Communication from the Commission - A Constitution for the Union - Opinion of the Commission, pursuant to Article 48 of the Treaty on European Union, on the Conference of representatives of the Member States' governments convened to revise the Treaties
Date: 2003-09-17
Institutions: European Commission
Subjects: European Constitution, constitutional revision, intergovernmental conference (EU), revision of the Treaty (EU)

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 17.9.2003
COM(2003) 548 final

COMMUNICATION FROM THE COMMISSION

A CONSTITUTION FOR THE UNION

Opinion of the Commission, pursuant to Article 48 of the Treaty on European Union, on
the Conference of representatives of the Member States’ governments convened to
revise the Treaties

COMMUNICATION FROM THE COMMISSION

A CONSTITUTION FOR THE UNION

Opinion of the Commission, pursuant to Article 48 of the Treaty on European Union, on
the Conference of representatives of the Member States’ governments convened to
revise the Treaties

Introduction

The  “draft  Treaty  establishing  a  Constitution  for  Europe”  prepared  by  the  Convention  is
designed to replace the Treaties on which the Union is based, and thus follows a constitutional
course.  It  is  therefore  a  key  step  in  European  integration,  which  still  preserves  the
achievements  of  50  years  of  integration.  The  institutional  architecture  remains  essentially
rooted in the Community method, the scope of which has been extended.

The Constitution will represent the culmination of a broad and profound debate on the future
of the Union, set in motion by the Nice European Council, which has proved a very fruitful
enterprise.  Convened  by  the  Laeken  European  Council  to  examine  the  essential  questions
concerning the future development of the  Union and to seek various possible responses,  the
Convention has exceeded expectations by formulating a draft Constitution for Europe.

More  specifically,  but  without  being  exhaustive,  the  Commission  is  pleased  to  see  that  the
draft Constitution:

– 

– 

fundamentally  changes  the structure of the  Union: in particular,  it  bestows  a  single
legal  personality  on  the  European  Union  and  hence  merges  the  Union  and  the
European  Community1;  it  gets  rid  of  the  “pillar”  structure  of  the  Union;  and  it
incorporates  the  Charter  of  Fundamental  Rights  into  the  Constitution  and  gives  it
binding legal force;

introduces  a  large  number  of  reforms  which  improve  the  way  the  Union  works:
especially,  it  extends  the  scope  of  the  codecision  procedure  for  the  adoption  of
European  laws  and  makes  provision  for  the  Council’s  work  to  be  fully  transparent
where it is involved in lawmaking; it maintains the necessary flexibility in what is a
more sophisticated and balanced system for assigning competences to the  Union; it
replaces  the  complicated  definition  of  what  constitutes  a  qualified  majority,  as
decided by the Treaty of Nice, with the simpler and more democratic formula of the
double majority; it enshrines the Commission’s right of legislative initiative and the
principle  of  the  interinstitutional  programming  of  the  Union’s  work;  it  rationalises
and  clarifies  the  Union’s  instruments  for  action;  it  strengthens  arrangements  for
monitoring  compliance  with  the  principles  of  subsidiarity  and  proportionality,  and
enhances the role of national parliaments in the European integration process;

1

Except for Euratom.

2

                                                
– 

strengthens  the  Union’s  means  of  action:  in  particular,  it  extends  the  Community
method  to  the  entire  area  of  freedom,  security  and  justice;  it  creates  the  office  of
Minister for Foreign Affairs, who will be both a Member of the Commission and the
recipient  of  a  Council  mandate,  which  will  enable  the  Union  to  develop  more
consistent and more effective external action and external representation; it revamps
the  provisions  concerning  the  common  foreign  and  security  policy;  it  develops  the
common security and defence policy and enables those Member States wishing to do
so to enhance their capacity for action within a common framework.

The Commission welcomes the Convention’s achievements and therefore takes the view that
the draft Treaty establishing a Constitution for Europe must constitute the basis for the work
of the  Intergovernmental  Conference,  which  will  be  convened  pursuant  to  Article  48  of  the
Treaty on European Union.

*

The Thessaloniki European Council decided that the draft Constitution was a good basis for
starting the Intergovernmental Conference (IGC) and that the Constitutional Treaty should be
signed by the Member States of the enlarged Union as soon as possible after 1 May 2004. If
this  timetable  is  to  be  met,  and  more  generally  with  a  view  to  maintaining  the  political
momentum  created  by  the  Convention,  it  will  be  essential  for  the  IGC  not  to  disturb  the
overall balances built into the draft Constitution and not to start rediscussing all the questions
that the Convention has already looked at in detail and on which it has reached a consensus.
The Intergovernmental Conference cannot, however, be deprived of its political responsibility
which  is  to  allow  the  Heads  of  State  and  Government  to  present  the  Constitution  for
ratification. Some  aspects of the  draft  Constitution  show  clearly  that  the  outcome  is  not  the
finished product.The Commission has a responsibility to indicate what these aspects are.

It is the Commission’s view  that the  IGC's  task should consist of  improving,  clarifying  and
finalising the draft Constitution.

*

It  is  possible  to  improve  the  draft  Constitution  on  a  limited  number  of  points  without
upsetting the general balance.

For example, the approach advocated for the composition of the Commission, which does not
appear  to  be  viable  in  the  light  of  the  way  the  Commission  really  operates,  should  be
reexamined and modified by the IGC, but without reopening other institutional themes. With
equality  for  all  the  Member  States  in  terms  of  the  composition  of  the  Commission  being  a
settled  point  in  the  Convention,  it  must  be  possible  to  find  a  form  of  composition  which  is
better suited to the dictates of legitimacy and effectiveness of Commission action.

Likewise,  the  IGC  should  be  capable  of  strengthening  the  decision-making  capacity  of  the
Union by further reducing the unanimity requirement. It should be possible to overcome the
doubts expressed by the representatives of certain governments during the Convention’s work
by taking a targeted and precise look at the relevant provisions during the IGC.

3

Finally, by virtue of the fact that it replaces all the provisions of the current Treaties and, in
particular,  rewrites  the  provisions  on  external  action  and  the  area  of  freedom,  security  and
justice, while adopting the Treaty provisions on policies wholesale, the draft Constitution has
inevitably  become  a  lengthy  and  fairly  detailed  document.  It  will  be  vital  to  establish
procedures for more flexible revision of the less essential provisions.

In  the  sphere  of  economic  governance,  the  Constitution  should  allow  those  Member  States
whose  currency  is  the  euro  to  coordinate  their  economic  policies  more  closely  via  Union
procedures.

*

The draft Constitution also contains some imprecise and ambiguous wording. There must be
no  misunderstandings  about  the  constitutional  text  that  the  Member  States  are  gearing
themselves  to  sign.  During  the  ratification  period,  and  afterwards,  we  must  be  able  to  give
explanations  which  are  agreed  by  all  as  to  the  significance  of  whatever  provisions  are
adopted.  The  IGC  will  therefore  have  to  examine  any  questions  that  the  delegations  might
raise  on  the  meaning  of  certain  texts.  The  IGC’s  job  will  also  be  to  ensure  that  the  new  or
recast  provisions  of  the  draft  Constitution  are  fully  consistent  with  those  which  have  been
taken over without detailed examination.

