PART 3: GENERAL AND FINAL PROVISIONS
Article A: Repeal of earlier Treaties
The Treaty establishing the European Community of 25 March 1957, the Single Act of 17 February 1986, the Treaty on European Union of 7 February 1992, the Treaty of Amsterdam of 2 October 1997 and the Treaty of Nice of 26 February 2001 shall be repealed as from the date of entry into force of the Constitutional Treaty. The acts and treaties listed in the Annex shall also be repealed.
"The purpose of this Article is to repeal the 1957 Treaty of Rome (TEC), the 1986 Single Act, the 1993 Treaty on European Union (TEU) and the Amsterdam and Nice Treaties, and all the other treaties which have amended them insofar as their provisions are replaced by the Constitutional Treaty.
A reference is proposed to an Annex listing other treaties and acts amending the TEC and the TEU, to be repealed following the Constitution's entry into force.
The drafting of such an Annex is no easy task, given that it will require examination of all the treaties amending the TEC and the TEU and the acts of accession, to check whether they contain provisions which remain applicable and which would either have to be reproduced somewhere in the Constitution or allowed to continue to exist separately.
It is suggested that the Convention should not draw up such a list, but that it should remind the European Council that the list needs to be drawn up before the end of the IGC's proceedings."
15. This Article raises two major issues: first,
the fundamental nature and extent of the change being proposed
and, second, the status of the European Atomic Energy Community
16. Former Treaty amendment/revision (the Single
European Act, and the Maastricht, Amsterdam and Nice Treaties)
have built on the foundations of the basic Treaties, and especially
the Treaty of Rome. Sometimes, as in the case of the Maastricht
Treaty, the changes have been major and reshaped the overall design
of the structure. Nevertheless the basic Treaty foundations have
remained and, subject sometimes to a detailed historical textual
research, can be identified.
17. The new Constitutional Treaty envisages,
with one possible exception (EURATOM, dealt with in paragraph
19), the replacement in toto of the current Treaties. Even
though much of the substantive content of Union policies and many
existing competences would remain unchanged, this would be an
heroic step and not without substantial political risk. For those
States where a referendum may be required or has been promised
(or where a general election may intervene) the people will be
asked to choose. Recent history shows that there is nothing certain
in such a process and the risk of casualties cannot be dismissed.
Such risks were deliberately avoided in the Dashwood draft, which
proposed that a new Part One (Constitution of the European Union)
be "bolted onto" reorganised and amended elements of
the existing Treaties.
18. The Praesidium's Explanatory note reveals
that much work still has to be done in order to identify all the
acts and treaties to be repealed and, most importantly, which
provisions in them may need to be saved and how that should be
done. Article A does not, for example, refer to the Acts of Accession.
They will need to be examined carefully to identify provisions
which should remain applicable.
19. The European Atomic Energy Community (EURATOM)
was established in 1957, at the same time as the EEC, with the
aim of promoting the development of the nuclear industries in
the Member States. With the exception of certain technical institutional
and financial matters to enable the EURATOM to be part of the
new Treaty/Constitutional schema, it is not being proposed that
the substantive provisions of the EURATOM Treaty should be amended.
It is politically sensitivethe EURATOM Treaty contains
strong commitments to nuclear energy which some Member States
may not now find attractive and/or want to put to a referendum.
Renegotiation of the EURATOM Treaty may not be a realistic option
having regard to the rigorous timetable governing the Convention,
the forthcoming IGC and Enlargement. It may therefore be convenient
for both the Convention and Member States to rely on the fact
that the Laeken declaration, which triggered the present Convention
process, makes no mention of the EURATOM Treaty and there is therefore
no formal mandate to amend it substantially. Putting EURATOM in
the "too difficult" tray makes good sense in all the
Article B: Legal continuity in relation
to the European Community and the European Union
The European Union shall succeed to all the rights and obligations of the European Communities and of the Union, whether internal or resulting from international agreements, which arose before the entry into force of the Constitutional Treaty by virtue of previous treaties, protocols and acts, including all the assets and liabilities of the Communities and of the Union, and their archives.
