Memorandum by Professor Anthony Arnull,
University of Birmingham
In this memorandum, provisions of the draft Constitution
are singled out for discussion where they: (a) deal with the relationship
between the draft Constitution and UK domestic law; (b) affect
EU decision-making, particularly the functioning of institutions
in which the UK is directly represented at the political level
(namely the European Council and the Council of Ministers) or
the overall institutional balance in the EU; (c) affect the UK's
freedom of action, especially in areas touching core aspects of
national sovereignty; or (d) affect the role of UK national institutions
in the activities of the EU. The main part of the discussion examines
the following subjects: primacy; division of powers; the European
framework law; infringement proceedings against Member States;
decision-making; the Presidency of the European Council and the
Union Minister for Foreign Affairs; external action and the solidarity
clause; the role of national parliaments; the Charter of Fundamental
Rights and Union accession to the European Convention on Human
Rights; the amendment procedure. There is then a short section
which considers three miscellaneous matters of some constitutional
importance, at least for the United Kingdom. The memorandum concludes
with an attempt to assess the overall importance of the draft
Constitution. The assessment offered is of necessity provisional.
The draft Constitution is a long and complex document and its
full implications are unlikely to be immediately apparent.
1. The Committee has asked me to comment on the
constitutional implications for the United Kingdom of the final
document issued by the Convention on the Future of Europe on 18
The full title of that document is "Draft Treaty Establishing
a Constitution for Europe." Although the word "Constitution"
in that title has understandably attracted more attention, it
is the word "Treaty" which has the greater legal significance.
2. The European Union already has a constitution
comprising the Treaties by which it and its constituent parts,
the European Community and the European Atomic Energy Community
(Euratom), were created.
These set out the Union's aims and objectives and how they are
to be achieved. But as a constitution the Treaties are deficient.
They occupy many pages and have been amended many times. They
are the subject of a large body of case law of the Court of Justice,
some of it constitutional in character. The result is that a lay
reader, if he or she could get through them, would find it almost
impossible to understand their effect.
3. A feeling that this was contributing to a
decline in the Union's legitimacy led the Member States at Nice
to launch a process of reflection on the future of the Union.
One of the issues identified by the Member States as needing to
be addressed during that process was "a simplification of
the Treaties with a view to making them clearer and better understood
without changing their meaning". The process was taken forward
at the European Council meeting in Laeken in December 2001, where,
in a Declaration on the Future of the European Union, the question
was raised whether "simplification and reorganisation [of
the Treaties] might not lead in the long run to the adoption of
a constitutional text in the Union."
4. The Convention on the Future of Europe set
up at Laeken to address this and other questions in detail decided
to produce a simplified and reorganised text called a constitution
which would merge and reorganise the Treaty on European Union
(TEU) and the EC Treaty (though not the Euratom Treaty). However,
although the Convention method had not been used before to prepare
changes to the Treaties,
the final text will as usual have to be agreed by the Member States
in an intergovernmental conference (IGC) and ratified by each
of them in accordance with their own constitutional requirements
before it can enter into force. So the fact that the new Treaty
which eventually emerges might be called a constitution will have
no constitutional significance in itself. It will have the same
legal status as all previous Union Treaties. Its constitutional
significance will depend entirely on what it actually says.
5. It is not possible within the confines of
this memorandum to carry out a comprehensive analysis of all the
provisions of the draft Constitution which might affect the constitution
of the United Kingdom. In what follows, provisions are singled
out for discussion where they:
(a) Deal with the relationship between the draft
Constitution and UK domestic law;
(b) Affect EU decision-making, particularly the functioning
of institutions in which the UK is directly represented at the
political level (namely the European Council and the Council of
Ministers) or the overall institutional balance in the EU;
(c) Affect the UK's freedom of action, especially
in areas touching core aspects of national sovereignty; or
(d) Affect the role of UK national institutions in
the activities of the EU.
6. Article I-10(1) of the draft Constitution
provides: "The Constitution, and law adopted by the Union's
Institutions in exercising competences conferred on it, shall
have primacy over the law of the Member States." That provision
reflects the case law of the Court of Justice on primacy beginning
with Costa v ENEL, decided as long ago as 1964.
The effect of that case law would seem to be preserved by Article
IV-3, according to which "The case-law of the Court of Justice
of the European Communities shall be maintained as a source of
interpretation of Union law."
7. The doctrine of primacy means that, where
there is a conflict in a national court between a national rule
and a European rule, precedence must be accorded to the latter.
It can only apply where the European rule is sufficiently clear
to be suitable for application by a court (a quality known as
direct effect). Article I-10 of the draft Constitution may be
regarded as defective in not making this clear.
More importantly, the existing doctrine of primacy applies only
within the context of the European Community: it does not extend
to Titles V and VI of the TEU, the so-called second and third
pillars, which deal respectively with the Common Foreign and Security
Policy (CFSP) and with Police and Judicial Cooperation in Criminal
Matters. The merger of the EC Treaty and the TEU which the draft
Constitution envisages would abolish the Union's pillar structure,
so the effect of Article I-10(1) would be to make the doctrine
of primacy applicable across the entire range of the Union's activities.
Moreover, while matters falling under Title VI would for the most
part be brought within the scope of the classic powers of the
Court of Justice,
most of the provisions concerning the CFSP will remain outside
the jurisdiction of the Court.
It is therefore unclear whether a national court would be able
to ask the Court of Justice for guidance on the effect of Article
I-10(1) in nearly all cases concerning the CFSP. If national courts
are left to their own devices, there will inevitably be divergence
between Member States. The solution to this problem is either:
(a) to delete the provision excluding the CFSP from the jurisdiction
of the Court, or (b) to exclude the CFSP from Article I-10(1).
In a Union which will include the rule of law among the values
on which it is based,
the former would seem preferable. However, the latter is likely
to prove more politically acceptable.
Division of powers
8. The existing Treaties make it hard to establish
who is responsible for what: they do not make clear which powers
belong to the Union and which powers belong to the Member States.
Among the issues identified at Nice as needing to be addressed
was therefore "how to establish and monitor a more precise
delimitation of powers between the European Union and the Member
States, reflecting the principle of subsidiarity". These
questions are dealt with in Part I, Title III, of the draft Constitution,
especially Articles I-12, I-13 and I-16.
9. Article I-12 lists the areas in which the
Union is to have exclusive competence, in other words, where the
Member States would have no power to act unless empowered to do
so by the Union. The list is remarkably short, comprising only
five areas, all of which were understood by the Convention to
fall within the exclusive competence of the Union at present.
