PART 2: ANALYSIS of Articles 1-16 of
the Constitutional Treaty |
TITLE I: Definition and objectives
of the Union
Establishment of the Union
1. Reflecting the will of the peoples and the States of Europe to build a common future, this Constitution establishes a Union [entitled
], within which the policies of the Member States shall be coordinated, and which shall administer certain common competences on a federal basis.
2. The Union shall respect the national identities of its Member States.
3. The Union shall be open to all European States whose peoples share the same values, respect them and are committed to promoting them together.
"This Article establishes the Union and describes its fundamental characteristics. In response to requests made at the plenary, the wording proposed is designed to adequately express the dual dimension of a Union of States and of peoples of Europe in terms appropriate to a Constitutional Treaty.
Because of its fundamental political importance, it was deemed advisable to emphasise in Article 1 the Union's respect for the national identity of its Member States; Article 9(6) then lists certain features of national identity which more specifically require respect in the legal sense when the Union is exercising its competences.
It also seems appropriate already to list the conditions for membership of the Union in Article 1, although the procedures for accession of new Member States, suspension of rights and withdrawal from the Union would be dealt with in more detail in Title X."
6. A preliminary point that needs to be made
is that no draft preamble has yet been produced. Any preamble
could be purely formal, reciting the history of the formation
of the text that follows. But it might also contain (general)
statements relating to the nature and objectives of the Union.
Any such statements might colour the later Articles and could
be used as an aid to interpretation, for example before the Court
7. Article 1(1) leaves a space for the name of
the Union to be inserted. It will be recalled that last October's
skeleton text floated four possibilities: European Community,
European Union, United States of Europe, and United Europe. We
favour the retention of "European Union". It is well-known
and the least controversial.
8. As the Explanatory note indicates, Article
1(1) has been crafted so as to "express the dual dimension
of a Union of States and of peoples of Europe". But the new
Treaty will be, and the Union will be established by an agreement
between independent sovereign States, entered into by representatives
of the governments of Member States. Whether and how the "peoples
of Europe" will be consulted on the final text in advance
of ratification will be a matter for the constitutional requirements
of individual Member States. Given the paramount importance of
this Treaty each Member State will no doubt consider through referendums
or other constitutional means how best to ensure that the new
Constitution reflects "the will of the peoples of Europe".
The term "peoples" is itself unclear (see paragraph
9. Article 1(1) also defines the fundamental
twofold function of the Union: coordinating the policies of the
Member States; and administering certain common competences. It
is noteworthy that the Article speaks of the policies of
Member States being coordinated but only certain common
competences being administered. Further, the draftsman has retained
the words "on a federal basis" from the skeleton text.
This phrase has, not unexpectedly, attracted much media attention
and undoubtedly will be the subject of controversy. And, indeed,
the words raise questions as to the intended basic character of
the Union. "Federal" may have a different meaning in
other languages and imply different things in the different national
political cultures and psyches. The German, föderal,
suggests decentralisation and a significant degree of regional
autonomy whereas for some the English word, federal, when used
in a European context, imports a high degree of centralisation.
We wonder whether "on a devolved/delegated basis" might
not be nearer to what the draftsman had in mind. "At the
Union level" might be a less politically sensitive alternative.
10. Article 1(2) is not new. It restates what
is presently Article 6(3) of the Treaty on European Union (TEU).
Cultural diversity is specifically recognised in Article 3(3)
(below). Article 1(2) is repeated verbatim in Article 9(6), but
there the statement is amplified to show how the obligation relates
to the political and constitutional structures of the Member States.
11. Article 1(3) replaces Article 49 of the TEU
("Any European State which respects the principles set out
in Article 6(1) [TEU] may apply to become a member of the Union").
It is noteworthy that while the Union appears to remain a Union
of States the criterion for membership is defined by reference
to "peoples sharing" the same values as the Union (set
out in Article 2 - below) rather than "States respecting"
those values. The change from "may apply" to "shall
be open" also raises a question as to the continuing nature
of the requirement in Article 1(3), especially if there is included
in the new Treaty some provision for "expulsion" or
withdrawal of States of the Union (see Articles 43-46 of the skeleton
12. Finally, as has been noted by a number of
commentators, Article 1 contains no equivalent to the second paragraph
of Article 1 of the TEU: "This Treaty marks a new stage in
the process of creating an ever closer union among the peoples
". This is a significant omission. It waits
to be seen whether such words will be reintroduced, perhaps via
the preamble"an ever closer union among the peoples
of Europe" was mentioned in the first preambular statement
to the Treaty of Rome. The reason for the omission may, however,
be that the framers of the Constitution take the view that the
desired "ever closer union" has been achieved.
