A Fundamental Law of the European Union

The Spinelli Group, Bertelsmann Stiftung

A Fundamental Law of the European Union Bibliographic information published by the Deutsche Nationalbibliothek

The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliograﬁ e; detailed bibliographic data is available on the Internet at http://dnb.d-nb.de.

© 2013 Verlag Bertelsmann Stiftung, Gütersloh Responsible: Thomas Fischer, Joachim Fritz-Vannahme Production editor: Christiane Raffel Cover design: Elisabeth Menke Cover illustration: Shutterstock/Adisa Typesetting and Printing Hans Kock Buch- und Offsetdruck GmbH, Bielefeld ISBN 978-3-86793-537-1 www.bertelsmann-stiftung.org/publications A Fundamental Law

The unity of Europe is vital if global challenges are to be met and European values and interests promoted. But how should the new polity of the European Union be governed? The present constitutional architecture is hardly fi t for the purpose. Executive authority is dispersed and democratic accountability weak. Expedient measures needed to address the fi nancial and economic crisis have stretched the present EU treaties close to their limits. The Union’s system of governance must be reformed if it is to deliver much needed public goods at home and decisive leadership abroad. In the face of hostile public opinion, the national governments of its Member States fear to give the EU the powers and resources it needs. National parties and parliaments fail to embrace the European dimension of politics. So the European Union needs to assert itself. European challenges can be met only in a European way. This proposal for a Fundamental Law of the European Union is a comprehensive revision of the Treaty of Lisbon (2007). Replacing the existing treaties, it takes a major step towards a federal union. It turns the European Commission into a democratic constitutional government, keeping to the method built by Jean Monnet in which the Commission drafts laws which are then enacted jointly by the Council, representing the states, and the European Parliament, representing the citizens. All the reforms proposed are aimed at strengthening the capacity of the EU to act. The Union reformed along the lines established in the Fundamental Law will be more effi cient and effective, more transparent and accountable. The Spinelli Group of MEPs recommends the Fundamental Law for consideration by the Convention which will soon be called upon to amend the EU treaties.

Table of Contents

Foreword ...... 9

How to Read the Text ...... 10

A Fundamental Law of the European Union: Why Europe Needs a New Constitutional Treaty – Commentary ...... 11

Fundamental Law Text ...... 21

Preamble ...... 22

Part I – Constitutional Provisions ...... 25 Chapter One – Main Articles ...... 25 Chapter Two – Powers and Competences...... 47 Chapter Three – The Functioning of the Institutions...... 53 Chapter Four – The Legal Acts of the Union ...... 67 Chapter Five – Enhanced Cooperation ...... 76 Chapter Six – General Provisions ...... 82 Chapter Seven – Final Provisions ...... 85

Part II – The Charter of Fundamental Rights of the European Union ...... 97

Part III – The Finances of the Union ...... 117

Part IV – Economic and Monetary Union ...... 128 Chapter One – Economic and Monetary Policy ...... 128 Chapter Two – The Eurozone ...... 144

Part V – The Policies of the Union ...... 149 Chapter One – General Provisions ...... 149 Chapter Two – Non-Discrimination and Citizenship of the Union ...... 151 Chapter Three – The Internal Market ...... 157 Chapter Four – Competition, Taxation and Approximation of Laws ...... 161 Chapter Five – Employment ...... 170 Chapter Six – European Society ...... 174 Chapter Seven – Agriculture and Fisheries ...... 186 Chapter Eight – Transport ...... 192 Chapter Nine – Trans-European Networks ...... 194 Chapter Ten – Industry ...... 196 Chapter Eleven – Economic, Social and Territorial Cohesion ...... 198 Chapter Twelve – Research and Technological Development and Space ...... 200

7 Table of Contents

Chapter Thirteen – Environment ...... 203 Chapter Fourteen – Energy ...... 207

Part VI – Freedom, Security and Justice within the Union ...... 211 Chapter One – Area of Freedom, Security and Justice ...... 211 Chapter Two – Civil Protection ...... 229 Chapter Three – Administrative Cooperation ...... 230

Part VII – Association of the Overseas Territories ...... 231

Part VIII – The External Action of the Union ...... 233 Chapter One – General Provisions ...... 233 Chapter Two – Common Foreign and Security Policy...... 237 Chapter Three – Common Security and Defence Policy...... 247 Chapter Four – Common Commercial Policy ...... 255 Chapter Five – International Relations ...... 258 Chapter Six – International Agreements ...... 264 Chapter Seven – Solidarity...... 270

Protocols ...... 272

Tables of Equivalences ...... 291

Last Words ...... 305

8 Foreword

A Fundamental Law of the European Union is elaborated under the auspices of the Spinelli Group whose board comprises Elmar Brok, Dany Cohn-Bendit, Andrew Duff, Isabelle Durant, Sylvie Goulard, Roberto Gualtieri, Jo Leinen and Guy Verhof- stadt. A working party of MEPs was established under the coordination of Andrew Duff. While all support its publication as an important contribution to the debate on the future of Europe, members of the Spinelli board are not bound individually by all aspects of the draft treaty. The writing of A Fundamental Law has been shaped by discussions in the wider group of Spinelli MEPs and in the Union of European Federalists. A number of ofﬁ cials from the EU institutions, who remain anonymous, have helped us with sound advice, as have our own collaborators: Matteo Adduci, Philip Drauz, Maria Laura Formisano, Daniel Freund, Guillaume McLaughlin, Fabian Pescher, Maxime Rolland-Calligaro, Miriam Schoeps, Pierre-Jean Verrando, Christian Wenning and Sietse Wijnsma. Pier-Virgilio Dastoli gave us the beneﬁ t of his long experience in the federalist circles. From outside the institutions, we thank Christophe Hillion and René Repasi, and our many interlocutors in governments and parliaments, think- tanks and academic circles who, perhaps unwittingly, have shaped our approach. We thank the Bertelsmann Stiftung, which shares with the Spinelli Group the leitmotif for a federal Europe, for its support. The Bertelsmann Stiftung publishes the Fundamental Law as a major contribution to the debate on the future of Europe.

9 How to Read the Text

The text of the Fundamental Law of the European Union postulates a general revision of the Treaty of Lisbon (2007). It amalgamates the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), and updates and amends them. It integrates the Charter of Fundamental Rights (CFR). It incorporates the essence of the Euratom Treaty (1957) and of the Fiscal Compact Treaty (2012). The 1976 Act on the direct election of the European Parliament, as amended, is transported into a protocol. There are 437 articles in eight parts, plus a preamble, and 18 protocols. Each chapter is preceded by a short explanatory comment summarising its main features. Part I (Articles 1–144) contains all the constitutional and institutional provisions. Part II (Articles 145–198) is the Charter. Part III (Articles 199–217) concerns the ﬁ nances of the Union. Part IV (Articles 218–246) is the policies and organisation of economic and monetary union. Part V (Articles 247–376) lays out the sectoral policies of the Union. Part VI (Articles 377–398) deals with the area of freedom, security and justice. Part VII (Articles 399–405) covers the association of overseas territories. Part VIII (Articles 406–437) provides for the external affairs of the Union. The new treaty is laid out in the right-hand column. Equivalent clauses from the TEU, TFEU and CFR are laid out in the left-hand column. No change is indicated by ‘…..’ in both columns. Words emboldened seek to draw attention to the more important changes and novelties. In stylistic changes, ‘Member States’ become ‘States’, and ‘national parliaments’ become ‘State Parliaments’. The ofﬁ cial text of the current treaties and the Charter is found at: http://register. consilium.europa.eu/pdf/en/08/st06/st06655-re07.en08.pdf Finally, a table of equivalences marries the old and the new.

10 A Fundamental Law of the European Union: Why Europe Needs a New Constitutional Treaty

Commentary

The fi nancial and economic crisis has exposed many shortcomings in the way the European Union is run. Confi dence that the experiment of European integration is ‘condemned to succeed’ has been shaken. The hope that the introduction of the euro would lead smoothly to the greater integration of Europe’s national economies has been dashed. The cohesion of the eurozone and the wider internal market is at risk. Growth has stalled and the drive to greater competitiveness is frustrated. Govern- ments have been too weak to complete the structural reforms which they espouse. National supervision of the banking sector has failed. At the level of the heads of government, meeting in the European Council, the response has tended to be too little too late. Under the pressure of external shocks, the EU has managed to put in place a regulatory framework for the fi nancial services sector which should prevent a banking meltdown. Smart action by the European Central Bank (ECB) has so far avoided a country from exiting the euro. But for all the crisis management measures, progress towards building a proper banking union has slowed and confi dence has not returned. Courtesy of the EU and the IMF, fi scal discipline has been imposed in countries that could not impose it upon themselves. Yet rigid austerity is proving counterproductive, certainly in terms of youth unem- ployment and of escalating national debt. In such circumstances it is hardly a surprise that ‘Europe’ is getting blamed, although the precise target of the blame remains unclear because the governance of the Union is diffuse and opaque. Citizens who look to Europe for more solidarity are bound to be disappointed. Despite many months of technical talks, the political debate among Europe’s leaders about the possibility of sharing the burden between tax-payers at the European level has scarcely begun. The large majority of national party leaders in government and opposition maintain their rhetorical commitment to the Union, but the European Council has had to resort to ways and means outside the Union framework, such as the fi scal compact treaty, to shore up the single currency. The governance of the Union itself looks incapable of effective action and is accused of lacking deep democratic legitimacy. Nationalist opposition to the European project, masquerading as ‘euro- scepticism’, grows. And abroad, in a troubled world, much more is expected of the European Union in international affairs than it is able to deliver. Although the European External Action Service is operational, the reforms introduced by the Treaty of Lisbon to the

11 Why Europe Needs a New Constitutional Treaty

direction of the EU’s common foreign, security and defence policies have not succeeded as much as was hoped.

So how should a more united Europe best be governed?

In response to this crisis, federalists argue that the European Union must deepen its integration or risk falling apart. ‘More of the same’ is not an option. The historic mission to unite Europe’s states and peoples needs to be refurbished. Reform needs to be driven not by a retreat to old nationalisms but by a fresh assertion of the values and principles on which the Union is founded, aided by modern standards of open, democratic government, with the powers and resources needed to meet contemporary challenges. These challenges require the Union to reform fundamentally its constitutional architecture. A more federal structure would provide for more unity and cohesion between its member states and more solidarity among its citizens. By ‘federal’ we do not mean a centralised superstate but, rather, a constitutional union in which different levels of democratic government are coordinate, not subordinate. The federal legal framework would serve to strengthen government at the level of the Union for the exercise of those competences conferred by treaty on the Union. A more federal democratic system would bring the Union and its citizens closer together, and make the Union’s institutions more responsive to the needs and aspirations of the people they serve. These reforms, building on what has been achieved so far and lessons learned during the crisis, brought together in a Fundamental Law, will bolster the European Union for the longer term at home and abroad.

Status quo no longer

Reluctance to embark on the complex and serious business of EU treaty reform is perfectly understandable. Many are intimidated by the relative failure of the last big effort to develop the Union along federal lines, a process which started in 2001 at Laeken but stumbled in the humiliation of the French and Dutch referendums in 2005, and was only to be concluded when the Treaty of Lisbon came into force in December 2009. We should do better this time: the scale and gravity of the present crisis change the context in which this round of reform is conducted as well as providing the occasion for it. Although much has been and is being done under the Treaty of Lisbon to address the crisis, treaty revision is inescapable if the more ﬁ scally integrated Union is to be put on a surer foundation. A new treaty is needed to mark the important fresh stage in European integration in which the eurozone is transformed into a ﬁ scal union run by a federal economic government. To fail to make this transformation jeopard- ises the EU’s very survival. The present treaties are being stretched close to their

12 Commentary

limits by the welter of crisis management measures, which unintentionally render the EU even more ofﬁ cious and technocratic than before. Where is the democratic legitimacy of the European Council, for example, in imposing tax rises in Greece or wage cuts in Portugal? How is the European Commis- sion to be held accountable for its work as a member of the economic troika, along with the ECB and the IMF? While such a situation might be tolerable on the grounds of expediency in the very short term, there is bound to be an adverse reaction in the markets and in the courts, to say nothing of on the streets, if nothing is done to regularise the situation by restoring in a democratic manner the scrupulous rule of law.

How to change the treaties

Article 48 of the Treaty on European Union tells us how to change the treaties. The amendment process will start with a Convention and continue with an Intergovern- mental Conference. It will conclude with ratifi cation by all 28 Member States of the Union according to their own constitutional requirements. In several countries, either those constitutional requirements or mere political expediency will involve the holding of a national referendum. How successful and quick this constitutional exercise will be depends on the scope of its ambition and, to some extent, on the quality of its preparation. The Spinelli Group of federalist MEPs publishes this Fundamental Law as a contribution to that preparation. We draw conclusions from our experience of previous rounds of treaty change, and do not hesitate to recommend adjustments to the Treaty of Lisbon in the quest for a better governed Union. We look forward to receiving in due course other informed contributions towards treaty change, not least from the European Commission. We already know that the intergovernmental Treaty on Stability, Coordination and Governance (better known as the fi scal compact treaty) lays down that its substance is to be incorporated into the legal framework of the Union before the end of 2017. Likewise, some elements of the ambitious agenda for banking and fi scal union require legal bases which can only be assured through treaty change. Pressure from the judiciary will also spur the treaty revision exercise – not least from the German Federal Constitutional Court in Karlsruhe, worried about the democratic legitimacy of the European project and the incursion of the Union into areas of law, notably on taxation, which have previously been subject to the exclusive realm of national parliaments. We take note of the intention of the British Prime Minister, David Cameron, to renegotiate the terms of British membership of the EU. By way of a catalyst, the UK government is already conducting a unilateral review of EU competences and powers, presumably with an eye to possible repatriation. A referendum looks certain in Britain as soon as 2017, presumably on the outcome of the treaty negotiations.

13 Why Europe Needs a New Constitutional Treaty

So, starting in all probability in spring 2015, there will be a Convention to draft the treaty amendments. The main items on the agenda of the Convention begin already to be clear: to codify in the primary law of the Union the essential elements of reinforced economic governance; to rectify some of the weaker provisions of the Lisbon treaty; and to cater for British renegotiation. The Convention will be made up of representatives of the European Council, the European Commission, the European Parliament and national parliaments. It will sit probably for many months to reﬂ ect on the present state of the Union, to consult widely, and to consider the various proposals for reform. It will work by consensus, and its outcome will be sent forward to member states in the hope that unanimity can be achieved. The Convention process in itself provides a high degree of democratic legitimacy combined with legal rigour, in which national governments and parliaments have equal status with the EU institutions.

New forms for new functions

For the sake of argument, let us call our new constitutional treaty A Fundamental Law of the European Union. Merging the current Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) into one document allows us to shorten the whole by reducing repetition and eliminating duplication, and to rearrange the chapters in a more logical way. We lift many prohibitions on the powers of the European Commission, European Parliament and European Court of Justice, rendering the system of governance more permissive and thus more capable. The number of different types of decision- making procedure is reduced. Most passerelle clauses, blocking minorities, emergency brakes, automatic accelerators are abolished – all clever devices which may or may not have been intended ever to be used, but the inclusion of which in the Lisbon treaty has led in practice to nervous disorder. Likewise, many of the 37 Protocols and 65 Declarations attached to the Treaty of Lisbon, which seek to blunt the force or bend the interpretation of original clauses, are proposed to be deleted. In making these changes, we will unlock the potential of the Union and reduce the sense of instability. This treaty revision is meant to last: the Fundamental Law must reassure the citizen that it provides a durable settlement of the business of the governance of the Union, along with a clearer sense of things to come. The Fundamental Law implies a renewal of the pact on which the Union is founded along overtly federal lines. Those who sign up to it will be committing to the building of a federal polity with an enhanced capacity to act in any given ﬁ eld. Membership of the euro is taken as given once the convergence criteria are met. Methods are proposed to closely associate the ‘pre-ins’ with the decisions of the eurozone. The scope for opt-outs and derogations is minimised. States will be expected to conform to the emerging common foreign, security and defence policies of the Union as well as to the development of the area of freedom, security and justice.

14 Commentary

Mindful of the need to protect the integrity of the existing corpus of EU law, our new treaty evolves from its predecessors and builds on experience. The purpose of the Fundamental Law is to provide a robust constitutional framework inside which Europe’s governors and law makers are enabled to make effective choices about the future direction of policy and the joint management of their affairs. At the same time, the Union must be amply equipped with such competences and its institutions with such powers as are needed to meet new challenges, not least in ﬁ scal matters and also in the energy sector where we integrate the essence of the Euratom Treaty.

Sharing the burden

The main innovation of the Fundamental Law, spelt out in Part IV, is the installation of an economic government of the fi scal union. It will become possible for the Union to develop a common economic policy in addition to coordinating national economic policies. The eurozone is deemed to operate under the provisions of enhanced cooperation which allow some states to integrate further and faster than others. The euro states, for example, will enjoy their own fi scal capacity for contra-cyclical purposes in addition to the general EU budget. The government of the Union’s fi nancial and economic policies is based on the European Commission which will acquire a treasury facility for the borrowing and lending of funds. A new post of Treasury Minister is created with the job of stabilising the Union’s economy and allocating its resources. Since economic policy reforms by the member states impact upon the rest of the Union, national plans must be discussed and coordinated ex ante. In order to ensure the establishment and the functioning of the internal market and to avoid distortion of competition, the Union can adopt acts in accordance with the ordinary legislative procedure to harmonise direct and indirect taxes. The Fundamental Law provides for the European Stability Mechanism to operate in primary as well as secondary markets. While codifying the new supervisory powers of the European Central Bank as the cornerstone of the banking union, it makes provision for the subsequent creation of a possible single fi nancial services authority. The Fundamental Law permits the progressive mutualisation of a portion of sovereign debt, and lifts the prohibition, under certain conditions, on EU defi cit fi nancing. Legal bases are created for a common resolution mechanism and a deposit guarantee scheme. The Fundamental Law codifi es in primary law the key elements of the recent Six Pack and Two Pack legislation which strengthened EU surveillance and supervision of the individual state economies. The European Parliament has extended powers in the design of the employment and macro-economic policy guidelines, and both it and national parliaments obtain powers to intervene in the application of the excessive debt and defi cit procedures. A decision by the Commission declaring a

15 Why Europe Needs a New Constitutional Treaty

state to be in excessive debt or defi cit will be valid unless the Council can marshal substantial opposition to it. In Part III of the Fundamental Law, the Union’s fi nancial system is transformed, involving the abolition of rigid juste retour and the phasing out of the system of direct contributions from national treasuries. Revenue based on direct and indirect taxation will accrue directly to the EU. We abolish the unanimity rule for the decisions on own resources and the multi-annual fi nancial framework. In a change to the annual budgetary procedure, we oblige the Council to share with the Parliament the responsibility of concluding an agreement. The new fi nancial system of the Union will be fair, transparent and buoyant.

Democratic government

The Fundamental Law makes it explicit that Parliament and Council form the legislature of the Union and that the Commission is to be regarded as its government. Many of the executive powers now held by the Council are transferred to the Commis- sion, subject to a possible recall by the legislature. This clearer separation of powers should make it possible for each institution to be held to account for its performance. The role of the European Council is adjusted to reduce the risk of tension and confusion between it and the Commission. The post of supernumerary ‘permanent’ President of the European Council is abolished in favour of the election by the heads of government of one of their number to chair their meetings for a period of two and a half years. The European Council is made more responsible than it is today for directing and coordinating the affairs of the Council of ministers: heads of government will be enabled to sit as the General Affairs Council. Refl ecting its role as a legislative chamber, the rotating presidency of the Council of ministers is replaced by the election, in and by each formation of the Council, of a chair for two and a half years. The president of the Council of fi nance ministers (Ecofi n) will also chair the Eurogroup. These changes will surely enhance continuity and improve the quality of chairmanship. The European Parliament, representing directly the 508 million EU citizens, plays the central role in safeguarding the legitimacy of decisions. Throughout the Fundamental Law, co-decision between Parliament and Council replaces the Council’s current rights to legislate alone. That change involves, among others, the design of the European Stability Mechanism, and the formulation of employment and macro-economic guidelines. The European Commission is made more directly accountable to the European Parliament. The President-elect of the Commission is empowered to choose the size and composition of his or her own college, subject to parliamentary hearings. We assume a smaller Commission. This important change will provide for a more effi cient executive less beholden to national governments and more capable of defi ning and promoting the common interest of all states and citizens.

16 Commentary

As far as the European Parliament is concerned, provision is made for a pan- European constituency from which a certain number of deputies will be elected from trans-national lists. Such electoral reform will turn the European political parties into decent campaigning organisations, providing what is now a missing link between the electorate and elected. Parliament gains the power of co-decision on the vexed question of its seat. And it will have the right to vote on the opening and closure of all international agreements, and to give its assent to the accession of a new member state. While the Commission retains its right to initiate EU laws, Parliament and Council gain the right to launch their own legislative proposals if the Commission declines to do their bidding. Parliament is enabled to push for the sacking of an individual Commissioner. In the case where MEPs decide to censure the whole Commission, Parliament must at the same time be able to elect a successor.

Citizenship a reality

As a federal entity the legitimacy of the European Union stems from two distinct sources, its states and its citizens. Through a change in the Preamble this is made clear in the very beginning of the Fundamental Law. We upgrade the status and content of European Union citizenship by giving rightful prominence to the Charter of Fundamental Rights, incorporated in full as Part II of the Fundamental Law. The rules to determine whether a state has breached fundamental rights are modifi ed: Qualifi ed majority voting (QMV) is introduced at the level of the European Council, and the European Parliament and Court of Justice get to be involved. Access to the European Court of Justice is eased signifi cantly for individuals directly and adversely affected by an EU act. The judicial scope of the Court is widened to embrace areas from which it is at present excluded, including the sensitive fi elds of internal and external security policy. The European Ombudsman is enabled to defend the citizens’ rights more effec- tively, especially by gaining the right to refer cases of a breach of the Charter to the Court of Justice. The scope of the European Citizens’ Initiative is considerably widened to include political agenda-setting. A legal base is established to extend the right of every EU citizen living in EU states other than their own to vote in all elections.

Streamlined decisions

Parts V and VI see a rationalisation and streamlining of decision-making procedures, enhancing transparency and efﬁ ciency. The Fundamental Law greatly extends

17 Why Europe Needs a New Constitutional Treaty

QMV in the Council at the expense of unanimous decision making. Notably, this change affects the important ‘fl exibility clause’ which allows action to be taken by the Union in certain circumstances when such action has not been expressly foreseen by the treaties. The Fundamental Law reduces the number of main decision-making procedures to only two. The fi rst, the ordinary decision-making procedure, stays unchanged. The second is a special legislative procedure that replaces the numerous different procedures of the current treaties, and provides for higher QMV thresholds in both Council and Parliament. Since legislative procedures with unanimous voting requirements are almost entirely abolished throughout the Fundamental Law, the bridging clauses (passerelles), which gave the European Council the possibility to apply QMV in place of unanimity lose their purpose and are deleted. The areas concerned include the multiannual fi nancial framework, social affairs, environmental policy, justice and home affairs, as well as common foreign and security policy. Only the main passerelle, which allows the European Council to transfer matters decided in accordance with the special legislative procedure to the ordinary legislative procedure, as well as the passerelle to ease the decision-making procedures under enhanced cooperation are kept. A specifi c new legal base is created for EU agencies.

Common policies refreshed

Part V reforms the chapters on the common policies of the Union and brings a sharper focus to those which need it. While maintaining the basic free movements of goods, persons, services and capital, the Fundamental Law strengthens the defence of the European social models. Economic policy and the policies of the internal market must be conducted in accordance with the principle of an open, highly competitive social market economy. The Union gains competence to legislate on the fi scal component of free movement of labour, abetting the portability of entitlements across national frontiers. By tightening the horizontal social clause the Union will integrate requirements linked to the promotion of a high level of employment and social protection. Under the Fundamental Law, economic freedoms may not impair the exercise of social rights and principles as provided for in Union and state law. The lifting of the prohibition for the Union to legislate on pay further strengthens the social aspect. In addition to the new competence of the Union in the fi eld of energy supply, aimed at creating a genuine internal market, the provisions of the Euratom treaty with respect to nuclear safety are incorporated. Both the common agricultural policy and common fi sheries policy are modernised and disentangled from each other.

18 Commentary

A new competition authority is created at arm’s length from the European Commission in recognition of the fact that a more overtly political Commission should not also exercise quasi-judicial functions. Other policies, such as transport and R&D, are refreshed as necessary to refl ect contemporary conditions. Environment policy takes on the additional task of combating climate change. In Part VI, current prohibitions on the harmonisation of national laws in the fi eld of justice and interior affairs are lifted, raising the prospect of a more integrated European area of freedom, security and justice, including fully-fl edged common asylum and immigration policies.

Punching its weight

In Part VIII, the treatment of common foreign and security policy (CFSP) is brought to be more closely aligned with the normal decision-making procedures, not least by enhancing the roles of the Commission and the Foreign Minister. The European Parliament is given the opportunity to exercise a right of consent if it acts within a strict time-limit. The Foreign Minister, who will be assisted by two political deputies, will continue to chair the Foreign Affairs Council but will be anchored more fi rmly within the Commission. (She or he, with the Treasury Minister will be senior vice-presidents of the college.) The Foreign Minister will normally represent the Union in international fora. The jurisdiction of the Court of Justice is extended over CFSP, and the scope of the fl exibility clause is also widened to include CFSP. The normal procedure for the use of enhanced cooperation will now also apply to CFSP. The powers and accountability of the European Defence Agency are enhanced. The Commission and Parliament also gain powers in the negotiation and conclusion of the Union’s international treaties. Parliament’s approval will be needed for all international agreements, including those in CFSP. Parliament will also be consulted over operational decisions. Taken together, these reforms should give a much-needed impulse to the external action of the Union. The Fundamental Law simplifi es and clarifi es who does what in relation to common foreign, security and defence policies and to the international trade policy of the Union. We assume that a growth in mutual trust within the Council will lead to a greater willingness to use QMV, as well as agreement to let clusters of states act on behalf of the Union as a whole.

Radical constitutional changes

The Fundamental Law brings back the symbols of the Union (the ﬂ ag and the anthem) which were jettisoned from the Treaty of Lisbon. It also elevates into the

19 Why Europe Needs a New Constitutional Treaty

provisions on enlargement the critical Copenhagen criteria on good governance which must apply to candidate states. There are two further reforms of major constitutional importance which make the Fundamental Law stand out from previous efforts at treaty revision. The fi rst concerns the method of future treaty change. Here, we keep the method of the Convention, in which decisions are reached by consensus. But we modify the procedure for the Intergovernmental Conference to allow amendments to be agreed by three quarters of the states. The European Parliament gains the right of assent to treaty changes. Any future new treaty will enter into force either once ratifi ed by four fi fths of the states representing a majority of the EU population or, if carried in a pan-EU referendum, by a simple majority. This less rigid approach to constitutional amendment will bring the EU into line with all other international organisations and federal states, and help to avoid situations in which one recalcitrant state can take the rest hostage. The second important constitutional change fl ows directly from the fi rst. EU states cannot be forced against their will to take the federal step. At the same time, such states cannot be allowed an open-ended possibility to pick and choose what they want from the EU and discard the rest. The point has been reached when yet more à la carte opt-outs and derogations risk fracturing the cohesion of the acquis communautaire. Free-riding means disintegration. The Fundamental Law creates a new category of associate membership for any member state which chooses not to join the more federal union. Each associate state would negotiate its own arrangement with the core states. Rights and duties would have to be clear. Institutional participation would necessarily be limited. Continued allegiance to the Union’s values would be required, but political engagement in the Union’s objectives would be reduced. Associate membership could cater for the needs of Norway, Iceland and Switzer- land, seeking to improve on their present unsatisfactory arrangements. Other countries, notably Turkey, choosing not to join the EU but desiring and deserving a permanent, structured relationship with it, might fi nd associate membership to be a credible lasting settlement.

Such are the main features of the Fundamental Law, a new constitutional treaty which will strengthen the governance and cohesion of the Union and bolster democratic conﬁ dence in our common endeavour to build a better Europe.

20 FUNDAMENTAL LAW TEXT

COMMENT ON THE PREAMBLE

This Preamble replaces the two preambles from the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). It draws from the Treaty of Paris of 1951 (‘destiny henceforward shared’) and from the Treaty of Rome of 1957 (‘ever closer union’). It introduces the idea of the interdependence of member states of the EU and asserts the openly federal character of the reformed EU which is postulated by this new Fundamental Law (FL). It deﬁ nes the much misrepresented concept of federalism as ‘deriving legitimacy from popular sovereignty in which no one level of government is subordinate to another but each is coordinate’.