The wording of one - "
to establish the competition
rules necessary for the functioning of the internal market
- is, however, problematic. The Court of Justice accepted, in
a famous case decided in 1969, that "one and the same agreement
may, in principle, be the object of two sets of parallel proceedings,
one before the Community authorities under
the EEC Treaty,
the other before the national authorities under national law."
That interpretation, the Court said, was confirmed by what is
now Article 83(2)(e) EC, which authorises the Council to determine
the relationship between national laws and the Community rules
on competition. Article 83(2)(e) is in substance reproduced in
Article III-52(2)(e) of the draft Constitution. The continued
existence of domestic competition rules also underlies the new
on the implementation of the Treaty competition rules. The reference
to such rules in Article I-12 should therefore be deleted.
Indeed, it is doubtful whether the subject needs to be mentioned
expressly in Title III of Part I since it is an aspect of the
internal market, which Article I-13(2) refers to as an area of
shared competence. However, the drafting of that provision is
not entirely satisfactory, as we shall see.
10. Article I-16 lists five areas in which the
Union may take "supporting, coordinating or complementary
action." Such action would not supersede the competence of
the Member States to act in the areas concerned and must not entail
harmonisation of national laws.
11. Where the draft Constitution gives the Union
a competence which is not covered by Articles I-12 or I-16, it
is to share that competence with the Member States. This means
that both the Union and the Member States will be able to act.
The Member States will normally be able to do so only where the
Union "has not exercised, or has decided to cease exercising,
The main areas in which shared competence applies are listed in
Article I-13(2), though the list is not intended to be exhaustive.
Not surprisingly, the Convention had some difficulty in deciding
which areas of competence should be included.
In some areas (specified in Article I-13(3) and (4)), the exercise
by the Union of its competences will not prevent the Member States
from exercising their own competences.
12. The idea that the competence of the Member
States should be restricted once the Union has acted is well established
in the case law of the Court. However, it might be sensible to
make it clear that, as in areas of exclusive Union competence,
the Member States would not be precluded by Union action from
acting themselves if permitted to do so by Union law. It may be
noted that the Cambridge draft submitted to the Convention
used a different formula to describe the duties of the Member
States when the Union has acted in an area of shared competence,
speaking of the Member States respecting "the obligations
imposed on them by the relevant Union measures". However,
the precise impact on national competence of Union action will
in any event be affected by its legal basis in Part III of the
13. Articles I-14 and I-15 deal respectively
with the Union's competence to coordinate the economic policies
of the Member States and in matters of common foreign and security
policy. The Convention considered this to be justified by the
"specific nature" of those areas.
Both are already the subject of provisions in the EC Treaty or
the TEU which are developed in Part III of the draft Constitution.
14. Title III of Part I of the draft Constitution
is therefore of constitutional importance as it would affect the
UK's freedom of action. Although the task it seeks to perform
is a useful one, it may require further attention at the IGC.
The European framework law
15. Many of the Community's existing powers to
act involve the use of the directive. According to Article 249
EC, "A directive shall be binding, as to the result to be
achieved, upon each Member State to which it is addressed, but
shall leave to the national authorities the choice of form and
methods." The draft Constitution recasts and rationalises
the catalogue of acts available to the Union. The directive is
to be replaced by the European framework law, which shall be "binding,
as to the result to be achieved, on the Member States to which
it is addressed, but leaving the national authorities entirely
free to choose the form and means of achieving that result"
16. The difference in wording strongly implies
that Member States are intended to enjoy greater leeway in implementing
framework laws than they do at present in giving effect to directives.
That in turn suggests that framework laws may have to be less
prescriptive than many directives now are. A possible result could
be that provisions in framework laws that are sufficiently precise
to produce direct effect will no longer be permitted. If they
are, however, it may follow from Article I-10(1) that such provisions
might be invoked in the national courts in proceedings both against
the State and its organs (sometimes called vertical direct effect)
and against private parties (sometimes called horizontal direct
effect). If so, that would represent a significant change from
the present position. The Court of Justice has held that, because
Article 249 only makes directives binding on the States to which
they are addressed, they may not be invoked directly before the
national courts in proceedings against private parties. Article
I-10(1) says that law adopted by the Union's institutions has
primacy over national law. While that provision should probably
be read as applying only to Union law which is sufficiently precise
for application by a court, it does not in itself permit a distinction
to be drawn according to the status of the defendant. That result
might be achieved by treating Article I-32(1) as a special rule
which derogates from Article I-10(1), but the position should
be clarified, ideally by the insertion of a provision dealing
expressly with the concept of direct effect.
Infringement proceedings against Member States
17. If framework laws confer a wider margin of
discretion on the Member States than directives, the result may
be fewer actions by the Commission against Member States before
the Court of Justice for failure to fulfil their obligations.
Where such proceedings are brought, the draft Constitution would
reinforce the procedure in two ways. Both may be considered of
constitutional significance, as they would curtail the rights
of respondent Member States to defend themselves.
18. Where the Commission's complaint is that
"the State concerned has failed to fulfil its obligations
to notify measures transposing a European framework law",
it may, in the course of the same proceedings, ask the Court to
impose on the State concerned a financial penalty (Article III-267(3)).
At present, such a request may only be made in the course of a
fresh application to the Court where the State concerned has not
taken the steps necessary to comply with the Court's original
judgment. This is in principle a welcome reform of a cumbersome
procedure. However, the reference to failure to notify
the national implementing measures must be a mistake. It would
catch States who have in fact implemented but merely failed to
notify where required to do so. Clearly no penalty would be justified
in such a case. If there is to be a special rule for European
framework laws, failure to transpose is surely the real mischief
it should tackle.
19. In other cases, the Commission will not be
able to ask the Court to impose a financial penalty in its initial
application to the Court. As at present, the Commission will only
be able to do so if the State concerned fails to take the steps
necessary to comply with the Court's judgment. The draft Constitution
envisages that, in such a case, the administrative procedure will
be streamlined. The Commission is to have the power to bring the
State directly before the Court after it has been given the opportunity
to submit its observations (Article III-267(2)). The requirement,
currently laid down in Article 228(2) EC, that the Commission
should issue a reasoned opinion before applying to the Court will
go. This is a rather half-hearted reform. It is not clear why
the Commission should not be given a general right to ask the
Court in its initial application to impose a financial penalty.
20. The draft Constitution contains important
provisions on decision-making. They are of constitutional significance
because they will affect the capacity of individual Member States
to influence the outcome of deliberations, particularly in the
Council of Ministers, and the balance between the Council and
the European Parliament.
21. Article I-22(3) changes the default rule
for decision-making in the Council from simple to qualified majority.
