Memorandum from Professor Eileen Denza
CMG, visiting Professor of Law, Faculty of Laws, University College
London
TREATY ESTABLISHING A CONSTITUTION FOR EUROPE
CLARITY OF
THE STRUCTURE
The draft Treaty emerging from the Intergovernmental
Conference makes many improvements of substance and style to the
draft presented by the Convention on the Future of Europe. With
the emergence of the Protocols and Declarations the shape of the
proposed European legal order has taken full shape. The full panoply
of texts does however make a mockery of the original mandate to
effect
"a simplification of the Treaties with a
view to making them clearer and better understood without changing
their meaning".
In almost every area it is necessary, in order
to understand the law, to read provisions in Part I along with
others in Part II or in Part III, and to check the Protocols and
Declarations to find whether they make important clarifications
or modifications. Hardly any Protocols or Declarations have been
withdrawn, consolidated or integrated into the Treaty text. Millions
in Europe now familiar with the present legal order, including
those in the new Member States, will have to learn not only a
new treaty structure and new article numbers but also new names
for legal instruments which cannot be properly understood without
related earlier instruments which will keep their old names. Because
the Convention and the Intergovernmental Conference made many
significant changes, there will be argument as to whether new
articles in the Constitution represent "codification"
or "progressive development". To take one important
example within the scope of the Committee's enquiry, it is unclear
whether the fusion of the separate intergovernmental pillars has
succeeded in its declared intention of overcoming the contrast
between federal and confederal methods. The implications of continuing
the "Community acquis" and extending "the Community
way" after the European Community is abolished are uncertain.
ENHANCED CO
-OPERATION
Experience of the provisions on "Closer
Co-operation" in the Treaties of Amsterdam and Nice—which
form the predecessors to Article I-43 and Articles III-22-329
in the Draft Treaty Establishing a Constitution for Europe—does
not suggest that Enhanced Co-operation is likely to be a significant
factor in the future progress of the European Union.
The original provisions on closer co-operation
in the Treaty of Amsterdam gave express authority for Member States
to follow the precedent of the Schengen Agreement and Convention
while using from the outset (with necessary adaptations) the institutions
and procedures of the European Union. At the time of the negotiation
of the Treaty of Amsterdam the use of the Schengen method—whereby
a small group of States bypassed the deadlock in the Council over
lifting internal border controls on people—was regarded
as a success. The Schengen arrangements had evolved into a binding
legal system, had gradually attracted almost all Member States
into their orbit, and were to be incorporated in the Treaty on
European Union. The Schengen system had however grown up on a
basis entirely outside Union procedures and the effect of placing
cumbersome and complex treaty restrictions on any later similar
development was to stop it ever happening. Instead, Member States
in areas such as judicial co-operation developed a network of
bilateral agreements, deliberately steering clear of any system
which might trigger the treaty provisions.
Notwithstanding this dismal experience, the
Member States after much deliberation at the Intergovernmental
Conference added to the Treaty of Nice more extensive and even
more labyrinthine provisions on closer co-operation. Again these
have never been invoked.
The provisions on enhanced co-operation in the
draft Constitutional Treaty are an improvement in that they are
somewhat less complex. There would be a single set of provisions,
although procedure within the common foreign and security policy
would be different. It is made clear that the possibility applies
only "within the framework of the Union's non-exclusive competences"
(Article I-43(1)). Acts adopted under enhanced co-operation are
not regarded as "acquis which has to be accepted by candidates
for accession to the Union" (Article I-43(4)). This contrasts
with the position taken by the Union in regard to EMU and Schengen.
On the other hand, the cumulative hurdles in
the way of any possible use remain formidable. It is expressly
stated to be "a last resort". There must be a formal
proposal from the Commission and the European Parliament must
consent. Article III-328 permits the Council of Ministers within
enhanced co-operation to decide by unanimity that it may act by
qualified majority, or that it may replace a special legislative
procedure by the ordinary legislative procedure. It is highly
improbable that these procedural provisions would be invoked,
but they are nevertheless undesirable as a matter of principle.
It remains unlikely that these provisions would
be a practical way forward in any area of Union activity. The
political importance attached to them could perhaps be justified
if the proposed Constitution for Europe were to remain unchanged
for 50 years. But it seems that rolling revision of the Treaties
has become a way of life.
The provisions on enhanced co-operation may
be sharply contrasted with those on permanent structured co-operation
which are based on the complex realities of strengthening the
common security and defence policy. The Protocol on permanent
structured co-operation may well be used as an action plan even
if the Treaty fails to enter into force.
