TWENTY SECOND REPORTTHE FUTURE
OF EUROPE:CONSTITUTIONAL TREATYARTICLES 33-37 (THE DEMOCRATIC
LIFE OF THE UNION)|
The Government welcomes the Committee's Report, which
provides a useful factual compendium of the Praesidium's draft
Articles and commentary. The Government is grateful for the Committee's
own comments on the draft Articles and notes the amendments presented
to the Convention by the Right Honourable Peter Hain, as the UK
Government Representative to the Convention.
In the Praesidium's re-drafted Constitutional Treaty,
presented to the Convention on 12 June, these Articles now feature
as Articles 44-51 in Part I, Title VI: The Democratic Life of
the Union. The Government believes that the re-drafted Articles
represent an improvement. There is much to commend these draft
Article 33: The principle of democratic equality
This is now Article 44 of the draft Constitutional
Treaty, which reads:
"In all its activities, the Union shall observe
the equality of citizens. All shall receive equal attention from
the Union's Institutions."
The Government shares the Committee's concern about
the generality of the term "citizens" in this, and other
Articles. We have stressed that such terms must be precise throughout
the Constitutional Treaty. We have, accordingly, proposed that
the text makes clear that the citizens referred to here are those
of the Union.
The latest Praesidium draft includes a new Article
45: The principle of representative democracy. This reads:
1. The working of the Union shall be founded
on the principle of representative democracy.
2. Citizens are directly represented at Union
level in the European Parliament. Member States are represented
in the European Council and in the Council by their governments,
themselves accountable to national Parliaments, elected by their
3. Every citizen shall have the right to participate
in the democratic life of the Union. Decisions shall be taken
as openly as possible and as closely as possible to the citizen.
4. Political parties at European level contribute
to forming European political awareness and to expressing the
will of Union citizens.
Article 34: The principle of participatory democracy
Article 34 should spell out much more clearly
what is intended by the concept of participatory democracy, what
it means for the individual citizen and by what practical means
he or she may take advantage of the rights given.
The use in Article 34 of the terms "representative
associations" and "civil society" makes such clarification
even more necessary and important. Does "civil society"
include voluntary associations?
This is now Article 46. The revised wording reads:
1. The Union shall, by appropriate means,
give citizens and representative associations the opportunity
to make known and publicly exchange their views on all areas of
2. As per previous draft Article 34(3).
3. The Commission shall carry out broad prior
consultations with parties concerned in order to ensure that the
Union's actions are coherent and transparent.
4. A significant number of citizens, no less
than one million, coming from a significant number of Member States
may invite 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 this Constitution.
A European law shall determine the provisions for the specific
procedure and conditions required for such a citizens' request.
The Government welcomes the new commitment in Article
46(3) for the Commission to consult broadly with all parties concerned.
This is important to ensure that, inter alia, the regions are
involved as fully and early as possible in discussions about issues
that will affect them. In this respect, we have also proposed
that the Union Institutions maintain a dialogue with the regions,
as well as representative associations and civil society, under
Article 46(2). This will help to improve the Union's transparency
and enhance its democratic credentials. However, the Government
remains to be convinced that the provision in Article 46(4) would
improve the existing arrangements for submitting a legislative
As with Article 33 above, the Government agrees with
the Committee that the terminology must be legally clear.
The Praesidium's draft of 26 May inserts a new Article
47: The social partners and autonomous social dialogue. This reads:
"The European Union recognises and promotes
the role of the social partners at Union level, taking into account
the diversity of national systems; it shall facilitate dialogue
between the social partners, respecting their autonomy."
Article 35: The European Ombudsman
The requirement that he or she be appointed by
the European Parliament (Article 195 TEC) is an important guarantee
of the Ombudsman's independent which we believe could usefully
be included in this Article rather than in Part Two of the new
This is now Article 48 and has been revised in line
with the Committee's point, that the appointment of the Ombudsman
by the European Parliament be included in this Article. It now
"A European Ombudsman appointed by the European
Parliament shall receive, investigate and report on complaints
about maladministration within the Union Institutions, bodies
or agencies. The European Ombudsman shall be completely independent
in the performance of his duties."