To underline the legitimacy of the new federal union the Preamble asserts itself on behalf of ‘We the Peoples of Europe’ in place of the heads of the old nation states. The European peoples are to be represented in the constitutional Convention which drafts the Fundamental Law by both the member states and the institutions of the European Union (in the form of representatives of the heads of government and of European Commission, and Members of the European Parliament and national parliaments).

21 PREAMBLE

CURRENT TREATIES FUNDAMENTAL LAW

PREAMBLE PREAMBLE

HIS MAJESTY THE KING OF THE WE THE PEOPLES OF EUROPE, REPRE- BELGIANS, HER MAJESTY THE QUEEN SENTED BY THE INSTITUTIONS AND OF DENMARK, THE PRESIDENT OF THE MEMBER STATES OF THE EUROPEAN FEDERAL REPUBLIC OF GERMANY, THE UNION, PRESIDENT OF IRELAND, THE PRESIDENT OF THE HELLENIC REPUBLIC, HIS MAJESTY THE KING OF SPAIN, THE PRESIDENT OF THE FRENCH REPUBLIC, THE PRESIDENT OF THE ITALIAN REPUBLIC, HIS ROYAL HIGHNESS THE GRAND DUKE OF LUXEMBOURG, HER MAJESTY THE QUEEN OF THE NETHERLANDS, THE PRESIDENT OF THE PORTUGUESE REPUBLIC, HER MAJESTY THE QUEEN OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND,

RESOLVED to mark a new stage in the RESOLVED to substitute for age-old rivalries process of European integration undertaken the merging of our essential interests; to create with the establishment of the European a broad and deep community among peoples Communities, long divided; and to lay the foundations for institutions which will give direction to a destiny henceforward shared,

RECALLING the historic importance of the ending of the division of the European continent and the need to create fi rm bases for the construction of the future Europe,

CONFIRMING their attachment to the prin- CONFIRMING our attachment to the principles of liberty, democracy and respect for ciples of liberty, democracy and respect for human rights and fundamental freedoms human rights and fundamental freedoms and of the rule of law, and of the rule of law,

CONFIRMING their attachment to fundamental social rights as defi ned in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers,

DESIRING to deepen the solidarity between DESIRING to deepen the solidarity between their peoples while respecting their history, our peoples while respecting their history, their culture and their traditions, their culture and their traditions,

22 PREAMBLE

DESIRING to enhance further the democratic and effi cient functioning of the institutions so as to enable them better to carry out, within a single institutional framework, the tasks entrusted to them,

RESOLVED to achieve the strengthening and the convergence of their economies and to establish an economic and monetary union including, in accordance with the provisions of this Treaty and of the Treaty on the Func- tioning of the European Union, a single and stable currency,

DETERMINED to promote economic and social progress for their peoples, taking into account the principle of sustainable development and within the context of the accomplish- ment of the internal market and of reinforced cohesion and environmental protection, and to implement policies ensuring that advances in economic integration are accompanied by parallel progress in other fi elds,

RESOLVED to establish a citizenship common to nationals of their countries,

RESOLVED to implement a common foreign and security policy including the progressive framing of a common defence policy, which might lead to a common defence in accordance with the provisions of Article 42, thereby reinforcing the European identity and its independence in order to promote peace, security and progress in Europe and in the world,

RESOLVED to facilitate the free movement of persons, while ensuring the safety and security of their peoples, by establishing an area of freedom, security and justice, in accordance with the provisions of this Treaty and of the Treaty on the Functioning of the European Union,

AFFIRMING as the essential objective of our efforts the constant improvements of the living and working conditions of the people,

23 PREAMBLE

CONFIRMING the interdependence of the Member States of the European Union,

RESOLVED to continue the process of RESOLVED to continue the process of creating an ever closer union among the creating an ever closer union among the peoples of Europe, in which decisions are peoples of Europe by building a federal union taken as closely as possible to the citizen in deriving legitimacy from popular sovereignty accordance with the principle of subsidiarity, in which no one level of government is subordinate to another but each is coordinate,

IN VIEW of further steps to be taken in order to advance European integration,

RESOLVED by thus pooling their resources to preserve and strengthen peace and liberty, and calling upon the other peoples of Europe who share their ideal to join in their eff orts,

HAVE DECIDED to establish a European HAVE DECIDED to establish a European Union and to this end have designated as Union and to this end have designated as their Plenipotentiaries: ….. their Plenipotentiaries: …..

24 PART I CONSTITUTIONAL PROVISIONS

CHAPTER ONE

This chapter sets out in 16 articles the basic precepts, values, principles and objectives of the European Union, along with the outline of its system of governance.

Article 1 establishes that the Fundamental Law is a constitutional treaty which re-founds the EU to mark the new and necessarily more federal phase of European integration. In keeping with the Preamble, the Union’s competences are conferred on it by the Member States and the citizens. The Fundamental Law replaces all the current EU treaties.

Article 2 sets out the values and Article 3 the objectives of the Union. Article 4 sets out general principles of Union law, including its own, well-attested primacy. A new paragraph 4, reﬂ ecting jurisprudence of the Court of Justice (ECJ), makes explicit the need for the states to recognise their constitutional obligations to the Union. Article 5 lays down three speciﬁ c principles, namely conferral of competences, subsidiarity and proportionality.

Article 6 establishes the allegiance of the Union to fundamental rights, notably those spelled out in the Charter, which is incorporated for the ﬁ rst time in the treaties (as Part II). We remove the nervous constraints prescribed by the Lisbon treaty on the potential of the Charter to extend the powers of the Union. This process will accelerate once the EU has acceded to the ECHR. (Note that ex-Article 7 TEU on what happens if a state breaches fundamental rights is moved to Article 133 FL.)

Articles 7 and 8 introduce the idea of EU citizenship. A new paragraph makes it clear that the Parliament and Council form the legislature, and that the Commission is the government. Article 9 broadens the scope of the European Citizens’ Initiative. Article 10 sets out the role in EU affairs of national parliaments, now including the possibility to call for a hearing on the excessive debt and deﬁ cit procedure.

Article 11 introduces the EU institutions. In Article 12 we reform the electoral law of the Parliament to include a pan-European constituency electing MEPs from transnational party lists. An arithmetical formula for the apportionment of the rest of the seats is foreseen. Parliament’s basic voting procedures are prescribed.

25 PART I

Article 13 redeﬁ nes and limits the role of the European Council as taking responsibility for the direction and coordination of the business of the Council of ministers. The heads of government may meet in the formation of the General Affairs Council. The President of the European Council will be elected by his or her peers, and shall report more frequently to the Parliament. The Presidents of the Commission and Parliament will participate in meetings of the European Council.

Article 14 redeﬁ nes the role of the Council of ministers in the main not as an executive authority but as a legislative chamber. The Council will have two basic, simpliﬁ ed voting procedures. The Foreign Minister continues to chair the Council of Foreign Affairs. Otherwise, the current rotating presidency is abolished in favour of each formation electing its own chair, coordinated by the General Affairs Council. The chair of the Council of Economic and Financial Affairs will chair the Eurogroup.

Article 15 is the cardinal provision about the Commission. Among the modiﬁ cations are that: (a) the Commission’s legislative duties are enlarged; (b) Parliament and Council may, as a last resort, take over the Commission’s right of legislative initiative; (c) the size of the Commission is to be decided by its President-elect, who will nominate the other members of the college; (d) Commissioners-designate will be subject to Parliamentary hearings; (e) the Commission may now only be censured by the Parliament, acting by an absolute majority (rather than two thirds), in a construc- tive vote of no conﬁ dence. The Foreign Minister and Treasury Minister will be Commission Vice-Presidents.

Article 16 introduces the Court of Justice, and permits the proposed new category of associate states to appoint judges.

26 CHAPTER ONE

COMMON PROVISIONS MAIN ARTICLES

Article 1 Article 1 (ex-Article 1 TEU)

By this Treaty, the HIGH CONTRACTING By this constitutional treaty, the HIGH PARTIES establish among themselves a CONTRACTING PARTIES establish among EUROPEAN UNION, hereinafter called ‘the themselves a EUROPEAN UNION, herein- Union’, on which the Member States confer after called ‘the Union’, on which its States competences to attain objectives they have and citizens confer competences to attain in common. objectives they have in common.

This Treaty marks a new stage in the This Treaty marks a new stage in the process of creating an ever closer union process of creating a federal union among among the peoples of Europe, in which the peoples of Europe, in which decisions decisions are taken as openly as possible are taken as openly as possible and as and as closely as possible to the citizen. closely as possible to the citizen.

The Union shall be founded on the present The Union is re-founded on the present Treaty and on the Treaty on the Functioning of Fundamental Law of the European Union the European Union (hereinafter referred to as which shall replace and succeed the Treaty on ‘the Treaties’). Those two Treaties shall have European Union, the Treaty on the Func- the same legal value. The Union shall replace tioning of the European Union and the Treaty and succeed the European Community. establishing the European Atomic Energy Community.

Article 2 Article 2 (ex-Article 2 TEU)

The Union is founded on the values of The Union is founded on the values of respect for human dignity, freedom, respect for human dignity, freedom, democracy, equality, the rule of law and democracy, equality, the rule of law and respect for human rights, including the respect for human rights, including the rights of persons belonging to minorities. rights of persons belonging to minorities. These values are common to the Member These values are common to its States and States in a society in which pluralism, non- citizens in a society in which pluralism, discrimination, tolerance, justice, solidarity non-discrimination, tolerance, justice, soli- and equality between women and men darity and equality between women and prevail. men prevail.

27 PART I

Article 3 Article 3 (ex-Article 3 TEU)

1. The Union’s aim is to promote peace, its 1. The Union’s aim is to promote peace, its values and the well-being of its peoples. values and the well-being of its peoples.

2. The Union shall offer its citizens an area 2. The Union shall offer its citizens an area of freedom, security and justice without of freedom, security and justice without internal frontiers, in which the free internal frontiers, in which the free movement of persons is ensured in movement of persons is ensured in conjunction with appropriate measures with conjunction with appropriate measures respect to external border controls, asylum, with respect to external border controls, immigration and the prevention and asylum, immigration and the prevention combating of crime. and combating of crime.

3. The Union shall establish an internal 3. The Union shall establish an internal market. It shall work for the sustainable market. It shall work for the sustainable development of Europe based on balanced development of Europe based on balanced economic growth and price stability, a economic growth and price stability, a highly competitive social market economy, highly competitive social market economy, aiming at full employment and social aiming at full employment and social progress, and a high level of protection and progress, and a high level of protection and improvement of the quality of the environ- improvement of the quality of the environment. It shall promote scientiﬁ c and tech- ment. It shall promote scientiﬁ c and technological advance. nological advance.

It shall combat social exclusion and It shall combat social exclusion and discrimination, and shall promote social discrimination, and shall promote social justice and protection, equality between justice and protection, equality between women and men, solidarity between genera- women and men, solidarity between gener- tions and protection of the rights of the ations and protection of the rights of the child. child.

It shall promote economic, social and terri- It shall promote economic, social and territorial cohesion, and solidarity among torial cohesion, and solidarity among its Member States. States and citizens.

It shall respect its rich cultural and It shall respect its rich cultural and linguistic diversity, and shall ensure that linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded Europe’s cultural heritage is safeguarded and enhanced. and enhanced.

4. The Union shall establish an economic 4. The Union shall establish an economic and monetary union whose currency is the and monetary union whose currency is the euro. euro.

28 CHAPTER ONE

5. In its relations with the wider world, the 5. In its relations with the wider world, the Union shall uphold and promote its values Union shall uphold and promote its values and interests and contribute to the protec- and interests and contribute to the protection of its citizens. It shall contribute to tion of its citizens. It shall contribute to peace, security, the sustainable development peace, security, the sustainable develop- of the Earth, solidarity and mutual respect ment of the Earth, solidarity and mutual among peoples, free and fair trade, eradica- respect among peoples, free and fair trade, tion of poverty and the protection of human eradication of poverty and the protection of rights, in particular the rights of the child, human rights, in particular the rights of as well as to the strict observance and the the child, as well as to the strict observance development of international law, including and the development of international law, respect for the principles of the United including respect for the principles of the Nations Charter. United Nations Charter.

6. The Union shall pursue its objectives by 6. The Union shall pursue its objectives by appropriate means commensurate with the appropriate means commensurate with the competences which are conferred upon it in competences which are conferred upon it the Treaties. under this Fundamental Law.

Article 4 Article 4 (ex-Article 4 TEU)

1. In accordance with Article 5, competences 1. The Union shall respect the equality of not conferred upon the Union in the Treaties its States under the Fundamental Law as well remain with the Member States. as their national identities, inherent in their fundamental structures, political and 2. The Union shall respect the equality of constitutional, inclusive of regional and Member States before the Treaties as well as local self-government. It shall respect their their national identities, inherent in their essential state functions, including fundamental structures, political and consti- ensuring the territorial integrity of the tutional, inclusive of regional and local self- State, maintaining law and order and safe- government. It shall respect their essential guarding State security. State functions, including ensuring the territorial integrity of the State, maintaining law 2. The Fundamental Law and the law adopted and order and safeguarding national security. by the Union on the basis of the Fundamental In particular, national security remains the sole Law have primacy over the law of its States. responsibility of each Member State.

3. Pursuant to the principle of sincere 3. Pursuant to the principle of sincere cooperation, the Union and the Member cooperation, the Union and its States shall, States shall, in full mutual respect, assist in full mutual respect, assist each other in each other in carrying out tasks which ﬂ ow carrying out tasks which ﬂ ow from the from the Treaties. Fundamental Law.

The Member States shall take any appro- The States shall take any appropriate priate measure, general or particular, to measure, general or particular, to ensure ensure fulﬁ lment of the obligations arising fulﬁ lment of the obligations arising out of out of the Treaties or resulting from the acts the Fundamental Law or resulting from the of the institutions of the Union. acts of the institutions of the Union.

29 PART I

The Member States shall facilitate the The States shall facilitate the achievement achievement of the Union’s tasks and refrain of the Union’s tasks and refrain from any from any measure which could jeopardise measure which could jeopardise the attain- the attainment of the Union’s objectives. ment of the Union’s objectives.

4. When undertaking constitutional reform at the national level, the States shall comply with their obligations as a state of the Union and pay due regard to the principles on which the Union is founded.

Article 5 Article 5 (ex-Article 5 TEU)

1. The limits of Union competences are 1. The limits of Union competences are governed by the principle of conferral. The governed by the principle of conferral. The use of Union competences is governed by the use of Union competences is governed by the principles of subsidiarity and proportionality. principles of subsidiarity and proportionality.

2. Under the principle of conferral, the 2. Under the principle of conferral, the Union shall act only within the limits of the Union shall act only within the limits of the competences conferred upon it by the competences conferred upon it by its States Member States in the Treaties to attain the and citizens under the Fundamental Law to objectives set out therein. Competences not attain the objectives set out therein. Compe- conferred upon the Union in the Treaties tences not conferred upon the Union under remain with the Member States. the Fundamental Law remain with the States.

3. Under the principle of subsidiarity, in 3. Under the principle of subsidiarity, in areas which do not fall within its exclusive areas which do not fall within its exclusive competence, the Union shall act only if and competence, the Union shall act only if and in so far as the objectives of the proposed in so far as the objectives of the proposed action cannot be sufﬁ ciently achieved by the action cannot be sufﬁ ciently achieved by its Member States, either at central level or at States, either at central level or at regional regional and local level, but can rather, by and local level, but can rather, by reason of reason of the scale or effects of the proposed the scale or effects of the proposed action, action, be better achieved at Union level. be better achieved at Union level.

The institutions of the Union shall apply the The institutions of the Union shall apply principle of subsidiarity as laid down in the the principle of subsidiarity as laid down in Protocol on the application of the principles Protocol No 2 on the application of the prin- of subsidiarity and proportionality. National ciples of subsidiarity and proportionality. Parliaments ensure compliance with the State Parliaments ensure compliance with principle of subsidiarity in accordance with the principle of subsidiarity in accordance the procedure set out in that Protocol. with the procedure set out in that Protocol.

4. Under the principle of proportionality, 4. Under the principle of proportionality, the content and form of Union action shall the content and form of Union action shall not exceed what is necessary to achieve the not exceed what is necessary to achieve the objectives of the Treaties. objectives of the Fundamental Law.

30 CHAPTER ONE

The institutions of the Union shall apply the The institutions of the Union shall apply the principle of proportionality as laid down in principle of proportionality as laid down in the Protocol on the application of the princi- the Protocol on the application of the principles of subsidiarity and proportionality. ples of subsidiarity and proportionality.

Article 6 Article 6 (ex-Article 6 TEU)

1. The Union recognises the rights, 1. The Union recognises and promotes the freedoms and principles set out in the Charter rights, freedoms and principles set out in of Fundamental Rights of the European the Charter of Fundamental Rights of the Union of 7 December 2000, as adapted at European Union as laid down in Part Two of Strasbourg, on 12 December 2007, which the Fundamental Law. shall have the same legal value as the Treaties.

The provisions of the Charter shall not extend in any way the competences of the Union as defi ned in the Treaties.

The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.

2. The Union shall accede to the European 2. The Union shall accede to the European Convention for the Protection of Human Convention for the Protection of Human Rights and Fundamental Freedoms. Such Rights and Fundamental Freedoms. accession shall not aff ect the Union’s competences as defi ned in the Treaties.

3. Fundamental rights, as guaranteed by 3. Fundamental rights, as guaranteed by the European Convention for the Protection the Charter of Fundamental Rights of the of Human Rights and Fundamental European Union, the European Convention Freedoms and as they result from the for the Protection of Human Rights and constitutional traditions common to the Fundamental Freedoms and as they result Member States, shall constitute general from the constitutional traditions common principles of the Union’s law. to the States, shall constitute general principles of the Union’s law.

4. The Union shall act in the case of a serious or a persistent breach of fundamental rights by a State or Associate State in accordance with the provisions of Articles 133 and 134.

Article 7 [delete] …..

31 PART I

Article 8 [delete] …...

PROVISIONS ON DEMOCRATIC DEMOCRATIC PRINCIPLES PRINCIPLES

Article 9 Article 7 (ex-Article 9 TEU)

In all its activities, the Union shall observe In all its activities, the Union shall observe the principle of the equality of its citizens, the principle of the equality of its citizens, who shall receive equal attention from its who shall receive equal attention from its institutions, bodies, ofﬁ ces and agencies. institutions, bodies, ofﬁ ces and agencies. Every national of a Member State shall be a Every national of a State shall be a citizen of citizen of the Union. Citizenship of the the Union. Citizenship of the Union shall Union shall be additional to and not replace be additional to and not replace State citi- national citizenship. zenship.

Article 10 Article 8 (ex-Article 10 TEU)

1. The functioning of the Union shall be 1. The functioning of the Union shall be founded on representative democracy. founded on representative democracy.

2. Citizens are directly represented at 2. Citizens are directly represented at Union level in the European Parliament. Union level in the European Parliament.

Member States are represented in the States are represented in the European European Council by their Heads of State or Council by their Heads of State or Govern- Government and in the Council by their ment and in the Council by their govern- governments, themselves democratically ments, themselves democratically account- accountable either to their national Parlia- able either to their State Parliaments, or to ments, or to their citizens. their citizens.

3. The European Parliament and the Council form the two chambers of the Union legislature. The European Commission is the government of the Union and is appointed by and answerable to the legislature.

3. Every citizen shall have the right to 4. Every citizen shall have the right to participate in the democratic life of the participate in the democratic life of the Union. Decisions shall be taken as openly Union. Decisions shall be taken as openly and as closely as possible to the citizen. and as closely as possible to the citizen.

4. Political parties at European level 5. Political parties at European level contribute to forming European political contribute to forming European political awareness and to expressing the will of awareness and to expressing the will of citizens of the Union. citizens of the Union.

32 CHAPTER ONE

Article 11 Article 9 (ex-Article 11 TEU)

1. The institutions shall, by appropriate 1. The institutions shall, by appropriate means, give citizens and representative means, give citizens and representative associations the opportunity to make associations the opportunity to make known and publicly exchange their views in known and publicly exchange their views in all areas of Union action. all areas of Union action.

2. The institutions shall maintain an open, 2. The institutions shall maintain an open, transparent and regular dialogue with transparent and regular dialogue with representative associations and civil society. representative associations and civil society.

3. The European Commission shall carry 3. The European Commission shall carry out broad consultations with parties out broad consultations with parties concerned in order to ensure that the concerned in order to ensure that the Union’s actions are coherent and trans- Union’s actions are coherent and transparent. parent.

4. Not less than one million citizens who 4. Not less than one million citizens who are nationals of a signiﬁ cant number of are nationals of a signiﬁ cant number of Member States may take the initiative of States may take the initiative of inviting the inviting the European Commission, within the European Commission, the European Parlia- framework of its powers, to submit any appro- ment or the Council, within the framework priate proposal on matters where citizens of their powers and in accordance with the consider that a legal act of the Union is Fundamental Law, to take a legislative initia- required for the purpose of implementing the tive. Treaties.

The procedures and conditions required for such a citizens’ initiative shall be determined in accordance with the fi rst paragraph of Article 24 of the Treaty on the Functioning of the European Union.

33 PART I

Article 12 Article 10 (ex-Article 12 TEU)

National Parliaments contribute actively to State Parliaments contribute actively to the the good functioning of the Union: good functioning of the Union:

(a) through being informed by the institu- (a) through being informed by the institutions of the Union and having draft legisla- tions of the Union and having draft legislative acts of the Union forwarded to them in tive acts of the Union forwarded to them in accordance with the Protocol on the role of accordance with the Protocol No 1 on the national Parliaments in the European role of State Parliaments in the European Union; Union;

(b) by seeing to it that the principle of (b) by seeing to it that the principle of subsidiarity is respected in accordance with subsidiarity is respected in accordance with the procedures provided for in the Protocol the procedures provided for in the Protocol on the application of the principles of No 2 on the application of the principles of subsidiarity and proportionality; subsidiarity and proportionality;

(c) by taking part, within the framework of (c) by taking part, within the framework of the area of freedom, security and justice, in the area of freedom, security and justice, in the evaluation mechanisms for the imple- the evaluation mechanisms for the implementation of the Union policies in that area, mentation of the Union policies in that area; in accordance with Article 70 of the Treaty on the Functioning of the European Union, and (d) by requiring the European Parliament to through being involved in the political moni- hold a hearing with the Council and Commis- toring of Europol and the evaluation of Euro- sion in the case of an excessive defi cit just’s activities in accordance with Articles 88 procedure; and 85 of that Treaty;

(d) by taking part in the revision procedures (e) by taking part in the revision procedures of the Treaties, in accordance with Article of the Fundamental Law, in accordance with 48 of this Treaty; Article 135;

(e) by being notiﬁ ed of applications for (f) by being notiﬁ ed of applications for accession to the Union, in accordance with accession to the Union, in accordance with Article 49 of this Treaty; Article 136;

(g) by being notiﬁ ed of applications for associate membership of the Union, in accordance with Article 137;

(f) by taking part in the inter parliamentary (h) by taking part in the inter-parliamentary cooperation between national Parliaments cooperation between State Parliaments and and with the European Parliament, in with the European Parliament, in accord- accordance with the Protocol on the role of ance with Protocol No 1. national Parliaments in the European Union.

34 CHAPTER ONE

PROVISIONS ON THE INSTITUTIONS THE GOVERNANCE OF THE UNION

Article 13 Article 11 (ex-Article 9 TEU)

1. The Union shall have an institutional 1. The Union shall have an institutional framework which shall aim to promote its framework which shall aim to promote its values, advance its objectives, serve its values, advance its objectives, serve its interests, those of its citizens and those of interests, those of its citizens and those of the Member States, and ensure the consist- the States, and ensure the consistency, ency, effectiveness and continuity of its effectiveness and continuity of its policies policies and actions. and actions.

The Union’s institutions shall be: The Union’s institutions shall be:

– the European Parliament, – the European Parliament,

– the European Council, – the European Council,

– the Council, – the Council,

– the European Commission (hereinafter – the European Commission (hereinafter referred to as ‘the Commission’), referred to as ‘the Commission’),

– the Court of Justice of the European – the Court of Justice of the European Union, Union,

– the European Central Bank, – the European Central Bank,

– the Court of Auditors. – the Court of Auditors.

2. Each institution shall act within the 2. Each institution shall act within the limits of the powers conferred on it in the limits of the powers conferred on it by the Treaties, and in conformity with the proce- Fundamental Law, and in conformity with dures, conditions and objectives set out in the procedures, conditions and objectives them. The institutions shall practice mutual set out in it. The institutions shall practice sincere cooperation. mutual sincere cooperation.

3. The provisions relating to the European Central Bank and the Court of Auditors and detailed provisions on the other institutions are set out in the Treaty on the Functioning of the European Union.

35 PART I

4. The European Parliament, the Council 3. The European Parliament, the Council and the Commission shall be assisted by an and the Commission shall be assisted by an Economic and Social Committee and a Economic and Social Committee and a Committee of the Regions acting in an Committee of the Regions acting in an advisory capacity. advisory capacity.

Article 14 Article 12 (ex-Article 14 TEU)

1. The European Parliament shall, jointly 1. The European Parliament shall, jointly with the Council, exercise legislative and with the Council, form the legislature of the budgetary functions. It shall exercise Union. It shall exercise legislative and functions of political control and consulta- budgetary functions and functions of tion as laid down in the Treaties. It shall political control and consultation as laid elect the President of the Commission. down in the Fundamental Law. It shall elect the President of the Commission.

2. The European Parliament shall be 2. The European Parliament shall be composed of representatives of the Union’s composed of representatives of the Union’s citizens. They shall not exceed seven citizens. They shall not exceed seven hundred and ﬁ fty in number, plus the hundred and ﬁ fty in number, plus the President. Representation of citizens shall be President. degressively proportional, with a minimum threshold of six members per Member State. 3. A certain number of Members of the Parlia- No Member State shall be allocated more than ment shall be elected in the States. That ninety-six seats. number shall be apportioned to the States according to the principle of degressive propor- The European Council shall adopt by tionality, with a minimum base of fi ve unanimity, on the initiative of the European Members per State. In addition, a certain Parliament and with its consent, a decision number of Members of the Parliament shall be establishing the composition of the elected in a single constituency comprising the European Parliament, respecting the princi- whole territory of the Union. ples referred to in the fi rst subparagraph. 4. Before the end of the fourth calendar year of each parliamentary term, the European Parliament, acting on its own initiative, and the Council may adopt, in accordance with the special legislative procedure, a decision establishing the apportionment of seats and the electoral procedure which will apply at the subsequent election of the Parliament. This decision shall respect the principles referred to in paragraphs 2 and 3 and the provisions of Protocol No 3.

3. The members of the European Parlia- 5. The Members of the European Parlia- ment shall be elected for a term of ﬁ ve years ment shall be elected for a term of ﬁ ve years by direct universal suffrage in a free and by direct universal suffrage in a free and secret ballot. secret ballot.

36 CHAPTER ONE

4. The European Parliament shall elect its 6. The European Parliament shall elect its President and its ofﬁ cers from among its President and its ofﬁ cers from among its members. Members.

7. Save as otherwise provided in the Funda- mental Law, the European Parliament shall act by a majority of the votes cast.

8. Under the special legislative procedure, the European Parliament shall act by a majority of its component Members.

Article 15 Article 13 (ex-Article 15 TEU)

1. The European Council shall provide the 1. The European Council shall defi ne the Union with the necessary impetus for its general political direction and priorities of the development and shall deﬁ ne the general Council. political directions and priorities thereof. It shall not exercise legislative functions.

2. The European Council shall consist of 2. The European Council shall consist of the Heads of State or Government of the the Heads of State or Government of the Member States, together with its President States. The President of the Commission, and the President of the Commission. The the President of the European Parliament and High Representative of the Union for Foreign the President of the European Central Bank Aff airs and Security Policy shall take part in may participate in its meetings. its work.

3. The European Council shall meet twice 3. The European Council shall meet twice every six months, convened by its President. every six months, convened by its President. When the agenda so requires, the members When the situation so requires, the of the European Council may decide each to President shall convene a special meeting of be assisted by a minister and, in the case of the European Council. Except where the the President of the Commission, by a Fundamental Law provides otherwise, member of the Commission. When the decisions of the European Council shall be situation so requires, the President shall taken by consensus. convene a special meeting of the European Council. Without prejudice to the fi rst subparagraph, the European Council may meet in the 4. Except where the Treaties provide formation of the General Aff airs Council. otherwise, decisions of the European Council shall be taken by consensus.