*

Finally, the Intergovernmental Conference will have to finalise the texts of the Constitutional
Treaty. The Convention was brought into being to examine the essential constitutional issues,
and it was neither prepared nor equipped to formulate provisions covering the whole area of
Union  primary  law.  So  the  IGC  will  have  to  adopt  a  Constitution  which  is  couched  in  a
language  and  set  out  in  a  way  that  is  accessible  to  the  people,  but  which  still  meets  all  the
technical and legal requirements of a treaty which has to be ratified by all the Member States,
after a referendum where necessary.

The Convention deliberately left it up to the  IGC to examine the other primary law texts of
the Union (including the protocols and accession treaties). As the Constitution is designed to
replace  all  the  Treaties  on  which  the  Union  is  based,  the  IGC  will  have  to  give  all  the
necessary  attention  to  this  point.  The  Commission  will  be  happy  to  provide  technical  input
here. Annex 5 of this Opinion contains some comments on this matter.

I.

1.

COMMISSION: COMPOSITION AND DECISION-MAKING

The  composition  of  the  Commission  was  undoubtedly  one  of  the  trickiest  issues
facing the Convention. The solution will have a direct impact on the authority  with
which  the  Commission  plays  the  role  bestowed  on  it  by  the  founding  fathers,  and
henceforth enshrined in the Constitution — i.e. to act as the guarantor of the common
interest, and  to be the driving force  for integration and  the  executive  of  the  Union.
The fact is that, in a Union of 25 or more Member States, there is no simple formula
for  guaranteeing  the  legitimacy  and  effectiveness  of  Commission  action,  both  of
which are essential if the Commission is to carry out its work properly.

4

2.

3.

2

3

Since  the  Amsterdam  Intergovernmental  Conference,  the  composition  of  the
Commission has been the subject of debate between the supporters of a Commission
made  up  of  one  national  from  each  Member  State  and  those  who  favour  a  leaner
Commission.  As  part  of  an  overall  compromise 
the  Nice
Intergovernmental  Conference  opted  for  the  eventual  introduction  of  the  second
solution,  but  it  did  not  lay  down  precisely  how  many  Members  the  Commission
should have.

settlement, 

The Commission feels that the specific response advocated by the draft Constitution
—  having  a  Commission  made  up  of  one  Member  from  each  Member  State  with
different voting rights — is complicated, muddled2 and inoperable, and combines the
disadvantages of the aforementioned two alternatives in that it may threaten the basis
of collegiality, which is equality for all Members of the Commission. This approach
is liable to be poorly received by the public and to make ratification more difficult.
Additionally,  as  regards  the  status  of  non-voting  Members,  the  draft  Constitution
leaves open a large number of questions which are essential in terms of the day-to-
day functioning of the Commission3. Irrespective of the answer to these questions, it
shows the weakness of the proposed system. Indeed, if the members without voting
rights manage a portfolio, one cannot  see how they  could  effectively  exercise  their
responsibilities  without  being  able  to  participate  to  the  collective  decision.  And  if
they don’t have a portfolio, one wonders what their role within the College could be.

The Commission’s fear is that the solution proposed by the draft Constitution, with
“first”  and  “second”-category  Members  of  the  Commission,  might  affect  the
legitimacy  and  effectiveness  of  the  Commission.  It  is  necessary  and  possible  to
improve  the  draft  Constitution,  bringing  with  it  the  additional  benefit  of  a  major
simplification in the wording of the relevant provisions.

These changes must be based on maintaining the principle of equality of all Members
of  the  Commission  in  terms  of  preparing  proposals  and  taking  decisions;  this  has
from the very start been an essential element in the legitimacy of Commission action.
The changes must also reflect the need  for a more realistic and operational form of
organising the Commission’s decision-making procedures.

The Convention has decided that the Commission should be made up of one national
from each Member State. The Commission feels that each Member ought to have the
same rights and obligations. As the solution advocated by the draft Constitution was
itself  the  result  of  very  strong  opposition  from  a  large  majority  of  members  of  the
Convention to the idea of a slimmed-down Commission, this alternative is the only

Especially  the  distinction  between  the  “Commission”  and  the  “College”,  and  between  “European
Commissioners” and “Commissioners”; the concept of “European Commissioner” sometimes covers all
the  members  of  the  “College”,  including  the  President  and  the  Minister  for  Foreign  Affairs  (e.g.  in
Articles I-25(4) and (5), III-250, III-251 and III-253) and sometimes just the other 13 members of the
College (e.g. in Articles I-25(3), I-26(2), III-252 and III-254).
Are the “non-voting Commissioners” Members of the Commission, or to put it another way: what are
their rights? May they attend meetings of the College, and take part in discussions within the College?
May  they  suspend  a  written  procedure?  Are  they  empowered  to  take  decisions  on  behalf  of  the
Commission? Can they be given specific responsibility for an area of activity involving the right to give
instructions to a Commission department (“manage a portfolio”)? What is the nature of their relations
with  the  President  (who  is,  according  to  the  text,  personally  responsible  for  their  activities,  in  direct
contradiction to the principle of collegiality, in spite of the fact that the Convention rejected proposals
for introducing the individual political responsibility of Members of the Commission)?

5

                                                
4.

5.

II.

6.

7.

one that ensures that all national sensitivities, cultures and identities are factored into
the Commission's deliberations.

The  current  rules  on  decision-making  within  the  Commission  enable  it  to  operate
effectively  with  20  Members,  as  Annex  1  shows.  However,  to  enable  a  future
Commission made up of as many Members as there are Member States to continue to
do so, some measure of structuring of the College will be necessary. The fact is that
it  is  not  necessary,  in  terms  of  maintaining  collegiality,  for  all  the  Members  of  the
Commission  to  be  involved  in  all  the  decisions  adopted  on  behalf  of  the
Commission.

The Commission therefore proposes to generalise and formalise the decentralisation
of decision-making within the Commission, by structuring the College into a number
of Groups of Commissioners, while taking whatever steps are necessary to guarantee
collegiality  and  consistency  of  policy.  The  required  amendments  to  the  text  of  the
draft Constitution are contained in Annex 2.

The College, embracing all the Members of the Commission, would address only the
most important issues and would therefore have only a limited number of decisions
the  Groups  of
to  take.  Other  Commission  decisions  would  be 
Commissioners, each of them acting in fields which are proper to their competences
within the general guidelines laid down by the College.

taken  by 

The details of this system and the share-out of competences between the Groups and
the College would have to be laid down in the Commission’s rules of procedure in
compliance with the principle of self-organisation of each institution. An example of
rules to this effect is given in Annex 3.