In theory, this works in favour of the larger Member States like
the United Kingdom. In practice, the existing default rule rarely
22. Article I-24(1) says that, when the Council
of Ministers (or the European Council) takes decisions by qualified
majority, "such a majority shall consist of the majority
of Member States, representing at least three-fifths of the population
of the Union".
This would represent a radical departure from the existing system,
under which Member States are accorded varying numbers of votes
according to the size of their populations. A simple dual majority
system of the type set out in Article I-24(1) was advocated by
the Commission and by several delegations at Nice, but ultimately
rejected in favour of the traditional system of weighted votes,
although the process of agreeing on the reweightings applicable
in an enlarged Union proved acrimonious.
23. The beauty of the simple dual majority formula
lies in its clarity, objectivity and durability: it would not
need to be adjusted each time a new Member State joined the Union,
although the populations of the Member States would need to be
reviewed regularly. It is also consistent with the idea of the
Union as a polity of both States and peoples.
However, the voting element of the formula would give Malta the
same weight as the UK, while the population element would mean
that the UK had considerably less weight than Germany, a State
with which it currently enjoys parity.
This might cause presentational problems and undermine the legitimacy
of decisions taken by qualified majority vote.
24. Perhaps mindful of problems such as these
and of the fact that a simple reweighting of Council votes in
the enlarged Union had been envisaged at Nice,
the draft Constitution provides that the simple dual majority
formula will take effect only on 1 November 2009, after the European
Parliament elections scheduled for that year have taken place.
Until then, the vote weightings set out in Article 2 of a "Protocol
on the Representation of Citizens in the European Parliament and
the Weighting of Votes in the European Council and the Council
of Ministers" will apply (assuming the Union remains at 25
Article 2 of the Protocol corresponds to the scale which will
apply with effect from 1 November 2004 by virtue of Article 12
of the Act concerning the accession of the candidate countries.
25. Much number-crunching will be needed to establish
how these systems compare with the present system (although enlargement
may well alter the dynamics of decision-making). The following
table, based on some provisional calculations, compares the present
position with the system which is intended to apply from 1 November
| ||Total votes
||62 (71.26%)||26 (29.89%)
|1 November 2004 (EU-25)||321
(subject to population test: see below)
|90 (28.04%)||29 (9.03%)
The following table shows the evolution of the QMV
threshold in terms of the percentage of votes required.
26. It will be seen that the vote weighting of
the United Kingdom will fall after enlargement in percentage terms
and that a qualified majority will become more difficult than
ever to achieve. That difficulty will be compounded by the new
population test, which was a feature of the Nice agreement and
appears in the Act of Accession and the Protocol annexed to the
draft Constitution. That test will enable any Member State to
ask for a check to be made to ensure that States comprising a
qualified majority represent at least 62% of the Union's total
population. If they do not, their decision will not take effect.
The population test has the effect of enhancing the capacity of
the larger Member States (particularly Germany, but including
the United Kingdom) to block qualified majority decisions to which
they are opposed. This needs to be borne in mind when considering
the further extension in the use of qualified majority voting
contemplated by the draft Constitution.
27. One important reason for that extension is
the elevation of the so-called co-decision procedure, currently
described in Article 251 EC, into the Union's "ordinary legislative
procedure". This means that the Union's legislative acts
(European laws and European framework laws, corresponding essentially
to regulations and directives under the current system) will normally
be adopted jointly by the European Parliament and the Council
The ordinary legislative procedure is set out in Article III-302.
The text has been simplified, but the substance remains essentially
unchanged from Article 251 EC. The Council will act by qualified
majority throughout except in one situation. Where the procedure
starts with a Commission proposal (see below), the Council must
act unanimously if it wishes to approve amendments proposed by
the European Parliament at second reading on which the Commission
has delivered a negative opinion.
28. Like the co-decision procedure, the ordinary
legislative procedure will normally be launched by the submission
of a proposal by the Commission. However, Article I-33(1) envisages
the adoption of legislative acts at the initiative of a group
of Member States. The circumstances in which this will be permitted
are set out in Article III-165, which refers to Section 4 ("Judicial
Cooperation in Criminal Matters") and Section 5 ("Police
Cooperation") of Chapter IV ("Area of Freedom, Security
and Justice") of Part III. This incursion into the Commission's
right of initiative is intended to balance the use of the ordinary
legislative procedure in this field.
A corresponding provision has been inserted into Article III-302
to take account of cases where the ordinary legislative procedure
is not triggered by a Commission proposal.
29. One provision to which the ordinary legislative
procedure would apply under the draft Constitution is Article
III-21, which concerns measures in the field of social security
which are necessary to bring about freedom of movement for workers
and the self-employed. Article III-21 corresponds to Article 42
Although the co-decision procedure applies under the latter provision,
it is expressly provided that the Council is to act unanimously
throughout that procedure. That derogation has not been repeated
in the draft Constitution, which may not be acceptable to the
United Kingdom. It should, however, be noted that the scope of
Article III-21 is limited.
It is not concerned with the substantive content of national social
security legislation, but only with ensuring the aggregation of
periods taken into account under the different national laws and
the payment of benefits to people resident in other Member States.
30. Other provisions of the draft Constitution
which contemplate action by the Union in the social security field
would require the Council of Ministers to act unanimously.
31. Another area where the United Kingdom has
traditionally resisted QMV is tax. Article III-62(1) of the draft
Constitution would, like Article 93 EC, require the Council to
act unanimously when seeking to harmonise national rules on turnover
taxes, excise duties and other forms of indirect taxation. Article
III-62(2), which has no counterpart in the present Treaty, would
allow the Council to act by qualified majority where a measure
referred to in Article III-62(1) relates "to administrative
cooperation or to combating tax fraud and tax evasion", but
only where the Council has unanimously found that to be the case.
There is a similar provision concerning company taxation in Article
III-63. The draft Constitution retains
the exclusion of fiscal provisions from those which may be approximated
by co-decision/ordinary legislative procedure in order to facilitate
the establishment and functioning of the common market. Other
provisions of the draft Constitution relating to tax involve no
or only minimal interference with the freedom of action of Member
The Presidency of the European Council and the
Union Minister for Foreign Affairs
32. Provision is made in the draft Constitution
for the European Council to elect its President by qualified majority
for a term of two and a half years, renewable once. The function
of the President, who would not be permitted to hold a national
mandate, would be to facilitate the work of the European Council
and to "ensure the external representation of the Union on
issues concerning its common foreign and security policy".