37 PART I

5. The European Council shall elect its 5. The European Council shall elect its President, by a qualiﬁ ed majority, for a term President, by a qualiﬁ ed majority, for a term of two and a half years, renewable once. In of two and a half years, renewable once. the event of an impediment or serious misconduct, the European Council can end the Presi- The President shall present a report to the dent’s term of offi ce in accordance with the European Parliament before and after each same procedure. of the meetings of the European Council.

6. The President of the European Council:

(a) shall chair it and drive forward its work;

(b) shall ensure the preparation and continuity of the work of the European Council in cooperation with the President of the Commission, and on the basis of the work of the General Aff airs Council;

(d) shall present a report to the European Parliament after each of the meetings of the European Council.

The President of the European Council shall, at his level and in that capacity, ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union for Foreign Aff airs and Security Policy.

The President of the European Council shall not hold a national offi ce.

Article 16 Article 14 (ex-16 TEU & 238 TFEU)

1. The Council shall, jointly with the 1. The Council shall, jointly with the European Parliament, exercise legislative European Parliament, form the legislature of and budgetary functions. It shall carry out the Union. It shall exercise legislative and policy-making and coordinating functions as budgetary functions. It shall carry out other laid down in the Treaties. functions as laid down in the Fundamental Law.

38 CHAPTER ONE

2. The Council shall consist of a represent- 2. The Council shall consist of a representative of each Member State at ministerial ative of the government of each State, who level, who may commit the government of shall commit the government of the State in the Member State in question and cast its question and cast its vote. vote.

3. The Council shall act by a qualiﬁ ed 3. The Council shall act by a qualiﬁ ed majority except where the Treaties provide majority except where the Fundamental otherwise. Law provides otherwise.

Where it is required to act by a simple majority, the Council shall act by a majority of its component members.

Absence or abstentions by Members present in person or represented shall not prevent the adoption by the Council of acts which require unanimity.

4. As from 1 November 2014, a qualifi ed 4. Under the ordinary legislative procedure, majority shall be defi ned as at least 55 % of the qualifi ed majority in the Council shall be the members of the Council, comprising at defi ned as at least 55 % of the members of the least fi fteen of them and representing Council representing the participating States Member States comprising at least 65 % of comprising at least 65 % of the population of the population of the Union. these States.

A blocking minority must include at least four Council members, failing which the qualifi ed majority shall be deemed attained.

The other arrangements governing the qualifi ed majority are laid down in Article 238(2) of the Treaty on the Functioning of the European Union.

5. The transitional provisions relating to the 5. Under the special legislative procedure, the defi nition of the qualifi ed majority which shall qualifi ed majority in the Council shall be be applicable until 31 October 2014 and those defi ned as at least two thirds of the members of which shall be applicable from 1 November the Council representing the States comprising 2014 to 31 March 2017 are laid down in the at least 75 % of the population of the Union; Protocol on transitional provisions.

39 PART I

6. The Council shall meet in different 6. The Council shall meet in different conﬁ gurations, the list of which shall be adopted conﬁ gurations. in accordance with Article 236 of the Treaty on the Functioning of the European Union.

The General Affairs Council shall ensure The General Affairs Council shall ensure consistency in the work of the different consistency and coordination in the work of Council conﬁ gurations. It shall prepare and the different Council conﬁ gurations. ensure the follow-up to meetings of the It shall prepare and ensure the follow-up to European Council, in liaison with the meetings of the European Council, in President of the European Council and the liaison with the President of the European Commission. Parliament and the President of the Commission. The Foreign Aff airs Council shall elaborate the Union’s external action on the basis of strategic guidelines laid down by the European Council and ensure that the Union’s action is consistent.

7. A Committee of Permanent Representa- 7. A Committee of Permanent Representa- tives of the Governments of the Member tives of the Governments of the Member States shall be responsible for preparing the States shall be responsible for preparing the work of the Council. work of the Council.

8. The Council shall meet in public when 8. The Council shall meet in public when it deliberates and votes on a draft legislative it deliberates and votes on a draft legislative act. To this end, each Council meeting shall act. To this end, each Council meeting shall be divided into two parts, dealing respec- be divided into two parts, dealing respectively with deliberations on Union legisla- tively with deliberations on Union legislative acts and non-legislative activities. tive acts and non-legislative activities.

9. The Presidency of Council conﬁ gura- 9. The Chairs of the Council conﬁ gurations, tions, other than that of Foreign Affairs, other than that of Foreign Affairs, shall be shall be held by Member State representatives held by one of the members of each Council for in the Council on the basis of equal rotation, in a period of two and a half years. The term of the accordance with the conditions established in Chair shall be renewable once. The election of accordance with Article 236 of the Treaty on the Chair shall be by simple majority. the Functioning of the European Union. In the case that no decision can be reached within a reasonable time on the election of a Chair to a confi guration of the Council, the matter shall be referred to the European Council, which shall take a decision by qualifi ed majority.

10. The chair of the Council of Foreign Aff airs will be held by the Foreign Minister.

The chair of the Council of Economic and Financial Aff airs will chair the Eurogroup.

40 CHAPTER ONE

Article 17 Article 15 (ex-Article 17 TEU)

1. The Commission shall promote the 1. The Commission shall promote the general interest of the Union and take general interest of the Union and take appropriate initiatives to that end. It shall appropriate initiatives to that end. It shall ensure the application of the Treaties, and ensure the application of the Fundamental of measures adopted by the institutions Law, and of measures adopted by the insti- pursuant to them. It shall oversee the appli- tutions pursuant to it. It shall oversee the cation of Union law under the control of the application of Union law under the control Court of Justice of the European Union. It of the Court of Justice of the European shall execute the budget and manage Union. It shall execute the budget and programmes. It shall exercise coordinating, manage programmes. It shall exercise the executive and management functions, as coordinating, executive and management laid down in the Treaties. With the functions of the federal government of the exception of the common foreign and Union, as laid down in the Fundamental security policy, and other cases provided for Law. It shall ensure the Union’s external in the Treaties, it shall ensure the Union’s representation. It shall initiate the Union’s external representation. It shall initiate the annual and multiannual programming Union’s annual and multiannual program- with a view to achieving interinstitutional ming with a view to achieving interinstitu- agreements. tional agreements.

2. Union legislative acts may only be 2. Union legislative acts may only be adopted on the basis of a Commission adopted on the basis of a Commission proposal, except where the Treaties provide proposal, except where the Fundamental otherwise. Other acts shall be adopted on Law provides otherwise. The Commission the basis of a Commission proposal where shall undertake appropriate consultations with the Treaties so provide. interested parties before taking a legislative initiative, and shall publish an impact assessment of the proposed measure.

3. Either the European Parliament or the Council may request the Commission to submit any appropriate proposal on matters on which they consider that a Union act is required for the purpose of implementing the Fundamental Law. If, within three months, the Commission decides not to submit a proposal, it shall inform the legislature of its reasons for not doing so.

In that case, either the European Parliament or the Council may make a proposal for a legislative act, after having followed similar consultation and assessment procedures as those laid down in paragraph 2. The ordinary legislative procedure shall then apply in accordance with Article 87.

41 PART I

3. The Commission’s term of offi ce shall 4. The Commission’s term of offi ce shall be fi ve years. be fi ve years.

The members of the Commission shall be The members of the Commission shall be chosen on the ground of their general chosen on the ground of their general competence and European commitment competence and European commitment from persons whose independence is from persons whose independence is beyond doubt. beyond doubt.

In carrying out its responsibilities, the In carrying out its responsibilities, the Commission shall be completely inde- Commission shall be completely independent. Without prejudice to Article 18(2), pendent. The members of the Commission the members of the Commission shall shall neither seek nor take instructions neither seek nor take instructions from any from any Government or other institution, Government or other institution, body, body, ofﬁ ce or entity. They shall refrain ofﬁ ce or entity. They shall refrain from any from any action incompatible with their action incompatible with their duties or the duties or the performance of their tasks. performance of their tasks.

4. The Commission appointed between the 5. The number of the Members of the date of entry into force of the Treaty of Lisbon Commission, which shall not exceed the and 31 October 2014, shall consist of one number of States, shall be determined by its national of each Member State, including its President. The Foreign Minister and the President and the High Representative of the Treasury Minister shall both be Vice-Presi- Union for Foreign Aff airs and Security Policy dents. who shall be one of its Vice-Presidents.

5. As from 1 November 2014, the Commission shall consist of a number of members, including its President and the High Representative of the Union for Foreign Aff airs and Security Policy, corresponding to two thirds of the number of Member States, unless the European Council, acting unanimously, decides to alter this number.

The members of the Commission shall be chosen from among the nationals of the Member States on the basis of a system of strictly equal rotation between the Member States, refl ecting the demographic and geographical range of all the Member States. This system shall be established unanimously by the European Council in accordance with Article 244 of the Treaty on the Functioning of the European Union.

42 CHAPTER ONE

6. The President of the Commission shall: 6. The President of the Commission shall:

(a) lay down guidelines within which the (a) chair the Commission and drive forward its Commission is to work; work;

(b) decide on the internal organisation of (b) decide on the internal organisation of the Commission, ensuring that it acts the Commission, ensuring that it acts consistently, efﬁ ciently and as a collegiate consistently, efﬁ ciently and as a collegiate body; body;

(c) appoint Vice-Presidents, other than the (c) ensure the external representation of the High Representative of the Union for Union. Foreign Affairs and Security Policy, from among the members of the Commission. A member of the Commission shall resign if the President so requests. A member of the Commission shall resign if the President so requests. The High Representative of the Union for Foreign Aff airs and Security Policy shall resign, in accordance with the procedure set out in Article 18(1), if the President so requests.

7. Taking into account the elections to the 7. Taking into account the elections to the European Parliament and after having held European Parliament and after having held the appropriate consultations, the European the appropriate consultations, the European Council, acting by a qualifi ed majority, shall Council, acting by a qualifi ed majority, shall propose to the European Parliament a propose to the European Parliament a candidate for President of the Commission. candidate for President of the Commission. This candidate shall be elected by the This candidate shall be elected by the European Parliament by a majority of its Parliament by a majority of its component component members. If he does not obtain members. If he or she does not obtain the the required majority, the European required majority, the European Council, Council, acting by a qualifi ed majority, shall acting by a qualifi ed majority, shall within within one month propose a new candidate one month propose a new candidate who who shall be elected by the European Parlia- shall be elected by the Parliament following ment following the same procedure. the same procedure.

The Council, by common accord with the Pres- ident-elect, shall adopt the list of the other persons whom it proposes for appointment as members of the Commission. They shall be selected, on the basis of the suggestions made by Member States, in accordance with the criteria set out in paragraph 3, second subparagraph, and paragraph 5, second subparagraph.

43 PART I

The President, the High Representative of the Union for Foreign Aff airs and Security Policy and the other members of the Commission shall be subject as a body to a vote of consent by the European Parliament. On the basis of this consent the Commission shall be appointed by the European Council, acting by a qualiﬁ ed majority.

8. The Commission, as a body, shall be 8. The President-elect, after consulting the responsible to the European Parliament. In Council, shall present to the European Parlia- accordance with Article 234 of the Treaty on ment the list of the other persons whom he the Functioning of the European Union, the or she proposes for appointment as European Parliament may vote on a motion members of the Commission. of censure of the Commission. If such a motion is carried, the members of the Commission 9. Each Commissioner-designate shall be shall resign as a body and the High Represen- heard in public by the European Parliament, tative of the Union for Foreign Aff airs and which shall be accorded any information Security Policy shall resign from the duties that relevant to its evaluation of the aptitude of the he carries out in the Commission. Commissioners-designate on the basis of the criteria laid down in paragraph 3.

10. The President and the other members of the Commission shall be subject as a body to a vote of consent by the European Parlia- ment. On the basis of this consent the Commission shall be appointed by the Council, acting by a qualiﬁ ed majority.

11. The Commission shall be responsible to the European Parliament. The Parliament, acting by a majority of its component Members, may vote a loss of confi dence in an individual member of the Commission. In the case that the vote is carried, the President of the Commission shall request the resignation of that member or shall appear before the Parlia- ment to explain why he or she has not done so.

12. The European Parliament, acting by a majority of its component Members, may vote to censure the Commission only by nominating a successor President of the Commission. In that case, the European Council shall accept that candidate as the nomination for the new President of the Commission pursuant to paragraph 7.

Article 18 [delete] …..

44 CHAPTER ONE

Article 19 Article 16 (ex-Article 19 TEU)

1. The Court of Justice of the European 1. The Court of Justice of the European Union shall include the Court of Justice, the Union shall include the Court of Justice, the General Court and specialised courts. It General Court and specialised courts. It shall ensure that in the interpretation and shall ensure that in the interpretation and application of the Treaties the law is application of the Fundamental Law the law observed. is observed.

Member States shall provide remedies suffi - The States shall provide remedies suffi cient cient to ensure effective legal protection in to ensure effective legal protection in the the fi elds covered by Union law. fi elds covered by Union law.

2. The Court of Justice shall consist of one 2. The Court of Justice shall consist of judge from each Member State. It shall be at least one judge from each State and assisted by Advocates-General. Associate State. It shall be assisted by Advocates-General. The General Court shall include at least one judge per Member State. The General Court shall include at least one judge per State and Associate State. The Judges and the Advocates-General of the Court of Justice and the Judges of the Judges from Associate States shall not sit in General Court shall be chosen from cases that do not relate to the law applicable to persons whose independence is beyond those Associate States. doubt and who satisfy the conditions set out in Articles 253 and 254 of the Treaty on the The Judges and the Advocates-General of Functioning of the European Union. They the Court of Justice and the Judges of the shall be appointed by common accord of the General Court shall be chosen from persons governments of the Member States for six whose independence is beyond doubt and years. Retiring Judges and Advocates- who satisfy the conditions set out in Articles General may be reappointed. 49 and 50. They shall be appointed by common accord of the governments of the States for six years. Retiring Judges and Advocates-General may be reappointed.

45 PART I

3. The Court of Justice of the European 3. The Court of Justice of the European Union shall, in accordance with the Union shall, in accordance with the Treaties: Treaties:

(a) rule on actions brought by a Member (a) rule on actions brought by a State, an State, an institution or a natural or legal Associate State, an institution or a natural or person; legal person;

(b) give preliminary rulings, at the request (b) give preliminary rulings, at the request of courts or tribunals of the Member States, of courts or tribunals of the States or of the on the interpretation of Union law or the Associated States, on the interpretation of validity of acts adopted by the institutions; Union law or the validity of acts adopted by the institutions;

46 POWERS AND COMPETENCES

CHAPTER TWO

The six articles of Chapter Two deal in more detail with the powers of the institutions and the competences of the Union.

Article 17 lays down the three categories of competence: exclusive, shared and supplementary. It removes the blanket restriction in the area of the Union’s supplementary competence that prohibits the harmonisation of national laws.

Articles 18–20 spell out which policy sector falls within each of three categories of competence. The main changes are to make nuclear safety an exclusive competence (consequent on the incorporation of the Euratom Treaty), and to promote economic, ﬁ scal and employment policies, as well as the common foreign, security and defence policies as normal shared competences between the Union and its States.

Article 21 is the famous ‘ﬂ exibility’ clause which allows the EU to act within its competences when the Treaty has not provided the necessary powers. The scope of the article is widened to include common foreign and security policy. Under the present treaties, this article operates under a special law of the Council, decided by unanimity: in the Fundamental Law it becomes a normal law of the Parliament and Council subject to the special legislative procedure.

Article 22 creates a formal legal base for the setting up of Union agencies, most of which have been previously established under the ﬂ exibility clause.

47 PART I

CATEGORIES AND AREAS CATEGORIES OF UNION OF UNION COMPETENCE COMPETENCE

PREAMBLE TFEU [delete] …..

Article 1 TFEU [delete] …..

Article 2 Article 17 (ex-Article 2 TFEU)

1. When the Treaties confer on the Union 1. When the Fundamental Law confers on exclusive competence in a speciﬁ c area, only the Union exclusive competence in a the Union may legislate and adopt legally speciﬁ c area, only the Union may legislate binding acts, the Member States being able and adopt legally binding acts, the States to do so themselves only if so empowered by being able to do so themselves only if so the Union or for the implementation of empowered by the Union or for the imple- Union acts. mentation of Union acts.

2. When the Treaties confer on the Union a 2. When the Fundamental Law confers on competence shared with the Member States the Union a competence shared with the in a speciﬁ c area, the Union and the States in a speciﬁ c area, the Union and the Member States may legislate and adopt States may legislate and adopt legally legally binding acts in that area. The binding acts in that area. The States shall Member States shall exercise their compe- exercise their competence to the extent that tence to the extent that the Union has not the Union has not exercised its competence. exercised its competence. The Member The States shall again exercise their compe- States shall again exercise their competence tence to the extent that the Union has to the extent that the Union has decided to decided to cease exercising its competence. cease exercising its competence.

3. The Member States shall coordinate 3. The States shall coordinate their their economic and employment policies economic and employment policies within within arrangements as determined by this arrangements as determined by this Funda- Treaty, which the Union shall have compe- mental Law, which the Union shall have tence to provide. competence to provide.

4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to defi ne and implement a common foreign and security policy, including the progressive framing of a common defence policy.

48 CHAPTER TWO

5. In certain areas and under the condi- 4. In certain areas and under the conditions laid down in the Treaties, the Union tions laid down in the Fundamental Law, shall have competence to carry out actions the Union shall have competence to carry to support, coordinate or supplement the out actions to support, coordinate or supple- actions of the Member States, without ment the actions of the States, without thereby superseding their competence in thereby superseding their competence in these areas. these areas.

Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States’ laws or regulations.

6. The scope of and arrangements for exer- 5. The scope of and arrangements for exercising the Union’s competences shall be cising the Union’s competences shall be determined by the provisions of the Treaties determined by the provisions of the Funda- relating to each area. mental Law relating to each area.

Article 3 Article 18 (ex-Article 3 TFEU)

1. The Union shall have exclusive compe- 1. The Union shall have exclusive competence in the following areas: tence in the following areas:

(a) customs union; (a) customs union; (b) the establishing of the competition rules (b) the establishing of the competition rules necessary for the functioning of the necessary for the functioning of the internal market; internal market; (c) monetary policy for the Member States (c) monetary policy for the States whose whose currency is the euro; currency is the euro; (d) the conservation of marine biological (d) common commercial policy; resources under the common fi sheries (e) nuclear safety. policy; (e) common commercial policy.

2. The Union shall also have exclusive 2. The Union shall also have exclusive competence for the conclusion of an inter- competence for the conclusion of an international agreement when its conclusion is national agreement when its conclusion is provided for in a legislative act of the Union provided for in a legislative act of the Union or is necessary to enable the Union to or is necessary to enable the Union to exercise its internal competence, or in so far exercise its internal competence, or in so far as its conclusion may affect common rules as its conclusion may affect common rules or alter their scope. or alter their scope.

49 PART I

Article 4 Article 19 (ex-Article 4 TFEU)

1. The Union shall share competence with 1. The Union shall share a general compe- the Member States where the Treaties tence with the States where the Funda- confer on it a competence which does not mental Law confers on it a competence relate to the areas referred to in Articles 3 which does not relate to the areas referred and 6. to in Articles 18 and 20.

2. Shared competence between the Union 2. The general competence of the Union and and the Member States applies in the the States is shared specifi cally in the following principal areas: following principal areas:

(a) internal market; (a) common fi scal and economic policy; (b) social policy, for the aspects defi ned in (b) internal market; this Treaty; (c) social policy; (c) economic, social and territorial (d) employment policy; cohesion; (e) cohesion policy; (d) agriculture and fi sheries, excluding the (f) agriculture; conservation of marine biological (g) fi sheries; resources; (h) environment and climate change; (e) environment; (i) consumer protection; (f) consumer protection; (j) transport; (g) transport; (k) trans-European networks; (h) trans-European networks; (l) energy; (i) energy; (m) industrial policy; (j) area of freedom, security and justice; (n) research and development; (k) common safety concerns in public (o) space policy; health matters, for the aspects defi ned (p) digital policy; in this Treaty. (q) borders policy, asylum and immigration; (r) judicial cooperation; (s) police cooperation; (t) public health; (u) overseas aid and development; (v) common foreign and security policy; (w) common security and defence policy.

3. In the areas of research, technological 3. In the areas of research, technological development and space, the Union shall have development and space, the Union shall competence to carry out activities, in partic- have competence to carry out activities, in ular to deﬁ ne and implement programmes; particular to deﬁ ne and implement however, the exercise of that competence programmes; however, the exercise of that shall not result in Member States being competence shall not result in States being prevented from exercising theirs. prevented from exercising theirs.

4. In the areas of development cooperation 4. In the areas of development cooperation and humanitarian aid, the Union shall have and humanitarian aid, the Union shall have competence to carry out activities and conduct competence to carry out activities and conduct a common policy; however, the exercise of a common policy; however, the exercise of that competence shall not result in Member that competence shall not result in States States being prevented from exercising theirs. being prevented from exercising theirs.

50 CHAPTER TWO

Article 5 [delete] …..

Article 6 Article 20 (ex-Article 6 TFEU)

The Union shall have competence to carry The Union shall have competence to carry out actions to support, coordinate or supple- out actions to support, coordinate or supplement the actions of the Member States. The ment the actions of the States in other areas, areas of such action shall, at European level, such as: be:

(a) protection and improvement of human (a) culture; health; (b) education; (b) industry; (c) vocational training; (c) culture; (d) youth; (d) tourism; (e) sport; (e) education, vocational training, youth (f) civil protection; and sport; (g) administrative cooperation. (f) civil protection; (g) administrative cooperation.

FLEXIBILITY PROVISION

Article 352 Article 21 (ex-Article 352 TFEU)

1. If action by the Union should prove 1. If action by the Union should prove necessary, within the framework of the necessary, within the framework of the policies deﬁ ned in the Treaties, to attain one policies deﬁ ned in the Fundamental Law, to of the objectives set out in the Treaties, and attain one of the objectives set out in the the Treaties have not provided the necessary Fundamental Law, and the Fundamental powers, the Council, acting unanimously on a Law has not provided the necessary powers, proposal from the Commission and after the European Parliament and the Council, obtaining the consent of the European Parlia- acting on a proposal from the Commission ment, shall adopt the appropriate measures. in accordance with the special legislative Where the measures in question are adopted by procedure as laid down in Article 88, shall the Council in accordance with a special legis- adopt the appropriate measures. lative procedure, it shall also act unanimously on a proposal from the Commission and after obtaining the consent of the European Parlia- ment.

51 PART I

2. Using the procedure for monitoring the 2. Using the procedure for monitoring the subsidiarity principle referred to in Article subsidiarity principle referred to in Article 5(3) of the Treaty on European Union, the 5(3), the Commission shall draw the Commission shall draw national Parlia- attention of State Parliaments to proposals ments’ attention to proposals based on this based on this Article. Article.

3. Measures based on this Article shall not 3. Measures based on this Article shall not entail harmonisation of Member States’ entail harmonisation of States’ laws or regu- laws or regulations in cases where the lations in cases where the Fundamental Treaties exclude such harmonisation. Law excludes such harmonisation.

4. This Article cannot serve as a basis for attaining objectives pertaining to the common foreign and security policy and any acts adopted pursuant to this Article shall respect the limits set out in Article 40, second paragraph, of the Treaty on European Union.

Article 22

1. The European Parliament and the Council, acting in accordance with the special legislative procedure as laid down in Article 88, may establish agencies to carry out specifi c executive and implementing functions on behalf of the Commission.

2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure as laid down in Article 87, shall enact regulations determining the internal organisation and lines of accountability of the agencies.

52 THE FUNCTIONING OF THE INSTITUTIONS

CHAPTER THREE

Articles 23–34 lay down speciﬁ c provisions for the operation of the European Parlia- ment, including in those areas where, exceptionally, Parliament has the right of initiative – namely, its electoral procedure, committees of enquiry, and the ofﬁ ce of Ombudsman. Decision-making procedures are eased with respect to the statutes for MEPs and political parties, and to committees of enquiry.

The Ombudsman is given wider powers to advance the cause of the EU citizen, including the right to refer to the ECJ cases concerning a breach of the Charter.

The Court is given full command of its own rules of procedure. Article 58 serves to widen access to the Court of Justice in important ways a change which will serve to develop the role of the ECJ as a federal supreme court. Article 64 makes it possible to attack in the Court a decision of the Parliament taken against a state charged with a breach of fundamental rights.

In Article 76, Parliament gets the right to join in the appointment of the Board of the European Central Bank (ECB) – important in the new context of banking union. Article 77 transfers from the Council to the Commission the right to propose a policy to the ECB, the logic of which will be followed in subsequent chapters.

53 PART I

INSTITUTIONAL THE FUNCTIONING OF PROVISIONS THE INSTITUTIONS THE EUROPEAN PARLIAMENT THE EUROPEAN PARLIAMENT

Article 223 Article 23 (ex-Article 223 TFEU)

1. The European Parliament shall draw up 1. The European Parliament shall draw up a proposal to lay down the provisions a proposal to lay down the provisions necessary for the election of its Members by necessary for the election of its Members by direct universal suffrage in accordance with direct universal suffrage in accordance with a uniform procedure in all Member States a uniform procedure in all States or in or in accordance with principles common to accordance with principles common to all all Member States. States.

The Council, acting unanimously in accord- The European Parliament and Council, ance with a special legislative procedure and acting on the initiative of the Parliament, in after obtaining the consent of the European accordance with the special legislative Parliament, which shall act by a majority of its procedure shall lay down the necessary component Members, shall lay down the provisions. necessary provisions. These provisions shall enter into force following their approval by the Member States in accordance with their respective constitutional requirements.

2. The European Parliament, acting by 2. The European Parliament and Council, means of regulations on its own initiative in acting on the initiative of the Parliament, after accordance with a special legislative seeking an opinion from the Commission, procedure after seeking an opinion from the in accordance with the special legislative Commission and with the consent of the procedure, shall lay down the regulations Council, shall lay down the regulations and and general conditions governing the general conditions governing the perfor- performance of the duties of its Members. mance of the duties of its Members. All rules or conditions relating to the taxation of Members or former Members shall require unanimity within the Council.

Article 224 Article 24 (ex-Article 224 TFEU)

The European Parliament and the Council, The European Parliament and the Council, acting in accordance with the ordinary legis- acting in accordance with the ordinary lative procedure, by means of regulations, legislative procedure, by means of regula- shall lay down the regulations governing tions, shall lay down the regulations political parties at European level referred to governing political parties at European in Article 10(4) of the Treaty on European level. Union and in particular the rules regarding their funding.

54 CHAPTER THREE

Article 225 Article 25 (ex-Article 225 TFEU)

The European Parliament may, acting by a The European Parliament may, acting by a majority of its component Members, request majority of its component Members, the Commission to submit any appropriate request the Commission to submit any proposal on matters on which it considers appropriate proposal on matters on which it that a Union act is required for the purpose considers that a Union act is required for of implementing the Treaties. If the the purpose of implementing the Funda- Commission does not submit a proposal, it mental Law. Pursuant to Article 15(3), if the shall inform the European Parliament of Commission does not submit a proposal, it the reasons. shall inform the European Parliament of the reasons.

Article 226 Article 26 (ex-Article 226 TFEU)

In the course of its duties, the European In the course of its duties, the European Parliament may, at the request of a quarter Parliament may, at the request of a quarter of its component Members, set up a of its component Members, set up a temporary Committee of Inquiry to investi- temporary Committee of Inquiry to investigate, without prejudice to the powers gate, without prejudice to the powers conferred by the Treaties on other institu- conferred by the Fundamental Law on other tions or bodies, alleged contraventions or institutions or bodies, alleged contraven- maladministration in the implementation tions or maladministration in the imple- of Union law, except where the alleged facts mentation of Union law, except where the are being examined before a court and alleged facts are being examined before a while the case is still subject to legal court and while the case is still subject to proceedings. legal proceedings.

The temporary Committee of Inquiry shall The temporary Committee of Inquiry shall cease to exist on the submission of its cease to exist on the submission of its report. report.

The detailed provisions governing the The detailed provisions governing the exercise of the right of inquiry shall be exercise of the right of inquiry shall be determined by the European Parliament, determined by the European Parliament acting by means of regulations on its own and the Council, on the initiative of the initiative in accordance with a special legis- European Parliament, acting by means of lative procedure, after obtaining the consent regulations in accordance with the special of the Council and the Commission. legislative procedure, after consulting the Commission.

Article 227 Article 27 ..... (ex-Articles 227 TFEU) .....

