Select Committee on Constitution Ninth Report


WRITTEN EVIDENCE

Memorandum by Professor Anthony Arnull, University of Birmingham

Summary

In this memorandum, provisions of the draft Constitution are singled out for discussion where they: (a) deal with the relationship between the draft Constitution and UK domestic law; (b) affect EU decision-making, particularly the functioning of institutions in which the UK is directly represented at the political level (namely the European Council and the Council of Ministers) or the overall institutional balance in the EU; (c) affect the UK's freedom of action, especially in areas touching core aspects of national sovereignty; or (d) affect the role of UK national institutions in the activities of the EU. The main part of the discussion examines the following subjects: primacy; division of powers; the European framework law; infringement proceedings against Member States; decision-making; the Presidency of the European Council and the Union Minister for Foreign Affairs; external action and the solidarity clause; the role of national parliaments; the Charter of Fundamental Rights and Union accession to the European Convention on Human Rights; the amendment procedure. There is then a short section which considers three miscellaneous matters of some constitutional importance, at least for the United Kingdom. The memorandum concludes with an attempt to assess the overall importance of the draft Constitution. The assessment offered is of necessity provisional. The draft Constitution is a long and complex document and its full implications are unlikely to be immediately apparent.

Introduction

1.  The Committee has asked me to comment on the constitutional implications for the United Kingdom of the final document issued by the Convention on the Future of Europe on 18 July 2003.[3] The full title of that document is "Draft Treaty Establishing a Constitution for Europe." Although the word "Constitution" in that title has understandably attracted more attention, it is the word "Treaty" which has the greater legal significance.

2.  The European Union already has a constitution comprising the Treaties by which it and its constituent parts, the European Community and the European Atomic Energy Community (Euratom), were created.[4] These set out the Union's aims and objectives and how they are to be achieved. But as a constitution the Treaties are deficient. They occupy many pages and have been amended many times. They are the subject of a large body of case law of the Court of Justice, some of it constitutional in character. The result is that a lay reader, if he or she could get through them, would find it almost impossible to understand their effect.

3.  A feeling that this was contributing to a decline in the Union's legitimacy led the Member States at Nice to launch a process of reflection on the future of the Union. One of the issues identified by the Member States as needing to be addressed during that process was "a simplification of the Treaties with a view to making them clearer and better understood without changing their meaning". The process was taken forward at the European Council meeting in Laeken in December 2001, where, in a Declaration on the Future of the European Union, the question was raised whether "simplification and reorganisation [of the Treaties] might not lead in the long run to the adoption of a constitutional text in the Union."

4.  The Convention on the Future of Europe set up at Laeken to address this and other questions in detail decided to produce a simplified and reorganised text called a constitution which would merge and reorganise the Treaty on European Union (TEU) and the EC Treaty (though not the Euratom Treaty). However, although the Convention method had not been used before to prepare changes to the Treaties,[5] the final text will as usual have to be agreed by the Member States in an intergovernmental conference (IGC) and ratified by each of them in accordance with their own constitutional requirements before it can enter into force. So the fact that the new Treaty which eventually emerges might be called a constitution will have no constitutional significance in itself. It will have the same legal status as all previous Union Treaties. Its constitutional significance will depend entirely on what it actually says.

5.  It is not possible within the confines of this memorandum to carry out a comprehensive analysis of all the provisions of the draft Constitution which might affect the constitution of the United Kingdom. In what follows, provisions are singled out for discussion where they:

    (a) Deal with the relationship between the draft Constitution and UK domestic law;

    (b) Affect EU decision-making, particularly the functioning of institutions in which the UK is directly represented at the political level (namely the European Council and the Council of Ministers) or the overall institutional balance in the EU;

    (c) Affect the UK's freedom of action, especially in areas touching core aspects of national sovereignty; or

    (d) Affect the role of UK national institutions in the activities of the EU.

Primacy

6.  Article I-10(1) of the draft Constitution provides: "The Constitution, and law adopted by the Union's Institutions in exercising competences conferred on it, shall have primacy over the law of the Member States." That provision reflects the case law of the Court of Justice on primacy beginning with Costa v ENEL, decided as long ago as 1964.[6] The effect of that case law would seem to be preserved by Article IV-3, according to which "The case-law of the Court of Justice of the European Communities shall be maintained as a source of interpretation of Union law."

7.  The doctrine of primacy means that, where there is a conflict in a national court between a national rule and a European rule, precedence must be accorded to the latter. It can only apply where the European rule is sufficiently clear to be suitable for application by a court (a quality known as direct effect). Article I-10 of the draft Constitution may be regarded as defective in not making this clear.[7] More importantly, the existing doctrine of primacy applies only within the context of the European Community: it does not extend to Titles V and VI of the TEU, the so-called second and third pillars, which deal respectively with the Common Foreign and Security Policy (CFSP) and with Police and Judicial Cooperation in Criminal Matters. The merger of the EC Treaty and the TEU which the draft Constitution envisages would abolish the Union's pillar structure, so the effect of Article I-10(1) would be to make the doctrine of primacy applicable across the entire range of the Union's activities. Moreover, while matters falling under Title VI would for the most part be brought within the scope of the classic powers of the Court of Justice,[8] most of the provisions concerning the CFSP will remain outside the jurisdiction of the Court.[9] It is therefore unclear whether a national court would be able to ask the Court of Justice for guidance on the effect of Article I-10(1) in nearly all cases concerning the CFSP. If national courts are left to their own devices, there will inevitably be divergence between Member States. The solution to this problem is either: (a) to delete the provision excluding the CFSP from the jurisdiction of the Court, or (b) to exclude the CFSP from Article I-10(1). In a Union which will include the rule of law among the values on which it is based,[10] the former would seem preferable. However, the latter is likely to prove more politically acceptable.

Division of powers

8.  The existing Treaties make it hard to establish who is responsible for what: they do not make clear which powers belong to the Union and which powers belong to the Member States. Among the issues identified at Nice as needing to be addressed was therefore "how to establish and monitor a more precise delimitation of powers between the European Union and the Member States, reflecting the principle of subsidiarity". These questions are dealt with in Part I, Title III, of the draft Constitution, especially Articles I-12, I-13 and I-16.

