Select Committee on European Union Written Evidence

Memorandum by the Rt Hon the Lord Owen CH


  This submission is made to the House of Lords Select Committee on the European Union (the Committee) in a personal capacity although it refers at times to the position of New Europe, an organisation of which I am Chairman. New Europe does not have a collective view on the detailed draft Constitutional Treaty. It does believe, however, that, the draft Treaty raises issues of first class constitutional importance and that there is an overwhelming case on those matters already apparently acceptable to the European Council, for a referendum across the UK so that individuals can accept or reject any new Constitutional Treaty that emerges from the Intergovernmental Conference in 2004.

  In posing as its first question for people to scrutinize, "The proposed constitutional Treaty: a super state? " the Committee is presumably seeking to identify matters and wording within the Draft Constitutional Treaty for the European Union that might have the potential to cross the political threshold that creates a super state. That threshold involves transforming the existing unique European Union of Member States into a Union where its central decision-making on vitally important areas—in foreign affairs, defence, economic management, including direct taxation and social security, as well as internal security—so limits the powers of its Member States, acting individually, that the Union acquires the character of a nation state. The more gradual and diffuse the transfer of powers, the harder it is to define the threshold. Article III-63 on taxation and Article III-104.3, paragraph 2 on social security are examples of this. The fact that the Committee believes that the question about a super state needs to be answered is itself significant and reflects widespread public concern.

  This draft Treaty creates a new institutional position, the President of the European Council, to replace the current system in which the Presidency of the Council has rotated, on a six-monthly basis, between Heads of Government of the Member States. Let us leave aside the arguments which are continuing between Member States about the desirabiliy or otherwise of this innovation[3]. Surely it would be agreed by members of the Committee that, if the same person who holds the Presidency of the Commission could also become the President of the European Council, then this would be a massive consolidation of power in one person and would, in effect, mean that the Union would be led by someone with most of the powers of a Head of Government of a single state? This is exactly what could happen by a mere Qualified Majority Vote within the terms of the Constitution unless Article 21.3 (Title IV, Chapter 1) is amended to reinstate the words deleted by the Convention from the Praesidium draft of 22 April. The deletions were made deliberately at a late stage so as to remove the words that the President of the European Council "may not be a member of another European institution" because there were sufficient members of the Convention who want such a double-hatting to take place at some future date without the need formally to amend the Constitution. It is essential that these words are reinstated.

  An indication of why this amendment is essential if we are to protect ourselves against some constitutional sleight of hand came in remarks from Giscard d'Estaing, President of the Convention, as reported in the Financial Times on 26 August 2003. Giscard d'Estaing rejects suggestions that the Council and Commission might be run by a single President in the foreseeable future, but is quoted as saying "it may happen eventually, but it is impossible for a single man to chair the Council and the Commission, even for everyday work" and goes on to say, "if you had a new President of the Union, the Commission President would be subservient". It has been apparent for many years that there are significant political leaders who want a single all-powerful President of the Union and they should not be abe to use a "double-hatting" procedure without amending the Treaty to achieve it.

  It is also of great importance that, in Article 21.1, the words from the Praesidium draft that anyone chosen as President of the European Council should have previously been a Head of Government be reinserted. It is a democratic safeguard that this post should be held by someone who has been able to win the support of people in their own country to hold the highest position and then win the support of a qualified majority of fellow Heads of Government, many of whom will have been able to judge their qualities to hold the chair by virtue of having served together on the Council.

  There would be merit in reinstating the Praesidium's original wording that the European Council is "the highes authority of the Union" and so give it, as was suggested, special authority for external action and matters associated with internal security, like immigration and justice, rather than rely only on the present wording in Article 20.1 that the European Council "shall define general political directions and priorities."

  Another innovation within the draft Constitution is that, for the first time ever, we are asked to refer, first in Article 20.2, to the holder of an office within the European Union as a "Union Minister". Hitherto this term Minister, synonymous with holding office within the Governments of Members States, has been consciously avoided. As a result we have a Commission, a President of the Commission, Commissioners, and a Secretary General of the Council who is also High Representative for Common Foreign and Security Policy (CFSP). Using the term "Minister" is a political threshold which the EU should not cross. We will otherwise soon be asked to agree a Union Minister for Economic Affairs to conduct policy in this area. It is essential that all references to the Union Minister for Foreign Affairs should be deleted and replaced with High Representative for Foreign Affairs.

