Article 6: Non-discrimination on grounds
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.
"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."
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.
"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."
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
and is currently set out in Article 20 of the Charter.
Importantly, the principle has been regarded by the Court of Justice
as a general principle of Community law.
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
"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."
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
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.
"Article 8 lists and defines, clearly and explicitly, the fundamental principles governing the limits and exercise of competences."
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
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".
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
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
and in challenges to Member State action within the scope of the
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
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
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.
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
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. 
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.
"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."
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.
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.
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
Article 20 of the Charter is entitled "Equality before the
law" and states: "Everyone is equal before the law". Back
Case C-292/97 Karlsson  ECR I-2737. Back
The principle of conferred powers is also reflected in Article
7(1) TEC, last sentence. Back
CONV 375/1/02. Back
For example, on proportionality and human rights, see Case 44/79
Hauer v Land Rheinland-Pfalz  ECR 3727. Back
Case 36/75 Rutili v Ministre d'Interieur  ECR 1219. Back
Case 230/81 Luxembourg v European Parliament  ECR
255, Case C-2/88 Zwartfeld and Others  ECR I-3365. Back
A new version of the Protocol is expected to be circulated shortly. Back
Case 6/64 Costa v ENEL  ECR 585. Back
Case 106/77 Italian Finance Administration v Simmenthal
 ECR 629. Back