For the European Union : peace, freedom, solidarity - Communication of the Commission on the institutional architecture
Date: 2002-12-04
Institutions: European Commission
Subjects: common foreign and security policy, deepening of the European Union, drafting of EU law, enlargement of the Union, institutional balance (EU), institutional reform, operation of the Institutions

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 11.12.2002

COM (2002) 728 final/2

CORRIGENDUM
Nouvelle page 9.
Annulle et remplace celle du COM(2002)728final
du 4.12.2002; changement au paragraphe 5 du point
1.3.1.
Concerne uniquement DE  et  EN.

For the European Union

Peace, Freedom, Solidarity

COMMUNICATION OF THE COMMISSION ON THE INSTITUTIONAL
ARCHITECTURE

TABLE OF CONTENTS

Introduction ................................................................................................................................ 3

1.

1.1.

1.2.

1.3.

Simplifying the way the Union works ......................................................................... 6

Planning and preparing ................................................................................................ 6

Lawmaking................................................................................................................... 6

Directing Union action................................................................................................. 7

1.3.1.

Economic policy coordination ..................................................................................... 9

1.3.2. Administrative cooperation on police matters ........................................................... 10

1.3.3. Common foreign and security policy......................................................................... 11

1.3.4. Getting the common rules implemented .................................................................... 13

1.3.5.

Ensuring compliance with the common rules ............................................................ 14

1.4.

Funding the common policies .................................................................................... 14

2.

2.1.

2.2.

Reforming the institutions.......................................................................................... 16

The European Parliament........................................................................................... 16

The Council................................................................................................................ 16

2.2.1. Determining what is meant by a qualified majority................................................... 16

2.2.2. Organising the Council’s work .................................................................................. 17

2.3.

The Commission ........................................................................................................ 18

2.3.1. Appointment and political accountability of the Commission................................... 18

2.3.2. Composition and work of the European Commission ............................................... 18

2.4.

Relations between the institutions and the national parliaments ............................... 19

3.

Restructuring the treaties............................................................................................ 21

2

For the European Union

Peace, Freedom, Solidarity

Communication of the Commission on the Institutional Architecture

The number of Member States will virtually double on 1 May 2004. The point of this process
is  to  extend  to  our  neighbours  in  Europe  the  benefits  of  peace,  solidarity  and  economic
development  which  we  enjoy  today,  by  welcoming  them  into  an  appropriate  institutional
framework, which is the key to the success of the European project.

The purpose of the Commission's Communication of 22 May last1 was to focus thought on the
European  Union's  objectives  and  tasks,  prior  to  any  discussion  on  institutions.  The
Convention  is  currently  examining  the  preliminary  findings  of  its  working  groups  and  is
discussing  the  structure  of  the  future  constitutional  treaty.  The  Commission  now  wishes  to
contribute  to  the  discussions  by  setting  out  the  changes  to  the  institutional  framework  it
considers necessary to carry forward the European project.

What project for Europe?

The introduction of the euro, improvements to the internal market, coordination of economic
policies, convergence of tax and social policies, solidarity between the countries and regions
of  Europe,  making  a  reality  of  ambitious  environmental  policies  and  the  affirmation  of  a
European model of society are all developments which are broadly supported by the people of
Europe,  and  which  are  necessary  to  ensure  the  balance  of  the  European  project.  The  Union
must give added depth to a project with which its people can identify and which brings them
prosperity and solidarity, and a quality of life based on preserving the environment, ensuring
the  viability  of  universally  accessible  high-quality  services  of  general  interest,  and  a  high
level of social protection.

The  people  of  Europe  want  us  to  come  up  with  answers  to  clearly  formulated  questions.
Whether it be a matter of preserving peace and security, tackling unemployment, dealing with
organised  crime  and  trafficking,  rolling  back  poverty,  ensuring  equal  opportunities  for
women, protecting the environment or ensuring the quality and safety of products, our people
expect  from  the  Union  more  security  and  stability  within  and  more  commitment  on  an
international  level,  always  having  regard  to  the  diversity  of  national,  regional  and  local
identities.

If it is to preserve this balance and the commitment of its people to the European project, the
Union must consolidate and develop the integration of Europe.

To  meet  these  expectations,  the  Commission  has  pinpointed  three  fundamental  tasks  for
tomorrow's  Union:  consolidating  the  European  model  of  economic  and  social  development
with a view to guaranteeing its people prosperity and solidarity; developing a European area
of freedom, security and justice, to give full meaning to the concept of European citizenship;
and enabling the Union to exercise the responsibilities of a world power.

1

A project for the European Union, Commission Communication of 22 May 2002 [COM (2002) 247].

3

                                                
How should we organise ourselves?

The question we are facing is how can an enlarged Union carry out its fundamental tasks, and
how can it maintain the decision-making ability and the cohesion required to press ahead with
European integration.

The  innovative  nature  and  the  special  balance  of  how  the  Community  works  is  a  familiar
theme,  the  point  being  not  to  separate  powers,  but  to  share  them.  Thus,  legislative  power
belongs to the European Parliament, but also to the Council; and the Council shares executive
power with the European Commission, which in turn has a monopoly on legislative initiative,
while responsibility for implementing policies rests very largely with the national or regional
administrations.

It is essential to preserve this union of all the powers and interests and focus them on the
general  European  interest.  And  we  must  maintain  the  European  Commission  in  the  form
intended by the founding fathers of Europe, as an independent institution working for  equal
treatment between the Member States and embodying the  principles of coherence, synthesis
and concern for the general interest.

This  vision  remains  true  today.  In  certain  relatively  new  policy  fields,  such  as  foreign  and
defence  policy,  security,  justice  and  policing,  as  well  as  economic  cooperation,  we  need  to
create systems to agree and implement policy which reflect the effectiveness and legitimacy
of the Community method.

This method, which rests on the balance between the institutions at the various stages of the
decision-making process, from policy formulation to implementation, with a special role for
the Commission as guardian of the general interest, makes for transparency, consistency and
effectiveness of action. At the same time, we can clearly see the limitations of other forms of
organisation:  such  as  intergovernmental  cooperation,  which  is  a  source  of  inefficiency;  or
allowing the Union's political direction to be dictated by just a few Member States, which is a
potential source of tension and dispute.

Changes will be necessary. All the institutions must refocus on their fundamental tasks and
accept the need for in-depth reform.

What institutional changes?

In order  to consolidate the Union's model of economic  and  social  development,  to  continue
the establishment of a European area of freedom, security and justice, and to enable the Union
to exercise the responsibilities of a world power, the Commission proposes that the Union's
modus  operandi  be  simplified  and  its  institutions  reformed,  but  without  changing  the
current institutional balance.

