7. Doc. IV Treaty establishing a CONSTITUTION for EUROPE A summary

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1 European Union Law and Politics Towards a Constitution for Europe 1 7. Doc. IV Treaty establishing a CONSTITUTION for EUROPE A summary Preamble (I) Title I Definition and Objectives of the U. Inspiration from: «cultural, religious and humanist inheritane of Europe» Values: human rights, freedom, equality, rule of law General aims United «ever more closely in diversity», each people proud of its own national identity Continuity with TEU, TEC, and the Community acquis A Constitution drafted «on behalf of the citizens and States of Europe» Art. I-1 An EU meant to attain the objectives that the MS have in common. The Union acts in two ways: (a) it coordinates the policies of the MS; (b) it exercise on a Community basis the competences conferred to it. «Open to all European States» which share its values.. Art. I-2 Which values: same as in the Preamble + an express reference to minorities. What kind of society What is the EU, what it is meant to be established for Open to all European States: how should it be interpreted?

2 2 Art. I-3 Which aims (= objectives): (a) peace; (b) well-being of its peoples; (c) more specifically: «an area of freedom, security and justice wihtout internal frontiers, and an internal market»; (d) sustainable development, defined as «balanced economic growth and price stability..», highly competitive social market economoy, full employment, social progress, protection of the environment; (e) scientific and technological progress (=advance); (f) combat social exclusion and discriminatio + promote social justice and welfare; (g) promote gender equality, solidairty between generations, children; (h) social and territorial cohesion; (i) respect for cultural and linguistic diversity; (i) European values and interets in the World, peace; (l) proportionality Note the order: the internal market is at the end now. Art. I-4 Fundamental freedoms + non discrimination «on grounds of nationality» Art. I-5 Equality of MS; respect for their essential State functions; mutual assistance; duty to fulfil the obligations arising out of the Constitution or resulting from the acts of the institutions; duty to facilitate the Union s tasks Art. I-6 Supremacy of UE Law Art. I-7 «The U. shall have leagl personality» (in int.l law ) Art. I-8 Symbols

3 Title II Fundamental rights Citizenship of the E. Title III Union competences 3 Art. I-9 Cross-reference to Part. II (Charter). Accession to the ECHR. General principles of the Union s Law: «fundamental rights as guaranteed by the ECHRT and as they result from the constitutional traditions common to the MS». Art. I-10 Citizenhsip of the EU: who is citizens, which rights the citizens enjoys (to move and reside freely, to vote and to stand as candidate, to supplemental diplomatic protection, to petition the EP and the EO. See also art. II-99 to II-106. Art. I-11 Fundamental principles: for the limits, conferral; for the use, subsidiarity and proportionality. Art. I-12 Exclusive competence, what it means. Shared competence, what it means. So-called supplemental competence (I-12.5). Cross-reference to the entire Part III (various areas or policies ). Art. I-13 Areas of exclusive competence (customs, competitition rules, monetary policy, conservation of marine resources, commercial policy, int.l agreements which affect the other competences. Art. I-14 Areas of shared competence (by subtraction: those not conferred by art. 13 and 17). Principal areas: internal market, social policy, economic-socialterritorial cohesion, agricolture and fisheries, environment, consumer protection, transport, trans-european network, energy, freedom-securitypolice, common safety). Special provision for R&D and space, cooperation and humanitarian aid (not exclusive). Articles TEC What the Union and what the MS are supposed to be legally competent for. For subsidiarity see Protocol 2 The German model applied.

4 4 Art. I-15 Coordination of economic and employment policies. Art. I-16 CFSP: all areas «including the progressive framing of a common defence policy». Duties of MS. Art. I-17 Supporting and complementary action: health, industry, culture, tourism, education, civil protection, administrative cooperation. Title IV Union Institutions and Bodies Chapter I The Institutional Framework Art. I-18 Flexibility clause: the CoM acting unanimously may extend EU competences. Art. I-19 Principles and list of the Union s institutional framework (EP, EC, CoM, Commission, ECJ. Art. I-20 The EP: general functions (along with CoM), total no. (750). Degressively proportional representation, minimum: 6, maximum: 96 (1/16; pop.: 1/170), five years, direct universal suffrage. Art. I-21 The EC. As the impetus provider. No legislative powers. Composition: President, President of the Commission, FA Minister, heads of State or Government of the MS. Consensus. Art. I-22 President of the EC: elected by QMV for 2 and 1/2 years. Functions (chair Relevance and significance of the flexibility clause For the institutions, see, in general Protocol 34 with the transitional provisions

