The Treaty establishing a Constitution for Europe (TCE; commonly referred to as the European Constitution or as the Constitutional Treaty) was an un
ratified
Ratification is a principal's approval of an act of its agent that lacked the authority to bind the principal legally. Ratification defines the international act in which a state indicates its consent to be bound to a treaty if the parties inten ...
international
treaty
A treaty is a formal, legally binding written agreement between actors in international law. It is usually made by and between sovereign states, but can include international organizations
An international organization or international o ...
intended to create a consolidated
constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed.
When ...
for the
European Union
The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been des ...
(EU). It would have replaced the existing
European Union treaties with a single text, given legal force to the
Charter of Fundamental Rights
The Charter of Fundamental Rights of the European Union (CFR) enshrines certain political, social, and economic rights for European Union (EU) citizens and residents into EU law. It was drafted by the European Convention and solemnly proclai ...
, and expanded
qualified majority voting
The procedures for voting in the Council of the European Union are described in the treaties of the European Union. The Council of the European Union (or simply "Council" or "Council of Ministers") has had its voting procedure amended by subsequ ...
into policy areas which had previously been decided by unanimity among member states.
The Treaty was signed on 29 October 2004 by representatives of the then 25
member states of the European Union. It was later ratified by 18 member states, which included referendums endorsing it in Spain and Luxembourg. However, the rejection of the document by French and Dutch voters in May and June 2005 brought the ratification process to an end.
Following a period of reflection, the
Treaty of Lisbon
The Treaty of Lisbon (initially known as the Reform Treaty) is an international agreement that amends the two treaties which form the constitutional basis of the European Union (EU). The Treaty of Lisbon, which was signed by the EU member s ...
was created to replace the Constitutional Treaty. This contained many of the changes that were originally placed in the Constitutional Treaty but, instead of repealing and replacing the existing treaties, simply amended them and abandoned the idea of a single codified constitution. Signed on 13 December 2007, the Lisbon Treaty entered into force on 1 December 2009.
History
Drafting
The drafting of the European Constitution began in a call for a new debate on the future of Europe, made at the
Laeken European Council in December 2001. A
European Convention Several bodies or treaties are known as European Convention.
Bodies of the European Union
* European Convention (1999–2000) which drafted the:
** ''Charter of Fundamental Rights of the European Union'' (2000 / 2009)
* Convention on the Future of ...
was founded shortly afterward; this was chaired by former French President
Valéry Giscard d'Estaing
Valéry René Marie Georges Giscard d'Estaing (, , ; 2 February 19262 December 2020), also known as Giscard or VGE, was a French politician who served as President of France from 1974 to 1981.
After serving as Minister of Finance under prime ...
and composed of two Members of Parliament (generally one from the governing majority and one from the opposition) of each Member State and applicant state, 16 MEPs, two members of the European Commission and a representative from each government. It met in public. Giscard d'Estaing proposed to draft a Constitution.
Romano Prodi
Romano Antonio Prodi (; born 9 August 1939) is an Italian politician, economist, academic, senior civil servant, and business executive who served as the tenth president of the European Commission from 1999 to 2004. He served twice as Pr ...
, the
President of the European Commission, backed a draft text, termed the '
Penelope Project Penelope was the code word given to a draft text of the EU Constitution prepared for the President of the European Commission, Romano Prodi, in 2001. The text was named after Penelope, the wife of Odysseus in Greek Mythology, who was perpetually ...
', which contained a deeper integration of the countries and a clearer institutional model.
After protracted negotiations in the
Intergovernmental Conference
{{Politics of the European Union
In the politics of the European Union, an Intergovernmental Conference (IGC) is the formal procedure for negotiating amendments to the EU's founding treaties. Under the treaties, an IGC is called into being by the ...
(IGC) during the Italian presidency, disputes arose over the proposed framework for
qualified majority voting
The procedures for voting in the Council of the European Union are described in the treaties of the European Union. The Council of the European Union (or simply "Council" or "Council of Ministers") has had its voting procedure amended by subsequ ...
: the final text of the TCE was settled in June 2004 under the
Irish
Irish may refer to:
Common meanings
* Someone or something of, from, or related to:
** Ireland, an island situated off the north-western coast of continental Europe
***Éire, Irish language name for the isle
** Northern Ireland, a constituent unit ...
presidency.
Mention of Christianity in the preamble
Several countries urged that the preamble of the Constitution include a reference to
Christianity
Christianity is an Abrahamic monotheistic religion based on the life and teachings of Jesus of Nazareth. It is the world's largest and most widespread religion with roughly 2.38 billion followers representing one-third of the global pop ...
. Among these were
Italy
Italy ( it, Italia ), officially the Italian Republic, ) or the Republic of Italy, is a country in Southern Europe. It is located in the middle of the Mediterranean Sea, and its territory largely coincides with the homonymous geographical re ...
