Select Committee on European Union Ninth Report


Article 6: Non-discrimination on grounds of nationality


1.  In the field of application of this Constitution and without prejudice to any of its specific provisions, any discrimination on grounds of nationality shall be prohibited.

Explanatory note

"This Article takes over unchanged the prohibition on all discrimination on grounds of nationality, which is currently enshrined in Article 12 TEC. In line with the structure of the current EC Treaty and of the Charter, this prohibition is here placed in a separate Article rather than forming part of the provision on citizenship of the Union. Because of its fundamental importance for the development of Union law, this provision must be placed in Part One of the Constitution. The legal basis for rules prohibiting discrimination on grounds of nationality (see second paragraph of Article 12 of the current TEC) would be placed in Part Two of the Treaty, as would the current Article 13 TEC, which creates a legal basis for combating certain other forms of discrimination."

Commentary

33.  Non-discrimination between citizens of the Union on grounds of nationality is a fundamental and well-established principle of Community law. The wording of Article 6 is similar to Article 12(1) TEC, the main change being the replacement of the word "Treaty" by "Constitution". If what is to be prohibited is discrimination between citizens of the Union, that could be made clear.

Article 7: Citizenship of the Union

1.  Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship; it shall not replace it. All citizens of the Union, women and men, shall be equal before the law.

2.  Citizens of the Union shall enjoy the rights and be subject to the duties provided for in this Constitution. They shall have:

¾  the right to move and reside freely within the territory of the Member States;

¾  the right to vote and to stand as a candidate in elections to the European Parliament and in municipal elections in their Member State of residence under the same conditions as nationals of that State;

¾  the right to enjoy, in the territory of a third country in which the Member State of which they are a national is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;

¾  the right to petition the European Parliament, to apply to the Ombudsman, and to write to the institutions and advisory bodies of the Union in any of the Union's languages and to obtain a reply in the same language.

3.  These rights shall be exercised in accordance with the conditions and limits defined by this Constitution and by the measures adopted to give it effect.

Explanatory note

"The definition of citizenship of the Union in paragraph 1 follows that given in the current EC Treaty. This paragraph also establishes the principle of equality between all European citizens.

The citizens' rights listed in paragraph 2 include all those currently appearing in the "citizenship" part of the EC Treaty. The right of access to documents of the institutions, at present established in Article 255 of the TEC, would be placed in the Titles on "the democratic life of the Union" or "Union institutions" of the Constitutional Treaty. This could also be the case for the right to good administration established by the Charter (Article 41), since the Charter grants that right to "every person".

More detailed provisions and the legal bases relating to the definition of the conditions for and limits on the exercise of those rights (see Article 18(2); the second sentences of Article 19(1) and (2); the second sentence of Article 20; Article 194 and Article 195 TEC) would appear in Part Two of the Treaty. The same would apply to the provision of the current Article 22 TEC concerning the possible subsequent development of citizens' rights."

Commentary

34.  The notion of EU citizenship is not new, having been introduced by the Maastricht Treaty. Article 17 TEC expressly provides, as does the new text, that Union citizenship complements and does not replace national citizenship. Nationality remains a matter over which individual Member States have and retain control. In addition to the rights given to nationals of Member States by the EC Treaty, Union citizenship confers six particular rights listed in the new Article 7(2) (nb the last indent contains three separate rights). Those six rights are, as the Explanatory note indicates, presently to be found in Articles 18-21 TEC.

35.  What is new is the third sentence of Article 7(1): "All citizens of the Union, women and men, shall be equal before the law". Is this intended to restate the principle of equality as between men and women or that of equality before the law of all individuals? The drafting, at least in the English text, is ambiguous. The former principle is stated to be an objective of the Union in Article 3(2). The French text (the original) suggests that it is the latter and that "women and men" has been used to avoid gender-specific words in other language versions. The principle can be found in a number of Member States' constitutions[15] and is currently set out in Article 20 of the Charter.[16] Importantly, the principle has been regarded by the Court of Justice as a general principle of Community law.[17] The third sentence of Article 7(1) thus appears to be consolidating existing Community law.

