The European Constitution

The European Constitution

The European Constitution Cases and Materials in EU and Member States Law Giuliano Amato Vice-President of the European Convention 2002 2003, Professor, European University Institute, former Prime Minister of Italy Jacques Ziller Professor at the European University Institute, Italy, formerly at Université de Paris I Panthéon-Sorbonne, France With the collaboration of Rebeca Lizasoain Brandys, Research Assistant, European University Institute Edward Elgar Cheltenham, UK Northampton, MA, USA

Giuliano Amato and Jacques Ziller 2007 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited Glensanda House Montpellier Parade Cheltenham Glos GL50 1UA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Cataloguing in Publication Data Amato, Giuliano. The European Constitution : cases and materials in EU & member states law / Giuliano Amato, Jacques Ziller. p. cm. Includes bibliographical references and index. 1. Constitutional law European Union countries. 2. European Union countries Politics and government. I. Ziller, Jacques. II. Title. KJE4445.A45 2007 342.24 dc22 2007000156 ISBN 978 1 84720 129 4 (cased) Typeset by Cambrian Typesetters, Camberley, Surrey Printed and bound in Great Britain by MPG Books Ltd, Bodmin, Cornwall

Contents List of abbreviations Foreword Acknowledgements vi vii ix 1 The ratification of the Treaty of Rome of 29 October 2004 establishing a constitution for Europe 1 2 Referendums in the ratification process: constitutional bases, results, consequences 43 3 Innovations in the constitution for Europe 68 4 Primacy of EU law 89 5 The EU Charter of Fundamental Rights 114 6 Competences, legal bases and instruments in the constitution for Europe 146 7 The role of national parliaments and the principles of subsidiarity and proportionality 189 8 The area of freedom, security and justice 220 9 Developments under the Common Foreign and Security and Defence Policies 257 Index 307 v

Abbreviations CFSP CoR COSAC CT EC ECB ECHR ECJ EU EUI IGC SEA TEC TEU UK UN Common Foreign and Security Policy Committee of the Regions Conference of the Community and European Affairs Committees of EU Member States Constitutional Treaty, that is, treaty establishing a constitution for Europe European Community European Central Bank European Convention of Human Rights European Court of Justice European Union European University Institute Intergovernmental Conference Single European Act Treaty establishing the European Community Treaty on the European Union United Kingdom United Nations vi

Foreword At the meeting of the European Council on 16 17 June 2005, two weeks after the negative referendums on the Treaty establishing a Constitution for Europe, the Heads of State and Government agreed upon a period of reflection to enable a broad debate to take place in each of our countries, involving citizens, civil society, social partners, national parliaments and political parties. While some declared the Constitutional Treaty dead and others carried on with the processes leading to its ratification, the academic debate continued. As a modest contribution to this academic debate, we held a seminar on the ratification of the Constitution for Europe at the European University Institute in Florence from January to March 2005. Edward Elgar Publishing showed interest in publishing the materials we used in the framework of this seminar to prompt discussion with post-graduate students and post-doctoral fellows in law and political science. The present book offers a selection of these materials, including excerpts of the European Convention s work; selected statutory and constitutional provisions of the Member States; related passages from pertinent court decisions from both European courts as well as Member States constitutional courts; institutional and doctrinal analyses; and relevant excerpts from the Constitutional Treaty itself. Many of these documents directly relate to the provisions of the Constitutional Treaty, while the others, although not directly related, are nevertheless relevant to the debate surrounding it. These documents should help the reader to better understand some of the most important changes that would be introduced by the Constitutional Treaty in the EU legal and political system. They might also help to assess the need for the reforms embedded in the Constitutional Treaty as well as the quality of the formulations agreed upon at the European Council of 18 June 2004, which resulted in the Treaty signed in Rome on 29 October of the same year. The book is divided into nine chapters. Chapters 1 and 2 are designed to have a broad overview of the ratification process as a whole and especially of the referendums which took place in four Member States in 2005. They are not meant only as documents on contemporary history but as a contribution to the reflections of lawyers, political scientists, politicians and practitioners on the procedures to be adopted for future amendment of EU treaties. Chapter 3 presents a general but not exhaustive overview of the numerous innovations introduced by the Constitutional Treaty, from mere codification to institutional vii