,
Lithuania
Lithuania (; lt, Lietuva ), officially the Republic of Lithuania ( lt, Lietuvos Respublika, links=no ), is a country in the Baltic region of Europe. It is one of three Baltic states and lies on the eastern shore of the Baltic Sea. Lithuania ...
,
Malta
Malta ( , , ), officially the Republic of Malta ( mt, Repubblika ta' Malta ), is an island country in the Mediterranean Sea. It consists of an archipelago, between Italy and Libya, and is often considered a part of Southern Europe. It lies ...
,
Poland
Poland, officially the Republic of Poland, is a country in Central Europe. It is divided into 16 administrative provinces called voivodeships, covering an area of . Poland has a population of over 38 million and is the fifth-most populous ...
,
Portugal
Portugal, officially the Portuguese Republic ( pt, República Portuguesa, links=yes ), is a country whose mainland is located on the Iberian Peninsula of Southwestern Europe, and whose territory also includes the Atlantic archipelagos of ...
, the
Czech Republic
The Czech Republic, or simply Czechia, is a landlocked country in Central Europe. Historically known as Bohemia, it is bordered by Austria to the south, Germany to the west, Poland to the northeast, and Slovakia to the southeast. The ...
, and
Slovakia
Slovakia (; sk, Slovensko ), officially the Slovak Republic ( sk, Slovenská republika, links=no ), is a landlocked country in Central Europe. It is bordered by Poland to the north, Ukraine to the east, Hungary to the south, Austria to the s ...
, which in May 2004 sent a letter to the Irish Presidency, saying "the governments of those countries consider as a priority the recognition of the Christian tradition in the Preamble" and noting that the list of signatories was not exhaustive as they hoped other countries would join their initiative. The Greek government likewise supported a reference to Christianity.
The strongest opponents of any reference to Christianity were
France
France (), officially the French Republic ( ), is a country primarily located in Western Europe. It also comprises of Overseas France, overseas regions and territories in the Americas and the Atlantic Ocean, Atlantic, Pacific Ocean, Pac ...
and
Belgium
Belgium, ; french: Belgique ; german: Belgien officially the Kingdom of Belgium, is a country in Northwestern Europe. The country is bordered by the Netherlands to the north, Germany to the east, Luxembourg to the southeast, France to th ...
. Other countries opposing such a reference were Germany, Denmark, Sweden, Finland, Slovenia, and Cyprus. Among other nations, Spain originally supported the inclusion of a reference to Christianity, but the incoming Zapatero government reversed the stance of its predecessor.
Eventually the agreed-upon Constitution made no explicit references to Christianity, only mentioning the "cultural, religious and humanist inheritance of Europe". This decision caused disappointment in the Vatican, but satisfaction from candidate state Turkey.
Signing
The ''Treaty establishing a Constitution for Europe'' was signed in
Rome
, established_title = Founded
, established_date = 753 BC
, founder = King Romulus (legendary)
, image_map = Map of comune of Rome (metropolitan city of Capital Rome, region Lazio, Italy).svg
, map_caption ...
on 29 October 2004 by 53 senior political figures from the 25
member states of the European Union. In most cases heads of state designated plenipotentiaries to sign the treaty, but some presidents also signed on behalf of states which were republics. Most designated plenipotentiaries were prime ministers and foreign ministers.
Ratification
![EU Constitution Ratification Map](https://upload.wikimedia.org/wikipedia/commons/5/5b/EU_Constitution_Ratification_Map.svg)
On 12 January 2005 the
European Parliament
The European Parliament (EP) is one of the legislative bodies of the European Union and one of its seven institutions. Together with the Council of the European Union (known as the Council and informally as the Council of Ministers), it adopts ...
voted a legally non-binding resolution in support of the Constitution by 500 votes in favour to 137 votes against, with 40 abstentions.
Before an EU treaty can enter into force, it must be ratified by all member states. Ratification takes different forms in each country, depending on its traditions, constitutional arrangements and political processes. Most member states ratify EU treaties following parliamentary votes, while some — notably Ireland and Denmark — sometimes hold referendums, in Ireland's case where the treaty requires a constitutional amendment, for all amendments have to be approved by referendum. As a reaction to what was seen as the novel nature of the Constitution, many advocates and opponents of the Constitution argued that it should be subjected to referendums across the European Union.
On 20 April 2004, the then British prime minister
Tony Blair
Sir Anthony Charles Lynton Blair (born 6 May 1953) is a British former politician who served as Prime Minister of the United Kingdom from 1997 to 2007 and Leader of the Labour Party from 1994 to 2007. He previously served as Leader of th ...
unexpectedly announced an intention to hold a referendum, a proposal which he had previously rejected. A further seven member states announced or had already announced that they would hold referendums on the Constitution, these being
Denmark
)
, song = ( en, "King Christian stood by the lofty mast")
, song_type = National and royal anthem
, image_map = EU-Denmark.svg
, map_caption =
, subdivision_type = Sovereign state
, subdivision_name = Danish Realm, Kingdom of Denmark
...
