- Treaty establishing a Constitution for Europe
Treaty establishing a Constitution for Europe Type Unratified treaty Drafted June 2004 Signed 29 October 2004 Location Rome, Italy Sealed 8 November 2004 Signatories EU member states Treaty establishing a Constitution for Europe at Wikisource History of the European Union
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The Treaty establishing a Constitution for Europe (TCE), (commonly referred to as the European Constitution or as the Constitutional Treaty), was an unratified international treaty intended to create a consolidated constitution for the European Union (EU). It would have replaced the existing European Union treaties with a single text, given legal force to the Charter of Fundamental Rights, and expanded Qualified Majority Voting 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 EU member states. It was later ratified by 18 member states, which included referenda 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 was created to replace the Constitutional Treaty. This contained many of the changes that were originally placed in the Constitutional Treaty but was formulated as amendments to the existing treaties. Signed on 13 December 2007, the Lisbon Treaty entered into force on 1 December 2009.
The drafting for European Constitution began in a call for a new debate on the future of Europe at the Laeken European Council in December 2001. A European Convention was founded shortly afterward which was chaired by former French President Valéry Giscard d'Estaing 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, 2 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, the President of the European Commission backed a draft text, called Penelope Project, which contained a deeper integration of the countries and a more clear institutional model.
After protracted negotiations in the Intergovernmental Conference (IGC) during Italian presidency, disputes arose over the proposed framework for qualified majority voting: the final text of the TCE was settled in June 2004 under the Irish presidency.
The Treaty establishing a Constitution for Europe was signed in Rome 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.
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 traditionally ratify EU treaties following parliamentary votes, while some — notably Ireland and Denmark — also hold referenda. 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 referenda across the European Union.
On 20 April 2004 then British prime minister Tony Blair unexpectedly promised a referendum, a proposal which he had previously rejected. A further seven member states announced or had already announced that they would hold referenda on the Constitution. These being Denmark, France, Ireland, Luxembourg, the Netherlands, Spain and Portugal.
On 29 May 2005 the French public rejected the Constitution by margin of 55% to 45% on a turn out of 69%. And just three days later the Dutch rejected the constitution by a margin of 61% to 39% on a turnout of 62%.
Notwithstanding the rejection in France and the Netherlands, Luxembourg 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 as all of the other member states that had proposed to hold referenda cancelled them.
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 Treaty on European Union, amend the Treaty establishing the European Community and give the Charter of Fundamental Rights of the European Union a legally binding status. The new treaty would be based on the first and fourth parts of the Constitution, the rest of the Constitutions 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 become the Lisbon Treaty on its signing in Lisbon on 13 December 2007.
National processes at a glance
Member state Date Result Deposition with Italian Government Lithuania 11 November 2004 Yes. Seimas: 84 to 4 in favour, 3 abstentions. 17 December 2004 Hungary 20 December 2004 Yes. Országgyűlés: 323 to 12 in favour, 8 abstention. 30 December 2004 Slovenia 1 February 2005 Yes. Državni zbor: 79 to 4 in favour, 0 abstentions. 9 May 2005 Italy 25 January 2005
6 April 2005
Yes. Camera dei Deputati: 436 to 28 in favour, 5 abstentions.
Yes. Senato della Repubblica: 217 to 16 in favour, 0 abstentions.
25 May 2005 Spain 20 February 2005
28 April 2005
18 May 2005
Yes. Consultative referendum: 76.73% to 17.24% in favour, 6.03% blanks, 42.32% participation.
Yes. Congreso de los Diputados: 311 to 19 in favour, 0 abstentions.
Yes. Senado: 225 to 6 in favour, 1 abstention.
15 June 2005 Austria 11 May 2005
25 May 2005
Yes. Nationalrat: Approved by show of hands with 1 against.
Yes. Bundesrat: Approved by show of hands with three against.
17 June 2005 Greece 19 April 2005 Yes. Hellenic Parliament: 268 to 17 in favour, 15 abstentions. 28 July 2005 Malta 6 July 2005 Yes. Il-Kamra: Agreed without a division. 2 August 2005 Cyprus 30 June 2005 Yes. Cyprus Parliament: 30 to 19 in favour, one abstention. 6 October 2005 Latvia 2 June 2005 Yes. Saeima: 71 to 5 in favour, six abstentions. 3 January 2006 Luxembourg 10 July 2005
25 October 2005
Yes. Consultative referendum: 56.52% to 43.48% in favour, 87.77% participation.
Yes. Châmber: 57 to 1 in favour, no abstentions.
30 January 2006 Belgium 28 April 2005
19 May 2005
17 June 2005
20 June 2005
29 June 2005
19 July 2005
8 February 2006
Yes. Senaat/Sénat: 54 to 9 in favour, one abstention.
Yes. Kamer/Chambre: 118 to 18 in favour, one abstention.