9.  Article I-12 lists the areas in which the Union is to have exclusive competence, in other words, where the Member States would have no power to act unless empowered to do so by the Union. The list is remarkably short, comprising only five areas, all of which were understood by the Convention to fall within the exclusive competence of the Union at present.[11] The wording of one - "…to establish the competition rules necessary for the functioning of the internal market…" - is, however, problematic. The Court of Justice accepted, in a famous case decided in 1969, that "one and the same agreement may, in principle, be the object of two sets of parallel proceedings, one before the Community authorities under…the EEC Treaty, the other before the national authorities under national law."[12] That interpretation, the Court said, was confirmed by what is now Article 83(2)(e) EC, which authorises the Council to determine the relationship between national laws and the Community rules on competition. Article 83(2)(e) is in substance reproduced in Article III-52(2)(e) of the draft Constitution. The continued existence of domestic competition rules also underlies the new Council Regulation[13] on the implementation of the Treaty competition rules. The reference to such rules in Article I-12 should therefore be deleted.[14] Indeed, it is doubtful whether the subject needs to be mentioned expressly in Title III of Part I since it is an aspect of the internal market, which Article I-13(2) refers to as an area of shared competence. However, the drafting of that provision is not entirely satisfactory, as we shall see.

10.  Article I-16 lists five areas in which the Union may take "supporting, coordinating or complementary action." Such action would not supersede the competence of the Member States to act in the areas concerned and must not entail harmonisation of national laws.

11.  Where the draft Constitution gives the Union a competence which is not covered by Articles I-12 or I-16, it is to share that competence with the Member States. This means that both the Union and the Member States will be able to act. The Member States will normally be able to do so only where the Union "has not exercised, or has decided to cease exercising, its competence."[15] The main areas in which shared competence applies are listed in Article I-13(2), though the list is not intended to be exhaustive. Not surprisingly, the Convention had some difficulty in deciding which areas of competence should be included.[16] In some areas (specified in Article I-13(3) and (4)), the exercise by the Union of its competences will not prevent the Member States from exercising their own competences.

12.  The idea that the competence of the Member States should be restricted once the Union has acted is well established in the case law of the Court. However, it might be sensible to make it clear that, as in areas of exclusive Union competence, the Member States would not be precluded by Union action from acting themselves if permitted to do so by Union law. It may be noted that the Cambridge draft submitted to the Convention[17] used a different formula to describe the duties of the Member States when the Union has acted in an area of shared competence, speaking of the Member States respecting "the obligations imposed on them by the relevant Union measures". However, the precise impact on national competence of Union action will in any event be affected by its legal basis in Part III of the draft Constitution.[18]

13.  Articles I-14 and I-15 deal respectively with the Union's competence to coordinate the economic policies of the Member States and in matters of common foreign and security policy. The Convention considered this to be justified by the "specific nature" of those areas.[19] Both are already the subject of provisions in the EC Treaty or the TEU which are developed in Part III of the draft Constitution.

14.  Title III of Part I of the draft Constitution is therefore of constitutional importance as it would affect the UK's freedom of action. Although the task it seeks to perform is a useful one, it may require further attention at the IGC.

The European framework law

15.  Many of the Community's existing powers to act involve the use of the directive. According to Article 249 EC, "A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods." The draft Constitution recasts and rationalises the catalogue of acts available to the Union. The directive is to be replaced by the European framework law, which shall be "binding, as to the result to be achieved, on the Member States to which it is addressed, but leaving the national authorities entirely free to choose the form and means of achieving that result" (Article I-32(1)).

16.  The difference in wording strongly implies that Member States are intended to enjoy greater leeway in implementing framework laws than they do at present in giving effect to directives. That in turn suggests that framework laws may have to be less prescriptive than many directives now are. A possible result could be that provisions in framework laws that are sufficiently precise to produce direct effect will no longer be permitted. If they are, however, it may follow from Article I-10(1) that such provisions might be invoked in the national courts in proceedings both against the State and its organs (sometimes called vertical direct effect) and against private parties (sometimes called horizontal direct effect). If so, that would represent a significant change from the present position. The Court of Justice has held that, because Article 249 only makes directives binding on the States to which they are addressed, they may not be invoked directly before the national courts in proceedings against private parties. Article I-10(1) says that law adopted by the Union's institutions has primacy over national law. While that provision should probably be read as applying only to Union law which is sufficiently precise for application by a court, it does not in itself permit a distinction to be drawn according to the status of the defendant. That result might be achieved by treating Article I-32(1) as a special rule which derogates from Article I-10(1), but the position should be clarified, ideally by the insertion of a provision dealing expressly with the concept of direct effect.

Infringement proceedings against Member States

17.  If framework laws confer a wider margin of discretion on the Member States than directives, the result may be fewer actions by the Commission against Member States before the Court of Justice for failure to fulfil their obligations. Where such proceedings are brought, the draft Constitution would reinforce the procedure in two ways. Both may be considered of constitutional significance, as they would curtail the rights of respondent Member States to defend themselves.

18.  Where the Commission's complaint is that "the State concerned has failed to fulfil its obligations to notify measures transposing a European framework law", it may, in the course of the same proceedings, ask the Court to impose on the State concerned a financial penalty (Article III-267(3)). At present, such a request may only be made in the course of a fresh application to the Court where the State concerned has not taken the steps necessary to comply with the Court's original judgment. This is in principle a welcome reform of a cumbersome procedure. However, the reference to failure to notify the national implementing measures must be a mistake. It would catch States who have in fact implemented but merely failed to notify where required to do so. Clearly no penalty would be justified in such a case. If there is to be a special rule for European framework laws, failure to transpose is surely the real mischief it should tackle.

19.  In other cases, the Commission will not be able to ask the Court to impose a financial penalty in its initial application to the Court. As at present, the Commission will only be able to do so if the State concerned fails to take the steps necessary to comply with the Court's judgment. The draft Constitution envisages that, in such a case, the administrative procedure will be streamlined. The Commission is to have the power to bring the State directly before the Court after it has been given the opportunity to submit its observations (Article III-267(2)). The requirement, currently laid down in Article 228(2) EC, that the Commission should issue a reasoned opinion before applying to the Court will go. This is a rather half-hearted reform. It is not clear why the Commission should not be given a general right to ask the Court in its initial application to impose a financial penalty.

Decision-making

20.  The draft Constitution contains important provisions on decision-making. They are of constitutional significance because they will affect the capacity of individual Member States to influence the outcome of deliberations, particularly in the Council of Ministers, and the balance between the Council and the European Parliament.