,
France
France (), officially the French Republic ( ), is a country primarily located in Western Europe. It also comprises of Overseas France, overseas regions and territories in the Americas and the Atlantic Ocean, Atlantic, Pacific Ocean, Pac ...
,
Ireland
Ireland ( ; ga, Éire ; Ulster Scots dialect, Ulster-Scots: ) is an island in the Atlantic Ocean, North Atlantic Ocean, in Northwestern Europe, north-western Europe. It is separated from Great Britain to its east by the North Channel (Grea ...
,
Luxembourg
Luxembourg ( ; lb, Lëtzebuerg ; french: link=no, Luxembourg; german: link=no, Luxemburg), officially the Grand Duchy of Luxembourg, ; french: link=no, Grand-Duché de Luxembourg ; german: link=no, Großherzogtum Luxemburg is a small lan ...
, the
Netherlands
)
, anthem = ( en, "William of Nassau")
, image_map =
, map_caption =
, subdivision_type = Sovereign state
, subdivision_name = Kingdom of the Netherlands
, established_title = Before independence
, established_date = Spanish Netherl ...
,
Spain
, image_flag = Bandera de España.svg
, image_coat = Escudo de España (mazonado).svg
, national_motto = ''Plus ultra'' (Latin)(English: "Further Beyond")
, national_anthem = (English: "Royal March")
, i ...
and
Portugal
Portugal, officially the Portuguese Republic ( pt, República Portuguesa, links=yes ), is a country whose mainland is located on the Iberian Peninsula of Southwestern Europe, and whose territory also includes the Atlantic archipelagos of ...
.
Spain was the first country to hold a referendum on the Constitution. On 20 February 2005, Spanish voters
backed the treaty with 76% voting in favour to 24% against, on a turnout of 43%.
On 29 May 2005, the French people
rejected the Constitution by a margin of 55% to 45% on a turnout of 69%. On 1 June, the Dutch people
rejected the constitution by a margin of 61% to 39% on a turnout of 62%.
Notwithstanding the rejection in France and the Netherlands,
Luxembourg
Luxembourg ( ; lb, Lëtzebuerg ; french: link=no, Luxembourg; german: link=no, Luxemburg), officially the Grand Duchy of Luxembourg, ; french: link=no, Grand-Duché de Luxembourg ; german: link=no, Großherzogtum Luxemburg is a small lan ...
held a referendum on 10 July 2005 approving the Constitution by 57% to 43%. It was the last referendum to be held on the Constitution, for all of the other member states that had proposed to hold referendums cancelled them.
Post-rejection
After the French and Dutch referendum results, European leaders decided to hold a "period of reflection" on what to do next. As part of this reflection period, a "group of wise men" was set up to consider possible courses of action. This group of high-level European politicians – former prime ministers, ministers and members of the European Commission – first met on 30 September 2006 in Rome.
On 4 June 2007, this group, known as the
Amato Group, presented its report. They proposed to establish a new Inter-Governmental Conference with a view to writing a new treaty which would rewrite the
Maastricht Treaty
The Treaty on European Union, commonly known as the Maastricht Treaty, is the foundation treaty of the European Union (EU). Concluded in 1992 between the then-twelve Member state of the European Union, member states of the European Communities, ...
, amend the
Treaty of Rome and give the
Charter of Fundamental Rights of the European Union
The Charter of Fundamental Rights of the European Union (CFR) enshrines certain political, social, and economic rights for European Union (EU) citizens and residents into EU law. It was drafted by the European Convention and solemnly proclai ...
a legally binding status. The new treaty would be based on the first and fourth parts of the Constitution, the rest of the Constitution's changes being achieved through amendments to the Treaty of Rome.
In the June 2007 European summit meeting, member states agreed to abandon the constitution and to amend the existing treaties, which would remain in force. They also agreed a detailed mandate for a new intergovernmental conference to negotiate a new treaty containing such amendments to the existing treaties (primarily the Treaty of Rome and the Treaty of Maastricht). These negotiations were completed by the end of the year. The new treaty, which had previously been referred to as the ''Reform Treaty'', became the
Lisbon Treaty
The Treaty of Lisbon (initially known as the Reform Treaty) is an international agreement that amends the two treaties which form the constitutional basis of the European Union (EU). The Treaty of Lisbon, which was signed by the EU member sta ...
on its signing in
Lisbon
Lisbon (; pt, Lisboa ) is the capital and largest city of Portugal, with an estimated population of 544,851 within its administrative limits in an area of 100.05 km2. Grande Lisboa, Lisbon's urban area extends beyond the city's administr ...
on 13 December 2007.
