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Contribution to a Preliminary Draft Constitution of The EUROPEAN COMMISSION FEASIBILITY STUDY CONTRIBUTION TO A PRELIMINARY DRAFT C ONSTITUTION OF THE EUROPEAN U NION WORKING DOCUMENT This document was produced, at the request of President PRODI in agreement with Mr BARNIER and Mr VITORINO by a working party under the responsibility of François LAMOUREUX and made up of Marie LAGARRIGUE, Paolo STANCANELLI, Pieter VAN NUFFEL, Alain VAN SOLINGE, with the technical assistance of Marguerite GAZZE 04/12/2002 THIS FEASIBILITY STUDY DOES NOT NECESSARILY REPRESENT THE VIEWS OF THE EUROPEAN COMMISSION STRUCTURE AGREEMENT ON THE ENTRY INTO FORCE OF THE TREATY ON THE CONSTITUTION OF THE EUROPEAN UNION CONSTITUTION OF THE EUROPEAN UNION I PRINCIPLES TITLE IFOUNDATIONS TITLE II TASKS TITLE III POWERS TITLE IV INSTITUTIONS TITLE VINSTRUMENTS TITLE VI THE DEMOCRATIC LIFE OF THE UNION TITLE VII FINANCE TITLE VIII MISCELLANEOUS PROVISIONS TITLE IX REVISION AND ACCESSION II FUNDAMENTAL RIGHTS III POLICIES PART 1 POLICIES FOR DEVELOPING THE EUROPEAN MODEL OF SOCIETY TITLE IINTERNAL MARKET TITLE II COMPETITION TITLE III AGRICULTURE AND FISHERIES TITLE IV TRANSPORT TITLE VECONOMIC AND SOCIAL COHESION TITLE VI SOCIAL POLICY AND EMPLOYMENT TITLE VII ENVIRONMENT TITLE VIII RESEARCH AND TECHNOLOGICAL DEVELOPMENT TITLE IX CONSUMER PROTECTION TITLE XTRANS-EUROPEAN NETWORKS TITLE XI HEALTH TITLE XII COMPLEMENTARY ACTION PART 2 ECONOMIC AND MONETARY POLICY TITLE ICOORDINATION OF ECONOMIC POLICIES TITLE II MONETARY POLICY TITLE III TRANSITIONAL PROVISIONS PART 3 REINFORCEMENT OF THE AREA OF FREEDOM, SECURITY AND JUSTICE TITLE IINTERNAL AND EXTERNAL BORDERS AND FREE MOVEMENT OF PERSONS TITLE II ASYLUM AND IMMIGRATION TITLE III CRIMINAL LAW AND POLICE COOPERATION TITLE IV FREE MOVEMENT OF ACTS IN JUDICIAL AND CIVIL MATTERS PART 4 EXTERNAL RELATIONS POLICY TITLE ICONSISTENCY TITLE II INSTRUMENTS AND PROCEDURES TITLE III EXTERNAL REPRESENTATION AND INTERNATIONAL ORGANISATIONS TITLE IV TRANSITIONAL PROVISIONS ADDITIONAL ACTS TO THE CONSTITUTION ADDITIONAL ACT TO THE CONSTITUTION n° 1 - Defence ADDITIONAL ACT TO THE CONSTITUTION n° 2 –Peaceful use of atomic energy ADDITIONAL ACT TO THE CONSTITUTION n° 3 - Association of the overseas countries and territories ADDITIONAL ACT TO THE CONSTITUTION n° 4 – Supplementary institutional provisions ADDITIONAL ACT TO THE CONSTITUTION n° 5 – Territorial application, protocols, transitional and miscellaneous provisions CONTENTS • Method ............................................................................. I • Agreement on the entry into force of the Treaty on the Constitution of the European Union .................................. A • TEXT OF THE CONSTITUTION OF THE EUROPEAN UNION ...... 1 I PRINCIPLES ......................................................... 3 II FUNDAMENTAL RIGHTS .................................. 33 III POLICIES............................................................ 46 • ADDITIONAL ACTS TO THE CONSTITUTION........................ 89 • Summary ........................................................................... I • Table of contents “Il est utile d’avoir des idées d’ensemble même fausses. Car une vue d’ensemble ressemblera toujours plus à une vérité d’ensemble qu’une vision de détails.” Paul Claudel METHOD The purpose of this working document is to give a general idea of the content of a future Constitution of the European Union - not only the institutional part but also the policies to be carried out within the framework of the Constitution. The work follows on from that begun at the Commission’s request by the European University Institute in Florence (EUI).1 The purpose of the EUI feasibility study was to rationalise the Treaties by distinguishing between the essential provisions and the less important ones which nonetheless had to be retained because of the need to leave the substance unchanged. However, the Convention context makes it possible - and it is the aim of this exercise - to go beyond the existing provisions with regard to the institutions, and to simplify the policies while ensuring that the acquis communautaire remains as it is and that no new powers are enshrined in the Constitution. This is the first document to give a practical view of what the future Constitution might look like. I. General approach 1. Basic concept The basic concept is to provide the Union with a Constitution which replaces the existing treaties. The structure of this contribution essentially follows that established by the Praesidium of the European Convention.2 Taking the line already set by the Commission,3 the exercise has tried to be comprehensive: − drafting of a “text of a constitutional nature” which puts in a single instrument all the present Treaties by merging the Union and Community Treaties, doing away with the pillars and incorporating the Charter of Fundamental Rights; 1 “A basic treaty for the European Union”, study by the European University Institute (EUI) on the reorganisation of the Treaties (Report submitted on 15 May 2000 to Romano Prodi, President of the European Commission). 