55 PART I

Article 228 Article 28 (ex-Article 228 TFEU)

1. A European Ombudsman, elected by the 1. A European Ombudsman, elected by the European Parliament, shall be empowered European Parliament, shall be empowered to receive complaints from any citizen of the to receive complaints from any natural or Union or any natural or legal person residing legal person residing or having its regis- or having its registered offi ce in a Member tered offi ce in a State concerning malad- State concerning instances of maladministra- ministration in the activities of the Union tion in the activities of the Union institu- institutions, bodies, offi ces or agencies, tions, bodies, offi ces or agencies, with the with the exception of the Court of Justice of exception of the Court of Justice of the the European Union acting in its judicial European Union acting in its judicial role. role. He or she shall examine such He or she shall examine such complaints complaints and report on them. and report on them.

In accordance with his duties, the In accordance with his duties, the Ombudsman shall conduct inquiries for Ombudsman shall conduct inquiries for which he fi nds grounds, either on his own which he or she fi nds grounds, either on his initiative or on the basis of complaints or her own initiative or on the basis of submitted to him direct or through a complaints submitted to him direct or Member of the European Parliament, except through a Member of the European Parlia- where the alleged facts are or have been the ment, except where the alleged facts are or subject of legal proceedings. Where the have been the subject of legal proceedings. Ombudsman establishes an instance of Where the Ombudsman establishes an maladministration, he shall refer the matter instance of maladministration, he or she to the institution, body, offi ce or agency shall refer the matter to the institution, concerned, which shall have a period of body, offi ce or agency concerned, which three months in which to inform him of its shall have a period of three months in which views. The Ombudsman shall then forward to inform him or her of its views. The a report to the European Parliament and the Ombudsman shall then forward a report to institution, body, offi ce or agency the European Parliament and the institu- concerned. The person lodging the tion, body, offi ce or agency concerned. The complaint shall be informed of the outcome person lodging the complaint shall be of such inquiries. informed of the outcome of such inquiries.

The Ombudsman shall submit an annual The Ombudsman may request the Court of report to the European Parliament on the Justice for leave to refer to the Court, in the role outcome of his inquiries. of amicus curiae, a case in which his or her inquiries reveal a serious breach of the Charter of Fundamental Rights.

The Ombudsman may issue general guidance on good administration.

The Ombudsman shall submit an annual report to the European Parliament on the outcome of his or her inquiries.

56 CHAPTER THREE

2. The Ombudsman shall be elected after 2. The Ombudsman shall be elected in the each election of the European Parliament for third year of each mandate of the European the duration of its term of offi ce. The Parliament. The Ombudsman shall be Ombudsman shall be eligible for reappoint- eligible for reappointment. ment.

The Ombudsman may be dismissed by the The Ombudsman may be dismissed by the Court of Justice at the request of the Court of Justice at the request of the European Parliament if he no longer fulﬁ ls European Parliament if he or she no longer the conditions required for the performance fulﬁ ls the conditions required for the of his duties or if he is guilty of serious performance of his or her duties or if he or misconduct. she is guilty of serious misconduct.

3. The Ombudsman shall be completely 3. The Ombudsman shall be completely independent in the performance of his independent in the performance of his or duties. In the performance of those duties her duties. In the performance of those he shall neither seek nor take instructions duties he or she shall neither seek nor take from any Government, institution, body, instructions from any government, institu- offi ce or entity. The Ombudsman may not, tion, body, offi ce or entity. The Ombudsman during his term of offi ce, engage in any may not, during his or her term of offi ce, other occupation, whether gainful or not. engage in any other occupation, whether gainful or not.

4. The European Parliament acting by 4. The European Parliament acting by means of regulations on its own initiative in means of regulations on its own initiative in accordance with a special legislative accordance with a special legislative procedure shall, after seeking an opinion procedure shall, after seeking an opinion from the Commission and with the consent from the Commission and with the consent of the Council, lay down the regulations and of the Council, lay down the regulations general conditions governing the perfor- and general conditions governing the mance of the Ombudsman’s duties. performance of the Ombudsman’s duties.

Articles 229–230 Articles 29–30 ….. (ex-Articles 229–230) …..

Article 231 Article 31 (ex-Article 231 TFEU)

Save as otherwise provided in the Treaties, The European Parliament shall vote in public. the European Parliament shall act by a majority of the votes cast.

The Rules of Procedure shall determine the The Rules of Procedure shall determine the quorum. quorum.

Articles 232–233 Articles 32–33 ….. (ex-Articles 232–233 TFEU) …..

57 PART I

Article 234 Article 34 (ex-Article 234 TFEU)

If a motion of censure on the activities of If a motion of censure on the activities of the Commission is tabled before it, the the Commission is tabled before it, the European Parliament shall not vote thereon European Parliament shall not vote thereon until at least three days after the motion has until at least three days after the motion has been tabled and only by open vote. been tabled and only by open vote.

If the motion of censure is carried by a two- If the motion of censure is carried by a thirds majority of the votes cast, representing a majority of the component Members of the majority of the component Members of the European Parliament, the members of the European Parliament, the members of the Commission shall resign as a body. They Commission shall resign as a body and the shall remain in offi ce and continue to deal High Representative of the Union for Foreign with current business until they are Aff airs and Security Policy shall resign from replaced in accordance with Article 15. In duties that he or she carries out in the Commis- this case, the term of offi ce of the members sion. They shall remain in offi ce and of the Commission appointed to replace continue to deal with current business until them shall expire on the date on which the they are replaced in accordance with Article term of offi ce of the members of the 17 of the Treaty on European Union. In this Commission obliged to resign as a body case, the term of offi ce of the members of would have expired. the Commission appointed to replace them shall expire on the date on which the term of offi ce of the members of the Commission obliged to resign as a body would have expired.

THE EUROPEAN COUNCIL THE EUROPEAN COUNCIL

Article 235 Article 35 (ex-Article 235 TFEU)

1. Where a vote is taken, any member of 1. Where a vote is taken, any member of the European Council may also act on the European Council may also act on behalf of not more than one other member. behalf of not more than one other member.

Article 16(4) of the Treaty on European Union Abstentions by members present in person and Article 238(2) of this Treaty shall apply to or represented shall not prevent the the European Council when it is acting by a adoption by the European Council of acts qualifi ed majority. Where the European Council which require unanimity. decides by vote, its President and the President of the Commission shall not take part in the vote.

Abstentions by members present in person or represented shall not prevent the adoption by the European Council of acts which require unanimity.

58 CHAPTER THREE

2. The President of the European Parliament may be invited to be heard by the European Council.

3. The European Council shall act by a 2. The European Council shall act by a simple majority for procedural questions simple majority for procedural questions and for the adoption of its Rules of and for the adoption of its Rules of Procedure. Procedure.

4. The European Council shall be assisted 3. The European Council shall be assisted by the General Secretariat of the Council. by the General Secretariat of the Council.

Article 236 [delete] .....

THE COUNCIL THE COUNCIL

Article 237 Article 36 (ex-Article 237 TFEU)

The Council shall meet when convened by The Council shall meet when convened by its President on his own initiative or at the its President on his or her own initiative or request of one of its Members or of the at the request of one of its Members or of Commission. the Commission.

Article 238 [delete] …..

Articles 239–240 Article 37–38 ….. (ex-Articles 239–240 TFEU) …..

Article 241 Article 39 (ex-Article 241 TFEU)

The Council acting by a simple majority The Council acting by a simple majority may request the Commission to undertake may request the Commission to undertake any studies the Council considers desirable any studies the Council considers desirable for the attainment of the common objec- for the attainment of the common objectives, and to submit to it any appropriate tives, and to submit to it any appropriate proposals. If the Commission does not proposals. Pursuant to Article 15(3), if the submit a proposal, it shall inform the Commission does not submit a proposal, it Council of the reasons. shall inform the Council of the reasons.

Article 242 [delete] .....

59 PART I

Article 243 Article 40 (ex-Article 243 TFEU)

The Council shall determine the salaries, The European Parliament and the Council, allowances and pensions of the President of acting on a proposal of the Commission, shall the European Council, the President of the determine the salaries, allowances and Commission, the High Representative of pensions of the President of the Commis- the Union for Foreign Affairs and Security sion, the Members of the Commission, the Policy, the Members of the Commission, Presidents, Members and Registrars of the the Presidents, Members and Registrars of Court of Justice of the European Union, and the Court of Justice of the European Union, the Secretary-General of the Council. It shall and the Minister-General of the Council. It also determine any payment to be made shall also determine any payment to be instead of remuneration. made instead of remuneration.

THE COMMISSION THE COMMISSION

Article 244 [delete] …..

Article 245 Article 41 ….. (ex-Article 245 TFEU) …..

Article 246 Article 42 (ex-Article 246 TFEU)

Apart from normal replacement, or death, Apart from normal replacement, or death, the duties of a Member of the Commission the duties of a Member of the Commission shall end when he resigns or is compulso- shall end when he resigns or is compulso- rily retired. rily retired.

A vacancy caused by resignation, compul- A vacancy caused by resignation, compulsory retirement or death shall be fi lled for sory retirement or death shall be fi lled for the remainder of the Member’s term of the remainder of the Member’s term of offi ce by a new Member of the same nation- offi ce in accordance with the procedure laid ality appointed by the Council, by common down in Article 15(8–9). By way of deroga- accord with the President of the Commis- tion from the procedure laid down in Article sion, after consulting the European Parlia- 15(10), when the vote of the European Parlia- ment and in accordance with the criteria set ment concerns the appointment of a single out in the second subparagraph of Article Commissioner, the vote shall be by secret 17(3) of the Treaty on European Union. ballot.

The Council may, acting unanimously on a The Council may, acting unanimously on a proposal from the President of the Commis- proposal from the President of the Commis- sion, decide that such a vacancy need not be sion, decide that such a vacancy need not be fi lled, in particular when the remainder of fi lled, in particular when the remainder of the Member’s term of offi ce is short. the Member’s term of offi ce is short.

60 CHAPTER THREE

In the event of resignation, compulsory In the event of resignation, compulsory retirement or death, the President shall be retirement or death, the President shall be replaced for the remainder of his term of replaced for the remainder of his term of offi ce. The procedure laid down in the fi rst offi ce. The procedure laid down in Article subparagraph of Article 17(7) of the Treaty 15(7) shall be applicable for the replacement on European Union shall be applicable for of the President. the replacement of the President. In the case of the resignation of all the In the event of resignation, compulsory Members of the Commission, they shall retirement or death, the High Representa- remain in offi ce and continue to deal with tive of the Union for Foreign Affairs and current business until they have been Security Policy shall be replaced, for the replaced in accordance with the procedures laid remainder of his or her term of offi ce, in down in Article 15(7–10). accordance with Article 18(1) of the Treaty on European Union.

In the case of the resignation of all the Members of the Commission, they shall remain in ofﬁ ce and continue to deal with current business until they have been replaced, for the remainder of their term of ofﬁ ce, in accordance with Article 17 of the Treaty on European Union.

Articles 247–250 Article 43–46 ….. (ex-Articles 247–250 TFEU) .....

THE COURT OF JUSTICE THE COURT OF JUSTICE

Articles 251–252 Articles 47–48 ….. (ex-Articles 251–252 TFEU) …..

Article 253 Article 49 (ex-Article 253 TFEU)

The Judges and Advocates-General of the The Judges and Advocates-General of the Court of Justice shall be chosen from persons Court of Justice shall be chosen from whose independence is beyond doubt and persons whose independence is beyond who possess the qualifi cations required for doubt and who possess the qualifi cations appointment to the highest judicial offi ces in required for appointment to the highest their respective countries or who are juriscon- judicial offi ces in their respective countries sults of recognised competence; they shall be or who are jurisconsults of recognised appointed by common accord of the govern- competence; they shall be appointed by ments of the Member States for a term of six common accord of the governments of the years, after consultation of the panel provided States for a term of six years, after consulta- for in Article 255. tion of the panel provided for in Article 51.

61 PART I

Every three years there shall be a partial Every three years there shall be a partial replacement of the Judges and Advocates- replacement of the Judges and Advocates- General, in accordance with the conditions General, in accordance with the conditions laid down in the Statute of the Court of laid down in the Statute of the Court of Justice of the European Union. Justice of the European Union.

The Judges shall elect the President of the The Judges shall elect the President of the Court of Justice from among their number for Court of Justice from among their number for a term of three years. He may be re-elected. a term of three years. He may be re-elected.

Retiring Judges and Advocates-General may Retiring Judges and Advocates-General may be reappointed. be reappointed.

The Court of Justice shall appoint its The Court of Justice shall appoint its Registrar and lay down the rules governing Registrar and lay down the rules governing his service. his service.

The Court of Justice shall establish its Rules The Court of Justice shall establish its Rules of Procedure. Those Rules shall require the of Procedure. approval of the Council.

Articles 254–261 Articles 50–57 ..... (ex-Articles 254–261 TFEU) .....

Article 262 [delete] ….

Article 263 Article 58 (ex-Article 263 TFEU)

The Court of Justice of the European Union The Court of Justice of the European Union shall review the legality of legislative acts, of shall review the legality of legislative acts, of acts of the Council, of the Commission and acts of the Council, of the Commission and of the European Central Bank, other than of the European Central Bank, other than recommendations and opinions, and of acts recommendations and opinions, and of acts of the European Parliament and of the of the European Parliament and of the European Council intended to produce legal European Council intended to produce legal effects vis-à-vis third parties. It shall also effects vis-à-vis third parties. It shall also review the legality of acts of bodies, ofﬁ ces review the legality of acts of bodies, ofﬁ ces or agencies of the Union intended to or agencies of the Union intended to produce legal effects vis-à-vis third parties. produce legal effects vis-à-vis third parties.

62 CHAPTER THREE

It shall for this purpose have jurisdiction in It shall for this purpose have jurisdiction in actions brought by a Member State, the actions brought by a State, the European European Parliament, the Council or the Parliament, the Council or the Commission Commission on grounds of lack of compe- on grounds of lack of competence, infringe- tence, infringement of an essential proce- ment of an essential procedural require- dural requirement, infringement of the ment, infringement of the Fundamental Treaties or of any rule of law relating to Law or of any rule of law relating to its their application, or misuse of powers. application, or misuse of powers.

The Court shall have jurisdiction under the The Court shall have jurisdiction under the same conditions in actions brought by the same conditions in actions brought by the Court of Auditors, by the European Central Court of Auditors, by the European Central Bank and by the Committee of the Regions Bank and by the Committee of the Regions for the purpose of protecting their preroga- for the purpose of protecting their prerogatives. tives.

The Court shall have jurisdiction in actions brought by the Ombudsman in cases concerning a breach of the Charter of Funda- mental Rights.

Any natural or legal person may, under the Any natural or legal person may, under the conditions laid down in the ﬁ rst and second conditions laid down in the ﬁ rst and second paragraphs, institute proceedings against paragraphs, institute proceedings against an act addressed to that person or which is an act addressed to that person or which is of direct and individual concern to them, manifestly of direct concern to them. and against a regulatory act which is of direct concern to them and does not entail implementing measures.

Acts setting up bodies, offi ces and agencies Acts setting up bodies, offi ces and agencies of the Union may lay down specifi c condi- of the Union may lay down specifi c conditions and arrangements concerning actions tions and arrangements concerning actions brought by natural or legal persons against brought by natural or legal persons against acts of these bodies, offi ces or agencies acts of these bodies, offi ces or agencies intended to produce legal effects in relation intended to produce legal effects in relation to them. to them.

The proceedings provided for in this Article The proceedings provided for in this Article shall be instituted within two months of the shall be instituted within two months of the publication of the measure, or of its notiﬁ ca- publication of the measure, or of its notiﬁ cation to the plaintiff, or, in the absence tion to the plaintiff, or, in the absence thereof, of the day on which it came to the thereof, of the day on which it came to the knowledge of the latter, as the case may be. knowledge of the latter, as the case may be.

Articles 264–268 Articles 59–63 ….. (ex-Articles 264–268 TFEU) …..

63 PART I

Article 269 Article 64 (ex-Article 269 TFEU)

The Court of Justice shall have jurisdiction The Court of Justice shall have jurisdiction to decide on the legality of an act adopted by to decide on the legality of an act adopted by the European Council or by the Council the European Council or by the Council pursuant to Article 7 of the Treaty on pursuant to Article 133 solely at the request European Union solely at the request of the of the State concerned by a determination of Member State concerned by a determination the European Parliament, the European of the European Council or of the Council Council or the Council. and in respect solely of the procedural stipu- lations contained in that Article.

Such a request must be made within one Such a request must be made within one month from the date of such determination. month from the date of such determination.

The Court shall rule within one month The Court shall rule within one month from the date of the request. from the date of the request.

Articles 270–274 Article 65–69 ..... (ex-Articles 270–274 TFEU) .....

Articles 275–276 [delete] …..

Articles 277–281 Articles 70–74 ….. (ex-Articles 277–281 TFEU) …..

THE EUROPEAN CENTRAL BANK THE EUROPEAN CENTRAL BANK

Article 282 Article 75 ….. (ex-Article 282) …..

Article 283 Article 76 (ex-Article 283 TFEU)

1. The Governing Council of the European 1. The Governing Council of the European Central Bank shall comprise the members Central Bank shall comprise the members of the Executive Board of the European of the Executive Board of the European Central Bank and the Governors of the Central Bank and the Governors of the national central banks of the Member States national central banks of the States whose whose currency is the euro. currency is the euro.

2. The Executive Board shall comprise the 2. The Executive Board shall comprise the President, the Vice-President and four other President, the Vice-President and four other members. members.

64 CHAPTER THREE

The President, the Vice-President and the The President, the Vice-President and the other members of the Executive Board shall other members of the Executive Board shall be appointed by the European Council, be appointed by the Council, acting by a acting by a qualiﬁ ed majority, from among qualiﬁ ed majority, and by the European persons of recognised standing and profes- Parliament from among persons of recog- sional experience in monetary or banking nised standing and professional experience matters, on a recommendation from the in monetary or banking matters, on a Council, after it has consulted the European recommendation from the Commission, Parliament and the Governing Council of after it has consulted the Governing the European Central Bank. Council of the European Central Bank.

Their term of ofﬁ ce shall be eight years and Their term of ofﬁ ce shall be eight years and shall not be renewable. shall not be renewable.

Only nationals of Member States may be members of the Executive Board.

Article 284 Article 77 (ex-Article 284 TFEU)

1. The President of the Council and a 1. The President of the Council and the Member of the Commission may participate, Treasury Minister may participate, without without having the right to vote, in having the right to vote, in meetings of the meetings of the Governing Council of the Governing Council of the European Central European Central Bank. Bank.

The President of the Council may submit a The Commission may submit a motion for motion for deliberation to the Governing deliberation to the Governing Council of Council of the European Central Bank. the European Central Bank.

2. The President of the European Central 2. The President of the European Central Bank shall be invited to participate in Bank shall be invited to participate in Council meetings when the Council is Council meetings when the Council is discussing matters relating to the objectives discussing matters relating to the objectives and tasks of the ESCB. and tasks of the ESCB.

3. The European Central Bank shall 3. The European Central Bank shall address an annual report on the activities of address an annual report on the activities of the ESCB and on the monetary policy of the ESCB and on the monetary policy of both the previous and current year to the both the previous and current year to the European Parliament, the Council and the European Parliament, the Council and the Commission, and also to the European Commission. The President of the Council. The President of the European European Central Bank shall present this Central Bank shall present this report to the report to the Council and to the European Council and to the European Parliament, Parliament, which may hold a general which may hold a general debate on that debate on that basis. basis.

65 PART I

The President of the European Central The President of the European Central Bank and the other members of the Bank and the other members of the Executive Board may, at the request of the Executive Board may, at the request of the European Parliament or on their own initia- European Parliament or on their own initiative, be heard by the competent committees tive, be heard by the competent committees of the European Parliament. of the European Parliament.

THE COURT OF AUDITORS THE COURT OF AUDITORS

Article 285 Article 78 (ex-Article 285 TFEU)

The Court of Auditors shall carry out the The Court of Auditors shall carry out the Union’s audit. Union’s audit.

It shall consist of one national of each Member The number of Members of the Court shall not State. Its Members shall be completely inde- exceed the number of States and Associate pendent in the performance of their duties, States. Its Members shall be completely in the Union’s general interest. independent in the performance of their duties, and shall act in the Union’s general interest.

Articles 286–287 Articles 79–80 ….. (ex-Articles 286–287 TFEU) …..

66 THE LEGAL ACTS OF THE UNION

CHAPTER FOUR

The chapter makes provision for the executive and legislative acts of the Union and lays down their respective decision-making procedures.

Changes to the key Article 83 on delegated acts and to Article 84 on implementing measures extend those powers to an EU agency.

The Fundamental Law streamlines the legislative procedures of the Union. The whole ordinary legislative procedure, involving co-decision between Parliament and Council, is laid down in Article 87. In one important amendment, the Council will be obliged to act at ﬁ rst reading within six months of having received Parliament’s position.

The special legislative procedure, with higher qualiﬁ ed majority thresholds for both Parliament and Council, is explained in Article 88.

Articles 94–101 provide for the Economic and Social Committee and the Committee of the Regions to advise the institutions, principally the Commission, in policy areas relevant to their members. In a move which may trigger the modernisation of these advisory bodies, the European Parliament is given the power to co-decide with the Council on the mandate and organisation of these bodies. Elsewhere in the Funda- mental Law, speciﬁ c references to the Committees are removed, thereby enlarging their potential.

67 PART I

LEGAL ACTS OF THE UNION, ADOPTION THE LEGISLATIVE PROCEDURES PROCEDURES AND OTHER PROVISIONS

Article 288 Article 81 (ex-Article 288 TFEU)

To exercise the Union’s competences, the To exercise the Union’s competences, the institutions shall adopt regulations, direc- institutions shall adopt regulations, directives, decisions, recommendations and tives, decisions, recommendations and opinions. opinions.

A regulation shall have general application. A regulation is a law which shall have It shall be binding in its entirety and general application. It shall be binding in its directly applicable in all Member States. entirety and directly applicable in all States.

A directive shall be binding, as to the result A directive is a law which shall be binding, to be achieved, upon each Member State to as to the result to be achieved, upon each which it is addressed, but shall leave to the State to which it is addressed, but shall leave national authorities the choice of form and to the national authorities the choice of methods. form and methods.

A decision shall be binding in its entirety. A A decision is a legal act which shall be decision which speciﬁ es those to whom it is binding in its entirety. A decision which addressed shall be binding only on them. speciﬁ es those to whom it is addressed shall be binding only on them.

Recommendations and opinions shall have Recommendations and opinions shall have no binding force. no binding force.

Article 289 Article 82 (ex-Article 289 TFEU)

1. The ordinary legislative procedure shall 1. The ordinary legislative procedure shall consist in the joint adoption by the consist in the joint adoption by the European Parliament and the Council of a European Parliament and the Council of a regulation, directive or decision on a regulation, directive or decision on a proposal from the Commission. This proposal from the Commission. This procedure is deﬁ ned in Article 294. procedure is deﬁ ned in Article 87.

2. In the speciﬁ c cases provided for by the 2. In the speciﬁ c cases provided for by the Treaties, the adoption of a regulation, Fundamental Law, the adoption of a regula- directive or decision by the European Parlia- tion, directive or decision by the European ment with the participation of the Council, Parliament with the participation of the or by the latter with the participation of the Council, or by the latter with the participa- European Parliament, shall constitute a tion of the European Parliament, shall special legislative procedure. constitute a special legislative procedure.

3. Legal acts adopted by legislative 3. Legal acts adopted by legislative procedure shall constitute legislative acts. procedure shall constitute legislative acts.

68 CHAPTER FOUR

4. In the speciﬁ c cases provided for by the 4. In the speciﬁ c cases provided for by the Treaties, legislative acts may be adopted on Fundamental Law, legislative acts may be the initiative of a group of Member States or adopted on the initiative of a group of States of the European Parliament, on a recom- or of the European Parliament, on a recommendation from the European Central Bank mendation from the European Central or at the request of the Court of Justice or Bank or at the request of the Court of the European Investment Bank. Justice or the European Investment Bank.

Article 290 Article 83 (ex-Article 290 TFEU)

1. A legislative act may delegate to the 1. A legislative act may delegate to the Commission the power to adopt non-legisla- Commission or to a Union agency the power tive acts of general application to supple- to adopt non-legislative acts of general appli- ment or amend certain non-essential cation to supplement or amend certain non- elements of the legislative act. essential elements of the legislative act.

The objectives, content, scope and duration The objectives, content, scope and duration of the delegation of power shall be explicitly of the delegation of power shall be explicitly deﬁ ned in the legislative acts. The essential deﬁ ned in the legislative acts. The essential elements of an area shall be reserved for the elements of an area shall be reserved for the legislative act and accordingly shall not be legislative act and accordingly shall not be the subject of a delegation of power. the subject of a delegation of power.

2. Legislative acts shall explicitly lay down 2. Legislative acts shall explicitly lay down the conditions to which the delegation is the conditions to which the delegation is subject; these conditions may be as follows: subject; these conditions may be as follows:

(a) the European Parliament or the Council (a) the European Parliament or the Council may decide to revoke the delegation; may decide to revoke the delegation;

(b) the delegated act may enter into force (b) the delegated act may enter into force only if no objection has been expressed by only if no objection has been expressed by the European Parliament or the Council the European Parliament or the Council within a period set by the legislative act. within a period set by the legislative act.

For the purposes of (a) and (b), the For the purposes of (a) and (b), the European Parliament shall act by a majority European Parliament shall act by a majority of its component members, and the Council of its component members, and the Council by a qualiﬁ ed majority. by a qualiﬁ ed majority.

3. The adjective ‘delegated’ shall be 3. The adjective ‘delegated’ shall be inserted in the title of delegated acts. inserted in the title of delegated acts.

69 PART I

Article 291 Article 84 (ex-Article 291)

1. Member States shall adopt all measures 1. The States shall adopt all measures of of national law necessary to implement State law necessary to implement legally legally binding Union acts. binding Union acts.

2. Where uniform conditions for imple- 2. Where uniform conditions for implementing legally binding Union acts are menting legally binding Union acts are needed, those acts shall confer imple- needed, those acts shall confer implementing powers on the Commission, or, in menting powers on the Commission or on a duly justiﬁ ed speciﬁ c cases and in the cases Union agency. provided for in Articles 24 and 26 of the Treaty on European Union, on the Council.

3. For the purposes of paragraph 2, the 3. For the purposes of paragraph 2, the European Parliament and the Council, European Parliament and the Council, acting by means of regulations in accordance acting by means of regulations in accord- with the ordinary legislative procedure, shall ance with the ordinary legislative procedure, lay down in advance the rules and general shall lay down in advance the rules and principles concerning mechanisms for general principles concerning mechanisms control by Member States of the Commis- for control of the implementing powers of sion’s exercise of implementing powers. the Commission and the agencies.

4. The word ‘implementing’ shall be 4. The word ‘implementing’ shall be inserted in the title of implementing acts. inserted in the title of implementing acts.

Article 292 Article 85 (ex-Article 292 TFEU)

The Council shall adopt recommendations. The Council shall adopt recommendations. It shall act on a proposal from the Commis- It shall act on a proposal from the Commis- sion in all cases where the Treaties provide sion in all cases where the Fundamental that it shall adopt acts on a proposal from Law provides that it shall adopt acts on a the Commission. It shall act unanimously proposal from the Commission. It shall act in those areas in which unanimity is unanimously in those areas in which required for the adoption of a Union act. unanimity is required for the adoption of a The Commission, and the European Union act. The Commission, and the Central Bank in the speciﬁ c cases provided European Central Bank in the speciﬁ c cases for in the Treaties, shall adopt recommenda- provided for in the Fundamental Law, shall tions. adopt recommendations.

70 CHAPTER FOUR

Article 293 Article 86 (ex-Article 293 TFEU)

1. Where, pursuant to the Treaties, the 1. Where, pursuant to the Fundamental Council acts on a proposal from the Law, the Council acts on a proposal from Commission, it may amend that proposal the Commission, it may amend that only by acting unanimously, except in the proposal only by acting unanimously, cases referred to in paragraphs 10 and 13 of except in the cases referred to in paragraphs Article 294, in Articles 310, 312 and 314 and 10 and 13 of Article 87, in Article 199 and in in the second paragraph of Article 315. the second paragraph of Article 207.

2. As long as the Council has not acted, the 2. As long as the Council has not acted, the Commission may alter its proposal at any Commission may alter its proposal at any time during the procedures leading to the time during the procedures leading to the adoption of a Union act. adoption of a Union act.

Article 294 Article 87 (ex-Article 294 TFEU)

1. Where reference is made in the Treaties 1. Where reference is made in the Funda- to the ordinary legislative procedure for the mental Law to the ordinary legislative adoption of an act, the following procedure procedure for the adoption of an act, the shall apply. following procedure shall apply.

2. The Commission shall submit a 2. The Commission shall submit a proposal to the European Parliament and proposal to the European Parliament and the Council. the Council, except where otherwise provided in the Fundamental Law.