National processes at a glance
Content
Institutional structure
Under the TCE, the
Council of the European Union
The Council of the European Union, often referred to in the treaties and other official documents simply as the Council, and informally known as the Council of Ministers, is the third of the seven Institutions of the European Union (EU) as ...
would have been formally renamed the "Council of Ministers", which is already its informal title. The "General Affairs Council" would have been formally split from the "Foreign Affairs Council", which had informally held meetings separately since June 2002.
The TCE proposed the formal recognition of a
flag
A flag is a piece of fabric (most often rectangular or quadrilateral) with a distinctive design and colours. It is used as a symbol, a signalling device, or for decoration. The term ''flag'' is also used to refer to the graphic design empl ...
, an
anthem and a
motto
A motto (derived from the Latin , 'mutter', by way of Italian , 'word' or 'sentence') is a sentence or phrase expressing a belief or purpose, or the general motivation or intention of an individual, family, social group, or organisation. Mot ...
for the Union, although none of them were new.
Conferral, subsidiarity, proportionality
The TCE would have reiterated several key principles of how the Union functions:
* the
principle of conferral
The principle of conferral is a fundamental principle of European Union law. According to this principle, the EU is a union of its member states, and all its competences are voluntarily conferred on it by its member states. The Union has no compe ...
: that all EU competences are conferred on it voluntarily by member states;
* the
principle of subsidiarity
Subsidiarity is a principle of social organization that holds that social and political issues should be dealt with at the most immediate or local level that is consistent with their resolution. The ''Oxford English Dictionary'' defines subsidi ...
: that governmental decisions should be taken at the lowest level possible while still remaining effective;
* the
principle of proportionality: that the EU may only act exactly to the extent that is needed to achieve its objectives;
* the primacy of EU law: in areas where member states have made legally binding agreements at EU level, they may not then pass national laws incompatible with those EU laws.
The TCE would have specified that the EU is a union of member states, and that all its competences (areas of responsibility) are voluntarily conferred on it by its member states according to the
principle of conferral
The principle of conferral is a fundamental principle of European Union law. According to this principle, the EU is a union of its member states, and all its competences are voluntarily conferred on it by its member states. The Union has no compe ...
. The EU would have no competences by right, and thus any areas of policy not explicitly specified in the Constitution would have remained the domain of the sovereign member states (notwithstanding the ‘flexibility clause').
According to the TCE, the EU may act (i.e. make laws) only where its member states agree unanimously that actions by individual countries would be insufficient. This is the
principle of subsidiarity
Subsidiarity is a principle of social organization that holds that social and political issues should be dealt with at the most immediate or local level that is consistent with their resolution. The ''Oxford English Dictionary'' defines subsidi ...
and is based on the legal and political principle that governmental decisions should be taken as close to the people as possible while still remaining effective. It is a main argument against claims that Europe limits national
sovereignty
Sovereignty is the defining authority within individual consciousness, social construct, or territory. Sovereignty entails hierarchy within the state, as well as external autonomy for states. In any state, sovereignty is assigned to the perso ...
, but critics say that it is a principle to which lip service only is paid and, in practice, the reach of the EU has been increasingly ambitious.
Primacy of Union law
Amongst European countries, the
European Court of Justice has consistently ruled since 1964 that EU law has primacy over the laws of member states in the areas where member states allow it to legislate. National law that is incompatible with an agreement already made at European level is deemed to be 'disapplied' when questions arise in courts. This controversial and fundamental principle of European Community law was first recognised in the case of ''
Van Gend en Loos
Van Gend & Loos was a Dutch distribution company. It was established in 1809, and was purchased by DHL in 2003.
History
Van Gend & Loos was established by the Antwerp-based innkeeper and carriage driver Jan-Baptist van Gend. He had marrie ...
'' in 1963 which was followed in ''
Costa v. ENEL
Costa may refer to:
Biology
* Rib (Latin: ''costa''), in vertebrate anatomy
* Costa (botany), the central strand of a plant leaf or thallus
* Costa (coral), a stony rib, part of the skeleton of a coral
* Costa (entomology), the leading edge of ...
'' in 1964.
Judicial protection and fundamental rights
The TCE would have maintained the role of the
Court of Justice of the European Union
The Court of Justice of the European Union (CJEU) (french: Cour de justice de l'Union européenne or "''CJUE''"; Latin: Curia) is the judicial branch of the European Union (EU). Seated in the Kirchberg quarter of Luxembourg City, Luxembour ...
(articles III-353 et seq.).
It would further have rendered the (at that point) non-binding
Charter of Fundamental Rights
The Charter of Fundamental Rights of the European Union (CFR) enshrines certain political, social, and economic rights for European Union (EU) citizens and residents into EU law. It was drafted by the European Convention and solemnly proclai ...
legally binding. Unlike the
Treaty of Lisbon
The Treaty of Lisbon (initially known as the Reform Treaty) is an international agreement that amends the two treaties which form the constitutional basis of the European Union (EU). The Treaty of Lisbon, which was signed by the EU member s ...