The Government is broadly content with this draft
Article. However, we have questioned whether it is appropriate
for this Article to apply to the common foreign and security policy
(CFSP), given the distinct, intergovernmental nature of that policy
area. We have proposed a new Article (238) in Part III of the
draft Constitutional Treaty that would exclude CFSP from the provisions
of this Article.
Article 35a: Political parties at European level
This draft Article has been removed from the Praesidium's
26 May re-draft and succeeding drafts. It now appears in Article
Article 36: Transparency of the proceedings of
the Union's institutions
The application of the principle should be expressly
extended to include all agencies and bodies established or created
by or under the Treaties.
But a general rule in the Treaty, such as that
in Article 36(2), would be an important step forward.
We recommend that Article 36(3) be amended so
that any natural or legal person (irrespective of his, her or
its nationality or residence) should have the right of access
to EU documents.
We recommend therefore that Article 36(3) be extended
to cover all bodies and agencies established or created by or
under the Treaties.
The Government believes that the revised Article
represents an improvement in clarity and drafting. It now reads:
1. In order to promote good governance and
ensure the participation of civil society, the Union Institutions,
bodies and agencies shall conduct their work as openly as possible.
2. As previously.
3. Any citizen of the Union, man or woman,
and any natural or legal person residing or having its registered
office in a Member State, shall have a right of access to documents
of the Union's Institutions, bodies and agencies in whatever form
they are produced, in accordance with the conditions laid down
in Part Three of the Constitution.
4. A European law shall lay down the general
principles and limits which, on grounds of public or private interest,
govern the right of access to such documents.
5. Each institution, body or agency referred
to in paragraph 3 shall determine in its own rules of procedure
specific provisions regarding access to its documents, in accordance
with the European law referred to in paragraph 4 above.
The Government's position on openness is clear. We
are keen advocates of greater openness in the working of the EU.
However, protection must be ensured for genuinely sensitive information
and to ensure legal certainty for the EU's citizens and its Member
States. It was in this spirit that the UK approached negotiations
of the EU's Access to Documents Regulation.
Article 2(2) of the Access to Documents Regulation
already provides that the Union Institutions may extend the right
of access to natural or legal persons not residing or having their
registered office in the Union.
Article 36a: Protection of personal data
We believe that the limits of the power in Article
36(2) need to be defined. It must be clear that Article 36a does
not confer any general power on the Union to legislate on data
This is now Article 50. It has been redrafted to
1. As previously.
2. A European law shall lay down the rules
relating to the protection of individuals with regard to the processing
of personal data by the Union's Institutions, bodies and agencies,
and by the Member States when carrying out activities which come
under the scope of Union law, and the rules relating to the free
movement of such data. Compliance with these rules shall be subject
to the control of an independent authority.
We have recommended that Article 50(1) be deleted
as it simply repeats what is already in the Charter of Fundamental
Rights. Such repetition does not aid legal clarity. We have further
proposed that Article 50(2) would be more appropriate in Part
III of the Constitutional Treaty.
Article 37: Status of churches and non-confessional
Whether Article 37 is necessary or helpful requires
This Article, now 51, has been slightly re-drafted:
1. The European Union respects and does not
prejudice the status under national law of churches and religious
associations or communities in the Member States.
2. The Union equally respects the status of
philosophical and non-confessional organisations.
3. Recognising their identity and their specific
contribution, the Union shall maintain an open, transparent and
regular dialogue with these churches and organisations.
As the Committee notes, this Article formalises the
status of churches and non-confessional organisations as set out
in the Treaty of Amsterdam. It helpfully recognises that Member
States, rather than the EU, have responsibility for policy on
The Government notes the Committee's comments about
this Article. In keeping with the aim of greater clarity, the
Treaty sets the scope of the Union's relations with Member States
and non-state actors. This Article deals with churches and non-confessional
organisations. Other provisions cover participatory democracy
and the Union's relations with social partners.
145 Government Response dated 20 June 2003. Back