21.  Article I-22(3) changes the default rule for decision-making in the Council from simple to qualified majority.[20] In theory, this works in favour of the larger Member States like the United Kingdom. In practice, the existing default rule rarely applies.

22.  Article I-24(1) says that, when the Council of Ministers (or the European 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".[21] This would represent a radical departure from the existing system, under which Member States are accorded varying numbers of votes according to the size of their populations. A simple dual majority system of the type set out in Article I-24(1) was advocated by the Commission and by several delegations at Nice, but ultimately rejected in favour of the traditional system of weighted votes, although the process of agreeing on the reweightings applicable in an enlarged Union proved acrimonious.

23.  The beauty of the simple dual majority formula lies in its clarity, objectivity and durability: it would not need to be adjusted each time a new Member State joined the Union, although the populations of the Member States would need to be reviewed regularly. It is also consistent with the idea of the Union as a polity of both States and peoples.[22] However, the voting element of the formula would give Malta the same weight as the UK, while the population element would mean that the UK had considerably less weight than Germany, a State with which it currently enjoys parity.[23] This might cause presentational problems and undermine the legitimacy of decisions taken by qualified majority vote.

24.  Perhaps mindful of problems such as these and of the fact that a simple reweighting of Council votes in the enlarged Union had been envisaged at Nice,[24] the draft Constitution provides that the simple dual majority formula will take effect only on 1 November 2009, after the European Parliament elections scheduled for that year have taken place. Until then, the vote weightings set out in Article 2 of a "Protocol on the Representation of Citizens in the European Parliament and the Weighting of Votes in the European Council and the Council of Ministers" will apply (assuming the Union remains at 25 Member States).[25] Article 2 of the Protocol corresponds to the scale which will apply with effect from 1 November 2004 by virtue of Article 12 of the Act concerning the accession of the candidate countries.

25.  Much number-crunching will be needed to establish how these systems compare with the present system (although enlargement may well alter the dynamics of decision-making). The following table, based on some provisional calculations, compares the present position with the system which is intended to apply from 1 November 2004.[26]

  
Total votes
Qualified majority
Blocking minority
UK votes
Now (EU-15)
87
62 (71.26%)
26 (29.89%)
10 (11.49%)
1 November 2004 (EU-25)
321
232 (72.27%)
(subject to population test: see below)
90 (28.04%)
29 (9.03%)

The following table shows the evolution of the QMV threshold in terms of the percentage of votes required.

EU-6
EU-9
EU-10
EU-12
EU-15
EU-25
70.59%
70.69%
71.43%
71.05%
71.26%
72.27%

26.  It will be seen that the vote weighting of the United Kingdom will fall after enlargement in percentage terms and that a qualified majority will become more difficult than ever to achieve. That difficulty will be compounded by the new population test, which was a feature of the Nice agreement and appears in the Act of Accession and the Protocol annexed to the draft Constitution. That test will enable any Member State to ask for a check to be made to ensure that States comprising a qualified majority represent at least 62% of the Union's total population. If they do not, their decision will not take effect. The population test has the effect of enhancing the capacity of the larger Member States (particularly Germany, but including the United Kingdom) to block qualified majority decisions to which they are opposed. This needs to be borne in mind when considering the further extension in the use of qualified majority voting contemplated by the draft Constitution.

27.  One important reason for that extension is the elevation of the so-called co-decision procedure, currently described in Article 251 EC, into the Union's "ordinary legislative procedure". This means that the Union's legislative acts (European laws and European framework laws, corresponding essentially to regulations and directives under the current system) will normally be adopted jointly by the European Parliament and the Council of Ministers.[27] The ordinary legislative procedure is set out in Article III-302. The text has been simplified, but the substance remains essentially unchanged from Article 251 EC. The Council will act by qualified majority throughout except in one situation. Where the procedure starts with a Commission proposal (see below), the Council must act unanimously if it wishes to approve amendments proposed by the European Parliament at second reading on which the Commission has delivered a negative opinion.[28]

28.  Like the co-decision procedure, the ordinary legislative procedure will normally be launched by the submission of a proposal by the Commission. However, Article I-33(1) envisages the adoption of legislative acts at the initiative of a group of Member States. The circumstances in which this will be permitted are set out in Article III-165, which refers to Section 4 ("Judicial Cooperation in Criminal Matters") and Section 5 ("Police Cooperation") of Chapter IV ("Area of Freedom, Security and Justice") of Part III. This incursion into the Commission's right of initiative is intended to balance the use of the ordinary legislative procedure in this field.[29] A corresponding provision has been inserted into Article III-302 to take account of cases where the ordinary legislative procedure is not triggered by a Commission proposal.[30]

29.  One provision to which the ordinary legislative procedure would apply under the draft Constitution is Article III-21, which concerns measures in the field of social security which are necessary to bring about freedom of movement for workers and the self-employed. Article III-21 corresponds to Article 42 EC.[31] Although the co-decision procedure applies under the latter provision, it is expressly provided that the Council is to act unanimously throughout that procedure. That derogation has not been repeated in the draft Constitution, which may not be acceptable to the United Kingdom. It should, however, be noted that the scope of Article III-21 is limited.[32] It is not concerned with the substantive content of national social security legislation, but only with ensuring the aggregation of periods taken into account under the different national laws and the payment of benefits to people resident in other Member States.

30.  Other provisions of the draft Constitution which contemplate action by the Union in the social security field would require the Council of Ministers to act unanimously.[33]

31.  Another area where the United Kingdom has traditionally resisted QMV is tax. Article III-62(1) of the draft Constitution would, like Article 93 EC, require the Council to act unanimously when seeking to harmonise national rules on turnover taxes, excise duties and other forms of indirect taxation. Article III-62(2), which has no counterpart in the present Treaty, would allow the Council to act by qualified majority where a measure referred to in Article III-62(1) relates "to administrative cooperation or to combating tax fraud and tax evasion", but only where the Council has unanimously found that to be the case. There is a similar provision concerning company taxation in Article III-63. The draft Constitution retains[34] the exclusion of fiscal provisions from those which may be approximated by co-decision/ordinary legislative procedure in order to facilitate the establishment and functioning of the common market. Other provisions of the draft Constitution relating to tax involve no or only minimal interference with the freedom of action of Member States.[35]

The Presidency of the European Council and the Union Minister for Foreign Affairs

32.  Provision is made in the draft Constitution for the European Council to elect its President by qualified majority for a term of two and a half years, renewable once. The function of the President, who would not be permitted to hold a national mandate, would be to facilitate the work of the European Council and to "ensure the external representation of the Union on issues concerning its common foreign and security policy".[36] Article I-24(5) makes it clear that neither the President nor the President of the Commission would vote where the European Council acts by qualified majority. The reason seems to be that no votes are attributed to them under the QMV formula. What is perhaps less clear is whether the same rule is intended to apply where the European Council acts by unanimity.[37] If it is, the result would be that either President could block a decision taken by consensus (that is, without recourse to a vote) under the default rule laid down in Article I-20(4), but not one taken by unanimity (which implies the taking of a vote).[38] The extreme subtlety of that distinction suggests that Article I-24(5) should be regarded as confined to QMV, which would mean that the President of the European Council, as well as the President of the Commission, would have a vote when the draft Constitution requires the European Council to act unanimously. This needs to be clarified.