REDUCING UNANIMOUS VOTING IN THE ENLARGED UNION

The four previous IGCs extended voting by qualified majority very substantially and
the Convention added a few more cases.

it 

is 

to 

issue  a  clear  warning 

the  Commission’s  duty 

the
However, 
Intergovernmental  Conference  that  the  progress  made  is  not  enough  to  enable  the
Union to attain all the aims set by the draft Constitution. The draft Constitution gives
the European Council the option of deciding that an area in which the Council takes
decisions  on  a  unanimous  basis  will  henceforth  come  under  the  rules  for  qualified
majority  voting  (Article  I-24(4)).  But  this  “passerelle”  also  requires  a  unanimous
decision  from  the  European  Council  and  experience  has  shown  that  the  general
arrangements of this type introduced by the Maastricht and Amsterdam Treaties have
never been used.

to 

In the draft Constitution, there are still numerous provisions for unanimous voting in
the  Council  or  similar  decision-making  arrangements  (consensus  within  the
European Council or agreement by the governments of the Member States). It would
be unrealistic to ask for all these to come under qualified majority voting and would
not  moreover  be  appropriate,  given  the  great  diversity  of  the  cases  in  question.  In
certain fields, the Constitution will need to be revised to enable the Union to operate
effectively.

6

However, various options for reducing unanimous voting are available, depending on
the nature of the legal bases concerned:

– 

– 

– 

In  the  first  place,  the  Commission  takes  the  view  that,  for  some  legal  bases,
immediate transition to qualified majority can and must be made (e.g. Articles
III-8  (combating  discrimination),  III-10  (the  right  to  vote  in  European  and
municipal elections), III-191 (OCT association), III-221 (financial cooperation
with  third  countries),  III-227  (signing  up  to  the  European  Convention  on
human rights));

However, in some cases, unanimous voting is due to the fact that the Union’s
authority  has  been  defined  in  wide  terms;  more  precise  demarcation  of  the
Union’s  authority  should,  in  some  cases,  enable  unanimous  voting  to  be
dispensed  with  (e.g.  taxation  in  connection  with  the  operation  of  the  internal
market,  i.e.  modernising  and  simplifying  existing  legislation,  administrative
cooperation, combating fraud or tax evasion, measures relating to tax bases for
companies, but not including tax rates; the aspects of free circulation of capital
linked to the fight against fraud; taxation in respect of the environment; certain
aspects  of  social  security;  certain  measures  concerning  passports;  and  the
European  public  prosecutor's  role  in  safeguarding  the  Union's  financial
interests);

Sometimes,  unanimous  voting  is  foreseen  for  areas  of  new  or  recent
competence, where the Member States understandably wanted the initial pan-
European  measures to be  adopted  with  everyone's agreement. For  legal  bases
of this kind, provision could be made for  a move to qualified majority voting
on  a  specific  date  (e.g.  Articles  III-170  (family  law),  III-176  (police
cooperation)).

8.

The  Commission  hopes  that  the  Intergovernmental  Conference  will  manage  to
further reduce the use of the veto, making use of the various options outlined above.

However, there will no doubt be cases where this will not be possible, especially in
the  institutional  domain.  Although  there  are  also  clear-cut  cases  where  qualified
majority voting should be introduced (e.g. Articles III-84 (appointing the members of
the  board  of  the  ECB),  III-232  (MEPs’  statute),  it  is  understandable  that  certain
decisions  require  universal  agreement,  such  as  determining  the  composition  of  the
European Parliament or the language rules for the institutions.

Nevertheless, the Commission requests the Intergovernmental Conference to do what
is  necessary  to  prevent  the  enlarged  Union  being  paralysed  by  a  national  veto.
Several  options  are  conceivable:  replacing  unanimity  by  reinforced  qualified
majority voting or a new definition of unanimous voting according to which, after a
certain  period  of  deliberation  by  the  Council  and  discussion  within  the  European
Council,  opposition  from  one  or  two  Member  States  could  no  longer  prevent  the
Council from adopting a measure for which the Constitution specifies unanimity.

9.

The  Commission  would  like  to  draw  the  Conference's  attention  to  budgetary
provisions  in  particular.  It  noted  the  strong  opposition  of  some  governments’
representatives at the Convention to abandoning unanimous voting under Article I-53
on  own  resources  and  Article  I-54  for  setting  the  first  financial  framework  to  be
adopted after the Constitution enters into force. However, it is clear that maintaining

7

III.

10.

unanimity,  even  provisionally,  is  liable  to  quickly  make  negotiations  extremely
difficult,  whereas  a  fair  outcome  for  everybody  could  be  arrived  at  by  qualified
majority  voting.  The  Commission  therefor  takes  the  view  that  the  veto  should  be
abolished in this area.

REVISION OF THE CONSTITUTION

The  outcome  of  the  Convention  testifies  to  the  merits  of  this  new  approach  to
revising  the  Treaties.  The  Commission  also  hopes  that  the  Intergovernmental
Conference will quickly arrive at an overall agreement on the Constitution and that
the Constitutional Treaty will be signed and then ratified as soon as possible after the
Union’s enlargement.

But  European  integration  will  not  stop  there.  The  Union  will  take  in  further
members.  It will  have  to  take  action  in  a  constantly  changing  world  and  meet  new
challenges. Over the coming years, the way the Union operates, its policy objectives
and  the  means  for  implementing  them  will  have  to  be  modernised  and  adapted  to
changing circumstances.

The  Convention  has  made  no  change  to  the  current  rule  underlying  the  Treaties,
which  is  that  any  revision,  even  a  minor  one,  of  a  primary  law  provision  requires
unanimous  agreement  from  the  governments  of  the  Member  States  and  subsequent
ratification by all the Member States according to their respective constitutional rules
(Article IV-7). This is true not just of the 465 articles of the Constitution but also of
all the protocols4.

This state of affairs could lead to total paralysis of the Union and eventually to a loss
of  interest  on  the  part  of  the  Member  States  and  citizens  as  regards  this  form  of
integration,  in  favour  of  less  effective  models  of  cooperation  or  even  cooperation
between only some Member States.

The  Commission  feels  that  it  is  crucial  for  the  IGC  to  open  the  way  towards
procedures  for  revising  the  Constitution  which  are  more  flexible,  albeit  subject  to
clearly defined definitions. It would point out that Article 95 of the old ECSC Treaty,
which was ratified by all the Member States, provided for a more flexible procedure
for revising non-essential provisions. This procedure was, moreover, used in 1960.

11.

The  European  Council  should  be  able  to  make  amendments  to  Part  III  of  the
Constitution,  deciding by  a 5/6 majority of its members,  following  approval by  the
European  Parliament  and  a  favourable  opinion  from  the  Commission;  unanimity
would remain a requirement in cases where the proposed amendment would alter the
Union’s competences or the balance between the institutions.

These  revisions  would  not  be  subject  to  ratification,  but  the  national  parliaments
should be involved ahead of any decision taken by the European Council, by way of
the role they would play in a Convention and by dint of their watchdog role vis-à-vis
government  action.  It  would  be  up  to  the  Court  of  Justice  to  ensure  that  the
conditions for a more flexible form of revision were met.

4

There are a very limited number of exceptions (e.g. Articles III-289, III-299 and III-76 (13)).

8

                                                
IV.

12.

13.

In  more  general  terms,  the  Commission  suggests  that  an  in-depth  political  analysis
should  soon  be  conducted  on  the  question  of  setting  up  a  constituent  body  with
representatives  from  the  Member  States'  governments  and  parliaments,  and  the
European institutions.

