The European Constitution
With the agreement reached at the Intergovernmental Conference of the Heads of State and Government on 17 and 18 June 2004, the process initiated by the European Council in Laeken in December 2001 for a Constitution for Europe was concluded.
The draft Constitutional Treaty prepared by the Convention and presented in July 2003 was largely adopted by the Intergovernmental Conference, especially with regard to structure and simplification.Therefore the only issue remaining in the final negotiations were institutional questions (definition of qualified majority, composition of the European Commission), extended application of the qualified majority for Council decisions, as well as financial and economic policy issues (Eurozone, Stability and Growth Pact, excessive deficit procedure).
The Constitutional Treaty was signed by the Council of the European Union in Rome on 29 October 2004 and will be ratified by the Member States in accordance with their national constitutional standards. Spain, the Netherlands, Denmark, Ireland, Great Britain, Luxembourg, France, Portugal, Poland and the Czech Republic will also hold referendums. The Constitutional Treaty will become effective not earlier than 1 November 2006.
The main contents of the Constitutional Treaty as proposed by the Convention and confirmed by the Intergovernmental Conference are:
- Merger of the EC and the EU Treaties in one single Constitution (but not the Euratom Treaty)
- The Union shall have legal personality
- The Charter of Fundamental Rights is integrated in the Constitution
- Integration of the Common Foreign and Security Policy and of police and judicial cooperation (now the area of freedom, security and justice), thus overcoming the pillar structure
- Reorganisation of the institutional structure: Establishment of a Union Minister for Foreign Affairs, the European Council as a separate institution, a reduction in the number of members of the European Commission as of 2014 and thus abandonment of the maxim “one state/one member of the Commission”, increase in the number of Members of the European Parliament and increase in the minimum number of members per Member State, voting rights in the Council (of Ministers) based on the system of double majority (55% of Member States, representing 65% of the population of the Union) - reduction in the number of legal acts (now laws, framework laws, regulations, decisions, recommendations, opinions) and the procedures, whereby the co-decision procedure shall be the general legislative procedure
- Definition of the competences of the Union and the Member States (areas of exclusive and shared competence of the Union, areas of supporting, coordinating and complementary action by the Union)
Democracy and Participation:
One of the most important demands on the Constitution for Europe that was also raised in the Convention was the demand for more transparency, intelligibility and proximity to the citizens, associated with an expansion of civil rights. Based on the proposals by the Convention, the principle of democratic equality of the citizens and the principle of representative and participatory democracy have been anchored in the Constitution (Art. I-45 ff). The instrument of the citizens’ initiative has been introduced, whereby the details remain to be regulated in a separate law. Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the Commission to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Constitution. In addition, the provisions of Art. I-50 deal with transparency of the proceedings of the institutions of the Union. According to these provisions, not only the Parliament but also the Council meet in public when considering and voting on a draft legislative act.
With regard to the limits of Union competences and the Member States, the principles already set out in the EC Treaty have been established: the principal of limited conferral, the principles of subsidiarity and proportionality, loyal cooperation between the Member States and the institutions. A general clause in favour of the Member States with regard to competences not conferred upon the Union in the Constitution has now been introduced (Art. I-11 Par. 2).
Monitoring of compliance with the subsidiarity principle has been improved within the meaning of an early warning mechanism by additionally involving the national parliaments. One third of the national parliaments of the Member States (each Parliament has two votes) can demand review of a proposal by the Commission, for instance. If a legislative act violates the principle of subsidiarity, the Member States can also bring an action before the ECJ on behalf of their national parliaments.
Legal protection for the individual has been cautiously expanded by making it easier to bring individual actions before the ECJ (now Court of Justice of the European Union); natural persons can bring action against general legal acts that do not affect them directly or individually. Moreover the competences of the ECJ have been extended, allowing it to review decisions by the European Council intended to produce legal effects vis-à-vis third parties.
Last but not least, the participation rights of the European Parliament have been upgraded by making it the regular legislative procedure even for those areas previously excepted, such as foreign trade policy, border controls, as well as asylum and immigration. Thus the qualified majority applies to a number of decisions by the Council.
Unanimity is nonetheless still required in key areas, such as the multi-annual financial framework, equity or taxation. The principle of unanimity still applies in the area of common foreign and security policy, but in a few cases the Council may also adopt decisions with a qualified majority. And the achievement of decision-making with a qualified majority is restricted by preservation of the unanimity principle in sensitive areas, or the introduction of “passerelles” and “emergency brakes”. “Passerelles”, for example, allow a switch from unanimity to qualified majority, if such a switch is decided unanimously by the European Council, in the area of enhanced cooperation or the multi-annual financial framework for instance. In areas that particularly affect the sovereignty of the Member States, e.g. judicial cooperation in criminal cases or social security, an “emergency brake” has been introduced. It allows the Member States to appeal to the European Council, if fundamental national aspects are affected, which shall then decide unanimously on the further decision-making procedure.