33.  The provisions concerning the President of the European Council, together with the new arrangements for determining the Presidency of the Council of Ministers,[39] are designed to avoid the disruption caused by the present system, under which the presidency of the Council of Ministers rotates every six months and the European Council meets under the chairmanship of the Member State holding the presidency of the Council of Ministers. Moreover, in a Union of 25 Member States, the present system would mean that each State held the presidency only once every 12½ years. The creation of the post of President of the European Council has encountered opposition from some smaller Member States as well as the Commission. Concern has also been expressed about the limited democratic legitimacy the President would enjoy.

34.  The draft Constitution would in addition endow the Union with a Minister for Foreign Affairs. Appointed by qualified majority vote of the European Council with the agreement of the President of the Commission,[40] the person chosen would be one of the Vice-Presidents of the Commission. He or she would also chair the Foreign Affairs Council (one of the formations of the Council of Ministers)[41] and "take part" in the work (without being a member) of the European Council.[42] The Minister would be assisted by a European External Action Service[43] working in cooperation with the diplomatic services of the Member States. The Minister would represent the Union in matters relating to the CFSP, "conduct political dialogue on the Union's behalf and…express the Union's position in international organisations and at international conferences."[44] He or she would have the right to "refer to the Council of Ministers any question relating to the common foreign and security policy" and to submit proposals to it.[45]

35.  These arrangements, and the responsibilities of the President of the European Council in relation to the CFSP, are designed to alleviate some of the problems caused by the present division of functions between the Secretary-General of the Council of Ministers, who also exercises the function of High Representative for the CFSP, and the Commissioner for External Relations. Whether they are likely to prove durable may be questionable, but the role of both the President of the European Council and the Minister for Foreign Affairs is potentially influential. However, the precise nature of the relationship between the two is not easy to discern and there are concerns about the accountability of the Minister for Foreign Affairs, whose democratic legitimacy (such as it is) is only indirect.[46]

External action and the solidarity clause

36.  Article I-6 provides: "The Union shall have legal personality." That provision complements the abolition of the pillar structure and contributes to the simplification of the Treaties. It probably does not change the existing position: Article 281 EC expressly confers legal personality on the Community and it is strongly arguable that the Union already possesses implied legal personality as a matter of public international law.[47] Moreover, the question of legal personality is separate from the question of competences and that of the procedure for entering into international agreements. This was made clear in the final report of Working Group III, where it is noted:[48] "Explicit conferral of a single legal personality on the Union does not per se entail any amendment, either to the current allocation of competences between the Union and the Member States or to the allocation of competences between the current Union and Community. Nor does it involve any amendments to the respective procedures and powers of the institutions regarding in particular the opening, negotiation and conclusion of international agreements."

37.  The external competence of the Union is dealt with in Articles III-225 and III-226. In addition, Article I-12(2) provides: "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 it to exercise its internal competence, or affects an internal Union act." That provision seems intended to give effect to the case law of the Court of Justice, but there is concern that it does not do so accurately[49] and it may need to be revisited at the IGC. Following a recommendation by Working Group III, the draft Constitution contains a general provision dealing with the procedure for negotiating and concluding international agreements.[50]

38.  The provisions of the draft Constitution on external action with the greatest constitutional significance for the UK are probably those dealing with the CFSP. The provisions in question fall into three main groups. In ascending order of detail, they are: (a) Article I-15; (b) Articles I-39 to I-40; (c) Chapter II of Title V of Part III (Articles III-195 to III-215). Of those provisions, only Article I-15[51] and Article III-209 would fall within the jurisdiction of the Court of Justice.

39.  Article I-15 provides as follows:

    "1. The Union's competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union's security policy, including the progressive framing of a common defence policy, which might lead to a common defence.

    2. Member States shall actively and unreservedly support the Union's common foreign and security policy in a spirit of loyalty and mutual solidarity and shall comply with the acts adopted by the Union in this area. They shall refrain from action contrary to the Union's interests or likely to impair its effectiveness."

40.  The power of the Court of Justice to review compliance by Member States with the second subparagraph of that provision is particularly significant. It may lead the Court to be called upon to consider whether action by a Member State complies with an act adopted by the Union in this area or is contrary to the Union's interests or likely to impair its effectiveness. The Court would be likely to regard at least some of these issues as justiciable.

41.  Article III-209, first subparagraph, provides: "The implementation of the common foreign and security policy shall not affect the competences listed in Articles I-12 to I-14 [exclusive competence, shared competence, coordination of economic and employment policies] and I-16 [supporting, coordinating or complementary action]. Likewise, the implementation of the policies listed in those articles shall not affect the competence referred to in Article I-15." That provision is a refinement of Article 47 TEU, according to which the Treaty on European Union shall not affect the Community Treaties and which the Court of Justice has jurisdiction to apply. It did so in the "Airport Transit Visas" case, where it said it was responsible for ensuring that "acts which, according to the Council, fall within the scope of the...Treaty on European Union, do not encroach upon the powers conferred by the EC Treaty on the Community."[52] Article III-209 prevents the provisions on the CFSP from being used to interfere with other competences enjoyed by the Union under the draft Constitution and (significantly) vice versa. Its purpose is to stop a power or a process applicable in one field from being used to take steps which ought properly to be regarded as falling within a different field. It is an application of the principle of conferral, according to which "the Union shall act within the limits of the competences conferred upon it by the Member States in the Constitution to attain the objectives set out in the Constitution."[53] The fundamental nature of that principle explains the grant to the Court of jurisdiction to apply Article III-209.