ECONOMIC GOVERNANCE

In its communications to the  Convention, the  Commission  advocated  strengthening
economic  policy  coordination  so  as  to  ensure  the  conduct  of  sound  public  finance
policies,  necessary  for  the  establishment  of  a  sound  economic  framework,  thereby
promoting  growth and  employment. To this  end, the draft Constitution's  provisions
on  the  Union’s  economic  and  monetary  policy  need  to  be  improved  further,  in
particular  by  giving  the  Commission  a  right  of  proposal  for  the  preparation  of  the
broad economic-policy guidelines.

Although  the  time  when  the  euro  will  be  the  currency  of  all  the  Member  States  is
probably still a long way off (in view of the enlargements yet to come), this should
remain the goal. The relevant provisions should therefore be collated in a section on
"transitional provisions", which should become entirely obsolete on the day when the
euro becomes the currency of all the Member States.

This transitional section should specify the effect of the fact that the euro is not yet
the currency of some Member States, enable economic policies in the euro zone to be
coordinated  more  closely  and  set  out  the  obligations  and  the  rights  of  the  Member
States "with a derogation".

The Ministers of Finance of the euro zone must be able to meet and take decisions as
the Ecofin Council for the euro zone. The modus operandi of the Governing Council
of  the  European  Central  Bank  and  the  operational  decision-making  framework  for
monetary  policy  should  be  reviewed  to  ensure  that  decisions  remain  effective  in  a
euro zone that is set to expand.

V.

CLARIFICATION OF THE DRAFT CONSTITUTION

A. Institutional provisions

- The President of the European Council -

14.

5

Despite its reservations on the matter, the Commission does not propose to bring into
question  the  compromise  which  the  Convention  reached  after  prolonged  debate.  It
does feel, though, that the Intergovernmental Conference should draw the necessary
conclusions  by  inserting  provisions  concerning  the  status  of  the  President  of  the
European Council5.

In  the  same  way  as  for  the  Members  of  the  Commission,  the  Constitution  should  include  provisions
concerning  nationality,  the  duty  of  independence,  a  ban  on  any  other  professional  activity,  and
arrangements for replacement in the event of death or resignation.

9

                                                
At  any  rate,  it  is  vital  to  maintain  the  balance  of  the  President  of  the  European
Council's  role  defined  by  the  Convention.  Any  extension  of  duties  over  and  above
the task of chairing meetings of the European Council and representing the Union in
the context of common foreign and security policy activities would inevitably change
the institutional architecture agreed in the Convention and create confusion as to how
responsibility was shared. More particularly, the President of the European Council
should  not  perform  the  task  of  organising  the  Council's  work,  particularly  with  the
European  Council  set  to  become  an  autonomous  institution  vis-à-vis  the  Council6.
Someone  who  is  not  accountable  for  his/her  action  to  any  parliamentary  assembly
cannot exert influence over the modus operandi of the Council, which is supposed to
be transparent and democratic.

- Presidency of the different Council formations -

15.

The  Convention  has  decided  to  do  away  with  the  current  system  of  a  six-monthly
rotating Presidency of the Council involving all the Member States in turn. However,
it has not expressed a clear view on  the  new system, except  as regards the  Foreign
Affairs Council, which will be chaired by the Minister for Foreign Affairs.

The way in which the Presidency of all the Council formations will be organised is
crucial  if  the  Council  is  to  work  correctly  in  the  Union  and  if  the  sharing  of  tasks
among the institutions, especially in the executive field, is to be done properly. The
IGC  should  clarify  and  examine  this  issue  in  detail  and,  in  particular,  consider
whether  it  would  not  be  simpler  for  the  Constitution  to  stipulate  that  each  Council
formation elect its own President from within its ranks.

16.

Even if relieved of the external representation of the Union, exercising the function
of President of a Council formation will be a heavy load for a minister who will also
have  national  duties  to  carry  out.  The  Commission  therefore  feels  that  the  term  of
office of a President of a Council formation should be limited to one year7.

Having  a longer period would increase  the likelihood that the  President’s period of
tenure  will  include  an  election  or  a  ministerial  reshuffle,  resulting  in  the  opposite
effect to what the reform is seeking to achieve.

17.

With the disappearance of  the  six-month  Presidency  system with representatives of
one  and  the  same  Member  State,  the  need  to  ensure  consistency  of  action  by  the
various Council formations will become even more pressing than it is today.

The task of maintaining the consistency of the Council’s work should be entrusted to
a  body  with  representatives  of  the  governments  of  all  the  Member  States  and  the
Commission,  namely  the  General  Affairs  Council,  as  provided  for  in  the  draft
Constitution,  and  not  to  a  bureau  or  a  conference  of  presidents  of  the  various
formations (which would in any case be difficult to organise on a practical level).

6

7

The IGC should draw the requisite conclusions from this change, by providing for legal protection vis-
à-vis  European  Council  acts  equivalent  to  the  kind  of  protection  which  already  exists  for  acts  of  the
Council, particularly by making appropriate changes to Articles III-270 and III-272.
Including for the “Euro Group”, whose Presidency mandate should coïncide with that of the Presidency
of the Ecofin Council.

10

                                                
The  Commission  proposes  that  the  General  Affairs  Council  responsibilities  should
not  encompass  all  the  Council's  lawmaking  activities,  but  should  be  confined  to
managing  general  affairs  and,  above  all,  ensuring  that  the  Council's  action  is
consistent in the context of the Union's interinstitutional planning.

- The Minister for Foreign Affairs/Vice-President of the Commission -

18.

One  of  the  draft  Constitution's  major  achievements  was  to  create  the  office  of
Minister  for  Foreign  Affairs/Vice-President  of  the  Commission,  with  a  view  to
improving the consistency  of the Union’s external action in all fields, regardless of
the  decision-making  procedure  provided  for  in  the  Constitution  (either  the
Community method or the Common Foreign and Security Policy procedure).

In  the  field  of  common  foreign  and  security  policy,  the  Minister  for  Foreign
Affairs/Vice-President of the Commission acts alone, as mandated by the Council; to
this  end,  he  or  she  formulates  proposals  for  the  Council  and  carries  out  Council
decisions.  He/she  is,  in  addition,  a  full  Member  by  right  of  the  Commission,  and
holds  the  rank  of  Vice-President,  with  special  responsibility  for  coordinating  other
aspects of external action; he or she has the same rights and obligations as the other
Members of the Commission, is involved in decision-making in all fields and shares
collegial responsibility for Commission action.

19.

If  the  Commission  is  structured  into  Groups  of  Members,  the  Minister  for  Foreign
Affairs  will  chair  the  Group  of  Commissioners  responsible  for  external  relations.
This  is  the  group  which  will  have  responsibility  for  strict  compliance  with
procedures,  so  that  the  Council,  the  Commission  and  the  Minister  can  each  play
effectively the role assigned to them by the Constitution. At the same time, though,
this  Group  will  be  an  ideal  forum  within  which  the  consistency  of  the  Union’s
external action can take on concrete form.

A draft declaration appended to the draft Constitution provides for the Minister to be
assisted  by  a  European  External  Action  Service,  which  will  embrace  the  Union’s
delegations in third countries and to international organisations. The draft declaration
requires the Council and the Commission to agree on how this Service should be set
up. Those questions are essentially of an administrative nature and should therefore
not be regulated in the Constitution.