Article 2: The Union's values
1. The Union is founded on the values of respect for human dignity, liberty, democracy, the rule of law and respect for human rights, values which are common to the Member States. Its aim is a society at peace, through the practice of tolerance, justice and solidarity.
"This Article concentrates on the essentials - a short list of fundamental European values. Further justification for this is that a manifest risk of serious breach of one of those values by a Member State would be sufficient to initiate the procedure for alerting and sanctioning the Member State (see Article 45 of the preliminary draft Treaty which would incorporate the mechanism set out in Article 7 TEU), even if the breach took place in the field of the Member State's autonomous action (not affected by Union law). This Article can thus only contain a hard core of values meeting two criteria at once: on the one hand, they must be so fundamental that they lie at the very heart of a peaceful society practising tolerance, justice and solidarity; on the other hand, they must have a clear non-controversial legal basis so that the Member States can discern the obligations resulting therefrom which are subject to sanction.
That does not, of course, prevent the Constitution from mentioning additional, more detailed elements which are part of the Union's "ethic" in other places, such as, for instance, in the Preamble, in Article 3 on the general objectives of the Union, in the Charter of Fundamental Rights (which, unlike this Article, does not, however, apply to autonomous action by the Member States), in Title VI on "The democratic life of the Union" and in the provisions enshrining the specific objectives of the various policies."
13. Article 2 is derived from Article 6 TEU.
Some of the language has changed. So the Union now has "values",
rather than "principles", to be respected. "Human
dignity" has been added to "liberty, democracy, the
rule of law and respect for human rights". Respect for human
dignity is also assured by Article 1 of the EU Charter of Fundamental
That "human dignity" should be added and take precedence
is justifiable. The preamble to the 1948 Universal Declaration
of Human Rights provides: "Whereas recognition of the inherent
dignity and of the equal and inalienable rights of all members
of the human family is the foundation of freedom, justice and
peace in the world".
14. The second sentence is new. The Union's aim
to be "a society at peace" is not to be found in the
earlier texts. Its inclusion reflects the endeavours of the founding
fathers of the European Coal and Steel Community (ECSC) and the
(then) Common Market, and takes on an added significance in the
light of the forthcoming enlargement (particularly to the East)
and further enlargement (into the Balkans) now beginning to be
discussed. "Justice" and "solidarity" are
terms already found in the Treaties. But "tolerance"
is new. It is unclear what its practice is intended to embrace
in the context of the Union.
Article 3: The Union's objectives
1. The Union's aim is to promote peace, its values and the well-being of its peoples.
2. The Union shall work for a Europe of sustainable development based on balanced economic growth and social justice, with a free single market, and economic and monetary union, aiming at full employment and generating high levels of competitiveness and living standards. It shall promote economic and social cohesion, equality between women and men, and environmental and social protection, and shall develop scientific and technological advance including the discovery of space. It shall encourage solidarity between generations and between States, and equal opportunities for all.
3. The Union shall constitute an area of freedom, security and justice, in which its shared values are developed and the richness of its cultural diversity is respected.
4. In defending Europe's independence and interests, the Union shall seek to advance its values in the wider world. It shall contribute to the sustainable development of the earth, solidarity and mutual respect among peoples, eradication of poverty and protection of children's rights, strict observance of internationally accepted legal commitments, and peace between States.
5. These objectives shall be pursued by appropriate means, depending on the extent to which the relevant competences are attributed to the Union by this Constitution.
"The philosophy of this Article is to set out the general objectives justifying the very existence of the Union and its action for its citizens in a more cross-sectoral fashion and not to list the specific objectives pursued by the various policies of the Union which are to be found in Part Two of the Treaty.
The fundamental difference between this Article and Article 2 therefore needs to be emphasised: while Article 2 enshrines the basic values which make the peoples of Europe feel part of the same "union", Article 3 sets out the main aims justifying the creation of the Union for the exercise of certain powers in common at European level."
