Memorandum by the Rt Hon the Lord Owen
This submission is made to the House of Lords
Select Committee on the European Union (the Committee) in a personal
capacity although it refers at times to the position of New Europe,
an organisation of which I am Chairman. New Europe does not have
a collective view on the detailed draft Constitutional Treaty.
It does believe, however, that, the draft Treaty raises issues
of first class constitutional importance and that there is an
overwhelming case on those matters already apparently acceptable
to the European Council, for a referendum across the UK so that
individuals can accept or reject any new Constitutional Treaty
that emerges from the Intergovernmental Conference in 2004.
In posing as its first question for people to
scrutinize, "The proposed constitutional Treaty: a super
state? " the Committee is presumably seeking to identify
matters and wording within the Draft Constitutional Treaty for
the European Union that might have the potential to cross the
political threshold that creates a super state. That threshold
involves transforming the existing unique European Union of Member
States into a Union where its central decision-making on vitally
important areasin foreign affairs, defence, economic management,
including direct taxation and social security, as well as internal
securityso limits the powers of its Member States, acting
individually, that the Union acquires the character of a nation
state. The more gradual and diffuse the transfer of powers, the
harder it is to define the threshold. Article III-63 on taxation
and Article III-104.3, paragraph 2 on social security are examples
of this. The fact that the Committee believes that the question
about a super state needs to be answered is itself significant
and reflects widespread public concern.
This draft Treaty creates a new institutional
position, the President of the European Council, to replace the
current system in which the Presidency of the Council has rotated,
on a six-monthly basis, between Heads of Government of the Member
States. Let us leave aside the arguments which are continuing
between Member States about the desirabiliy or otherwise of this
Surely it would be agreed by members of the Committee that, if
the same person who holds the Presidency of the Commission could
also become the President of the European Council, then this would
be a massive consolidation of power in one person and would, in
effect, mean that the Union would be led by someone with most
of the powers of a Head of Government of a single state? This
is exactly what could happen by a mere Qualified Majority Vote
within the terms of the Constitution unless Article 21.3 (Title
IV, Chapter 1) is amended to reinstate the words deleted by the
Convention from the Praesidium draft of 22 April. The deletions
were made deliberately at a late stage so as to remove the words
that the President of the European Council "may not be a
member of another European institution" because there were
sufficient members of the Convention who want such a double-hatting
to take place at some future date without the need formally to
amend the Constitution. It is essential that these words are reinstated.
An indication of why this amendment is essential
if we are to protect ourselves against some constitutional sleight
of hand came in remarks from Giscard d'Estaing, President of the
Convention, as reported in the Financial Times on 26 August
2003. Giscard d'Estaing rejects suggestions that the Council and
Commission might be run by a single President in the foreseeable
future, but is quoted as saying "it may happen eventually,
but it is impossible for a single man to chair the Council and
the Commission, even for everyday work" and goes on to say,
"if you had a new President of the Union, the Commission
President would be subservient". It has been apparent for
many years that there are significant political leaders who want
a single all-powerful President of the Union and they should not
be abe to use a "double-hatting" procedure without amending
the Treaty to achieve it.
It is also of great importance that, in Article
21.1, the words from the Praesidium draft that anyone chosen as
President of the European Council should have previously been
a Head of Government be reinserted. It is a democratic safeguard
that this post should be held by someone who has been able to
win the support of people in their own country to hold the highest
position and then win the support of a qualified majority of fellow
Heads of Government, many of whom will have been able to judge
their qualities to hold the chair by virtue of having served together
on the Council.
There would be merit in reinstating the Praesidium's
original wording that the European Council is "the highes
authority of the Union" and so give it, as was suggested,
special authority for external action and matters associated with
internal security, like immigration and justice, rather than rely
only on the present wording in Article 20.1 that the European
Council "shall define general political directions and priorities."
Another innovation within the draft Constitution
is that, for the first time ever, we are asked to refer, first
in Article 20.2, to the holder of an office within the European
Union as a "Union Minister". Hitherto this term Minister,
synonymous with holding office within the Governments of Members
States, has been consciously avoided. As a result we have a Commission,
a President of the Commission, Commissioners, and a Secretary
General of the Council who is also High Representative for Common
Foreign and Security Policy (CFSP). Using the term "Minister"
is a political threshold which the EU should not cross. We will
otherwise soon be asked to agree a Union Minister for Economic
Affairs to conduct policy in this area. It is essential that all
references to the Union Minister for Foreign Affairs should be
deleted and replaced with High Representative for Foreign Affairs.
