Constitution for Europe

and new Presidency of the Council of the European Union

By Eugene Eteris

The constitutional “road-map”

The Union’s Constitution draft is ready for discussion. The draft establishing a Constitution for Europe was officially on the 18^th of July 2003 handed over to the Italian Presidency of the European Council. The Italian government headed by Prime Minister Silvio Berlusconi will lead final negotiations on the draft up to the end of 2003 (EU leaders are due to open final discussion on the draft in October in Rome). Chairman of the Convention that during 16 months has been preparing the draft, i.e. the most important European Treaty of modern times, Mr. Giscard d’Estaing called on the Italian Presidency to conduct the Intergovernmental Conference at the highest political level, so as to adopt the constitutional text in December 2003.

In an ideal picture reflecting he EU official views, it would be importantly symbolic after Rome of 1957 when the first European Economic Community was established, the historical date move to Rome of 2003 where the Constitution will be hopefully signed in December 2003. In the first place by the present EU’s 15 member states. What about the ten joining members? 

The procedure to sign the constitution by all 25 members of the EU is planned on May 2004, as the so called Rome EU Constitution. At that moment 10 new members will be full EU members and popular legitimization for new constitution would come in time, just before the next elections to the European Parliament, which would- again hopefully- provide a popular approval for it.  

The new constitution will most probably come into effect in 2005 or even 2006, after ratification by all the new and old EU members. The most important hindrance to Constitutional quick adoption would be the Union’s next budget, as the current budget deal ends at the end of 2006. Therefore, EU’s 25 leaders will be involved in tense combat about the next Union’s financial deal and will not have time for a discussion on institutional reform in the Union. That wouldn’t really help in clarifying the rational decision-making procedures among 25 member states.

Convention's work 

The European Council at its summit in Laeken, Belgium, on 14 and 15 December 2001 convened the European Convention on the Future of Europe. The Convention’s tasks were formulated on three subjects:

• how to bring citizens closer to the European design and European Union institutions;
• how to organize politics and the European political area in an enlarged Union;
• how to develop the Union into a stabilizing factor and a model in the new world order.

In fact, the Convention has identified responses to these questions. For example, it proposed a better division of Union and member states’ competencies. It recommended a merger of the presently functioning 8 Treaties which are in force, and attributed a legal personality to the Union; it created measures to improve the structure and enhance the role of each of the three main EU institutions, taking into account the consequences of enlargement.

Convention within 16 month of work prepared the draft establishing a Constitution for Europe achieved consensus at its plenary meetings and was presented to the European Council meeting in Thessaloniki (Greece).

The Treaty establishing a Constitution for Europe was adopted by consensus by the European Convention twice: on 13 June – its first part and on 10 July 2003 in a final version.

A Union of citizens v. a Union of member states

The constitution has three major aims:

• To establish a clear and transparent division of powers between the Union and its Member states, enabling national parliaments to intervene.
• To enshrine citizens’ rights by incorporating into the constitution the European Charter of Fundamental Rights.
• To turn Europe towards its citizens by holding out new opportunities for them to participate.
• To provide Europe with stable, democratic and effective institutions.

The Union’s powers would be extended to such areas as:

• Personal freedom, security and justice, with more effective actions to combat major crime;
• Recognition by member states of one another’s different systems of civil law;
• Gradual development of foreign and defense policy (for that purpose a European Foreign Minister shall speak and act for Europe of 25 states), and European Arms agency will be established;
• Improvement of economic coordination between countries using the Euro, so as to ensure the stability and success of the EU common currency.

Special part of the constitution is devoted to EU institutions. The draft stresses that the EU will have stable, democratic and effective institutions. Thus the European Parliament becomes the Union’s main legislature. It will enact laws together with the Council. Therefore, the EU legislation will be the product of agreement between citizens’ elected representatives and the member states. The Council will be the Union’s official “face” and be a durable body: its President will organize member states’ work and will be able to plan for the future and think ahead. The Commission will be Union’s driving force and main executive; it will embody the common European interest.

A new Constitutional Draft: BC’s comments

In the coming months, at least up to the end of 2003 or even to May 2004, European States will have to work with the text submitted to the President of the European Council in Rome on 18 July 2003. It is composed of 463 articles on about 300 pages (not counting various protocols and declarations) and is a rather difficult document to read through. Suffice it to say that in an aggregated form, i.e. including Constitutional Treaties binding all 25-member states, the text includes more than 5.000 pages! It’s a huge volume even difficult to lift. 

