes, although participation was only around 43%.
On 29 May 2005 the French public rejected the Constitution by margin of 55% to 45% on a turn out of 69%. And just three days later the Dutch rejected the constitution by a margin of 61% to 39% on a turnout of 62% to 38% on a turnout of 63%.
Notwithstanding the rejection in France and the Netherlands, Luxembourg held a referendum on 10 July 2005 approving the Constitution by 57% to 43%. It was the last referendum to be held on the Constitution as all of the other member states that has proposed to hold referendums cancelled them.
Post-rejection
After the French and Dutch referendum results European leaders decided to hold a "period of reflection" on what to do next. As part of this reflection period a "group of wise men" was set up to consider possible courses of action.
On 4 June 2007, this group, known as the Amato Group, presented its report. They proposed to establish a new Inter-Governmental Conference with a view to writing a new treaty which would rewrite the Treaty on European Union, amend the Treaty establishing the European Community and give the Charter of Fundamental Rights of the European Union a legally binding status. The new treaty would be based on the first and fourth parts of the Constitution, the rest of the Constitutions changes being achieved through amendments to the Treaty of Rome.
In the June 2007 European summit meeting, Member States agreed to abandon the constitution and to amend the existing treaties, which would remain in force. They also agreed a detailed mandate for a new intergovernmental conference to negotiate a new treaty containing such amendments to the existing treaties (primarily the Treaty of Rome and the Treaty of Maastricht). These negotiations were completed by the end of the year, the new treaty which had previously been referred to as the Reform Treaty become the Lisbon Treaty on its signing in Lisbon on 13 December 2007.
National processes at a glance
Content
Institutional structure
Under the TCE, the Council of the European Union would have been formally renamed the "Council of Ministers", which is already its informal title. The "General Affairs Council" would have been formally split from the "Foreign Affairs Council", which had informally held meetings separately since June 2002.
The TCE included a flag, an anthem and a motto, which had previously not had treaty recognition, although none of them are new.
Conferral, subsidiarity, proportionality
The TCE would have reiterated several key principles of how the Union functions:
- the principle of conferral: that all EU competences are conferred on it voluntarily by member states;
- the principle of subsidiarity: that governmental decisions should be taken at the lowest level possible while still remaining effective;
- the principle of proportionality: that the EU may only act to exactly the extent that is needed to achieve its objectives;
- the primacy of EU law: in areas where member states have made legally binding agreements at EU level, they may not then pass national laws incompatible with those EU laws.
The TCE would have specified that the EU is a union of member states, and that all its competences (areas of responsibility) are voluntarily conferred on it by its member states according to the principle of conferral. The EU would have no competences by right, and thus any areas of policy not explicitly specified in the Constitution would have remained the domain of the sovereign member states (notwithstanding the ‘flexibility clause' – see below).
According to the TCE, the EU may act (i.e. make laws) only where its member states agree unanimously that actions by individual countries would be insufficient. This is the principle of subsidiarity, and is based on the legal and political principle that governmental decisions should be taken as close to the people as possible while still remaining effective. It is a main argument against claims that Europe limits national sovereignty but critics say that it is a principle to which lip service only is paid, and, in practice, the reach of the EU has been increasingly ambitious.
Primacy of Union law
Amongst European countries, the European Court of Justice has consistently ruled since 1964 that EU law has primacy over the laws of member states in the areas where member states allow it to legislate. National law which is incompatible with an agreement already made at European level is deemed to be 'disapplied' when questions arise in courts. This controversial and fundamental principle of European Community law was first recognised in the case of Van Gend en Loos in 1963 which was followed in Costa v. ENEL in 1964.
Common values of the Union's member states
As stated in Articles I-1 and I-2, the Union is open to all European States that respect the member states' common values, namely:
Member states also declare that the following principles prevail in their society:
Some of these provisions are codified for the first time in the TCE.
Aims of the Union
The aims of the EU, according to the TCE, are made explicit (Article I-3):
In its relations with the wider world the Union's objectives are:
- to uphold and promote its values and interests
- to contribute to peace, security, the sustainable development of the Earth
- solidarity and mutual respect among people
- free and fair trade
- eradication of poverty and the protection of human rights, in particular the rights of the child
- strict observance and development of international law, including respect for the principles of the United Nations Charter.