The provisions of the acts of the Institutions of the Union, adopted by virtue of the treaties and acts mentioned in the first paragraph, shall remain in force insofar as they are compatible with the Constitution. The case-law of the Court of Justice of the European Communities shall be maintained as a preferential source of interpretation of the Constitution and acts prior to its entry into force.
"The purpose of this provision is to arrange for the new European Union entity to succeed to the rights and obligations of the European Community and European Union, and to maintain the existing acquis on the date when the Constitutional Treaty enters into force (international agreements, secondary law, case-law, rights and obligations of third parties), assuming that the Constitutional Treaty is ratified by all the Member States.
It is proposed that the principle of succession should be established in this Article, with a reference to a protocol listing the numbers of acts which must be taken over by the new entity.
It is suggested that the Convention should not draw up such a protocol, but that it should draw the attention of the European Council to the need for it to be drawn up before the end of the IGC."
20. This Article, dealing with legal continuity,
raises a number of issues. The second paragraph, which seeks to
preserve inter alia the existing acquis, is noteworthy
in two respects. First, acts (including legislation) would remain
in force "insofar as they are compatible with the Constitution".
We question whether this qualification is necessary. What the
provision seems to be addressing is the substantive compatibility
of the present acquis. If so, we consider that all existing
measures should remain valid until they are replaced or repealed.
The inclusion of the words "insofar as they are compatible
with the Constitution" would open up a ground for legal challenge
which we believe would, in the interests of legal certainty, be
21. Second, there is the reference to the Court
of Justice. Its case-law is "to be maintained as a preferential
source of interpretation of the Constitution and acts prior to
its entry into force". It is important in the interests of
legal certainty that the existing jurisprudence of the Court should
be retained so far as possible. The utility of this saving for
the Court's case-law has, however, to be put in context. A continuity
rule would not exclude the possibility of change where, for example,
the Constitution uses new language, amends existing Articles or
purports to consolidate the case-law of the Court. Further, the
new Treaty Articles will have to be read in the light of the Union's
values and objectives set out in Articles 2 and 3.
22. As the Praesidium notes, the purpose of this
Article is to establish the principle of succession. One issue
which the Praesidium does not address is the response of third
States. Whereas the Member States as contracting parties can agree
between themselves that they will be parties to the new legal
order/organisation and that it will take over the rights and responsibilities
of the former, that will not bind third States. International
recognition of the new Union and the enforceability of the very
many and diverse international agreements, bilateral and multilateral,
to which the European Community is party would seem to be dependent
on which and how other (third) States react to the change.
23. There are, in international law, notions
of "continuity and "State succession". As Brownlie
notes: "Treaties may be affected when one state succeeds
wholly or in part to the legal personality and territory of another.
The conditions under which the treaties of the latter survive
depend on many factors, including the precise form and origin
of the "succession" and the type of treaty concerned".
There is, however, no universally accepted approach to State succession
and even if there were it would not, on the face of it, apply
to the EC/EU because the EC/EU is not a State.
24. Even though not a State the EC
has been almost universally accepted as an actor on the international
scene and as having treaty making powers. However, we know of
no precedent for such a change of shape by an international organisation/body
as is now being contemplated. Would the new Union be regarded
as a new body or still the old one with some changes made? From
a functional standpoint there is likely to be much in common between
the old and the new. The new Union would have, subject to the
Enlargement, the same members/parties. It would, in large part,
carry out the same functions and policies. It would have the same
institutions/agencies. The converse is that the new Treaty will
intentionally create a new body, repealing all the existing Treaties
(except EURATOM see paragraph 15 above). Politically, a new start
25. This is uncharted territory and perhaps
a potential minefield. The response of third States to the new
political and legal order created by the Constitutional Treaty
must be awaited.
Article C: Scope
1. The Constitutional Treaty shall apply to the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland,
2. The Constitutional Treaty shall apply to the French overseas departments, the Azores, Madeira and the Canary Islands in accordance with Article
of Part Two.