BC’s international edition would concentrate on some major issues of the draft in order to show our readers the way of thought of constitutional “founding fathers”. The future constitution is divided into four parts subdivided into seven titles. Therefore, in the BC’s summer and autumn issues we’d try to make some comments on the most important parts of this document which is going to shape our life in Europe. The constitutional texts are cited in italics, and we reserve our right to make convenient reductions in the text.   

Sources of information:  www.ueitalia2003.it ; www.register.consilium.eu.int;

and  www.european-convention.eu.int. 

Preamble: “United in diversity”.

The introduction to the constitutional text (which is called a preamble) intends to make an overview of the whole legal text. Quite remarkable that it begins with the words of a Greece philosopher Thucydides: “Our Constitution… is called a democracy because power is in the hands not a minority nut of the greatest numbers”. That was said at the time of the first on earth constitutions, but it’s still bearing a lot of political respect, isn’t it!

From a judicial point of view preamble does not have any legal sense, but this introductory clause in a constitution states the intent of the document, its reason and purpose. In this regard, it is interesting to see how “founding fathers” formulated some of these intents:   

Conscious that Europe is a continent that has brought forth civilization; that its inhabitants…have gradually developed the values underlying humanism: equality of persons, freedom, and respect for reason;

Drawing inspiration from the cultural, religious and humanist inheritance of Europe…;

Believing that reunited Europe intends to continue along this path of civilization,… that it wishes to remain a continent open to culture, learning, and social progress;

Convinced that, while remaining proud of their own national identities and history, the peoples of Europe are determined to transcend their ancient divisions, and, united ever more closely, to forge a common destiny,

Convinced that, thus "united in its diversity", Europe offers them the best chance of pursuing, with due regard for the rights of each individual and in awareness of their responsibilities towards future generations and the Earth…

Definitions and objectives of the Union.  Part I of the constitution and its title1 is devoted to most important principal of the Union’s development. Thus, in art.1 it abides to co-ordinate common EU policies, although in articles on competence the rate of such co-ordination would be more precisely construed.

Article 1: Establishment of the Union

1. Reflecting the will of the citizens and States of Europe to build a common future, this Constitution establishes the European Union, on which the Member States confer competencies to attain objectives they have in common. The Union shall co-ordinate the policies by which the Member States aim to achieve these objectives, and shall exercise in the Community way the competencies they confer on it...

Article 2: The Union's values

The Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights. These values are common to the Member States in a society of pluralism, tolerance, justice, solidarity and non-discrimination.

As we can see, Convention’s delegates could not agree on Christianity concept to be included into common spiritual values binding European states. Pope John Paul II has been campaigning since the start of the Convention work to recognise importance of European values and spiritual achievements to Christianity. Polish government wanted to insert a clause at least in the preamble. So far none of the efforts succeeded.  

Quite interesting is the way Union’s objectives are formulated in art.3:

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 offer its citizens an area of freedom, security and justice without internal frontiers, and a single market where competition is free and undistorted.

3. The Union shall work for a Europe of sustainable development based on balanced economic growth, a social market economy, highly competitive and aiming at full employment and social progress, and with a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance…

It shall promote economic, social and territorial cohesion, and solidarity among Member States. The Union shall respect its rich cultural and linguistic diversity, and shall ensure that Europe's cultural heritage is safeguarded and enhanced.

4. In its relations with the wider world, the Union shall uphold and promote its values and interests…

5. These objectives shall be pursued by appropriate means, depending on the extent to which the relevant competencies are attributed to the Union in this Constitution.

 Article 5: Relations between the Union and member states

1. The Union shall respect the national identities of its Member States, inherent in their fundamental structures, political and constitutional, including for regional and local self-government. It shall respect their essential State functions, including for ensuring the territorial integrity of the State, and for maintaining law and order and safeguarding internal security.

2. Following the principle of loyal co-operation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks, which flow from the Constitution.

The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure, which could jeopardize the attainment of the objectives set out in the Constitution.

In Title 3 of the 1^st Part, Union’s competencies are formulated. First, fundamental principles, where it is directly declared that competencies not mentioned in the constitution are within the member states’ competence: 

Article 9: Fundamental principles

1. The limits of Union competence are governed by the principle of conferral. The use of Union competencies is governed by the principles of subsidiarity and proportionality.

2. Under the principle of conferral, the Union shall act within the limits of the competencies conferred upon it by the Member States in the Constitution to attain the objectives set out in the Constitution. Competencies not conferred upon the Union in the Constitution remain with the Member States.

3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence the Union shall act only if and insofar as the objectives of the intended action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.