, it incorporated the text of the Charter in the Treaty itself (see Part II of the TCE). This included various adjustments to the Charter as promulgated in 2000, including granting persuasive value to the Explanations to the Charter (see article II-112(7) and Declaration 12 to the TCE).
This would continue to exist alongside the protection of fundamental rights as
general principles of EU law (article (I-9(3) TCE). Further, article I-9(2) TCE required the
EU to accede to the European Convention on Human Rights.
Common values of the Union's member states
As stated in
Articles I-1 and
I-2, the Union is open to all European States that respect the member states' common values, namely:
* human
dignity
Dignity is the right of a person to be valued and respected for their own sake, and to be treated ethically. It is of significance in morality, ethics, law and politics as an extension of the Enlightenment-era concepts of inherent, inalienable ...
*
freedom
Freedom is understood as either having the ability to act or change without constraint or to possess the power and resources to fulfill one's purposes unhindered. Freedom is often associated with liberty and autonomy in the sense of "giving on ...
*
democracy
Democracy (From grc, δημοκρατία, dēmokratía, ''dēmos'' 'people' and ''kratos'' 'rule') is a form of government in which the people have the authority to deliberate and decide legislation (" direct democracy"), or to choose gov ...
*
equality
Equality may refer to:
Society
* Political equality, in which all members of a society are of equal standing
** Consociationalism, in which an ethnically, religiously, or linguistically divided state functions by cooperation of each group's elit ...
* the
rule of law
* respect for
human rights
Human rights are Morality, moral principles or Social norm, normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for ce ...
*
minority rights.
Member states also declare that the following principles prevail in their society:
*
pluralism
* non-
discrimination
Discrimination is the act of making unjustified distinctions between people based on the groups, classes, or other categories to which they belong or are perceived to belong. People may be discriminated on the basis of race, gender, age, relig ...
*
tolerance
*
justice
Justice, in its broadest sense, is the principle that people receive that which they deserve, with the interpretation of what then constitutes "deserving" being impacted upon by numerous fields, with many differing viewpoints and perspective ...
*
solidarity
* equality of the
sex
Sex is the trait that determines whether a sexually reproducing animal or plant produces male or female gametes. Male plants and animals produce smaller mobile gametes (spermatozoa, sperm, pollen), while females produce larger ones ( ova, of ...
es.
Some of these provisions would have been codified for the first time in the TCE.
Aims of the Union
The aims of the EU were stated to be (
Article I-3):
* promotion of peace, its values and the well-being of its people.
* maintenance of
freedom, security and justice without internal borders, and an
internal market where competition is free and undistorted.
*
sustainable development
Sustainable development is an organizing principle for meeting human development goals while also sustaining the ability of natural systems to provide the natural resources and ecosystem services on which the economy and society depend. The des ...
based on balanced
economic growth and
price stability Price stability is a goal of monetary and fiscal policy aiming to support sustainable rates of economic activity. Policy is set to maintain a very low rate of inflation or deflation. For example, the European Central Bank (ECB) describes price s ...
, a highly competitive
social market economy
The social market economy (SOME; german: soziale Marktwirtschaft), also called Rhine capitalism, Rhine-Alpine capitalism, the Rhenish model, and social capitalism, is a socioeconomic model combining a free-market capitalist economic system alon ...
.
*
social justice
Social justice is justice in terms of the distribution of wealth, Equal opportunity, opportunities, and Social privilege, privileges within a society. In Western Civilization, Western and Culture of Asia, Asian cultures, the concept of social ...
and protection, equality between women and men, solidarity between generations and protection of the rights of the child.
* economic, social and territorial cohesion, and solidarity among member states.
* respect for linguistic and cultural diversity.
In its relations with the wider world the Union's objectives are:
* to uphold and promote its values and interests.
* to contribute to peace, security, the sustainable development of the
Earth
Earth is the third planet from the Sun and the only astronomical object known to harbor life. While large volumes of water can be found throughout the Solar System, only Earth sustains liquid surface water. About 71% of Earth's surfa ...
.
* solidarity and mutual respect among people.
*
free and
fair trade.
* eradication of poverty and the protection of
human rights
Human rights are Morality, moral principles or Social norm, normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for ce ...
, in particular the rights of the child.
* strict observance and development of
international law
International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
, including respect for the principles of the
United Nations Charter
The Charter of the United Nations (UN) is the foundational treaty of the UN, an intergovernmental organization. It establishes the purposes, governing structure, and overall framework of the UN system, including its six principal organs: the ...
.
Scope of the Union
Competences
The EU has six ''exclusive competences'', policy areas in which member states have agreed that they should act exclusively through the EU and not legislate at a national level. The list remains unchanged from the previous treaties:
*
customs union
A customs union is generally defined as a type of trade bloc which is composed of a free trade area with a common external tariff.GATTArticle 24 s. 8 (a)
Customs unions are established through trade pacts where the participant countries set up ...