viii The European Constitution reforms. This should also be useful for the reflection on the future of the European Union, both from the perspective of the possible entry into force of the Constitutional Treaty (either in its form as of 2004 or in an amended version) and from the perspective of a prolonged pause in constitutional reform at EU level. Chapters 4 to 9 explore in more depth several dimensions of these innovations: the wording of essential EU law principles such as the principle of primacy (Chapter 4), the transformation into a legally binding instrument of the Nice Charter of Fundamental Rights (Chapter 5), the streamlining of EU competences, instruments and legal bases (Chapter 6) and a specific aspect of the institutional changes which have an impact at both EU and Member State level, namely, the role of national parliaments. The two final chapters are devoted to the two policy areas where the constitution for Europe would introduce the biggest changes as compared to the present situation, that is, in the area of freedom, security and justice (the so-called third pillar of the EU see Chapter 8) and, last but not least, in the field of the common foreign, security and defence policies (Chapter 9). We have tried to present a wide variety of documents, including translations of documents which do not exist in the English language, so as to give the readers as much information as possible in order for them to make up their minds in an independent way. We also avoided cutting the documents down too much, and we have kept our introductory comments to a very short introduction, in order to allow for discussion by those who will use this book as a teaching instrument to each chapter. We hope and expect that the discussions generated by these documents will be intense and fruitful. Giuliano Amato and Jacques Ziller July 2006

Acknowledgements We would like to thank Rebeca Lizasoain Brandys, who helped us to collect and present the materials for our seminar and who assisted us in the preparation of this book, and Mel Marquis, who handled the English language revisions of our introductions to each chapter and of the Foreword. We would also like to thank the EUI researchers who translated those documents which were not available in the English language: 1 Luke Mason, 2 Tobias McKenney 3 and Thomas Roberts. 4 Notes 1. Translations made under our responsibility are signalled by the indication [translation] in the title of the Document. 2. Documents 2.2, 2.14 and 8.11. 3. Documents 2.9, 2.10, 3.3 and 4.4. 4. Documents 1.10, 1.11, 2.5, 2.12, 4.6, 4.9, 7.9, 8.8, 8.9, 8.10 and 9.2. ix

1. The ratification of the Treaty of Rome of 29 October 2004 establishing a constitution for Europe Document summary 1.1 Article 48, Treaty on European Union 1.2 Article IV-447, Treaty Establishing a Constitution for Europe 1.3 Declaration no. 30 on the ratification of the Treaty establishing a Constitution for Europe, annexed to the Treaty Establishing a Constitution for Europe 1.4 European Commission, Summary Table Procedures planned for the Ratification of the European Constitution 1.5 Declaration by the Heads of State or Government of the Member States of The European Union on The Ratification of the Treaty Establishing a Constitution For Europe (European Council, 16 and 17 June 2005) 1.6 Article 18, Vienna Convention on the Law of Treaties of 22 May 1969 1.7 European Parliament, Committee on Constitutional Affairs, Report on the Period of Reflection: the Structure, Subjects and Context for an Assessment of the Debate of the European Union, A6-9999/2005, 16 December 2005 (selected extracts) 1.8 Committee of the Regions, Opinion on the Period of Reflection: the Structure, Subjects and Context for an Assessment of the Debate of the European Union, Const-032, 21 October 2005 (selected extracts) 1.9 German Federal Government, Angela Merkel s Government Policy Statement, 30 November 2005 (selected extracts) 1.10 French Socialist Party, Le Mans Conference 18 to 20 November 2005 Final Motion Winning From the Left With the Socialists (selected extracts) [translation] 1.11 Jacques Ziller, The Constitution for Europe, let s talk about it!, in Revue du Marché Commun et de l Union européenne, no. 426, March 2006, pp. 1 6 (selected extracts) [translation] 1.12 Bruno De Witte, How Might the EU s Constitutional Arrangements be Settled? Escape Routes from the Constitution Trap and their Legal Feasibility, unpublished conference paper, 1 February 2006 1