COMMON FOREIGN
AND SECURITY
POLICY
The draft Treaty establishing a Constitution
fails to address the criticisms made over the past year in regard
to the draft provisions on common foreign and security policy
and the proposed Minister for Foreign Affairs.
The most serious criticism was that in collapsing
the three pillar structure of the European Union, the new Constitution
fails adequately to safeguard the intergovernmental nature of
the common foreign and security policy. The existing safeguards
of the intergovernmental nature of the CFSP are partly institutional
(central role for the Council, peripheral role for the European
Commission and European Parliament, exclusion of the Court of
Justice) and these remain intact. In part, however, the safeguards
relate to the legal nature of the obligations created, and in
particular to exclusion of the European Community form of primacy,
exclusion of potential direct effect and exclusion of potential
loss of concurrent national competence. The existing Second Pillar
achieves this result by excluding foreign policy—which is
a defining characteristic of independent sovereign status—from
the Community method. This is particularly apparent in the United
Kingdom where the Second and Third Pillar provisions are not given
any effect through the European Communities Act 1972, as amended.
In the new Treaty, however, the Preamble expresses
the determination of the Member States to continue the work accomplished
within the framework of the European
Community Treaties and the Treaty on European Union
". . . by ensuring the continuity of the
Community acquis"
Article I-1(1) says that the Union shall co-ordinate
the policies by which the Member States aim to achieve these objectives,
"and shall exercise in the Community way
the competences they confer on it."
There are no safeguards for the acquis of the
Second or Third Pillars which do not now exercise competences
"in the Community way" but under public international
law. Article I-1(1) implies that although the European Community
would formally disappear and be absorbed by the European Union,
it is the "Community way" which will survive and will
absorb the "European Union way". The "European
Union way" has developed since 1993 on an intergovernmental
basis and under the rules of international law.
Article I-11 enumerates categories of Community
competence, and spells out for these the implications in terms
of European Community case law. Placed separately in the list
of competences is paragraph 3, whereby the Member States "shall
co-ordinate their economic and employment policies", and
paragraph 4, which says
"The Union shall have competence to define
and implement a common foreign and security policy, including
the progressive framing of a common defence policy."
The nature of this separate competence is not
explained further in Article I-11 or in Article I-15. Article
I-10(1), providing that
"The Constitution, and law adopted by the
Union's Institutions in exercising competences conferred on it,
shall have primacy over the law of the Member States.
clearly extends the Community doctrine, which
is stronger and more intrusive than the international law doctrine
of supremacy, over the common foreign and security policy.
Article III-209 as revised by the Intergovernmental
Conference does effect a demarcation between the common foreign
and security policy and other competences, emphasising that
". . . the implementation of the policies
listed in those articles shall not affect the application of the
procedures and the extent of the powers of the institutions laid
down by the Constitution for the exercise of the Union's competences
under this [ie the CFSP] Chapter."
The jurisdiction of the European Court of Justice
does not extend to the CFSP, with the exception of the boundary
demarcation provision quoted immediately above. CFSP commitments,
now forming obligations under public international law, would
therefore under the Constitution become quite uncertain in nature,
with no prospect of judicial clarification. The same would be
true for international agreements concluded by the Union under
CFSP powers (Articles III-225 to III-228).
A further wide-ranging constraint on the ultimate
independence of Member States to conduct their foreign policies
is contained in Article I-39(5) providing that
"Before undertaking any action on the international
scene or any commitment which could affect the Union's interests,
each Member State shall consult the others within the European
Council or the Council of Ministers."
Given the importance of the independent conduct
of foreign policy in determining sovereign status, and the mandate
given by the European Council at Laeken to achieve a more precise
delimitation of competences between the European Union and Member
States, the draft Treaty is inadequate. This particular red line
looks pink.
THE MINISTER
FOR FOREIGN
AFFAIRS
The proposed Minister for Foreign Affairs is
intended to improve consistency and effectiveness of the Union's
external action. The UK Government's objective was to ensure that
the Minister would be accountable to the Governments of Member
States in the Council at least for CFSP matters.
Two objections were made to the Convention's
proposal. The first, which links to the concerns expressed in
the previous section, was that the title, together with the power
to "conduct" the Union's common foreign and security
policy, was inconsistent with the retention of ultimate powers
over foreign policy by the Member States. Although "Minister"
is a diplomatic title, the responsibilities to be given to the
new Minister involve the formation of foreign policy as well as
representation, and until now only States have had Ministers for
Foreign Affairs. The United Nations and NATO, for example, have
Secretaries-General. The title however remains in the Treaty.