There are other aspects of the High Representative's
office which are new and should be reconsidered. The post of High
Representative arose out of the Treaty of Amsterdam and the need
for more politically powerful and permanent staff to develop and
represent the second intergovernmental pillar of CFSP. This post
was a necessary development of the Union and Xavier Solana, who
has held the post following his period as Secretary General of
NATO and prior to that as Spanish Foreign Minister, has built
a position in international affairs which brings credit to the
European Union. It is now proposed that the post of Commissioner
for External Affairs will disappear and that this role shall be
subsumed with that of the High Representative. Using the term
"double-hatted" what is proposed in the draft Constitution
is that, in effect, the High Representative should become in addition
Vice-President of the Commission in order to fulfil the tasks
of the External Commissioner. This change is not just a tidying
up exercise. It crosses a fundamental political threshold. It
is wrong in principle and unworkable in practice to expect the
holder of this post not to be answerable in the last analysis
to the intergovernmental European Council. It is also not compatible
with the intergovernmental concept of a Common Foreign and Security
Policy as spelt out in Article 39 and even more so for the common
security and defence policy in Article 40. Also the High Representative
besides being appointed by a qualified majority of the European
Council has to have the agreement of the President of the Commission.
There is a compromise already written into the
Constitution that when handling external relations the High Representative
should participate in meetings of the Commission and as expressed
in Article 27.3 "In exercising these responsibilities within
the Commission, and only for these responsibilities. . .shall
be bound by Commission procedures". If Member States are
not prepared to accept that compromise then it would be better
to keep the post of External Commissioner. The High Representative
should not be appointed with the agreement of the President of
the Commission, nor be a Vice-President of the Commission nor
as in the draft have their name submitted with the rest of the
Commission for the approval of the European Parliament. It is
essential that references to these proposed arrangements should
be deleted from the Draft Constitution. In its 15th Report Session
2002-03 this Committee on the matter of a single representative
being appointed to carry out both the functions of the High Representative
and the External Commissioner, said "If the roles are to
be exercised by one person, the High Representative's role must
remain firmly based in the Council". What is proposed in
the draft goes much further than the UK description of having
a foot in the Commission.
In Article 19The European Parliamentand
Article 26The President of the European Commissionimportant
new powers are granted to both institutions. Against that background,
it is not unreasonable for the European Council to have overall
authority over the person who also handles for the Commission
external relations. For the first time it will be possible under
the Constitution for the European Parliament to "elect the
President of the European Commission". This is subject in
Article 26 to the provision that "the European Council, deciding
by qualified majority, shall put to the European Parliament its
proposed candidate" but the Parliament can in theory repeatedly
reject the Council's suggested candidate until it is satisfied.
It is proposed that the European Parliament, also through majority
voting on the basis of co-decision with the Council, should take
power in 36 new areas from national parliaments. It should also
be noted that, for the first time, the President of the Commission
appoints on their own authority the 13 European Commissioners
from a list of three candidates submitted by the Member States,
under a system of rotation, as well as the non-voting Commissioners.
The President is also completely unconstrained in the power to
sack any of the Commissioners, to lay down guidelines for the
Commission's work, to decide its internal organisation and appoint
Vice-Presidents. These represent, in combination, huge additions
to the current powers of the Parliament and President of the Commission
viz-a-viz the Member States and should be borne in mind
when considering the suggested detailed amendments for Articles
20, 21, 25 and 27 to preserve intergovernmentalism in Foreign
Another essential element in relation to the
Draft Constitution relates to Article 6 on Legal Personality and
the bald statement that "the Union shall have legal personality".
Giving international legal personality to an international organisation
does not, in itself, affect the legal personality or the rights
of representation of the Member States in other international
organisations. The UK is a member of around 150 international
bodies which have been given international legal personality.
What does affect rights of representation are the rules of exclusive
and shared competence which apply to the external activity based
on First Pillar powers. The real concern is that the disappearance
of a separate Second Pillar calls into question the status of
external agreements based on CFSP powers, and also representation.
This is left totally unclear in this draft.