15. The Union's objectives are currently listed
in Article 2 TEU and Article 2 TEC. Some of those listed in the
new Article 3 are new, some well-established. The objective of
promoting peace may be new. The TEU currently includes, as an
objective of Common Foreign and Security Policy (CFSP): "to
preserve peace and strengthen international security". The
new reference in Article 3(1) may be intended to be more extensive
but is not out of keeping with statements in the earlier Treaties.
The Treaty of Paris (ECSC) referred to the safeguarding of world
peace, the Treaty of Rome to "an increase in stability",
and the Maastricht Treaty to "the historic importance of
the ending of the division of the European continent". Does
Article 3(1) "peace" mean peace in the EU or peace internationally
or both? Should it be distinguished from "peace between States"
in Article 3(4)?
16. "The well-being of its [the Union's]
peoples" is new. Its meaning is also unclear. Does "peoples"
refer to EU citizens only? Or does it also include third country
nationals and, if so, only those lawfully in the Union? How does
"peoples" differ from Member States or nations? What
17. Article 3(2) refers to "sustainable
development based on balanced economic growth and social justice".
Currently in Article 2 TEC we have "harmonious, balanced
and sustainable development of economic activities", and,
in Article 2 TEU, "balanced and sustainable development in
particular through the creation of an area without internal frontiers".
The new reference to "sustainable development" appears
to be a more general, broader term encompassing both economic
and social policies.
18. There is language in the first sentence of
Article 3(2) which may be understood as meaning that all Member
States have an obligation to enter the Euro zone. We return to
this issue when considering Article 13.
19. The term "social justice" is new,
as is "aiming at full employment". Article 2 TEC refers
to "a high level of employment and social protection".
The new text may be controversial. The meaning of "full employment"
is unclear and there are concerns that this objective could impinge
on national economic policy. The reference to "scientific
and technological advance including the discovery of space"
is also new.
The provision would have significant financial implications if
the underlying intention is that the EU should commit resources
to a space research programme on US or Russian lines.
20. Solidarity has often been used in the Treaties,
in various contexts,
but "solidarity between generations" is new and is of
uncertain meaning. "Equal opportunities for all" is
also a new objective.
21. Article 3(3) includes a reference to cultural
diversity. But this has not previously been linked with the notion
of an area of freedom, security and justice. Article 151(1) TEC
provides: "The Community shall contribute to the flowering
of the cultures of the Member States, while respecting their national
and regional diversity and at the same time bringing the common
cultural heritage to the fore".
22. Article 3(4) is new and emphasises the "external"
dimension of EU policies and the potential role of the EU as an
international actor with one voice ("defending Europe's independence
and interests"). Some of the terms are unclear. For example,
what is sustainable development "of the earth" and to
what extent is it different from "sustainable development"
in Article 3(2)? Is Article 3(2) referring to sustainable development
within the EU and Article 3(4) to sustainable development globally?
23. The various references to "peace"
(Articles 2, 3(1) and (4)) raise similar questions. "Independence",
"values" and "peace" can all be found in Article
11 TEU, which states as CFSP objectives:
· to safeguard
the common values, fundamental interests, independence and integrity
of the Union in conformity with the principles of the UN Charter
· to strengthen
the security of the Union in all ways
· to preserve
peace and strengthen international security
· to promote
· to develop
and consolidate democracy and the rule of law
So "peace" can be found in the CFSP context,
where it is linked to external action. But the word is now used
to refer also to the EU itself. Article 2, setting out the Union's
values, provides that the Union's aim is "a society at peace"
(see Article 2 above).
24. Article 3(5) refers to the pursuit of the
Union's objectives by "appropriate means, depending on the
extent to which the relevant competences are attributed to the
Union by this Constitution". It is unclear what is meant
by "appropriate" in this context, and in particular
whether Article 3(5) is doing anything more than stating the requirement
that the Union must abide by the principles of conferral, subsidiarity
and proportionality set out in Article 8(1).
25. It is noteworthy that Article 3 does not
include, as an objective of the Union, "to maintain in full
the acquis communautaire and build on it
The no-ratchetting back provision (currently the fifth objective
listed in Article 2 TEU) was a key element in the compromise reached
at Maastricht between those Member States who wanted a federal
Europe and those who did not. The omission is significant and,
it would seem, not accidental. The new Treaty may not contain
an explicit repatriation clause. But Article 12(3), considered
further below, appears to contemplate the possibility of certain
competences being returned to Member States ("Where the Union
ceases to exercise its competence
the Member States
may exercise theirs").