Article I-24(5) makes it clear that neither the President nor
the President of the Commission would vote where the European
Council acts by qualified majority. The reason seems to be that
no votes are attributed to them under the QMV formula. What is
perhaps less clear is whether the same rule is intended to apply
where the European Council acts by unanimity.
If it is, the result would be that either President could block
a decision taken by consensus (that is, without recourse to a
vote) under the default rule laid down in Article I-20(4), but
not one taken by unanimity (which implies the taking of a vote).
The extreme subtlety of that distinction suggests that Article
I-24(5) should be regarded as confined to QMV, which would mean
that the President of the European Council, as well as the President
of the Commission, would have a vote when the draft Constitution
requires the European Council to act unanimously. This needs to
33. The provisions concerning the President of
the European Council, together with the new arrangements for determining
the Presidency of the Council of Ministers,
are designed to avoid the disruption caused by the present system,
under which the presidency of the Council of Ministers rotates
every six months and the European Council meets under the chairmanship
of the Member State holding the presidency of the Council of Ministers.
Moreover, in a Union of 25 Member States, the present system would
mean that each State held the presidency only once every 12½
years. The creation of the post of President of the European Council
has encountered opposition from some smaller Member States as
well as the Commission. Concern has also been expressed about
the limited democratic legitimacy the President would enjoy.
34. The draft Constitution would in addition
endow the Union with a Minister for Foreign Affairs. Appointed
by qualified majority vote of the European Council with the agreement
of the President of the Commission,
the person chosen would be one of the Vice-Presidents of the Commission.
He or she would also chair the Foreign Affairs Council (one of
the formations of the Council of Ministers)
and "take part" in the work (without being a member)
of the European Council.
The Minister would be assisted by a European External Action Service
working in cooperation with the diplomatic services of the Member
States. The Minister would represent the Union in matters relating
to the CFSP, "conduct political dialogue on the Union's behalf
express the Union's position in international organisations
and at international conferences."
He or she would have the right to "refer to the Council of
Ministers any question relating to the common foreign and security
policy" and to submit proposals to it.
35. These arrangements, and the responsibilities
of the President of the European Council in relation to the CFSP,
are designed to alleviate some of the problems caused by the present
division of functions between the Secretary-General of the Council
of Ministers, who also exercises the function of High Representative
for the CFSP, and the Commissioner for External Relations. Whether
they are likely to prove durable may be questionable, but the
role of both the President of the European Council and the Minister
for Foreign Affairs is potentially influential. However, the precise
nature of the relationship between the two is not easy to discern
and there are concerns about the accountability of the Minister
for Foreign Affairs, whose democratic legitimacy (such as it is)
is only indirect.
External action and the solidarity clause
36. Article I-6 provides: "The Union shall
have legal personality." That provision complements the abolition
of the pillar structure and contributes to the simplification
of the Treaties. It probably does not change the existing position:
Article 281 EC expressly confers legal personality on the Community
and it is strongly arguable that the Union already possesses implied
legal personality as a matter of public international law.
Moreover, the question of legal personality is separate from the
question of competences and that of the procedure for entering
into international agreements. This was made clear in the final
report of Working Group III, where it is noted:
"Explicit conferral of a single legal personality on the
Union does not per se entail any amendment, either
to the current allocation of competences between the Union and
the Member States or to the allocation of competences between
the current Union and Community. Nor does it involve any amendments
to the respective procedures and powers of the institutions regarding
in particular the opening, negotiation and conclusion of international
37. The external competence of the Union is dealt
with in Articles III-225 and III-226. In addition, Article I-12(2)
provides: "The Union shall have exclusive competence for
the conclusion of an international agreement when its conclusion
is provided for in a legislative act of the Union, is necessary
to enable it to exercise its internal competence, or affects an
internal Union act." That provision seems intended to give
effect to the case law of the Court of Justice, but there is concern
that it does not do so accurately
and it may need to be revisited at the IGC. Following a recommendation
by Working Group III, the draft Constitution contains a general
provision dealing with the procedure for negotiating and concluding
38. The provisions of the draft Constitution
on external action with the greatest constitutional significance
for the UK are probably those dealing with the CFSP. The provisions
in question fall into three main groups. In ascending order of
detail, they are: (a) Article I-15; (b) Articles I-39 to I-40;
(c) Chapter II of Title V of Part III (Articles III-195 to III-215).
Of those provisions, only Article I-15
and Article III-209 would fall within the jurisdiction of the
Court of Justice.
39. Article I-15 provides as follows:
"1. The Union's competence in matters of
common foreign and security policy shall cover all areas of foreign
policy and all questions relating to the Union's security policy,
including the progressive framing of a common defence policy,
which might lead to a common defence.
2. Member States shall actively and unreservedly
support the Union's common foreign and security policy in a spirit
of loyalty and mutual solidarity and shall comply with the acts
adopted by the Union in this area. They shall refrain from action
contrary to the Union's interests or likely to impair its effectiveness."
40. The power of the Court of Justice to review
compliance by Member States with the second subparagraph of that
provision is particularly significant. It may lead the Court to
be called upon to consider whether action by a Member State complies
with an act adopted by the Union in this area or is contrary to
the Union's interests or likely to impair its effectiveness. The
Court would be likely to regard at least some of these issues
41. Article III-209, first subparagraph, provides:
"The implementation of the common foreign and security policy
shall not affect the competences listed in Articles I-12 to I-14
[exclusive competence, shared competence, coordination of economic
and employment policies] and I-16 [supporting, coordinating or
complementary action]. Likewise, the implementation of the policies
listed in those articles shall not affect the competence referred
to in Article I-15." That provision is a refinement of Article
47 TEU, according to which the Treaty on European Union shall
not affect the Community Treaties and which the Court of Justice
has jurisdiction to apply. It did so in the "Airport Transit
Visas" case, where it said it was responsible for ensuring
that "acts which, according to the Council, fall within the
scope of the...Treaty on European Union, do not encroach upon
the powers conferred by the EC Treaty on the Community."
Article III-209 prevents the provisions on the CFSP from being
used to interfere with other competences enjoyed by the Union
under the draft Constitution and (significantly) vice versa.
Its purpose is to stop a power or a process applicable in one
field from being used to take steps which ought properly to be
regarded as falling within a different field. It is an application
of the principle of conferral, according to which "the Union
shall act within the limits of the competences conferred upon
it by the Member States in the Constitution to attain the objectives
set out in the Constitution."
The fundamental nature of that principle explains the grant to
the Court of jurisdiction to apply Article III-209.
42. Article I-39 provides that the CFSP shall
be "based on the development of mutual political solidarity
among Member States, the identification of questions of general
interest and the achievement of an ever-increasing degree of convergence
of Member States' actions."