The Prime Minister, Tony Blair, in a letter
to me of 11 February 2003
said, in relation to legal personality for the Union "I
recognise that there are some advantages to this in terms of simplicity
and the EU's international profile. But there are also potential
dangers, as I noted after the Amsterdam Council. My view remains
that I would not accept a single legal personality for the EU
unless it was made clear that the Common Foreign and Security
Policy (CFSP) remained intergovernmental and that Member States
retained their current rights in terms of representation on international
bodies. In my view, maintaining the separate arrangements for
CFSP includes keeping it outside the jurisdiction of the European
Court of Justice (ECJ). I do not consider ECJ jurisdiction in
CFSP matters to be consequent on a legal personality for the Union."
It is essential that this potential danger is eliminated by specific
amendments and Article III-228.4 clarified.
Article 7.2 says that the Union shall seek accession
to the European Convention for the Protection of Human Rights
and Fundamental Freedoms. After the last word "Constitution"
of that section one must add, "nor the exclusion of the common
foreign and security policy from the jurisdiction of the Court
of Justice as stipulated in Article III-282". This needs
to be stated in the Constitution because otherwise to accede to
the European Convention while CFSP is outside the jurisdiction
of the Court of Justice, some will argue, would give rise to incompatibility.
The effect of this amendment to the Constitution means that Article
7 would override Article III-282.
Article 40 needs radical amendment for it goes
way beyond what was agreed at the IGC in Nice. The existing position
is that the emergence of a common Union defence policy might
occur but is not something that will occur. It should depend
on reaching an inclusive definition of common defence over time
and not on an exclusive definition in which NATO does not play
a central part and where there is insufficient joint planning
of the sort agreed in Berlin Plus. It is vital that we do not
establish structured cooperation within the framework of enhanced
cooperation "in matters having military and defence implications"
which is the position agreed in the Nice Treaty.
Article 24.4 has to be deleted. This is the
so-called "escalator" or passerelle clause. It
was inserted at the last moment in the Convention and it allows
the European Council acting unanimously to move from "special"
to "ordinary" legislative procedures. This would allow
a temporary political unanimity on the Council to replace the
constitutional requirement for unanimity in voting procedures
provided for in this Constitution with qualified majority voting
in any area the European Council wishes. It opens the perspective
of changing the voting procedures of the Union without the proper
procedures for amending the Treaty, already provided for in the
draft Constitution. Given the political importance of voting procedures
this Article must surely be unacceptable to all who believe in
upholding the democratic nature of the Union.
In terms of the actual wording of the draft
Constitution, in a strict sense, it might be possible to agree
that there are no other amendments that can be deemed essential
to ensure that the political threshold from a Union of Member
States is not crossed in a real sense, however, any such confidence
can only come from retaining the existing opt-outs for Member
States, whether these apply to the UK remaining outside the Eurozone
or keeping control of its borders; or Denmark keeping its more
extensive opt-outs; or other Member States keeping out of defence
matters. Were all Member States to decide at some early date to
end their present opt-outs the underlying nature of the European
Union would suddenly and dramatically change and it would immediately
become far closer to having the character of a super state.
In addition to what I have termed essential
there are a wide range of other amendments listed in the order
that the Articles appear in Cmnd 5897. I do not pretend that this
is a comprehensive list. It focuses mainly on international aspects
leaving aside for the moment amendments on the EU budget proposals
and on the European Monetary Union. The UK government will be
defining its own red lines. But the absence of most of these suggested
amendments after the IGC would, in my view, make ratification
of the Treaty a hazardous move. Each of these amendments if rejected
would not, of themselves, mean crossing the threshold to a super
state. However the cumulative effect of many of these amendments
not being accepted could, in my judgment, be sufficient to cross
This means the UK Government must start the
IGC in a determined frame of mind that the draft has to be substantially
altered. None of these suggested amendments are in any way opposed
to the broad thrust of restructuring the present EU Treaties so
that the EU can manage its affairs efficiently in the context
of an enlargement from 15 to 25 Member States and eventually to
30 or more Member States. Nor do any of the amendments contradict
anything already agreed in the existing Treaties.
