APPENDIX 11
Memorandum from Prof Dr Ingolf Pernice,
Managing Director, Walter Hallstein-Institute for European Constitutional
Law, Humboldt-Universität zu Berlin
My answers to your questions can be summarised
as follows:
1. The new references in the Constitution
to the Union's values and objectives make more explicit what was
always the basis of European Integration. Rights for minorities
are now mentioned, but also the principles of pluralism, non-discrimination,
justice, solidarity, tolerance and equality between men and women.
Among the objectives more precise reference is made to sustainable
development at the European and global level, cultural and linguistic
diversity, and to the development of international law including
the respect for the principles of the UN Charter. Practical consequences
of these references cannot be expected directly. But such clear
statements are important as an expression of what, in substance,
may hold the Union together, and they are made to give European
policies a guideline and direction. The legislative acts will
have to conform with and to refer to these values and objectives,
and they will have to be taken as a reference in the interpretation
of any legislation at the European level. The objectives will
be used to justify limitations of fundamental rights according
to Article II-52§ 1 of the Constitution. On the other hand,
taken together with the principles of subsidiarity and proportionality
and with the Charter of fundamental rights, the values and objectives
referred to in Articles I-2 and I-3 of the Constitution will also
limit the European institutions in the exercise of their competencies
conferred to them by the Constitution.
2. Enhanced co-operation was always meant
to be an incentive for Member States to find compromises at the
Council allowing all Member States to participate in the EU policies.
As the minimum participation will be one third of the Member States
(Article I-43 § 2) instead of eight of 15 (Article 43 lit
g EU), the Constitution allows clearly an easier access to this
instrument and makes its use more likely. With regard to the vote
of the Council on the authorisation to proceed with enhanced co-operation,
on the other hand, the requirement of qualified majority under
the Treaty of Nice (Article 40a § 2 EU, Article 11 §
2 EC) has not been changed (European decision, see Article III-325
§ 1 subpara. 2, Article I-33 § 1, Article III-302 and
Articles I-22 §§ 3 and 24), but the new conditions of
double majority in the enlarged Union do not seem to make decisions
easier. Regarding ESFP the rule of unanimity in Article III-325
§ 2 subpara 2 seems to be stricter than Article 27c read
together with Article 23 § 2 subpara. 2 and 3 EU, but this
is not restricted to the implementation of a joint action or a
common position only (as provided in Article 27b EU). Nevertheless,
Article III-328 § 2 now allows to switch to qualified majority
even for CSFP if the Council so decides unanimously. In sum, also
given the number of 25 Member States in the EU and a greater need,
therefore, the use of enhanced co-operation seems to be more likely,
but it will not be easy to put it into practice and it would not
be desirable regarding the cohesion and unity of the Union.
3. Under Articles I-23 § 5 and I-49
§ 2 of the Constitutional Treaty the Council shall meet in
public when considering and voting on a draft legislative act.
These terms are open to interpretation regarding the question
at what level and which meetings precisely are to be public. As
only the Council, not the meetings of the Permanent Representatives
mentioned in Articles I-23 § 4a and III-247 § 1 of the
Constitutional Treaty, is addressed by this clause, the meetings
of the ministers only will have to be public. But, with regard
to the context of the provision on "transparency" there
is little doubt that all meetings where legislative proposals
are on the agenda shall be held in public, not only those where
decisions or votes are taken. It is to be noted that opening the
meetings of the legislative Council for the public will change
the character of this body profoundly. Ministers will have to
express themselves and argue under the direct control of the media,
the national parliaments and constituencies, but also of the people
and press of other Member States. This will give strong incentives
to more intensive public discourse on European matters Europe-wide
and underline the ministers respective responsibility. Ministers
may try and find other ways and places for forging package deals
and negotiating compromises or be more reluctant to accept solutions
which might be difficult to defend at home. This may, again, make
more likely that the instrument of enhanced co-operation will
be used to compel ministers to accept a solution or to circumvent
their veto in a given case. Still, an extensive application of
the clause on public meetings of the Council will increase the
interest for the citizens for the legislation to be decided and
facilitate, therefore, democratic control and enhance the legitimacy
of the European legislation.
4. The power of the new Foreign Minister
to preside the External Affairs Council (EAC) is a new feature
in contrast to the division of work and the constructive interaction
which traditionally exists between the Presidency and the Commission.
