TWELFTH REPORTTHE FUTURE OF EUROPE:
CONSTITUTIONAL TREATYDRAFT ARTICLES 24-33|
We make this Report to the House for information.
1. The Government welcomes the Committee's Report,
which provides a helpful introduction to this set of draft Treaty
Articles. The legal procedures and instruments at the Union's
disposal is a very technical, but important, area. We have broadly
welcomed the proposals, which would go some way to making the
Union simpler and easier to understand.
2. These Articles can now be found in the draft Constitutional
Treaty at Part I, Title V: Exercise of Union Competence. Chapter
I: Common Provisions contains draft Articles 24-28, 32 and 33.
Chapter II: Specific Provisions, contains the draft Articles set
out here as 29-31.
ANALYSIS OF ARTICLES 24-33
Article 24: The legal acts of the Union
In the meantime creating a new category of "regulation"
and categorising some Union legislation "legislative acts"
and some "non-legislative acts" does not seem helpful.
The term "a European law" in Article
24 raises difficulties which need further consideration.
Working Group IX (on Simplification) recognised
that the new Treaty might continue to provide that instruments
adopted in the area of police and judicial cooperation in criminal
matters be characterised as not having direct effect. We agree.
Limiting the number of types of act to a few (six
in Article 24(1))may be a useful simplification but corralling
what are essentially different types of acts (particularly under
the CFSP) under one name is far from desirable and could be counterproductive.
3. The Government welcomes the proposals to simplify
and reduce the number of instruments, and rename them. We believe
the new terms "Law" and "Framework Law" reflect
better the underlying concept and purpose of those instruments.
We note the Committee's concerns about making a distinction between
legislative and non-legislative acts. However, the Government
believes that such a distinction will contribute to greater clarity,
in particular of the legislative role of the Council.
4. We have proposed amendments to the Convention
that aim to ensure simplification whilst preserving the key elements
of the current system, which we believe has served us well.
5. The Government has also made clear its commitment
to retaining the distinctive instruments for the common foreign
and security policy (CFSP) and some elements of justice and home
Article 25: Legislative acts
"Co-decision" would be a better and
far more accurate term to describe the type of legislative procedure
Article 25(3) is especially welcome.
6. The Committee rightly points to the gradual extension
of the co-decision procedure since its introduction at Maastricht.
In practice, co-decision is already the standard procedure for
adopting legislative acts. Of crucial importance is that the draft
Article provides for exceptions to the norm of the co-decision
procedure (to be specified in Part III of the Constitutional Treaty).
7. There are some policy areas where the Government
believes co-decision is not appropriate. For example, the distinct
nature of CFSP and some elements of JHA must be preserved.
Article 26: Non-legislative acts
8. This draft Article, which is now Article 34, has
been re-drafted to read:
1. The Council and the Commission shall adopt
European regulations or European decisions in the cases referred
to in Articles I-35 and I-36 and in cases specifically laid down
in the Constitution. The European Central Bank shall adopt European
regulations and European decisions when authorised to do so by
2. The Council and the Commission, and the European
Central Bank when so authorised in the Constitution, adopt recommendations.
9. The Government welcomes this Article.
Article 27: Delegated regulations
In the meantime we welcome the overall objective
of Article 27.
10. The Government welcomes the Committee's positive
reaction to this Article, which would alter the way that the EU's
primary legislation is implemented. Under the new category of
"delegated acts", the Commission would adopt legislation
to supplement non-essential aspects of primary legislation. Delegation
to the Commission would be subject to control mechanisms by the
European Parliament and the Council.
11. The Government broadly supports the proposal
for a new category of "delegated acts". The Council
and the European Parliament should more often set the frameworks
in primary law at the EU level. The implementing of the detail
of legislation within those frameworks could then be carried out
through simpler decision-making procedures. The Government believes
that this would result in lighter and speedier legislation. This
would make the Union more efficient, and be particularly welcome
in fast-moving policy areas. Giving the European Parliament the
same role as the Council in scrutinising a large amount of secondary
legislation would also help to make the process more transparent,
and enhance the Union's democratic accountability.
12. We have suggested to the Convention that the
detail of the conditions of application for delegated regulations
should be set out in Part III, in order to keep Part I clear and
Article 28: Implementing acts
We have for some time argued that the Parliament
should have a greater role in comitology. That will now extend
to establishing the ground rules for comitology. We therefore
The future of comitology under the new Treaty
is something to which we will want to return.