;
* those competition rules that govern the internal market;
*
eurozone
The euro area, commonly called eurozone (EZ), is a currency union of 19 member states of the European Union (EU) that have adopted the euro (€) as their primary currency and sole legal tender, and have thus fully implemented EMU policies ...
monetary policy;
* conservation of marine biological resources (the
Common Fisheries Policy);
* common commercial policy;
* the conclusion of certain limited international agreements.
There are a number of ''shared competences''. These are areas in which member states agree to act individually only where they have not already acted through the EU, or where the EU has ceased to act (though these are areas where member states may act both nationally and through the EU if they wish). Three new competences have been added to those in previous treaties.
There are a number of areas where the EU may take only ''supporting, coordinating or complementary action''. In these areas, member states do not confer any competences on the Union, but they agree to act through the Union in order to support their work at national level. Again, three new competences have been added to those from previous treaties.
Flexibility clause
The TCE's flexibility clause allows the EU to act in areas not made explicit in the TCE, but only:
* if all member states agree;
* with the consent of the
European Parliament
The European Parliament (EP) is one of the legislative bodies of the European Union and one of its seven institutions. Together with the Council of the European Union (known as the Council and informally as the Council of Ministers), it adopts ...
; and
* where this is necessary to achieve an agreed objective under the TCE.
This clause has been present in EU law since the original Treaty of Rome, which established the EEC in 1958.
Common foreign and security policy
The EU is charged with defining and implementing a
common foreign and security policy in due time. The wording of this article is taken from the existing
Treaty on European Union
The Treaty on European Union (2007) is one of the primary Treaties of the European Union, alongside the Treaty on the Functioning of the European Union (TFEU). The TEU form the basis of EU law, by setting out general principles of the EU's ...
.
New provisions
Legal personality
The TCE was going to state explicitly that the EU had a
legal personality
Legal capacity is a quality denoting either the legal aptitude of a person to have rights and liabilities (in this sense also called transaction capacity), or altogether the personhood itself in regard to an entity other than a natural person ( ...
. Prior to this, the treaties explicitly stated that the
European Community
The European Economic Community (EEC) was a regional organization created by the Treaty of Rome of 1957,Today the largely rewritten treaty continues in force as the ''Treaty on the functioning of the European Union'', as renamed by the Lisb ...
, the
European Coal and Steel Community and
Euratom each had their own separate legal personality, but remained silent over whether the European Union itself had one. They did mandate the EU "to assert its identity on the international scene", and permitted the European Union to enter into treaties. Brsakoska-Bazerkoska, and Choutheete and Ndoura argue that the EU had an implicit legal personality prior to the Treaty of Lisbon; the latter treaty also contained an express statement that the EU had a legal personality.
New competences
The TCE would have conferred upon the EU as new 'shared competences' the areas of territorial cohesion, energy, and space. These are areas where the EU may act alongside its individual member states. The EU has conferred upon it as new areas of 'supporting, coordinating or complementary action' the areas of tourism, sport, and administrative co-operation.
Criminal justice proceedings
Member states would have continued to co-operate in some areas of criminal judicial proceedings where they agree to do so, as at present. Under the TCE, seven new areas of co-operation would have been added:
*
Child abuse
*
Drug trafficking
*
Fraud
In law, fraud is intentional deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. Fraud can violate civil law (e.g., a fraud victim may sue the fraud perpetrator to avoid the fraud or recover monetary compens ...
*
Human trafficking
*
Political corruption
*
Terrorism
Terrorism, in its broadest sense, is the use of criminal violence to provoke a state of terror or fear, mostly with the intention to achieve political or religious aims. The term is used in this regard primarily to refer to intentional violen ...
*
Trafficking of arms
Solidarity clause
The new solidarity clause of the TCE specifies that any member state which falls victim to a terrorist attack or other disaster will receive assistance from other member states, if it requests it. The type of assistance to be offered is not specified. Instead, the arrangements are to be decided by the
Council of Ministers
A council is a group of people who come together to consult, deliberate, or make decisions. A council may function as a legislature, especially at a town, city or county/ shire level, but most legislative bodies at the state/provincial or nati ...
should the situation arise.
European Public Prosecutor
Provision exists for the creation of a
European Public Prosecutor
The European Public Prosecutor's Office (EPPO) is an independent body of the European Union (EU) with juridical personality, established under the Treaty of Lisbon between 22 of the 27 states of the EU following the method of enhanced cooperat ...
's Office, if all member states agree to it and if the
European Parliament
The European Parliament (EP) is one of the legislative bodies of the European Union and one of its seven institutions. Together with the Council of the European Union (known as the Council and informally as the Council of Ministers), it adopts ...
gives its consent.