Article 4: Legal personality
1. The Union shall have legal personality.
"In accordance with the recommendation from Working Group III (CONV 305/02), this Article confers legal personality on the Union.
An Article on the Union's legal capacity (see Article 282 TEC), given its highly technical nature, should appear in Part Two of the Constitutional Treaty."
26. The European Community has legal personality
(Article 281 TEC) and has, in each of the Member States, "the
most extensive legal capacity accorded to legal persons under
their laws" (Article 282 TEC). Articles 184-5 of the Euratom
Treaty are in identical terms to Articles 281-2 TEC. The Community
therefore has capacity, within its field of competence, to enter
into obligations binding in international law. The Community is
party to a wide variety of international agreements and is also
a member of a number of international organisations. However,
the Treaties do not expressly confer legal personality on the
European Union and consequently, some have argued, the Union has
no power to enter into obligations binding in international law
or to belong to international organisations.
27. In its Report, The Future of the EU Charter
of Fundamental Rights,
the Committee agreed with the recommendation of Convention Working
that the Union should expressly be granted legal personality.
It would, for example, facilitate EU, as opposed to EC, accession
to the European Convention for the Protection of Human Rights
and Fundamental Freedoms (ECHR). This is addressed further in
Article 5(2) (below).
TITLE II: Fundamental rights and citizenship
of the Union
Article 5: Fundamental rights
1. The Charter of Fundamental Rights shall be an integral part of the Constitution. The Charter is set out [in the second part of/in a Protocol annexed to] this Constitution.
2. The Union may accede 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 by 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.
"The text proposed reflects two central recommendations by Working Group II (CONV 354/02), on the one hand to incorporate in the Constitution the Charter of Fundamental Rights so that it has constitutional status and is legally binding and, on the other hand, to enable the Union to accede to the European Convention on Human Rights.
As to the technique for incorporating the Charter, the fact that the complete text (with all the drafting adjustments mentioned in the Working Group's final report) will appear either in a separate second part of the Constitution or as a Protocol annexed to it will safeguard its fully binding legal nature and allow the general rules concerning future amendments of the Constitution to be applied to the Charter. Moreover, that technique will also keep the structure of the Charter intact and avoid making the first part of the Constitution more lengthy. At the same time, the reference to the Charter in the first few articles of the Constitution will underline its constitutional status.
The legal basis in paragraph 2 enabling the Union to accede to the ECHR also expressly provides that accession must not affect the division of competences between the Union and the Member States, in line with a recommendation from Working Group II. Only the European Convention on Human Rights is mentioned in this paragraph because of the fact that a Court of Justice opinion in 1996 had rejected Community competence to accede to that Convention on the basis of considerations specific to it. This paragraph is not therefore intended to rule out the possibility of Union accession to other international conventions relating to human rights on the basis of the competences conferred in Part Two of the Treaty.
Paragraph 3 draws on Article 6(2) TEU as it now stands and is intended to indicate clearly that, in addition to the Charter, Union law recognises additional fundamental rights as general principles resulting from two sources - the European Convention on Human Rights on the one hand and the constitutional traditions common to the Member States on the other. As stressed by various members of the Convention in Working Group II (see pages 9 and 10 of the final report, CONV 354/02) and at the plenary, the usefulness of this provision is to make clear that incorporation of the Charter does not prevent the Court of Justice from drawing on those two sources to recognise additional fundamental rights which might emerge from any future developments in the ECHR and common constitutional traditions. That is in line with classic constitutional doctrine which never interprets the catalogues of fundamental rights in constitutions as being exhaustive, thus permitting the development, through case-law, of additional rights as society changes."
28. We note that the Charter will be "an
integral part of the Constitution". As we said in our recent
report on the future of the Charter,
modern constitutions contain bills of rights and the Charter could
fulfil that role for the Union. As the Explanatory note indicates,
the intention is to make the Charter legally binding. But not
all the provisions of the Charter are capable of creating legally
enforceable rights (some Charter Articles contain political aspirations)
and even where they are those rights will be valueless if not
supported by adequate remedies. We have called on the Government
to urge the Convention to undertake work on remedies, as a matter
of urgency. We consider this to be a matter of critical importance
and are pleased to note that a "circle of discussion"
on the Court of Justice has now been established,
which will look, inter alia, at individual access to the
Community Courts (ie the standing rule in Article 230(4)
29. A footnote to Article 5(1) provides: "The
full text of the Charter, with all the drafting adjustments given
in Working Group II's final report
will be set out either in a second part of the Constitution or
in a Protocol annexed thereto, as the Convention decides".