2 The European Constitution 1.13 Brussels European Council, 15 and16 June 2006, Presidency Conclusions (selected extracts) Introduction Article IV-447 of the Constitutional Treaty (CT) [Document 1.2] establishes the rules for the Treaty s ratification and entry into force: ratification according to the requirements of the Member States constitutions, and the necessity of a unanimous ratification for the entry into force of the Treaty. Article IV-447 thus applies the same rules as Article 48 of the Treaty on European Union [Document 1.1], and this is indispensable owing to the fact that the Constitutional Treaty was written in such a way that it replaces both the Treaty establishing the European Community (TEC) and the Treaty on European Union (TEU). This was a logical consequence of the decision to merge the European Union s three pillars (that is, the European Community, the Common Foreign and Security Policy and Justice and Home Affairs) and to give the EU a single legal personality, which was accepted by the European Convention in October 2002 and endorsed by the intergovernmental conference (IGC) which followed, when the IGC decided in October 2003 to negotiate on the basis of the draft Treaty establishing a Constitution for Europe as it had been prepared by the Convention. At the time the work of the European Convention was concluded, in the spring of 2003, a number of precedents were known which already demonstrated that problems could arise and impede the entry into force of a Treaty agreed upon by unanimous governments. A case in point concerned the Single European Act (SEA), which was agreed at the Luxembourg summit of December 1985. The Council of Ministers set 17 February as the date of signature. However, only Belgium, France, Germany, Ireland, Luxembourg, The Netherlands, Portugal, Spain and the United Kingdom signed the Treaty in Luxembourg on that date. The draft SEA was submitted on 21 January 1986 to the Danish Parliament, which rejected it by 80 votes to 75. The Danish government then called a national referendum, which yielded a 56.2 per cent majority in favour of the Treaty on 27 February 1986. The next day, Italy, Greece and Denmark signed the SEA in The Hague. The date of the entry into force of the SEA was specified as 1 January 1987 by its own final provisions. This was an innovation, as in the past a specific deadline had only been set for treaties providing for the accession of new Member States to the European Communities. However, the SEA s entry into force was delayed until 1 July 1987 owing to the unforeseen application of Mr Crotty to the Irish Supreme Court. 1 According to the court, the Act could not be ratified by Ireland

The ratification of the Treaty of Rome 3 without a constitutional amendment; such an amendment, in turn, required a referendum, which was held on 27 May 1987, with a significant majority voting in favour of ratification. By its own terms, the Treaty of Maastricht signed on 7 February 1992 was scheduled to enter into force on 1 January 1993. However, the effective date of this Treaty too was delayed, this time until 1 November 1993, owing to two unforeseen events. In Denmark, an initial referendum on 2 June 1992 had a negative outcome, and the Danish government decided to organise a second referendum after the adoption of a series of palliative documents by the European Council of Edinburgh in December 1992. The referendum in France in September 1992 yielded a positive result, but only by a razor-thin majority. 2 Furthermore, Mr Brünner, a member of the German Bundestag, made an application to Germany s Federal Constitutional Court in order to prevent the ratification of the Maastricht Treaty by Germany, and the court did not issue its ruling (which opened the way to ratification) until 12 October 1993. 3 The relevant clauses in the SEA and the Treaty of Maastricht contained a provision similar to the last part of Article IV-447.2 CT, which postponed the entry into force of those treaties until the first day of the second month following the deposit of the instrument of ratification by the last signatory State. Drawing the lesson from these events, the drafters of the Treaty of Amsterdam did not set a specific date for its entry into force: its Article 14.2 only provided that This Treaty shall enter into force on the first day of the second month following that in which the instrument of ratification is deposited by the last signatory State to fulfil that formality. The Treaty of Amsterdam was signed on 2 October 1997, and the ratification process encountered no specific problem. But the Treaty could not enter into force until 1 May 1999, as the high number of parliamentary authorisations required in Belgium (see below) following that country s constitutional reform of 1993 created quite a long delay. The Treaty of Nice, which was signed on 26 February 2001, reproduced in its Article 12 the same text contained in Article 14 of the Treaty of Amsterdam. Once again, as with the Treaty of Maastricht, a negative referendum this time in Ireland on 21 June 2001 delayed the Treaty s entry into force: it was only after a second referendum, on 28 November 2002, that Ireland could ratify the Treaty of Nice on 18 December 2002, allowing it to take effect on 1 March 2003, when the European Convention was already drafting the provisions of the draft Constitutional Treaty. A few weeks later, the Treaty of Accession of ten new Member States was signed in Athens on 16 April 2003 and the process of ratification began with the prospect of a series of rather uncertain referendums in the Central and Eastern European candidate countries.