Charter of Fundamental Rights of the European Union
The TCE includes a copy of the Charter already agreed to by all EU member states. This is included in the Constitution so that EU institutions themselves are obliged to conform to the same standards of fundamental rights. At the time of the Charter's original agreement, the British Government said that it did not have binding effect. Incorporation into TCE would have put its importance beyond doubt.
Simplification
Simplified jargon and legal instruments
The TCE made an effort to simplify jargon and reduce the number of EU legal instruments. However, it is a long document couched in technical terms, which proved unpopular when presented (for example) to French voters in their referendum on the TCE.
The TCE unifies legal instruments across areas of policy (referred to as
pillars of the European Union
Between 1993 and 2009, the European Union (EU) legally comprised three pillars. This structure was introduced with the Treaty of Maastricht on 1 November 1993, and was eventually abandoned on 1 December 2009 upon the entry into force of the Treat ...
in previous treaties). Specifically:
* '
Regulations' (of the Community pillar) and 'Decisions' (of the
Police and Judicial Co-operation in Criminal Matters
The police are a constituted body of persons empowered by a state, with the aim to enforce the law, to ensure the safety, health and possessions of citizens, and to prevent crime and civil disorder. Their lawful powers include arrest an ...
(PJC) pillar) both become referred to as European laws.
* '
Directives' (of the Community pillar) and '
Framework Decisions' (of the PJC pillar) both become referred to as European framework laws.
* 'Conventions' (of the PJC pillar) are done away with, replaced in every case by either European laws or European framework laws.
* '
Joint action
A joint or articulation (or articular surface) is the connection made between bones, ossicles, or other hard structures in the body which link an animal's skeletal system into a functional whole.Saladin, Ken. Anatomy & Physiology. 7th ed. McGraw ...
s' and 'Common positions' (of what is now the
Common Foreign and Security Policy Pillar) are both replaced by Decisions.
Position of Union Minister for Foreign Affairs
Under the TCE, the role of
High Representative for the Common Foreign and Security Policy
The High Representative of the Union for Foreign Affairs and Security Policy (HR/VP) is the chief co-ordinator and representative of the Common Foreign and Security Policy (CFSP) within the European Union (EU). The position is currently held b ...
would be amalgamated with the role of the
Commissioner for External Relations
The European Commissioner for External Relations was a member of the European Commission with responsibility over the Commissions external representation in the world and the European Union's (EU) Neighbourhood Policy (ENP). The responsibility ...
. This would create a new
Union Minister for Foreign Affairs
The High Representative of the Union for Foreign Affairs and Security Policy (HR/VP) is the chief co-ordinator and representative of the Common Foreign and Security Policy (CFSP) within the European Union (EU). The position is currently held ...
who would also be a Vice President of the Commission. This individual would be responsible for co-ordinating foreign policy across the Union, representing the EU abroad in areas where member states agree to speak with one voice.
Functioning of the institutions
Qualified majority voting
More day-to-day decisions in the
Council of Ministers
A council is a group of people who come together to consult, deliberate, or make decisions. A council may function as a legislature, especially at a town, city or county/ shire level, but most legislative bodies at the state/provincial or nati ...
would be to be taken by
qualified majority voting
The procedures for voting in the Council of the European Union are described in the treaties of the European Union. The Council of the European Union (or simply "Council" or "Council of Ministers") has had its voting procedure amended by subsequ ...
, requiring a 55% majority of members of the Council representing a 65% majority of citizens. (The 55% is raised to 72% when the Council acts on its own initiative rather than on a legislative proposal from the Commission or the Union Minister for Foreign Affairs.) The unanimous agreement of all member states would only be required for decisions on more sensitive issues, such as tax, social security, foreign policy and defence.
President of the European Council
The six-month rotating Presidency of the
European Council would switch to a chair chosen by the heads of government, in office for 2½ years and renewable once. The role itself would remain administrative and non-executive, but rather than the Presidency being held by a member state as at present, it would be held by an individual elected by and accountable to the Council.
President of the Council of Ministers
The six-month rotating Presidency of the
Council of Ministers
A council is a group of people who come together to consult, deliberate, or make decisions. A council may function as a legislature, especially at a town, city or county/ shire level, but most legislative bodies at the state/provincial or nati ...
, which currently coincides with the Presidency of the
European Council, would be changed to an 18-month rotating Presidency shared by a trio of member countries, in an attempt to provide more continuity. The exception would be the Council's Foreign Affairs configuration, which would be chaired by the newly created Union Minister for Foreign Affairs.
Smaller Commission
The
Commission would be reduced in size from 27 to 18 by the year 2014. There would be fewer Commissioners, with member states taking it in turn to nominate Commissioners two times out of three.
Parliamentary power and transparency
* President of the Commission: The candidate for
President of the European Commission would be proposed by the
European Council, after consultation with the
European Parliament
The European Parliament (EP) is one of the legislative bodies of the European Union and one of its seven institutions. Together with the Council of the European Union (known as the Council and informally as the Council of Ministers), it adopts ...