The necessary European decisions
are to be adopted by the European Council and the Council of Ministers
acting unanimously, except in the cases referred to in Part III.
The European Council and the Council of Ministers will act on
a proposal from a Member State or from the Union Minister for
Foreign Affairs, acting alone or with the Commission's support.
Recourse to European laws and European framework laws
is specifically ruled out in this context. The European Council
may unanimously decide that the Council of Ministers should act
by qualified majority in cases other than those referred to in
43. Article I-40 states that the common security
and defence policy (CSDP) shall be an integral part of the CFSP.
The CSDP is to include the progressive framing of a common Union
defence policy. In language stronger than that of Article I-15(1),
the first subparagraph of Article I-40(2) says that this "will
lead to a common defence" (emphasis added), but only
when the European Council, acting unanimously, so decides. Moreover,
the decision of the European Council will have to be recommended
to the Member States for adoption in accordance with their respective
44. This particularly heavy variant of the decision-making
process, involving what amounts to national ratification of a
represents an acknowledgment of the momentous character such a
decision would have. The EU Committee noted of a previous version
of Article I-40(2) that a decision of this type "would not
only have profound implications for the role of NATO, but also
appears to be wholly unrealistic in the foreseeable future. The
Committee can see a case for such an aspirational provision against
the possibility that NATO might become ineffective and that the
Member States might accordingly need an alternative mechanism.
We assert our view that we would not wish any developments in
European Union defence to weaken the role of NATO. We also believe
that it is wholly unlikely that 'the progressive framing of a
common defence policy
will lead to a common defence'".
It may be noted that draft Constitution would continue to make
that the CSDP "must not prejudice the specific character
of the security and defence policy" of non-aligned Member
States and Member States who see their collective defence as assured
principally through NATO and must "be compatible with the
common security and defence policy established within that framework."
45. Detailed rules on decision-making under the
CFSP are set out in Article III-201. The first subparagraph is
essentially the same as Article 23(1) TEU. It provides that the
Council of Ministers is to act unanimously and that abstentions
will not prevent it from doing so. Like Article 23(1) TEU, Article
III-201 also includes a mechanism for so-called constructive abstention.
Under that mechanism, a Member State which qualifies an abstention
is not obliged to apply the decision taken but must accept that
it commits the Union and refrain from any action likely to undermine
it. If the number of Council members qualifying their abstentions
in this way exceeds a certain threshold, the decision cannot be
adopted. The second subparagraph of Article III-201 alters the
current threshold to "one third of the Member States representing
at least one third of the population of the Union".
46. Article III-201(2) sets out the cases in
which, by derogation from Article III-201(1), the Council of Ministers
may act by qualified majority. Three of the cases mentioned correspond
essentially to those in which the Council of Ministers is currently
permitted to act by qualified majority within the framework of
the CFSP by Article 23(2) TEU. A new fourth case would allow
the Council of Ministers to act by qualified majority "when
adopting a decision on a Union action or position, on a proposal
which the Minister [for Foreign Affairs] has put to it following
a specific request to him or her from the European Council made
on its own initiative or that of the Minister".
47. This represents a potentially significant
extension in the use of qualified majority voting in relation
to the CFSP. However, in an important change from earlier drafts,
QMV is now only envisaged where the Minister has made his or her
proposal at the request of the European Council, which would act
Moreover, as with Article 23(2) TEU, an "emergency brake"
is available to any member of the Council which is opposed to
the adoption of a decision by qualified majority vote. Thus, Article
"If a member of the Council of Ministers
declares that, for vital and stated reasons of national
policy, it intends to oppose the adoption of a European decision
to be adopted by qualified majority, a vote shall not be taken.
The Union Minister for Foreign Affairs will, in close consultation
with the Member State involved, search for a solution acceptable
to it. If he or she does not succeed, the Council of Ministers
may, acting by a qualified majority, request that the matter be
referred to the European Council for decision by unanimity"
It is arguable that the draft Constitution would
make the emergency brake slightly more difficult to apply in this
context, for the word "vital" in the opening sentence
(italicised above) has replaced the word "important"
in Article 23(2) TEU.
48. Article III-201(4) preserves the current
of qualified majority voting in the case of "decisions having
military or defence implications". Such decisions are also
excluded from the European Council's power, reiterated in Article
III-201(3), to decide unanimously that the Council of Ministers
should act by qualified majority in cases other than those referred
to in Article III-201(2). Partial compensation for those exclusions
may be found in provisions on new forms of enhanced cooperation
in the context of the CSDP.
Enhanced cooperation in relation to matters having military or
defence implications is currently ruled out by Article 27b TEU,
but there was a feeling in the Convention that enhanced cooperation
might be useful in security and defence matters because of differences
between the Member States as regards their capabilities and willingness
to commit themselves.
Enhanced cooperation under the CFSP in matters which do not have
military or defence implications, currently the subject of provisions
introduced at Nice,
is dealt with in Articles III-325 and III-326.
49. In the Working Group on defence, there was
broad support for a new provision spelling out the principle of
solidarity between Member States. The provision was not envisaged
as "a clause on collective defence entailing an obligation
to provide military assistance", but as applying to threats
from non-State entities.
The provision contemplated appears in the draft Constitution as
Article I-42, which is headed "Solidarity clause". It
"1. The Union and its Member States shall act
jointly in a spirit of solidarity if a Member State is the victim
of terrorist attack or natural or man-made disaster. The Union
shall mobilise all the instruments at its disposal, including
the military resources made available by the Member States, to:
(a) - prevent the terrorist threat in the territory
of the Member States;
- protect democratic institutions and the civilian
population from any terrorist attack;
- assist a Member State in its territory at the request
of its political authorities in the event of a terrorist attack;
(b) - assist a Member State in its territory at the
request of its political authorities in the event of a disaster.
2. The detailed arrangements for implementing this
provision are at Article III-231."
Article III-231(1) gives the Council of Ministers
the task, acting on a joint proposal by the Commission and the
Union Minister for Foreign Affairs, of adopting a European decision
laying down the arrangements for implementing the solidarity clause.
The European Parliament merely has to be "informed".
The Council of Ministers would act by qualified majority under
the default rule contained in Article I-22(3).
By virtue of Article III-231(2), "Should a Member State fall
victim to a terrorist attack or a natural or man-made disaster,
the other Member States shall assist it at the request of its
50. The EU Committee said of an earlier version
of the solidarity clause that it was "a fundamental and constitutional
provision" which represented "an extension of existing
provisions. While the aspirations of this Clause may be valuable
for political reasons, the defence implications should not be
51. Finally, it should be noted that the Council
of Ministers, acting by qualified majority, will be required to
adopt a European decision defining the statute, seat and operational
rules of the European Armaments, Research and Military Capabilities
Agency referred to in the second subparagraph of Article I-40(3).