4 The European Constitution Doubts about a smooth referendum process, parliamentary votes and possibly judicial review thus explain the wording of Article IV-447 CT [Document 1.2] and the corresponding Declaration (or rendez-vous clause ) of the IGC [Document 1.3]. Unlike the corresponding provisions of the SEA and the Treaty of Maastricht, the setting of a deadline corresponded not to naïve optimism but, on the contrary, to a cautious diffidence. By the time the Heads of States and Governments agreed upon the Constitutional Treaty during the European Council of 18 June 2004, British Prime Minister Tony Blair had already announced that a referendum would be held in the United Kingdom. Opinion polls, however, indicated strong support for the Treaty in all the other old Member States, starting with France and The Netherlands. The ratification process was launched in the new Member States in the autumn of 2004, at a time when doubts were surfacing with respect to the outcome of the French referendum. The forebodings of some proved to be prophetic when, on 29 May 2005, a majority of French voters rejected ratification of the Constitutional Treaty, followed on 1 June by a majority of Dutch voters [Document 1.4]. 4 Six days later, the British government decided to postpone the referendum it had started preparing. 5 At its meeting in Brussels on 16 and 17 June 2005, the European Council agreed that a period of reflection was necessary [Document 1.5]. This has often been referred to as a pause for reflection, as the European Council agreed that those governments electing to change their ratification calendar in light of the French and Dutch votes could do so. Yet there was no pause in the ratification process. At the time of the June 2005 European Council, ten Member States had completed the process allowing for ratification either by a vote of parliament only or by both a referendum and a parliamentary vote. A year later, five other Member States had done so [Document 1.4]. However, in a strict legal sense, it is wrong to say that 15 Member States had ratified the text by June 2006, as was stated in the Conclusions of the Austrian Presidency [Document 1.13]. In fact, by that time only 12 Member States had deposited their instruments of ratification of the Constitutional Treaty. Romania and Bulgaria could be added to these 12, as they formally signed on 25 April 2005 a Treaty of Accession to the Constitutional Treaty which however contained a clause providing that these countries would accede instead to the TEC and the TEU if the CT had not entered into force at the moment of their accession. Meanwhile, three of the 15 Member States which were purported to have ratified the Constitutional Treaty [Document 1.4] had not done so: the Heads of State of Belgium, Germany and Slovakia each had to wait for a decision of their respective Constitutional Courts or, in the case of Belgium, for the lapse of the deadline for a possible application for judicial review. In Finland, the ratification process was under way, and the competent standing committee of the