For the Commission, the essential point is that the European External Action Service
should not be separate from the other institutions of the Union and should be able to
carry out its work in close conjunction with all the Commission departments.

- Legal review -

20.

A  legal  review  of  the  draft  Constitution  will  take  place  to  ensure  that  discussions
within  the  Intergovernmental  Conference  are  based  on  a  text  which  is  clear  and
legally  correct.  This  is  essential.  Indeed  the  Commission  considers  that  the  choice
between  which  provisions  have  to  feature  in  Part  I  of  the  Constitution  and  those

11

which  can  be  contained  in  Part  III  is  not  always  balanced8,  and  the  reason  for
sticking to the "single institutional framework" (article I-18) and for the absence of
two  institutions  (the  Court  of  Auditors  and  the  European  Central  Bank)  from  this
framework is not always clear. There are omissions9, and the kind of language used
sometimes lacks the necessary legal precision10.

This legal review will indicate  whether the  texts  still  contain  ambiguities on  which
the IGC should be forming an opinion.

B. The Union’s policies

21.

As  far  as  its  citizens  are  concerned,  the  Union  is  meaningful  only  in  as  far  as  it
implements  its  policies.  The  Commission  thus  endorses  the  approach  of  the  draft
Constitution,  which  does  not  confine  itself  to  setting  out  fundamental  rights  and
institutional structures but which contains, in Part  III, a set of provisions governing
the  Union’s  policies  and  defining  its  goals  and  the  resources  available  for
implementing them.

The Convention examined closely the provisions on the Union’s external action and
the  area  of  freedom,  security  and  justice.  It  produced  draft  articles  completely
rewriting  the  originals.  As  far  as  the  other  policies  are  concerned,  the  Convention
confined  itself  to  reproducing  the  provisions  currently  featuring  in  the  EC  Treaty,
with only a few alterations. On the basis of the work done by experts from the Legal
Services of the European Parliament, the Council and the Commission, the texts of
the EC Treaty have been tailored to fit the new institutional framework (particularly
the  provisions  on  procedures  and  instruments)  but  have  remained  basically
unchanged.

In certain areas, the text dates back to the 1957 Treaty of Rome. In others, it has been
amended repeatedly, which does not make it any more accessible. The result is that
the provisions on policies as featured in Part III of the draft Constitution (apart from
the  areas  rewritten  by  the  Convention)  form  a  lengthy,  uneven  and  complicated
whole which is drafted in a variety of styles and, above all, has been superseded by
the reality of current policies. The provisions on agriculture thus reflect the ideas of
the  1950s  on  growth  and  security  of  supply,  and  are  far  removed  from  the  key
elements of the CAP reform designed to encourage production of high-quality food
whilst  respecting  environmental  imperatives  and  developing  the  countryside  by
means  of  diversification.  The  concept  of  sustainable  development  —  which  the

For  example,  Article  I-20  (3)  states  how  many  times  the  European  Council  is  to  meet  each  year,
whereas the rules concerning decision-making by the European Parliament and the Commission, which
are essential for the way these institutions are run, are in Part III (Article III-240 and Article III-255); a
reference to the European Investment Bank should have been included in Part I.
For  example,  the  draft  Constitution  contains  no  transitional  provisions  for  the  composition  of  the
Commission between entry into force of the Constitution and 1 November 2009; there are no rules on
the conditions for appointment and exercise of the  mandate of the President of the  European  Council
(e.g. nationality and independence). It is also a pity that the  draft  Constitution  does  not  take  over  the
constitutional  elements  of  the  Act  concerning  the  election  of  the  representatives  of  the  European
Parliament  by  direct  universal  suffrage,  such  as  the  independence  of  MEPs  and  the  list  of
incompatibilities.
For  example,  Article  I-22(2)  and  Article  I-24  give  the  impression  that  the  Council  is  made  up  of
Member  States,  whereas  in  fact  it  is  made  up  of  members  who  represent  and  act  on  behalf  of  the
governments of their countries.

12

22.

8

9

10

                                                
Convention  highlighted  as  one  of  the  Union’s  aims  —  does  not  appear  in  the
provisions  on  environmental  policy.  By  contrast,  the  draft  Constitution  contains  a
number of provisions which are obsolete or irrelevant11.

During  the  process  of  writing  a  constitution  for  the  Union,  provisions  on  policy
should therefore be simplified and updated.

The Commission has started to prepare the ground for overhauling the provisions on
the Union's policies without, however,  disturbing the political balance or  extending
the Union’s powers, and could present its proposals to the Conference if requested.
However,  the  Commission  fears  that  the  timetable  decided  upon  for  this
Intergovernmental  Conference  will  not  be  sufficient  to  completely  rework  these
provisions.

This situation constitutes one more important reason for enabling the Constitution to
be revised more flexibly in the way that the Commission has proposed (see point III
above). If the provisions on policies are not rewritten at this time, the Union should
be given the possibility of doing so in coming years. If the rules were too inflexible,
much  of  the  Constitution,  the  Union’s  flagship  text,  would  carry  these  defects  for
many years to come.

Failing a complete overhaul, the Intergovernmental Conference should at least clarify
some  provisions  and  should  make  all  the  Constitution’s  provisions  consistent,
particularly  by  reflecting  fully  the  provisions  of  Part  I,  on  which  the  Convention
focused a great deal of attention, in Part III, which it did not revise.

- Consistency between the Union’s aims and policies -

There  is  a  certain  amount  of  dissonance  between  the  Union’s  goals,  which  the
Convention has revised (Article I-3), and the aims of some policies which have not
been reviewed. This gives rise to a problem of consistency with regard to drafting of
the provisions and also potentially in interpreting their  legal  scope. The  legal bases
for  implementing  these  policies  are  generally  linked  to  the  aims  which  they  are
intended  to  achieve.  The  IGC  should  therefore  verify  whether  the  Union’s  general
objectives and more precise policy objectives are consistent. The Commission takes
the view that sustainable development, in particular, should become a key aim in the
Union’s policies, and that the goals of the common agricultural and fisheries policies
should  be  revised  to  reflect  the  new  approach  more  clearly.  In  addition,  the
Commission  draws  attention  to  the  option  of  agreeing  a  Protocol  making
implementation  of  the  Constitution’s  objective  of  sustainable  development  more
concrete.

- Consequences of classifying competence -

The  Commission  holds  the  view  that  the  IGC  should  ensure  that  the  provisions  of
Part  III are consistent with  the approach followed by the Convention  in  classifying
competence.

For  example:  Article  III-141  and  Article  III-56(2)c,  on  the  division  of  Germany,  or  Article  III-109
which provides that the “Member States shall endeavour to maintain the existing equivalence between
paid holiday schemes”.

13

23.

24.

25.

11

                                                
26.

VI.

27.

The  Convention  decided  that  two  areas  which  were  previously  matters  for
complementary  competence,  namely  the  common  safety  concerns  in  public  health
matters and research, should henceforth be areas of shared competence. Article I-14
also provides that the Union may adopt initiatives to ensure coordination of Member
States' social policies. However, the texts of Part III on these policies have not been
adapted accordingly.