13. The Government welcomes this Article which, along
with Article 27, proposes to distinguish between delegated and
implementing acts. This should allow a more effective European
Parliament role in a large swathe of implementing legislation.
14. As with Article 27 above, we have proposed that
the detail of the conditions of application for implementing acts
should be set out in Part III, in order to keep Part I clear and
Article 29: [Common foreign and security policy]
15. This draft Article is now Article 39: Specific
provisions for implementing common foreign and security policy.
It is currently drafted to read:
1. The European Union shall conduct a common
foreign and security policy, 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.
2. The European Council shall identify the
Union's strategic interests and determine the objectives of its
common foreign and security policy. The Council of Ministers shall
frame this policy within the framework of the strategic guidelines
established by the European Council and in accordance with the
arrangements in Part Three of the Constitution.
3. The European Council and the Council of
Ministers shall adopt the necessary decisions.
4. The common foreign and security policy
shall be put into effect by the Union's Minister for Foreign Affairs
and by the Member States, using national and Union resources.
5. Member States shall consult one another
within the Council and the European Council on any foreign and
security policy issue which is of general interest in order to
determine a common approach. Before undertaking any action on
the international scene or any commitment which could affect the
Union's interests, each Member State shall consult the others
within the Council or the European Council. Member States shall
ensure, through the convergence of their actions, that the Union
is able to assert its interests and values on the international
scene. Member States shall show mutual solidarity.
6. The European Parliament shall be regularly
consulted on the main aspects and basic choices of the common
foreign and security policy, and shall be kept informed of how
7. European decisions relating to the common
foreign and security policy shall be adopted by the European Council
and the Council of Ministers unanimously, except in the cases
referred to in Part Three of the Constitution. Discussion shall
be based on a proposal from a Member State, from the Union's Minister
for Foreign Affairs or from the Minister with the Commission's
support. Laws and framework laws are excluded.
8. The European Council may unanimously decide
that the Council should act by qualified majority in cases other
than those referred to in Part Three of the Constitution.
16. The Government welcomes the overall thrust of
this Article, which makes clear that CFSP is conducted by the
Member States, the European Council, the Council of Ministers
and the European Foreign Minister. The Government also welcomes
the retention of unanimity as the general voting rule for CFSP,
and the inclusion of the possibility of the European Council deciding
unanimously that the Council should act by qualified majority
on a case by case basis. Article 39(8) duplicates the formula
we suggested in the External Action Working Group last autumn.
17. We have raised our concern about the impracticality
of having a commitment to prior consultation on CFSP. Given that
the European Council meets only every three months, there will
be occasions when CFSP decisions cannot await the next Council
meeting. Introducing this time-sensitive element contradicts the
overall objective of making CFSP more operational and more effective.
Article 30: [Common defence policy]
18. This is now Article 40: Specific provisions for
implementing common defence policy. It reads:
1. The common security and defence policy
shall be an integral part of the common foreign and security policy.
It shall provide the Union with an operational capability drawing
on assets civil and military. The Union may use them on missions
outside the Union for peace-keeping, conflict prevention and strengthening
international security in accordance with the principles of the
United Nations Charter. The performance of these tasks shall be
undertaken using capabilities provided by the Member States.
2. The common security and defence policy
shall include the progressive framing of a common Union defence
policy. This will lead to a common defence, when the European
Council, acting unanimously, so decides. It shall in that case
recommend to the Member States the adoption of such a decision
in accordance with their respective constitutional requirements.
The policy of the Union in accordance with
this Article shall not prejudice the specific character of the
security and defence policy of certain Member States and shall
respect the obligations of certain Member States, which see their
common defence realised in the North Atlantic Treaty Organisation
(NATO), under the North Atlantic Treaty, and be compatible with
the common security and defence policy established within that
3. Member States shall make civilian and military
capabilities available to the Union for the implementation of
the common security and defence policy, to contribute to the objectives
defined by the Council. Those Member States which together establish
multinational forces may also make those forces available to the
common security and defence policy.
Member States shall undertake progressively to
improve their military capabilities. A European Armaments, Research
and Military Capabilities Agency shall be established to identify
operational requirements, to put forward measures to satisfy those
requirements, to contribute to identifying and, where appropriate,
implementing any measure needed to strengthen the industrial and
technological base of the defence sector, to participate in defining
a European capabilities and armaments policy, and to assist the
Council in evaluating the improvement of military capabilities.
4. Decisions on the implementation of the
common security and defence policy, including those initiating
a mission as referred to in this Article, shall be adopted by
the Council acting unanimously on a proposal from the Union's
Minister for Foreign Affairs or from a Member State. The Minister
for Foreign Affairs may propose the use of both national resources
and Union instruments, together with the Commission where appropriate.