TITLE III: The Union's competences

Title III: The Union's competences

Explanatory note

"The Nice European Council called on the Convention to consider "how to establish and monitor a more precise delimitation of powers between the European Union and the Member States, reflecting the principle of subsidiarity". More specifically, the Laeken European Council called on the Convention to consider "how the division of competence can be made more transparent", "whether there needs to be any reorganisation of competence" and "how to ensure that a redefined division of competence" is maintained and "ensure at the same time that the European dynamic does not come to a halt".

These questions have been discussed in plenary sessions and in Working Groups. On the basis of those discussions, the Praesidium has drawn up a draft text of articles the aim of which is, inter alia, to:

Define clearly the fundamental principles governing the limits of the competences between the Union and the Member States and the way in which the Union's competences are to be used (as well as the rules for applying those principles).

Determine the different categories of the Union's competences. The key factor in establishing those categories is the extent of the legislative competence conferred on the Union in relation to that of the Member States, according to whether such competence is conferred on the Union alone (exclusive competence) or shared between the Union and the Member States (shared competence), or whether it continues to lie with the Member States (areas for supporting action).

Indicate the areas covered by each category of competences. The lists of areas of shared competence are not exhaustive, which takes account of the Convention's wish not to establish a fixed catalogue of competences. The reference in Article 12 to "principal areas" avoids having to define in detail each area of shared competence. The exact definition, and the extent of each area, are determined by the relevant provisions of Part Two.

In line with the wish of a large number of members of the Convention, include a provision introducing a measure of flexibility in order to enable the Union to react in unforeseen circumstances. But that flexibility is restricted to the areas already specified in Part Two. The provision requires that the Member States' national parliaments be informed explicitly whenever the Commission proposes to use the flexibility clause."

Commentary

36.  Title III (Articles 8-16) deals with the division of competences between the Union and the Member States. At its core lies the threefold classification: exclusive competence/shared competence/supporting action. What is especially noteworthy is that Title III does not seek to allocate competences in the way that a federal constitution might. Indeed it puts the principle of conferral at the head of the list of principles governing the relationship between the Union and the Member States.

37.  How far Title III fulfils the demands of the Laeken European Council (transparency, reorganisation, maintenance of the division of competence and dynamism) is debatable. As will be explained below when dealing with the specific Articles, the basic threefold classification may be controversial, not least the definition of exclusive competence. Further, economic policy and the CFSP appear to be special cases outside the general scheme. More work may be needed to secure an adequate level of transparency. Any comment on the reorganisation of competences must necessarily await the debate on the detailed content of Part Two of the new Treaty.

38.  Whether the right balance is struck between the maintenance of any "redefined division of competence" and ensuring that "the European dynamic does not come to a halt" turns in large part on Article 16, entitled "Flexibility clause". Some confusion may arise here. "Flexibility" was one of the buzzwords of the Amsterdam Inter-Governmental Conference (IGC) and Treaty. It manifested itself in Title VII of the TEU—"Provisions on Closer Cooperation". This sets out mechanisms to allow groups of Member States to take forward closer cooperation among themselves in certain circumstances. Whether close cooperation will have a place in the Treaty waits to be seen. The "Flexibility clause" in Article 16 is, as will be seen, quite different and potentially controversial.

Article 8: Fundamental principles

1.  The limits and use of Union competences are governed by the principles of conferral, subsidiarity, proportionality and loyal cooperation.

2.  In accordance with the principle of conferral, the Union shall act within the limits of the competences conferred upon it by the Constitution to attain the objectives the Constitution sets out. Competences not conferred upon the Union by the Constitution remain with the Member States.

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

4.  In accordance with the principle of proportionality, the scope and form of Union action shall not exceed what is necessary to achieve the objectives of the Constitution.

5.  In accordance with the principle of loyal cooperation, the Union and the Member States shall, in full mutual respect, assist each other to carry out tasks which flow from the Constitution.

Explanatory note

"Article 8 lists and defines, clearly and explicitly, the fundamental principles governing the limits and exercise of competences."

Commentary

39.  The exercise of Union competences is to be governed by four principles: conferral, subsidiarity, proportionality and loyal cooperation. This is not new, but the terminology now being used (in particular "loyal cooperation") may raise concerns.