This endeavour to simplify and rationalise the Union's modus operandi and the running of its
institutions should enable the people of Europe to identify who does what within the Union's
decision-making  process  in  a  way  which  they  will  then  find  more  transparent,  simpler  and
less remote.

Clarifying the roles and responsibilities of the institutions is above all necessary for the three
institutions, the European Parliament, the Council and the Commission, which today carry out
the Union's legislative and executive tasks. The  future constitutional treaty will nevertheless
have to take due account of the full range of important tasks carried out by the Union’s other

4

institutions  and  bodies,  especially  the  Committee  of  the  Regions,  the  Economic  and  Social
Committee and the Ombudsman.

The proposed changes should not upset the institutional balance as it exists at present. They
take account of  the  specific  nature  of the  Union, based  on the dual legitimacy  of  states  and
peoples, and do not call into question the basic principles of European integration, such as the
equality between Member States.

The  objective  of  simplification  and  getting  closer  to  the  people  should  also  guide  the  task,
based on what has been achieved to date in terms of European integration, of reworking
the  current  treaties  into  a  constitutional  treaty  which  could  lay  out  the  Union's  new
institutional architecture.

The  Convention's  discussions  and  thinking  must  be  based  on  the  preliminary  draft
constitutional treaty presented by the Convention Praesidium. In the light of the ideas set out
in this Communication, the Commission will take an active part in the Convention's work on
drawing up the constitutional treaty. It considers that the Convention method, by associating
all  the  sources  of  legitimacy  which  exist  in  Europe,  deserves  to  be  used  for  future
amendments to the constitutional texts.

Finally,  the  European  project  should  be  clearly  identifiable  in  a  name.  The  Commission
considers  that  the  term  “European  Union”,  with  which  the  citizens  of  Member  States  and
candidate  countries  have  grown  familiar,  encapsulates  well  the  objectives  of  the  European
project. The  Convention  should  give  its  opinion  on  a  common  device  for  the  Union,  which
could be “Peace, Freedom, Solidarity”.

It is the Convention's job to visualise the European Union of tomorrow — a Union in which
the Member States, united by common policies and brought together under strong institutions,
will remain capable of overcoming their differences to meet the expectations of their peoples.

5

1. 

SIMPLIFYING THE WAY THE UNION WORKS

The complexity of the current system stems from the specific nature of European integration.
The  Commission  nevertheless  feels  that  it  is  possible  to  simplify  the  way  in  which  the
European Union performs its core tasks.

1.1. 

Planning and preparing

The  Commission  recommends  that  efforts  to  plan  and  prepare  be  coordinated  in  order  to
achieve  interinstitutional  planning  of  the  Union's  work  while  respecting  the  decision-
making autonomy and the responsibilities of each individual institution.

On  the  basis  of  a  Commission  proposal  submitted  every  year,  an  interinstitutional  dialogue
should  lead  to  an  agreement  between  the  European  Parliament,  the  Council  and  the
Commission  on a  rolling  multiannual  programme, the main components  of which  would  be
validated by the European Council.

The  exercise  of  the  Commission's  right  of  initiative  would  thus  be  set  within  a  coherent
overall  Union  programme.  This  would  enhance  the  transparency  of  the  Union's  legislative
work.

As regards the preparation of legislative initiatives and the formulation of policies, the future
constitutional treaty could in a way which continues to respect Member States' constitutional
systems  make  provision  for  general  principles  of  consultation  of  interested  parties,  the
national administrations  and  the  local  and regional authorities. Better account will have  to
be taken, when necessary, of the diversity of local situations, at the time when policies are
formulated or put into effect, for instance, in the form of tripartite contracts, which might be
concluded by the Commission, the Member States and the regions or local authorities with a
view to implementing  certain  items  of  Community  legislation,  in  a  way  which  continues  to
respect Member States' constitutional systems.

1.2. 

Lawmaking

Exercise of the legislative function must be simplified around the three principles which are
the  foundations  of  the  Community  method:  the  Commission's  exclusive  right  of  initiative;
codecision by the European Parliament and the Council; and qualified majority voting within
the Council.

The  Commission's  exclusive  right  of  initiative,  implemented  within  the  framework  of
interinstitutional  planning,  should  extend  to  the  whole  of  the  legislative  field.  In  order  to
enhance the democratic legitimacy of the Union's decisions, the codecision procedure should
be  applied  without  exception  to  the  adoption  of  all  European  laws.  Lastly,  to  enable  the
enlarged Union to remain capable of taking decisions, the Commission recommends that the
use of qualified majority voting within the Council should be made the general rule.

In a Union of 25 or more Member States, the whole system would rapidly seize up if just one
of the Member States could hold out against EU action. In an integrated market, the economic
players  must  have  a  level  playing  field.  Without  this,  any  changes  would  damage  precisely
our European model of society and the values which are prized by the European democracies.

6

Abandoning  the  principle  of  unanimity  must  therefore  also  apply  to  fiscal  and  social  issues
which have an impact on the smooth operation of the internal market.

In certain sensitive cases, the legislator should be able to make use of a system of enhanced
majorities, which would facilitate the abandonment of unanimity.

Furthermore,  classification  of  the  instruments  will  make  it  possible  to  distinguish  the
provisions which stem from the law from those which stem from implementation of the law.
The Commission proposes a classification of legislative norms on these lines2:

–  institutional  laws,  which  should  in  future  include  the  decision  on  the  Union's  own
resources.  These  laws  should  be  adopted  on  the  basis  of  a  codecision  by  the  European
Parliament and by the Council, acting on the basis of enhanced majorities;

–  laws adopted under the codecision procedure by the European Parliament and the Council.
These  include  the  framework  laws  which  must  be  implemented  by  national  legislation,
laws whereby financial  programmes  are  adopted  and  other  laws  which  are  more  specific
and directly applicable in the Member States, and which would correspond to the current
regulations;

–  and lastly regulations, adopted by the Commission, for the purposes of implementing laws.

The  laws  might  make  provision  for  the  power  of  legislation  to  be  delegated  to  the
Commission  for  the  purposes  of  amending  legal  instruments  adopted  by  the  legislator,  for
instance,  with  a  view  to  adapting  them  in  the  light  of  technical  progress.  The  Commission
should  exercise  this  power  only  within  the  limits  and  subject  to  the  conditions  of  its
legislative  delegation.  The  legislative  act  thus  delegated  would  not  enter  into  force  if  the
European Parliament or the Council, taking the matter up, say, a month before its entry into
force, were to come out against the measure, either by a majority of MEPs or by a qualified
majority in Council. In such cases, the Commission would either withdraw its draft, or amend
it, or present a proposal to the legislator.