  There are other aspects of the High Representative's office which are new and should be reconsidered. The post of High Representative arose out of the Treaty of Amsterdam and the need for more politically powerful and permanent staff to develop and represent the second intergovernmental pillar of CFSP. This post was a necessary development of the Union and Xavier Solana, who has held the post following his period as Secretary General of NATO and prior to that as Spanish Foreign Minister, has built a position in international affairs which brings credit to the European Union. It is now proposed that the post of Commissioner for External Affairs will disappear and that this role shall be subsumed with that of the High Representative. Using the term "double-hatted" what is proposed in the draft Constitution is that, in effect, the High Representative should become in addition Vice-President of the Commission in order to fulfil the tasks of the External Commissioner. This change is not just a tidying up exercise. It crosses a fundamental political threshold. It is wrong in principle and unworkable in practice to expect the holder of this post not to be answerable in the last analysis to the intergovernmental European Council. It is also not compatible with the intergovernmental concept of a Common Foreign and Security Policy as spelt out in Article 39 and even more so for the common security and defence policy in Article 40. Also the High Representative besides being appointed by a qualified majority of the European Council has to have the agreement of the President of the Commission.

  There is a compromise already written into the Constitution that when handling external relations the High Representative should participate in meetings of the Commission and as expressed in Article 27.3 "In exercising these responsibilities within the Commission, and only for these responsibilities. . .shall be bound by Commission procedures". If Member States are not prepared to accept that compromise then it would be better to keep the post of External Commissioner. The High Representative should not be appointed with the agreement of the President of the Commission, nor be a Vice-President of the Commission nor as in the draft have their name submitted with the rest of the Commission for the approval of the European Parliament. It is essential that references to these proposed arrangements should be deleted from the Draft Constitution. In its 15th Report Session 2002-03 this Committee on the matter of a single representative being appointed to carry out both the functions of the High Representative and the External Commissioner, said "If the roles are to be exercised by one person, the High Representative's role must remain firmly based in the Council". What is proposed in the draft goes much further than the UK description of having a foot in the Commission.

  In Article 19—The European Parliament—and Article 26—The President of the European Commission—important new powers are granted to both institutions. Against that background, it is not unreasonable for the European Council to have overall authority over the person who also handles for the Commission external relations. For the first time it will be possible under the Constitution for the European Parliament to "elect the President of the European Commission". This is subject in Article 26 to the provision that "the European Council, deciding by qualified majority, shall put to the European Parliament its proposed candidate" but the Parliament can in theory repeatedly reject the Council's suggested candidate until it is satisfied. It is proposed that the European Parliament, also through majority voting on the basis of co-decision with the Council, should take power in 36 new areas from national parliaments. It should also be noted that, for the first time, the President of the Commission appoints on their own authority the 13 European Commissioners from a list of three candidates submitted by the Member States, under a system of rotation, as well as the non-voting Commissioners. The President is also completely unconstrained in the power to sack any of the Commissioners, to lay down guidelines for the Commission's work, to decide its internal organisation and appoint Vice-Presidents. These represent, in combination, huge additions to the current powers of the Parliament and President of the Commission viz-a-viz the Member States and should be borne in mind when considering the suggested detailed amendments for Articles 20, 21, 25 and 27 to preserve intergovernmentalism in Foreign Affairs.

  Another essential element in relation to the Draft Constitution relates to Article 6 on Legal Personality and the bald statement that "the Union shall have legal personality". Giving international legal personality to an international organisation does not, in itself, affect the legal personality or the rights of representation of the Member States in other international organisations. The UK is a member of around 150 international bodies which have been given international legal personality. What does affect rights of representation are the rules of exclusive and shared competence which apply to the external activity based on First Pillar powers. The real concern is that the disappearance of a separate Second Pillar calls into question the status of external agreements based on CFSP powers, and also representation. This is left totally unclear in this draft.