40.  Article 8(2) defines the principle of conferral. Article 5(1) TEC currently states that "the Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein".[18] The wording in 8(2) is similar (with the replacement of Union by Constitution etc), but a new sentence has been added: "Competences not conferred upon the Union by the Constitution remain with the Member States". Its inclusion reflects the opinion of the Convention Working Group on Complementary Competences[19] that the new Treaty must ensure that powers not allocated to the Union remain within the Member States and that this should be expressly stated in the Treaty. Such an amendment would in itself "establish an assumption in favour of national competence".

41.  Article 8(3) defines subsidiarity, a term introduced into the Union Treaty vocabulary by the Maastricht Treaty to address the substantial increase in EC/EU competence brought about by the Single European Act and the Maastricht Treaty by restraining the use made by the Community of some of its competences. Article 5(2) TEC states: "In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community". It is/may be significant that Article 8(3) refers to "Union" and not "Community". There may not in future be a distinction between them, thus making the principle more widely applicable to Union activity.

42.  Article 8(3) makes clear that the principle of subsidiarity only applies "in areas which do not fall within its [the Union's] exclusive competence". The division of competences (exclusive/shared/supporting) is addressed in Article 10. The identification of the Union's exclusive competence is the subject of Article 11 and, as we explain below, may be controversial, especially for the relationship between the Union and the Member States, but also for the involvement of national parliaments in the control of Union legislation.

43.  The principle of proportionality (Article 8(4)) is a well-established principle in Community law. The Court of Justice has ruled on proportionality both in challenges to Community action[20] and in challenges to Member State action within the scope of the Treaties.[21] The principle currently finds legislative expression in Article 5(3) TEC (inserted by the Maastricht Treaty): "Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty". The wording of Article 8(4) is slightly expanded and provides that the principle applies to "the scope and form of Union action" (rather than "any action by the Community"). There is no explicit reference to the "content" of any action, but this would seem not to be necessary. Any application of the principle and appraisal of the "scope and form" of a measure would necessarily have to involve consideration of its "content". Finally, the reference to "the objectives of the Constitution" should be to "the objectives of the Union" (see Article 3).

44.  Article 8(5) defines the principle of loyal cooperation. Some commentators have suggested that this is new. Although the term does not appear as such in the current Treaties the principle is well-established and can be seen in both the TEC and the TEU. Article 10 TEC encompasses the principle, stating that: "Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks." The principle, and indeed the word "loyalty", can be found in Article 11(2) TEU: "The Member State shall support the Union's external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity". The implications of "loyalty" in the context of the Common Foreign and Security Policy are considered in paragraph 75 below.

45.  But Article 8(5) appears at first sight to change the focus significantly. It is not just about Member States fulfilling Treaty obligations, but emphasises that the principle involves two-way cooperation between the Union on the one hand and Member States on the other. Again this is not new. The Court of Justice has long recognised that the duty of cooperation is a mutual one.[22] The Article might nonetheless be seen as reinforcing the position of Member States, in view of the now explicit reference to cooperation and assistance "in full mutual respect".

Article 9: Application of fundamental principles

1.  The Constitution, and law adopted by the Union Institutions in exercising competences conferred on it by the Constitution, shall have primacy over the law of the Member States.

2.  In exercising the Union's non-exclusive competences, the Institutions shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality annexed to the Constitution. The procedure set out in the Protocol shall enable national parliaments to ensure compliance with the principle of subsidiarity. [23]

3.  In exercising the Union's competences, the Institutions shall apply the principle of proportionality as laid down in the same Protocol.

4.  Member States shall take all appropriate measures, general or particular, to ensure fulfilment of the obligations flowing from the Constitution or resulting from actions taken by the Union Institutions.

5.  In accordance with the principle of loyal cooperation, Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the objectives set out in the Constitution. The Union shall act loyally towards the Member States.

6.  The Union shall respect the national identities of its Member States, inherent in their fundamental structures and essential State functions, especially their political and constitutional structure, including the organisation of public administration at national, regional and local level.

