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
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Edward Elgar Publishing, Inc.
William Pratt House

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

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
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 stream-
lining 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 situa-
tion, 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 intro-
duction, 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.

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

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
2 The European Constitution
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

bly 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 opti-
mism 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 govern-
ment decided to postpone the referendum it had started preparing.
5
At its meet-
ing 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 allow-
ing for ratification – either by a vote of parliament only or by both a referen-
dum and a parliamentary vote. Ayear later, five other Member States had done

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 exist-
ing 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
The ratification of the Treaty of Rome 5

one or more Member States have encountered difficulties in proceeding with ratifi-
cation, 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.
6 The European Constitution
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

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:

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

(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) (suspension
and referendum announced by UK
government, 6 June
2005)
a leading international player. In order to fight unemployment and social
exclusion more effectively, to promote sustainable economic growth, to
respond to the challenges of globalisation, to safeguard internal and external
security, and to protect the environment, we need Europe, a more united
Europe presenting greater solidarity.
To date, 10 Member States have successfully concluded ratification proce-
dures, thereby expressing their commitment to the Constitutional Treaty. We
have noted the outcome of the referendums in France and the Netherlands. We
consider that these results do not call into question citizens’ attachment to the
construction of Europe. Citizens have nevertheless expressed concerns and

Document 1.7: European Parliament, Resolution on the period of
reflection: the structure, subjects and context for an assessment of the
debate on the European Union (selected extracts), Session document
A6-0414/2005, 16.12.2005, available on the website of the European
Parliament at www.europarl.europa.eu/eu
European Parliament – 2004–2009, Report on the period of reflection: the
structure, subjects and context for an assessment of the debate on the European
Union (2005/2146(INI)), Committee on Constitutional Affairs, Co-rappor-
teurs: Andrew Duff and Johannes Voggenhuber
[ ]
The European Parliament,
– having regard to the Treaty of Nice,
– having regard to the Treaty establishing a Constitution for Europe,
– having regard to its resolution of 12 January 2005 on the Treaty establish-
ing a Constitution for Europe,
– having regard to the Declaration of 18 June 2005 by the Heads of State or
Government on the ratification of the Treaty establishing a Constitution for
Europe, at the conclusion of the European Council of 16 and 17 June 2005,
– having regard to the Treaty concerning the Accession of the Republic of
Bulgaria and Romania to the European Union,
– having regard to the opinions on the period of reflection delivered by the
Committee of the Regions on 13 October 2005 and the European
Economic and Social Committee on 26 October 2005 at the request of the
European Parliament,
– having regard to Rule 45 of its Rules of Procedure,
– having regard to the report of the Committee on Constitutional Affairs and
the opinions of the Committee on Foreign Affairs, the Committee on
Industry, Research and Energy, the Committee on Regional Development,
the Committee on Agriculture and Rural Development, the Committee on
Culture and Education, the Committee on Legal Affairs, the Committee on

G. Under Article 48 of the Treaty on European Union, the Constitution will
not enter into force unless and until it is ratified by all Member States,
H. Declaration 30 annexed to the Treaty Establishing a Constitution for
Europe, states that ‘if 2 years after the signature of the Treaty Establishing a
Constitution for Europe, four fifth of the Member States have ratified and one
or more Member States have encountered difficulties with proceeding with
ratification, the matter will be referred to the European Council’,
I. It is necessary to respect those Member States and their peoples which
have ratified the Constitution as well as those which have not, and to analyse
carefully the reasons for the negative results in France and the Netherlands,
J. The No votes appear to have been rather more an expression of dissent at
the present state of the Union than a specific objection to the constitutional
reforms, but, paradoxically, the result of the Noes is to maintain the status quo
and block reform,
K. The European Council confirmed this analysis by taking the view, in its
Declaration of 18 June 2005, that ‘these results do not call into question citi-
zens’ attachment to the construction of Europe’ but that ‘citizens have never-
theless expressed concerns and worries which need to be taken into account’;
the European Council therefore decided on 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’; the heads of
government agreed that in the first half of 2006 they would ‘make an overall
assessment of the national debates and agree on how to proceed’,
The ratification of the Treaty of Rome 13
L. In that Declaration, the heads of government declared that the ratifica-
tion process could continue, and also agreed that the original timetable for the
entry into force of the Constitution (1 November 2006) would be extended,
M. The European Council, however, failed to give a clear focus to the
period of reflection or to define the methods and the framework for drawing
conclusions from this debate, and has since been seen to lack both the politi-

3. Stresses that it is not possible to further enlarge the Union after the acces-
sion of Bulgaria and Romania on the basis of the Treaty of Nice;
4. Recalls that the political problems and institutional weakness that the
Convention was set up to address will persist – and, indeed, grow unless and
until the reforms enshrined in the Treaty establishing a Constitution for Europe
are brought into force;
14 The European Constitution
5. Notes that many of the concerns expressed relate more to general and
specific problems of context than to the text itself; considers that if progress can
be made in such issues, it will be easier to find a solution regarding the text;
6. Resists proposals to establish core groups of certain Member States
while the constitutional process is still in train; deplores any suggestion that
coalitions of certain Member States could be formed outside the EU system;
points out that forms of enhanced cooperation should promote the achieve-
ment of the Union’s aims, preserve its interests and reinforce the process of
integration, and be open to all the Member States at any time; also stresses that
these possible forms of cooperation should not be implemented to the detri-
ment of the efforts being made to arrive at a Constitution for Europe without
undue delay;
7. Warns that a strategy based on the selective implementation of the
Constitution risks destroying the consensus that achieved a balance between
the institutions and among Member States, thereby aggravating the crisis of
confidence;
8. Notes that there are only a limited number of democratic reforms that can
be introduced at this stage without treaty change but by revision of rules of
procedure or interinstitutional agreement – such as transparency of law-
making in the Council, introduction of a form of citizens’ initiative, improve-
ments to the comitology procedure, full use of the ‘passerelle’ clauses in the
field of justice and home affairs, and the more rigorous scrutiny by each
national parliament of its government’s conduct of EU affairs;