  The Prime Minister, Tony Blair, in a letter to me of 11 February 2003[4] said, in relation to legal personality for the Union "I recognise that there are some advantages to this in terms of simplicity and the EU's international profile. But there are also potential dangers, as I noted after the Amsterdam Council. My view remains that I would not accept a single legal personality for the EU unless it was made clear that the Common Foreign and Security Policy (CFSP) remained intergovernmental and that Member States retained their current rights in terms of representation on international bodies. In my view, maintaining the separate arrangements for CFSP includes keeping it outside the jurisdiction of the European Court of Justice (ECJ). I do not consider ECJ jurisdiction in CFSP matters to be consequent on a legal personality for the Union." It is essential that this potential danger is eliminated by specific amendments and Article III-228.4 clarified.

  Article 7.2 says that the Union shall seek accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms. After the last word "Constitution" of that section one must add, "nor the exclusion of the common foreign and security policy from the jurisdiction of the Court of Justice as stipulated in Article III-282". This needs to be stated in the Constitution because otherwise to accede to the European Convention while CFSP is outside the jurisdiction of the Court of Justice, some will argue, would give rise to incompatibility. The effect of this amendment to the Constitution means that Article 7 would override Article III-282.

  Article 40 needs radical amendment for it goes way beyond what was agreed at the IGC in Nice. The existing position is that the emergence of a common Union defence policy might occur but is not something that will occur. It should depend on reaching an inclusive definition of common defence over time and not on an exclusive definition in which NATO does not play a central part and where there is insufficient joint planning of the sort agreed in Berlin Plus. It is vital that we do not establish structured cooperation within the framework of enhanced cooperation "in matters having military and defence implications" which is the position agreed in the Nice Treaty.

  Article 24.4 has to be deleted. This is the so-called "escalator" or passerelle clause. It was inserted at the last moment in the Convention and it allows the European Council acting unanimously to move from "special" to "ordinary" legislative procedures. This would allow a temporary political unanimity on the Council to replace the constitutional requirement for unanimity in voting procedures provided for in this Constitution with qualified majority voting in any area the European Council wishes. It opens the perspective of changing the voting procedures of the Union without the proper procedures for amending the Treaty, already provided for in the draft Constitution. Given the political importance of voting procedures this Article must surely be unacceptable to all who believe in upholding the democratic nature of the Union.

  In terms of the actual wording of the draft Constitution, in a strict sense, it might be possible to agree that there are no other amendments that can be deemed essential to ensure that the political threshold from a Union of Member States is not crossed in a real sense, however, any such confidence can only come from retaining the existing opt-outs for Member States, whether these apply to the UK remaining outside the Eurozone or keeping control of its borders; or Denmark keeping its more extensive opt-outs; or other Member States keeping out of defence matters. Were all Member States to decide at some early date to end their present opt-outs the underlying nature of the European Union would suddenly and dramatically change and it would immediately become far closer to having the character of a super state.

  In addition to what I have termed essential there are a wide range of other amendments listed in the order that the Articles appear in Cmnd 5897. I do not pretend that this is a comprehensive list. It focuses mainly on international aspects leaving aside for the moment amendments on the EU budget proposals and on the European Monetary Union. The UK government will be defining its own red lines. But the absence of most of these suggested amendments after the IGC would, in my view, make ratification of the Treaty a hazardous move. Each of these amendments if rejected would not, of themselves, mean crossing the threshold to a super state. However the cumulative effect of many of these amendments not being accepted could, in my judgment, be sufficient to cross that threshold.

  This means the UK Government must start the IGC in a determined frame of mind that the draft has to be substantially altered. None of these suggested amendments are in any way opposed to the broad thrust of restructuring the present EU Treaties so that the EU can manage its affairs efficiently in the context of an enlargement from 15 to 25 Member States and eventually to 30 or more Member States. Nor do any of the amendments contradict anything already agreed in the existing Treaties.

  In a purely personal capacity I hope that, after the conclusion of the IGC, I will feel able to vote for any Treaty that emerges. I voted to join the European Community in principle in 1971 in the House of Commons and resigned as Defence Spokesman in 1972 when that decision looked in jeopardy. I have supported every amendment to the Treaty of Rome since the UK joined the European Community in 1973. But, for the present time, I have profound doubts about the wisdom of endorsing this draft Treaty unless it is substantially amended. We should be honest with ourselves. Serious politicians with an open agenda have deliberately designed this draft Treaty in ways which move towards eroding the self-governing nature of the Member States. They hope the Union will inexorably develop over the next decade or so with the character of a super state. It is the constitutional responsibility of the British Parliament to block that design unless and until we are confident that such a development reflects the considered will of the British people.