Scope of the Union
Competences
The EU has six exclusive competences, policy areas in which member states have agreed that they should act exclusively through the EU and not legislate at a national level. The list remains unchanged from the previous treaties:
- customs union;
- those competition rules that govern the internal market;
- eurozone monetary policy;
- conservation of marine biological resources (the Common Fisheries Policy);
- common commercial policy;
- the conclusion of certain limited international agreements.
There are a number of shared competences. These are areas in which member states agree to act individually only where they have not already acted through the EU, or where the EU has ceased to act (though these are areas where member states may act both nationally and through the EU if they wish). Three new competences have been added to those in previous treaties (see below).
There are a number of areas where the EU may take only supporting, coordinating or complementary action. In these areas, member states do not confer any competences on the Union, but they agree to act through the Union in order to support their work at national level. Again, three new competences have been added to those from previous treaties (see below).
Flexibility clause
The TCE's flexibility clause allows the EU to act in areas not made explicit in the TCE, but only:
- if all member states agree;
- with the consent of the European Parliament; and
- where this is necessary to achieve an agreed objective under the TCE.
This clause has been present in EU law since the original Treaty of Rome, which established the EEC in 1958.
Common foreign and security policy
The EU is charged with defining and implementing a common foreign and security policy in due time. The wording of this article is taken from the existing Treaty on European Union.
New provisions
Legal personality
The European Union for the first time has legal personality under the TCE. This means that it is able to represent itself as a single body in certain circumstances under international law. Most significantly, it is able to sign treaties as a single body where all its member states agree.
New competences
The TCE would have conferred upon the EU as new 'shared competences' the areas of territorial cohesion, energy, and space. These are areas where the EU may act alongside its individual member states. The EU has conferred upon it as new areas of 'supporting, coordinating or complementary action' the areas of tourism, sport, and administrative co-operation.
Criminal justice proceedings
Member states would have continued to co-operate in some areas of criminal judicial proceedings where they agree to do so, as at present. Under the TCE, seven new areas of co-operation would have been added:
Solidarity clause
The new solidarity clause of the TCE specifies that any member state which falls victim to a terrorist attack or other disaster will receive assistance from other member states, if it requests it. The type of assistance to be offered is not specified. Instead, the arrangements will be decided by the Council of Ministers should the situation arise.
European Public Prosecutor
Provision exists for the creation of a European Public Prosecutor's Office, if all member states agree to it and if the European Parliament gives its consent.
Charter of Fundamental Rights of the European Union
The TCE includes a copy of the Charter already agreed to by all EU member states. This is included in the Constitution so that EU institutions themselves are obliged to conform to the same standards of fundamental rights. At the time of the Charter's original agreement, the British Government said that it did not have binding effect. Incorporation into TCE would have put its importance beyond doubt.
Simplification
Simplified jargon and legal instruments
The TCE makes an effort to simplify jargon and reduce the number of EU legal instruments (ways in which EU countries may act). However, it is a long document couched in obscure and technical terms, which proved unpopular when presented (for example) to French voters in their referendum on the TCE.
The TCE unifies legal instruments across areas of policy (referred to as pillars of the European Union in previous treaties). Specifically:
- 'European Regulations' (of the Community pillar) and 'Decisions' (of the Police and Judicial Co-operation in Criminal Matters (PJC) pillar) both become referred to as European laws.
- 'European Directives' (of the Community pillar) and 'Framework Decisions' (of the PJC pillar) both become referred to as European framework laws.
- 'Conventions' (of the PJC pillar) are done away with, replaced in every case by either European laws or European framework laws.
- 'Joint actions' and 'Common positions' (of what is now the Common Foreign and Security Policy Pillar) are both replaced by Decisions.
Position of Union Minister for Foreign Affairs
Under the TCE, the present role of High Representative for the Common Foreign and Security Policy would be amalgamated with the role of the Commissioner for External Relations. This would create a new Union Minister for Foreign Affairs who would also be a Vice President of the Commission. This individual would be responsible for co-ordinating foreign policy across the Union, representing the EU abroad in areas where member states agree to speak with one voice.