, and would be elected by the
European Parliament
The European Parliament (EP) is one of the legislative bodies of the European Union and one of its seven institutions. Together with the Council of the European Union (known as the Council and informally as the Council of Ministers), it adopts ...
. Parliament would have the final say.
* Parliament as co-legislature: The
European Parliament
The European Parliament (EP) is one of the legislative bodies of the European Union and one of its seven institutions. Together with the Council of the European Union (known as the Council and informally as the Council of Ministers), it adopts ...
would acquire equal legislative power under the
codecision procedure with the Council in virtually all areas of policy. Previously, it had this power in most cases but not all.
* Meeting in public: The
Council of Ministers
A council is a group of people who come together to consult, deliberate, or make decisions. A council may function as a legislature, especially at a town, city or county/ shire level, but most legislative bodies at the state/provincial or nati ...
would be required to meet in public when debating all new laws. Currently, it meets in public only for texts covered under the
codecision procedure.
* Budget: The final say over the EU's annual budget would be given to the
European Parliament
The European Parliament (EP) is one of the legislative bodies of the European Union and one of its seven institutions. Together with the Council of the European Union (known as the Council and informally as the Council of Ministers), it adopts ...
. Agricultural spending would no longer be ring-fenced, and would be brought under the Parliament's control.
* Role of national parliaments:
Member states' national parliaments would be given a new role in scrutinising proposed EU laws, and would be entitled to object if they feel a proposal oversteps the boundary of the Union's agreed areas of responsibility. If the Commission wishes to ignore such an objection, it would be forced to submit an explanation to the parliament concerned and to the Council of Ministers.
*
Popular initiative
In political science, an initiative (also known as a popular initiative or citizens' initiative) is a means by which a petition signed by a certain number of registered voters can force a government to choose either to enact a law or hold a p ...
: The Commission would be invited to consider any proposal "on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Constitution" which has the support of one million citizens. The mechanism by which this would be put into practice has yet to be agreed. (See
Article I-46(4) for details.)
Further integration, amendment and withdrawal
Enhanced co-operation
There would have been a tightening of existing rules for 'enhanced cooperation', where some member states would have chosen to act together more closely and others not. A minimum of one third of member states would now be forced to participate in any enhanced cooperation, and the agreement of the
European Parliament
The European Parliament (EP) is one of the legislative bodies of the European Union and one of its seven institutions. Together with the Council of the European Union (known as the Council and informally as the Council of Ministers), it adopts ...
is needed. The option for enhanced cooperation would also be widened to all areas of agreed EU policy.
Treaty revisions
Traditionally amendments to the EU treaties were considered in inter-governmental conferences in which the
European Council would meet in long private sessions in order to reach unanimous agreement on the proposed changes. The Convention which wrote the draft constitutional treaty was quite different in this regard. It met in public and was composed of a mix of national and European politicians. The Constitution proposed that amendments to the Constitution would be drafted by a convention unless both the Council of Minister and the European Parliament agreed otherwise.
A simplified revision was created for changes which might be proposed to be made to Title III of Part III of the TCE on the internal policies and action of the Union. Changes to this Title could be made by a decision of the European Council subject to it being ratified by all member states.
The Constitution also proposed a general '
passerelle clause
A passerelle clause is a clause in treaties of the European Union that allows the alteration of a legislative procedure without a formal amendment of the treaties. The use of a passerelle clause required unanimity of all member states although mem ...
' (
Article IV-444) with which the
European Council could agree to:
* move from unanimity voting to
qualified majority voting
The procedures for voting in the Council of the European Union are described in the treaties of the European Union. The Council of the European Union (or simply "Council" or "Council of Ministers") has had its voting procedure amended by subsequ ...
, or
* move from a special legislative procedure to the ordinary legislative procedure
in a specific policy area.
Although the Lisbon Treaty was itself drafted behind closed doors, it adopted the amendment procedures proposed by the Constitution.
Withdrawal clause
A new clause in the TCE provided for the unilateral withdrawal of any member state from the Union (clause I-60). Under this clause, when a country notifies the Council of its intent to withdraw, a settlement is agreed in the Council with the consent of Parliament. If negotiations are not agreed within two years, the country leaves anyway.
An identical provision was subsequently inserted into the treaties by the Lisbon Treaty.
See also
*
Treaties of the European Union
The Treaties of the European Union are a set of international treaties between the European Union (EU) member states which sets out the EU's constitutional basis. They establish the various EU institutions together with their remit, procedures ...
References
External links
History of the Constitution– Academic site linking to many documents concerning the preparation, negotiation and ratification stages of the TCE and previous treaties.
The Treaty establishing a Constitution for Europeon CVCE website
Media overviews
BBC: Questions and answers about the TCE*
BBC: Quick guide to the ConstitutionBBC: Progress of ratification
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