In a purely personal capacity I hope that, after
the conclusion of the IGC, I will feel able to vote for any Treaty
that emerges. I voted to join the European Community in principle
in 1971 in the House of Commons and resigned as Defence Spokesman
in 1972 when that decision looked in jeopardy. I have supported
every amendment to the Treaty of Rome since the UK joined the
European Community in 1973. But, for the present time, I have
profound doubts about the wisdom of endorsing this draft Treaty
unless it is substantially amended. We should be honest with ourselves.
Serious politicians with an open agenda have deliberately designed
this draft Treaty in ways which move towards eroding the self-governing
nature of the Member States. They hope the Union will inexorably
develop over the next decade or so with the character of a super
state. It is the constitutional responsibility of the British
Parliament to block that design unless and until we are confident
that such a development reflects the considered will of the British
Specific suggested amendments to The Draft
Constitutional Treaty for the European Union
as presented in Cm 5897
PART I TITLE I: DEFINITION AND OBJECTIVES
OF THE UNION
Article I: Establishment of the Union
1. Line 4 insert "where appropriate"
Explanation: The reason for this
is that the "Community way" was suggested by Giscard
d'Estaing to replace "Federal way" and has links in
people's minds to the phrase, "Community method". It
implies that there will be no powers which should be exercised
in the intergovernmental way. The UK Government in its White Paper
Cmnd 5318 Realising Europe's Potential: Economic Reform in
Europe as part of the post-Lisbon economic reform process
said, "Lisbon marked a recognition not only that all EU economies
needed to undertake further structural reform, but also that the
traditional Community method, which had served the EU well in
the construction first of the Customs Union and then of a Single
Market, would not always be appropriate to this challenge."
Article 3: The Union's objectives
3. Replace "territorial cohesion"
with "regional policy". Regional policy is what it has
been in the past; territorial cohesion has no clear meaning.
Article 6: Legal personality
After "legal personality" insert "in
a manner which allows Member States to retain their current rights
in terms of representation on international bodies."
Explanation covered in Introduction.
It is not sufficient to say as some do that this is implicit in
TITLE II: FUNDAMENTAL RIGHTS AND CITIZENSHIP
OF THE UNION
Article 7: Fundamental rights
1. line two, after "Constitution"
insert "but none of these shall be justiciable in the courts
of Member States merely because they are recognised and described
within the Charter. The Charter is not intended and does not in
fact extend the competences of the Union".
Explanation: The last sentence suggested
is a recommendation from this Committee's 6th Report 2002-03,
para 96. The danger is of diverging interpretations emerging from
the ECJ and from the Strasbourg Tribunal. It is hard to believe
that limitations on the scope of the Charter to the EU institutions
and to Member States only when they are implementing EU laws is
intended can be durable if the rights are indeed fundamental.
For example, if there is any movement towards Qualified Majority
Voting under Article III-104 (3) that combined with the Charter
would lead rapidly to a centralized social security system. It
is the long term implications economically that need to be very
2. Last sentence to read "Such accession
shall not affect the Union's competences as defined in the Constitution
nor the exclusion of the common and foreign policy from the jurisdiction
of the European Court of Justice."
Explanation covered in Introduction.
Informed international legal advice predicts given the confusion
over legal personality as incompatibility between two different
aspirations for the Union to accede and for the Court of Justice
to remain outside of CFSP.
TITLE III: UNION COMPETENCES
Article 9: Fundamental principles
3. First line after "subsidiarity"
delete "in areas which do not fall within its exclusive competence".
Explanation: It should be possible to
return powers to Member States from the exercise of all competences
within the Union.
Article 10: Union law
1. After "Member States" insert
"only where the Community way is applicable".
Article 11: Categories of competence
Retain para 1. Delete paras 3 and 4.
Transfer 11.2 to Article 16 and insert after
Transfer 11.5 to Article 16 to become 16.2.
Transfer 11.6 to Article 16 to become 16.3.
Existing 16.2 becomes 16.4 and 16.3 becomes
NB Note that current Article 16 becomes Article
17. Amendments above therefore will apply to newly numbered Article
Article 13: Areas of shared competence
2. second indent. After "justice"
add "with the exception of police cooperation and judicial
cooperation in criminal matters".
Explanation: See new Article 16.
seventh indent. Delete "territorial cohesion"
and insert "regional policy".
Article 14: The coordination of economic and employment
1. Delete "adopt" and insert "promote".
3. Delete whole para.
4. Delete whole para.
New Article 16: Police Cooperation and Judicial
Cooperation in Criminal Matters
Insert one new sentence for Article 16.