The constitutional treaty should provide  an  appropriate legal basis for every  Union  activity.
However,  as  the  Convention  has  acknowledged,  the  maintenance  of  a  flexibility  clause,
along the lines of what is provided for under the present Article 308 of the EC Treaty, remains
essential  to  the  dynamism  of  European  integration.  In  view  of  the  specific  nature  of  a
provision  of  this  kind,  the  Commission  proposes  that  these  measures  be  adopted  by  the
Council  on  the  basis  of  an  enhanced  majority  after  receiving  the  assent  of  the  European
Parliament.

1.3. 

Directing Union action

The  exercise  of  the  Union's  governmental  functions  is  something  special.  These  functions,
which at the national level are exercised by the government, are today, at EU level, a matter
for the Council and the Commission. Furthermore, the application of the Union's decisions is

2

This is not an exhaustive classification of the norms adopted in the Union and whose scope may be very
extensive, as in the case of certain autonomous decisions adopted by the Commission directly under the
terms of the Treaty. These non-legislative norms should also be rationalised.

7

                                                
more often than not entrusted to the administrations of the Member States, where necessary in
conjunction with the Commission.

Nationally,  "governmental"  tasks  cover  two  types  of  tasks:  implementation  of  laws  (more
detailed  regulatory  measures,  individual  application)  and  autonomous  government  action,
generally based on  a  constitution,  for  example  international  representation  or  the  signing  of
agreements.

At Union level, neither the Treaties nor Community practice make a clear distinction between
these tasks. This makes it impossible for people to see clearly what is going on. Clarification
of the system and refocusing each institution on its  core  tasks will simplify the  institutional
structure of Europe.

–  For the proper implementation of legislation, it may be necessary to adopt enabling texts at
Union  level.  The  powers  to  implement  European  legislation  are  today  entrusted  to  the
Commission  (Article  202  EC),  with  the  exception  of  those  specific  cases  in  which  the
Council decides  to exercise these powers directly. Clarification of the  respective roles  of
the institutions implies that the powers to implement European legislation be entrusted
exclusively to the Commission, which takes responsibility for its action and reports to the
two  branches  of  the  Union's  legislative  authority,  the  European  Parliament  and  the
Council.

–  The  Union  also  exercises  non-legislative  powers.  These  include  measures  to  coordinate
national  economic  and  employment  policies,  the  organisation  of  administrative
cooperation, e.g. on police matters and foreign and security policy.

With the exception of action involving  military  capability, the founding principles of  the
Community method should also apply to these functions, the roles being shared between
the  Commission,  which  makes  proposals  in  the  general  European  interest,  and  the
Council,  which  decides  (where  appropriate,  after  consulting  the  European  Parliament).

In  the  interests  of  effectiveness  and  in  order  to  ensure  that  the  interests  of  the  different
Member States are taken into account when proposals are formulated, the  Commission's
right of initiative must be made a general rule.

In  this  context,  the  power  of  decision  should  remain  with  the  Council,  within  which  the
governments  which  exercise  these  powers  nationally  are  represented,  the  European
Parliament  being  involved  as  appropriate.  As  with  legislation,  the  effectiveness  of  the
decision-making process implies generalised use of qualified majority voting or at least
types of decision-making which do not require the unanimity of the Member States, such
as enhanced qualified majority or constructive abstention.

In  addition,  the  Union  must  have  at  its  disposal  a  range  of  instruments  to  implement  its
policies.  The  non-binding  options  include  in  particular  the  open  method  of  coordination
whereby  common  guidelines  can  be  given  for  certain  areas  which  lie  outside  the  Union's
legislative  powers.  The  constitutional  treaty  should  mention  this  method  and  guarantee  that
the way it is applied is consistent with the Community method.

8

1.3.1.  Economic policy coordination

Economic  policies  are,  and  will  remain,  a  national  prerogative.  However,  coordination  of
them  is  a  joint  obligation.  This  obligation  must  be  complied  with  more  fully,  given  that
Economic and Monetary Union needs common forms of discipline and coordination if it is to
function properly. To enable the Union to carry out this function correctly, the Commission's
role needs strengthening, along with the decision-making capacity of the Council, and we
also  need  an  effective  form  of  external  representation  for  the  euro  zone  vis-à-vis
international economic and financial organisations.

The role of the Commission

Strengthening the Commission's right of initiative is particularly important when it comes to
coordinating economic policies. Currently, the Commission makes a simple recommendation
to the Council  concerning  the  broad economic  policy  guidelines  and  the  warnings  provided
for under the stability pact. It is an easy matter for the Council to amend the content of these
recommendations  or  ignore  the  important  points.  This  situation  gives  rise  to  compromises
which adversely affect the credibility of our economic policy coordination mechanisms.

The  Commission  therefore  recommends  converting  recommendations  into  proposals  for
these  broad  economic  policy  guidelines  and  for  the  warnings  to  ensure  that  the  stability
pact and the guidelines are complied with. In other words, the Commission's agreement would
be needed to amend these proposals unless the Council unanimously decided to amend them.
This is the normal modus operandi provided for in the Treaty.

This change would give the Commission the wherewithal to ensure that the rules are complied
with by all the Member States, preserve the Community nature of the exercise, and make for
policy consistency.

As it is generally held to be useful for the Commission to be able to send an initial warning
autonomously to any Member State significantly departing from the recommendations drawn
up under the broad economic policy guidelines or at risk of running an excessive deficit, this
should be enshrined in the treaty.

The Council's decision-making capacity

The  frontiers  of  the  euro  zone  are  destined  to  coincide  with  those  of  the  European  Union.
However,  because  a  number  of  Member  States  do  not  yet  belong  to  the  euro  zone,  and
because this number will increase with enlargement, this natural objective is not likely to be
attained for many years.

It follows that the decision-making mechanisms now provided for in the Treaty are simply not
geared  to  the  needs  of  the  euro  zone  in  a  Union  with  close  on  thirty  Member  States.
Authorising  the  Member  States  of  the  euro  zone  to  decide  among  themselves  on  issues
concerning their currency is a matter of straightforward common sense.