David Owen

September 2003

Specific suggested amendments to The Draft Constitutional Treaty for the European Union

as presented in Cm 5897



Article I: Establishment of the Union

  1.  Line 4 insert "where appropriate" after "exercise".

  Explanation:   The reason for this is that the "Community way" was suggested by Giscard d'Estaing to replace "Federal way" and has links in people's minds to the phrase, "Community method". It implies that there will be no powers which should be exercised in the intergovernmental way. The UK Government in its White Paper Cmnd 5318 Realising Europe's Potential: Economic Reform in Europe as part of the post-Lisbon economic reform process said, "Lisbon marked a recognition not only that all EU economies needed to undertake further structural reform, but also that the traditional Community method, which had served the EU well in the construction first of the Customs Union and then of a Single Market, would not always be appropriate to this challenge." [5]


Article 3: The Union's objectives

  3.  Replace "territorial cohesion" with "regional policy". Regional policy is what it has been in the past; territorial cohesion has no clear meaning.

Article 6: Legal personality

  After "legal personality" insert "in a manner which allows Member States to retain their current rights in terms of representation on international bodies."

  Explanation covered in Introduction. It is not sufficient to say as some do that this is implicit in the wording.



Article 7: Fundamental rights

  1.  line two, after "Constitution" insert "but none of these shall be justiciable in the courts of Member States merely because they are recognised and described within the Charter. The Charter is not intended and does not in fact extend the competences of the Union".

  Explanation:   The last sentence suggested is a recommendation from this Committee's 6th Report 2002-03, para 96. The danger is of diverging interpretations emerging from the ECJ and from the Strasbourg Tribunal. It is hard to believe that limitations on the scope of the Charter to the EU institutions and to Member States only when they are implementing EU laws is intended can be durable if the rights are indeed fundamental. For example, if there is any movement towards Qualified Majority Voting under Article III-104 (3) that combined with the Charter would lead rapidly to a centralized social security system. It is the long term implications economically that need to be very carefully considered.

  2.  Last sentence to read "Such accession shall not affect the Union's competences as defined in the Constitution nor the exclusion of the common and foreign policy from the jurisdiction of the European Court of Justice."

  Explanation covered in Introduction. Informed international legal advice predicts given the confusion over legal personality as incompatibility between two different aspirations for the Union to accede and for the Court of Justice to remain outside of CFSP.



Article 9: Fundamental principles

  3.  First line after "subsidiarity" delete "in areas which do not fall within its exclusive competence".

  Explanation: It should be possible to return powers to Member States from the exercise of all competences within the Union.

Article 10: Union law

  1.  After "Member States" insert "only where the Community way is applicable".


Article 11: Categories of competence

  Retain para 1. Delete paras 3 and 4.

  Transfer 11.2 to Article 16 and insert after "action".

  Transfer 11.5 to Article 16 to become 16.2.

  Transfer 11.6 to Article 16 to become 16.3.

  Existing 16.2 becomes 16.4 and 16.3 becomes 16.5.

  NB Note that current Article 16 becomes Article 17. Amendments above therefore will apply to newly numbered Article 17.

Article 13: Areas of shared competence

  2.  second indent. After "justice" add "with the exception of police cooperation and judicial cooperation in criminal matters".

  Explanation: See new Article 16.

    seventh indent. Delete "territorial cohesion" and insert "regional policy".


Article 14: The coordination of economic and employment policies

  1.  Delete "adopt" and insert "promote".

  3.  Delete whole para.

  4.  Delete whole para.

New Article 16: Police Cooperation and Judicial Cooperation in Criminal Matters

  Insert one new sentence for Article 16.

  "Judicial cooperation in criminal matters and police cooperation in the Union shall take into account where appropriate mutual recognition of judgments and judicial decisions and the approximation where necessary of the laws and regulations of the Member States".

  See also later amendments to Article III-171.

  Existing Article 16 becomes Article 17.