5 5 the EC, external representation of the Union, any national office incompatible. Art. I-23 CoM: general functions (along with EP), one per MS, a minister, QMV but when differently provided for by the Constitution. Note that the President is not incompatible with other EU offices. Therefore it could cumulate the offices of EC and Commission President, one day Art. I-24 Different configurations of the CoM, decided by the EC by QMV. Plus: GA Council and FA Council. CoPeRe. Publicity (when it examines draft legislation). Rotation of presidencies (see Protocol). Art. I- 25 QMV: 55% of members (but at least 15) and representing no less than 65% population of the EU. Bloking minority: over 35% (but at least 4). The 55% becomes 72% (and 65% pop. Always) «when the CoM is not acting on a proposal from the Commissione or from the Union Minister for FA». This rules can be applied to the EC if needed; the two Presidents do not vote. Art. I-26 The Commission: functions, exclusive power of legislative initiative, 5 years term. Composition: 2009/2014, 1 per MS, then 2/3 of MS (unless the EC decides differently unanimously), equal rotation, criteria for rotatio. Independence. Responsability towar the EP. Censure or no-confidence motion. Art. I-27 The President of the Commission: proposed by the EC to the EP «taking into account the election of the EP and after having held appropriate consultations». If not elected by the EP, new candidacy by the EC. List of other members (President, EC, EP, EC). Functions of the President.

6 6 Art. I- 28 Union Minister for FA. Appointment (EC/President of the Commission). Functions. He chairs the FA Council, he s VP of the Commission. Art. I- 29 ECJ: general functions. One member from each MS. Specific functions (I- 29.3). Cross-references to Part. III: art. III-353/381. Title IV Union Institutions and Bodies Art. I-30 European Central Bank Art. I- 31 For the ECJ see Protocol 3 For the ECB, see Protocol 4

7 Chapter II Other Institutions and Advisory Bodies Title V Exercise of Union Competence Chapter I Common Provisions Court of Auditors 7 Art. I- 32 Union s advisory bodies: CoR, ESC. Cross-reference to artt. III-386/392. Art. I-33 List of Union s legal instruments and their definition: European law European framework law European regulation European decision Recommendations and opinions In each area a relevant specific legislative procedure which says what kind of act can be used. Art. I-34 The procedure for the adoption of laws and framework laws. Cross-reference to art. III-396. Exceptions «in the specific cases provided for in the Constitution» (=different procedure: simple participation of EP or Council, initiative not by the Commission). Art. III-396 accurately describes the legislative procedure for the adoption on laws and framework laws Art. I-35 The procedure for non-legislative acts. Art. I-36 European laws and framework law may delegate to the Commissione the power to adopt delegated European regulations Art. I-37 The implementation of Union acts is up to the MS. If this implementation must be uniform, then implementing powers may be conferred (a) to the Commission or in specific areas (for instance CFSP) to the Council (b): see

8 art. I Title V Exercise of Union Competence Chapter II Specific Provisions Title V Exercise of Union Competence Art. I-38 When the Constitution says nothing the institutions shall select the type of act in compliance to the principle of proportionality; legal acts must contain the reasons on which each of them is bases. Art. I-39 Publication and entry into force; general term: 20 days after publication. Art. I-40 Specific provisions relating to the CFSP: general dispositions to be read with cross-reference to part III, title V, ch. I and II (articles III-292/308) Art. I-41 Specific provisions relating to the CFSP: general dispositions to be read with cross-reference to part III, title V, ch. I and II (articles III ) Art. I-42 Specific provisions relating to the area of FSJ: general dispositions to be read with cross-reference to part III, title III, ch. IV (articles III ) Art. I-43 Solidarity clause. Cross-reference to art «The Union shall mobilise all the instruments at its disposal, including military resources made available by MS» against terrorism and in case of attack, in case of natural or manmade disaster. Art. I-44 How the enhanced cooperation should work. Crosso refernce to Articles III- 416/423. Enhanced cooperation as last resort. Specific procedure (art. III- 419). Specific majorities (see I-44.3). See specifically: III-416/423. CFSP CDP FSJ Solidarity clause.

