Select Committee on European Union Forty-First Report


Government Responses

Note: All text in bold is from our Reports. All text in italics is taken from the version of the draft Constitutional Treaty available at the time the Government response was prepared.



We make this Report to the House for information (paragraph 5 of Report).

1. The Government welcomes this Report as a valuable contribution, and acknowledges the efforts of the Committee in producing a large number of high quality Reports on the draft Treaty Articles produced by the Convention on the Future of Europe.

2. The draft Articles 1-16 define the European Union and set out its objectives and its values; they define citizenship of the EU and fundamental rights; and they set out the competences of the EU. There is much that the Government supports and welcomes, although there remain a small number of issues that require further work in the intergovernmental conference (IGC).

3. The Committee is right to acknowledge that the draft Articles are likely to change. In the draft Constitutional Treaty presented to Heads of State or Government at the Thessaloniki European Council on 19-20 June, they can be found as draft Articles 1-17.

4. The Government recalls that the Thessaloniki European Council agreed that the draft Treaty Articles represent a good basis for starting negotiations at the IGC, to be convened in October 2003. We look forward to those negotiations.



Article 1: Establishment of the Union

5. The re-drafted Article I-1 now reads:

1.  Reflecting the will of the citizens and States of Europe to build a common future, this Constitution establishes the European Union, on which the Member States confer competences to attain objectives they have in common. The Union shall coordinate 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.

2.  The Union shall be open to all European States which respect its values and are committed to promoting them together.

6. The Government agrees with the Committee in favouring retention of the name "European Union". The Government made clear that we never supported any change to what is now a well-known and clear title. We are welcome the decision to refer to "citizens" of Europe rather than the "peoples".

7. The Government is pleased that the revised text of this draft Article makes clear that it is the Member States, by freely entering into the Treaty, that confer certain competences on the Union.

8. The Government further welcomes the deletion of any reference to the word "federal" in this Article. As the Committee notes, this word can mean different things to different people. We see no place for such terms in a Constitutional Treaty, which must provide clarity of meaning.

Article 2: The Union's values

9. The revised wording of this draft Article now reads:

"The Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights. These values are common to the Member States in a society of pluralism, tolerance, justice, solidarity and non discrimination."

10. The Government broadly welcomes this draft Article.

Article 3: The Union's objectives

11. This draft Article has been re-drafted to read:

1.  The Union's aim is to promote peace, its values and the well-being of its peoples.

2.  The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, and a single market where competition is free and undistorted.

3.  The Union shall work for a Europe of sustainable development based on balanced economic growth, a social market economy, highly competitive and aiming at full employment and social progress, and with a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance.

It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of children's rights.

It shall promote economic, social and territorial cohesion, and solidarity among Member States.

The Union shall respect its rich cultural and linguistic diversity, and shall ensure that Europe's cultural heritage is safeguarded and enhanced.

4.  In its relations with the wider world, the Union shall uphold and promote its values and interests. It shall contribute to peace, security, the sustainable development of the earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and protection of human rights and in particular children's rights, as well as to strict observance and development of international law, including respect for the principles of the United Nations Charter.

5.  These objectives shall be pursued by appropriate means, depending on the extent to which the relevant competences are attributed to the Union in this Constitution.

12. The Government welcomes these objectives, especially the clear statement of the importance of competition; the inclusion of all three pillars of sustainable development (social, economic and environmental); and the respect for diversity. The Government is sceptical of the need in paragraph 1 to refer to the Union's "aims" in an Article that covers the Union's objectives.

13. Two new draft Articles have been inserted in subsequent revisions. These are:

Article I-4: Fundamental freedoms and non-discrimination

1.  Free movement of persons, goods, services and capital, and freedom of establishment shall be guaranteed within and by the Union, in accordance with the provisions of this Constitution.

2.  In the field of application of this Constitution, and without prejudice to any of its specific provisions, any discrimination on grounds of nationality shall be prohibited.

14. The Government welcomes this Article, although it believes that the anti-discrimination clause should specify EU citizens as its scope. We will therefore be examining closely any implications for UK immigration controls in relation to non-EU citizens.

Article I-5: Relations between the Union and the Member States

1.  The Union shall respect the national identities of its Member States, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self government. It shall respect their essential State functions, including those for ensuring the territorial integrity of the State, and for maintaining law and order and safeguarding internal security.

2.  Following the principle of loyal cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Constitution.

The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the objectives set out in the Constitution.

15. The Government welcomes this Article.

Article 4: Legal personality

16. This draft Article has not been altered in substance, but can now be found as Article I-6. The detail of the capacities conferred by legal personality will be fleshed out in Part III of the Constitutional Treaty.

17. The Government is clear that having a single legal personality for the European Union would have advantages, for simplicity and for the EU's international profile. However, to be acceptable, the Constitutional Treaty must make it clear that the common foreign and security policy (CFSP) and some areas of justice and home affairs (JHA) remain subject to their own distinct arrangements. The according of Union legal personality should also not affect Member States' current rights in terms of representation in international bodies.


Article 5: Fundamental rights

18. This is now Article I-7 in the version of the draft Constitutional Treaty presented to the Thessaloniki European Council. It reads:

1.  The Union shall recognise the rights, freedoms and principles set out in the Charter of Fundamental Rights which constitutes Part II of this Constitution.

2.  The Union shall seek accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Accession to that Convention shall not affect the Union's competences as defined in this Constitution.

3.  Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law.