As  a  result,  the  Commission  invites  the  IGC  to  empower  the  Union  to  adopt
measures  with  a  real  impact  at  European  level  to  combat  communicable  diseases
(such as SARS) and “bio-terrorism”, and to prevent serious risks to human health. It
also holds the view that the Union’s authority to create  a proper European research
area should be clearly anchored in the Constitution.

- Streamlining of procedures -

The  Convention  greatly  streamlined  and  simplified  the  Union's  procedures.  In
general, the results of these changes are reflected in Part III, but in some cases, they
could be made even more efficient and consistent. The Commission draws the IGC’s
attention in particular to the three cases explained in Annex 4 of this Opinion.

THE PUBLIC'S ENDORSEMENT OF THE DRAFT CONSTITUTION

Although  the  Convention's  deliberations  were  transparent  and  civil  society
organisations  were  heavily  involved  in  them,  the  general  public  was  not  well
engaged  about  the  process  under  way  and  the  Constitution  that  was  being  drafted.
This  is  liable  to  jeopardise  the  successful  outcome  of  the  process.  All  the  political
players  and  the  institutions  need  to  make  an  effort  to  maintain  contact  and
communicate with civil society and the general public throughout the two stages to
come (the Intergovernmental Conference followed by the ratification process in each
Member State).

The  type  of  document  being  drafted,  and  the  political,  constitutional  and  electoral
processes  it  entails,  places  a  heavy  responsibility  on  the  Member  States  vis-à-vis
their citizens and their need to be informed. The authorities must therefore, without
fail, make a great effort now to build upon the action taken so far by the European
institutions to promote public debate, information and communication on the future
of the Union, especially as they have the resources and channels to get the message
across.  These  initiatives  must  also  involve  the  regional  and  local  levels.  The
Commission,  for  its  part,  will  sustain  its  own  endeavours,  in  cooperation  with  the
other institutions, to support public debate and information.

It would be highly conducive to enlisting public support for the European project if
all  the  Member  States  were  to  organise  simultaneously  the  ratification  -  be  it
parliamentary or popular - of the Constitution.

________________________

14

ANNEXES

ANNEX 1 - Decision-making at the Commission

Every  year,  the  Commission  adopts  some  ten  thousand  decisions,  but  less  than  3%  are
adopted  by  the  College  following  debate  at  the  weekly  meeting  of  the  Commission  and
around  30%  by  written  procedure  (see  table  below).  Clearly,  these  are  the  most  important
decisions,  but  the  fact  is  that  the  overwhelming  majority  of  decisions  are  adopted  by  other
procedures.

The Commission’s rules of procedure currently provide for four procedures:
- “oral procedure”: decisions are taken by the College at its weekly meetings;
- “written procedure”: decisions are deemed to have been adopted by the Commission where,
on expiry of a set period, no Member has entered  a reservation on a proposal  he  or  she has
received in writing; where such a reservation has been entered, the decision is taken by oral
procedure;
- “empowerment”: decisions are taken by one or more Members of the Commission, who are
empowered to take management and administration measures on the Commission’s behalf;
- “delegation”:  decisions  are  taken  by  a  Director  General  to  whom  the  Commission  has
delegated  the  adoption  of  management  and  administration  measures  on  the  Commission’s
behalf.

For decisions taken on the Commission’s behalf by empowerment or delegation, collegiality
is assured by dint of special measures, more especially the limitations and conditions imposed
on empowerment or delegation, the interservice consultation procedure,  and the fact that  all
Members of the Commission are informed of decisions taken.

A  further  important  element  in  understanding  the  way  the  Commission  operates  is  that  all
decisions are based on a proposal from a Member of the Commission but, generally speaking,
the  Commissioner  making  the  proposal  will  first  of  all  seek  agreement  from  whichever
colleagues  are  most  concerned  with  the  subject  area  in  question.  As  a  result,  proposals  for
decisions already reflect the views of the Commissioners who are most closely concerned. By
the same token, the use of an empowerment by a Member of the Commission is often subject
to the advance agreement of one or more of his/her colleagues.

In  addition,  the  Commission  has  set  up  a  number  of  internal  working  groups  of
Commissioners with connected  portfolios (e.g. the Group of Commissioners  responsible  for
external  relations).  At  present,  these  groups  have  no  decision-making  powers,  and  are  just
convenient ways of having certain subjects examined by whichever Commissioners are most
closely concerned.

Consequently,  although  all  Commissioners  are  involved  in  one  way  or  another  in  all  the
Commission’s  decisions,  the  very  great  majority  of  decisions  are  taken  de  facto  by  only  a
limited number of Commissioners, and in some cases by just one.

15

2000

2001

2002

27.08.03

572

5,8%

426

4,6%

221

2,4%

125

2,3%

3042

30,7% 3009

32,2% 2622

28,7% 1590

29,2%

6300

63,5% 5893

63,1% 3357

36,7% 1475

27,1%

0

0

8

0,1% 2946

32,2% 2250

41,4%

Oral
procedures (*)

Written
procedures

Empower-
ment
procedures

Delegation
procedures

Total

9914

100%

9336

100% 9146

100% 5440

100%

(*) Number of times that the Commission has taken a vote :

2000 : 3 out of 572
2001 : 3 out of 426
2002 : 4 out of 221
2003 : 1 out of 125.

16

ANNEX 2 - Proposals for the composition and organisation of the Commission

Amendments to Article I-25 of the draft Constitution

“1.

2.

3.

4.

5.

6.

7.

12

13

14

(unchanged)12

(unchanged)13

The Commission, including the President and the Minister for Foreign Affairs, shall
be made up of one national from each Member State.

The Commission shall be structured in Groups of Commissioners covering its main
spheres of competence, in accordance with its rules of procedure.

Decisions  by  the  Commission  shall  be  taken,  without  prejudice  to  the  following
paragraph, by a majority of its Members or adopted by a Group of Commissioners or
by one Member who is authorised to take decisions on its behalf.

The Commission shall decide by a majority of two thirds of its members to adopt its
rules of  procedure, specifying  how  Members  are  authorised  and  when  a matter can
be put before all the Members of the Commission for a decision.

The Commission shall work within the political guidelines laid down by its President
who will decide, without prejudice to paragraphs 3 and 4, on its internal organisation
in order to ensure that the Commission’s activities are  coherent,  effective and have
the support of all its Members.

The  President  shall  allocate  the  Commission’s  responsibilities  to  its  Members  and
may reshuffle their portfolios during his term of office.

The  Members  of  the  Commission  shall  perform  the  tasks  delegated  to  them  by  the
President under his authority.

A Commission Member shall resign if asked to do so by the President.

(paragraph 4 unchanged)14

The Commission, as a College, shall be responsible to the European Parliament.”