Explanatory note

"Article 9 contains certain rules for the application of those principles. The inclusion of a reference to the role of the national parliaments is intended to highlight their importance in monitoring the principle of subsidiarity, in accordance with the conclusions of the Working Group chaired by Mr Méndez de Vigo. The Praesidium's conclusions further to the plenary debate on the Working Group's recommendations will be incorporated in the Protocol on the application of the principles of subsidiarity and proportionality.

The existing principle according to which Member States implement European Union law is also incorporated in this Article.

Paragraph 6 on the Union's respect for national identities develops a principle set out in Article 1 of the Constitution."

Commentary

46.  Article 9(1) consolidates the doctrine of the supremacy or primacy of Community law. It is well established that in the event of a conflict between Community law and national law, Community law is supreme and has primacy over national law, irrespective of the source, status or date of that law.[24] It is also clear from the jurisprudence of the ECJ that the primacy of Community law applies irrespective of the status of the national law or the organ of the Member State involved.[25] In this context Community law includes the Treaty and rules made under it. Article 9(1) refers to the Constitution and the laws adopted under it. The implications for the Common Foreign and Security Policy (CFSP) need further consideration.

47.  Articles 9(2) and (3) deal with the application of the principles of subsidiarity and proportionality, which are defined in Article 8(3) and (4) (see above). The Union shall apply these principles "as laid down in the Protocol on the application of the principles of subsidiarity and proportionality annexed to the Constitution". This will replace the existing Protocol on subsidiarity and proportionality and is expected to recognise the role of national parliaments in monitoring the application of subsidiarity. The precise form of action by national parliaments in this context is subject to much debate at present. There have been proposals to create an "early warning mechanism", in cases where a number of national parliaments have subsidiarity concerns - which they can raise with the Commission (the "yellow card"). What is more controversial is whether national parliaments will have the ability to block a Commission proposal on subsidiarity grounds (the "red card"). It has also been suggested that national parliaments should be able to challenge measures in the Court of Justice for non-compliance with subsidiarity.

48.  A separate issue (raised in part by the difference in wording of Article 9(2) and (3)) is the apparent distinction between checks on subsidiarity (which national parliaments can do) and checks on proportionality (which are not for national parliaments but are left to the Community Courts). In practice it may be difficult to draw a clear line between subsidiarity and proportionality issues, as the examination of subsidiarity may involve issues of proportionality. We believe that Article 9 and the Protocol should be amended to require the views of national parliaments on both subsidiarity and proportionality to be sought.

49.  The wording of Article 9(4) is similar to the first sentence of Article 10 TEC. The difference is that "Constitution" and "Union institutions" have replaced "Treaty" and "Community institutions".

50.  Article 9(5) is another facet of the principle of loyal cooperation set out in Article 8(5). The wording of the first sentence is similar to the second sentence of Article 10 TEC (again with the words "Union" and "Constitution" replacing "Community" and "Treaty"). This conduct is now expressly labelled as "loyal cooperation". What is added is the phrase "the Union shall act loyally towards the Member States". This, as mentioned above, consolidates a "two-way" duty of loyal cooperation.

51.  The first part of Article 9(6) repeats Article 1(2) of the draft Treaty, and is the exact wording of Article 6(3) TEU. The novelty is that Article 9(6) goes further to flesh out what national identity in this context entails. Emphasis is placed on political identity, rather than cultural or ethnic identity.


15   For example, Article 3(1) of the German Constitution. Back

16   Article 20 of the Charter is entitled "Equality before the law" and states: "Everyone is equal before the law". Back

17   Case C-292/97 Karlsson [2000] ECR I-2737. Back

18   The principle of conferred powers is also reflected in Article 7(1) TEC, last sentence. Back

19   CONV 375/1/02. Back

20   For example, on proportionality and human rights, see Case 44/79 Hauer v Land Rheinland-Pfalz [1970] ECR 3727. Back

21   Case 36/75 Rutili v Ministre d'Interieur [1975] ECR 1219. Back

22   Case 230/81 Luxembourg v European Parliament [1983] ECR 255, Case C-2/88 Zwartfeld and Others [1990] ECR I-3365. Back

23   A new version of the Protocol is expected to be circulated shortly. Back

24   Case 6/64 Costa v ENEL [1964] ECR 585Back

25   Case 106/77 Italian Finance Administration v Simmenthal [1978] ECR 629. Back


 
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