The ratification of the Treaty of Rome 5 Parliament had already endorsed the Treaty. In the remaining nine countries, the procedure had been slowed down or even halted. From a legal point of view, the attitudes of these nine Member States, as well as those of France and The Netherlands, must be seen in light of their obligations under Article 18 of the Vienna Convention on the Law of Treaties [Document 1.6]: the Declaration of the European Council of June 2005 [Document 1.5] is a recognition of the validity of a pause in the ratification process for those Member States which were so inclined. The Conclusions of the Presidency of the European Council of June 2006 [Document 1.13] extend this permission until June 2008 at the latest. Both documents demonstrate that the Constitutional Treaty, far from being dead, has the validity of a multilateral treaty which has been signed but has not yet entered into force. It may thus be used as an instrument of interpretation, and indeed it may be regarded as the formulation of an agreement on the wording of those clauses which are to be considered as a codification of existing law. 6 As pointed out above, therefore, the pause for reflection is not a pause in the ratification process. But in this regard another question arises. Is there any reflection in the Member States and EU institutions, as called for in both documents of the European Council? There has indeed been reflection in those Member States which had not yet completed their process of authorisation for ratification in June 2005 but have done so since then. This is demonstrated by the referendum in Luxembourg and by the number of parliamentary debates, with a record of seven parliamentary debates in Belgium, thanks to the federal structure of the kingdom and to the significant competences assigned to the regions and to the (language-based) communities in external relations [Document 1.4]. Some reflection has also taken place in the EU institutions and organs: the European Parliament [Document 1.7] has been the place where debate never ceased, while the Committee of the Regions [Document 1.8] also had its share in the reflection, as compared to the quite limited amount of debate in a number of Member States, especially in France and The Netherlands, where silence has been the clearest answer to the referendums. From November 2005 onwards, the German government [Document 1.9] has been the flagship of those in favour of trying to ratify the Constitutional Treaty, while the French Socialist Party clearly preferred a new, renegotiated treaty without saying to what extent such a new text should differ from the existing one [Document 1.10]. The scholarly literature envisages several different scenarios at EU and at national level [Documents 1.11 and 1.12], which are all compatible with the positions expressed at the European Council of June 2006 [Document 1.13]: the pause of reflection could continue as a wait and see period, as happened from June 2005 to June 2006. Alternatively it could also develop into a

6 The European Constitution genuine period of discussion, in academia as well as in the political arena, which could lead to a resolute conclusion about the future of the CT. 7 Document 1.1: Treaty on European Union, Article 48 (ex Article N) The government of any Member State or the Commission may submit to the Council proposals for the amendment of the Treaties on which the Union is founded. 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 those Treaties. 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. Document 1.2: Treaty Establishing a Constitution for Europe, Article IV-447 Ratification and entry into force 1. This 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. This Treaty shall enter into force on 1 November 2006, provided that all the instruments of ratification have been deposited, or, failing that, on the first day of the second month following the deposit of the instrument of ratification by the last signatory State to take this step. Document 1.3: Declaration no. 30 on the ratification of the Treaty establishing a Constitution for Europe, Treaty Establishing a Constitution for Europe, annexed to the Treaty Establishing a Constitution for Europe The Conference notes that if, two years after the signature of the Treaty establishing a Constitution for Europe, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter will be referred to the European Council. Document 1.4: European Commission, Summary Table Procedures planned for the Ratification of the European Constitution, Updated: 10 May 2006 available at www.europa.eu/constitution/ ratification_en.htm Summary table Procedures planned for the ratification of the European Constitution. Some of the information in this table is subject to change. In particular, certain Member States might decide to hold a referendum.

The ratification of the Treaty of Rome 7 Table 1.1 Procedures planned for the ratification of the EC Member state Procedure Date scheduled Previous European referendums Austria Parliamentary Approval by the 1994: accession (Nationalrat and Nationalrat 11 May Bundesrat) 2005 Approval by Bundesrat 25 May 2005 Belgium Parliamentary Approval by the No (Chamber and Senate: 28 April Senate and 2005 Assemblies of Approval by the Communities and Chamber: 19 May Regions) 2005 Indicative Approval by the referendum Brussels regional ruled out parliament: 17 June 2005 Approval by the German Community Parliament of Belgium: 20 June 2005 Approval by the Walloon regional Parliament: 29 June 2005 Approval by the French Community Parliament: 19 July 2005 Approval by the Flemish regional Parliament: 8 February 2006. Cyprus Parliamentary Approval by the No House: 30 June 2005 Czech Republic Referendum. Referendum 2003: accession But no final postponed to end decision so far of 2006 beginning of 2007 Denmark Referendum Referendum 1972: accession postponed (no new date has been set) 1986: Single European Act 1992: Maastricht Treaty (twice)