Most controversial was an issue on competence. In theory, and the convention fixed it, the Union shall have exclusive –only four big spheres (art.12), shared competencies –ten spheres (art.13) and areas for supporting actions –five areas (art.16). Alongside constitutional formulation of competence division in general (art.5 and 9) the competition issues are the most discussed ones:

Article 12: Exclusive competence

1. The Union shall have exclusive competence to establish the competition rules necessary for the functioning of the internal market, and in the following areas:

• monetary policy, for the Member States which have adopted the Euro,
• common commercial policy,
• customs union,
• the conservation of marine biological resources under the common fisheries policy.

2. The Union shall have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union, is necessary to enable the Union to exercise its competence internally, or affects an internal Union act.

Article 13: Areas of shared competence

1. The Union shall share competence with the Member States where the Constitution confers on it a competence, which does not relate to the areas referred to in Articles 12 and 16.

2. Shared competence applies in the following principal areas:

• internal market,
• area of freedom, security and justice,
• agriculture and fisheries, excluding the conservation of marine biological resources,
• transport and Trans-European networks,
• energy,
• social policy, for aspects defined in Part Three,
• economic, social and territorial cohesion,
• environment,
• consumer protection,
• common safety concerns in public health matters.

3. In the areas of research, technological development and space, the Union shall have competence to carry out actions, in particular to define and implement programs; however, the exercise of that competence may not result in Member States being prevented from exercising theirs…

Article 14: The co-ordination of economic and employment policies

1. The Union shall adopt measures to ensure co-ordination of the economic policies of the Member States, in particular by adopting broad guidelines for these policies. The Member States shall co-ordinate their economic policies within the Union.

2. Specific provisions shall apply to those Member States, which have adopted the Euro.

3. The Union shall adopt measures to ensure co-ordination of the employment policies of the Member States, in particular by adopting guidelines for these policies.

4. The Union may adopt initiatives to ensure co-ordination of Member States' social policies.

Article 16: Areas of supporting, coordinating or complementary action

1. The Union may take supporting, coordinating or complementary action.

2. The areas for supporting, coordinating or complementary action shall be, at European level:

• industry
• protection and improvement of human healtheducation, vocational training, youth and sport
• culture
• civil protection

3. Legally binding acts adopted by the Union on the basis of the provisions specific to these areas in Part Three cannot entail harmonization of Member States' laws or regulations.

Article 17:Flexibility clause

1. If action by the Union should prove necessary…to attain one of the objectives set by this Constitution, and the Constitution has not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall take the appropriate measures.

2. Using the procedure for monitoring the subsidiarity principle referred to in Article 9(3), the Commission shall draw Member States' national Parliaments' attention to proposals based on this Article.

3. Provisions adopted on the basis of this Article may not entail harmonization of Member States' laws or regulations in cases where the Constitution excludes such harmonization.

Title IV of Ch. I deals with another important issue, that of the Union’s institutional framework. Quite remarkable that the number of main institutions –five- remained constant since the Amsterdam Treaty; the rest are called the EU bodies:

Article 18: The Union's Institutions

1. The Union shall be served by a single institutional framework which shall aim to:

• advance the objectives of the Union,
• promote the values of the Union,
• serve the interests of the Union, its citizens and its Member States,
• and ensure the consistency, effectiveness and continuity of the policies and actions which it undertakes in pursuit of its objectives.

2. This institutional framework comprises:

1. The European Parliament,
2. The European Council,
3. The Council of Ministers,
4. The European Commission,
5. The Court of Justice.

3. Each Institution shall act within the limits of the powers conferred on it in the Constitution, and in conformity with the procedures and conditions set out in it…

Article 19: The European Parliament

1. The European Parliament shall, jointly with the Council, enact legislation, and exercise the budgetary function, as well as functions of political control and consultation as laid down in the Constitution. It shall elect the President of the European Commission.

2. The European Parliament shall be directly elected by universal suffrage of European citizens in free and secret ballot for a term of five years. Its members shall not exceed seven hundred and thirty-six in number. Representation of European citizens shall be digressively proportional, with a minimum threshold of four members per Member State.

Sufficiently in advance of the European Parliamentary elections in 2009, and, as necessary thereafter for further elections, the European Council shall adopt by unanimity, on the basis of a proposal from the European Parliament and with its consent, a decision establishing the composition of the European Parliament…

3. The European Parliament shall elect its President and its officers from among its members.

Article 20: The European Council

1. The European Council shall provide the Union with the necessary impetus for its development, and shall define its general political directions and priorities. It does not exercise legislative functions.

2. The European Council shall consist of the Heads of State or Government of the Member States, together with its President and the President of the Commission. The Foreign Minister shall take part in its work.