3. The special arrangements for association set out in Part [Four of the TEC] of the Constitutional Treaty shall apply to the overseas countries and territories listed in [Annex II to the TEC].
The Constitutional Treaty shall not apply to those overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland which are not included on the aforementioned list.
4. The Constitutional Treaty shall apply to the European territories for whose external relations a Member State is responsible.
5. The Constitutional Treaty shall apply to the Åland Islands in accordance with the provisions set out in Protocol 2 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden.
6. Notwithstanding the preceding paragraphs:
(a) the Constitutional Treaty shall not apply to the Faeroe Islands;
(b) the Constitutional Treaty shall not apply to the sovereign base areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus;
(c) the Constitutional Treaty shall apply to the Channel Islands and the Isle of Man only to the extent necessary to ensure the implementation of the arrangements for those islands set out in the Treaty concerning the accession of new Member States to the European Economic Community and to the European Atomic Energy Community, signed on 22 January 1972.
"This provision reproduces Article 299 TEC (with the requisite technical amendments), except for the second subparagraph of paragraph 2 of this Article. It was felt that since this subparagraph was a legal basis, it should be placed in Part Two of the Constitution together with the other legal bases.
The Convention's attention is drawn to the fact that Article 299 of the TEC does not apply to the TEU. As a result, replacement of "Treaty" by "Constitutional Treaty" in this provision raises the question of the scope of the Constitutional Treaty.
This provision will need to be adjusted following entry into force of the accession treaties."
26. This Article might better be entitled "Territorial
scope". It is derived from Article 299 TEC. Possibly the
most interesting issue from a UK standpoint is the future position
of Gibraltar. Gibraltar is within the scope of the EC Treaty by
virtue of Article 299(4) TEC,
though some rules do not apply to it.
The position under the Treaty on European Union is less clear.
In response to a recent query from the Select Committee, the Government
described the position as follows:
"The Treaty on European Union has no territorial
provision. It is therefore necessary to determine the position
on territoriality by applying the principles of international
law. Under international law a treaty is binding upon each country
in respect of its entire territory unless a different intention
appears from the treaty or is otherwise established. The practice
of expressly dealing with the application of Third Pillar instruments
to Gibraltar has established this different intention. Thus we
take the view that Third Pillar measures
do not automatically
apply to Gibraltar. We therefore consider the application of Third
Pillar measures to Gibraltar on a case by case basis."
Substituting "Constitutional Treaty" for
"Treaty" in Article C(4) would, as the Praesidium notes,
have consequences for the territorial scope of application of
the new Treaty. If the present position of Gibraltar (ie
in the EC subject to certain exceptions and outside the TEU except
when expressly included) is to remain, it will need to be addressed
expressly in the new Treaty.
Article D: Regional Unions
The Constitutional Treaty shall not preclude the existence or completion of regional unions between Belgium and Luxembourg, or between Belgium, Luxembourg and the Netherlands, to the extent that the objectives of these regional unions are not attained by application of the Constitutional Treaty.
"This provision reproduces Article 306 TEC. In any future discussions on enhanced cooperation, the Convention may wish to examine the significance of this article and/or its relationship with provisions on enhanced cooperation. However, it is recommended that the text of the article remain unchanged for the time being."
27. We have nothing to add to the Praesidium's
Explanatory notes on this Article.
Article E: Protocols
The protocols annexed to this Treaty shall form an integral part thereof.
"This is a provision which already exists in the TEU and the TEC.
The existing protocols, whether annexed to the TEU or TEC or to both Treaties, should continue to be annexed to the new Constitutional Treaty.
The Convention may wish to draw the IGC's attention to the fact that it needs to consider what is to happen to the protocols."
28. A notable feature of the development of the
Treaties has been the increased use of protocols and declarations.
While the former are legally binding on Member States as much
as Treaty provisions (Article 311 TEC), the legal force of declarations
is less certain.