42.  Article I-39 provides that the CFSP shall be "based on the development of mutual political solidarity among Member States, the identification of questions of general interest and the achievement of an ever-increasing degree of convergence of Member States' actions."[54] The necessary European decisions[55] are to be adopted by the European Council and the Council of Ministers acting unanimously, except in the cases referred to in Part III. The European Council and the Council of Ministers will act on a proposal from a Member State or from the Union Minister for Foreign Affairs, acting alone or with the Commission's support. Recourse to European laws and European framework laws[56] is specifically ruled out in this context. The European Council may unanimously decide that the Council of Ministers should act by qualified majority in cases other than those referred to in Part III.

43.  Article I-40 states that the common security and defence policy (CSDP) shall be an integral part of the CFSP. The CSDP is to include the progressive framing of a common Union defence policy. In language stronger than that of Article I-15(1), the first subparagraph of Article I-40(2) says that this "will lead to a common defence" (emphasis added), but only when the European Council, acting unanimously, so decides. Moreover, the decision of the European Council will have to be recommended to the Member States for adoption in accordance with their respective constitutional requirements.

44.  This particularly heavy variant of the decision-making process, involving what amounts to national ratification of a Union act,[57] represents an acknowledgment of the momentous character such a decision would have. The EU Committee noted of a previous version of Article I-40(2) that a decision of this type "would not only have profound implications for the role of NATO, but also appears to be wholly unrealistic in the foreseeable future. The Committee can see a case for such an aspirational provision against the possibility that NATO might become ineffective and that the Member States might accordingly need an alternative mechanism. We assert our view that we would not wish any developments in European Union defence to weaken the role of NATO. We also believe that it is wholly unlikely that 'the progressive framing of a common defence policy…will lead to a common defence'".[58] It may be noted that draft Constitution would continue to make it clear[59] that the CSDP "must not prejudice the specific character of the security and defence policy" of non-aligned Member States and Member States who see their collective defence as assured principally through NATO and must "be compatible with the common security and defence policy established within that framework."

45.  Detailed rules on decision-making under the CFSP are set out in Article III-201. The first subparagraph is essentially the same as Article 23(1) TEU. It provides that the Council of Ministers is to act unanimously and that abstentions will not prevent it from doing so. Like Article 23(1) TEU, Article III-201 also includes a mechanism for so-called constructive abstention. Under that mechanism, a Member State which qualifies an abstention is not obliged to apply the decision taken but must accept that it commits the Union and refrain from any action likely to undermine it. If the number of Council members qualifying their abstentions in this way exceeds a certain threshold, the decision cannot be adopted. The second subparagraph of Article III-201 alters the current threshold to "one third of the Member States representing at least one third of the population of the Union".

46.  Article III-201(2) sets out the cases in which, by derogation from Article III-201(1), the Council of Ministers may act by qualified majority. Three of the cases mentioned correspond essentially to those in which the Council of Ministers is currently permitted to act by qualified majority within the framework of the CFSP by Article 23(2) TEU. A new fourth case would allow the Council of Ministers to act by qualified majority "when adopting a decision on a Union action or position, on a proposal which the Minister [for Foreign Affairs] has put to it following a specific request to him or her from the European Council made on its own initiative or that of the Minister".[60]

47.  This represents a potentially significant extension in the use of qualified majority voting in relation to the CFSP. However, in an important change from earlier drafts, QMV is now only envisaged where the Minister has made his or her proposal at the request of the European Council, which would act by consensus.[61] Moreover, as with Article 23(2) TEU, an "emergency brake" is available to any member of the Council which is opposed to the adoption of a decision by qualified majority vote. Thus, Article III-201(2) provides:

    "If a member of the Council of Ministers declares that, for vital and stated reasons of national policy, it intends to oppose the adoption of a European decision to be adopted by qualified majority, a vote shall not be taken. The Union Minister for Foreign Affairs will, in close consultation with the Member State involved, search for a solution acceptable to it. If he or she does not succeed, the Council of Ministers may, acting by a qualified majority, request that the matter be referred to the European Council for decision by unanimity" (emphasis added).

It is arguable that the draft Constitution would make the emergency brake slightly more difficult to apply in this context, for the word "vital" in the opening sentence (italicised above) has replaced the word "important" in Article 23(2) TEU.

48.  Article III-201(4) preserves the current exclusion[62] of qualified majority voting in the case of "decisions having military or defence implications". Such decisions are also excluded from the European Council's power, reiterated in Article III-201(3), to decide unanimously that the Council of Ministers should act by qualified majority in cases other than those referred to in Article III-201(2). Partial compensation for those exclusions may be found in provisions on new forms of enhanced cooperation in the context of the CSDP.[63] Enhanced cooperation in relation to matters having military or defence implications is currently ruled out by Article 27b TEU, but there was a feeling in the Convention that enhanced cooperation might be useful in security and defence matters because of differences between the Member States as regards their capabilities and willingness to commit themselves.[64] Enhanced cooperation under the CFSP in matters which do not have military or defence implications, currently the subject of provisions introduced at Nice,[65] is dealt with in Articles III-325 and III-326.

49.  In the Working Group on defence, there was broad support for a new provision spelling out the principle of solidarity between Member States. The provision was not envisaged as "a clause on collective defence entailing an obligation to provide military assistance", but as applying to threats from non-State entities.[66] The provision contemplated appears in the draft Constitution as Article I-42, which is headed "Solidarity clause". It provides:

"1. The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the victim of terrorist attack or natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, to:

    (a) - prevent the terrorist threat in the territory of the Member States;

      - protect democratic institutions and the civilian population from any terrorist attack;

      - assist a Member State in its territory at the request of its political authorities in the event of a terrorist attack;

    (b) - assist a Member State in its territory at the request of its political authorities in the event of a disaster.

2. The detailed arrangements for implementing this provision are at Article III-231."

Article III-231(1) gives the Council of Ministers the task, acting on a joint proposal by the Commission and the Union Minister for Foreign Affairs, of adopting a European decision laying down the arrangements for implementing the solidarity clause. The European Parliament merely has to be "informed". The Council of Ministers would act by qualified majority under the default rule contained in Article I-22(3).[67] By virtue of Article III-231(2), "Should a Member State fall victim to a terrorist attack or a natural or man-made disaster, the other Member States shall assist it at the request of its political authorities."