"Judicial cooperation in criminal matters
and police cooperation in the Union shall take into account where
appropriate mutual recognition of judgments and judicial decisions
and the approximation where necessary of the laws and regulations
of the Member States".
See also later amendments to Article III-171.
Existing Article 16 becomes Article 17.
Explanation: As currently drafted the
UK would be accepting for the first time that Police Cooperation
and Judicial Cooperation in Criminal Matters will come under Community
laws and have primacy over laws passed by Westminster. It is one
thing to accept that Community law making may bring advantages
in judicial cooperation in civil matters with cross border implications,
quite another to extend this power to criminal matters and the
way Member States run their police forces with the Commission
being given the right of initiative in police and criminal matters
and with the majority of measures adopted by co-decision. This
area should remain intergovernmental. See 16th Report 2002-03
of this Committee.
Article 17: Flexibility clause
Delete whole Article.
Explanation: This provision has been
in the Treaties since 1957. Since I do not think it wise to change
the existing Treaties there is a case for retaining it. It was
regarded as quite a big problem in the Eighties, but recently
it has not been much used. Against this it can be argued that
it is an important consequence of choosing to create a Constitution
for the Union that Member States insist that the new Constitution
cannot be easily amended and that the Union gains from one of
the major benefits of having a fixed Constitution, namely political
stability. The structure of the European Union has been in constant
flux since the Maastricht Treaty was ratified. Instead of stability
we will have had three IGCs in the space of 10 years and three
new Treaties: Amsterdam, Nice and now in 2004 what is expected
to be the Second Treaty of Rome. In other stable democracies with
a fixed Constitution their Constitutions are not subject to continuous
review. The Flexibility Clause allows the Council of Ministers,
the Commission and the European Parliament to interpret what powers
are necessary "to attain one of the objectives set by the
Constitution" and then to "take the appropriate measures".
That is an open door provision. It is a mechanism for avoiding
the full procedures for amendment of the Constitution provided
for in Article IV-7 (p 148) which itself needs to be amended to
raise the threshold for examining proposed amendments. This Committee
in its 9th Report 2002-03, para 82 refers to it as a "catch
all/fallback clause" and goes on to warn it "could be
used as a way of bypassing the need to amend the Constitution
and the parliamentary democratic control and national constitutional
requirements that would imply". On balance I conclude the
whole Article would be best deleted.
TITLE IV: THE UNIONS INSTITUTIONS
Article 20: The European Council
2. Delete full stop and "The Union
Minister" and insert "and the High Representative".
Make same change in all future references to Union Minister in
the draft Treaty. Delete "shall take part in its work"
and insert "The three named office holders will not carry
a vote on the Council".
Article 21: The European Council Chair
1. Insert after the first sentence. "The
person elected must have been a member of the European Council".
3. After "not" insert "be
a member of another European institution or".
Explanation: The above restores the wording
originally put forward in the Praesidium and ensures that neither
the President of the Commission nor the High Representative for
Foreign Affairs can also serve as the President of the European
Council. By precluding "double-hatting" it ensures continued
separation between Commission competences and intergovernmental
Note: Amendments to Article 23 and Article 24
come after the new series of related amendments.
Article 25: The European Commisison
3. Delete "the High Representative
for Foreign Affairs/Vice-President,"
Article 27: The High Representative for Foreign
1. Delete "with the agreement of the
President of the Commission". Delete "conduct"
and insert "guide".
3. Line one and two, delete "shall
be one of the Vice-Presidents of the Commission. He or she"
and delete "there". In line four delete "within"
and insert "with" to read as follows:
"The High Representative for Foreign Affairs
shall be responsible for handling external relations and for coordinating
other aspects of the Union's external action. In exercising these
responsibilities with the Commission, and only for these responsibilties,
the High Representative for Foreign Affairs shall be bound by
Article 23: Formations of the Council of Ministers
1. Line 6. Delete "European laws and
European framework laws" and insert "European regulations,
European directives and European decisions". This amendment
to be made in all other relevant Articles.