2 Preliminary draft of the Constitutional Treaty of 28 October 2002 (CONV 369/02). 3 Commission Communication to the Convention of 22 May 2002 “A Project for the European Union” COM(2002)247, point 2 “A Constitutional Treaty”, p. 18. I − simplification of the Treaties, which “contain hundreds of provisions of various importance and scale”, by eliminating provisions on policies which are obsolete, redundant or unnecessary; − “distinction between the fundamental provisions (fundamental rights, organisation of powers, principles of the common policies) and the application provisions which can be modified by less stringent procedures than the current treaties”; − “critical reappraisal” of the derogations enjoyed by certain Member States; − response to “the consequences of any failure to ratify by one or more Member States of the Union”. This working document is therefore divided into three parts: − principles: the key institutional principles and a statement of the key objectives for each policy; − fundamental rights: the text of the Charter is taken over in full with just three operational provisions added. Inclusion of the Charter for political reasons makes the Constitution far less reader-friendly. A variant would be to include the Charter as an Additional Act (as envisaged also by the Convention Praesidium). It must be realised that certain provisions of the Charter reappear elsewhere in the document, such as those relating to political parties or the ban on discrimination; − policies: this part describes the content of the policies and contains the legal bases for implementing them. It is divided into four parts: policies for developing the European model of society (the internal market and its flanking policies), economic and monetary policy, policy to strengthen the area of freedom, security and justice, and external relations policy. Attached to the Constitution are five Acts which form an integral part but which can - except for Acts Nos 1 and 2 - be amended more easily than the Constitution itself: − Additional Act No 1. Defence, applicable solely to the Member States subscribing to the obligation of mutual assistance in the event of an attack, which should be defined in Article 6(2) of the Constitution. The Additional Act would put in place a capacity for deciding on and conducting military operations in external theatres in response to international crises or in the territory of the Union in response, for example, to terrorist attacks by non- State entities. It would organise the development of an internal market in defence goods and services and of the European arms industry through joint research projects and industrial projects. It would set up a European Arms Agency; II − Additional Act No 2. Peaceful use of atomic energy, which takes over all the provisions of the Euratom Treaty except those which are obsolete or duplicate the general provisions of the Constitution; − Additional Act No 3. Association of Overseas Countries and Territories; − Additional Act No 4. Supplementary institutional provisions (taking over the institutional provisions which do not rank as principles); − Additional Act No 5. Territorial application, protocols, transitional and other provisions (dealing with the Acts of Accession and “Schengen” provisions). The preliminary draft of the Constitution is also accompanied by an Agreement on its entry into force in order to propose a solution to the problem - almost inextricable in law - of the situation which arises if a State refuses to ratify the new Treaty establishing the Constitution. This structure differs from that presented by the Praesidium of the Convention principally on two points. One is political and consists in the absence of a rigid classification of categories of powers (exclusive, concurrent, national). The other is technical and consists in more detailed provisions on the tasks of the Union and the objectives of the policies in Part I of the Constitution (Principles). 2. Simplification The work of simplifying the existing policies (Part III of the Constitution) follows necessarily from the structure chosen, which involves a technical rewriting and the necessary modernisation of terminology without touching the substance. It can be characterised as a genuine updating, as referred to by the Commission in its Communication of 22 May 2002 on “A Project for the European Union”. This is also the method envisaged by the preliminary draft of the Treaty drawn up by the Praesidium of the Convention. The simplification
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