  Explanation: As currently drafted the UK would be accepting for the first time that Police Cooperation and Judicial Cooperation in Criminal Matters will come under Community laws and have primacy over laws passed by Westminster. It is one thing to accept that Community law making may bring advantages in judicial cooperation in civil matters with cross border implications, quite another to extend this power to criminal matters and the way Member States run their police forces with the Commission being given the right of initiative in police and criminal matters and with the majority of measures adopted by co-decision. This area should remain intergovernmental. See 16th Report 2002-03 of this Committee.

Article 17: Flexibility clause

  Delete whole Article.

  Explanation: This provision has been in the Treaties since 1957. Since I do not think it wise to change the existing Treaties there is a case for retaining it. It was regarded as quite a big problem in the Eighties, but recently it has not been much used. Against this it can be argued that it is an important consequence of choosing to create a Constitution for the Union that Member States insist that the new Constitution cannot be easily amended and that the Union gains from one of the major benefits of having a fixed Constitution, namely political stability. The structure of the European Union has been in constant flux since the Maastricht Treaty was ratified. Instead of stability we will have had three IGCs in the space of 10 years and three new Treaties: Amsterdam, Nice and now in 2004 what is expected to be the Second Treaty of Rome. In other stable democracies with a fixed Constitution their Constitutions are not subject to continuous review. The Flexibility Clause allows the Council of Ministers, the Commission and the European Parliament to interpret what powers are necessary "to attain one of the objectives set by the Constitution" and then to "take the appropriate measures". That is an open door provision. It is a mechanism for avoiding the full procedures for amendment of the Constitution provided for in Article IV-7 (p 148) which itself needs to be amended to raise the threshold for examining proposed amendments. This Committee in its 9th Report 2002-03, para 82 refers to it as a "catch all/fallback clause" and goes on to warn it "could be used as a way of bypassing the need to amend the Constitution and the parliamentary democratic control and national constitutional requirements that would imply". On balance I conclude the whole Article would be best deleted.



Article 20: The European Council

  2.  Delete full stop and "The Union Minister" and insert "and the High Representative". Make same change in all future references to Union Minister in the draft Treaty. Delete "shall take part in its work" and insert "The three named office holders will not carry a vote on the Council".

Article 21: The European Council Chair

  1.  Insert after the first sentence. "The person elected must have been a member of the European Council".

  3.  After "not" insert "be a member of another European institution or".

  Explanation: The above restores the wording originally put forward in the Praesidium and ensures that neither the President of the Commission nor the High Representative for Foreign Affairs can also serve as the President of the European Council. By precluding "double-hatting" it ensures continued separation between Commission competences and intergovernmental responsibility.

  Note: Amendments to Article 23 and Article 24 come after the new series of related amendments.


Article 25: The European Commisison

  3.  Delete "the High Representative for Foreign Affairs/Vice-President,"


Article 27: The High Representative for Foreign Affairs

  1.  Delete "with the agreement of the President of the Commission". Delete "conduct" and insert "guide".

  3.  Line one and two, delete "shall be one of the Vice-Presidents of the Commission. He or she" and delete "there". In line four delete "within" and insert "with" to read as follows:

    "The High Representative for Foreign Affairs shall be responsible for handling external relations and for coordinating other aspects of the Union's external action. In exercising these responsibilities with the Commission, and only for these responsibilties, the High Representative for Foreign Affairs shall be bound by Commission procedures."


Article 23: Formations of the Council of Ministers

  1.  Line 6. Delete "European laws and European framework laws" and insert "European regulations, European directives and European decisions". This amendment to be made in all other relevant Articles.