First reading First reading

3. The European Parliament shall adopt its 3. The European Parliament shall adopt its position at ﬁ rst reading and communicate it position at ﬁ rst reading, or, as provided by the to the Council. Fundamental Law, its proposal for an own initiative, and communicate it to the Council.

4. If the Council approves the European 4. If, within six months of receiving the Parliament’s position, the act concerned Parliament’s position, the Council either shall be adopted in the wording which approves the European Parliament’s corresponds to the position of the European position or does not take a decision, the act Parliament. concerned shall be adopted in the wording which corresponds to the position of the European Parliament.

71 PART I

5. If the Council does not approve the 5. If the Council does not approve the European Parliament’s position, it shall European Parliament’s position, it shall adopt its position at ﬁ rst reading and adopt its position at ﬁ rst reading and communicate it to the European Parlia- communicate it to the European Parlia- ment. ment.

6. The Council shall inform the European 6. The Council shall inform the European Parliament fully of the reasons which led it Parliament fully of the reasons which led it to adopt its position at ﬁ rst reading. The to adopt its position at ﬁ rst reading. The Commission shall inform the European Commission shall inform the European Parliament fully of its position. Parliament fully of its position.

Second reading Second reading

7. If, within three months of such commu- 7. If, within three months of such communication, the European Parliament: nication, the European Parliament:

(a) approves the Council’s position at ﬁ rst (a) approves the Council’s position at ﬁ rst reading or has not taken a decision, the act reading or has not taken a decision, the act concerned shall be deemed to have been concerned shall be deemed to have been adopted in the wording which corresponds adopted in the wording which corresponds to the position of the Council; to the position of the Council;

(b) rejects, by a majority of its component (b) rejects, by a majority of its component members, the Council’s position at ﬁ rst members, the Council’s position at ﬁ rst reading, the proposed act shall be deemed reading, the proposed act shall be deemed not to have been adopted; not to have been adopted;

(c) proposes, by a majority of its component (c) proposes, by a majority of its component members, amendments to the Council’s members, amendments to the Council’s position at ﬁ rst reading, the text thus position at ﬁ rst reading, the text thus amended shall be forwarded to the Council amended shall be forwarded to the Council and to the Commission, which shall deliver and to the Commission, which shall deliver an opinion on those amendments. an opinion on those amendments.

8. If, within three months of receiving the 8. If, within three months of receiving the European Parliament’s amendments, the European Parliament’s amendments, the Council, acting by a qualiﬁ ed majority: Council, acting by a qualiﬁ ed majority:

(a) approves all those amendments, the act (a) approves all those amendments, the act in question shall be deemed to have been in question shall be deemed to have been adopted; adopted;

(b) does not approve all the amendments, (b) does not approve all the amendments, the President of the Council, in agreement the President of the Council, in agreement with the President of the European Parlia- with the President of the European Parlia- ment, shall within six weeks convene a ment, shall within six weeks convene a meeting of the Conciliation Committee. meeting of the Conciliation Committee.

72 CHAPTER FOUR

9. The Council shall act unanimously on 9. The Council shall act unanimously on the amendments on which the Commission the amendments on which the Commission has delivered a negative opinion. has delivered a negative opinion.

Conciliation Conciliation

10. The Conciliation Committee, which 10. The Conciliation Committee, which shall be composed of the members of the shall be composed of the members of the Council or their representatives and an Council or their representatives and an equal number of members representing the equal number of members representing the European Parliament, shall have the task of European Parliament, shall have the task of reaching agreement on a joint text, by a reaching agreement on a joint text, by a qualiﬁ ed majority of the members of the qualiﬁ ed majority of the members of the Council or their representatives and by a Council or their representatives and by a majority of the members representing the majority of the members representing the European Parliament within six weeks of its European Parliament within six weeks of its being convened, on the basis of the being convened, on the basis of the positions of the European Parliament and positions of the European Parliament and the Council at second reading. the Council at second reading.

11. The Commission shall take part in the 11. The Commission shall take part in the Conciliation Committee’s proceedings and Conciliation Committee’s proceedings and shall take all necessary initiatives with a shall take all necessary initiatives with a view to reconciling the positions of the view to reconciling the positions of the European Parliament and the Council. European Parliament and the Council.

12. If, within six weeks of its being 12. If, within six weeks of its being convened, the Conciliation Committee does convened, the Conciliation Committee does not approve the joint text, the proposed act not approve the joint text, the proposed act shall be deemed not to have been adopted. shall be deemed not to have been adopted.

Third reading Third reading

13. If, within that period, the Conciliation 13. If, within that period, the Conciliation Committee approves a joint text, the Committee approves a joint text, the European Parliament, acting by a majority European Parliament, acting by a majority of the votes cast, and the Council, acting by of the votes cast, and the Council, acting by a qualiﬁ ed majority, shall each have a a qualiﬁ ed majority, shall each have a period of six weeks from that approval in period of six weeks from that approval in which to adopt the act in question in accord- which to adopt the act in question in accordance with the joint text. If they fail to do so, ance with the joint text. If they fail to do so, the proposed act shall be deemed not to the proposed act shall be deemed not to have been adopted. have been adopted.

73 PART I

14. The periods of three months and six 14. The periods of three months and six weeks referred to in this Article shall be weeks referred to in this Article shall be extended by a maximum of one month and extended by a maximum of one month and two weeks respectively at the initiative of two weeks respectively at the initiative of the European Parliament or the Council. the European Parliament or the Council.

Special provisions Special provisions

15. Where, in the cases provided for in the 15. Where, in the cases provided for in the Treaties, a legislative act is submitted to the Fundamental Law, a legislative act is ordinary legislative procedure on the initia- submitted to the ordinary legislative tive of a group of Member States, on a procedure on a recommendation by the recommendation by the European Central European Central Bank, or at the request of Bank, or at the request of the Court of the Court of Justice, paragraph 2, the Justice, paragraph 2, the second sentence of second sentence of paragraph 6, and paragraph 6, and paragraph 9 shall not paragraph 9 shall not apply. apply.

In such cases, the European Parliament and In such cases, the European Parliament and the Council shall communicate the proposed the Council shall communicate the proposed act to the Commission with their positions at act to the Commission with their positions at ﬁ rst and second readings. The European ﬁ rst and second readings. The European Parliament or the Council may request the Parliament or the Council may request the opinion of the Commission throughout the opinion of the Commission throughout the procedure, which the Commission may also procedure, which the Commission may also deliver on its own initiative. It may also, if it deliver on its own initiative. It may also, if it deems it necessary, take part in the Concilia- deems it necessary, take part in the Concilia- tion Committee in accordance with tion Committee in accordance with paragraph 11. paragraph 11.

Article 88

Where reference is made in the Fundamental Law to the special legislative procedure, the procedures laid down in Article 87 shall apply except that:

(a) the qualifi ed majority in the European Parliament shall be as defi ned in Article 12(8);

(b) the qualifi ed majority in the Council shall be as defi ned by Article 14(5).

Articles 295–299 Articles 89–93 ….. (ex-Articles 295–299 TFEU) …..

74 CHAPTER FOUR

THE UNION’S ADVISORY BODIES ADVISORY BODIES

Article 300 Article 94 (ex-Article 300 TFEU)

1. The European Parliament, the Council 1. The European Parliament, the Council and the Commission shall be assisted by an and the Commission shall be assisted by an Economic and Social Committee and a Economic and Social Committee and a Committee of the Regions, exercising Committee of the Regions, exercising advisory functions. advisory functions.

2. The Economic and Social Committee 2. The Economic and Social Committee shall consist of representatives of organisa- shall consist of representatives of organisations of employers, of the employed, and of tions of employers, of the employed, and of other parties representative of civil society, other parties representative of civil society, notably in socio economic, civic, profes- notably in socio-economic, civic, professional and cultural areas. sional and cultural areas.

3. The Committee of the Regions shall 3. The Committee of the Regions shall consist of representatives of regional and consist of representatives of regional and local bodies who either hold a regional or local bodies who either hold a regional or local authority electoral mandate or are local authority electoral mandate or are politically accountable to an elected politically accountable to an elected assembly. assembly.

4. The members of the Economic and 4. The members of the Economic and Social Committee and of the Committee of Social Committee and of the Committee of the Regions shall not be bound by any the Regions shall not be bound by any mandatory instructions. They shall be mandatory instructions. They shall be completely independent in the performance completely independent in the performance of their duties, in the Union’s general of their duties, in the Union’s general interest. interest.

5. The rules referred to in paragraphs 2 5. The rules referred to in paragraphs 2 and 3 governing the nature of the composi- and 3 governing the nature of the Commit- tion of the Committees shall be reviewed at tees shall be reviewed at regular intervals. regular intervals by the Council to take The European Parliament and the Council, in account of economic, social and demographic accordance with the ordinary legislative developments within the Union. The Council, procedure, shall adopt decisions on their on a proposal from the Commission, shall composition, terms and conditions of member- adopt decisions to that end. ship.

Articles 301–307 Articles 95–101 ….. (ex-Articles 301–307 TFEU) …..

Articles 308–309 Articles 102–103 ….. (ex-Articles 308–309 TFEU) …..

75 ENHANCED COOPERATION

CHAPTER FIVE

The Treaty of Lisbon went some way to facilitate enhanced cooperation by a group of states which chooses to integrate further and faster in any ﬁ eld of shared competence. The Fundamental Law takes further steps towards rationalising and simpli- fying the procedures by and through which the variable geometry of the larger Union can be expressed in terms of governance.

Importantly, in the key Article 104, we remove the constraint that enhanced cooperation can only be deployed as a matter of last resort.

In particular, in Article 105, we place the workings of the eurozone expressly within the context of enhanced cooperation.

The special arrangements for the use of enhanced cooperation in the ﬁ eld of common foreign and security policy are ended. Normal institutional procedures will now apply.

In Article 111, we have the ﬁ rst of several references to the special ﬁ scal capacity of the eurozone.

76 CHAPTER FIVE

PROVISIONS ON ENHANCED ENHANCED COOPERATION COOPERATION

Article 20 TEU Article 104 (ex-Article 20 TEU)

1. Member States which wish to establish 1. States which wish to establish enhanced enhanced cooperation between themselves cooperation between themselves within the within the framework of the Union’s non- framework of the Union’s non-exclusive exclusive competences may make use of its competences may make use of its institu- institutions and exercise those competences tions and exercise those competences. by applying the relevant provisions of the Treaties, subject to the limits and in accordance Enhanced cooperation shall aim to further with the detailed arrangements laid down in the objectives of the Union, protect its this Article and in Articles 326 to 334 of the interests and reinforce its integration Treaty on the Functioning of the European process. Such cooperation shall be open at Union. any time to all States.

Enhanced cooperation shall aim to further the objectives of the Union, protect its interests and reinforce its integration process. Such cooperation shall be open at any time to all Member States, in accordance with Article 328 of the Treaty on the Func- tioning of the European Union.

2. The decision authorising enhanced 2. The decision authorising enhanced cooperation shall be adopted by the Council cooperation shall be adopted by the Council as a last resort, when it has established that when it has established that the objectives the objectives of such cooperation cannot be of such cooperation cannot be attained attained within a reasonable period by the within a reasonable period by the Union as Union as a whole, and provided that at least a whole, and provided that at least nine nine Member States participate in it. The States participate in it. Council shall act in accordance with the procedure laid down in Article 329 of the Treaty on the Functioning of the European Union.

3. All members of the Council may partici- 3. All members of the Council may participate in its deliberations, but only members pate in its deliberations, but only members of the Council representing the Member of the Council representing the States States participating in enhanced cooper- participating in enhanced cooperation shall ation shall take part in the vote. The voting take part in the vote. rules are set out in Article 330 of the Treaty on the Functioning of the European Union.

77 PART I

4. Acts adopted in the framework of 4. Acts adopted in the framework of enhanced cooperation shall bind only enhanced cooperation shall bind only participating Member States. They shall not participating States. They shall not be be regarded as part of the acquis which has regarded as part of the acquis which has to to be accepted by candidate States for be accepted by candidate states for accession accession to the Union. to the Union.

Article 326 Article 105 (ex-Article 326 TFEU)

Any enhanced cooperation shall comply 1. Any enhanced cooperation shall comply with the Treaties and Union law. with the Treaties and Union law.

Such cooperation shall not undermine the Such cooperation shall not undermine the internal market or economic, social and internal market or economic, social and territorial cohesion. It shall not constitute a territorial cohesion. It shall not constitute a barrier to or discrimination in trade barrier to or discrimination in trade between Member States, nor shall it distort between Member States, nor shall it distort competition between them. competition between them.

2. States whose currency is the euro are deemed to have established enhanced cooperation between themselves and shall act in accordance with these provisions save where the Fundamental Law otherwise provides.

Articles 327–328 Articles 106–107 ….. (ex-Articles 327–328 TFEU) …..

Article 329 Article 108 (ex-Article 329 TFEU)

1. Member States which wish to establish States which wish to establish enhanced enhanced cooperation between themselves cooperation between themselves in one of in one of the areas covered by the Treaties, the areas covered by the Fundamental Law with the exception of fi elds of exclusive compe- shall address a request to the Commission, tence and the common foreign and security specifying the scope and objectives of the policy, shall address a request to the enhanced cooperation proposed. The Commission, specifying the scope and Commission may submit a proposal to the objectives of the enhanced cooperation Council to that effect. In the event of the proposed. The Commission may submit a Commission not submitting a proposal, it proposal to the Council to that effect. In the shall inform the States concerned of the event of the Commission not submitting a reasons for not doing so. proposal, it shall inform the Member States concerned of the reasons for not doing so.

78 CHAPTER FIVE

Authorisation to proceed with the enhanced Authorisation to proceed with the enhanced cooperation referred to in the ﬁ rst subpara- cooperation referred to in the ﬁ rst subparagraph shall be granted by the Council, on a graph shall be granted by the Council, on a proposal from the Commission and after proposal from the Commission and after obtaining the consent of the European obtaining the consent of the European Parliament. Parliament.

2. The request of the Member States which wish to establish enhanced cooperation between themselves within the framework of the common foreign and security policy shall be addressed to the Council. It shall be forwarded to the High Representative of the Union for Foreign Aff airs and Security Policy, who shall give an opinion on whether the enhanced cooperation proposed is consistent with the Union’s common foreign and security policy, and to the Commission, which shall give its opinion in particular on whether the enhanced cooperation proposed is consistent with other Union policies. It shall also be forwarded to the European Parliament for information.

Authorisation to proceed with enhanced cooperation shall be granted by a decision of the Council acting unanimously.

Article 330 Article 109 (ex-Article 330 TFEU)

All members of the Council may participate All members of the Council may participate in its deliberations, but only members of the in its deliberations, but only members of Council representing the Member States the Council representing the States partici- participating in enhanced cooperation shall pating in enhanced cooperation shall take take part in the vote. part in the vote.

Unanimity shall be constituted by the votes Unanimity shall be constituted by the votes of the representatives of the participating of the representatives of the participating Member States only. States only.

A qualifi ed majority shall be defi ned in A qualifi ed majority shall be defi ned in accordance with Article 238(3). accordance with Article 14(4).

Article 331 Article 110 (ex-Article 331 TFEU)

1. Any Member State which wishes to Any State which wishes to participate in participate in enhanced cooperation in enhanced cooperation in progress shall progress in one of the areas referred to in notify its intention to the Council and the Article 329(1) shall notify its intention to the Commission. Council and the Commission.

79 PART I

The Commission shall, within four months The Commission shall, within four months of the date of receipt of the notifi cation, of the date of receipt of the notifi cation, confi rm the participation of the Member confi rm the participation of the State State concerned. It shall note where concerned. It shall note where necessary necessary that the conditions of participa- that the conditions of participation have tion have been fulfi lled and shall adopt any been fulfi lled and shall adopt any transi- transitional measures necessary with regard tional measures necessary with regard to to the application of the acts already adopted the application of the acts already adopted within the framework of enhanced cooper- within the framework of enhanced cooperation. ation.

However, if the Commission considers that However, if the Commission considers that the conditions of participation have not the conditions of participation have not been fulfi lled, it shall indicate the arrange- been fulfi lled, it shall indicate the arrangements to be adopted to fulfi l those condi- ments to be adopted to fulfi l those conditions and shall set a deadline for re-exam- tions and shall set a deadline for re-examining the request. On the expiry of that ining the request. On the expiry of that deadline, it shall re-examine the request, in deadline, it shall re-examine the request, in accordance with the procedure set out in the accordance with the procedure set out in the second subparagraph. If the Commission second subparagraph. If the Commission considers that the conditions of participa- considers that the conditions of participation have still not been met, the Member tion have still not been met, the State State concerned may refer the matter to the concerned may refer the matter to the Council, which shall decide on the request. Council, which shall decide on the request. The Council shall act in accordance with The Council shall act in accordance with Article 330. It may also adopt the transi- Article 109. It may also adopt the transitional measures referred to in the second tional measures referred to in the second subparagraph on a proposal from the subparagraph on a proposal from the Commission. Commission.

80 CHAPTER FIVE

2. Any Member State which wishes to participate in enhanced cooperation in progress in the framework of the common foreign and security policy shall notify its intention to the Council, the High Representative of the Union for Foreign Aff airs and Security Policy and the Commission.

The Council shall confi rm the participation of the Member State concerned, after consulting the High Representative of the Union for Foreign Aff airs and Security Policy and after noting, where necessary, that the conditions of participation have been fulfi lled. The Council, on a proposal from the High Representative, may also adopt any transitional measures necessary with regard to the application of the acts already adopted within the framework of enhanced cooperation. However, if the Council considers that the conditions of participation have not been fulfi lled, it shall indicate the arrangements to be adopted to fulfi l those conditions and shall set a deadline for re-examining the request for participation.

For the purposes of this paragraph, the Council shall act unanimously and in accordance with Article 330.

Article 332 Article 111 (ex-Article 332 TFEU)

Expenditure resulting from implementation In accordance with the provisions of Part III, of enhanced cooperation, other than admin- expenditure resulting from implementation istrative costs entailed for the institutions, of enhanced cooperation, other than admin- shall be borne by the participating Member istrative costs entailed for the institutions, States, unless all members of the Council, shall be borne by the participating States, acting unanimously after consulting the unless the European Parliament and the European Parliament, decide otherwise. Council, acting in accordance with the special legislative procedure, decide otherwise.

This provision shall be without prejudice to expenditure resulting from the fi scal capacity of the States whose currency is the euro, as established in accordance with Article 236(3).

Articles 333–334 Articles 112–113 ….. (ex-Articles 333–334) …..

81 GENERAL PROVISIONS

CHAPTER SIX

Articles 114–132 contain provisions of a general constitutional nature.

Notable innovations are, in Article 120, a liberalisation of the rules to decide on the controversial question of the location of the seats of the institutions and of EU bodies. Unanimity in the Council is replaced by the special legislative procedure.

As far as the controversial question of the seat of Parliament is concerned, we propose that, in a reciprocal arrangement with the Council, the Parliament may decide where it is to work but must ﬁ rst obtain the consent of the Council to its choice – acting, in the normal way, by qualiﬁ ed majority.

GENERAL AND FINAL PROVISIONS GENERAL PROVISIONS

Article 335 Article 114 (ex-Articles 47 TEU & 335 TFEU)

1. The Union shall have legal personality.

In each of the Member States, the Union 2. In each of the States, the Union shall shall enjoy the most extensive legal capacity enjoy the most extensive legal capacity accorded to legal persons under their laws; accorded to legal persons under their laws; it may, in particular, acquire or dispose of it may, in particular, acquire or dispose of movable and immovable property and may movable and immovable property and may be a party to legal proceedings. To this end, be a party to legal proceedings. To this end, the Union shall be represented by the the Union shall be represented by the Commission. However, the Union shall be Commission. However, the Union shall be represented by each of the institutions, by represented by each of the institutions, by virtue of their administrative autonomy, in virtue of their administrative autonomy, in matters relating to their respective matters relating to their respective operation. operation.

Articles 336–340 Articles 115–119 ….. (ex-Articles 336–340 TFEU) …..

82 CHAPTER SIX

Article 341 Article 120 (ex-Article 341 TFEU)

The seat of the institutions of the Union 1. The seat of the institutions, agencies and shall be determined by common accord of bodies of the Union shall be determined by the the governments of the Member States. European Parliament and the Council, on a proposal of the Commission, acting in accordance with the special legislative procedure.

2. By way of derogation from paragraph 1, the European Parliament and the Council shall each decide the location of their own seat, after having obtained the consent of the other.

Article 342 Article 121 (ex-Article 342 TFEU)

The rules governing the languages of the The rules governing the languages of the institutions of the Union shall, without institutions of the Union shall, without prejudice to the provisions contained in the prejudice to the provisions contained in the Statute of the Court of Justice of the Statute of the Court of Justice of the European European Union, be determined by the Union, be determined by means of regulations Council, acting unanimously by means of by the European Parliament, which shall act by regulations. a majority of its component Members, and by the Council, which shall act unanimously.

Articles 343–345 Articles 122–124 ….. (ex-Articles 343–345 TFEU) …..

Article 346 Article 125 (ex-Article 346 TFEU)

1. The provisions of the Treaties shall not 1. The provisions of the Fundamental Law preclude the application of the following shall not preclude the application of the rules: following rules:

(a) no Member State shall be obliged to (a) no State shall be obliged to supply infor- supply information the disclosure of which mation the disclosure of which it considers it considers contrary to the essential contrary to the essential interests of its own interests of its security; state security;

83 PART I

(b) any Member State may take such (b) any State may take such measures as it measures as it considers necessary for the considers necessary for the protection of the protection of the essential interests of its essential interests of its own state security security which are connected with the which are connected with the production of production of or trade in arms, munitions or trade in arms, munitions and war and war material; such measures shall not material. However, such measures shall not adversely affect the conditions of competi- adversely affect the conditions of competition in the internal market regarding tion in the internal market. products which are not intended for speciﬁ - cally military purposes.

2. The Council may, acting unanimously on 2. The European Parliament and the a proposal from the Commission, make Council, on a proposal from the Commis- changes to the list, which it drew up on 15 sion and acting in accordance with the special April 1958, of the products to which the legislative procedure, may make changes to provisions of paragraph 1(b) apply. the list, which the Council drew up on 15 April 1958, of the products to which the provisions of paragraph 1(b) apply.

Articles 347–351 Articles 126–130 ….. (ex-Articles 347–351 TFEU) …..

Article 353 [delete] …..

Articles 355–356 Articles 131–132 ….. (ex-Articles 355–356 TFEU) …..

Articles 357–358 [delete] …..

84 FINAL PROVISIONS

CHAPTER SEVEN

This Chapter closes Part I with key constitutional provisions.

Articles 133–134 concern the procedures to adopt if a state is suspected and/or found to be in breach of fundamental rights. These amendments will: (a) widen the scope of the ties which have to be respected to include the primacy of EU law, the principles of sincere cooperation and the constitutional interdependence of EU states, as well as explicit respect for the Charter; (b) increase the powers of the Parliament (consent procedure) and the Court (consultation) in the process of dealing with a breach; and (c) allow the European Council to take decisions by a super-qualiﬁ ed majority (in place of unanimity). Signiﬁ cantly, the new category of associate states will also be subject to these rules.

Article 135 deals with the procedures that will apply to amend the Fundamental Law in future. Several important changes are made to the current rigid system in which every treaty change has always to be agreed by everyone, namely: (a) the intergovernmental conference (IGC) will decide on amendments to the treaty by a special qualiﬁ ed majority of three quarters of the states; (b) the European Parlia- ment, acting by a two-thirds majority, gains the right of consent to the amended draft of the IGC.

Entry into force of the revised Fundamental Law will take place either once four fi fths of the states, representing a majority of the population, complete their national ratifi cation processes or after an affi rmative vote (simple majority) in an EU-wide simultaneous referendum. In the same vein, the general passerelle clause (Article 135(7)), which allows the European Council to shift special legislative procedure to the ordinary legislative procedure is lightened.

These changes taken together not only simplify the current procedures for treaty revision but also bring the Union into line with all other federal states or international organisations.

In Article 136, concerning the accession of a new member state, we insert and entrench the ‘Copenhagen criteria’ which have governed the enlargement process since 1993. The Commission is given the right to make a proposal about whether to open accession negotiations. And the European Parliament obtains the right of consent to enlargement.

85 PART I

Article 137 establishes an important new category of associate state. This new form of membership is designed to be suitable (a) for existing member states which choose not to accept in full the federal Fundamental Law; (b) for states, such as Norway, currently in variously unsatisfactory association agreements with the EU and which wish to upgrade their relationship; and (c) for third countries which decide they are either unable or unwilling to meet the demands of full EU membership. Further details about associate membership appear in Protocol No 3.

Article 138 concerns the right of secession.

Article 139 resuscitates the symbols of the Union ﬁ rst inscribed into the thwarted Constitutional Treaty of 2004.

BREACH OF FUNDAMENTAL RIGHTS

Article 7 TEU Article 133 (ex-Article 7 TEU)

1. On a reasoned proposal by one third of 1. On a reasoned proposal by one third of the Member States, by the European Parlia- the States, by the European Parliament or ment or by the European Commission, the by the European Commission, the Council, Council, acting by a majority of four ﬁ fths acting by a majority of four ﬁ fths of its of its members after obtaining the consent members after obtaining the consent of the of the European Parliament, may determine European Parliament, may determine that that there is a clear risk of a serious breach there is a clear risk of a serious breach by a by a Member State of the values referred to State or an Associate State of the values in Article 2. Before making such a determi- referred to in Article 2, or of the rights and nation, the Council shall hear the Member principles referred to in Articles 4 and 6. State in question and may address recom- Before making such a determination, the mendations to it, acting in accordance with Council shall hear the State in question and the same procedure. may address recommendations to it, acting in accordance with the same procedure. The Council shall regularly verify that the grounds on which such a determination was made continue to apply.

86 CHAPTER SEVEN

2. The European Council, acting by 2. The European Council, acting by a unanimity on a proposal by one third of the majority of four fi fths on a proposal by one Member States or by the Commission and third of the States or by the Commission after obtaining the consent of the European and after obtaining the consent of the Parliament, may determine the existence of European Parliament, may determine the a serious and persistent breach by a existence of a serious and persistent breach Member State of the values referred to in by a State or Associate State of the provisions Article 2, after inviting the Member State in of Articles 2, 4 and 6, after inviting the State question to submit its observations. in question to submit its observations.

3. Where a determination under paragraph 3. Where a determination under paragraph 2 has been made, the Council, acting by a 2 has been made, the Council, acting by a qualiﬁ ed majority, may decide to suspend qualiﬁ ed majority, after having consulted the certain of the rights deriving from the appli- Court of Justice and after having obtained the cation of the Treaties to the Member State consent of the European Parliament, may in question, including the voting rights of decide to suspend certain of the rights the representative of the government of that deriving from the application of the Funda- Member State in the Council. In doing so, mental Law to the State or Associate State in the Council shall take into account the question, including the voting rights of the possible consequences of such a suspension representative of the government of that on the rights and obligations of natural and State in the Council. In doing so, the legal persons. Council and Parliament shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.

The obligations of the Member State in The obligations of the State or Associate question under this Treaty shall in any case State in question under this Fundamental continue to be binding on that State. Law shall in any case continue to be binding on that State.

4. The Council, acting by a qualiﬁ ed 4. The Council, acting by a qualiﬁ ed majority, may decide subsequently to vary majority after having obtained the consent of or revoke measures taken under paragraph the European Parliament, may decide subse- 3 in response to changes in the situation quently to vary or revoke measures taken which led to their being imposed. under paragraph 3 in response to changes in the situation which led to their being imposed.

5. The voting arrangements applying to the European Parliament, the European Council and the Council for the purposes of this Article are laid down in Article 354 of the Treaty on the Functioning of the European Union.

87 PART I

Article 354 TFEU Article 134 (ex-Article 354 TFEU)

For the purposes of Article 7 of the Treaty For the purposes of Article 133 on the on European Union on the suspension of suspension of certain rights resulting from certain rights resulting from Union Union membership or associate membership, membership, the member of the European the member of the European Council or of Council or of the Council representing the the Council representing the State in Member State in question shall not take question shall not take part in the vote and part in the vote and the Member State in the State in question shall not be counted in question shall not be counted in the calcula- the calculation of the one third or four ﬁ fths tion of the one third or four ﬁ fths of of States referred to in paragraphs 1 and 2 Member States referred to in paragraphs 1 of that Article. Abstentions by members and 2 of that Article. Abstentions by present in person or represented shall not members present in person or represented prevent the adoption of decisions referred to shall not prevent the adoption of decisions in paragraph 2 of that Article. referred to in paragraph 2 of that Article.