50.  The EU Committee said of an earlier version of the solidarity clause that it was "a fundamental and constitutional provision" which represented "an extension of existing provisions. While the aspirations of this Clause may be valuable for political reasons, the defence implications should not be overlooked."[68]

51.  Finally, it should be noted that the Council of Ministers, acting by qualified majority, will be required to adopt a European decision defining the statute, seat and operational rules of the European Armaments, Research and Military Capabilities Agency referred to in the second subparagraph of Article I-40(3). The Agency is to be "open to all Member States wishing to be part of it."

The role of national parliaments

52.  Because it elevates the European Parliament to the position of co-legislator alongside the Council of Ministers, greater use of what the draft Constitution calls the ordinary legislative procedure would contribute to increasing the democratic legitimacy of the Union and its institutions, an objective identified at both Nice and Laeken. In the same vein, the draft Constitution seeks to involve the national parliaments more closely in the Union's activities.[69] A Protocol on the Role of National Parliaments in the European Union[70] strengthens the Amsterdam Protocol on the same subject, notably by requiring the Commission to send all legislative proposals and consultation documents directly to Member States' national parliaments. An accompanying Protocol on the Application of the Principles of Subsidiarity and Proportionality would introduce an "early warning system" or "yellow card" mechanism where a national parliament has concerns as to whether a Commission proposal complies with the principle of subsidiarity. It provides that a national parliament "may, within six weeks from the date of transmission of the Commission's legislative proposal, send to the Presidents of the European Parliament, the Council of Ministers and the Commission a reasoned opinion stating why it considers that the proposal in question does not comply with the principle of subsidiarity." If the number of such reasoned opinions exceeded a certain threshold, the Commission would be required to review its proposal.

53.  That mechanism was introduced following a recommendation by Working Group I on the principle of subsidiarity.[71] The Working Group went on to suggest that a national parliament which issues a "yellow card" should have the right to issue a "red card" by referring the matter to the Court of Justice if its concerns over subsidiarity were not met. That is the background to paragraph 7 of the proposed new Protocol, the first subparagraph of which provides:

    "The Court of Justice shall have jurisdiction to hear actions on grounds of infringement of the principle of subsidiarity by a legislative act, brought in accordance with the rules laid down in Article III-270 of the Constitution [the action for annulment or judicial review] by Member States, or notified by them in accordance with their legal order on behalf of their national Parliament or a chamber of it."

54.  That subparagraph is clearly inadequate to give effect to the "red card" mechanism envisaged by the Working Group I. In fact, it makes no change to the present position, since there is nothing to prevent a Member State from bringing an action for the annulment of a Community act at the request of its national parliament on the ground that the principle of subsidiarity has been violated.[72] That would remain the case under the corresponding provisions of the draft Constitution. There is no point in including in the Constitution provisions which have no effect. The subparagraph should therefore be deleted or amended to give effect to the recommendation of Working Group I.[73] If national parliaments are permitted to bring annulment proceedings for infringement of the principle of subsidiarity, consideration might also be given to allowing them to bring such proceedings, this time for infringement of an essential procedural requirement, where the Protocol on the Role of National Parliaments is infringed in the process leading to the adoption of a Union act. Giving national parliaments any form of independent right to bring proceedings in the Court of Justice would clearly be of constitutional significance.

The Charter of Fundamental Rights and Union accession to the European Convention on Human Rights

55.  The provisions of the draft Constitution on the Charter of Fundamental Rights and Union accession to the European Convention on Human Rights are undoubtedly of constitutional significance, though it is more limited than is sometimes supposed. This is large subject, but I shall deal with it briefly because it was recently the subject of a characteristically authoritative report by the EU Committee.[74]

56.  Article I-7 provides as follows:

    "1. The Union shall recognise the rights, freedoms and principles set out in the Charter of Fundamental Rights which constitutes Part II of the Constitution.

    2. The Union shall seek accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Constitution.

    3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law."

Four points are worth making here.

57.  First, the Charter is addressed principally to the institutions, bodies and agencies of the Union. It applies to the Member States only when they are implementing Union law: Article II-51(1). Its effect on the Member States is therefore more limited than that of the general principle of respect for fundamental rights which the Court of Justice has applied for many years. That general principle applies to the Member States not only when they are implementing Community law but also when they are acting under a derogation for which Community law provides. The right of the Court to continue to apply the general principle would not be affected by the draft Constitution, as Article I-7(3) confirms.

58.  Secondly, the Charter "does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks defined in the other Parts of the Constitution": Article II-51(2).

59.  Thirdly, although the Convention did not reopen the substantive provisions of the Charter, it revised the so-called horizontal provisions, which deal with its interpretation and application. Particularly worthy of note is the new Article II-52(5), which provides: "The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by Institutions and bodies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality." In other words, Charter provisions containing principles as opposed to rights may only be invoked before a court where the interpretation or validity of an act intended to give effect to them is in issue.[75]

60.  Finally, notwithstanding the apparently imperative wording of Article I-7(2), the opening of negotiations and the conclusion of an agreement for Union accession to the European Convention on Human Rights would require authorisation by the Council of Ministers, acting unanimously: Article III-227(2) and (9). Accession would also require the consent of the European Parliament: Article III-227(7)(b).

The amendment procedure

61.  The procedure for amending the Constitution set out in Article IV-7 would involve convening a Convention unless the European Council decided, by simple majority but with the consent of the European Parliament, that the extent of the proposed amendments did not justify that step. The amendment procedure does not distinguish between different Parts of the draft Constitution. It could not therefore be used to support an argument that some Parts have higher status than others. It would remain the case that any amendments would have to be agreed by all the Member States and ratified by them in accordance with their respective constitutional requirements.

62.  The likely difficulty of securing agreement on amendments to the proposed Constitution in a Union of 25 or more Member States has led to the inclusion in the draft of provisions, some already mentioned, allowing the European Council, acting unanimously, to (a) decide that certain decisions that may only be taken by the Council of Ministers acting unanimously may henceforward be taken by QMV,[76] and (b) extend the use of the ordinary legislative procedure.[77] These provisions will enable national governments to avoid seeking the approval of their parliaments for changes which would otherwise require such approval. A compromise arrangement might be to require decisions extending the use of QMV or the ordinary legislative procedure to be submitted to the Member States for ratification under their own constitutional requirements.[78]

Miscellaneous matters

63.  There are three miscellaneous matters of some constitutional importance, at least for the United Kingdom, which should be mentioned briefly in the interests of completeness.