The second criticism was that "double-hatting"
the Minister would lead to institutional confusion and potential
conflict. The Constitution would not change the existing position
regarding powers to formulate external policies in different areas
and to represent the Union abroad. The new Article I-25(1) makes
clear that the Commission's powers to ensure the Union's external
representation would not include the CFSP, so that no new substantive
powers in this regard would be conferred on the Commission. The
Union Minister for Foreign Affairs would be a Vice-President of
the Commission and so bound by Commission collegiate responsibility.
He would however be exempt from the requirement to "neither
seek nor take instructions from any government or other institution,
body, office or agency" (Article I-25(7) and so in a position
to undermine the independence of the Commission which has been
one of its defining characteristics. He would be required by Article
I-27(2) to carry out the common foreign and security policy "as
mandated by the Council of Ministers". If however a proposed
action straddles the common commercial policy and the common foreign
and security policy, or if a CFSP decision (for example on sanctions)
is to be implemented by European regulations or decisions (Article
III-224), the Minister for Foreign Affairs will be placed in an
impossible position if there is conflict between the Council and
the Commission. The Intergovernmental Conference made a few changes
to Article 27 which tend to emphasise that the Minister is to
be primarily responsible to the European Council and the Council.
They do not however address the underlying problem of conflict
of loyalties.
At a practical level there is everything to
be said for close co-operation between Council and Commission
on external matters and much to be said for the proposed European
External Action Service which is to work "in co-operation
with the diplomatic services of the Member States". The Council
and the Commission however have distinct roles and responsibilities.
By blurring the distinction, the risk is created that the proposed
European Foreign Minister will have the confidence of neither
institution. The proposed fusion of institutional roles will be
put to the ultimate test on the first occasion when the Council
and Commission litigate before the European Court of Justice on
some issue of external relations competence.
DEFENCE
The UK Government's position on the Treaty provisions
on defence was complex. Most of Article I-40, with the important
exception of paragraph 7, is unchanged from the Convention's draft.
In paragraph 2 the statement that the progressive framing of a
common Union defence policy ". . .will lead to a common defence,
when the European Council, acting unanimously, so decides"
remains unchanged. The provision is inconsistent with Article
I-15(1) which states that the framing of a common defence policy
"might lead to a common defence". The Government however
seem to have accepted that although the word "will"
indicates a strong political intent, it remains conditional on
a unanimous decision of the European Council. The government strongly
supported the European Armaments, Research and Military Capabilities
Agency (Article I-40(3) and III-212), and expressed the view that
it could and probably would be established under existing Treaty
powers.
The UK Government were more reserved about the
possibility of what is now described as "permanent structured
co-operation" (Article I-40(6), Article III-213 and the Protocol
on permanent structured co-operation). They saw in the original
proposal the difficulty that it might undermine the concept of
a European security and defence policy in which the essentials
are agreed by unanimity and also the existing and developing military
arrangements. On the other hand they also saw opportunities in
permitting the Member States with greater military resources to
go ahead on their own. The changes made to the Treaty articles,
and the drafting of the new Protocol appear to be in line with
the Government's objectives. There would be provision in Article
III-213(3) for the addition of late entrants providing that the
latecomer States assume the qualifying commitments. There is also
provision for suspension and for withdrawal of participating States.
The link to defence capabilities is thus made clearer, and the
scheme could encourage some Member States to increase their defence
spending in order to qualify. "Enhanced co-operation"
would not apply to "permanent structured co-operation"
thus removing a source of confusion. There is explicit acknowledgment
of the special position of the neutral Member States, of the role
of NATO "which remains the foundation of the collective defence
of its members, and is compatible with the common security and
defence policy established within that framework", and of
the importance of the Atlantic Alliance "in accordance with
the Berlin Plus arrangements".
As to Article I-40(7) the Government's position
was that it must not prejudice the security guarantee provided
by the North Atlantic Treaty and the position of NATO as the basis
of the United Kingdom's territorial defence. ESDP is in their
view to remain merely a stronger means of conducting crisis management
operations outside Europe in support of the common foreign and
security policy. The revised version of Article I-40(7) makes
clear that while armed aggression on the territory of a Member
State would place other Member States under an obligation to assist
it in accordance with the United Nations Charter, this would not
alter the position of the neutral States or be inconsistent with
NATO commitments. The provision does not replicate the commitment
to collective self-defence which forms the core of NATO.
A disappointing element of the texts is the
draft Protocol on Article I-40(2) which provides for the Union
to draw, together with the Western European Union, arrangements
for enhanced co-operation between them. In the context of any
rational "tidying-up" exercise, the European Union should
now be trying to wind up WEU, whose practical utility has come
to an end.