By 2004, the Union will have more Member States which are not members of the euro zone
than are. The Eurogroup, which was set up by the European Council in 1997, is an informal
forum for discussion between euro zone countries. It is undoubtedly useful and can continue
to  exist  as  an  informal  basis  for  discussion.  However,  under  the  current  Treaty,  only  the
Council  (Ecofin)  is  able  to  take  decisions.  When  it  comes  to  matters  like  excessive  deficits
run by euro zone countries, exchange rate policy issues, decisions concerning Member States
which  may  want  to  adopt  the  euro,  or  the  section  of  the  broad  economic  policy  guidelines

9

concerning the euro zone, the Commission recommends setting up an "Ecofin Council for the
euro zone",  which  will bring  together  Finance  Ministers  from  only  the  euro  zone  countries,
who  will  have  decision-making  powers  in  areas  of  common  interest  to  the  Member  States
with the same currency.

A  further  important  adjustment:  in  the  interests  of  efficient  decision-making,  the  Member
State concerned should be excluded from  any  vote  on  issuing  warnings. The  Treaty  already
makes  provision  for  such  exclusion  where  the  Council  has  to  issue  a  formal  notice  to  a
Member State about correcting an excessive deficit — but this detail has been omitted from
the voting arrangements on issuing warnings. By definition, the Member State concerned will
generally be opposed to any such warning. Excluding it from the vote would therefore prevent
a situation in which it was both judge and defendant.

Representation for the euro zone in international organisations

The euro is now the second most important world currency, and the euro zone is collectively
the second world economic and trading power. However, the European Union is not reaping
all possible benefits at international level. The question of international representation for the
euro zone remains de facto unsettled.

The position of the Presidency in international discussions is of course nowadays prepared in
a concerted manner, but it is often the outcome of a compromise which does not enable the
Union  to  demonstrate  collective  evidence  of  sufficient  authority  or  the  capacity  to  take  the
initiative.

The Convention should look into means of dealing with this question in a pragmatic fashion,
as is provided for under Article 111 of the Treaty concerning the international representation
for  the  euro  or  the  Community's  position.  If  the  European  Union  is  to  address  international
monetary and financial  discussions  in a  coherent  way, and  if  it is to  come  up  with  a  strong
and,  above  all,  stable  position,  the  euro  zone  would  gain  from  being  represented  by  the
Commission, acting in close conjunction with all the bodies concerned.

1.3.2.  Administrative cooperation on police matters

Police cooperation is at the present time covered by the provisions of the Treaty on European
Union which concern police and judicial cooperation in criminal matters. As the pillar-based
structure  is  to  be  abandoned,  the  Commission  feels  that  this  area  should  be  subject  to  the
general  rules  applicable  to  the  Union's  other  policies.  For  instance,  any  legislation  in  this
field,  particularly  for  the  development  of  Europol,  should  be  adopted  using  the  codecision
procedure, with the Council deciding by qualified majority.

For administrative cooperation between police departments, the nature of these activities
means that they are nevertheless under the responsibility of the national authorities. Where
there is a case for European level initiatives in this field, it should be possible to draw on the
experience  of  the  national  authorities.  The  Commission  will  exercise  its  right  of  initiative
primarily to propose cooperation measures.

Lastly,  Council  decisions  defining  the  planning,  arrangements  and  field  of  coordination  of
national action in police matters, could be covered by the enhanced qualified majority rule
after  a  five-year  transitional  period  during  which  the  Union  should  adopt  the  essential

10

principles governing these matters.

1.3.3.  Common foreign and security policy

Defining the common objectives and coherence of outside action

Based  on  the  historic  reconciliation  of  the  nations  and  peoples  of  Europe,  European
integration has succeeded in consolidating peace and stability in Western Europe. It is now
set  to  export  this  stability.  Enlargement  undoubtedly  constitutes  the  most  tangible  political
action which the Union will be taking over the coming years, and the most important in terms
of the continent's security. The areas  immediately  to the south and  east of the Union are de
facto the ideal area for a common foreign policy, over and above long-standing relationships
like the transatlantic links and the partnership with the countries of Africa, the Caribbean and
the Pacific.

If  it  is  to  acquire  a  higher  profile,  the  Union's  foreign  policy  must  have  decision-making
capacity  on  security  and  defence  issues.  This  change  is  also  necessary  in  the  interests  of
protecting civilian populations, for instance in the event of terrorist aggression on the part of
non-State  entities.  Following  the  Cold  War  and  with  the  appearance  of  new  forms  of
terrorism,  such  things  as  collective  solidarity  on  the  territory  of  the  Union  and  the
commitment  of  forces  to  external  theatres  in  the  service  of  peace,  are  becoming  just  as
important  as  defence  of  the  European  homeland.  We  shall  also  have  to  encourage  the
development of the European arms industry, underpinning a common view of the specific
threats facing the countries of Europe and the kind of action they are having to take outside
the  territory  of  Europe.  Of  course,  such  changes  must  not  affect  the  specific  positions  of
certain Member States with regard to action which might have defence implications, and the
Convention will have to bear in mind these specific situations.

The European Union has a special  role  to  play in  terms  of globalisation.  Post-enlargement,
the  Union  will  be  the  world's  leading  economy.  It  will  then  have  greater  clout  as  regards
global economic governance, but with an obligation, even more than today, to take account of
the rest of the world's interests in its economic policy options.

In  many  respects,  it  is  through  the  European  Union,  and  by  bringing  together  concerted
political effort, that Europeans will be able to defend their model of society and exercise
their democratic rights more  effectively and more completely.  It is  Europe,  as  a  leading
player on the world stage, which can contribute to the improved governance and stability of
the international system.

The  Union  must  be  in  a  position  to  take  more  resolute  and  more  effective  action  in  the
interests  of  sustainable  development  and  to  deal  with  certain  new  risks,  associated  in  most
cases with the persistent and growing economic and social imbalances in the world. It must
therefore  stick  up  for  a  strategy  of  sustainable  development,  based  on  a  multilateral  and
multipolar  organisation  of  the  world  economy,  to  offset  any  hegemonic  or  unilateral
approach. To do so, it might be necessary to increase the Union's powers on certain points. In
any event, the Union must be in a position to defend and exploit to the full the international
dimension of its internal policies, and should have access to the requisite range of instruments
and  resources.  The  Union  would  thus  implement  on  the  outside  the  powers  it  has  on  the
inside.