The Agency is to be "open to all Member States wishing to
be part of it."
The role of national parliaments
52. Because it elevates the European Parliament
to the position of co-legislator alongside the Council of Ministers,
greater use of what the draft Constitution calls the ordinary
legislative procedure would contribute to increasing the democratic
legitimacy of the Union and its institutions, an objective identified
at both Nice and Laeken. In the same vein, the draft Constitution
seeks to involve the national parliaments more closely in the
A Protocol on the Role of National Parliaments in the European
strengthens the Amsterdam Protocol on the same subject, notably
by requiring the Commission to send all legislative proposals
and consultation documents directly to Member States' national
parliaments. An accompanying Protocol on the Application of the
Principles of Subsidiarity and Proportionality would introduce
an "early warning system" or "yellow card"
mechanism where a national parliament has concerns as to whether
a Commission proposal complies with the principle of subsidiarity.
It provides that a national parliament "may, within six weeks
from the date of transmission of the Commission's legislative
proposal, send to the Presidents of the European Parliament, the
Council of Ministers and the Commission a reasoned opinion stating
why it considers that the proposal in question does not comply
with the principle of subsidiarity." If the number of such
reasoned opinions exceeded a certain threshold, the Commission
would be required to review its proposal.
53. That mechanism was introduced following a
recommendation by Working Group I on the principle of subsidiarity.
The Working Group went on to suggest that a national parliament
which issues a "yellow card" should have the right to
issue a "red card" by referring the matter to the Court
of Justice if its concerns over subsidiarity were not met. That
is the background to paragraph 7 of the proposed new Protocol,
the first subparagraph of which provides:
"The Court of Justice shall have jurisdiction
to hear actions on grounds of infringement of the principle of
subsidiarity by a legislative act, brought in accordance with
the rules laid down in Article III-270 of the Constitution [the
action for annulment or judicial review] by Member States, or
notified by them in accordance with their legal order on behalf
of their national Parliament or a chamber of it."
54. That subparagraph is clearly inadequate to
give effect to the "red card" mechanism envisaged by
the Working Group I. In fact, it makes no change to the present
position, since there is nothing to prevent a Member State from
bringing an action for the annulment of a Community act at the
request of its national parliament on the ground that the principle
of subsidiarity has been violated.
That would remain the case under the corresponding provisions
of the draft Constitution. There is no point in including in the
Constitution provisions which have no effect. The subparagraph
should therefore be deleted or amended to give effect to the recommendation
of Working Group I.
If national parliaments are permitted to bring annulment proceedings
for infringement of the principle of subsidiarity, consideration
might also be given to allowing them to bring such proceedings,
this time for infringement of an essential procedural requirement,
where the Protocol on the Role of National Parliaments is infringed
in the process leading to the adoption of a Union act. Giving
national parliaments any form of independent right to bring proceedings
in the Court of Justice would clearly be of constitutional significance.
The Charter of Fundamental Rights and Union accession
to the European Convention on Human Rights
55. The provisions of the draft Constitution
on the Charter of Fundamental Rights and Union accession to the
European Convention on Human Rights are undoubtedly of constitutional
significance, though it is more limited than is sometimes supposed.
This is large subject, but I shall deal with it briefly because
it was recently the subject of a characteristically authoritative
report by the EU Committee.
56. Article I-7 provides as follows:
"1. The Union shall recognise the rights,
freedoms and principles set out in the Charter of Fundamental
Rights which constitutes Part II of the Constitution.
2. The Union shall seek accession to the European
Convention for the Protection of Human Rights and Fundamental
Freedoms. Such accession shall not affect the Union's competences
as defined in the Constitution.
3. Fundamental rights, as guaranteed by the European
Convention for the Protection of Human Rights and Fundamental
Freedoms, and as they result from the constitutional traditions
common to the Member States, shall constitute general principles
of the Union's law."
Four points are worth making here.
57. First, the Charter is addressed principally
to the institutions, bodies and agencies of the Union. It applies
to the Member States only when they are implementing Union law:
Article II-51(1). Its effect on the Member States is therefore
more limited than that of the general principle of respect for
fundamental rights which the Court of Justice has applied for
many years. That general principle applies to the Member States
not only when they are implementing Community law but also when
they are acting under a derogation for which Community law provides.
The right of the Court to continue to apply the general principle
would not be affected by the draft Constitution, as Article I-7(3)
58. Secondly, the Charter "does not extend
the field of application of Union law beyond the powers of the
Union or establish any new power or task for the Union, or modify
powers and tasks defined in the other Parts of the Constitution":
59. Thirdly, although the Convention did not
reopen the substantive provisions of the Charter, it revised the
so-called horizontal provisions, which deal with its interpretation
and application. Particularly worthy of note is the new Article
II-52(5), which provides: "The provisions of this Charter
which contain principles may be implemented by legislative and
executive acts taken by Institutions and bodies of the Union,
and by acts of Member States when they are implementing Union
law, in the exercise of their respective powers. They shall be
judicially cognisable only in the interpretation of such acts
and in the ruling on their legality." In other words, Charter
provisions containing principles as opposed to rights may only
be invoked before a court where the interpretation or validity
of an act intended to give effect to them is in issue.
60. Finally, notwithstanding the apparently imperative
wording of Article I-7(2), the opening of negotiations and the
conclusion of an agreement for Union accession to the European
Convention on Human Rights would require authorisation by the
Council of Ministers, acting unanimously: Article III-227(2) and
(9). Accession would also require the consent of the European
Parliament: Article III-227(7)(b).
The amendment procedure
61. The procedure for amending the Constitution
set out in Article IV-7 would involve convening a Convention unless
the European Council decided, by simple majority but with the
consent of the European Parliament, that the extent of the proposed
amendments did not justify that step. The amendment procedure
does not distinguish between different Parts of the draft Constitution.
It could not therefore be used to support an argument that some
Parts have higher status than others. It would remain the case
that any amendments would have to be agreed by all the Member
States and ratified by them in accordance with their respective
62. The likely difficulty of securing agreement
on amendments to the proposed Constitution in a Union of 25 or
more Member States has led to the inclusion in the draft of provisions,
some already mentioned, allowing the European Council, acting
unanimously, to (a) decide that certain decisions that may only
be taken by the Council of Ministers acting unanimously may henceforward
be taken by QMV,
and (b) extend the use of the ordinary legislative procedure.