The Maastricht Treaty annexed seventeen protocols (plus the Agreement
on Social Policya protocol in all but name). The Amsterdam
Treaty annexed thirteen and Nice a further four. They have been
used for a number of purposes, but significantly to enable political
and/or constitutional difficulties in certain Member States (especially
Denmark and the United Kingdom) to be overcome in order to facilitate
the introduction and development by the majority of Member States
of new and major Community policies. Examples are the establishment
of Monetary Union and, in the field of Justice and Home Affairs,
the transfer of immigration and asylum policy from the Third to
the First Pillar and the integration of the Schengen acquis
into the Union.
29. Article E would replace Article 311 TEC and
would provide the legal peg on which to hang protocols annexed
to the new Treaty. The Presidium's Explanatory note is silent
on what matters might be contained in such protocols. There are
proposals to include protocols on National Parliaments and on
Another candidate for a protocol is the Charter of Fundamental
Rights. This is one of the options for the Charter envisaged by
Article 5 of the new Treaty.
Further, the Government has indicated that it has no intention
of giving up the special position it has in relation to Schengen,
its border controls and Title IV TEC (Visas, asylum, immigration
and other policies related to free movement of persons) now contained
in TEU Protocols 3 and 4.
The future of these (and possibly other) protocols will, as the
Praesidium notes, be a matter for the IGC and must be clarified.
Article F: Procedure for revising
the Constitutional Treaty
1. The government of any Member State, or the Commission, may submit to the Council proposals for the amendment of the Constitutional Treaty. The national Parliaments shall be notified of these proposals.
If the Council, after consulting the European Parliament and, where appropriate, the Commission, delivers an opinion in favour of calling a conference of representatives of the governments of the Member States, the conference shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to the Constitutional Treaty. The Council of the European Central Bank shall also be consulted in the case of institutional changes in the monetary area.
The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.
"1. This Article reproduces Article 48 TEU. We could, as suggested by the Working Group on National Parliaments, envisage the insertion into this provision of a second paragraph reading as follows:
"The Conference of the Representatives of the Governments of the Member States may be preceded by a preparatory Convention convened by the President of the European Council and composed of representatives of the national Parliaments, the Heads of State or Government of the Member States, the European Parliament, the Council and the Commission. At the close of its proceedings, the Convention shall adopt by consensus a recommendation to the Conference of the Representatives of the Governments of the Member States."
2. The Convention's attention is also drawn to the following:
- If the Convention wishes to consider a procedure other than that referred to in Article 48 TEU or that currently used to draft the Constitution, there would, however, be a number of procedural questions to decide beforehand:
Could the Constitution be amended by the Council, or would there still need to be a Conference of Member States?
(a) Who would have the right to initiate such amendment?
(b) Amendment by unanimity or a qualified majority?
(c) What would be the arrangements for participation by the Commission and the European Parliament?
(d) What would be the arrangements for participation by national Parliaments?
(e) What would be role of the Congress, if such a body were set up?
- If the Convention opts for a procedure other than that referred to in Article 48 TEU, it could consider the possibility of a procedure providing for recourse to the IGC alone for very limited amendments. It could also consider the possibility that certain provisions might stipulate that they may be amended by the Council or the European Council, by unanimity or qualified majority, in line with existing practice in some cases (for example Article 213 TEC as regards the number of commissioners).
- This provision raises the question of what to do if any Member State fails to ratify a revision of the Treaty."
30. The first point to note is that the Article
draws no distinction between amendments of Articles in Part I
(Constitutional Structure) on the one hand and the Articles in
Part 2 (Union Policies and their Implementation) on the other.
There have been suggestions that provisions in Part 2 might be
subject to a less onerous revision procedure. Under the text now
being proposed amendment to any Article of the Constitutional
Treaty would require unanimity. There would be no short cuts,
no qualified majority voting nor, most importantly, avoidance
of national ratification and parliamentary procedures. Indeed
national parliaments would, under Article F, have been notified
of any proposals to amend the Constitutional Treaty. The Praesidium's
Explanatory note, however, raises the question whether provision
should be made for Treaty amendment by the Council, even possibly
acting by QMV. Two approaches are offered for consideration. The
first is the "entrenchment" of some provisions in the
new Treaty. If an Article were not entrenched it could be amended
by the Council (or European Council) without need for an IGC.