5. The Council may entrust the execution of
a task, within the Union framework, to a group of Member States
in order to maintain the Union's values and serve its interests.
The execution of such a task shall be governed by Article [III-206
(ex 18)] of the Constitution.
6. Those Member States whose military capabilities
fulfil higher criteria and which have made more binding commitments
to one another in this area with a view to more demanding missions
shall establish structured cooperation within the Union framework.
Such cooperation shall be governed by the provisions of Article
[III-208 (ex 20)], of the Constitution.
7. Until such time as the European Council
has acted in accordance with paragraph 2 of this Article, closer
cooperation shall be established, in the Union framework, as regards
mutual defence. Under this cooperation, if one of the Member States
participating in such cooperation is the victim of armed aggression
on its territory, the other participating States shall give it
aid and assistance by all the means in their power, military or
other, in accordance with Article 51 of the United Nations Charter.
In the execution of closer cooperation on mutual defence, the
participating Member States shall work in close cooperation with
the North Atlantic Treaty Organisation. The detailed arrangements
for participation in this cooperation and its operation, and the
relevant decision-making procedures, are set out in Article [III-209
(ex 21)] of the Constitution.
8. The European Parliament shall be regularly
consulted on the main aspects and basic choices of the common
security and defence policy, and shall be kept informed of how
19. The Government welcomes the clear articulation
on the link between CFSP and the European Security and Defence
Policy (ESDP) at the beginning of this draft Article. We also
welcome the re-statement of the need for compatibility between
ESDP and NATO. However, the Government has made clear in the Convention
that we consider the introduction of a common defence guarantee,
including as a form of enhanced co-operation, to be a divisive
and unnecessary duplication of the guarantees that 19 of the future
25 EU Member States enjoy through NATO.
20. We welcome the creation of an intergovernmental
agency to support the efforts of Member States, as we believe
capability development is fundamental to the credibility and operationality
21. We have expressed concern at the proposal to
create standing inner groups for ESDP operations. Such proposals
risk undercutting the inclusive and flexible arrangements for
operations that were agree at the Nice European Council. We want
to maintain an approach to ESDP which allows groups of States
to co-operate flexibly in carrying out operations, but under the
control of the Council and on a basis which values all contributions,
whether military or civilian, from large or small States.
Article 31: [Police and criminal justice policy]
22. This is now Article 41: Specific provisions for
implementing the area of freedom, security and justice. It reads:
1. The Union shall constitute an area of freedom,
security and justice:
- by adopting European laws and European framework
laws intended, where necessary, to approximate national laws in
the areas listed in Part Three of the Constitution;
- by promoting mutual confidence between the
competent authorities of the Member States, in particular on the
basis of mutual recognition of judicial and extrajudicial decisions;
- by operational cooperation between the competent
authorities of the Member States, including the police, customs
and other services specialising in the prevention and detection
of criminal offences.
2. Within the area of freedom, security and
justice, national parliaments may participate in the evaluation
mechanisms foreseen in Article [III-156 (ex 4)] of the Constitution,
and shall be involved in the political monitoring of Europol and
the evaluation of Eurojust's activities in accordance with Articles
[III-169 (ex 19)] and [III-172 (ex 22)] of the Constitution.
3. In the field of police and judicial cooperation
in criminal matters, Member States shall have a right of initiative
in accordance with Article [III-160 (ex 8)] of the Constitution.
23. The Government welcomes the inclusion of mutual
recognition as a fundamental constitutional feature of the area
of Freedom, Security and Justice. Indeed, we would like to see
this reference strengthened further. It should also be made clear
that the approximation of national laws should take place only
where necessary, in accordance with the provisions of Part III
of the draft Constitutional Treaty.
24. The Government supports the proposal in Article
31(3) to retain Member States' right of initiative in the fields
of police and judicial co-operation in criminal matters. In line
with the proposals from the Convention's Working Group on Freedom,
Security and Justice, such Member State initiatives would require
the support of one-quarter of Member States. The Government supports
this requirement to have the backing of a significant proportion
of other Member States prior to launching a legislative initiative.
We believe that it will result in much greater coherence to future
work in the area of justice and home affairs.
Article 32: Principles common to acts of the Union
25. The Government welcomes this draft Article, which
would require EU legislation to state the reasons for the measures
Article 33: Publication and entry into force
26. The Government welcomes this draft Article.
140 Government Response dated 14 July 2003. Back