19. The Government has always supported the idea of a clear statement of fundamental rights, freedoms and principles applicable at Union level. Equally, the Government has always made clear that any incorporation of the Charter of Fundamental Rights into the constitutional Treaty would have to provide legal clarity and not extend EU competence. The Charter as contained in the draft Constitutional Treaty maintains and strengthens the explicit statement that the Charter does not extend EU competence and makes clear that the Charter applies primarily to the EU institutions. The Charter would apply to the Member States only when they implement EU law. The full proposals for incorporating the Charter are not yet finalised. The Government will reach a final decision about incorporation of the Charter in the context of the forthcoming Intergovernmental Conference.

20. The Government can see some arguments in favour of EC/EU accession to the ECHR. But if this were to happen, further work would be required to ensure, inter alia, that accession did not enlarge Community/Union competence or prejudice national positions.

Article 6: Non-discrimination on grounds of nationality

21. This draft Article now forms the second paragraph of the new draft Article I-4: Fundamental freedoms and non-discrimination.

Article 7: Citizenship of the Union

22. This draft Article has not altered in substance, but is now Article I-8. The Government supports this draft Article.


Article 8: Fundamental principles

23. The re-draft of this Article reads:

1.  The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.

2.  Under the principle of conferral, the Union shall act within the limits of the competences conferred upon it by the Member States in the Constitution to attain the objectives set out in the Constitution. Competences not conferred upon the Union in the Constitution remain with the Member States.

3.  Under the principle of subsidiarity, in areas which do not fall within its exclusive competence the Union shall act only if and insofar as the objectives of the intended action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.

The Union Institutions shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality, annexed to the Constitution. National Parliaments shall ensure compliance with that principle in accordance with the procedure set out in the Protocol.

4.  Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Constitution.

The Institutions shall apply the principle of proportionality as laid down in the Protocol referred to in paragraph 3.

24. The Government is pleased that this re-draft omits the references to loyal co-operation that were present in the original. We have no difficulty with the concept itself, which appears in the existing Treaties. However, in the original draft of the Articles "loyal co-operation" appeared four times in the first fourteen Articles. We felt this was excessive and so argued for its removal from this draft Article, in the interests of simplicity and clarity.

25. The Protocols on the application of the principles of subsidiarity and proportionality, and the role of national parliaments in the EU offer a good basis for securing a more active role for national parliaments in the European Union. The Government believes that national Parliaments should be more involved in the EU. We have been strong advocates of the proposal to create a new mechanism for national Parliaments to enforce the principles of subsidiarity and proportionality. The Government has also welcomed the recognition of a role for regions within the mechanism.

Article 9: Application of fundamental principles

26. The Government broadly welcomes this draft Article, now found at Article I-10. It has been re-named "Union law" and now reads:

1.  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.

2.  Member States shall take all appropriate measures, general or particular, to ensure fulfilment of the obligations flowing from the Constitution or resulting from the Union Institutions' acts.

Article 10: Categories of competence; Article 11: Exclusive competences; Article 12: Shared competences

27. The Government supports the proposal to set out more clearly in the Constitutional Treaty the nature of the European Union's competences. There is logic in categorising these competences as either "exclusive" or "shared". It will be important to ensure that the policy areas are placed under the appropriate heading.

Article 13: The coordination of economic policies

28. This draft Article, which is now Article I-14, has been re-named "The coordination of economic and employment policies". It reads:

1.  The Union shall adopt measures to ensure coordination of the economic policies of the Member States, in particular by adopting broad guidelines for these policies. The Member States shall coordinate their economic policies within the Union.

2.  Specific provisions shall apply to those Member States which have adopted the euro.

3.  The Union shall adopt measures to ensure coordination of the employment policies of the Member States, in particular by adopting guidelines for these policies.

4.  The Union may adopt initiatives to ensure coordination of Member States' social policies.

29. The Government has made clear its belief that this Article should reflect the competences outlined in the existing Treaties.

Article 14: The common foreign and security policy

30. The re-drafted Article, now I-15, reads:

1.  The Union's competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union's security, including the progressive framing of a common defence policy, which might lead to a common defence.

2.  Member States shall actively and unreservedly support the Union's common foreign and security policy in a spirit of loyalty and mutual solidarity and shall comply with the acts adopted by the Union in this area. They shall refrain from action contrary to the Union's interests or likely to impair its effectiveness.

31. The Government welcomes this draft Article, which usefully links CFSP and ESDP and repeats existing Treaty language (Article 17.1 TEU) on the progressive framing of a common defence policy. The Government further welcomes the use of existing TEU language on loyal co-operation (Article 11.2 TEU). That language appears in other places in the draft Constitutional text, so we have proposed its deletion from this draft Article, in the interests of simplicity, and to avoid unnecessary duplication.

Article 15: Areas for supporting action

32. The re-drafted Article I-16 is now called "Areas of supporting, co-ordinating or complementary action" and reads:

1.  The Union may take supporting, coordinating or complementary action.

2.  The areas for supporting, coordinating or complementary action shall be, at European level:

-  industry

-  protection and improvement of human health

-  education, vocational training, youth and sport

-  culture

-  civil protection.

3.  Legally binding acts adopted by the Union on the basis of the provisions specific to these areas in Part III may not entail harmonisation of Member States' laws or regulations.

33. The Government broadly welcomes this draft Article. It will be important to ensure that the policy areas are placed under the appropriate heading.

Article 16: Flexibility clause

34. The Government broadly welcomes this draft Article, which is now Article I-17. We have suggested additional language to make clear the CFSP would be excluded, in order to make clear the distinct nature of CFSP.

138   Government Response dated 23 July 2003.  Back

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