The second is to stipulate in particular Articles that they could
be amended by the Council (or European Council) and if so the
voting procedure. We recommend that a generalised two tier system
for Treaty amendment should be resisted. Only exceptionally should
Articles of the Constitutional Treaty be capable of amendment
without an IGC, and then only by the Council (or European Council)
acting by unanimity. We would not envisage such a procedure being
used to amend the core provisions of the Union's Constitution
or to extend any Union competence.
31. Second, the Praesidium's Explanatory note
invites consideration of an additional paragraph which contemplates
any revision of the Constitutional Treaty being the subject of
discussion in a Convention (constituted along the lines of the
present Convention on the Future of Europe). We believe that the
Convention procedure has so far been a success. It has encouraged
an open debate and ensured that a wide variety of views have been
heard. It has, moreover, involved a democratic consideration of
draft Articles of the proposed Constitutional Treaty in public,
which has been particularly valuable. We note that paragraph 1
of the Praesidium's note suggests that the Convention might "adopt
by consensus a recommendation". We wait to see whether the
present Convention can deliver on time the text of a new Treaty
which commands general agreement. It is a formidable task and
we are pleased that national parliaments are playing an active
role in the process.
32. Finally we note that the Praesidium refers
to the role of the "Congress". The Preliminary draft
a skeleton text presented to the Convention last October by its
President, Valery Giscard d'Estaing, envisages the possible establishment
of a Congress of the Peoples of Europe (Article 19). The Government
appears to be sympathetic to the idea. In a joint UK Spanish submission
to the Convention, it has said:
"The proposal to set up an European Congress,
in which representatives of both the European Parliament and the
national Parliaments are to take part, is, in this context, worth
considering, if a useful role for it is agreed. It could meet
in principle once a year and could be entrusted with debating
the European Council's guidelines and the Commission's work programme.
In any event, it should be an informal body, not an Institution,
entitled to adopt resolutions or recommendations only."
33. As we said in earlier Reports
we do not favour the creation of a Second Chamber or of another
institution for meetings of national parliamentarians. We wait
to see the detail of the proposal for a Congress. This is a subject
to which we shall return when considering draft Article 19.
Article G: Adoption, ratification
and entry into force of the Constitutional Treaty
1. The Constitutional Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instruments of ratification shall be deposited with the Government of the Italian Republic.
2. The Constitutional Treaty shall enter into force on ..., provided that all the instruments of ratification have been deposited, or, failing that, on the first day of the month following the deposit of the instrument of ratification by the last signatory State to take this step.
3. If, two years after the signature of the Constitutional Treaty, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council.
"This provision is in substance the same as Articles 52 TEU and 313 TEC.
Article 48 TEU, on the procedure for revising the Treaty, states that: "The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements." The Constitutional Treaty cannot therefore enter into force unless it has been ratified by all the Member States which signed it: if at least one of the signatory States did not ratify the Constitutional Treaty, it could not enter into force and the current Treaties would continue to apply.
In that case, the Member States and the institutions of the Union would have to assess the political consequences. This article contains a provision (paragraph 3), which does not appear in the current Treaties, designed to cover the eventuality that, after two years, one or more Member States have still not completed their internal ratification procedures, for whatever reason. The European Council would then have to assess the political consequences of that situation.
Some of the contributions submitted to the Convention propose that the Constitutional Treaty should, outside the scope of the Article 48 TEU procedure, enter into force for those States which have ratified it once a threshold, to be determined in the Constitutional Treaty itself, has been reached (cf. Article x + 6(§2) of the PPE text; Article 6 § 2 and 3 of the Agreement on the entry into force of the Treaty on the European Constitution submitted by the Commission; Article 47 of the Spinelli draft).