«The European Commission shall promote the general European interest and take appropriate initiatives
to that end. It shall ensure the application of the Constitution and steps taken by the Institutions under
the Constitution. It shall oversee the application of Union law under the control of the Court of Justice.
It  shall  execute  the  budget  and  manage  programmes.  It  shall  exercise  coordinating,  executive  and
management  functions,  as  laid  in  the  Constitution.  With  the  exception  of  the  common  foreign  and
security  policy,  and  other  cases  provided  for  in  the  Constitution,  it  shall  ensure  the  Union's  external
representation.  It  shall  initiate  the  Union's  annual  and  multiannual  programming  with  a  view  to
achieving interinstitutional agreements. »
«Except where the Constitution provides otherwise, Union legislative acts can be adopted only on the
basis of a Commission proposal. Other acts are adopted on the basis of a Commission proposal where
the Constitution so provides. »
«In carrying out its responsibilities, the Commission shall be completely independent. In the discharge
of  their  duties,  Members  of  the  Commission  shall  neither  seek  nor  take  instructions  from  any
government or other body.»

17

                                                
Amendments to Article I-26 of the draft Constitution

“1.

2.

(unchanged)15

The government of each Member State, except those of which the President and the
Minister  for  Foreign  Affairs  are  nationals,  shall  draw  up  a  list  of  three  persons,
representing  both  genders,  who  are  deemed  qualified  to  perform  the  duties  of  a
Member of the Commission.

The President shall choose one person from each of these lists to become a Member
of  the  Commission.  The  President,  the  Minister  for  Foreign  Affairs  and  the  other
Members of the Commission so designated shall be subject collectively to a vote of
approval by the European Parliament.

3.

After approval by the Parliament, the Commission  shall take  up its  duties from the
1 November  following  the  date  of  the  European  Parliament  elections.  The
Commission’s term of office shall be five years.”

Amendments to Articles III-250 to III-256

In  Articles  III-251,  III-252  and  III-253,  the  expression  “European  Commissioners
and Commissioners” should be replaced by “Members of the Commission”. Articles
III-250,  III-254,  III-255  and  III-256  must  be  deleted  since  the  substance  of  these
provisions is contained in Articles I-25 and I-26 as amended.

15

«Taking into account the elections to the European Parliament and after appropriate consultations, the
European  Council,  deciding  by  qualified  majority,  shall  put  to  the  European  Parliament  its  proposed
candidate  for  the  Presidency  of  the  Commission.  This  candidate  shall  be  elected  by  the  European
Parliament  by  a  majority  of  its  members.  If  this  candidate  does  not  receive  the  required  majority
support,  the  European  Council  shall  within  one  month  propose  a  new  candidate  to  the  European
Parliament, following the same procedure.»

18

                                                
ANNEX 3 - Example for the organisation of the Commission

The Commission could be organised in accordance with the following principles:

– 

– 

– 

– 

– 

– 

– 

– 

The Commission will create Groups of Commissioners.

Each  Group  will  be  made  up  of  at  least  seven  members;  apart  from  the
President, no Member of the Commission can be a Member of more than three
Groups.

The  composition  of  each  Group  will  be  decided  by  the  President,  who  must
take account of the responsibilities of each Commissioner and the need for the
Group to represent the entire College.

The  Minister  for  Foreign  Affairs  shall  chair  the  Group  of  Commissioners  for
the Union’s external activities. The Chairpersons of the other Groups shall be
appointed by the Commission, on a proposal from the President, from among
the members of each Group.

The  College  will  regularly  conduct  policy  guideline  debates  and  adopt  the
following decisions:

– 

– 

– 

the most important decisions set out in the rules of procedure (e.g. annual
programme, draft budget for the Union, financial perspective and referral
of judicial proceedings),

decisions  put  on  the  agenda  of  the  College  by  the  President  or  by  the
Group  responsible  for  the  matter  in  hand  where,  in  view  of  the
importance or the specific nature of the decision to be taken, it ought be
discussed by all the Members of the Commission,

any decision which a Member of the Commission considers, after taking
note of the draft decision of the competent Group, should be discussed by
the entire Commission.

Other  Commission  decisions  are  to  be  taken  on  its  behalf  by  the  Group  of
Commissioners responsible for the matter in hand.

The decisions of the Groups of Commissioners are to be taken by a majority of
their members.

Draft  decisions  taken  on  behalf  of  the  Commission  by  the  Groups  of
Commissioners are to be communicated in good time to all the Commissioners
who have the right to submit written comments for the attention of the Group
of Commissioners concerned.

19

ANNEX 4 - Streamlining of certain procedures

As  explained  in  point  26  of  the  Opinion,  the  Commission  requests  the  IGC  to  examine  in
particular the following points:

- Common agricultural policy -

In  Article  III-127,  the  draft  Constitution  quite  rightly  distinguishes  between
legislative agricultural policy measures (adopted by legislative procedure) and non-
legislative  ones,  although  the  latter  are  adopted  directly  under  the  Constitution,
which provides that regulations and decisions are to be adopted by the Council upon
a proposal from the Commission (paragraph 3).

However,  Article  III-127,  paragraph  3  should  also  provide  for  the  European
Parliament  to  be  consulted  in  the  interests  of  consistency  with  the  laws  and
framework laws adopted on agriculture and to prevent the Parliament from being at a
disadvantage vis-á-vis the current situation.

Moreover, an addition should be made to the effect that the measures implementing
the Council’s regulations and decisions are to be adopted by the Commission. As the
draft  Constitution  has  already  differentiated  between  legislative  and  non-legislative
measures, conferring upon the Council the authority to adopt the most important of
the latter, there is no reason for the Council to reserve for itself, in the Constitution,
the  power  to  implement  its  own  measures.  Article  I-36  allows  the  Council,  as  is
already  the  case,  to  give  itself  implementing  powers  in  secondary  legislation,  in
specific and duly justified cases.

- Coordination of social security systems -

Regulation  1408/71  set  up  a  system  for  coordinating  social  security  systems.  It  is
currently  based  on  Articles  42  EC  (for  employed  workers)  and  308  EC  (for  self-
employed  workers  and  other  persons  covered  by  social  security  schemes).  The
procedures  provided  for  under  these  articles  are  different  (Article  42:  codecision,
Article  308:  consultation  of  European  Parliament),  but  both  require  a  unanimous
decision by the Council. The Convention repealed the requirement for unanimity for
Article  42  (the  wording  of  which  is  reiterated  in  Article  III-21  of  the  draft
Constitution) because this legal basis provides for the codecision procedure.

Since  the  personal  scope  of  Regulation  1408/71  is  wider  than  employed  workers
alone,  Article  III-21  has  been  extended  to  self-employed  workers.  However,  these
amendments cannot actually take effect because Article III-21 does not cover all the
persons who benefit from Regulation 1408/71 (e.g. students and civil servants)  and
Article  308  (now  Article  I-17)  will  still  have  to  be  invoked.  The  Commission
requests the IGC to word Article III-21 in such a way that, in future, it forms the sole
legal basis for amendments to be made to Regulation 1408/71.

- Research policy -

Article  III-149  provides  for  a  multiannual  framework  programme  for  research  and
technological  development  to  be  established  under  European  law,  i.e.  by  the
legislative  procedure.  By  contrast,  the  specific  research  programmes  are  to  be
adopted by  the Council  under  paragraph  4  of  Article  III-149  upon  a  proposal  from

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the  Commission  and  after  consultation  with  the  European  Parliament.  The
multiannual  framework  programme  and  the  specific  programmes  form  a  whole
which is presented and adopted as an overall package. It would therefore be logical
to provide for the same procedure, namely the legislative procedure, to be applied for
adopting all the research programmes.