Yes. Parlement Bruxellois/Brussels Hoofdstedelijk Parlement: 70 to 10 in favour, 0 abstentions.
Yes. Parlament der Deutschsprachigen Gemeinschaft: 21 to 2 in favour, no abstentions.
Yes. Parlement wallon: 55 to 2 in favour, 0 abstention.
Yes. Parlement de la Communauté française: 79 to 0 in favour, no abstentions.
Yes. Vlaams Parlement: 84 to 29 in favour, one abstention.
13 June 2006 Estonia 9 May 2006 Yes. Riigikogu: 73 to 1 in favour, no abstentions. 26 September 2006 Bulgaria 1 January 2007 Yes. Due to the provisions of Treaty of Accession 2005 Not required Romania 1 January 2007 Yes. Due to the provisions of Treaty of Accession 2005 Not required Slovakia 11 May 2005 Yes. Národná rada: 116 to 27 in favour, four abstentions. Germany 12 May 2005
27 May 2005
Yes. Bundestag: 569 to 23 in favour, two abstentions.
Yes. Bundesrat: 66 to 0 in favour, three abstentions.
5 December 2006
Yes. Eduskunta/Riksdag: 125 to 39 in favour, four abstentions.
France 29 May 2005
No. Referendum: 54.68% to 45.32% against, 69.34% participation.
Netherlands 1 June 2005
No. Consultative referendum: 61.54% to 38.46% against, 63.30% participation.
Czech Republic Cancelled
Assembleia da Republica:
Sweden Cancelled Riksdag: United Kingdom Cancelled
House of Commons:
House of Lords:
Under the TCE, the Council of the European Union 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 included a flag, an anthem and a motto, which had previously not had treaty recognition, although none of them is new.
Conferral, subsidiarity, proportionality
The TCE would have reiterated several key principles of how the Union functions:
- the principle of conferral: that all EU competences are conferred on it voluntarily by member states;
- the principle of subsidiarity: 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 to exactly 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 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' – see below).
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, 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 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 which 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 in 1963 which was followed in Costa v. ENEL in 1964.
Common values of the Union's member states
- human dignity
- the rule of law
- respect for human rights
- minority rights
- free market
Member states also declare that the following principles prevail in their society:
Some of these provisions are codified for the first time in the TCE.
Aims of the Union
The aims of the EU, according to the TCE, are made explicit (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 based on balanced economic growth and price stability, a highly competitive social market economy
- social justice 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
- solidarity and mutual respect among people
- free and fair trade
- eradication of poverty and the protection of human rights, in particular the rights of the child
- strict observance and development of international law, including respect for the principles of the United Nations Charter.
Scope of the Union
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;
- those competition rules that govern the internal market;
- eurozone 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 (see below).
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 (see below).
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; 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 European Union for the first time has legal personality under the TCE. This means that it is able to represent itself as a single body in certain circumstances under international law. Most significantly, it is able to sign treaties as a single body where all its member states agree.
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:
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 will be decided by the Council of Ministers should the situation arise.
European Public Prosecutor
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.
Simplified jargon and legal instruments
The TCE makes an effort to simplify jargon and reduce the number of EU legal instruments (ways in which EU countries may act). However, it is a long document couched in obscure and 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 in previous treaties). Specifically:
- 'European Regulations' (of the Community pillar) and 'Decisions' (of the Police and Judicial Co-operation in Criminal Matters (PJC) pillar) both become referred to as European laws.
- 'European 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 actions' 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 would be amalgamated with the role of the Commissioner for External Relations. This would create a new Union Minister for Foreign Affairs 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 would be to be taken by qualified majority voting, 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 defense.
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, 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.
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 MEPs, and would be elected by the European Parliament. Parliament would have the final say.
- Parliament as co-legislature: The European Parliament 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 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. 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 mandate (aka initiative): 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
There would be 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 is needed. The option for enhanced cooperation would also be widened to all areas of agreed EU policy.
Previously, alteration of treaties was decided by unanimous agreement of the European Council in private meeting. Proponents of the TCE claim that any amendments to the Constitutional treaty will involve the convening of a new Convention, similar to that chaired by Valéry Giscard d'Estaing in drafting the TCE. This process may be bypassed if the European Parliament agrees, in which case, the final say on adopting proposals will rest with the European Council, who must agree unanimously. However, small revisions (switching from unanimity voting to qualified majority voting in specific policy areas) can be made by the European Council through the so-called 'Passerelle Clause' (Article IV-444) if every member state agrees.
A new clause in the TCE allows for the withdrawal of any member state without renegotiation of the TCE or violation of treaty commitments (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. The process described is a formalisation of the process which Greenland used to leave the EC in 1985.