Explanation: One of the mandates to the
Convention set out by the IGC at Nice in 2001 and by the Heads
of Government at Laeken was to simplify the working of the European
Union for its citizens. Nowhere in the Draft Constitution is this
more flagrantly ignored than in Article 23 which renames the instruments
of the previous European Community and Union. It was not without
careful thought that the drafters of the first Treaty of Rome
chose politically to use the term European regulations and directives
instead of European laws and European framework laws. The case
against this change, however, is not just political. There are
strong practical reasons for keeping the existing nomenclature.
The acquis of the Community is much criticized for its length
and it is particularly hard to absorb for the officials of Member
States entering for the first time into the Union. Many people
not well versed in the European Union do understand the present
nomenclature. Why change it now? The cost, confusion and the lack
of clarity that will stem from making this change has few offsetting
gains. The confusion will be particularly awkward where an existing
term `regulation' would by Article 35 be given a totally different
meaning. Exactly the same arguments can be made for the change
of nomenclature suggested for CFSP where it is better to keep
to the wording of common position or joint action. In addition,
keeping the existing nomenclature will make it easier to bring
the three pillars together in the draft Treaty with the familiar
names of procedures for not just CFSP but also for Police Cooperation
and Judicial Cooperation in Criminal Matters which should stay
intergovernmental. Anyone working in the field of Union law will
in any event require to be familiar with existing terms, since
the acquis will remain in force and relevant for many years to
come. This Committee in its 12th Report 2002-03 para 10 said that
"creating a new category of `regulation' and categorizing
some Union legislation `legislative acts' and some `non legislative
acts' does not seem helpful".
4. At end of first sentence after "year"
insert "but not more than three years."
Article 24: Qualified majority
4. Delete whole para.
Explanation: This is the "escalator"
or passarelle clause discussed in the Introduction giving
the European Council the widest power to change the voting procedures.
Article 39: Specific provisions for implementing
common foreign and security policy
5. Line four, after "interests,"
insert "wherever possible"
Line six, after "shall" insert "where
there is concensus".
Article 40: Specific provisions for implementing
the common security and defence policy
2. Line 2, delete "will" and insert
Explanation: This retains the existing
wording "might" used in Article 17 of the TEU as amended
by the Nice Treaty and is consistent with Article 15.1. It is
essential to preserve the UK position that a common defence policy
should not be an exclusive policy but an inclusive one with NATO
within its framework and that unless that emerges from negotiations
there will not be a common Union defence policy.
3. Delete "shall" and insert "may".
6. Delete whole para.
7. Delete whole para.
Explanation: These two paras invoke structured
cooperation which is the same as enhanced cooperation according
to this draft. Yet Articlee 27b of the Nice Treaty specifically
said enhanced cooperation, "shall not relate to matters having
military or defence implications". This establishes a defence
guarantee in a way which is potentially damaging to the existing
NATO guarantee and foreshadows an exclusive collective defence
organisation within the Union and which goes further than the
existing wording of the Nice Treaty. Paragraph 5 already gives
sufficient flexibility for practical purposes.
Existing Article 40.8 becomes 40.7
Article 41: Specific provisions for implementing
the area of freedom, security and justice (insert "with the
exception of police cooperation and judicial cooperation")
3. Delete whole para.
Explanation: The exclusion of police
cooperation and judicial cooperation in criminal matters is dealt
with by substantial amendments to Article III-171 and Article
THE CHARTER OF FUNDAMENTAL RIGHTS OF THE
Para 4: Line nine, after "Charter"
insert "None of the fundamental rights referred to in this
Charter will be justiciable in the Courts of the Member States
merely because they are recogniced and described within this Charter".
THE POLICIES AND FUNCTIONING OF THE UNION
As in all other cases replace "territorial
cohesion" with "regional policy".
Delete para 2.
This introduces new measures to be covered by
European laws which should be dealt with by national legislation,
eg passports (particularly sensitive because of their links with
nationality and the right to diplomatic protection), identity
cards and residence permits. They should remain the legislative
preserve of individual nations.
Para 2 once again seems to introduce a device
to side step the necessity for Treaty amendment.
6. European laws in this context seem to
have moved from decisions made by unanimity (as in MaastrichtTEU
Article 105.6) to decisions by Qualified Majority.
1. Line 3, delete "European" and
insert "Eurozone". Line 5, after "conferences".
add "Eurozone decisions will not be binding on the Member
States exercising their right to opt out of the Eurozone".