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ANNEX 5 - Comments on finalising the draft Constitution

The  Commission  hopes  that  the  Constitutional  Treaty  will  be  signed  -  as  the  Thessaloniki
European  Council  hoped  it  would  -  as  soon  as  possible  after  1 May  2004.  It  shares  many
people’s view that 9 May would be an entirely suitable symbolic date for the ceremony.

However, it will not be enough for the Conference to adopt the draft Constitution drawn up by
the  Convention,  improved  and  clarified  where  necessary,  since  it  does  not  cover  all  the
primary  law  of  the  Union  (including  the  accession  treaties  and  numerous  protocols)  yet
repeals and replaces the basic treaties (Treaty of Rome and Treaty of Maastricht). Much still
needs to be done before a complete and finalised text of the new Constitution of the Union is
available.

The  work  which  lies  ahead  is  largely  technical  and  legal,  and  could  be  done  by  the  three
institutions' legal services. But on some issues, political decisions still have to be taken. This
involves a wide range of issues, prompting the Commission to make the following comments.

- Treaties -

The Convention left it to the Intergovernmental Conference to draw up the Protocol on the list
of treaties and acts to be repealed (Article IV-2).

In order to be able to do so, the IGC must first examine in full the four foregoing accession
instruments  (1972,  1979,  1985  and  1994).  The  vast  majority  of  the  provisions  of  these
instruments are obsolete since the transitional periods have passed, but some of them and the
protocols attached to them are still in force. Some of the provisions, especially those covering
exceptions or special rules for certain territories, could prove to be politically highly sensitive.
The provisions which the IGC considers still to be relevant will have to be incorporated in the
Constitution or attached in a Protocol. The Commission recommends that this opportunity be
taken to rewrite in a single Protocol  all the provisions governing the territorial scope  of  the
Constitution  and  the  specific  rules  for  certain  territories  which  are  presently  contained  in  a
variety of instruments.

The  IGC  will  have  to  examine  what  amendments  need  to  be  made  to  the  most  recent
accession  treaty  (2003),  a  large  number  of  whose  provisions  will  still  be  current  when  the
Constitution comes into force, in order for it still to have effect despite the fact that the legal
framework to which the accession treaty refers will have been replaced by the Constitution.

- Protocols -

Drawing up a list of protocols which should remain applicable may prove to be an even more
delicate political matter. Over 30 protocols are attached to the EC and EU Treaties at present.
Some of them are of a general nature (such as the statutes of the Court of Justice, the ESCB,
the ECB and  the EIB) and  others  govern  very  specific  issues  or  establish  a  Member  State's
position  vis-á-vis  the  general  treaty  provisions.  As  far  as  the  latter  are  concerned,  the  IGC
should assess whether they should be maintained.

However, it is not enough to establish a list of protocols which must be upheld: the IGC will
have to align the texts of these protocols with the Constitution. This is not merely a matter of
replacing the references to the treaties but also of examining whether all the provisions of the
protocols are in line with the new rules of the legal order created by the Constitution and the
procedures and types of instruments it provides for.

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The Commission would like to draw attention in particular to the protocols on free movement
of  persons  and  integration  of  the  Schengen  acquis  in  the  Union's  framework.  Since  the
chapter  on  the  area  of  freedom,  security  and  justice  has  been  completely  rewritten,  these
protocols  must  also  be  revised  in  their  entirety.  The  Commission  recommends  that  this
opportunity be taken to simplify and streamline the legal regime for Schengen so that it is no
longer  a  form  of  reinforced  cooperation  but  the  legal  norm  which  Member  States  that
currently have special regimes can benefit from — if they wish to maintain the practical effect
of the current protocols — by means of a simple exempting clause with an opt-in. In any case,
the Commission takes the view that it is not possible to uphold exemptions which are based
on differences in the legal nature of a rule alone (international law or Union law) and not on
the application or non-application of the rule's substance.

- Declarations -

The Intergovernmental Conference must also  examine  the declarations made  when previous
treaties were signed by the  Intergovernmental Conference or  unilaterally  by  one  delegation.
Many  of  these  no  longer  apply  or  have  been  superseded  by  events.  Nevertheless,  some  of
them are still meaningful. Unlike protocols, declarations do not have binding legal force and
can therefore not be amended, repealed or upheld: once the provisions of the treaties to which
these declarations referred are repealed, they have no further relevance. The question facing
the IGC is therefore whether it wants new declarations with the substance of some of the old
ones and, if so, how they are to be worded. The same question arises with regard to unilateral
declarations,  although  the  Commission  strongly  recommends  to  the  delegations  to  make  as
few of these as possible. A large number of declarations is liable to give a false impression of
the Constitution's scope and might be poorly received by the public when the Treaty is being
ratified.

- Euratom Treaty -

The Convention drew up a Protocol repealing several provisions of the Treaty establishing the
European  Atomic  Energy  Community  (Euratom).  It  was  drafted  on  the  assumption  that  the
legal  personality  of  this  Community  would  be  merged  with  that  of  the  Union,  but  the
Convention  decided  to  propose  that  a  separate  legal  personality  be  upheld  for  Euratom,
failing,  however,  to  make  the  amendments  to  the  protocol  this  change  in  approach  would
require.  In the absence of  any  provisions on  the joint  institutional  framework  for  the  Union
and Euratom, of any provision equivalent to the current Article 305 EC and of provisions on
the  revision  and  scope  of  the  Euratom  Treaty,  the  legal  framework  of  the  Euratom
Community remains incomplete and the legal relationship between the Euratom Community
and the Union based on the Constitution has not been settled.

- Other aspects of finalisation of the Constitutional Treaty -

The Convention also left it to the Intergovernmental Conference to draft two more protocols:
- Protocol on structured cooperation on defence (Article III-213)
- Protocol  establishing  conditions  under  which  the  institutions'  acts  remain  in  force  (Article
IV-3).

As regards the latter, which is crucial to legal certainty and which must be drawn up in such a
way as not to be subject to legal challenge, the Commission recommends that the IGC direct
the  legal  services  of  the  three  institutions  to  prepare  a  draft  jointly  and  to  ask  the  Court  of
Justice for an opinion on it.

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Finally,  the  Intergovernmental  Conference  will  have  to  assess  the  general  balance  of  the
Constitution. The draft Constitution repeats some provisions (especially those in the Charter)
and  there  are  inconsistencies  between  the  provisions  in  Part  I  and  Part  III.  Part  I  has  long
articles  on  implementing  certain  policies  (see  Articles  I-39,  I-40,  I-41  and  I-56),  and
provisions  relating  to  a  single  policy  are  dispersed  throughout  the  Constitution,  making  it
more  difficult  to  follow,  running  the  risk  of  contradictions  and  leading  to  repetition.  The
Commission  also  thinks  that  some  of  the  institutional  provisions  now  contained  in  Part  III
deserve a place in Part I of the Constitution.

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