For the adoption of the decisions referred to For the adoption of the decisions referred to in paragraphs 3 and 4 of Article 7 of the in paragraphs 3 and 4 of Article 133, a Treaty on European Union, a qualifi ed qualifi ed majority shall be defi ned in majority shall be defi ned in accordance with accordance with Article 14(5). Article 238(3)(b) of this Treaty.

Where, following a decision to suspend Where, following a decision to suspend voting rights adopted pursuant to paragraph voting rights adopted pursuant to paragraph 3 of Article 7 of the Treaty on European 3 of Article 133, the Council acts by a Union, the Council acts by a qualifi ed qualifi ed majority on the basis of a majority on the basis of a provision of the provision of the Fundamental Law, that Treaties, that qualifi ed majority shall be qualifi ed majority shall be defi ned in defi ned in accordance with Article 238(3)(b) accordance with Article 14(5), or, where the of this Treaty, or, where the Council acts on Council acts on a proposal from the a proposal from the Commission or from Commission, in accordance with Article the High Representative of the Union for 14(4). Foreign Affairs and Security Policy, in accordance with Article 238(3)(a). Where these procedures relate to an Associate State, that State shall be consulted before the European Council or the Council shall take their decisions.

For the purposes of Article 7 of the Treaty For the purposes of Article 133 (2) and (3), on European Union, the European Parlia- the European Parliament shall act by a two- ment shall act by a two-thirds majority of thirds majority of the votes cast, repre- the votes cast, representing the majority of senting the majority of its component its component Members. Members.

88 CHAPTER SEVEN

REVISION OF THE FUNDAMENTAL LAW

Article 48 TEU Article 135 (ex-Article 48 TEU)

1. The Treaties may be amended in accord- 1. The Fundamental Law may be amended ance with an ordinary revision procedure. in accordance with this revision procedure. They may also be amended in accordance with simpliﬁ ed revision procedures.

Ordinary revision procedure

2. The Government of any Member State, 2. The Government of any State, the the European Parliament or the Commis- European Parliament or the Commission sion may submit to the Council proposals may submit to the European Council for the amendment of the Treaties. These proposals for the amendment of the Funda- proposals may, inter alia, serve either to mental Law. These proposals may, inter increase or to reduce the competences alia, serve either to increase or to reduce the conferred on the Union in the Treaties. competences conferred on the Union. The These proposals shall be submitted to the State Parliaments shall be notiﬁ ed. European Council by the Council and the national Parliaments shall be notiﬁ ed.

3. If the European Council, after 3. If the European Council, after consulting the European Parliament and consulting the European Parliament and the Commission, adopts by a simple the Commission, adopts by a simple majority a decision in favour of examining majority a decision in favour of examining the proposed amendments, the President of the proposed amendments, the President of the European Council shall convene a the European Commission shall convene a Convention composed of representatives of Convention composed of representatives of the national Parliaments, of the Heads of the State Parliaments, of the Heads of State State or Government of the Member States, or Government of the States, of the of the European Parliament and of the European Parliament and of the Commis- Commission. The European Central Bank sion. The European Central Bank shall also shall also be consulted in the case of institu- be consulted in the case of institutional tional changes in the monetary area. The changes in the monetary area. The Conven- Convention shall examine the proposals for tion shall examine the proposals for amend- amendments and shall adopt by consensus ments and shall adopt by consensus a draft a recommendation to a conference of represent- amended Fundamental Law. atives of the governments of the Member States as provided for in paragraph 4.

89 PART I

The European Council may decide by a The European Council may decide by a simple majority, after obtaining the consent simple majority, after obtaining the consent of the European Parliament, not to convene of the European Parliament, not to convene a Convention should this not be justifi ed by a Convention should this not be justifi ed by the extent of the proposed amendments. In the extent of the proposed amendments. In the latter case, the European Council shall the latter case, the European Council shall defi ne the terms of reference for a confer- defi ne the terms of reference for a conference of representatives of the governments ence of representatives of the State govern- of the Member States. ments.

4. A conference of representatives of the 4. A conference of representatives of the governments of the Member States shall be State governments shall be convened by the convened by the President of the Council for President of the European Council for the the purpose of determining by common purpose of determining the amendments to accord the amendments to be made to the be made to the Fundamental Law on the basis Treaties. of the recommendations of the Convention.

The amendments shall enter into force after The conference shall act by a majority of three being ratifi ed by all the Member States in quarters of the governments. accordance with their respective constitutional requirements.

5. If, two years after the signature of a treaty 5. The European Parliament shall, by a two- amending the Treaties, four fi fths of the thirds majority, vote its consent to the Funda- Member States have ratifi ed it and one or more mental Law as amended by the conference. Member States have encountered diffi culties in proceeding with ratifi cation, the matter shall be referred to the European Council.

Simplifi ed revision procedures

6. The Government of any Member State, the 6. The amendments shall enter into force European Parliament or the Commission may throughout the Union either after being submit to the European Council proposals for ratiﬁ ed by four fi fths of the States, representing revising all or part of the provisions of Part a majority of the population of the Union, in Three of the Treaty on the Functioning of the accordance with their respective constitu- European Union relating to the internal tional requirements, or after having obtained policies and action of the Union. a majority in a referendum held at the same time in all States of the Union. The European Council may adopt a decision amending all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union. The European Council shall act by unanimity after consulting the European Parliament and the Commission, and the European Central Bank in the case of institutional changes in the monetary area. That decision shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.

90 CHAPTER SEVEN

The decision referred to in the second subparagraph shall not increase the competences conferred on the Union in the Treaties.

7. Where the Treaty on the Functioning of the 7. Where the Fundamental Law provides European Union or Title V of this Treaty for legislative acts to be adopted in accord- provides for the Council to act by unanimity in ance with the special legislative procedure, a given area or case, the European Council the European Council may adopt a decision may adopt a decision authorising the Council allowing for the adoption of such acts in to act by a qualifi ed majority in that area or in accordance with the ordinary legislative that case. This subparagraph shall not apply to procedure. decisions with military implications or those in the area of defence.

Where the Treaty on the Functioning of the European Union provides for legislative acts to be adopted by the Council in accordance with a special legislative procedure, the European Council may adopt a decision allowing for the adoption of such acts in accordance with the ordinary legislative procedure.

Any initiative taken by the European Council on the basis of the fi rst or the second subparagraph shall be notifi ed to the national Parlia- ments. If a national Parliament makes known its opposition within six months of the date of such notifi cation, the decision referred to in the fi rst or the second subparagraph shall not be adopted. In the absence of opposition, the European Council may adopt the decision.

For the adoption of the decisions referred to in the fi rst and second subparagraphs, the European Council shall act by unanimity after obtaining the consent of the European Parlia- ment, which shall be given by a majority of its component members.

91 PART I

ACCESSION TO MEMBERSHIP

Article 49 Article 136 (ex-Article 49 TEU)

Any European State which respects the 1. Any European State which respects the values referred to in Article 2 and is values referred to in Article 2 and is committed to promoting them may apply to committed to promoting them may apply to become a member of the Union. The become a member of the Union. The European Parliament and national Parlia- European Parliament and State Parliaments ments shall be notiﬁ ed of this application. shall be notiﬁ ed of this application. The The applicant State shall address its applica- applicant State shall address its application tion to the Council, which shall act unani- to the Council, which shall act unanimously mously after consulting the Commission on a proposal of the Commission and after and after receiving the consent of the receiving the consent of the European European Parliament, which shall act by a Parliament, which shall act by a majority of majority of its component members. The its component members. conditions of eligibility agreed upon by the European Council shall be taken into 2. In order to be accepted as eligible for the account. opening of accession negotiations, an applicant state must have stable institutions which guarantee democracy, the rule of law, human rights and respect for and protection of minorities; a functioning market economy and proven capacity to cope with competitive pressure and market forces within the Union; and the ability to take on the obligations of Union membership, including adherence to the aims of political, economic and monetary union.

The conditions of admission and the adjust- 3. The conditions of admission and the ments to the Treaties on which the Union is adjustments to the Fundamental Law on founded, which such admission entails, which the Union is founded, which such shall be the subject of an agreement admission entails, shall be the subject of an between the Member States and the agreement between the States and the applicant State. This agreement shall be applicant State. This agreement shall be submitted for ratiﬁ cation by all the submitted for ratiﬁ cation by the European contracting States in accordance with their Parliament, which shall act by a majority of respective constitutional requirements. its component Members, and by all the contracting States in accordance with their respective constitutional requirements.

92 CHAPTER SEVEN

ASSOCIATE MEMBERSHIP

Article 137

1. Any State of the Union may apply to the European Council to become an Associate State of the Union. The European Parliament and State Parliaments shall be notifi ed of this application.

2. Any other European state which respects the values referred to in Article 2 and is committed to promoting them may apply to the European Council to become an Associate State of the Union. The European Parliament and State Parliaments shall be notifi ed of this application.

3. The Commission shall negotiate an agreement with the applicant Associate State in accordance with Article 433, and with due regard to the light of guidelines laid down in Protocol No 9. The agreement will set out the terms and conditions of associate membership and the adjustments to the Fundamental Law which such association entails. The agreement may be of limited duration.

4. The agreement shall be concluded on behalf of the Union by the Council, acting in accordance with the procedure laid down in Article 14(5). It shall be submitted for the consent of the European Parliament, which shall act by a majority of its component Members, and by all the contracting States in accordance with their respective constitutional requirements.

The agreement shall enter into force once approved by the European Parliament and by four fi fths of the State parliaments and by the applicant Associate State.

93 PART I

SECESSION FROM THE UNION

Article 50 Article 138 (ex-Article 50 TEU)

1. Any Member State may decide to 1. Any State may decide to withdraw from withdraw from the Union in accordance the Union in accordance with its own with its own constitutional requirements. constitutional requirements.

2. A Member State which decides to 2. A State which decides to withdraw shall withdraw shall notify the European Council notify the European Council of its intention. of its intention. In the light of the guidelines In the light of the guidelines provided by provided by the European Council, the Union the European Council, the Union shall shall negotiate and conclude an agreement negotiate and conclude an agreement with with that State, setting out the arrangements that State, setting out the arrangements for for its withdrawal, taking account of the its withdrawal, taking account of the framework for its future relationship with the framework for its future relationship with Union. That agreement shall be negotiated in the Union. That agreement shall be negoti- accordance with Article 218(3) of the Treaty ated in accordance with Article 433(3). It on the Functioning of the European Union. It shall be concluded on behalf of the Union shall be concluded on behalf of the Union by by the Council, acting by a qualiﬁ ed the Council, acting by a qualiﬁ ed majority, majority, after obtaining the consent of the after obtaining the consent of the European European Parliament. Parliament.

3. The Treaties shall cease to apply to the 3. The Fundamental Law of the Union State in question from the date of entry into shall cease to apply to the State in question force of the withdrawal agreement or, from the date of entry into force of the with- failing that, two years after the notiﬁ cation drawal agreement or, failing that, two years referred to in paragraph 2, unless the after the notiﬁ cation referred to in European Council, in agreement with the paragraph 2, unless the European Council, Member State concerned, unanimously in agreement with the State concerned, decides to extend this period. unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, 4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the member of the European Council or of the Council representing the withdrawing the Council representing the withdrawing Member State shall not participate in the State shall not participate in the discussions discussions of the European Council or of the European Council or Council or in Council or in decisions concerning it. decisions concerning it.

A qualifi ed majority shall be defi ned in A qualifi ed majority shall be defi ned in accordance with Article 238(3)(b) of the Treaty accordance with Article 14(5). on the Functioning of the European Union.

5. If a State which has withdrawn from the 5. If a State which has withdrawn from the Union asks to rejoin, its request shall be Union asks to rejoin, its request shall be subject to the procedure referred to in subject to the procedure referred to in Article 49. Article 136.

94 CHAPTER SEVEN

SYMBOLS

Article 139

The fl ag of the Union shall be a circle of twelve golden stars on a blue background.

The anthem of the Union shall be based on the Ode to Joy from the Ninth Symphony by Ludwig van Beethoven.

The motto of the Union shall be ‘United in diversity’.

Europe Day shall be celebrated on 9 May throughout the Union.

PROTOCOLS

Article 51 Article 140 ….. (ex-Article 51 TEU) …..

SIGNATORIES

Article 52 Article 141 ….. (ex-Article 52 TEU) …..

DURATION

Article 53 Article 142 ….. (ex-Article 53 TEU) …..

95 PART I

ENTRY INTO FORCE

Article 54 Article 143 (ex-Article 54 TEU)

1. This Treaty shall be ratifi ed by the High 1. This Treaty establishing the Fundamental Contracting Parties in accordance with their Law shall be ratifi ed by the High respective constitutional requirements. The Contracting Parties in accordance with instruments of ratifi cation shall be their respective constitutional require- deposited with the Government of the ments. The instruments of ratifi cation shall Italian Republic. be deposited with the Government of the Italian Republic.

2. This Treaty shall enter into force on 1 2. This Fundamental Law shall enter into January 1993, provided that all the Instru- force on the fi rst day of the month following the ments of ratifi cation have been deposited, deposit of the Instrument of ratifi cation by the or, failing that, on the fi rst day of the month governments of four fi fths of the States or following the deposit of the Instrument of following the offi cial verifi cation by the ratifi cation by the last signatory State to take Commission of the results of a referendum held this step. in all States, the requisite majority having been obtained.

LANGUAGE VERSIONS

Article 55 Article 144 ….. (ex-Article 55 TEU) …..

96 PART II THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION

The Charter of Fundamental Rights of the European Union was drafted by the ﬁ rst constitutional Convention which met in 1999–2000. The Charter was signed at the IGC in Nice in December 2000 but was granted the status only of a code of conduct. Nevertheless, the Convention had famously decided to work on the text ‘as if’ the Charter would become binding one day. Under the Treaty of Lisbon, indeed, the Charter was given the status of primary law although it was not included in the treaty text.

Here the Charter, with only minimal changes, is fully incorporated into the Funda- mental Law, which will give the Charter the visibility and prominence which it deserves.

The Charter reafﬁ rms, with due regard for the powers and tasks of the Union and for the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the States, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the Social Charters adopted by the Union and by the Council of Europe and the case law of the ECJ in Luxembourg and of the European Court of Human Rights in Strasbourg.

We drop the Preamble to the Charter as being superﬂ uous to requirements as well as rather unsatisfactory. The description of the ﬁ eld of application of the Charter is brought into line with ECJ case law (Article 195). We amend Article 196 to drop an explicit reference to the Charter’s explanatory memorandum – a reference inserted at the time of the drafting of the Lisbon treaty to assuage states reluctant to embrace the development by the Union of its own federal rights regime. The ECJ, which already refers to the Charter in its case-law, will in any event not be instructed as to its interpretative sources.

97 PART II

PREAMBLE [delete] …..

TITLE I DIGNITY DIGNITY

Article 1 Article 145 (ex-Article 1 CFR)

Human dignity Human dignity

Human dignity is inviolable. It must be Human dignity is inviolable. It must be respected and protected. respected and protected.

Article 2 Article 146 (ex-Article 2 CFR)

Right to life Right to life

1. Everyone has the right to life. 1. Everyone has the right to life. 2. No one shall be condemned to the death 2. No one shall be condemned to the death penalty, or executed. penalty, or executed.

Article 3 Article 147 (ex-Article 3 CFR)

Right to the integrity of the person Right to the integrity of the person

1. Everyone has the right to respect for his 1. Everyone has the right to respect for his or her physical and mental integrity. or her physical and mental integrity.

2. In the fi elds of medicine and biology, the 2. In the fi elds of medicine and biology, the following must be respected in particular: following must be respected in particular: (a) the free and informed consent of the (a) the free and informed consent of the person concerned, according to the proce- person concerned, according to the procedures laid down dures laid down by law; by law; (b) the prohibition of eugenic practices, in (b) the prohibition of eugenic practices, in particular those aiming at the selection of particular those aiming at the selection of persons; persons; (c) the prohibition on making the human (c) the prohibition on making the human body and its parts as such a source of body and its parts as such a source of fi nancial gain; fi nancial gain; (d) the prohibition of the reproductive (d) the prohibition of the reproductive cloning of human beings. cloning of human beings.

98 PART II

Article 4 Article 148 (ex-Article 4 CFR)

Prohibition of torture and inhuman or Prohibition of torture and inhuman or degrading treatment or punishment degrading treatment or punishment

No one shall be subjected to torture or to No one shall be subjected to torture or to inhuman or degrading treatment or punish- inhuman or degrading treatment or punishment. ment.

Article 5 Article 149 (ex-Article 5 CFR)

Prohibition of slavery and forced labour Prohibition of slavery and forced labour

1. No one shall be held in slavery or 1. No one shall be held in slavery or servitude. servitude.

2. No one shall be required to perform 2. No one shall be required to perform forced or compulsory labour. forced or compulsory labour.

3. Trafﬁ cking in human beings is prohib- 3. Trafﬁ cking in human beings is prohibited. ited.

TITLE II FREEDOMS FREEDOMS

Article 6 Article 150 (ex-Article 6 CFR)

Right to liberty and security Right to liberty and security

Everyone has the right to liberty and Everyone has the right to liberty and security of person. security of person.

Article 7 Article 151 (ex-Article 7 CFR)

Respect for private and family life Respect for private and family life

Everyone has the right to respect for his or Everyone has the right to respect for his or her private and family life, home and her private and family life, home and communications. communications.

99 PART II

Article 8 Article 152 (ex-Article 8 CFR)

Protection of personal data Protection of personal data

1. Everyone has the right to the protection 1. Everyone has the right to the protection of personal data concerning him or her. of personal data concerning him or her.

2. Such data must be processed fairly for 2. Such data must be processed fairly for specifi ed purposes and on the basis of the specifi ed purposes and on the basis of the consent of the person concerned or some consent of the person concerned or some other legitimate basis laid down by law. other legitimate basis laid down by law. Everyone has the right of access to data Everyone has the right of access to data which has been collected concerning him or which has been collected concerning him or her, and the right to have it rectifi ed. her, and the right to have it rectifi ed.

3. Compliance with these rules shall be 3. Compliance with these rules shall be subject to control by an independent subject to control by an independent authority. authority.

Article 9 Article 153 (ex-Article 9 CFR)

Right to marry and right to found a family Right to marry and right to found a family

The right to marry and the right to found a The right to marry and the right to found a family shall be guaranteed in accordance family shall be guaranteed in accordance with the national laws governing the with the national laws governing the exercise of these rights. exercise of these rights.

Article 10 Article 154 (ex-Article 10 CFR)

Freedom of thought, conscience and Freedom of thought, conscience and religion religion

1. Everyone has the right to freedom of 1. Everyone has the right to freedom of thought, conscience and religion. This right thought, conscience and religion. This right includes freedom to change religion or includes freedom to change religion or belief and freedom, either alone or in belief and freedom, either alone or in community with others and in public or in community with others and in public or in private, to manifest religion or belief, in private, to manifest religion or belief, in worship, teaching, practice and observance. worship, teaching, practice and observance.

2. The right to conscientious objection is 2. The right to conscientious objection is recognised, in accordance with the national recognised, in accordance with the national laws governing the exercise of this right. laws governing the exercise of this right.

100 PART II

Article 11 Article 155 (ex-Article 11 CFR)

Freedom of expression and information Freedom of expression and information

1. Everyone has the right to freedom of 1. Everyone has the right to freedom of expression. This right shall include freedom expression. This right shall include to hold opinions and to receive and impart freedom to hold opinions and to receive and information and ideas without interference impart information and ideas without inter- by public authority and regardless of ference by public authority and regardless of frontiers. frontiers.

2. The freedom and pluralism of the media 2. The freedom and pluralism of the media shall be respected. shall be respected.

Article 12 Article 156 (ex-Article 12 CFR)

Freedom of assembly and of association Freedom of assembly and of association

1. Everyone has the right to freedom of 1. Everyone has the right to freedom of peaceful assembly and to freedom of associ- peaceful assembly and to freedom of association at all levels, in particular in political, ation at all levels, in particular in political, trade union and civic matters, which trade union and civic matters, which implies the right of everyone to form and to implies the right of everyone to form and to join trade unions for the protection of his or join trade unions for the protection of his or her interests. her interests.

2. Political parties at Union level contribute 2. Political parties at Union level contribute to expressing the political will of the to expressing the political will of the citizens of the Union. citizens of the Union.

Article 13 Article 157 (ex-Article 13 CFR)

Freedom of the arts and sciences Freedom of the arts and sciences

The arts and scientiﬁ c research shall be free The arts and scientiﬁ c research shall be free of constraint. Academic freedom shall be of constraint. Academic freedom shall be respected. respected.

101 PART II

Article 14 Article 158 (ex-Article 14 CFR)

Right to education Right to education

1. Everyone has the right to education and 1. Everyone has the right to education and to have access to vocational and continuing to have access to vocational and continuing training. training.

2. This right includes the possibility to 2. This right includes the possibility to receive free compulsory education. receive free compulsory education.

3. The freedom to found educational estab- 3. The freedom to found educational establishments with due respect for democratic lishments with due respect for democratic principles and the right of parents to ensure principles and the right of parents to ensure the education and teaching of their children the education and teaching of their children in conformity with their religious, philo- in conformity with their religious, philo- sophical and pedagogical convictions shall sophical and pedagogical convictions shall be respected, in accordance with the be respected, in accordance with the national laws governing the exercise of such national laws governing the exercise of such freedom and right. freedom and right.

Article 15 Article 159 (ex-Article 15 CFR)

Freedom to choose an occupation and right Freedom to choose an occupation and right to engage in work to engage in work

1. Everyone has the right to engage in work 1. Everyone has the right to engage in work and to pursue a freely chosen or accepted and to pursue a freely chosen or accepted occupation. occupation.

2. Every citizen of the Union has the 2. Every citizen of the Union has the freedom to seek employment, to work, to freedom to seek employment, to work, to exercise the right of establishment and to exercise the right of establishment and to provide services in any Member State. provide services in any State.

3. Nationals of third countries who are 3. Nationals of third countries who are authorised to work in the territories of the authorised to work in the territories of the Member States are entitled to working States are entitled to working conditions conditions equivalent to those of citizens of equivalent to those of citizens of the Union. the Union.

102 PART II

Article 16 Article 160 (ex-Article 16 CFR)

Freedom to conduct a business Freedom to conduct a business

The freedom to conduct a business in The freedom to conduct a business in accordance with Union law and national accordance with Union law and national laws and practices is recognised. laws and practices is recognised.

Article 17 Article 161 (ex-Article 17 CFR)

Right to property Right to property

1. Everyone has the right to own, use, 1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully dispose of and bequeath his or her lawfully acquired possessions. No one may be acquired possessions. No one may be deprived of his or her possessions, except in deprived of his or her possessions, except in the public interest and in the cases and the public interest and in the cases and under the conditions provided for by law, under the conditions provided for by law, subject to fair compensation being paid in subject to fair compensation being paid in good time for their loss. The use of property good time for their loss. The use of property may be regulated by law in so far as is may be regulated by law in so far as is necessary for the general interest. necessary for the general interest.

2. Intellectual property shall be protected. 2. Intellectual property shall be protected.

Article 18 Article 162 (ex-Article 18 CFR)

Right to asylum Right to asylum

The right to asylum shall be guaranteed The right to asylum shall be guaranteed with due respect for the rules of the Geneva with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of of 31 January 1967 relating to the status of refugees and in accordance with the Treaty refugees and in accordance with the Funda- on European Union and the Treaty on the mental Law. Functioning of the European Union (hereinafter referred to as ‘the Treaties’).

103 PART II

Article 19 Article 163 (ex-Article 19 CFR)

Protection in the event of removal, Protection in the event of removal, expulsion or extradition expulsion or extradition

1. Collective expulsions are prohibited. 1. Collective expulsions are prohibited.

2. No one may be removed, expelled or 2. No one may be removed, expelled or extradited to a State where there is a serious extradited to a state where there is a serious risk that he or she would be subjected to the risk that he or she would be subjected to the death penalty, torture or other inhuman or death penalty, torture or other inhuman or degrading treatment or punishment. degrading treatment or punishment.

TITLE III EQUALITY EQUALITY

Article 20 Article 164 (ex-Article 20 CFR)

Equality before the law Equality before the law

Everyone is equal before the law. Everyone is equal before the law.

Article 21 Article 165 (ex-Article 21 CFR)

Non-discrimination Non-discrimination

1. Any discrimination based on any ground 1. Any discrimination based on any ground such as sex, race, colour, ethnic or social such as sex, race, colour, ethnic or social origin, genetic features, language, religion origin, genetic features, language, religion or belief, political or any other opinion, or belief, political or any other opinion, membership of a national minority, membership of a national minority, property, birth, disability, age or sexual property, birth, disability, age or sexual orientation shall be prohibited. orientation shall be prohibited.

2. Within the scope of application of the 2. Within the scope of application of the Treaties and without prejudice to any of Fundamental Law and without prejudice to their speciﬁ c provisions, any discrimination any of their speciﬁ c provisions, any discrim- on grounds of nationality shall be prohib- ination on grounds of nationality shall be ited. prohibited.

Article 22 Article 166 (ex-Article 22 CFR)

Cultural, religious and linguistic diversity Cultural, religious and linguistic diversity

The Union shall respect cultural, religious The Union shall respect cultural, religious and linguistic diversity. and linguistic diversity.

104 PART II

Article 23 Article 167 (ex-Article 23 CFR)

Equality between women and men Equality between women and men

Equality between women and men must be Equality between women and men must be ensured in all areas, including employment, ensured in all areas, including employment, work and pay. work and pay.

The principle of equality shall not prevent The principle of equality shall not prevent the maintenance or adoption of measures the maintenance or adoption of measures providing for speciﬁ c advantages in favour providing for speciﬁ c advantages in favour of the under-represented sex. of the under-represented sex.

Article 24 Article 168 (ex-Article 24 CFR)

The rights of the child The rights of the child

1. Children shall have the right to such 1. Children shall have the right to such protection and care as is necessary for their protection and care as is necessary for their well-being. They may express their views well-being. They may express their views freely. Such views shall be taken into freely. Such views shall be taken into consideration on matters which concern consideration on matters which concern them in accordance with their age and them in accordance with their age and maturity. maturity.

2. In all actions relating to children, 2. In all actions relating to children, whether taken by public authorities or whether taken by public authorities or private institutions, the child’s best interests private institutions, the child’s best interests must be a primary consideration. must be a primary consideration.

3. Every child shall have the right to 3. Every child shall have the right to maintain on a regular basis a personal rela- maintain on a regular basis a personal relationship and direct contact with both his or tionship and direct contact with both his or her parents, unless that is contrary to his or her parents, unless that is contrary to his or her interests her interests.

Article 25 Article 169 (ex-Article 25 CFR)

The rights of the elderly The rights of the elderly

The Union recognises and respects the The Union recognises and respects the rights of the elderly to lead a life of dignity rights of the elderly to lead a life of dignity and independence and to participate in and independence and to participate in social and cultural life. social and cultural life.

105 PART II

Article 26 Article 170 (ex-Article 26 CFR)

Integration of persons with disabilities Integration of persons with disabilities

The Union recognises and respects the The Union recognises and respects the right of persons with disabilities to beneﬁ t right of persons with disabilities to beneﬁ t from measures designed to ensure their from measures designed to ensure their independence, social and occupational inte- independence, social and occupational integration and participation in the life of the gration and participation in the life of the community. community.

TITLE IV SOLIDARITY SOLIDARITY

Article 27 Article 171 (ex-Article 27 CFR)

Workers’ right to information and consulta- Workers’ right to information and consultation within the undertaking tion within the undertaking

Workers or their representatives must, at Workers or their representatives must, at the appropriate levels, be guaranteed infor- the appropriate levels, be guaranteed information and consultation in good time in the mation and consultation in good time in the cases and under the conditions provided for cases and under the conditions provided for by Union law and national laws and by Union law and national laws and practices. practices.

Article 28 Article 172 (ex-Article 28 CFR)

Right of collective bargaining and action Right of collective bargaining and action

Workers and employers, or their respective Workers and employers, or their respective organisations, have, in accordance with organisations, have, in accordance with Union law and national laws and practices, Union law and national laws and practices, the right to negotiate and conclude collec- the right to negotiate and conclude collective agreements at the appropriate levels tive agreements at the appropriate levels and, in cases of conﬂ icts of interest, to take and, in cases of conﬂ icts of interest, to take collective action to defend their interests, collective action to defend their interests, including strike action. including strike action.

Article 29 Article 173 (ex-Article 29 CFR)

Right of access to placement services Right of access to placement services

Everyone has the right of access to a free Everyone has the right of access to a free placement service. placement service.