- ^ http://european-convention.eu.int/Static.asp?lang=EN&Content=Composition
- ^ Penelope project on constitution
- ^ European Parliament results
- ^ Honor Mahony (31 May 2003), "Ratification problems loom over Convention", EUObserver.com, http://euobserver.com/9/11481, retrieved 27 February 2009 ; Sarah Hall (26 May 2003), "Giscard backs calls for referendum on EU constitution", The Guardian (London), http://www.guardian.co.uk/politics/2003/may/26/uk.eu, retrieved 27 February 2009 ; David Charter (21 October 2003), "Tories issue demand on Europe referendum", The Times (London), http://www.timesonline.co.uk/tol/news/politics/article997751.ece, retrieved 27 February 2009 .
- ^ "Spain voters approve EU charter". BBC News. 20 February 2005. http://news.bbc.co.uk/2/hi/europe/4280841.stm. Retrieved 26 May 2010.
- ^ Patrick Wintour (17 June 2005), "EU scraps timetable for ratifying constitution", The Guardian (London), http://www.guardian.co.uk/politics/2005/jun/17/eu.politics, retrieved 27 February 2009 .
- ^ Honor Mahony (28 September 2006). "Select group of politicians to tackle EU constitution". EUobserver.com. http://euobserver.com/9/22527. Retrieved 27 February 2009.
- ^ http://euobserver.com/9/22576/?rk=1
- ^ A New Treaty and Supplementary Protocols - Explanatory Memorandum, Brussels: Action Committee for European Democracy, 4 June 2007, p. 2, http://www.eui.eu/RSCAS/e-texts/ACED2007_NewTreatyMemorandum-04_06.pdf, retrieved 27 February 2009 .
- ^ Article IV-447 of the Treaty requires that instruments of ratification be deposited with the Government of the Italian Republic in order for the Treaty to enter into force. Each country deposits the instrument of ratification after its internal ratification process is finalised by all required state bodies (parliament and the head of state). Countries are ordered according to the date of deposition of ratification documents. When two countries have deposited the necessary documents on the same date the order is alphabetical.
- ^ Results refer to the final round of parliamentary vote when more than one vote is required.
- ^ Ratification details
- ^ Lithuanian Parliament results
- ^ Hungarian Parliament results
- ^ Slovenian National Assembly results
- ^ Italian Chamber of Deputies results
- ^ Italian Senate results
- ^ Participation in Spanish referendum is calculated based on the total number of votes. Results are calculated based on the valid votes only.
- ^ Spanish referendum results
- ^ Spanish Chamber of Representatives results
- ^ Spanish Senate results
- ^ Austrian Nationalrat results
- ^ Austrian Bundesrat results
- ^ Greek Parliament results
- ^ Parliament of Malta results
- ^ Cyprus Parliament results
- ^ Latvian Parliament results
- ^ Participation in Luxemburg referendum is calculated based on the total number of valid, non-blank votes. Results are calculated based on the valid, non-blank votes.
- ^ Luxemburg referendum results
- ^ Luxemburg Chamber of Deputies results
- ^ Belgian Senate results
- ^ Belgian Chamber of Representatives results
- ^ Brussels Parliament results
- ^ Belgian Parliament of the German Speaking Community results
- ^ Wallon Parliament results
- ^ Belgian Parliament of the French Community results
- ^ Belgian Parliament of the Flemish Community results
- ^ Estonian Parliament results
- ^ Slovak National Council results
- ^ German Bundestag results
- ^ German Bundesrat results
- ^ Åland is an autonomous province of Finland. It is part of European Union, but is subject of certain exemptions. Åland are not party in the Treaty to establish European constitution, but according to Article IV-440, Paragraph 5 the Treaty will apply on the territory but with derogation. So Åland Parliament ratification is not necessary for European Constitution to enter into force, but is needed for provisions of Article IV-440, Paragraph 5 to be applied.
- ^ Finish Parliament results
- ^ Åland Parliament position on European constitution
- ^ Participation in French referendum is calculated based on the total number of votes(2.51% of votes were blank or invalid). Results are calculated based on the valid, non-blank votes.
- ^ French referendum results
- ^ Participation in Dutch referendum is calculated based on the total number of votes (0.76% of votes were blank or invalid). Results are calculated based on the valid, non-blank votes.
- ^ Dutch referendum results
- ^ Ondarza, Nicolai and Roderick Parkes, Implementing the Lisbon Treaty's Solidarity Clause, SWP Comment, 2010; Ekengren, Markus et al. (2006) "Solidarity or Sovereignty? EU Cooperation in Civil Protection" in Journal of European Integration 28/5 pp.457-476
- ^ See further H. de Waele, 'The European Union on the Road to a New Legal Order - The Changing Legality of Member State Withdrawal', (2005) Tilburg Foreign Law Review, p. 169-189
- History of the Constitution – Academic site linking to many documents concerning the preparation, negotiation and ratification stages of the TCE and previous treaties.
- The Constitution for the European Union European NAvigator
- BBC: Questions and answers about the TCE
- BBC: Progress of ratification
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