3. The European Council shall meet quarterly, convened by its President. When the agenda so requires, its members may decide to be assisted by a minister, and, in the case of the President of the Commission, a Commissioner. When the situation so requires, the President shall convene an additional meeting of the European Council.

4. Except where the Constitution provides otherwise, decisions of the European Council shall be taken by consensus.

Article 21: The European Council Chair

1. The European Council shall elect its President, by qualified majority, for a term of two and a half years, renewable once…

2. The President of the European Council shall chair it and drive forward its work. In co-operation with the President of the Commission, and on the basis of the work of the General Affairs Council, he shall ensure proper preparation and continuity. He shall endeavour to facilitate cohesion and consensus within the European Council. He shall present a report to the European Parliament after each of its meetings.

The President of the European Council shall in that capacity ensure, at his level, the external representation of the Union on issues concerning its Common Foreign and Security Policy, without prejudice to the responsibilities of the Minister for Foreign Affairs.

3. The President of the European Council may not hold a national mandate.

Article 22: The Council of Ministers

1. The Council of Ministers shall, jointly with the European Parliament, enact legislation, exercise the budgetary function and carry out policy-making and coordinating functions, as laid down in the Constitution.

2. The Council of Ministers shall consist of a representative of each Member State at ministerial level for each of its formations. Only this representative may commit the Member State in question, and cast its vote.

3. Except where the Constitution provides otherwise, decisions of the Council shall be taken by qualified majority.

Article 23: Council formations

1. The General Affairs and Legislative Council shall ensure consistency in the work of the Council of Ministers. When it acts in its General Affairs function, it shall, in liaison with the Commission, prepare and ensure follow-up to, meetings of the European Council.

When it acts in its legislative function, the Council shall consider and, jointly with the European Parliament, enact European laws and European framework laws, in accordance with the provisions of the Constitution. In this function, each Member State's representation shall include one or two representatives at ministerial level with relevant expertise, reflecting the business on the Council agenda.

2. The Foreign Affairs Council shall, on the basis of strategic guidelines laid down by the European Council, flesh out the Union's external policies, and ensure that its actions are consistent. It shall be chaired by the Union's Foreign Minister.

3. The European Council shall decide on further formations.

4. The Presidency of a Council formation, other than that of Foreign Affairs, shall be held by Member State representatives within the Council on the basis of equal rotation, for periods of at least a year. The European Council shall establish the rules of such rotation, taking into account European political and geographical balance and the diversity of Member States.

Article 24: Qualified majority

1. When the European Council or the Council takes decisions by qualified majority, such a majority shall consist of the majority of Member States, representing at least three fifths of the population of the Union.

2. When the Constitution does not require the European Council or the Council of Ministers to act on the basis of a proposal of the Commission, or when the European Council or the Council of Ministers does not act on the initiative of the Foreign Minister, the required qualified majority shall consist of two-thirds of the Member States, representing at least three fifths of the Union’s population.

…

4. Where the Constitution provides…for laws and framework laws to be adopted by the Council according to a special legislative procedure, the European Council can adopt, on its own initiative and by unanimity, after a period of consideration of six months, a decision allowing for the adoption of such laws or framework laws according to the ordinary legislative procedure. The European Council shall act after consulting the European Parliament and informing the National Parliaments.

Where the Constitution provides in Part III for the Council to act unanimously in a given area, the European Council can adopt, on its own initiative and by unanimity, a decision allowing the Council to act by qualified majority in that area. Any initiative taken by the European Council under this article shall be sent to National Parliaments no less than four months before any decision is taken on it.

5. Within the European Council, its President and the President of the Commission do not vote.

Qualified majority decision-making procedure presently is based on the latest in time Nice Treaty (See Table) but new constitution envisaged another votes’ structure.

Article 25: The European Commission

1. The European Commission shall promote the general European interest and take appropriate initiatives to that end. It shall ensure the application of the Constitution, and steps taken by the Institutions under the Constitution. It shall oversee the application of Union law under the control of the Court of Justice. It shall execute the budget and manage programs. It shall exercise coordinating, executive and management functions, as laid down in the Constitution.

With the exception of the common foreign and security policy, and other cases provided for in the Constitution, it shall ensure the Union's external representation. It shall initiate the Union's annual and multi-annual programming with a view to achieving inter-institutional agreements.

2. Except where the Constitution provides otherwise, Union legislative acts can be adopted only on the basis of a Commission proposal. Other acts are adopted on the basis of a Commission proposal where the Constitution so provides.