From a legal point of view, although this possibility is provided for in Article 24 of the Vienna Convention on the Law of Treaties ("a treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree"), it would create problems as regards the former Treaties if one or more signatory States did not ratify the Constitutional Treaty. The failure of one or more signatory States to ratify the Constitutional Treaty would raise the question of what was to happen to the current Treaties. The Vienna Convention on the Law of Treaties (Art. 54) states that a treaty can be terminated only in conformity with its provisions or by consent of all the parties. The current Treaties are silent on the question of their repeal, so that repeal is possible only with the consent of all the Member States party to them (i.e. the 15 at present, the 25 after entry into force of the accession treaties). Unless repealed by agreement of all the Member States of the Union, the former Treaties would remain in force."
34. The Praesidium's Explanatory note helpfully
sets out, by reference to the Vienna Convention on the Law of
Treaties, the treaty law problems which might arise from a partial
adoption of the new Treaty and repeal of the existing Treaties.
Paragraph 3 of this Article, though not strictly necessary, provides
a clear signpost to a mechanism for resolving what would undoubtedly
be a serious political problem for Europe.
Article H: Duration
The Constitutional Treaty is concluded for an unlimited period.
"This provision is the same as Article 51 TEU and Article 312 TEC."
Article I: Languages
The Constitutional Treaty, drawn up in a single original in the Danish, Dutch, English, Finnish, French, German, Greek, Irish, Italian, Portuguese, Spanish, Swedish and ... languages, the texts in each of these languages being equally authentic, shall be deposited in the archives of the Government of the Italian Republic, which will transmit a certified copy to each of the governments of the other signatory States.
"This provision comes from Article 53 of the TEU and Article 314 of the TEC. It will have to be adapted following the entry into force of the accession treaties."
35. We have nothing to add to the Praesidium's
Explanatory notes on these two Articles.
15 The Draft Constitutional Treaty of the European
Union prepared, at the invitation of the Foreign and Commonwealth
Office, by a team headed by Professor Alan Dashwood. The text
of the Treaty has been published in the European Law Review: (2003)
28 E.L.Rev. 3. Back
See, for example, footnote 20 below dealing with the position
of Gibraltar. Back
A summary of the options considered by the Convention is contained
in Doc CONV 621/03. Back
Op cit at p. 620. Back
The position of the EU, which does not at present have legal personality,
is less clear. Back
That Article provides: "The provisions of this Treaty shall
apply to the European territories for whose external relations
a Member State is responsible". Back
By virtue of Article 28 of the 1972 Act of Accession. The need
to make a saving for this and other provisions of the Accession
Treaties is a further issue to be considered. Back
Letter of 28 March 2003 from Mr Bob Ainsworth MP, Parliamentary
Under Secretary of State, Home Office, to Lord Grenfell. Back
Declarations may assist in the interpretation of treaties (see
Vienna Convention on the Law of Treaties, Article 31(2)). In a
Union context, declarations made jointly by all Member States
are significant. Back
The special arrangements applicable to the UK are explained in
our Report The Future of Europe: Constitutional Treaty-Draft
Article 31 and Draft Articles from Part 2 (Freedom, Security and
Justice) (16th Report, Session 2002-03, HL Paper 81), at paragraphs
See our Report The Future of Europe: National Parliaments and
Subsidiarity-The Proposed Protocols (11th Report, Session
2002-03, HL Paper 70). Back
See our Report The Future of Europe: Constitutional Treaty-Draft
Articles 1-16 (9th Report, Session 2002-03, HL Paper 61),
at paragraph 29. Back
Evidence of Mr Peter Hain MP to the Select Committee on 25 March
Doc CONV 369/02. The text is printed at Appendix 2 to our Report
The Future of Europe: Constitutional Treaty-Draft Articles
1-16 (9th Report, Session 2002-03, HL Paper 61). Back
Doc CONV 591/03. Contribution by Mrs Ana Palacio and Mr Peter
Hain, members of the Convention; "The Union institutions". Back
1996 Inter-Governmental Conference (21st Report, Session
1994-95, HL Paper 105) and A Second Parliamentary Chamber for
Europe: An Unreal Solution to Some Real Problems (7th Report,
Session 2001-02, HL Paper 48). Back
ie in that group (Title IV in the skeleton text of the
new Treaty) of Articles relating to the Institutions. Back
To be adjusted in accordance with the Act of Accession. Back