Whether the Charter is set out in Part 2 of the new Treaty or
in a separate Protocol is largely cosmetic. Provided that the
new Treaty contains a provision equivalent to Article 311 TEC,
the legal effect will be the same. But from a legal draftsman's
viewpoint integration via a protocol would be the simpler. This
is because the Charter was prepared as a coherent whole and has
its own preamble. What is more important is that the necessary
"drafting adjustments" are made to safeguard the division
of competences between the Member States and the Union, as well
as the supremacy of the ECHR. Provision also needs to be made
to give the revised Explanatory Note to the Charter authoritative
status. The importance of this was stressed in our recent Report.
30. Article 5(2) would help prepare the way to
EU accession to the ECHR.
As we indicated in our recent Report, accession by the Union to
the ECHR is likely to be difficult. There are many technical and
political hurdles to be overcome. But Article 5(2) is an important
and significant first step, which we welcome.
31. The question, raised in the Explanatory note,
whether Article 5(2) should be amended so as to make clear that
the Union could accede to other international conventions relating
to human rights, should be answered positively. We recommend that
the words "or any other international human rights instrument"
should be inserted after the words "that Convention"
in the second sentence of Article 5(2).
32. Whether the purpose of Article 5(3) would
be better met by an amendment of the Charter itself should be
considered. But if the Article remains (and we agree that it would
be undesirable to appear to limit the sources on which the Court
could draw in developing the general principle of respect for
human rights) it should be amended by the insertion of the words
"in particular" after "as guaranteed" and
the addition, after the reference to the ECHR, of the words "and
any other international human rights instrument to which Member
States are party". Finally, Article 5(3) points to the need
to ensure that, as we said in our recent Report, the so-called
in the Charter are clear and unambiguous, especially as regards
the relationship between Charter rights and ECHR rights.
4 Article 1 of the Charter declares that "human
dignity is inviolable. It must be respected and protected". Back
The Commission has recently published a Green Paper on European
Space policy (COM (R003) 17 final). It gives an overview of the
state of the European space sector and poses a series of questions
as to how the Union's role in this area should evolve, with particular
reference to the respective roles of the Commission and the European
Space Agency (ESA). The Green Paper suggests that it might be
desirable to grant the Union competence in space and seeks views
on this. Back
There are references to solidarity in the preambles to both the
TEU and TEC. The term is also used in Article 11(2) TEU and Article
2 TEC. Back
6th Report, 2002-03, HL paper 48. Back
CONV 305/02. Back
A footnote to the draft Treaty states: "The full text of
the Charter, with all the drafting adjustments given in Working
Group II's final report (CONV 354/02) will be set out either in
a second part of the Constitution or in a Protocol annexed thereto,
as the Convention decides". Back
The Future Status of the EU Charter of Fundamental Rights.
6th Report, 2002-03, HL paper 48. Back
Doc. CONV 543/03. Back
CONV 354/02. Back
The question of Community accession to the ECHR has a long history.
A formal proposal was put to the Council by the Commission in
1979 and renewed in 1990. Four years later, the Council decided
to ask the ECJ for a formal opinion as to whether Community accession
to the ECHR would be compatible with the EC Treaty. The Court's
view (in Opinion 2/94  ECR I-1759) was that as Community
law then stood accession would require Treaty amendment. In particular,
no Treaty provision conferred on the Community institutions "any
general power to enact rules on human rights or to conclude international
conventions in this field". There was no express or implied
power for such purpose and Article 235 (now Article 308), though
designed to fill gaps where no specific powers existed, did not
permit the adoption of provisions that would in effect amount
to Treaty amendment. Accession would entail the entry of the Community
"into a distinct international institutional system as well
as integration of all the provisions of the Convention into the
Community legal order" and, as such, would be of "constitutional
This term and the issues surrounding these clauses are explained
in paras 88-92 of our Report on the future of the Charter. Back