Functioning of the institutions
Qualified majority voting
More day-to-day decisions in the Council of Ministers would be to be taken by qualified majority voting, requiring a 55% majority of members of the Council representing a 65% majority of citizens. (The 55% is raised to 72% when the Council acts on its own initiative rather than on a legislative proposal from the Commission or the Union Minister for Foreign Affairs.) The unanimous agreement of all member states would only be required for decisions on more sensitive issues, such as tax, social security, foreign policy and defense.
President of the European Council
The six-month rotating Presidency of the European Council would switch to a chair chosen by the heads of government, in office for 2½ years and renewable once. The role itself would remain administrative and non-executive, but rather than the Presidency being held by a member state as at present, it would be held by an individual elected by and accountable to the Council.
President of the Council of Ministers
The six-month rotating Presidency of the Council of Ministers, which currently coincides with the Presidency of the European Council, would be changed to an 18-month rotating Presidency shared by a trio of member countries, in an attempt to provide more continuity. The exception would be the Council's Foreign Affairs configuration, which would be chaired by the newly-created Union Minister for Foreign Affairs.
Smaller Commission
The Commission would be reduced in size from 27 to 18 by the year 2014. There would be fewer Commissioners, with member states taking it in turn to nominate Commissioners two times out of three.
Parliamentary power and transparency
- President of the Commission: The candidate for President of the European Commission would be proposed by the European Council, after consultation with MEPs, and would be elected by the European Parliament. Parliament would have the final say.
- Parliament as co-legislature: The European Parliament would acquire equal legislative power under the codecision procedure with the Council in virtually all areas of policy. Previously, it had this power in most cases but not all.
- Meeting in public: The Council of Ministers would be required to meet in public when debating all new laws. Currently, it meets in public only for texts covered under the Codecision procedure.
- Budget: The final say over the EU's annual budget would be given to the European Parliament. Agricultural spending would no longer be ring-fenced, and would be brought under the Parliament's control.
- Role of national parliaments: Member states' national parliaments would be given a new role in scrutinising proposed EU laws, and would be entitled to object if they feel a proposal oversteps the boundary of the Union's agreed areas of responsibility. If the Commission wishes to ignore such an objection, it would be forced to submit an explanation to the parliament concerned and to the Council of Ministers.
- Popular mandate (aka initiative): The Commission would be invited to consider any proposal "on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Constitution" which has the support of one million citizens. The mechanism by which this would be put into practice has yet to be agreed. (See Article I-46(4) for details.)
Further integration, amendment and withdrawal
Enhanced co-operation
There would be a tightening of existing rules for 'enhanced cooperation', where some member states would have chosen to act together more closely and others not. A minimum of one third of member states would now be forced to participate in any enhanced cooperation, and the agreement of the European Parliament is needed. The option for enhanced cooperation would also be widened to all areas of agreed EU policy.
Treaty revisions
Previously, alteration of treaties was decided by unanimous agreement of the European Council in private meeting. Proponents of the TCE claim that any amendments to the Constitutional treaty will involve the convening of a new Convention, similar to that chaired by Valéry Giscard d'Estaing in drafting the TCE. This process may be bypassed if the European Parliament agrees, in which case, the final say on adopting proposals will rest with the European Council, who must agree unanimously. However, small revisions (switching from unanimity voting to qualified majority voting in specific policy areas) can be made by the European Council through the so-called 'Passerelle Clause' (Article IV-444) if every member state agrees.
Withdrawal clause
A new clause in the TCE allows for the withdrawal of any member state without renegotiation of the TCE or violation of treaty commitments (clause I-60). Under this clause, when a country notifies the Council of its intent to withdraw, a settlement is agreed in the Council with the consent of Parliament. If negotiations are not agreed within two years, the country leaves anyway. The process described is a formalisation of the process which Greenland used to leave the EC in 1985.
See also
External links
- – EU's official Constitution site, including full text in the official languages.
- – Highlights and commentary (PDFs).
- – Academic site linking to many documents concerning the preparation, negotiation and ratification stages of the TCE and previous treaties.
- European NAvigator
- – Text with hyperlinked cross-references.
Media overviews
Monitoring reports
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