It is questionable whether or not this accumulation of tasks favours
efficiency of the EAC. Coordination of European policies will
become more difficult with the split of the function of presidency
between the President of the European Council, the Foreign Minister
and the Presidency of the general Council and the specialised
Council formations. According to Article I-23 2 of the Constitution
consistency between the different Council configurations will
be ensured by the General Affairs Council (GAC), as it will be
its task to ensure—in co-operation with the President of
the European Council—the preparation and the follow-up of
the European Council's meetings (Article I-23 2, second phrase).
There will be a strong need for regular meetings of the President
of the European Council, the President of the GAC and the Foreign
Minister, including as the case may be, the Presidents of the
specialised Councils, aiming at ensuring the consistency of European
policies. And it may be helpful, to this effect, even to include
the President of the Commission and, as the case may be, his colleagues.
5. This question is difficult for me to
answer.
6. The emergency break procedure under Articles
III-171 3 and 4, and III-172 3 and 4, of the Constitution allows
for the European Council to find compromises and, in case of a
failure, for an easier application of enhanced co-operation. It
will lead to delays in the legislative process, but, given the
time limits at each stage of the procedure, also accelerates the
decision-making on the matter in question. The system seems to
be justified due to the sensitiveness of the matters, it seems
to be necessary. The application of enhanced co-operation in the
fields concerned is most likely.
7. The horizontal clauses governing the
application of the Charter of Fundamental Rights fix the framework
in which the specific rights are to be understood and applied.
They are of greatest importance not only regarding the field of
application of each of these rights, but also regarding legitimate
limitations and their relationship with the European Convention
on Human Rights (ECHR). It is clear that a maximum of harmony
in the interpretation of the rights referred to in the Charter
will ensure that acts of the European Union would not be challenged
before the European Court of Human Rights once the Union has become
a Party to the ECHR on the same footing as its Member States.
The horizontal clauses clarify that the Charter would not create
new powers or tasks for the Union in addition to those conferred
to it explicitly, but also make clear that the level of protection
of any other instrument providing for fundamental rights, international
or national, would not be reduced. Many points made explicit in
the horizontal clauses can be taken as given even if such clauses
would not exist; but more clarity is granted by them, and this
will help to ensure an harmonious application of the Charter in
the context of other instruments for the protection of human rights
to the benefit of the individuals.
8. This question is left for the reply by
others.
9. If the Treaty on a Constitution for Europe
is not ratified by all Member States, it will simply not come
into effect. This follows from Article IV-8 of the Constitution.
Article IV-8 of the Constitution provides for a special procedure
in case of, after two years from the conclusion of a treaty amending
"this Treaty", which than will be that on the Constitution
of Europe, four fifths of the Member States have ratified but
others encounter difficulties in proceeding with ratification.
In such case the matter shall be referred to the European Council.
It is worth noting, that this new provision—which in itself
does not contain any solution at all—would only come into
effect with the entry into force of the present Treaty on a Constitution
for Europe. The new procedure, therefore, cannot apply, therefore,
to the case of difficulties in the ratification of the present
Treaty itself. Yet, since Article IV-8 does not express more than
the banality of the European Council having the power to discuss
a problem, nobody will seriously prevent it to do so also in the
case that the present ratification process for the Constitution
faces difficulties. The solution would and could, legally speaking,
certainly not be to expel or exclude from the Union any such Member
State which failes to ratify. This would be a clear breach of
Article 48 EU and be in contrast to the principles of international
law (pacta sunt servanda), to the principle of solidarity within
the EU and—in the case of a failed referendum—to the
idea of democracy. Politically, however, the question would be
raised whether or not the Member State in question continues to
be willing to engage in the process of European integration. But
the limits of such an argument, which is dangerous in any event,
become plain for the case of Member States like France and Germany:
Difficult to imagine a European Union without Germany (as it would
hardly be accepted by anybody to have Germany outside the bounds
of the EU). Is it serious, given the degree of integration, to
consider that the case of Britain or Spain, or Poland, would be
different? The only solution in case ratification by one or more
Member States are not achieved is to reopen negotiations, accommodate
with the apparent problems and, eventually, try again on a new
basis.
10 September 2004
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