  Explanation: One of the mandates to the Convention set out by the IGC at Nice in 2001 and by the Heads of Government at Laeken was to simplify the working of the European Union for its citizens. Nowhere in the Draft Constitution is this more flagrantly ignored than in Article 23 which renames the instruments of the previous European Community and Union. It was not without careful thought that the drafters of the first Treaty of Rome chose politically to use the term European regulations and directives instead of European laws and European framework laws. The case against this change, however, is not just political. There are strong practical reasons for keeping the existing nomenclature. The acquis of the Community is much criticized for its length and it is particularly hard to absorb for the officials of Member States entering for the first time into the Union. Many people not well versed in the European Union do understand the present nomenclature. Why change it now? The cost, confusion and the lack of clarity that will stem from making this change has few offsetting gains. The confusion will be particularly awkward where an existing term `regulation' would by Article 35 be given a totally different meaning. Exactly the same arguments can be made for the change of nomenclature suggested for CFSP where it is better to keep to the wording of common position or joint action. In addition, keeping the existing nomenclature will make it easier to bring the three pillars together in the draft Treaty with the familiar names of procedures for not just CFSP but also for Police Cooperation and Judicial Cooperation in Criminal Matters which should stay intergovernmental. Anyone working in the field of Union law will in any event require to be familiar with existing terms, since the acquis will remain in force and relevant for many years to come. This Committee in its 12th Report 2002-03 para 10 said that "creating a new category of `regulation' and categorizing some Union legislation `legislative acts' and some `non legislative acts' does not seem helpful".

  4.  At end of first sentence after "year" insert "but not more than three years."

Article 24: Qualified majority

  4.  Delete whole para.

  Explanation: This is the "escalator" or passarelle clause discussed in the Introduction giving the European Council the widest power to change the voting procedures.


Article 39: Specific provisions for implementing common foreign and security policy

  5.  Line four, after "interests," insert "wherever possible"

Line six, after "shall" insert "where there is concensus".

Article 40: Specific provisions for implementing the common security and defence policy

  2.  Line 2, delete "will" and insert "might".

  Explanation: This retains the existing wording "might" used in Article 17 of the TEU as amended by the Nice Treaty and is consistent with Article 15.1. It is essential to preserve the UK position that a common defence policy should not be an exclusive policy but an inclusive one with NATO within its framework and that unless that emerges from negotiations there will not be a common Union defence policy.

  3.  Delete "shall" and insert "may".

  6.  Delete whole para.

  7.  Delete whole para.

  Explanation: These two paras invoke structured cooperation which is the same as enhanced cooperation according to this draft. Yet Articlee 27b of the Nice Treaty specifically said enhanced cooperation, "shall not relate to matters having military or defence implications". This establishes a defence guarantee in a way which is potentially damaging to the existing NATO guarantee and foreshadows an exclusive collective defence organisation within the Union and which goes further than the existing wording of the Nice Treaty. Paragraph 5 already gives sufficient flexibility for practical purposes.

  Existing Article 40.8 becomes 40.7


Article 41: Specific provisions for implementing the area of freedom, security and justice (insert "with the exception of police cooperation and judicial cooperation")

  3.  Delete whole para.

  Explanation: The exclusion of police cooperation and judicial cooperation in criminal matters is dealt with by substantial amendments to Article III-171 and Article III-172.





  Para 4: Line nine, after "Charter" insert "None of the fundamental rights referred to in this Charter will be justiciable in the Courts of the Member States merely because they are recogniced and described within this Charter".



Article III-6

  As in all other cases replace "territorial cohesion" with "regional policy".

Article III-9

  Delete para 2.


  This introduces new measures to be covered by European laws which should be dealt with by national legislation, eg passports (particularly sensitive because of their links with nationality and the right to diplomatic protection), identity cards and residence permits. They should remain the legislative preserve of individual nations.

Article III-62

  Para 2 once again seems to introduce a device to side step the necessity for Treaty amendment.

Article III-77

  6.  European laws in this context seem to have moved from decisions made by unanimity (as in Maastricht—TEU Article 105.6) to decisions by Qualified Majority.

Article III-90

  1.  Line 3, delete "European" and insert "Eurozone". Line 5, after "conferences". add "Eurozone decisions will not be binding on the Member States exercising their right to opt out of the Eurozone".

  3.  Line 2, after "representation", insert "for those Member States which are part of the Eurozone".

Article III-101

  Delete whole para.


  Employment legislation should be the responsibility of the Member States.

Article III-103

  Delete para 3. This is entirely inappropriate wording for an operative part of a Constitutional Treaty.


Section 10: Energy

  1.  Delete "In establishing an internal market and with regard for the need to preserve and improve the environment".

  2.  Delete whole para.


  It is better to leave legislative authority with Member States over Energy.