11

With  a  view  to  underpinning  the  coherence  of  the  Union's  external  action  and  making  sure
that  its  stated  positions  have  an  underlying  unity,  the  Commission  recommended,  in  its
Communication  of  22 May  2002,  merging  the  functions  of  High  Representative  and
Commissioner  responsible  for  external  relations,  subject 
to  particular  practical
arrangements and an as  yet undefined timetable. This step by step institutional development
must, taking the current state of affairs as a starting point, be accompanied by progressively
more  integration  and  more  consistency  between  the  various  dimensions  of  external  action.
What  already  applies  very  largely  to  trade  must  apply  equally  to  the  external  aspects  of
common  policies,  in  particular  sustainable  development  and  economic  and  financial  issues,
whether  a  matter  of  negotiation,  decision-making  procedures,  or  the  arrangements  for
representation.  This  would  not  apply,  however,  to  matters  to  do  with  defence  and  action
requiring military  capacity,  which are  areas  in which  the Convention will  have to lay  down
the mechanisms and practical arrangements in due course.

Stepwise institutional change

The Commission proposes  creating  the  post  of  Secretary  of  the  European  Union,  as  a  Vice
President of the Commission with a special status. The EU Secretary would be appointed by
common  accord  by  the  European  Council  and  by  the  President  designate  of  the
Commission. He would report personally both to the European Council and to the President
of the Commission, both of  whom  would  be  able  to  terminate  his  job.  As  a  member  of  the
Commission,  he  would  also  report  to  the  European  Parliament  as  part  of  the  College  of
Commissioners' collective responsibility.

This dual responsibility would open the way for major institutional change, taking account
of the specific nature of common foreign and security policy.

During  an  as  yet  unspecified  transitional  period,  it  is  proposed  that  the  Secretary  of  the
European  Union  exercises  the  Commission's  right  of  initiative  as  regards  common  foreign
and security policy in with the framework of the guidelines and mandates given to him by
the  Council,  or  of  a  group  of  Member  States  with  a  particular  interest  in  a  specific
question and whose common interests might require action on the part of the Union.

At  the  end  of  the  transitional  period,  the  Council,  acting  on  a  proposal  from  the
Commission and applying an enhanced qualified majority, would rule on the arrangements by
which the Secretary of the Union would autonomously exercise the Commission's right of
initiative  in  terms  of  common  foreign  and  security  policy.  Consequently,  the  Council
would also have to rule on the extent of the Member States' right of initiative at the end of
the transitional period. In the spirit of the current terms of the EC Treaty (more specifically,
Article 208), it would be desirable for the Commission, or a group of Member States, to be
able, after the transitional period, to ask the Secretary of the Union to submit to the Council
any proposal concerning the implementation of common objectives.

Once  the  office  of  Secretary  of  the  Union  had  been  set  up,  the  Commission's  proposals  on
common foreign and security policy, and the decisions needed to put them into effect, would
be adopted by the Secretary of the Union in agreement with the President of the Commission,
where appropriate following a debate within the Commission.

Other proposals for decisions on external relations (e.g. international trade and development)
and internal policies (e.g. agriculture and the  environment) will continue to form part of the
Commission's  autonomous  initiative  and  will  remain  governed  by  the  normal  rules  of
collective responsibility. It will be up to the President of the Commission and the Secretary of

12

the  Union  to  ensure  consistency  between  these  proposals  and  decisions  and  foreign  policy
action.

The Secretary of the Union would represent the Union vis-à-vis third parties with regard to
foreign policy action and would be responsible for implementing  common  decisions. For
this  purpose,  he  would  have  access  to  a  single  administration  resourced  from  the  General
Secretariat  of  the  Council,  the  Commission  and  the  Member  States,  placed  under  his
authority,  and  benefiting  from  the  administrative  infrastructure  of  the  Commission.  The
Commission's  external  delegations  and  the  Council's  liaison  offices  would  become  Union
delegations  managed  administratively  by  the  Commission  and  under  the  authority  of  the
Secretary  of  the  Union.  This  unity  of  administration  is  essential  if  common  action  is  to  be
effective.

The  Commission  feels  that  the  method  of  appointment  of  the  Secretary  of  the  Union,  his
personal accountability to the European Council, and the specific arrangements for exercising
the  Commission's  right  of  initiative  will  help  to  generate  the  trust  needed  between  the
institutions  and  the  Member  States  to  pursue  a  more  coherent  and  more  effective  external
policy. The Commission feels that this objective of coherence and effectiveness fully justifies
changing the Commission's working methods and the specific watchdog function exercised by
the  Council  over  the  initiatives  taken  by  the  Secretary  of  the  Union,  doubling  as  Vice
President of the Commission.

1.3.4.  Getting the common rules implemented

As regards the implementation of European legislation, even as it stands today the Treaty
stipulates  that  this  is  in  principle  a  matter  for  the  Commission,  in  so  far  as  action  is
necessary  at  EU  level  and  it  is  therefore  not  left  up  to  the  Member  States.  The  Treaty
nevertheless  empowers  the  Council  to  reserve  the  right  in  specific  and  exceptional  cases  to
exercise its powers of implementation directly. This exception engenders confusion as to the
role  of  the  Council  as  legislator  vis-à-vis  the  Commission's  executive  function,  and  is  not
compatible  with  the  fact  that  the  legislative  function  is  exercised  by  two  institutions,  the
Council  and  the  European  Parliament.  It  should  therefore  be  done  away  with.  The
Commission's  responsibility  for  European-level  implementation  of  decisions  taken  by  the
legislator would thus become clear and unambiguous for the people of Europe.

In  exercising  its  executive  function  provided  for  by  law,  the  Commission  receives  the
opinion  and  expertise  of  the  national  administrations  (which  are  often  called  upon  to
implement  European  legislation  in  the  field)  within  committees.  These  committees  should
continue to exist but only as advisory committees. In order to allow the legislator to exercise
democratic control over its action, the Commission must inform the European Parliament and
the  Council  at  the  same  time  of  the  steps  it  is  contemplating;  the  two  institutions  can  give
their opinion or, where appropriate, express their objections. The Commission remains the
body responsible for the decision on implementation measures in the strict sense, in contrast
to the procedure set aside for legislative delegation.

Furthermore,  there  may  be  a  case  for  using  European  regulatory  agencies  to  provide
technical assistance to the institutions, to prepare opinions and recommendations, and to adopt
individual  decisions  in  the  context  of  specific  legislation.  Clearly,  these  agencies  cannot  be
given  either  the  responsibilities  which  the  Treaty  assigns  directly  to  the  Commission,  nor
decision-making  powers  in  areas  in  which  they  would  be  required  to  arbitrate  in  conflicts
between  public  interests,  nor  can  they  exercise  political  appraisal  powers  or  make  complex

13

economic  assessments.  The  current  treaties  do  not  provide  a  specific  legal  basis  for  the
creation of such agencies. The constitutional treaty should therefore include a provision on the
criteria  for  the  establishment,  running  and  monitoring  —  in  political,  legal  and  budgetary
terms — of these agencies.