3. The Commission shall consist of a College comprising its President, the Minister of Foreign Affairs/Vice President, and thirteen European Commissioners selected on the basis of a system of equal rotation between the Member States. This system shall be established by a decision of the European Council on the basis of the following principles:

(a) Member States shall be treated on a strictly equal footing as regard determination of the sequence of, and the time spent by, their nationals as Members of the College; consequently, the difference between the total number of terms of office held by nationals of any given pair of Member States may never be more than one; 

(b) Subject to point (a), each successive college shall be so composed as to reflect satisfactorily the demographic and geographical range of all the Member States of the Union. The Commission President shall appoint non-voting Commissioners, chosen according to the same criteria as apply for Members of the College and coming from all other Member States.

These arrangements will take effect on 1 November 2009.

4. In carrying out its responsibilities, the Commission shall be completely independent. In the discharge of their duties, the European Commissioners and Commissioners shall neither seek nor take instructions from any government or other body.

5. The Commission, as a college, shall be responsible to the European Parliament. The Commission President shall be responsible to the European Parliament for the activities of the Commissioners. …The European Parliament may pass a censure motion on the Commission. If such a motion is passed the European Commissioners and Commissioners must all resign. The Commission shall continue to handle everyday business until a new college is nominated.

Article 26: The President of the European Commission

1. Taking into account the elections to the European Parliament and after appropriate consultations, the European Council, deciding by qualified majority, shall put forward to the European Parliament its proposed candidate for the Presidency of the Commission. This candidate shall be elected by the European Parliament by a majority of its members. If this candidate does not receive the required majority support, the European Council shall within one month put forward a new candidate, following the same procedure as before.

2. Each eligible Member State shall submit a list of three persons, in which both genders shall be represented whom it considers qualified to be a European Commissioner. The President-elect shall select, from among the three names submitted, the thirteen European Commissioners for their competence, European commitment, and guaranteed independence.

The President and the persons so nominated for membership of the College, including the future Minister for Foreign Affairs, as well as the persons nominated as non-voting Commissioners shall be submitted as a body to a vote of approval by the European Parliament. The Commission's term of office shall be five years.

3. The Commission shall work to guidelines laid down by its President. He shall decide its internal organization, ensuring that it acts consistently, efficiently and on a collegiate basis.

He shall appoint vice-presidents from among the members of the College. A European Commissioner or Commissioner shall resign if the President so requests.

The following article is particularly controversial. Among many unresolved issues are the potential role of an EU “foreign minister”, a position the UK strongly opposes, arguing that foreign policy should be the sole preserve of nation-states and not left as sinecure in the hands of the European Commission. 

Article 27: The Foreign Minister

1. The European Council, deciding by qualified majority, with the agreement of the President of the Commission, shall appoint the Union's Foreign Minister. He shall conduct the Union's common foreign and security policy. The European Council may end his tenure by the same procedure.

1a.  The establishment of a Joint European External Action Service, to assist the Minister, will be addressed in the Constitution’s Declaration (Part III).

2. The Foreign Minister shall contribute by his proposals to the development of the common foreign policy, which he shall carry out as mandated by the Council. The same shall apply to the common security and defense policy.

3. The Foreign Minister shall be one of the Vice-Presidents of the Commission. He shall be responsible there for handling external relations and for coordinating other aspects of the Union's external action. In exercising these responsibilities within the Commission, and only for these responsibilities, the Foreign Minister shall be bound by Commission procedures.

See EU Constitution in the magazine’s next issue.

Italian Presidency of the Council of the European Union

Italy takes a central stage in the EU politics at a critical juncture in the Union’s history. First, there are already 10 new member states set to join the EU in May 2004; second, the details of the new constitution must be thoroughly discussed; third, the EU’s tough relations with the United States need patching up. But can Italian government and its Prime Minister S. Berlusconi get the job done? And then, besides the above mentioned issues, there are some small although not less important things to do, Such as transport problems in Europe, and relations with Russia, refugees flows from near East and South Africa, etc.

Italian Presidency priority objectives:

• The Intergovernmental Conference (somewhere in December 2003);
• The European Economy;
• Towards “Greater Europe”;
• Europe’s presence in the world;
• Security of citizens  

S. Berlusconi said in Moscow in July 2003, probably as a good -will gesture: “I have a solution to the vision of Europe. We must make Russia a member of the EU”. He didn’t seem to know that Russia wouldn’t qualify for EU membership for decades.

Berlusconi’s attitude to success in politics, as he says, requires the same key skills as success in business: salesmanship (Time, July 7, 2003, p.33).

It’s difficult for any leader to strongly influence the EU policy during such a brief 6 month’s presidency. Only a team of experts could do it. Last best example to mention in this regard is Danish presidency and a summit in Copenhagen at the end of 2002, when 10 new member states were signed in the EU family.