Article III-171

  1.  First line, delete "be based on the principle of" and insert "take into account". Second line, delete "shall include". Delete remainder of Article, ie second para and 2.

Article III-172

  1.  Delete "European framework laws may establish" and insert "Judicial cooperation may include establishing".

  Delete third para.

  2.  Delete completely.

Article III-173

  Replace "European laws or framework laws" with "Judicial cooperation".

Article III-174

  Delete paras 2 and 3.

Article III-175

  Delete whole Article.


  There is no case for a Union of Member States having a European Public Prosecutor's Office. This should be a matter for the Member States.

Article III-176

  Delete paras 2 and 3.

Article III-197

  2.  Line 1, after "shall" insert "normally". Line 2, delete "conduct" and insert "guide". Line 3, after "shall", insert "normally".

  3.  line three, after "Member States" insert "who shall at all times provide a majority on secondment to serve for periods not to exceed five years in the European External Action Service."

Article III-201

  Delete para 3. Para 4 becomes para 3. Delete reference in this para to para 3.

Article III-203

  Line one, delete "on the initiative of the High Representative for Foreign Affairs". Line four, delete "authority" and insert "guidance".

Article III-206

  1.  Delete the whole of the last paragraph.

  Explanation: It is not appropriate to mandate a Member State who is on the Security Council, let alone tell them, who they should request to speak. The Security Council has its own procedure for determing who it calls to speak.

Article III-210

  2.  Line five, after "Committee" insert "and in close cooperation with the Deputy Supreme Allied Commander Europe in NATO".

Article III-213

  Delete whole Article.

  Explanation: See introduction rejecting structured cooperation and enhanced cooperation in defence and military matters.

Article III-214

  Delete whole Article.

Article III-227

  This Article while much of it can remain needs to be substantially revised. As currently drafted it could change the entire law of the external relations of the European Community. Apart from not being acceptable it would cause immense confusion.

Article III-229

  Delete whole of para 3.

Article III-230

  This Article needs to be substantially revised. As presently drafted it would cause difficulty, given that the existing Commission delegations will form for the foreseeable future the nucleus of the new delegations with more general functions.

Article III-282

  Line two, before "Chapter" insert "Chapter I Article III-194 and"

Line three, after "policy" insert "Or arising from any action falling under Article III-342.1 (a)"

  Explanation: This amendment relating to Article III-342 to the original 1958 EEC Treaty should have been done at the time of the Maastricht Treaty as a consequential amendment to the decision to keep the ECJ out of CFSP. It is even more important now in view of common security and defence policy.

Article III-325

  2.  Penultimate line, delete "granted" to end of para and insert "adopted by the European Council and the Council of Ministers unanimously".

  Explanation: reverts to same wording as used in Article 39.7

PAGE 148

Article IV-7

  2.  line two, delete "simple" and insert "qualified", same change in line seven.

PAGE 150

Protocol on the Role of National Parliaments in the European Union

  4.  line one, delete "six" and insert "ten". Line ten, after "Ministers" insert "To ensure compliance with the principle of subsidiarity if one third of national parliaments have objected to a legislative proposal on the grounds of subsidiarity the Council of Ministers must adopt such a positin unanimously".

  Explanation: The 11th Report 2002-03 of the Committee para 58 favoured strengthening the proposed Protocol requiring the European Commission to withdraw their proposal if objected to in reasoned opinions by two thirds of national parliaments. This could also be adopted as an additional power but forcing unanimity on the Council following objections from one third of national parliaments is a constraint more likely to be invoked.

PAGE 161

Declaration on the Creation of a European External Action Service

  At the end of the first para after "diplomatic services" insert "At all times the staff seconded from national governments who may serve for only five years continuous service shall be a majority".

3   Memorandum by New Europe of 21 January 2003 annexed to this submission (not printed). This comments on the Convention's then discussions and amongst other recommendations advocated a continuation of the rotating Presidency with either groupings of six or eight Member States assuming the Presidency with lead countries chairing the European Council. Back

4   Letter from the Prime Minister to Lord Owen of 11 February 2003, copy attached to this submission (not printed). Back

5   HM Treasury Cmnd 5318 Realising Europe's Potential: Economic Reform in Europe, Stationary Office London February 2002. Back

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