These provisions will enable national governments to avoid seeking
the approval of their parliaments for changes which would otherwise
require such approval. A compromise arrangement might be to require
decisions extending the use of QMV or the ordinary legislative
procedure to be submitted to the Member States for ratification
under their own constitutional requirements.
63. There are three miscellaneous matters of
some constitutional importance, at least for the United Kingdom,
which should be mentioned briefly in the interests of completeness.
64. With effect from 1 November 2009, the Commission
would comprise its President, the Union Minister for Foreign Affairs
and 13 European Commissioners along with 10 non-voting Commissioners.
The introduction of non-voting Commissioners would be an innovation.
The two categories of Commissioner are to be selected on the basis
of a system of equal rotation between the Member States. There
are of course currently two British Commissioners. However, the
relevant provisions of the draft Constitution represent a partial
retreat from the position agreed at Nice, where it was accepted
that the Commission would in due course comprise fewer Commissioners
than Member States.
Under the draft Constitution, each Member State would be guaranteed
either a voting European Commissioner or a non-voting Commissioner.
65. Article III-175 provides for the establishment
of a European Public Prosecutor's Office to help combat serious
crime having a cross-border dimension as well as crimes affecting
the interests of the Union. The European Public Prosecutor's Office
would be responsible for "investigating, prosecuting and
bringing to judgment
the perpetrators of and accomplices
in serious crime affecting more than one Member State and of offences
against the Union's financial interests
" It is to "exercise
the functions of prosecutor in the competent courts of the Member
States in relation to such offences." The European Public
Prosecutor's Office may be set up by the Council acting unanimously
and with the consent of the European Parliament. A decision to
establish such an office would clearly have constitutional implications.
Whether the same can be said of the inclusion in the draft Constitution
of a mere power to do so with the consent of all the Member States
as well as the European Parliament seems more doubtful. This is
another area, however, where a requirement of national ratification
might be appropriate.
66. Article I-59 contains a procedure for Member
States to withdraw from the Union. It represents a considerable
break with tradition, no such provision having been included in
the Treaties so far, and underlines the voluntary nature of membership
and the continuing sovereignty of the Member States.
67. Every Community or Union Treaty which the
United Kingdom has signed since its accession has had constitutional
implications. If endorsed by the Member States at the next IGC,
the draft treaty establishing a Constitution for Europe would
be no exception. However, whether its effect on the constitution
of the United Kingdom would be any greater than that of its predecessors,
particularly the Single European Act and the Treaty on European
Union, seems doubtful.
68. It is true that the draft Constitution would
extend further the use of qualified majority voting, but so did
the two Treaties just mentioned as well as the Treaties of Amsterdam
and Nice. In a number of important areas, the draft Constitution
would continue to require the Council of Ministers to act unanimously
(much to the dismay of the Commission).
This is especially true of the CFSP. Although the draft Constitution
makes a limited attempt to extend the use of QMV in this context,
what is striking about the provisions on CFSP is how firmly it
remains the preserve of the Member States, with only a limited
role for the European Parliament, the Commission (as distinct
from the Minister for Foreign Affairs) and the Court of Justice.
69. There was considerable demand in the Convention
for QMV to be embraced more enthusiastically, particularly in
view of the probable difficulty of achieving unanimity in a Union
of 25 or more Member States. Opponents of greater recourse to
QMV sometimes forget that no Member State opposes everything.
Enlargement increases the likelihood that measures supported by
a majority of Member States, sometimes, perhaps often, including
the United Kingdom, will find the process blocked by a small number
of dissidents. Even where the draft Constitution envisages that
QMV will apply, it will itself be more difficult to muster than
at present, at least until 1 November 1999 when the radical change
to the present system of working out when a qualified majority
has been reached is intended to take effect.
70. Some will also find disappointing the failure
of the draft Constitution to address principles of a constitutional
nature which have been laid down by the Court of Justice in its
case law. It is true that there is a provision (albeit unsatisfactory)
on primacy, but there is no mention of the related concepts of
direct effect or State liability in damages.
Moreover, no attempt has been made to reflect in Article III-274,
which concerns the preliminary rulings procedure, the limits on
the power of national courts to pronounce on the validity of Union
acts laid down in the Foto-Frost case.
These omissions seem hard to defend in a document which describes
itself as a Constitution and is intended to add clarity.
71. Others may be reassured by the prospective
demise of the (in)famous reference to "an ever closer union
among the peoples of Europe", which appears in the preambles
to both the EC Treaty and the TEU as well as Article 1 of the
latter. It is replaced in the preamble to the draft Constitution
by a less provocative reference to the peoples of Europe as "united
ever more closely".
The draft Constitution makes it clear that the powers enjoyed
by the Union are conferred on it by the Member States, who therefore
remain its collective masters. It states explicitly that "Powers
not conferred upon the Union in the Constitution remain with the
This was seen by Working Group V as an aspect of the principle
of conferral and as necessary to establish a presumption in favour
of national competence.
The expanded provision on the Union's obligation to respect the
national identities of the Member States
underlines further the role and importance of the Member States
in the proposed new constitutional dispensation.
72. The draft Constitution has been described,
from opposite ends of the spectrum, as a "blueprint for tyranny"
and a "tidying up exercise".
Both descriptions are caricatures, but the latter does not have
quite as distant a relationship with the truth as the former.
Be that as it may, the IGC ought not to take too seriously the
repeated pleas of the President of the Convention for the text
of the draft Constitution to be left as it stands.
Professor of European Law, University of Birmingham
3 September 2003
3 CONV 851/03. Back
See Case 294/83 Les Verts v Parliament  ECR 1339,
para 23, where the Court of Justice described the EEC Treaty as
the Community's "basic constitutional charter". Back
It was used for the first time to draw up the Union's Charter
of Fundamental Rights, which was "solemnly proclaimed"
by the European Parliament, the Council and the Commission in
December 2000. See  OJ C364/1. Back
Case 6/64  ECR 585. Back
See further below. Back
But see Art III-283. Back
See Art III-282. Back
See Art I-2. Back
See CONV 724/03, p.70. Back
Case 14/68 Wilhelm v Bundeskartellamt  ECR 1, para
Reg 1/2003  OJ L1/1. Back
See Dougan, "The Convention's draft Constitutional Treaty:
bringing Europe closer to its lawyers?" (2003) 28 ELRev (forthcoming). Back
Art I-11(2). Back
See CONV 724/03, pp.74-75. Back
See (2003) 28 ELRev 3,17. Back
See Art I-13; Dougan, above. Back
See CONV 724/03, p.68. Back
Cf. Art 205(1) EC. Back
Two thirds of the Member States representing at least three fifths
of the population of the Union where the Council is not acting
on the basis of a proposal from the Commission or the initiative
of the Union Minister for Foreign Affairs (see below): Art I-24(2). Back
Cf. Art I-1(1). Back
For a more detailed discussion of the advantages and disadvantages
of the simple dual majority system, see Galloway, The Treaty
of Nice and Beyond (2001), pp.71-72. Back
See the Declaration on the Enlargement of the Union. Back
A declaration attached to the Protocol deals with the consequences
of Romanian and Bulgarian accession. Back
It is less easy to compare that system with the one which is intended
to apply from 1 November 2009. This and the following table are
based on information contained in Galloway, above, p.66 and chap.