Generally, however, the Government's red lines
on defence have been constructively held.
TREATY REVISION
In Part IV of the draft Constitution the Intergovernmental
Conference added two new Articles providing for simplified revision
procedure. Under the first, the European Council, acting by unanimity,
may authorise the Council to act by QMV in an area where unanimity
would otherwise be required. The procedure would not apply to
decisions with military or defence implications. The European
Council may also authorise a shift from special legislative procedure
to ordinary legislative procedure for the adoption of European
laws or framework laws. In either of these cases, national parliaments
must be informed, and any one parliament may veto the procedure.
The consent of the European Parliament would also be required.
The second form of simplified procedure would
permit the European Council, acting unanimously, to amend the
provisions of Title III of Part III of the Treaty. The European
Parliament, the Commission and the European Central Bank (regarding
changes in the monetary area) must be consulted. The decision
cannot however come into force unless approved by all the Member
States in accordance with their constitutional requirements. The
power may not be used to increase the competences attributed to
the Union.
The UK Government's preoccupation here was to
safeguard the powers of national parliaments to control treaty
revision. Although under both forms of simplified procedure there
would be no constitutional Convention and no intergovernmental
conference, each national parliament would retain the power to
prevent treaty amendment. The Government's red line in this area
was therefore successfully held.
CRIMINAL JUSTICE
The basic principles in Article I-41 for implementing
the area of freedom, security and justice were not changed by
the Intergovernmental Conference from the Convention's draft.
The key changes from the existing position would be the total
integration of the Third Pillar law-making powers and procedures
into the "Community method" and the emphasis on mutual
recognition of judicial and extrajudicial decisions. The Third
Pillar as originally established by the Treaty of Maastricht had
obvious deficiencies. There was uncertainty as to the legal effect
of instruments agreed by the Council, and international conventions
failed to achieve the ratification by national parliaments necessary
for them to come into force. There was little supervision of implementation
at national level and very little judicial or parliamentary accountability.
Some of these defects were remedied by the Treaty of Amsterdam,
but the revised provisions were given little chance to show their
greater effectiveness. The implications of integrating criminal
justice into the Community method, involving a stronger form of
primacy, potential direct effect and loss of national autonomy,
are substantial. The United Kingdom Government appear however
to have been in favour of the change provided that certain safeguards
were achieved. Mutual recognition of orders in the criminal justice
field, such as arrest warrants and warrants for search and seizure,
was endorsed by the European Council at Tampere in 1999 as central
to more effective enforcement of criminal laws.
The provisions in Article III-160 to III-162
afford an opportunity to national parliaments to monitor the application
of subsidiarity in this context, and to become involved in evaluating
implementation (in particular application of mutual recognition)
as well as operational co-operation on internal security. What
national parliaments make of these opportunities will depend on
them, but the highly developed experience within the United Kingdom
Parliament and the close co-operation with Government on scrutiny
of European matters mean that it is well placed at the outset
to make them effective.
The revised version of Articles III-171 and
III-172 does respond to some of the specific concerns expressed
by the Scrutiny Committee in its earlier Report on The Convention's
proposals on criminal justice. The power to adopt framework laws
on judicial co-operation in criminal matters (Article III-171)
is limited to what is necessary to facilitate mutual recognition
of judgments and judicial decisions and police and judicial co-operation
in criminal matters having a cross-border dimension. Where minimum
rules are to be established they "shall take into account
the differences as between the legal traditions and systems of
the Member States". Minimum rules are not to prevent Member
States from maintaining or introducing a higher level of protection
for individuals. The power to establish minimum rules concerning
the definition of criminal offences and sanctions (Article I-172)
is limited to areas of particularly serious cross-border crime,
and the areas of crime are specified—although the list may
be extended by the Council acting unanimously with the consent
of the European Parliament.
In both Article III-171 and III-172 the Intergovernmental
Conference added new provisions enabling any Member of the Council
who considers that a draft European framework law would affect
fundamental aspects of its criminal justice system to refer the
draft to the European Council. At that point the legislative procedure
would be suspended. The European Council would have four months
to review the draft and could either refer it back to the Council
(when the suspension would be terminated) or refer it back to
the Commission or the originating Member States with instructions
to submit a new draft. These are strong and unprecedented powers
and would enable any Member State to block any unacceptable measure
in the field of criminal justice. There would in the event of
deadlock remain the possibility of one third or more of the Member
States going ahead with enhanced co-operation—but it is
suggested above that the hurdles attached to that procedure make
it unlikely that it will often be used.