9 Chapter III Enhanced Cooperation Title VI The Democratic Life of the Union 9 Art. I-45 Principle of equality of all citizens of the Union. Art. I-46 The EU shall be founded on representative democracy as functioning principle. EP. Citizens participation. Political parties: they «contribute to forming European political awareness and to expressing the will of citizens of the Union». Art. I-47 How participatory democracy is envisaged. Par. 4: popular initiative (one million citizens from a significant numerber of MS). An European law shall determine the procedure and the details. Art. I-48 Involvement of so-called social partners. Art. I-49 Institution of a completely independent European Ombudsman who shall receive, examine and report on complaints about maladministration by Union institutions, bodies, offices and agencies. See also II-103. See also III-335. Art. I-50 Transparency, publicity, right of access to documents (determined by European law). Art. I-51 Right to the protection of personal data and measures to ensure it. Se also

10 art. II Art. I-52 The Union will not affect the status under national law of churches and religious associations (see so-called concordats in Italy, Poland or Spain). The same applies to «philosophical and non-confessional organisations». Title VII The Union s Finances Art. I-53 Budgetary and financial principles. Art. I-54 The Union shall provide itself with the means necessary to attain its objectives It shall take a European law: Council unanimously after consulting the EP; approval by the MS. Title VIII The Union and its neighbours Art. I-55 Multiannual financial framework. Art. I-56 Annual budget approved by law (cross reference to art. III-404) Art. I-57 Special relationships with neighbouring countries. Neighbouring countries Title IX Union Membership Art. I-58 The Union open to all European States which respect its same values. Procedure (application to Council, notification to EP and NPs, Council acting unanimously after consultation with Commision + consent by EP acting by simple majority, following agreement with each MS, subject to

11 ratification by each MS). 11 Part Two Preamble Part Two Title I Art. I-59 What happens in case of a «clear risk of a serious breach by a MS of the values referred to in Article I-2». Council by 4/5 + consent of the EP. Suspension of certain rights as sanction. Special majorities specified. Art. I-60 What happens if a MS wants to and decides to withdraw from the EU. A special agreement negotiated according to Art. III (discipline of int.l agreements). The Constitution ceases to apply to that State after agreement entrer into force or within 2 years. To rejoin, the same procedure as for joining for the first time (art. I-58). Part Two - The Charter of Fundamental rights of the Union Oddly enough the Second part of the Constitutions begin with a second preamble, due to the fact that it simply includes the Charteer of Fundamental Rights of the Union as adopted in Nice and thereafter, but with no legal force. The principles and values reported in this preamble are in part the same and in part very similar to those included in the preamble of the entire text (see above). Therefore it is somehow repetitious. Some slightly different tones and variations: (i) underlining of the individual (at the hearto of the Union s activities); (ii) reference to the need to strenghten the protection of f.r. «in the light of changes in society, social progress and scientific and technological developments» (therefore space for the rights of the thir and fourth generation of f.r.); (iii) the reference to the Praesidium of the old Convention as concurring authority on interpretation of the Charter. Art. II-61. Inviolability of human dignity Art. II-62. Right to life = no death penalty within the EU. Very unusual second and distinct preamble, within the text of the Constitution

12 Dignity 12 Art. II-63. Right to integrity of the person (no reproductive cloning among other specifications) Part Two Title II Freedoms Art. II- 64. Specific prohibition of torture and degrading treatment Art. II-65. Prohibition of slavery and compulsory work. Art. II-66. Right to liberty and security Art. II-67. Respect for private life Art. II-68. Protection of personal data (se also art. I-51) Art. II-69. Rigth to marry and to found a familly Art. II-70. Freedom of thought, conscienze, religion. Art. II-71. Freedom of expression, of information, of the media Art. II-72. Freedom of assembly and association. Political parties (art. II compare with Art. I-I-46.4) Art. II-73. Freedom of arts and sciences; academic freedom. Art. II-74. Right to education; freedom to found educational etsablishements Art. II-75. Freedom to choose an occupation, right to work. Equality of working conditions regardless of nationality. Art. II-76. Freedom of business How should repetitions be evaluated? In particular, how shall be evaluated the differences in language where the same right has been already afirmed somewhere elese in the Constitution? Note the formula: «in accordance with the national laws governing the exercise of these rights» (articles II-69, 70, 74, 76)