106 PART II

Article 30 Article 174 (ex-Article 30 CFR)

Protection in the event of unjustiﬁ ed Protection in the event of unjustiﬁ ed dismissal dismissal

Every worker has the right to protection Every worker has the right to protection against unjustiﬁ ed dismissal, in accordance against unjustiﬁ ed dismissal, in accordance with Union law and national laws and with Union law and national laws and practices. practices.

Article 31 Article 175 (ex-Article 31 CFR)

Fair and just working conditions Fair and just working conditions

1. Every worker has the right to working 1. Every worker has the right to working conditions which respect his or her health, conditions which respect his or her health, safety and dignity. safety and dignity.

2. Every worker has the right to limitation of 2. Every worker has the right to limitation maximum working hours, to daily and of maximum working hours, to daily and weekly rest periods and to an annual period weekly rest periods and to an annual period of paid leave. of paid leave.

Article 32 Article 176 (ex-Article 32 CFR)

Prohibition of child labour and protection of Prohibition of child labour and protection of young people at work young people at work

The employment of children is prohibited. The employment of children is prohibited. The minimum age of admission to employ- The minimum age of admission to employment may not be lower than the minimum ment may not be lower than the minimum school-leaving age, without prejudice to school-leaving age, without prejudice to such rules as may be more favourable to such rules as may be more favourable to young people and except for limited deroga- young people and except for limited derogations. Young people admitted to work must tions. Young people admitted to work must have working conditions appropriate to their have working conditions appropriate to age and be protected against economic their age and be protected against economic exploitation and any work likely to harm exploitation and any work likely to harm their safety, health or physical, mental, their safety, health or physical, mental, moral or social development or to interfere moral or social development or to interfere with their education. with their education.

107 PART II

Article 33 Article 177 (ex-Article 33 CFR)

Family and professional life Family and professional life

1. The family shall enjoy legal, economic 1. The family shall enjoy legal, economic and social protection. and social protection.

2. To reconcile family and professional life, 2. To reconcile family and professional life, everyone shall have the right to protection everyone shall have the right to protection from dismissal for a reason connected with from dismissal for a reason connected with maternity and the right to paid maternity maternity and the right to paid maternity leave and to parental leave following the leave and to parental leave following the birth or adoption of a child. birth or adoption of a child.

Article 34 Article 178 (ex-Article 34 CFR)

Social security and social assistance Social security and social assistance

1. The Union recognises and respects the 1. The Union recognises and respects the entitlement to social security beneﬁ ts and entitlement to social security beneﬁ ts and social services providing protection in cases social services providing protection in cases such as maternity, illness, industrial such as maternity, illness, industrial accidents, dependency or old age, and in the accidents, dependency or old age, and in the case of loss of employment, in accordance case of loss of employment, in accordance with the rules laid down by Union law and with the rules laid down by Union law and national laws and practices. national laws and practices.

2. Everyone residing and moving legally 2. Everyone residing and moving legally within the European Union is entitled to within the European Union is entitled to social security beneﬁ ts and social advan- social security beneﬁ ts and social advantages in accordance with Union law and tages in accordance with Union law and national laws and practices. national laws and practices.

3. In order to combat social exclusion and 3. In order to combat social exclusion and poverty, the Union recognises and respects poverty, the Union recognises and respects the right to social and housing assistance so the right to social and housing assistance so as to ensure a decent existence for all those as to ensure a decent existence for all those who lack sufﬁ cient resources, in accordance who lack sufﬁ cient resources, in accordance with the rules laid down by Union law and with the rules laid down by Union law and national laws and practices. national laws and practices.

108 PART II

Article 35 Article 179 (ex-Article 35 CFR)

Health care Health care

Everyone has the right of access to preven- Everyone has the right of access to preventive health care and the right to benefi t from tive health care and the right to benefi t from medical treatment under the conditions medical treatment under the conditions established by national laws and practices. established by national laws and practices. A high level of human health protection A high level of human health protection shall be ensured in the defi nition and shall be ensured in the defi nition and implementation of all the Union’s policies implementation of all the Union’s policies and activities. and activities.

Article 36 Article 180 (ex-Article 36 CFR)

Access to services of general economic Access to services of general economic interest interest

The Union recognises and respects access The Union recognises and respects access to services of general economic interest as to services of general economic interest as provided for in national laws and practices, provided for in national laws and practices, in accordance with the Treaties, in order to in accordance with the Fundamental Law, promote the social and territorial cohesion in order to promote the social and territorial of the Union. cohesion of the Union.

Article 37 Article 181 (ex-Article 37 CFR)

Environmental protection Environmental protection

A high level of environmental protection A high level of environmental protection and the improvement of the quality of the and the improvement of the quality of the environment must be integrated into the environment must be integrated into the policies of the Union and ensured in accord- policies of the Union and ensured in accordance with the principle of sustainable devel- ance with the principle of sustainable development. opment.

Article 38 Article 182 (ex-Article 38 CFR)

Consumer protection Consumer protection

Union policies shall ensure a high level of Union policies shall ensure a high level of consumer protection. consumer protection.

109 PART II

TITLE V CITIZENS’ RIGHTS CITIZENS’ RIGHTS

Article 39 Article 183 (ex-Article 39 CFR)

Right to vote and to stand as a candidate at Right to vote and to stand as a candidate at elections to the European Parliament elections to the European Parliament

1. Every citizen of the Union has the right to 1. Every citizen of the Union has the right vote and to stand as a candidate at elections to vote and to stand as a candidate at to the European Parliament in the Member elections to the European Parliament in the State in which he or she resides, under the State in which he or she resides, under the same conditions as nationals of that State. same conditions as nationals of that State.

2. Members of the European Parliament 2. Members of the European Parliament shall be elected by direct universal suffrage shall be elected by direct universal suffrage in a free and secret ballot. in a free and secret ballot.

Article 40 Article 184 (ex-Article 40 CFR)

Right to vote and to stand as a candidate at Right to vote and to stand as a candidate at municipal elections municipal elections

Every citizen of the Union has the right to Every citizen of the Union has the right to vote and to stand as a candidate at vote and to stand as a candidate at municipal elections in the Member State in municipal elections in the State in which he which he or she resides under the same or she resides under the same conditions as conditions as nationals of that State. nationals of that State.

Article 41 Article 185 (ex-Article 41 CFR)

Right to good administration Right to good administration

1. Every person has the right to have his or 1. Every person has the right to have his or her affairs handled impartially, fairly and her affairs handled impartially, fairly and within a reasonable time by the institutions, within a reasonable time by the institutions, bodies, ofﬁ ces and agencies of the Union. bodies, ofﬁ ces and agencies of the Union.

2. This right includes: 2. This right includes: (a) the right of every person to be heard, (a) the right of every person to be heard, before any individual measure which would before any individual measure which would affect him or her adversely is taken; affect him or her adversely is taken; (b) the right of every person to have access (b) the right of every person to have access to his or her fi le, while respecting the legiti- to his or her fi le, while respecting the legitimate interests of confi dentiality and of mate interests of confi dentiality and of professional and business secrecy; professional and business secrecy; (c) the obligation of the administration to (c) the obligation of the administration to give reasons for its decisions. give reasons for its decisions.

110 PART II

3. Every person has the right to have the 3. Every person has the right to have the Union make good any damage caused by its Union make good any damage caused by its institutions or by its servants in the perfor- institutions or by its servants in the performance of their duties, in accordance with mance of their duties, in accordance with the general principles common to the laws the general principles common to the laws of the Member States. of the States.

4. Every person may write to the institutions 4. Every person may write to the institu- of the Union in one of the languages of the tions of the Union in one of the languages Treaties and must have an answer in the of the Fundamental Law and must have an same language. answer in the same language.

Article 42 Article 186 (ex-Article 42 CFR)

Right of access to documents Right of access to documents

Any citizen of the Union, and any natural or Any citizen of the Union, and any natural or legal person residing or having its regis- legal person residing or having its registered offi ce in a Member State, has a right tered offi ce in a State, has a right of access of access to documents of the institutions, to documents of the institutions, bodies, bodies, offi ces and agencies of the Union, offi ces and agencies of the Union, whatever whatever their medium. their medium.

Article 43 Article 187 (ex-Article 43 CFR)

European Ombudsman European Ombudsman

Any citizen of the Union and any natural or Any citizen of the Union and any natural or legal person residing or having its regis- legal person residing or having its registered offi ce in a Member State has the right tered offi ce in a State has the right to refer to refer to the European Ombudsman cases to the European Ombudsman cases of of maladministration in the activities of the maladministration in the activities of the institutions, bodies, offi ces or agencies of institutions, bodies, offi ces or agencies of the Union, with the exception of the Court the Union, with the exception of the Court of Justice of the European Union acting in of Justice of the European Union acting in its judicial role. its judicial role.

Article 44 Article 188 (ex-Article 44 CFR)

Right to petition Right to petition

111 PART II

Article 45 Article 189 (ex-Article 45 CFR)

Freedom of movement and of residence Freedom of movement and of residence

1. Every citizen of the Union has the right to 1. Every citizen of the Union has the right move and reside freely within the territory to move and reside freely within the of the Member States. territory of the States.

2. Freedom of movement and residence may 2. Freedom of movement and residence may be granted, in accordance with the Treaties, be granted, in accordance with the Funda- to nationals of third countries legally mental Law, to nationals of third countries resident in the territory of a Member State. legally resident in the territory of a State.

Article 46 Article 190 (ex-Article 46 CFR)

Diplomatic and consular protection Diplomatic and consular protection

Every citizen of the Union shall, in the Every citizen of the Union shall, in the territory of a third country in which the territory of a third country in which the Member State of which he or she is a State of which he or she is a national is not national is not represented, be entitled to represented, be entitled to protection by the protection by the diplomatic or consular diplomatic or consular authorities of any authorities of any Member State, on the State, on the same conditions as the same conditions as the nationals of that nationals of that State. Member State.

TITLE VI JUSTICE JUSTICE

Article 47 Article 191 (ex-Article 47 CFR)

Right to an effective remedy and to a fair Right to an effective remedy and to a fair trial trial

Everyone whose rights and freedoms guar- Everyone whose rights and freedoms guaranteed by the law of the Union are violated anteed by the law of the Union are violated has the right to an effective remedy before a has the right to an effective remedy before a tribunal in compliance with the conditions tribunal in compliance with the conditions laid down in this Article. laid down in this Article.

Everyone is entitled to a fair and public Everyone is entitled to a fair and public hearing within a reasonable time by an hearing within a reasonable time by an independent and impartial tribunal previ- independent and impartial tribunal previously established by law. Everyone shall ously established by law. Everyone shall have the possibility of being advised, have the possibility of being advised, defended and represented. defended and represented.

112 PART II

Legal aid shall be made available to those Legal aid shall be made available to those who lack sufﬁ cient resources in so far as who lack sufﬁ cient resources in so far as such aid is necessary to ensure effective such aid is necessary to ensure effective access to justice. access to justice.

Article 48 Article 192 (ex-Article 48 CFR)

Presumption of innocence and right of Presumption of innocence and right of defence defence

1. Everyone who has been charged shall be 1. Everyone who has been charged shall be presumed innocent until proved guilty presumed innocent until proved guilty according to law. according to law.

2. Respect for the rights of the defence of 2. Respect for the rights of the defence of anyone who has been charged shall be guar- anyone who has been charged shall be guaranteed. anteed.

Article 49 Article 193 (ex-Article 49 CFR)

Principles of legality and proportionality of Principles of legality and proportionality of criminal offences and penalties criminal offences and penalties

1. No one shall be held guilty of any 1. No one shall be held guilty of any criminal offence on account of any act or criminal offence on account of any act or omission which did not constitute a omission which did not constitute a criminal offence under national law or criminal offence under national law or international law at the time when it was international law at the time when it was committed. Nor shall a heavier penalty be committed. Nor shall a heavier penalty be imposed than the one that was applicable at imposed than the one that was applicable at the time the criminal offence was the time the criminal offence was committed. If, subsequent to the commis- committed. If, subsequent to the commission of a criminal offence, the law provides sion of a criminal offence, the law provides for a lighter penalty, that penalty shall be for a lighter penalty, that penalty shall be applicable. applicable.

2. This Article shall not prejudice the trial 2. This Article shall not prejudice the trial and punishment of any person for any act and punishment of any person for any act or omission which, at the time when it was or omission which, at the time when it was committed, was criminal according to the committed, was criminal according to the general principles recognised by the general principles recognised by the community of nations. community of nations.

3. The severity of penalties must not be 3. The severity of penalties must not be disproportionate to the criminal offence. disproportionate to the criminal offence.

113 PART II

Article 50 Article 194 (ex-Article 50 CFR)

Right not to be tried or punished twice in Right not to be tried or punished twice in criminal proceedings for the same criminal criminal proceedings for the same criminal offence offence

No one shall be liable to be tried or No one shall be liable to be tried or punished again in criminal proceedings for punished again in criminal proceedings for an offence for which he or she has already an offence for which he or she has already been ﬁ nally acquitted or convicted within been ﬁ nally acquitted or convicted within the Union in accordance with the law. the Union in accordance with the law.

TITLE VII GENERAL PROVISIONS GENERAL PROVISIONS GOVERNING THE INTERPRETATION AND APPLICATION OF THE CHARTER

Article 51 Article 195 (ex-Article 51 CFR)

Field of application Field of application

1. The provisions of this Charter are 1. The provisions of this Charter are addressed to the institutions, bodies, ofﬁ ces addressed to the institutions, bodies, ofﬁ ces and agencies of the Union with due regard and agencies of the Union with due regard for the principle of subsidiarity and to the for the principle of subsidiarity and to the Member States only when they are imple- States when they act within the scope of Union menting Union law. They shall therefore law. They shall therefore respect the rights, respect the rights, observe the principles observe the principles and promote the and promote the application thereof in application thereof in accordance with their accordance with their respective powers and respective powers and respecting the limits respecting the limits of the powers of the of the powers of the Union as conferred on Union as conferred on it in the Treaties. it in the Fundamental Law.

2. The Charter does not extend the fi eld of 2. The Charter does not extend the fi eld of application of Union law beyond the powers application of Union law beyond the powers of the Union or establish any new power or of the Union or establish any new power or task for the Union, or modify powers and task for the Union, or modify powers and tasks as defi ned in the Treaties. tasks as defi ned in the Fundamental Law.

114 PART II

Article 52 Article 196 (ex-Article 52 CFR)

Scope and interpretation of rights and Scope and interpretation of rights and principles principles

1. Any limitation on the exercise of the 1. Any limitation on the exercise of the rights and freedoms recognised by this rights and freedoms recognised by this Charter must be provided for by law and Charter must be provided for by law and respect the essence of those rights and respect the essence of those rights and freedoms. Subject to the principle of propor- freedoms. Subject to the principle of tionality, limitations may be made only if proportionality, limitations may be made they are necessary and genuinely meet only if they are necessary and genuinely objectives of general interest recognised by meet objectives of general interest recog- the Union or the need to protect the rights nised by the Union or the need to protect and freedoms of others. the rights and freedoms of others.

2. Rights recognised by this Charter for 2. Rights recognised by this Charter shall which provision is made in the Treaties shall be exercised under the conditions and be exercised under the conditions and within the limits deﬁ ned by the Funda- within the limits deﬁ ned by those Treaties. mental Law.

3. In so far as this Charter contains rights 3. In so far as this Charter contains rights which correspond to rights guaranteed by which correspond to rights guaranteed by the Convention for the Protection of the Convention for the Protection of Human Rights and Fundamental Human Rights and Fundamental Freedoms, the meaning and scope of those Freedoms, the meaning and scope of those rights shall be the same as those laid down rights shall be the same as those laid down by the said Convention. This provision shall by the said Convention. This provision shall not prevent Union law providing more not prevent Union law providing more extensive protection. extensive protection.

4. In so far as this Charter recognises 4. In so far as this Charter recognises fundamental rights as they result from the fundamental rights as they result from the constitutional traditions common to the constitutional traditions common to the Member States, those rights shall be inter- States, those rights shall be interpreted in preted in harmony with those traditions. harmony with those traditions.

5. The provisions of this Charter which 5. The provisions of this Charter which contain principles may be implemented by contain principles may be implemented by legislative and executive acts taken by insti- legislative and executive acts taken by institutions, bodies, ofﬁ ces and agencies of the tutions, bodies, ofﬁ ces and agencies of the Union, and by acts of Member States when Union, and by acts of the States when they they are implementing Union law, in the are implementing Union law, in the exercise of their respective powers. They exercise of their respective powers. They shall be judicially cognisable only in the shall be judicially cognisable only in the interpretation of such acts and in the ruling interpretation of such acts and in the ruling on their legality. on their legality.

115 PART II

6. Full account shall be taken of national 6. Full account shall be taken of national laws and practices as speciﬁ ed in this laws and practices as speciﬁ ed in this Charter. Charter.

7. The explanations drawn up as a way of providing guidance in the interpretation of this Charter shall be given due regard by the courts of the Union and of the Member States.

Article 53 Article 197 (ex-Article 53 CFR)

Level of protection Level of protection

Nothing in this Charter shall be interpreted Nothing in this Charter shall be interpreted as restricting or adversely affecting human as restricting or adversely affecting human rights and fundamental freedoms as recog- rights and fundamental freedoms as recognised, in their respective ﬁ elds of applica- nised, in their respective ﬁ elds of application, by Union law and international law tion, by Union law and international law and by international agreements to which and by international agreements to which the Union or all the Member States are the Union or all the States are party, party, including the European Convention including the European Convention for the for the Protection of Human Rights and Protection of Human Rights and Funda- Fundamental Freedoms, and by the mental Freedoms, and by the States’ consti- Member States’ constitutions. tutions.

Article 54 Article 198 (ex-Article 54 CFR)

Prohibition of abuse of rights Prohibition of abuse of rights

Nothing in this Charter shall be interpreted Nothing in this Charter shall be interpreted as implying any right to engage in any as implying any right to engage in any activity or to perform any act aimed at the activity or to perform any act aimed at the destruction of any of the rights and destruction of any of the rights and freedoms recognised in this Charter or at freedoms recognised in this Charter or at their limitation to a greater extent than is their limitation to a greater extent than is provided for herein. provided for herein.

116 PART III THE FINANCES OF THE UNION

The Fundamental Law makes some major changes to the Union’s ﬁ nancial system, notably with the aim to give the Union the resources it needs to match the scale of its political ambition.

Under the revised system, the EU will be able to budget for a defi cit under the same excessive debt and defi cit procedures which already apply to its states. It is proposed to lighten the decision-making procedure for the agreement on the Union’s revenue system of own resources (Article 200). A comparable modifi cation is made for the decision on the multiannual fi nancial framework (MFF) (Article 203) whose minimum duration is lowered to three years. In case there is no agreement on a new MFF, the previous framework will be carried forward, but adjusted for infl ation.

EU agencies are expressly to be included in the general budget of the Union.

Article 202 gives the Union the powers to levy direct and indirect taxation as the instrument to raise its own revenue.

As far as the annual budget making procedure is concerned, we propose to return to the pre-Lisbon formula whereby both the Parliament and the Council have to take political responsibility for the passage or rejection of the budget in the event that no conciliation between them proves possible (Article 206(8)). This will serve to make an eventual budget agreement more likely than not.

The special provisions for the ﬁ scal capacity of the eurozone feature in Article 201 (own resources), Article 204 (multiannual framework) and Article 206(11) (annual budget).

117 PART III

FINANCIAL PROVISIONS THE FINANCES OF THE UNION

Article 310 Article 199 (ex-Article 310 TFEU)

1. All items of revenue and expenditure of 1. All items of revenue and expenditure of the Union shall be included in estimates to the Union and of Union agencies shall be be drawn up for each ﬁ nancial year and included in estimates to be drawn up for shall be shown in the budget. each ﬁ nancial year and shall be shown in the budget. The Union’s annual budget shall be established by the European Parliament and the The Union’s annual budget shall be estab- Council in accordance with Article 314. lished by the European Parliament and the Council in accordance with Article 206. The revenue and expenditure shown in the budget shall be in balance.

2. The expenditure shown in the budget 2. The revenue and expenditure shown in shall be authorised for the annual the budget shall be authorised for the budgetary period in accordance with the annual budgetary period in accordance with regulation referred to in Article 322. the regulation referred to in Article 214.

3. The implementation of expenditure 3. The implementation of expenditure shown in the budget shall require the prior shown in the budget shall require the prior adoption of a legally binding Union act adoption of a legally binding Union act providing a legal basis for its action and for providing a legal basis for its action and for the implementation of the corresponding the implementation of the corresponding expenditure in accordance with the regula- expenditure in accordance with the regulation referred to in Article 322, except in tion referred to in Article 214, except in cases for which that law provides. cases for which that law provides.

4. With a view to maintaining budgetary 4. With a view to maintaining budgetary discipline, the Union shall not adopt any act discipline, the Union shall not adopt any act which is likely to have appreciable implica- which is likely to have appreciable implications for the budget without providing an tions for the budget without providing an assurance that the expenditure arising from assurance that the expenditure arising from such an act is capable of being fi nanced such an act is capable of being fi nanced within the limit of the Union’s own within the limit of the Union’s own resources and in compliance with the multi- resources and in compliance with a multian- annual fi nancial framework referred to in nual fi nancial framework if such a framework Article 312. has been agreed pursuant to Article 203.

5. The budget shall be implemented in 5. The budget shall be implemented in accordance with the principle of sound accordance with the principle of sound ﬁ nancial management. Member States shall ﬁ nancial management. States shall cooperate with the Union to ensure that the cooperate with the Union to ensure that the appropriations entered in the budget are appropriations entered in the budget are used in accordance with this principle. used in accordance with this principle.

118 PART III

6. The Union and the Member States, in 6. The Union and the States, in accordance accordance with Article 325, shall counter with Article 217, shall counter fraud and fraud and any other illegal activities any other illegal activities affecting the affecting the ﬁ nancial interests of the ﬁ nancial interests of the Union. Union.

THE UNION’S OWN RESOURCES THE UNION’S OWN RESOURCES

Article 311 Article 200 (ex-Article 311 TFEU)

The Union shall provide itself with the 1. The Union shall provide itself with the means necessary to attain its objectives and means necessary to attain its objectives and carry through its policies. carry through its policies.

Without prejudice to other revenue, the Without prejudice to other revenue, the budget shall be ﬁ nanced wholly from own budget shall be ﬁ nanced wholly from own resources. resources.

The Union shall avoid excessive debt or defi cits. The ratios of the Union’s debt and defi cit to gross domestic product shall not exceed the respective reference values as specifi ed in Protocol No 10.

The Council, acting in accordance with a 2. The European Parliament and the special legislative procedure, shall unani- Council, acting in accordance with the mously and after consulting the European special legislative procedure, shall adopt a Parliament adopt a decision laying down the decision laying down the provisions relating provisions relating to the system of own to the system of own resources of the resources of the Union. In this context it Union. In this context they may establish may establish new categories of own new categories of own resources or abolish resources or abolish an existing category. an existing category. That decision shall not That decision shall not enter into force until enter into force until it is approved by four it is approved by the Member States in fi fths of the States in accordance with their accordance with their respective constitu- respective constitutional requirements. tional requirements.

The Council, acting by means of regula- 3. The European Parliament and the tions in accordance with a special legislative Council, acting by means of regulations in procedure, shall lay down implementing accordance with the ordinary legislative measures for the Union’s own resources procedure, shall lay down implementing system in so far as this is provided for in the measures for the Union’s own resources decision adopted on the basis of the third system in so far as this is provided for in paragraph. The Council shall act after the decision adopted on the basis of obtaining the consent of the European paragraph 2. Parliament.

119 PART III

Article 201

Without prejudice to Article 200, and pursuant to Article 239, the European Parlia- ment and the Council shall adopt a decision laying down the provisions relating to a system of own resources specifi c to those States whose currency is the euro.

This revenue shall be assigned to the Union budget as the fi scal capacity referred to in Article 236(3) specifi c to those States.

Article 202

The European Parliament and Council, acting in accordance with the ordinary legislative procedure, may adopt measures concerning the taxation of turnover, excise duties and other forms of indirect taxation, as well as the taxation of companies, natural persons and other forms of direct taxation for the benefi t of the Union.

Revenue from such indirect and direct taxation shall comprise own resources pursuant to Article 200 and shall accrue to the Union budget.

The collection of Union taxes shall be transparent.

THE MULTIANNUAL THE MULTIANNUAL FINANCIAL FRAMEWORK FINANCIAL FRAMEWORK

Article 312 Article 203 (ex-Article 312 TFEU)

1. The multiannual ﬁ nancial framework 1. The Union shall establish a multiannual shall ensure that Union expenditure ﬁ nancial framework in order to ensure that develops in an orderly manner and within Union expenditure develops in an orderly the limits of its own resources. manner and within the limits of its own resources, federal debt and defi cits.

It shall be established for a period of at least In the case that a multi-annual fi nancial ﬁ ve years. framework is agreed, it shall be established for a period of at least three years.

The annual budget of the Union shall The annual budget of the Union shall comply with the multiannual ﬁ nancial comply with such a multiannual ﬁ nancial framework. framework.

120 PART III

2. The Council, acting in accordance with 2. The European Parliament and the a special legislative procedure, shall adopt a Council, acting in accordance with the regulation laying down the multiannual special legislative procedure, shall adopt a ﬁ nancial framework. The Council shall act regulation laying down the multiannual unanimously after obtaining the consent of the ﬁ nancial framework. European Parliament, which shall be given by a majority of its component members.

The European Council may, unanimously, adopt a decision authorising the Council to act by a qualifi ed majority when adopting the regulation referred to in the fi rst subparagraph.

3. The ﬁ nancial framework shall 3. The ﬁ nancial framework shall determine the amounts of the annual determine the amounts of the annual ceilings on commitment appropriations by ceilings on commitment appropriations by category of expenditure and of the annual category of expenditure and of the annual ceiling on payment appropriations. The ceiling on payment appropriations. The categories of expenditure, limited in categories of expenditure, limited in number, shall correspond to the Union’s number, shall correspond to the Union’s major sectors of activity. major sectors of activity.

The ﬁ nancial framework shall lay down any The ﬁ nancial framework shall lay down any other provisions required for the annual other provisions required for the annual budgetary procedure to run smoothly. budgetary procedure to run smoothly.

4. Where no Council regulation deter- 4. Where no regulation determining a new mining a new fi nancial framework has been fi nancial framework has been adopted by adopted by the end of the previous fi nancial the end of the previous fi nancial framework, the ceilings and other provi- framework, the ceilings as adjusted for sions corresponding to the last year of that infl ation, and other provisions corre- framework shall be extended until such sponding to the last year of that framework time as that act is adopted. shall be extended until such time as that act is adopted.

5. Throughout the procedure leading to the 5. Throughout the procedure leading to the adoption of the ﬁ nancial framework, the adoption of the ﬁ nancial framework, the European Parliament, the Council and the European Parliament, the Council and the Commission shall take any measure Commission shall take any measure necessary to facilitate its adoption. necessary to facilitate its adoption.

Article 204

Without prejudice to Article 203, and pursuant to Article 239, the European Parlia- ment and the Council may adopt a regulation laying down the multiannual fi nancial framework for the fi scal capacity of the States whose currency is the euro.

121 PART III

THE ANNUAL BUDGET THE ANNUAL BUDGET

Article 313 Article 205 ….. (ex-Article 313 TFEU) …..

Article 314 Article 206 (ex-Article 314 TFEU)

The European Parliament and the Council, The European Parliament and the Council acting in accordance with a special legisla- shall establish the Union’s annual budget in tive procedure, shall establish the Union’s accordance with the following provisions: annual budget in accordance with the following provisions.

1. With the exception of the European 1. With the exception of the European Central Bank, each institution shall, before Central Bank, each institution shall, before 1 July, draw up estimates of its expenditure 1 July, draw up estimates of its expenditure for the following ﬁ nancial year. The for the following ﬁ nancial year. The Commission shall consolidate these Commission shall consolidate these estimates in a draft budget, which may estimates in a draft budget, which may contain different estimates. contain different estimates.

The draft budget shall contain an estimate The draft budget shall contain an estimate of revenue and an estimate of expenditure. of revenue and an estimate of expenditure.

2. The Commission shall submit a 2. The Commission shall submit a proposal containing the draft budget to the proposal containing the draft budget to the European Parliament and to the Council not European Parliament and to the Council later than 1 September of the year not later than 1 September of the year preceding that in which the budget is to be preceding that in which the budget is to be implemented. implemented.

The Commission may amend the draft The Commission may amend the draft budget during the procedure until such budget during the procedure until such time as the Conciliation Committee, time as the Conciliation Committee, referred to in paragraph 5, is convened. referred to in paragraph 5, is convened.