8 The European Constitution Table 1.1 continued Member state Procedure Date scheduled Previous European referendums 1998: Amsterdam Treaty 2000: euro Estonia Parliamentary Approval by 2003: accession Parliament: 9 May 2006 Finland Parliamentary Presentation by Consultative the Government referendum: of a report to the 1994: accession parliament: 25 November 2005 Ratification expected during the presidency of the Council in the second half of 2006 France Referendum Referendum 1972: enlargement 29 May 2005 EEC 1992: negative Maastricht Treaty (No: 54.68%; turnout: 69.34%) Germany Parliamentary Approval by No (Bundestag and Bundestag: Bundesrat) 12 May 2005 Adoption by Bundesrat: 27 May 2005 Greece Parliamentary Approval by No but the Left Parliament: parties submitted 19 April 2005 a joint proposal for a referendum Hungary Parliamentary Approval by 2003: accession Parliament: 20 December 2004 Ireland Parliamentary and Referendum 1972: accession Referendum postponed (no date 1987: Single has been set) European Act A White paper was 1992: Maastricht presented to the Treaty Parliament on 1998: Amsterdam 13 October 2005 Treaty 2001 and 2002: Nice Treaty

The ratification of the Treaty of Rome 9 Member state Procedure Date scheduled Previous European referendums Italy Parliamentary Approval by the Consultative (Chamber and Chamber on referendum Senate) 25 January 2005 1989: possible and by the Senate draft Constitution on 6 April Latvia Parliamentary Approval by the 2003: accession chamber on 2 June 2005 Lithuania Parliamentary Approval by 2003: accession Parliament: 11 November 2004 Luxembourg Parliamentary Approval by the No (two votes) and Chamber (first consultative reading) 28 June referendum 2005 Positive Referendum 10 July 2005: 56.52% in favour, 43.48% against Final approval by the Chamber 25 October 2005 (57 votes in favour, 1 against) Malta Parliamentary Approval by 2003: accession Parliament: 6 July 2005 Netherlands Parliamentary Referendum 1 June No (First and second 2005 negative Chambers) and (No: 61.6%, consultative turnout: 62.8%) referendum Poland No decision so far The Parliament 2003: accession failed on 5 July 2005 to vote on the ratification procedure Ratification postponed (no date has been set) Portugal Referendum Referendum No postponed (no date has been set) Slovakia Parliamentary Approval by 2003: accession Parliament: 11 May 2005

10 The European Constitution Table 1.1 continued Member state Procedure Date scheduled Previous European referendums Slovenia Parliamentary Approval by 2003: accession Parliament: 1 February 2005 Spain Parliamentary Referendum 20 No (Congress and February 2005: Senate) and 76.7% in favour. consultative Turnout: 42.3% referendum Approval of the Congress on 28 April Approval of the Senate on 18 May 2005 Sweden Parliamentary Ratification Consultative No referendum postponed (no referendums: envisaged at this date has been set) 1994: accession stage 2003: euro United Kingdom Parliamentary Parliamentary 1975: Continued (House of ratification membership of the Commons and process suspended EC House of Lords) and referendum (suspension announced by UK government, 6 June 2005) Document 1.5: Declaration by the Heads of State or Government of the Member States of The European Union on The Ratification of the Treaty Establishing a Constitution For Europe (European Council, 16 and 17 June 2005), Brussels, 18 June 2005 SN 117/05, available on the website of the Council of the European Union at www.consilium.europa.eu We have held a wide-ranging review of the process of ratification of the Treaty establishing a Constitution for Europe. This Treaty is the fruit of a collective process, designed to provide the appropriate response to ensure that an enlarged European Union functions more democratically, more transparently and more effectively. Our European ambition, which has served us so well for over 50 years and which has allowed Europe to unite around the same vision, remains more relevant than ever. It has enabled us to ensure the well-being of citizens, the defence of our values and our interests, and to assume our responsibilities as