IF THE
TREATY IS
NOT RATIFIED
In strictly legal terms, if all 25 Member States
do not ratify the Treaty it cannot enter into force and the existing
Treaties and the entire body of European Union law continue unchanged.
A Declaration to be attached to the Final Act
of Signature of the Treaty establishing the Constitution states
that:
If two years after the signature of the Treaty
establishing the Constitution, four fifths of the Member States
have ratified it and one or more Member States have encountered
difficulties in proceeding with ratification, the matter will
be referred to the European Council.
A provision in these terms is also included
in Article IV-7 of the Treaty which deals with the "Ordinary
Revision Procedure" for amending the Treaty. It is not included
in either of the new Articles which set out so-called Simplified
Revision Procedures for making specified changes to the Treaty.
This Declaration is not in fact necessary to
enable the European Council to review the situation if it appears
that there will be difficulty in securing the necessary 25 ratifications.
In practice rejection by one national parliament or in one of
the referendums planned could, and almost certainly would be discussed
by the European Council. Following the rejection of the Maastricht
Treaty by Danish electors in June 1992, the European Council adopted
what was in effect a separate interpretative treaty. The Edinburgh
Decision of December 1992 without making further ratification
procedures necessary in Member States where they had already been
concluded, clarified certain points of concern to Denmark including
the possibility of moves towards a common defence policy. The
Decision helped to make possible a second—this time favourable—referendum
in Denmark.
Following rejection of the Treaty of Nice by
Irish electors in June 2001, the European Council at Seville in
June 2002 noted a National Declaration by Ireland in which Ireland
confirmed that its participation in the European Union's common
foreign and security policy did not prejudice its traditional
policy of military neutrality, and said that in the event of Ireland's
ratification of the Treaty of Nice, the Declaration would be associated
with its instrument of ratification. The European Council also
adopted a Declaration stressing that recent developments did not
constitute a decision to move to a common defence and that the
Treaty on European Union did not impose binding mutual defence
commitments or involve establishment of a European army. These
assurances while not changing the Treaty of Nice helped to pave
the way for a second favourable referendum in Ireland.
It may be recalled that while many initial reactions
to the Danish rejection of the Treaty of Maastricht suggested
that Denmark would simply be excluded while other Member States
went ahead, the first reactions to the Irish rejection of the
Treaty of Nice correctly assumed that this would not be legally
possible, so that the Irish difficulties were addressed with greater
political sensitivity. It was also recalled that the result of
the first Danish referendum, together with the very narrow majority
in France in favour of the Maastricht Treaty, had been to destabilise
or prolong ratification procedures in States where they had not
been completed. There is no doubt that a single adverse vote to
the Treaty establishing a European Constitution would destabilise
ratification procedures, but the extent of destabilisation would
depend on the State in question and also on whether there was
a limited and clearly identifiable reason for dissent. Those Member
States where public opinion is supportive of the Constitution
will be likely to press ahead with referendums and parliamentary
procedures in the hope of creating a band wagon effect. Conversely
the leaders of the more reluctant States will seek to postpone
the moment of decision, hoping to avoid the opprobrium likely
to fall on the first dissenter.
It is in this context that the proposed Declaration
will have its effect—pointing to a majority of four fifths
of the Member States as being a critical mass of support for the
Treaty, dissent from which would carry political risks.
Finally, it should be observed that while the
structural and institutional changes envisaged cannot happen without
the entry into force of the Treaty establishing a European Constitution
or some alternative form of Treaty revision, some of the elements
in the draft Constitution could slip into effect under existing
powers. The provisions describing and identifying competences,
for example, which to a large extent (though with important exceptions)
are declaratory of the existing legal position, are likely to
be cited and relied on increasingly even if the Constitution never
comes into force. A second possible example is the proposed European
External Action Service. Article III-198(3) of the draft Treaty
enables the organisation and functioning of the proposed Service
to be established by a European decision of the Council, but a
Declaration to be attached to this Article states that preparatory
work on formation of the Service will begin as soon as the Treaty
is signed. It is moreover likely that the External Action Service
could be established on an interim basis under existing Treaty
powers. A similar approach was taken by Member States, while awaiting
ratification of the Treaties of Amsterdam and of Nice, to establishment
of the Political and Security Committee and of Eurojust.
Rejection of the Treaty by one or more Member
States might therefore mean that a number of the more constructive
and less controversial innovations of the Convention came into
operation on an interim basis under existing treaty powers. It
is however unlikely that the entire Constitution project would
now be abandoned.
1 September 2004
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