13 Art. II-77. Right to property 13 Art. II-78. Right to asylum; cross-reference to the geneva Convention of and to the Protocol of For asylum, see also Protocol 22 Art. II-79. Prohibition of collective expulsion (= regardless of individual responsability). No removal, expulsion, extradition to a State where the death penalty might be applied. Part Two Title III Equality Art. II-80. Equality before the law Art. II-81. Prohibitions of all forms of discriminations based on a large list of grounds, included nationality. Art. II-82. Respect for cultural, religious, linguistic diversity Art. II-83. Equality between women and men (employment included). Measures providing for specific advantages in favour of the underrespresented sex are non prevented. Art. II-84. Rights of the child included the right to express his/her views freely in a way that they shall be taken into consideration. Particularly well specificied (in relation to specific advantages for the underepresented sex (quotas). Art. II-85. Rights of the elderly Art. II-86. Rights of persons with disabilities

14 Part Two Title IV Solidarity 14 Art. II-87. Worker s right to information Art. II-88. Right of collective bargaining Art. II-89. Right to acced to a free placement service Art. II-90. Right to protection against unjustified dismissal Art. II-91. Fair and just working condirions Art. II-92. Prohibition of child labour Art. II-93. Rights of the family. No one can be dismissed for a reason connected with maternity Art. II-94. The Union recognizes the entitlemento to social security benefits in accordance with th rules laid down by Union and national law. Art. II-95. Health care Art. II-96. The Union recognizes access to services of general economic interets as provided in national laws and in accordance to the Constitution (in order to promote social and territorial cohesion). Art. II-97. Protection of the enivornment and improvement of its quality Art. II-98. Union policies shall ensure a high level of consumer protection

15 Part Two Title V Citizens rights Part Two Title VI Justice 15 Art. II-99. Right to vote and to stand as a candidate (for the EP). Art. II-100. Right to vote and to stand as a candidate (for the municipal el.). Art. II-101. Right to good administration Art. II-102. Right to access to docuemnts Art. II-103. European Ombdusman (see also I-49 and III-335). Art. II-104. Right to petition Art. II-105. Freedom of movement and of residenxe Art. II-106. Diplomatic and consular protection Art. II-107. Right to an effective remedy and to a fair trial Art. II-108. Presumption of innocence, right to defence Art. II Principle of legality, proportionality of criminal offences and penalties Art. II-110. Right no to be tried or punished twice for the same crime For all these see also art. I- 10.

16 Part Two Title VII General provisions on interpretation and application of the Charter 16 Art. II-111. Field of application of the Charter: UE institutions, bodies, offices, agencies; to MS only when they are implementing EU Law Art. II-112. Scope and interpretation of the rights and of the principles laid down in the Charter. Art. II-113. Nothing in the Charter may be interpreted as restricting human rights and fundamental freedoms as recognize by EU law, by int.l law, by int.l agreements. Part Three Title I Provisions of general application Art. II-114. No abuse of rights. Part Three The Policies and the Functioning of the Union Art. III-115. The Union must ensure consistency beteen various policies Art. III-116. Aim to eliminate inequalities and promote women/men equality Art. III-117. Employment, social protection Art. III-118. Aim to combat discrimination base on sex, racial and ethnic origin, religion, disability, age, sexual orientation within the policies included in Part III Art. III-119. Environmental protection requirements in all policies Art. III-120. Consumer protection requirements in all policies Art. III-121. Animal welfare Art. III-122. Service of general economic interest must fulfil their missions Note: in Part Three single articles have no heading. Only Titles do. Note in relation to Title I: most of the articles within this title contain a second or third repetition of principles and/or objectives already laid down in the previous Parts I and II : here they appear in a more por-active form (as it is the part devote to specific policies) in practice they transform in specific directives to the EU and MS legislator the principles and the rights recognized in parts I and II.