1.3.5.  Ensuring compliance with the common rules

The  Treaty  has  conferred  upon  the  Commission  the  general  task  of  ensuring  the  proper
application  of  the  Union’s  law.  With  enlargement,  and  in  order  to  safeguard  the  smooth
running of the internal market, the mechanisms provided to this end by the Treaty will have to
be strengthened.

As was the case under the ECSC Treaty, the Commission should be given the power to take
decisions  on  breaches  of  Union  law.  If  a  Member  State  were  to  contest  the  Commission's
findings, the Treaty should give the Member State leave to appeal to the Court of Justice. This
innovation,  which  strengthens  the  Commission's  ability  to  fulfil  its  task  as  guardian  of  the
treaties,  would  provide  a  basis  for  more  effective  checks  to  be  carried  out  on  whether  the
Member  States  are  complying  with  their  obligations.  At  any  rate,  the  opportunity  to  take  a
case  to  the  Court  of  Justice  gives  the  Member  States  and  economic  operators  all  the
guarantees they need to be sure that Commission decisions are well founded3.

In certain areas, particularly competition, in which the application of the common principles
relating  to  state  aid  and  compliance  by  the  business  sector  with  the  rules  of  competition
remain  essential,  the  Treaty  gives  the  Commission  direct  autonomous  power  to  adopt
measures to apply basic rules which are not to be found in any legislation, but in the Treaty
itself.  The  Commission’s  watchdog  powers  in  this  field  may  take  the  form  of  individual
decisions and, in certain cases, general executive measures. The constitutional treaty will have
to clearly identify these functions.

1.4. 

Funding the common policies

The Commission feels that the Convention should examine the arrangements whereby the
common  policies  are  funded,  the  point  being  to  give  better  practical  expression  to  the
provisions in the Treaty (Article 269 of the EC Treaty) which provide for the Union's budget
to be funded from own resources, fed in turn by the Member States and  the people of
Europe.  In  this  context,  an  appropriate  balance  will  also  have  to  be  found  between  these
different contributions.

This question is linked to many questions addressed by the Convention: democracy (absence
of power of the European Parliament with regard to resources); transparency (people cannot
see what individual contributions they are making to help fund the Union); and solidarity (the
transfer by the Member States of contributions as a function of their GDP, while it does have
the  merit  of  being  equitable,  perpetuates  tricky  discussions  on  the  theme  of  “fair  return”).
From this point of view, examination of the funding of the Union is also part of the debate on
the legitimacy of the Union's action.

3

This would not affect the Court's power to establish the amounts of any penalty payments or fines to be
paid by Member States guilty of infringements.

14

                                                
The matter of the funding of the Union will have to be re-examined, while safeguarding the
achievements  of  the  current  system:  fairness,  balance  between  expenditure  and  revenue,
simplicity.  The  Treaty  will  have  to  extend  the  Union's  capacity  to  define  its  funding
arrangements.

The  constitutional  treaty  would  have  to  make  provision  for  the  multiannual  financial
perspectives, which are currently a matter for interinstitutional agreement, to be adopted by
the European Parliament and the Council on a proposal from the Commission.

As a result, the procedures for adopting the decision on own resources and for adopting the
annual budget can  also be  rationalised.  The  Commission  recommends  that  the  decision  on
own  resources  be  adopted  by  an  organic  law,  which  requires  enhanced  majorities  on  the
part of the European Parliament and the Council. The Convention will have to look into the
question of associating the national parliaments in this decision.

The budget would be adopted by the European Parliament and the Council in a procedure
deriving  from  the  codecision  procedure,  based  on  a  Commission  draft.  The  distinction
between compulsory and non-compulsory expenditure would therefore be dropped.

The  Commission  may  choose  to  go  into  these  issues  in  greater  depth  at  a  later  stage  in  a
specific communication.

Finally,  the  Commission  would  point  out  that  it  has  proposed4  setting  up  an  independent
European public  prosecutor  to  protect  the  Union’s  financial  interests.  The  Commission
believes that the constitutional treaty should make provision for such an office; its status and
key operating arrangements will have to be regulated at a later date by way of an organic law.

4

COM (2000) 608 final; also, Green Paper COM (2001) 715.

15

                                                
2. 

REFORMING THE INSTITUTIONS

The  Commission  reiterates  its  attachment  to  the  institutional  balance  and  the  sharing  of
powers, both characteristic of European integration. Thanks to intergovernmental cooperation
and  federal  structures,  the  Community  method  has  steered  a  course  which  combines
effectiveness with respect of national identities. Any reform of the institutions envisaged must
respect  this  balance  and  avoid  the  creation  of  new  bodies  which  would  make  the  decision-
making  process  less  comprehensible  and  less  efficient.  The  point  is  to  safeguard  the
originality of the system while increasing the accountability of each institution and allowing it
to meet the challenges of enlargement.

2.1. 

The European Parliament

The  legislative  role  of  the  European  Parliament  must  be  confirmed  by  general  use  of  the
codecision procedure.

The  principle  of  a  uniform  electoral  procedure  for  all  Member  States  for  the  election  of
Members of the European Parliament must be upheld in the constitutional treaty. The Council
Decision5  amending  the  Act  concerning  the  election  of  the  representatives  of  the  European
Parliament  by  direct  universal  suffrage  now  makes  it  possible  to  move  towards  a  more
homogeneous electoral system. It is therefore desirable for the Member States to adopt it as
quickly as possible, in accordance with their respective constitutional rules, so that the 2004
elections can be based on this new electoral procedure.

Looking ahead, the Commission confirms that the Union would greatly benefit if a number of
Members  of  the  European  Parliament  were  elected  from  European  lists  submitted  to  the
whole of the European electorate, throughout the Union. The electorate would then cast two
votes:  one  in  a  national  capacity  and  the  other  for  members  to  be  elected  from  these
transnational lists. Organising European elections in this way will help to enhance democracy
at European level.

2.2. 

The Council

Enlargement  means  the  Council  will  have  to  adapt  its  method  of  working  and  pursue  the
reforms initiated by the Seville European Council (June 2002).

2.2.1.  Determining what is meant by a qualified majority

For  the  purposes  of  legislating  and  directing  the  Union’s  action,  decision-making  patterns
which require unanimity will have to be dispensed with.