Charter of Fundamental Rights
With the Draft Constitution the Convention has successfully integrated the Charter of Fundamental Rights as an integral and thus binding part of the Constitution. The general enforceability of the fundamental rights is significant progress compared with the Treaty of Nice.
In the final phase of negotiations on the Constitution, however, a provision was included in Art. II-112 Par. 7, according to which the explanations drawn up by the Presidency of the Convention as a way of providing guidance in the interpretation of the Charter must be given due regard by the courts of the Union and of the Member States. These explanations determine and limit the scope of the fundamental rights. The reference to these explanations aims to prevent the national courts or the ECJ from extending the fundamental rights, especially social rights, in the course of jurisdiction. The wording of the right to environmental protection und the title “Solidarity” is based on the general environmental clause aimed at integration in the policies of the Union; the fundamental right to environmental protection must therefore be understood as a maxim for political action.
Environment and Sustainability
From the environmental perspective, it is interesting to note that the objective of sustainable development is expressed in Title I, Values and Objectives of the Union. The phrasing of Article I-3 reflects the 3-pillar model of sustainable development and the equal ranking of economic, social and environmental issues. Sustainable development is generally defined as a balanced economic growth and competitive social market economy that also aims at a high level of protection and improvement of the quality of the environment.
The general environmental clause (Art. 6, EC Treaty) is now found at the beginning of Part III under Title I, “Provisions of General Application”. Although the clause is not placed in a prominent position - as previously in Article 6 of the EC Treaty - as a basic principle of Community Action in Part I of the Constitution, the wording of Art. 6, EC Treaty, was kept. However, this general clause can be applied horizontally to all areas named in Part III and thus covers all the policies of the Union. Thus, the scope of this general clause is expanded to include the current second and third pillar - common foreign and safety policy, as well as cooperation in the area of justice and internal affairs.
The Convention and the Intergovernmental Conference have not proposed any significant amendments to the valid provisions on the individual policy areas of the EC Treaty; they have only made some editorial and structural changes. Therefore the provisions relating to environmental policy (Art. III-234 ff.) have not undergone any significant changes either. Actions to achieve the environmental targets are to be defined in European laws or framework laws rather than the general mention of actions to be taken by the Union as set out in the current EC Treaty. Environmental policy is a shared competence of the Union and the Member States. The possibility to maintain or introduce stricter environmental protection standards at the national level has been taken over without change.
In the area of taxation the Intergovernmental Conference was unable to agree on the (restricted) possibilities to apply a qualified majority as contained in the Convention’s draft. Therefore the requirement of unanimity remains in effect with regard to ecological taxation. Decision-making with a qualified majority would have made it easier to make the costs of certain forms of production and consumption more transparent.
Energy and Euratom Treaty
As a new provision for action by the Union, Art. III-256 relating to energy policy has been introduced. Within the scope of realisation of the internal market with consideration for the preservation and improvement of the environment, it pursues the following objectives:
• To ensure functioning of the energy market
• To guarantee the energy supply in the Union
• To promote energy efficiency and energy savings, and to develop new and renewable energy sources.
The measures are to be adopted with the co-decision procedure, but measures affecting a Member State’s choice between different energy sources and the general structure of its energy supply remain subject to unanimity (as already set out in Art. 175 Par. 2, 3rd subparagraph of the EC Treaty) As already provided for in the Environment Chapter, Council laws or framework laws with fiscal impacts can only be passed unanimously after hearing the European Parliament.
The solution proposed by the Convention and accepted by the Intergovernmental Conference for the position of the Euratom Treaty in the Constitution leaves it as a separate treaty and merely amends the treaty by a “Protocol amending the Treaty establishing the European Atomic Energy Community” annexed to the Constitutional Treaty. The Euratom Treaty thus keeps its own legal personality and is not integrated in the Constitutional Treaty. The amendments relate primarily to the provisions on the bodies and financial provisions of the Constitution, which now also apply to the Euratom Treaty; the conceptual provisions of the Euratom Treaty, especially with regard to the promotion of nuclear energy, however, remain unchanged. With numerous references to the relevant articles of the Constitutional Treaty, the Euratom Protocol also provides for the fundamental applicability of certain important provisions of the Constitutional Treaty, namely the objectives of the Union, decision-making by the Council with a qualified majority and the co-decision procedure, as well as the provisions on accession and withdrawal.
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Verfassung.doc (DOC 1008 kB )- Schlussakte und Erklärungen.doc (DOC 397 kB )
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22.03.2006, Lebensministerium V/8