3. Line 2, after "representation",
insert "for those Member States which are part of the Eurozone".
Delete whole para.
Employment legislation should be the responsibility
of the Member States.
Delete para 3. This is entirely inappropriate
wording for an operative part of a Constitutional Treaty.
Section 10: Energy
1. Delete "In establishing an internal
market and with regard for the need to preserve and improve the
2. Delete whole para.
It is better to leave legislative authority
with Member States over Energy.
1. First line, delete "be based on
the principle of" and insert "take into account".
Second line, delete "shall include". Delete remainder
of Article, ie second para and 2.
1. Delete "European framework laws
may establish" and insert "Judicial cooperation may
Delete third para.
2. Delete completely.
Replace "European laws or framework laws"
with "Judicial cooperation".
Delete paras 2 and 3.
Delete whole Article.
There is no case for a Union of Member States
having a European Public Prosecutor's Office. This should be a
matter for the Member States.
Delete paras 2 and 3.
2. Line 1, after "shall" insert
"normally". Line 2, delete "conduct" and insert
"guide". Line 3, after "shall", insert "normally".
3. line three, after "Member States"
insert "who shall at all times provide a majority on secondment
to serve for periods not to exceed five years in the European
External Action Service."
Delete para 3. Para 4 becomes para 3. Delete
reference in this para to para 3.
Line one, delete "on the initiative of
the High Representative for Foreign Affairs". Line four,
delete "authority" and insert "guidance".
1. Delete the whole of the last paragraph.
Explanation: It is not appropriate to
mandate a Member State who is on the Security Council, let alone
tell them, who they should request to speak. The Security Council
has its own procedure for determing who it calls to speak.
2. Line five, after "Committee"
insert "and in close cooperation with the Deputy Supreme
Allied Commander Europe in NATO".
Delete whole Article.
Explanation: See introduction rejecting
structured cooperation and enhanced cooperation in defence and
Delete whole Article.
This Article while much of it can remain needs
to be substantially revised. As currently drafted it could change
the entire law of the external relations of the European Community.
Apart from not being acceptable it would cause immense confusion.
Delete whole of para 3.
This Article needs to be substantially revised.
As presently drafted it would cause difficulty, given that the
existing Commission delegations will form for the foreseeable
future the nucleus of the new delegations with more general functions.
Line two, before "Chapter" insert
"Chapter I Article III-194 and"
Line three, after "policy" insert "Or
arising from any action falling under Article III-342.1 (a)"
Explanation: This amendment relating
to Article III-342 to the original 1958 EEC Treaty should have
been done at the time of the Maastricht Treaty as a consequential
amendment to the decision to keep the ECJ out of CFSP. It is even
more important now in view of common security and defence policy.
2. Penultimate line, delete "granted"
to end of para and insert "adopted by the European Council
and the Council of Ministers unanimously".
Explanation: reverts to same wording
as used in Article 39.7
2. line two, delete "simple" and
insert "qualified", same change in line seven.
Protocol on the Role of National Parliaments in
the European Union
4. line one, delete "six" and
insert "ten". Line ten, after "Ministers"
insert "To ensure compliance with the principle of subsidiarity
if one third of national parliaments have objected to a legislative
proposal on the grounds of subsidiarity the Council of Ministers
must adopt such a positin unanimously".
Explanation: The 11th Report 2002-03
of the Committee para 58 favoured strengthening the proposed Protocol
requiring the European Commission to withdraw their proposal if
objected to in reasoned opinions by two thirds of national parliaments.
This could also be adopted as an additional power but forcing
unanimity on the Council following objections from one third of
national parliaments is a constraint more likely to be invoked.
Declaration on the Creation of a European External
At the end of the first para after "diplomatic
services" insert "At all times the staff seconded from
national governments who may serve for only five years continuous
service shall be a majority".
3 Memorandum by New Europe of 21 January 2003 annexed
to this submission (not printed). This comments on the Convention's
then discussions and amongst other recommendations advocated a
continuation of the rotating Presidency with either groupings
of six or eight Member States assuming the Presidency with lead
countries chairing the European Council. Back
Letter from the Prime Minister to Lord Owen of 11 February 2003,
copy attached to this submission (not printed). Back
HM Treasury Cmnd 5318 Realising Europe's Potential: Economic
Reform in Europe, Stationary Office London February 2002. Back