Qualified  majority  voting  must  meet  the  tests  of  simplicity  and  democratic  legitimacy.  The
Commission  accordingly  recommends  that  the  Convention  review  the  complex  decision-
making system stemming from the Treaty of Nice and replace it by the simple dual majority
scheme previously proposed by the Commission. The Council’s decisions would be deemed

5

Council  Decision  of  25  June  2002  and  of  23  September  2002  (2002/772/EC,  Euratom),  OJ  L  283  of
21.10.2002.

16

                                                
to  have  been  adopted  if  they  had  the  support  of  a  simple  majority  of  the  Member  States
representing  a  majority  of  the  total  Union  population.  This  decision-making  rule  has  the
advantage of being clearer and more in line with the specific nature of the Union.

The Commission proposes eliminating the unanimity requirement. This should apply not just
to  European  Union  legislation,  but  to  any  decision  taken  by  the  Council.  Thus,  the
appointment of members to the European Central Bank’s executive board should be decided
by qualified majority, mirroring the procedure for appointing the Commission under the Nice
Treaty.

In  certain  special  cases,  though,  provision  will  have  to  be  made  for  the  Council  to  take
decisions by a majority which is higher than the qualified majority. In these special cases, the
Treaty should provide for a Council decision on the basis of an enhanced majority. In these
cases, the decision should receive the support of three-quarters of governments, representing
two-thirds of the Union’s total population.

2.2.2.  Organising the Council’s work

The  Seville  European  Council  brought  down  the  number  of  Council  formations  to  nine.
Considering the high number of States which in an enlarged Europe will not immediately be
part of the euro zone, the future constitutional treaty should create a formal decision-making
body for the Member States concerned and which would function as the “Ecofin-eurozone”
Council.

We  should  also  broaden  the  current  thinking  on  the  distinction  between  the  Council's
legislative  and  executive  functions,  with  a  view  to  making  the  Council's  work  more
transparent.

Two types of measures, which lie outside considerations to do with the Presidency, can play
an  important  role  as  regards  the  continuity  and  consistency  of  the  Council’s  work:
interinstitutional  planning  of  the  Union’s  work6,  which  provides  the  framework  for  the
exercise of the Presidency, and external representation by the Secretary of the Union.

With  regard  to  the  Presidency  of  the  Council,  the  Commission  proposes  that  account  be
taken, firstly, of the need to strengthen the continuity of the Council’s work and, secondly, of
the  advantages  which  exercising  the  Presidency  has  in  terms  of  mobilising  national
administrations and enhancing the European commitment of each Member State.

The  Commission  therefore  recommends  retaining  the  six-monthly  rotation  for  the
Presidency  of  the  European  Council  and  the  General  Affairs  Council,  and  even  for  the
Presidency  of  the  Committee  of  Permanent  Representatives,  having  regard  to  the  general
coordination role played by these bodies.

For  the  other  Council  formations,  the  Presidency  could  be  exercised  by  a  member  of  the
Council  elected  by  his  peers  for  a  period  of  one  year.  This  would  have  the  advantage  of
giving  the  work  of  the  Council  more  continuity  and  entrusting  the  Presidency  to  an
experienced minister who enjoys his/her peers' confidence, while ensuring that each national
administration  will  be  able  to  gain  regular  experience  in  running  the  Presidency  of  the
Council.

6

See above, point 1.1.

17

                                                
This way of organising the Presidency should also apply to the Council for external relations,
given that in view of the institutional balance, it is not desirable to confuse the function of a
President of the Council, with his task of seeking compromise, with  the  function of making
proposals, putting them into effect, and providing the external representation of the Union.

2.3. 

The Commission

2.3.1.  Appointment and political accountability of the Commission

The Commission, which is responsible  for  setting  out the general  interests of the Union,
must  continue  to  derive  its  political  legitimacy  both  from  the  European  Council  and  the
European Parliament. The Commission therefore recommends conferring on the European
Council and the European Parliament equivalent rights both for the appointment and for
monitoring  the  action  of  the  Commission.  The  Commission  will  in  future  have  both  to
continue to exercise its functions independently and also assert its political accountability.

The Commission might be set up as follows, after the election of the European Parliament:

–  election  of  the  President  of  the  Commission  by  the  European  Parliament,  this

appointment to be approved by the European Council;

–  appointment of the Secretary of the Union by the European Council in agreement with the

President of the Commission;

–  designation of the other members of the Commission by the Council, acting by a qualified

majority and in agreement with the Commission President;

–  approval of the full Commission College by the European Parliament.

To  allow  the  Commission  to  retain  the  independence  it  needs  in  relation  to  national  and
partisan  interests,  the  treaty  must  specify  the  procedure  whereby  the  European  Parliament
could put any candidacy for the Commission Presidency to the vote and also specify that the
vote will take place under a secret ballot with a two thirds majority of MEPs required.

On  the  basis  of  this  enhanced  dual  legitimacy,  the  Commission  would  be  accountable  to
both the European Parliament and the European Council, each having the right to censure
the Commission’s action. Obviously, the President of the Commission would not take part in
any deliberations within the European Council on censuring the European Commission.

2.3.2.  Composition and work of the European Commission

Under the Nice Treaty, the Commission will comprise one Commissioner per Member State
up to the appointment of the first Commission following the accession of the twenty-seventh
Member State. The Commission will then comprise a number of Commissioners which is less
than the number of Member States, chosen on the basis of an equal rotation system between
the Member States.

The  next  Commission  will  therefore  be  composed  of  one  national  from  each  Member
State.  The  Commission  feels  that  a  College  of  this  kind  will  be  in  a  position  to  take  full

18

account  of  the  diversity  of  national  concerns  and  perceptions  at  a  time  when  a  substantial
number of new Member States will be joining the Union.

If the Commission is to perform its executive functions efficiently, it will however need to
be restructured as soon as the new Member States enter, around the Union’s core tasks. The
powers conferred upon the Commission President put him in a position to decide as to which
structure will best maintain the Commission’s effectiveness. The idea is therefore that under
the authority of the President, vice presidents or members of the Commission can coordinate
the work of their colleagues, consistent with the principle of collegiality.

Other institutional changes would likewise be needed to this end in the future constitutional
treaty. As the  Commission  has  already  proposed7,  the  President  should  have  wider  political
steering powers, more especially the power to oppose any initiatives he judges inopportune.

New internal rules will also be needed to enable the members of the Commission to take a
greater number of decisions individually, on the Commission's behalf.

It  follows  that,  in  a  context  in  which  the  Union's  institutions  would  exercise  new
responsibilities,  in  which  the  Presidency  of  the  Council  would  be  more  stable  and  more
effective, and in which the Commission would assert its governmental role, the composition
of the Commission should be restricted in accordance with the arrangements provided for in
the Nice Treaty.