17 Part Three Title II Non-discrimination and citizenship 17 Art. III-123. Discrimination on the ground of nationality must be forbidden by EU laws and regulations Art. III-124. Other measure to combat discrimination base on sex, racial and ethnic origin, religion, disability, age, sexual orientation Art. III-125. Action allowe to grant freedom of movement Art. III-126. Action allowed (through EU law and regulation) to grant the right to vote and to stand as candidate Art. III-127. MS shall adopt provisions to secure diplomatic and consular protection Art. III-128. Use of languages. Cross-reference to art. IV Art. III-129. The Commission must submit a report to the EP on the application of art. I-10 and this entire title: on the basis of this report a EU law or framework law may be unanimously adopted by the Council after consent by the EP to add more rights to I-10 (in force after apporved by MS). (Part Three Titles III, IV, V not included in this synthesis]

18 Part Three Title VI The functioning of the Union Provisions governing the institutions 18 Art. III-330. European law on the election of the EP Art. III-331. European laws on political parties. Cross-reference to art. I Art. III-332. Right of the EP to submit proposals on matters on which it believe an European act would be needed (to the Commission). Art. III-333. Right of inquiry of the EP. Art. III-334. Citizen s right to address a petitition to the EP Art. III-335. Provisions concerning the European Ombudsman (see also I- 49 and II-103). Art. III-336. Annual session of the EP (second Tuesday of March). Art. III-337. European Council, Council, Commission in EP Art. III-338. «Save as otherwise provided» the EP acts by a majority of votes cast. Quorum determined by its Rules of Procedure. Art. III-339. EP es of procedure by a majority of its members. Art. III-340. Motion of censure against the Commission Art. III-341. Provisions concerning the European Council Art. III-342/346. Provisions concerning the Council of Ministers Art. III-347/352. Provisions concerning the Commission

19 19 Art. III-353/381. Provisions concerning the Court of Justice of the EU. Reference to a Protocol containing the Statute of the ECJ (art. III-381). Art. III-382/383. Provisions concerning the European Central Bank Art. III-384/385. Provisions concerning the Court of Auditors Art. III-386/388. Provisions concerning the Committee of the Regions Art. III-389/392. Provisions concerning the Economic and Social Committee Art. III-393/394. Provisions concerning the European Investment Bank Art. III-395/401. Common provisions concerning the decision making process for (a) Council deliberations (395); (b) European laws and framework laws (396); (c) interinstitutional agreements (397); (d) independence of the administration (398); (e) transparency and publicity (399); (f) European regulations (400); (g) enforcement of pecuniary obligations (401). Part Three Title VI The functioning of the Union Financial provisions Art. III-402/415. Multiannual financial framework (402). Union s annual budget ( ). Implementation of the budget and discharge ( ). Common provisions ( ). Combating fraud (415).

20 Part Three Title VI The functioning of the Union Enhanced cooperation Part Three Title VII Common Provisions 20 Art. III-416/423. See cross-reference to art. I-43 Art. III-424/436 Part Four General and Final Provisions Art. IV-437. Repeal of earlier Treaties Art. IV-438. The EU established by this Treaty is the successor of the EU established by the TEU and the TEC. Art. IV-439. Reference to a specific Protocol on transitional provisions relating to certain institutions (EP, European Council, Council). It is Protocol no. 34. Art. IV-440. Scope of the Treaty Art. IV-441. Survival of Regional Unions (BENELUX). Art. IV-442. «The Protocols and the Annexes to this Treaty shall form an integral part thereof». Art. IV-443. Ordinary Revision procedure. Art. IV-444. Simplified Revision procedure: where Part III provides for the Council to act unanimously the European Council may decide that

21 21 authorises the Council to act by a QMV in that area or in that case. The same to transform special legislative procedures in ordinary legislative procedures. Duty to notify NPs. Art. IV-445. Simplified revision procedure concerning internal policies Art. IV-446. This Treaty is concluded for an unlimited period Art. IV-447. Ratification and entry into force ( ) unless Art. IV-448. Authentic texts: 20 languages. Authorisation to have it translated «into any other languages as determined by MS among those which enjoy official status in all or part of thier territory».