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.
NINTH REPORT - THE FUTURE OF EUROPE CONSTITUTIONAL
TREATY - DRAFT ARTICLES 1-16
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
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.
ANALYSIS OF ARTICLES 1-16 OF THE CONSTITUTIONAL
TITLE I: DEFINITION
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
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
"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
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
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
Article I-5: Relations between the Union and the
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
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.
TITLE II: FUNDAMENTAL
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
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.
TITLE III: THE
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
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
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'
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
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
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
1. The Union may take supporting, coordinating
or complementary action.
2. The areas for supporting, coordinating
or complementary action shall be, at European level:
- protection and improvement of human health
- education, vocational training, youth and
- 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