2.4. 

Relations between the institutions and the national parliaments

Under  the  system  of  parliamentary  democracy  peculiar  to  the  Member  States  of  the  Union,
the watchful eye the national parliaments keep  on  governments  is  the  best  way  of  asserting
their influence on what the Union does. In order to make it easier for them to do this, certain
adjustments are needed to the Amsterdam Protocol. As envisaged by the Convention Working
Group  on  the  role  of  national  parliaments,  the  Commission  could  transmit  directly  to  the
national  parliaments  its  legislative  proposals,  its  consultation  documents  (green  papers,
white  papers  and  communications)  and  its  strategic  planning  documents  (annual  policy
strategy, annual legislative and work programme).

The  Commission  will  respond  to  the  calls  from  the  national  parliaments  to  strengthen
dialogue between the European institutions and the national parliaments.

The Commission also feels that the transparency of the Council’s work on legislative issues
will  enable  the  national  parliaments  to  better  follow  the  progress  of  discussions  within  the
Council. Monitoring of action by governments would be strengthened by the establishment of
more direct links between the national parliaments and the national delegations which sit on
the Council.

As  proposed  by  the  Convention’s  working  groups,  the  Commission  considers  national
parliaments  should  play  a role in monitoring compliance with the principle of  subsidiarity,
without giving an opinion on the basic merit of a proposal. There should be ex ante political
monitoring  throughout the  legislative  procedure  and  not  only  upstream  of  the  proposals  put
forward by the Commission. The Convention is also examining the feasibility of access to the

7

Adapting the institutions to make a success of enlargement, Commission Communication of 26 January
2000: [COM (2000) 34 final].

19

                                                
Court by the national parliaments and by the Committee of the Regions. If the ex post judicial
control were to be opened up to the national parliaments, the Commission feels that it should
then  be  open  to  all  the  national  parliaments  without  their  being  obliged  to  issue  an  opinion
under the early-warning mechanism.

The Commission feels that the Convention should continue to examine how to better involve
the  national  parliaments  in  the  running  of  European  affairs.  In  addition  to  the  proposals
currently  being  examined  by  the  working  groups  and  mentioned  above,  the  Convention
should examine in depth two other themes of specific interest to the national parliaments:

–  an  improvement  of  the  instruments  to  coordinate  economic  policy  at  the  European  level
should  go  hand  in  hand  with  stronger  cooperation  between  the  European  Parliament
and the national parliaments;

–  the national parliaments should give their view on the arrangements for the funding of

the European Union.

20

3. 

RESTRUCTURING THE TREATIES

The  Commission  has  noted  with  interest  the  proposal  put  forward  by  the  President  of  the
Convention on 28 October last with regard to the structure of the future constitutional treaty.
The  Commission  feels  it  would  be  desirable  to  draw  up  a  simple,  readable  constitutional
treaty  which  gives  the  Union  a  single  legal  personality.  In  particular,  as  envisaged  in  this
draft, the Commission agrees that it is necessary to set out in a constitutional text the values
and fundamental rights on which the Union bases its action.

Preserving the flexibility of Union action

During  its  debates  in  the  spring  of  2002,  the  Convention  had  stressed  the  risk  of  any
delimitation of powers which would straitjacket the Union's activities. It is important for the
future  constitutional  treaty,  when  it  sets  out  categories  of  powers,  to  go  only  as  far  as  is
necessary to allow the people of Europe to understand the Union's core activities.

The Commission feels that the approach proposed in the preliminary draft treaty submitted by
the  Praesidium  of  the  Convention  does  not  fully  meet  this  requirement.  In  particular,  the
establishment of a category "actions conducted jointly by the Member States within the Union
framework" detracts from the clarity of the treaty and does not take  account  of the  fact  that
the  Union  today  pursues  a  common  foreign  and  security  policy  and  joint  actions  on  police
and criminal law cooperation.

The  Commission  accordingly  recommends  a  presentation  of  powers  which  highlights  the
different levels of intensity of Union action and the scope of its responsibilities, without in
so  doing  introducing  the  inflexibility  inherent  in  any  catalogue  of  powers.  The  treaty  could
thus  draw  a  distinction  between  the  Union's  main  policies,  supporting  policies  and
complementary  action.  A  presentation  of  this  kind  would  make  it  possible  to  stress  that  in
many areas the Union has only limited powers of action.

Safeguarding the acquis

The  preliminary  draft  treaty  proposes  the  replacement  of  the  existing  treaties.  There  is,
however,  a  need  to  safeguard  the  achievements  of  50  years  of  integration.  There  can
therefore be no calling into question the substance of the Union's policies.

Caution  is  also  needed  with  regard  to  how  the  common  policies  are  presented  in  the  future
constitutional treaty.

Apart  from  one  general  provision  on  objectives,  the  preliminary  draft  constitutional  treaty
submitted  to  the  Convention  describes  the  common  policies,  not  in  the  part  on  the
constitutional architecture, but only in a second part. This presentation should on no account
affect the fact that all parts of the future constitutional treaty concern European Union primary
law.  in  addition,  as  the  future  treaty  does  not  equate  to  the  constitution  of  a  State,  it  is
essential to specify the Union’s purpose before describing powers and institutions.

Entry into force of the future treaty

There are many ways to approach the question of the link between the Constitutional Treaty
and the current Treaties.

21

The Convention could choose the classic route of a treaty amending the existing Treaties, like
the  Amsterdam  and  Nice  Treaties.  This  would  have  the  advantage  that  provisions
unconnected  to  the  creation  of  a  Constitution  would  not  have  to  be  changed.  But  it  would
mean adding one text onto another in a way that would be difficult to understand.

The Convention could also choose to replace the existing Treaties with a new Constitutional
Treaty. This second approach would have the advantage of simplicity and allow the issues at
stake in establishing a Constitution to be presented clearly. But rewriting the Treaties in their
entirety creates an added risk to the continuity of the acquis communautaire.

Under  the  terms  of  Article  48  of  the  TEU,  amendment  of  the  current  treaties  requires  a
unanimous decision of the Member States and ratification by each Member State. Whether the
Union  chooses  an  amending  Treaty  or  an  entirely  new  Treaty,  the  risk  therefore  exists  that
certain  Member  States  might  not  be  in  a  position  to  ratify  the  text  and  that  just  one  State
blocks the whole process.

This issue and the possibility that the future constitutional treaty might enter into force before
being ratified by every Member State should be studied in depth by the Convention.

________________________

22