See Art I-33. Back
See Art III-302(9). Back
See CONV 727/03, p. 29. Cf. the temporary incursion, due to expire
on 1 May 2004, contained in Article 67(1) EC. Back
See Art III-302(15). Back
Art 42 EC does not refer to the self-employed, but legislation
adopted under that article has been extended to the self-employed
on the basis of Art 308 EC. Back
See Arnull, The General Principles of EEC Law and the Individual
(1990), pp.130-131. Back
See e.g. Art III-9(2), Art III-104(1)(c), (3) and (5). Back
See Art III-65(2). Cf. Art 95(2) EC. Back
See Arts III-47, III-130, III-146, III-180. Back
See Art I-21. Back
Art I-24(5) is a free-standing paragraph in a provision headed
"Qualified majority". Back
See Werts, The European Council (1992), pp.130-132. The
terms "consensus" and "unanimity" would both
permit decisions to be blocked by a single Member State. Back
See Art I-23(4). Back
See Art I-27(1). Back
Art I-23(2). Back
Art I-20(2). Back
On which there is a declaration attached to the draft Constitution. Back
Art III-197(2). Back
Art III-200(1). The right of the Council of Ministers to act by
qualified majority vote when acting on the basis of a proposal
put to it by the Minister is discussed below. Back
The Minister could in the last resort be dismissed by the European
Council, again acting by qualified majority with the consent of
the President of the Commission: Art I-27(1). See further EU Committee,
"The future of Europe: Constitutional Treaty - draft Articles
on external action" (Session 2003-03, 23rd Report,
HL Paper 107), pp.6-7. Back
See further Dashwood, "Issues of decision-making in the European
Union after Nice" in Arnull and Wincott (eds), Accountability
and Legitimacy in the European Union (2002) 13, 17-21. Back
CONV 305/02, p.6. Back
See Dougan, above. Back
See Art III-227. Back
See Art III-282. Back
Case C-170/96 Commission v Council  ECR I-2763, para
Art I-9(2). Back
Art I-39(1). Back
A European decision is "a non-legislative act, binding in
its entirety. A decision which specifies those to whom it is addressed
shall be binding only on them": Art I-32(1). Back
See Art I-32(1). Back
See Arnull, Dashwood, Ross and Wyatt, European Union Law
(4th ed, 2000), p.49. Back
"The future of Europe: Constitutional Treaty - draft Articles
on external action" (Session 2002-03, 23rd Report,
HL Paper 107), p.12. Back
See the second subparagraph of Art I-40(2), reproducing the second
subparagraph of Art 17(1) TEU. Back
Art III-201(2)(b). Back
The draft Constitution does not specify how the European Council
is to act in this instance, so the default rule in Art I-20(4)
would apply. Back
See Art 23(2) TEU, last sentence. Back
See Arts I-40(6) and (7), III-213 and III-214. See also Arts I-40(5)
and III-211. Back
See the final report of Working Group VIII on defence, CONV 461/02,
Arts 27a to 27e TEU. Back
See CONV 461/02, p.20. Back
Technically the solidarity clause would fall outside the scope
of the CFSP. Back
"The future of Europe: Constitutional Treaty - draft Articles
on external action" (Session 2002-03, 23rd Report,
HL Paper 107), p.14. Back
Provisions other than those mentioned in the text which recognise
a role for national parliaments include Arts I-17, I-24(4), I-41(2),
I-57, III-160, III-161, III-162, III-174(2), III-177(2) and IV-7. Back
For the background to the Protocol, see the final report of Working
Group IV on the role of national parliaments, CONV 353/02. Back
See its final report, CONV 286/02. Back
This has been pointed out by the EU Committee: see "The future
of Europe: national parliaments and subsidiarity - the proposed
protocols" (Session 2002-03, 11th Report, HL Paper
70), pp.15-16. Back
Art III-270 would also need to be amended. Back
"The future status of the EU Charter of Fundamental Rights"
(Session 2002-03, 6th Report, HL Paper 48). Back
There may of course be argument over whether a particular provision
lays down a right or a principle. An updated version of the "explanations"
of the text of the Charter, originally prepared at the instigation
of the Praesidium (steering group) of the Convention which drafted
the Charter, gives as examples of principles recognised in the
Charter Arts II-25, II-26 (although those articles use the language
of rights) and II-37. According to the updated "explanations",
the following provisions contain elements of both rights and principles:
Arts II-23, II-33 and II-34. See CONV 828/03, p.51. The courts
of both the Union and the Member States are to pay "due regard
to the explanations" when interpreting the Charter (see its
preamble), although they do not purport to be legally binding. Back
See Arts I-24(4), second subparagraph, I-39(8), III-201(3). Back
See Art I-24(4), first subparagraph. See also Arts III-104(3),
III-130(2), III-170(3). Back
Cf. Art I-40(2) on a common defence, discussed above. Back
See the Nice Protocol on the Enlargement of the European Union,
Art 4. Back
See its press release of 13 June 2003 (IP/03/836). Back
See e.g. Joined Cases C-6/90 and C-9/90 Francovich and Others
 ECR I-5357. Back
Case 314/85  ECR 4199. Back
The preamble to the Charter of Fundamental Rights, which appears
at the beginning of Part II of the draft Constitution, retains
its existing reference to "an ever closer union" among
the peoples of Europe. That seems to be an oversight, since there
is no corresponding reference in the preamble to the draft Constitution
Art I-9(2). Back
CONV 375/1/02 REV 1, p.10. Back
Art I-5(1). Cf. Art 6(3) TEU. Back
See CONV 375/1/02 REV 1, pp.10-12. Back
Daily Mail, 8 May 2003. Back
Rt Hon Peter Hain MP, reported in The Guardian on 14 May
See e.g. his "Rome declaration" of 18 July 2003. Back