64.  With effect from 1 November 2009, the Commission would comprise its President, the Union Minister for Foreign Affairs and 13 European Commissioners along with 10 non-voting Commissioners. The introduction of non-voting Commissioners would be an innovation. The two categories of Commissioner are to be selected on the basis of a system of equal rotation between the Member States. There are of course currently two British Commissioners. However, the relevant provisions of the draft Constitution represent a partial retreat from the position agreed at Nice, where it was accepted that the Commission would in due course comprise fewer Commissioners than Member States.[79] Under the draft Constitution, each Member State would be guaranteed either a voting European Commissioner or a non-voting Commissioner.

65.  Article III-175 provides for the establishment of a European Public Prosecutor's Office to help combat serious crime having a cross-border dimension as well as crimes affecting the interests of the Union. The European Public Prosecutor's Office would be responsible for "investigating, prosecuting and bringing to judgment…the perpetrators of and accomplices in serious crime affecting more than one Member State and of offences against the Union's financial interests…" It is to "exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences." The European Public Prosecutor's Office may be set up by the Council acting unanimously and with the consent of the European Parliament. A decision to establish such an office would clearly have constitutional implications. Whether the same can be said of the inclusion in the draft Constitution of a mere power to do so with the consent of all the Member States as well as the European Parliament seems more doubtful. This is another area, however, where a requirement of national ratification might be appropriate.

66.  Article I-59 contains a procedure for Member States to withdraw from the Union. It represents a considerable break with tradition, no such provision having been included in the Treaties so far, and underlines the voluntary nature of membership and the continuing sovereignty of the Member States.

An appraisal

67.  Every Community or Union Treaty which the United Kingdom has signed since its accession has had constitutional implications. If endorsed by the Member States at the next IGC, the draft treaty establishing a Constitution for Europe would be no exception. However, whether its effect on the constitution of the United Kingdom would be any greater than that of its predecessors, particularly the Single European Act and the Treaty on European Union, seems doubtful.

68.  It is true that the draft Constitution would extend further the use of qualified majority voting, but so did the two Treaties just mentioned as well as the Treaties of Amsterdam and Nice. In a number of important areas, the draft Constitution would continue to require the Council of Ministers to act unanimously (much to the dismay of the Commission[80]). This is especially true of the CFSP. Although the draft Constitution makes a limited attempt to extend the use of QMV in this context, what is striking about the provisions on CFSP is how firmly it remains the preserve of the Member States, with only a limited role for the European Parliament, the Commission (as distinct from the Minister for Foreign Affairs) and the Court of Justice.

69.  There was considerable demand in the Convention for QMV to be embraced more enthusiastically, particularly in view of the probable difficulty of achieving unanimity in a Union of 25 or more Member States. Opponents of greater recourse to QMV sometimes forget that no Member State opposes everything. Enlargement increases the likelihood that measures supported by a majority of Member States, sometimes, perhaps often, including the United Kingdom, will find the process blocked by a small number of dissidents. Even where the draft Constitution envisages that QMV will apply, it will itself be more difficult to muster than at present, at least until 1 November 1999 when the radical change to the present system of working out when a qualified majority has been reached is intended to take effect.

70.  Some will also find disappointing the failure of the draft Constitution to address principles of a constitutional nature which have been laid down by the Court of Justice in its case law. It is true that there is a provision (albeit unsatisfactory) on primacy, but there is no mention of the related concepts of direct effect or State liability in damages.[81] Moreover, no attempt has been made to reflect in Article III-274, which concerns the preliminary rulings procedure, the limits on the power of national courts to pronounce on the validity of Union acts laid down in the Foto-Frost case.[82] These omissions seem hard to defend in a document which describes itself as a Constitution and is intended to add clarity.

71.  Others may be reassured by the prospective demise of the (in)famous reference to "an ever closer union among the peoples of Europe", which appears in the preambles to both the EC Treaty and the TEU as well as Article 1 of the latter. It is replaced in the preamble to the draft Constitution by a less provocative reference to the peoples of Europe as "united ever more closely".[83] The draft Constitution makes it clear that the powers enjoyed by the Union are conferred on it by the Member States, who therefore remain its collective masters. It states explicitly that "Powers not conferred upon the Union in the Constitution remain with the Member States".[84] This was seen by Working Group V as an aspect of the principle of conferral and as necessary to establish a presumption in favour of national competence.[85] The expanded provision on the Union's obligation to respect the national identities of the Member States[86] underlines further the role and importance of the Member States in the proposed new constitutional dispensation.[87]

72.  The draft Constitution has been described, from opposite ends of the spectrum, as a "blueprint for tyranny"[88] and a "tidying up exercise".[89] Both descriptions are caricatures, but the latter does not have quite as distant a relationship with the truth as the former. Be that as it may, the IGC ought not to take too seriously the repeated pleas of the President of the Convention for the text of the draft Constitution to be left as it stands.[90]

Anthony Arnull
Professor of European Law, University of Birmingham

3 September 2003


3   CONV 851/03. Back

4   See Case 294/83 Les Verts v Parliament [1986] ECR 1339, para 23, where the Court of Justice described the EEC Treaty as the Community's "basic constitutional charter". Back

5   It was used for the first time to draw up the Union's Charter of Fundamental Rights, which was "solemnly proclaimed" by the European Parliament, the Council and the Commission in December 2000. See [2000] OJ C364/1. Back

6   Case 6/64 [1964] ECR 585. Back

7   See further below. Back

8   But see Art III-283. Back

9   See Art III-282. Back

10   See Art I-2. Back

11   See CONV 724/03, p.70. Back

12   Case 14/68 Wilhelm v Bundeskartellamt [1969] ECR 1, para 3. Back

13   Reg 1/2003 [2003] OJ L1/1. Back

14   See Dougan, "The Convention's draft Constitutional Treaty: bringing Europe closer to its lawyers?" (2003) 28 ELRev (forthcoming). Back

15   Art I-11(2). Back

16   See CONV 724/03, pp.74-75. Back

17   See (2003) 28 ELRev 3,17. Back

18   See Art I-13; Dougan, above. Back

19   See CONV 724/03, p.68. Back

20   Cf. Art 205(1) EC. Back

21   Two thirds of the Member States representing at least three fifths of the population of the Union where the Council is not acting on the basis of a proposal from the Commission or the initiative of the Union Minister for Foreign Affairs (see below): Art I-24(2). Back

22   Cf. Art I-1(1). Back

23   For a more detailed discussion of the advantages and disadvantages of the simple dual majority system, see Galloway, The Treaty of Nice and Beyond (2001), pp.71-72. Back

24   See the Declaration on the Enlargement of the Union. Back

25   A declaration attached to the Protocol deals with the consequences of Romanian and Bulgarian accession. Back

26   It is less easy to compare that system with the one which is intended to apply from 1 November 2009. This and the following table are based on information contained in Galloway, above, p.66 and chap. 4.  Back

27   See Art I-33. Back

28   See Art III-302(9). Back

29   See CONV 727/03, p. 29. Cf. the temporary incursion, due to expire on 1 May 2004, contained in Article 67(1) EC. Back

30   See Art III-302(15). Back

31   Art 42 EC does not refer to the self-employed, but legislation adopted under that article has been extended to the self-employed on the basis of Art 308 EC. Back

32   See Arnull, The General Principles of EEC Law and the Individual (1990), pp.130-131. Back

33   See e.g. Art III-9(2), Art III-104(1)(c), (3) and (5). Back

34   See Art III-65(2). Cf. Art 95(2) EC. Back

35   See Arts III-47, III-130, III-146, III-180. Back

36   See Art I-21. Back

37   Art I-24(5) is a free-standing paragraph in a provision headed "Qualified majority". Back

38   See Werts, The European Council (1992), pp.130-132. The terms "consensus" and "unanimity" would both permit decisions to be blocked by a single Member State. Back

39   See Art I-23(4). Back

40   See Art I-27(1). Back

41   Art I-23(2). Back

42   Art I-20(2). Back

43   On which there is a declaration attached to the draft Constitution. Back

44   Art III-197(2). Back

45   Art III-200(1). The right of the Council of Ministers to act by qualified majority vote when acting on the basis of a proposal put to it by the Minister is discussed below. Back

46   The Minister could in the last resort be dismissed by the European Council, again acting by qualified majority with the consent of the President of the Commission: Art I-27(1). See further EU Committee, "The future of Europe: Constitutional Treaty - draft Articles on external action" (Session 2003-03, 23rd Report, HL Paper 107), pp.6-7. Back

47   See further Dashwood, "Issues of decision-making in the European Union after Nice" in Arnull and Wincott (eds), Accountability and Legitimacy in the European Union (2002) 13, 17-21. Back

48   CONV 305/02, p.6. Back

49   See Dougan, above. Back

50   See Art III-227. Back

51   See Art III-282. Back

52   Case C-170/96 Commission v Council [1998] ECR I-2763, para 16. Back

53   Art I-9(2). Back

54   Art I-39(1). Back

55   A European decision is "a non-legislative act, binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them": Art I-32(1). Back

56   See Art I-32(1). Back

57   See Arnull, Dashwood, Ross and Wyatt, European Union Law (4th ed, 2000), p.49. Back

58   "The future of Europe: Constitutional Treaty - draft Articles on external action" (Session 2002-03, 23rd Report, HL Paper 107), p.12. Back

59   See the second subparagraph of Art I-40(2), reproducing the second subparagraph of Art 17(1) TEU. Back

60   Art III-201(2)(b). Back

61   The draft Constitution does not specify how the European Council is to act in this instance, so the default rule in Art I-20(4) would apply. Back

62   See Art 23(2) TEU, last sentence. Back

63   See Arts I-40(6) and (7), III-213 and III-214. See also Arts I-40(5) and III-211. Back

64   See the final report of Working Group VIII on defence, CONV 461/02, p.19. Back

65   Arts 27a to 27e TEU. Back

66   See CONV 461/02, p.20. Back

67   Technically the solidarity clause would fall outside the scope of the CFSP. Back

68   "The future of Europe: Constitutional Treaty - draft Articles on external action" (Session 2002-03, 23rd Report, HL Paper 107), p.14. Back

69   Provisions other than those mentioned in the text which recognise a role for national parliaments include Arts I-17, I-24(4), I-41(2), I-57, III-160, III-161, III-162, III-174(2), III-177(2) and IV-7. Back

70   For the background to the Protocol, see the final report of Working Group IV on the role of national parliaments, CONV 353/02. Back

71   See its final report, CONV 286/02. Back

72   This has been pointed out by the EU Committee: see "The future of Europe: national parliaments and subsidiarity - the proposed protocols" (Session 2002-03, 11th Report, HL Paper 70), pp.15-16. Back

73   Art III-270 would also need to be amended. Back

74   "The future status of the EU Charter of Fundamental Rights" (Session 2002-03, 6th Report, HL Paper 48). Back

75   There may of course be argument over whether a particular provision lays down a right or a principle. An updated version of the "explanations" of the text of the Charter, originally prepared at the instigation of the Praesidium (steering group) of the Convention which drafted the Charter, gives as examples of principles recognised in the Charter Arts II-25, II-26 (although those articles use the language of rights) and II-37. According to the updated "explanations", the following provisions contain elements of both rights and principles: Arts II-23, II-33 and II-34. See CONV 828/03, p.51. The courts of both the Union and the Member States are to pay "due regard to the explanations" when interpreting the Charter (see its preamble), although they do not purport to be legally binding. Back

76   See Arts I-24(4), second subparagraph, I-39(8), III-201(3). Back

77   See Art I-24(4), first subparagraph. See also Arts III-104(3), III-130(2), III-170(3). Back

78   Cf. Art I-40(2) on a common defence, discussed above. Back

79   See the Nice Protocol on the Enlargement of the European Union, Art 4. Back

80   See its press release of 13 June 2003 (IP/03/836). Back

81   See e.g. Joined Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357. Back

82   Case 314/85 [1987] ECR 4199. Back

83   The preamble to the Charter of Fundamental Rights, which appears at the beginning of Part II of the draft Constitution, retains its existing reference to "an ever closer union" among the peoples of Europe. That seems to be an oversight, since there is no corresponding reference in the preamble to the draft Constitution itself. Back

84   Art I-9(2). Back

85   CONV 375/1/02 REV 1, p.10. Back

86   Art I-5(1). Cf. Art 6(3) TEU. Back

87   See CONV 375/1/02 REV 1, pp.10-12. Back

88   Daily Mail, 8 May 2003. Back

89   Rt Hon Peter Hain MP, reported in The Guardian on 14 May 2003. Back

90   See e.g. his "Rome declaration" of 18 July 2003. Back


 
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