3. The Council shall adopt its position on 3. The Council shall adopt its position on the draft budget and forward it to the the draft budget and forward it to the European Parliament not later than 1 European Parliament not later than 1 October of the year preceding that in which October of the year preceding that in which the budget is to be implemented. The the budget is to be implemented. The Council shall inform the European Parlia- Council shall inform the European Parlia- ment in full of the reasons which led it to ment in full of the reasons which led it to adopt its position. adopt its position.

122 PART III

4. If, within forty-two days of such 4. If, within forty-two days of such communication, the European Parliament: communication, the European Parliament:

(a) approves the position of the Council, the (a) approves the position of the Council, the budget shall be adopted; budget shall be adopted;

(b) has not taken a decision, the budget (b) has not taken a decision, the budget shall be deemed to have been adopted; shall be deemed to have been adopted;

(c) adopts amendments by a majority of its (c) adopts amendments by a majority of its component members, the amended draft component members, the amended draft shall be forwarded to the Council and to the shall be forwarded to the Council and to the Commission. The President of the Commission. The President of the European Parliament, in agreement with European Parliament, in agreement with the President of the Council, shall immedi- the President of the Council, shall immediately convene a meeting of the Conciliation ately convene a meeting of the Conciliation Committee. However, if within ten days of Committee. However, if within ten days of the draft being forwarded the Council the draft being forwarded the Council informs the European Parliament that it has informs the European Parliament that it approved all its amendments, the Concilia- has approved all its amendments, the tion Committee shall not meet. Conciliation Committee shall not meet.

5. The Conciliation Committee, which shall 5. The Conciliation Committee, which be composed of the members of the Council shall be composed of the members of the or their representatives and an equal number Council and an equal number of Members of members representing the European of the European Parliament, shall have the Parliament, shall have the task of reaching task of reaching agreement on a joint text, agreement on a joint text, by a qualiﬁ ed by a qualiﬁ ed majority of the members of majority of the members of the Council or the Council and by a majority of the their representatives and by a majority of the Members of the European Parliament representatives of the European Parliament within twenty-one days of its being within twenty-one days of its being convened, on the basis of the positions of convened, on the basis of the positions of the the European Parliament and the Council. European Parliament and the Council.

The Commission shall take part in the The Commission shall take part in the Conciliation Committee’s proceedings and Conciliation Committee’s proceedings and shall take all the necessary initiatives with a shall take all the necessary initiatives with a view to reconciling the positions of the view to reconciling the positions of the European Parliament and the Council. European Parliament and the Council.

6. If, within the twenty-one days referred to 6. If, within the twenty-one days referred to in paragraph 5, the Conciliation Committee in paragraph 5, the Conciliation Committee agrees on a joint text, the European Parlia- agrees on a joint text, the European Parlia- ment and the Council shall each have a ment, acting by a majority of its component period of fourteen days from the date of that Members, and the Council, acting by qualifi ed agreement in which to approve the joint majority, shall each have a period of fourteen text. days from the date of that agreement in which to approve the joint text.

123 PART III

7. If, within the period of fourteen days 7. If, within the period of fourteen days referred to in paragraph 6: referred to in paragraph 6:

(a) the European Parliament and the (a) the European Parliament and the Council both approve the joint text or fail to Council both approve the joint text or fail to take a decision, or if one of these institu- take a decision, or if one of these institutions approves the joint text while the other tions approves the joint text while the other one fails to take a decision, the budget shall one fails to take a decision, the budget shall be deemed to be deﬁ nitively adopted in be deemed to be deﬁ nitively adopted in accordance with the joint text; or accordance with the joint text; or

(b) the European Parliament, acting by a (b) the European Parliament, acting by a majority of its component members, and majority of its component members, and the Council both reject the joint text, or if the Council both reject the joint text, or if one of these institutions rejects the joint one of these institutions rejects the joint text while the other one fails to take a text while the other one fails to take a decision, a new draft budget shall be decision, a new draft budget shall be submitted by the Commission; or submitted by the Commission; or

(c) the European Parliament, acting by a (c) the European Parliament, acting by a majority of its component members, rejects majority of its component members, rejects the joint text while the Council approves it, the joint text while the Council approves it, a new draft budget shall be submitted by a new draft budget shall be submitted by the Commission; or the Commission; or

(d) the European Parliament approves the (d) the European Parliament approves the joint text whilst the Council rejects it, the joint text whilst the Council rejects it, the European Parliament may, within fourteen European Parliament may, within fourteen days from the date of the rejection by the days from the date of the rejection by the Council and acting by a majority of its Council and acting by a majority of its component members and three-fi fths of the component members and three-fi fths of the votes cast, decide to confi rm all or some of votes cast, decide to confi rm all or some of the amendments referred to in paragraph the amendments referred to in paragraph 4(c). Where a European Parliament 4(c). Where a European Parliament amendment is not confi rmed, the position amendment is not confi rmed, the position agreed in the Conciliation Committee on agreed in the Conciliation Committee on the budget heading which is the subject of the budget heading which is the subject of the amendment shall be retained. The the amendment shall be retained. The budget shall be deemed to be defi nitively budget shall be deemed to be defi nitively adopted on this basis. adopted on this basis.

124 PART III

8. If, within the twenty-one days referred 8. If, within the twenty-one days referred to in paragraph 5, the Conciliation to in paragraph 5, the Conciliation Committee does not agree on a joint text, a Committee does not agree on a joint text, new draft budget shall be submitted by the the European Parliament may, within fourteen Commission. days, confi rm its amendments by an absolute majority of its Members and by three fi fths of the votes cast. In this case the budget shall be deemed adopted as such, unless the Council, within fourteen days, expresses its opposition. In that case, a new draft budget shall be submitted by the Commission.

9. When the procedure provided for in this 9. When the procedure provided for in this Article has been completed, the President of Article has been completed, the President of the European Parliament shall declare that the European Parliament shall declare that the budget has been deﬁ nitively adopted. the budget has been deﬁ nitively adopted.

10. Each institution shall exercise the 10. Each institution shall exercise the powers conferred upon it under this Article powers conferred upon it under this Article in compliance with the Treaties and the acts in compliance with the Fundamental Law adopted thereunder, with particular regard and the acts adopted thereunder, with to the Union’s own resources and the particular regard to the Union’s own balance between revenue and expenditure. resources.

11. Without prejudice to this Article, and pursuant to Article 239, the European Parlia- ment and the Council shall adopt a regulation laying down the annual budget for the expenditure of the fi scal capacity of the States whose currency is the euro.

Article 315 Article 207 (ex-Article 315 TFEU)

If, at the beginning of a fi nancial year, the If, at the beginning of a fi nancial year, the budget has not yet been defi nitively budget has not yet been defi nitively adopted, a sum equivalent to not more than adopted, a sum equivalent to not more than one twelfth of the budget appropriations for one twelfth of the budget appropriations for the preceding fi nancial year may be spent the preceding fi nancial year, adjusted for each month in respect of any chapter of the infl ation,may be spent each month in budget in accordance with the provisions of respect of any chapter of the budget in the Regulations made pursuant to Article accordance with the provisions of the Regu- 322; that sum shall not, however, exceed lations made pursuant to Article 214; that one twelfth of the appropriations provided sum shall not, however, exceed one twelfth for in the same chapter of the draft budget. of the appropriations provided for in the same chapter of the draft budget as adjusted for infl ation.

125 PART III

The Council on a proposal by the Commis- The Council on a proposal by the Commis- sion, may, provided that the other condi- sion, may, provided that the other conditions laid down in the ﬁ rst paragraph are tions laid down in the ﬁ rst paragraph are observed, authorise expenditure in excess of observed, authorise expenditure in excess of one twelfth in accordance with the regula- one twelfth in accordance with the regulations made pursuant to Article 322. The tions made pursuant to Article 214. The Council shall forward the decision immedi- Council shall forward the decision immediately to the European Parliament. ately to the European Parliament.

The decision referred to in the second The decision referred to in the second paragraph shall lay down the necessary paragraph shall lay down the necessary measures relating to resources to ensure measures relating to resources to ensure application of this Article, in accordance application of this Article, in accordance with the acts referred to in Article 311. with the acts referred to in Article 200.

It shall enter into force thirty days following It shall enter into force thirty days following its adoption if the European Parliament, its adoption if the European Parliament, acting by a majority of its component acting by a majority of its component Members, has not decided to reduce this Members, has not decided to reduce this expenditure within that time limit. expenditure within that time limit.

Article 316 Article 208 ..... (ex-Article 316 TFEU) .....

IMPLEMENTATION OF THE BUDGET IMPLEMENTATION OF THE BUDGET AND DISCHARGE AND DISCHARGE

Articles 317–319 Articles 209–211 ….. (ex-Articles 317–319 TFEU) …..

COMMON PROVISIONS COMMON PROVISIONS

Articles 320–321 Articles 212–213 ….. (ex-Articles 320–321 TFEU) …..

Article 322 Article 214 (ex-Article 322 TFEU)

1. The European Parliament and the 1. The European Parliament and the Council, acting in accordance with the Council, acting in accordance with the ordinary legislative procedure, and after ordinary legislative procedure, and after consulting the Court of Auditors, shall consulting the Court of Auditors, shall adopt by means of regulations: adopt by means of regulations:

(a) the ﬁ nancial rules which determine in (a) the ﬁ nancial rules which determine in particular the procedure to be adopted for particular the procedure to be adopted for establishing and implementing the budget establishing and implementing the budget and for presenting and auditing accounts; and for presenting and auditing accounts;

126 PART III

(b) rules providing for checks on the (b) rules providing for checks on the responsibility of fi nancial actors, in partic- responsibility of fi nancial actors, in particular authorising offi cers and accounting ular authorising offi cers and accounting offi cers. offi cers.

2. The Council, acting on a proposal from 2. The European Parliament and the the Commission and after consulting the Council, acting in accordance with the special European Parliament and the Court of legislative procedure, and after consulting the Auditors, shall determine the methods and Court of Auditors, shall determine the procedure whereby the budget revenue methods and procedure whereby the budget provided under the arrangements relating revenue provided under the arrangements to the Union’s own resources shall be made relating to the Union’s own resources shall available to the Commission, and determine be made available to the Commission, and the measures to be applied, if need be, to determine the measures to be applied, if meet cash requirements. need be, to meet cash requirements.

Articles 323–324 Articles 215–216 ….. (ex-Articles 323–324 TFEU) …..

COMBATTING FRAUD COMBATTING FRAUD

Article 325 Article 217 ….. (ex-Article 325 TFEU) …..

127 PART IV ECONOMIC AND MONETARY UNION

CHAPTER ONE

In this chapter we propose a radical reform of the arrangements for Economic and Monetary Union as ﬁ rst prescribed by the Treaty of Maastricht. In summary, a common economic policy of the EU, with the aim of achieving a ‘highly competitive social market economy’, will supersede the mere coordination of national economic policies. This process will be driven by the Commission, in which a powerful new Treasury Minister will be a Vice-President. The powers of Parliament are considerably enhanced.

In accordance with the Fiscal Compact Treaty (2012) and the laws recently put in place to manage the ﬁ nancial crisis – colloquially, the ‘Six Pack’ and the ‘Two Pack’ – the states are required to observe much stronger ﬁ scal discipline according to jointly agreed rules. The powers of the Commission to scrutinise national performance and, accordingly, to make proposals to the Council and the states about their own economic policies are much enhanced.

The broad macro-economic policy guidelines (Article 220) become subject to co-decision by the Parliament and Council, within the context of an annual European semester. Parliament will also be consulted before necessary corrective recommendations are made to an errant state, and may seek to amend the Commission’s proposals before their adoption by the Council.

The ECB is empowered to buy sovereign bonds of states under the European Stability Mechanism in the primary as well as the secondary markets (Article 222). The famous ‘no bail out’ clause is revised to allow for the eurozone states to establish a system for the common management of sovereign debt, subject to strict conditionality (Article 224).

The revised excessive debt or defi cit procedure is fully laid out in Article 225, as follows: (a) Parliament is consulted on a decision to declare an excessive defi cit; (b) Commission proposals stand unless the Council opposes them by QMV without the participation of the errant state; (c) in that case, the Commission can ask Parliament to trigger the excessive defi cit procedure; (d) in the event of an excessive defi cit, the Commission publishes its recommendations to the state concerned; (e) where the state does not accept the recommendations made to it, the Council may propose

128 CHAPTER ONE

tougher measures, on a proposal of the Commission; (f) where the Council refuses to act, Parliament may do so; (g) where the state still refuses to take the remedial action prescribed, penalties may be imposed by the Council. The national parliament of the state concerned can demand a hearing, and the European Parliament may amend the Commission’s position unless both Commission and Council agree to reject the amendments.

Importantly, the prohibition on the right of the Commission or a state to bring an action in the Court of Justice, in the context of the excessive deﬁ cit procedure, is lifted (deletion of ex-Article 126(10) TEFU). Lastly, states’ direct contributions to the EU budget will not be taken into account in assessing an excessive deﬁ cit. Such direct payments will in any event be phased out (Article 225(14)).

Article 227 sets out the new role of the European Central Bank in respect of the prudential supervision of the ﬁ nancial sector, allowing for the creation of a single ﬁ nancial authority for the whole banking union. In respect of the banking union, the ECB is made accountable to the Parliament.

129 PART IV

ECONOMIC AND MONETARY POLICY ECONOMIC AND MONETARY POLICY

Article 119 Article 218 (ex-Article 119 TFEU)

1. For the purposes set out in Article 3 of 1. For the purposes set out in Article 3, the the Treaty on European Union, the activities Union shall adopt common fi scal, economic of the Member States and the Union shall and monetary policies which are based on the include, as provided in the Treaties, the close coordination of States’ economic adoption of an economic policy which is based policies, on the establishment of the euro, on on the close coordination of Member States’ the internal market and on the deﬁ nition of economic policies, on the internal market common objectives, and conducted in and on the deﬁ nition of common objectives, accordance with the principle of an open, and conducted in accordance with the highly competitive social market economy. principle of an open market economy with free competition.

2. Concurrently with the foregoing, and as 2. The common economic policy of the Union provided in the Treaties and in accordance shall promote job creation, investment, with the procedures set out therein, these activi- economic stability, social cohesion and sustain- ties shall include a single currency, the euro, able development. The Commission shall be and the defi nition and conduct of a single responsible for driving forward the common monetary policy and exchange-rate policy the economic policy and, in particular, through a primary objective of both of which shall be to treasury facility, for the borrowing and lending maintain price stability and, without of funds, the operation and maintenance of the prejudice to this objective, to support the fi nancial system, the collection of revenues, the general economic policies in the Union, in management of accounts, the enforcement of accordance with the principle of an open tax laws and the imposition of penalties. market economy with free competition.

3. The common monetary policy of the Union shall be to maintain price stability and, without prejudice to the objective of price stability, to support the common economic policy. The European Central Bank shall be responsible for the common monetary policy.

3. These activities of the Member States 4. These activities of the States and the and the Union shall entail compliance with Union shall entail compliance with the the following guiding principles: stable following guiding principles: stable prices, prices, sound public ﬁ nances and monetary sound public ﬁ nances and monetary condi- conditions and a sustainable balance of tions and a sustainable European balance of payments. payments.

130 CHAPTER ONE

Article 120 Article 219 (ex-Article 120 TFEU)

Member States shall conduct their 1. States shall conduct their economic economic policies with a view to contrib- policies with a view to contributing to the uting to the achievement of the objectives of achievement of the objectives of the Union, the Union, as defi ned in Article 3 of the as defi ned in Article 3 and in the context of Treaty on European Union, and in the the broad guidelines referred to in Article context of the broad guidelines referred to 220(2). The States and the Union shall act in Article 121(2). The Member States and in accordance with the principle of an open, the Union shall act in accordance with the highly competitive social market economy, principle of an open market economy with favouring an effi cient allocation of free competition, favouring an effi cient allo- resources, and in compliance with the prin- cation of resources, and in compliance with ciples set out in Article 218. the principles set out in Article 119. 2. The Union shall take all necessary actions and measures in all the areas which are essential to the proper functioning of the economic and monetary union in pursuit of the objectives of fostering enhanced convergence and competitiveness, of promoting employment and social cohesion, of environmental sustainability, of contributing further to the sustainability of public fi nances and of reinforcing fi nancial stability.

3. The States shall ensure that all major economic policy reforms that they plan to undertake will be discussed ex-ante and, where appropriate, coordinated among themselves and with the Commission.

Article 121 Article 220 (ex-Article 121 TFEU)

1. Member States shall regard their 1. States shall regard their economic economic policies as a matter of common policies as a matter of common concern and concern and shall coordinate them within shall coordinate them within the Council, the Council, in accordance with the provi- in accordance with the provisions of Article sions of Article 120. 219. In particular, the coordination of the budgetary policies of the States and of the Union will take place within the context of a European semester.

2. The Council shall, on a recommendation 2. The Commission shall, after consulting the from the Commission, formulate a draft for European Parliament and the Council, the broad guidelines of the economic formulate a draft for the broad guidelines of policies of the Member States and of the the economic policies of the Union and the Union, and shall report its fi ndings to the States, and shall make a proposal to the European Council. European Council.

131 PART IV

The European Council shall, acting on the The European Council shall, acting on the basis of the report from the Council, discuss a basis of the Commission’s proposal, discuss a conclusion on the broad guidelines of the conclusion on the broad guidelines of the economic policies of the Member States and economic policies of the Union and the of the Union. States.

On the basis of this conclusion, the Council Having considered this conclusion, the shall adopt a recommendation setting out European Parliament and Council, acting in these broad guidelines. The Council shall accordance with the ordinary legislative inform the European Parliament of its recom- procedure, shall adopt a recommendation mendation. setting out these broad guidelines.

3. In order to ensure closer coordination of 3. In order to ensure closer coordination of economic policies and sustained conver- economic policies and sustained convergence of the economic performances of the gence of the economic performances of the Member States, the Council shall, on the States, the Commission shall monitor basis of reports submitted by the Commission, economic developments in each of the monitor economic developments in each of States and in the Union, including macro- the Member States and in the Union as well economic imbalances, as well as the consist- as the consistency of economic policies with ency of economic policies with the broad the broad guidelines referred to in guidelines referred to in paragraph 2, and paragraph 2, and regularly carry out an regularly carry out an overall assessment. overall assessment.

For the purpose of this multilateral surveil- For the purpose of this multilateral surveillance, Member States shall forward infor- lance, States shall forward information to mation to the Commission about important the Commission about important measures measures taken by them in the ﬁ eld of their taken by them in the ﬁ eld of their economic economic policy and such other informa- policy and such other information as they tion as they deem necessary. deem necessary or as the Commission so requires.

4. Where it is established, under the 4. Where it is established, under the procedure referred to in paragraph 3, that procedure referred to in paragraph 3, that the economic policies of a Member State the economic policies of a State are not are not consistent with the broad guidelines consistent with the broad guidelines referred to in paragraph 2 or that they risk referred to in paragraph 2 or that they risk jeopardising the proper functioning of jeopardising the proper functioning of economic and monetary union, the economic and monetary union, the Commission may address a warning to the Commission shall address a warning to the Member State concerned. The Council, on State concerned. a recommendation from the Commission, may address the necessary recommenda- The Council may, on a proposal from the tions to the Member State concerned. The Commission, and after consulting the Council may, on a proposal from the European Parliament, address the necessary Commission, decide to make its recom- recommendations to the State concerned. mendations public. The recommendations shall be made public.

132 CHAPTER ONE

Within the scope of this paragraph, the In the case that a State fails to follow the Council shall act without taking into recommendations, the Council may decide, on account the vote of the member of the a proposal of the Commission, to take more Council representing the Member State intensive action. concerned.

A qualiﬁ ed majority of the other members of the Council shall be deﬁ ned in accordance with Article 238(3)(a).

5. The President of the Council and the 5. At any stage of the procedure, the European Commission shall report to the European Parliament may request the right to be heard Parliament on the results of multilateral and may propose amendments to the Commis- surveillance. The President of the Council sion’s proposal for recommendations. The may be invited to appear before the Council may reject those amendments if the competent committee of the European Commission delivers a negative opinion. Parliament if the Council has made its recom- Otherwise the Commission’s proposal shall be mendations public. deemed to have been adopted by the Council in its amended version.

6. Within the scope of paragraphs 4 and 5, the Council shall act without taking into account the vote of the member of the Council representing the State concerned.

A qualiﬁ ed majority of the other members of the Council shall be deﬁ ned in accordance with Article 109.

7. The Commission shall report regularly to the European Parliament and Council on the results of multilateral surveillance, and in particular on risks to fi nancial stability. The President of the Council may be invited to appear before the competent committee of the European Parliament.

6. The European Parliament and the 8. The European Parliament and the Council, acting by means of regulations in Council, acting by means of regulations in accordance with the ordinary legislative accordance with the ordinary legislative procedure, may adopt detailed rules for the procedure, shall adopt detailed rules for the multilateral surveillance procedure referred conduct of the multilateral surveillance to in paragraphs 3 and 4. procedure during the European semester.

133 PART IV

Article 122 Article 221 (ex-Article 122 TFEU)

1. Without prejudice to any other proce- 1. Without prejudice to any other procedures provided for in the Treaties, the dures provided for in the Fundamental Law, Council, on a proposal from the Commission, the Commission, after having consulted the may decide, in a spirit of solidarity between Council, may decide, in a spirit of Union soli- Member States, upon the measures appro- darity, upon the measures appropriate to the priate to the economic situation, in partic- economic situation, in particular if severe ular if severe difﬁ culties arise in the supply difﬁ culties arise in the supply of certain of certain products, notably in the area of products, notably in the area of energy. energy.

2. Where a Member State is in diffi culties 2. Where a State is in diffi culties or is or is seriously threatened with severe diffi - seriously threatened with severe diffi culties culties caused by natural disasters or excep- caused by natural disasters or exceptional tional occurrences beyond its control, the occurrences beyond its control, the Commis- Council, on a proposal from the Commission, sion, after obtaining the consent of the Council, may grant, under certain conditions, Union may grant, under certain conditions, Union fi nancial assistance to the Member State fi nancial assistance to the State concerned. concerned. The President of the Council shall The Commission shall keep the European inform the European Parliament of the Parliament fully informed at all stages of the decision taken. process.

Article 123 Article 222 (ex-Article 123 TFEU)

1. Overdraft facilities or any other type of 1. Overdraft facilities or any other type of credit facility with the European Central credit facility with the European Central Bank or with the central banks of the Bank or with the central banks of the States Member States (hereinafter referred to as (hereinafter referred to as ‘national central ‘national central banks’) in favour of Union banks’) in favour of Union institutions, institutions, bodies, ofﬁ ces or agencies, bodies, ofﬁ ces or agencies, central govern- central governments, regional, local or other ments, regional, local or other public public authorities, other bodies governed by authorities, other bodies governed by public public law, or public undertakings of law, or public undertakings of States shall Member States shall be prohibited, as shall be prohibited, as shall the purchase directly the purchase directly from them by the from them by the European Central Bank European Central Bank or national central or national central banks of debt instru- banks of debt instruments. ments.

2. By way of derogation from paragraph 1, the European Central Bank may purchase government bonds in the primary and secondary markets issued by States whose currency is the euro and which are subject to a programme of the European Stability Mechanism.

134 CHAPTER ONE

2. Paragraph 1 shall not apply to publicly 3. Paragraph 1 shall not apply to publicly owned credit institutions which, in the owned credit institutions which, in the context of the supply of reserves by central context of the supply of reserves by central banks, shall be given the same treatment by banks, shall be given the same treatment by national central banks and the European national central banks and the European Central Bank as private credit institutions. Central Bank as private credit institutions.

Article 124 Article 223 (ex-Article 124 TFEU)

Any measure, not based on prudential Any measure, not based on prudential considerations, establishing privileged considerations, establishing privileged access by Union institutions, bodies, offi ces access by Union institutions, bodies, offi ces or agencies, central governments, regional, or agencies, central governments, regional, local or other public authorities, other local or other public authorities, other bodies governed by public law, or public bodies governed by public law, or public undertakings of Member States to fi nancial undertakings of States to fi nancial institu- institutions, shall be prohibited. tions, shall be prohibited.

Article 125 Article 224 (ex-Article 125 TFEU)

1. The Union shall not be liable for or assume The European Parliament and the Council, the commitments of central governments, acting accordance with the special legislative regional, local or other public authorities, other procedure, and after having consulted the bodies governed by public law, or public under- European Central Bank, may establish for the takings of any Member State, without prejudice States whose currency is the euro a system for to mutual fi nancial guarantees for the joint the common management of sovereign debt. execution of a specifi c project. A Member State Participation in such a system shall be subject shall not be liable for or assume the commit- to strict conditionality. ments of central governments, regional, local or other public authorities, other bodies governed by public law, or public undertakings of another Member State, without prejudice to mutual fi nancial guarantees for the joint execution of a specifi c project.

2. The Council, on a proposal from the Commission and after consulting the European Parliament, may, as required, specify defi nitions for the application of the prohibitions referred to in Articles 123 and 124 and in this Article.

135 PART IV

Article 126 Article 225 (ex-Article 126 TFEU)

1. Member States shall avoid excessive 1. The States shall avoid excessive govern- government deﬁ cits. ment debt or deﬁ cits.

2. The Commission shall monitor the 2. The Commission shall monitor the development of the budgetary situation and development of the budgetary situation and of the stock of government debt in the of the stock of government debt in the Member States with a view to identifying States with a view to identifying gross gross errors. In particular it shall examine errors. In particular it shall examine compliance with budgetary discipline on compliance with budgetary discipline on the basis of the following two criteria: the basis of the following two criteria:

(a) whether the ratio of the planned or (a) whether the ratio of the planned or actual government deﬁ cit to gross domestic actual government deﬁ cit to gross domestic product exceeds a reference value, unless: product exceeds a reference value, unless:

– either the ratio has declined substan- – either the ratio has declined substan- tially and continuously and reached a level tially and continuously and reached a level that comes close to the reference value, that comes close to the reference value,

– or, alternatively, the excess over the – or, alternatively, the excess over the reference value is only exceptional and reference value is only exceptional and temporary and the ratio remains close to temporary and the ratio remains close to the reference value; the reference value;

(b) whether the ratio of government debt to (b) whether the ratio of government debt to gross domestic product exceeds a reference gross domestic product exceeds a reference value, unless the ratio is sufﬁ ciently dimin- value, unless the ratio is sufﬁ ciently dimin- ishing and approaching the reference value ishing and approaching the reference value at a satisfactory pace. at a satisfactory pace.

The reference values are specifi ed in the The reference values are specifi ed in the Protocol on the excessive defi cit procedure Protocol on the excessive defi cit procedure. annexed to the Treaties.

3. If a Member State does not fulfi l the 3. If a State does not fulfi l the require- requirements under one or both of these ments under one or both of these criteria, criteria, the Commission shall prepare a the Commission shall prepare a report. The report. The report of the Commission shall report of the Commission shall also take also take into account whether the govern- into account whether the government defi cit ment defi cit exceeds government invest- exceeds government investment expendi- ment expenditure and take into account all ture and take into account all other relevant other relevant factors, including the factors, including the medium-term medium-term economic and budgetary economic and budgetary position of the position of the Member State. State.

136 CHAPTER ONE

The Commission may also prepare a report The Commission may also prepare a report if, notwithstanding the fulfi lment of the if, notwithstanding the fulfi lment of the requirements under the criteria, it is of the requirements under the criteria, it is of the opinion that there is a risk of an excessive opinion that there is a risk of an excessive defi cit in a Member State. debt or defi cit in a State.

4. The Economic and Financial Committee 4. The Economic and Financial Committee shall formulate an opinion on the report of shall formulate an opinion on the report of the Commission. the Commission.

5. If the Commission considers that an 5. If the Commission considers that an excessive deﬁ cit in a Member State exists or excessive debt or deﬁ cit in a State exists or may occur, it shall address an opinion to the may occur, it shall address an opinion to the Member State concerned and shall inform State concerned and shall inform the the Council accordingly. European Parliament and the Council accordingly.

6. The Council shall, on a proposal from 6. The Council shall, on a proposal from the Commission, and having considered the Commission, after having consulted the any observations which the Member State European Parliament, and having considered concerned may wish to make, decide after any observations which the State concerned an overall assessment whether an excessive may wish to make, decide after an overall deﬁ cit exists. assessment whether an excessive debt or deﬁ cit exists.

In the case that the Council opposes the Commission’s proposal, the European Parlia- ment, at the request of the Commission, may decide that an excessive debt or defi cit exists. The Parliament shall decide by a majority of its component Members, acting within four weeks of the Council’s decision to oppose the Commission’s proposal.

7. Where the Council decides, in accord- 7. Where either the Council or the European ance with paragraph 6, that an excessive Parliament decides, in accordance with deﬁ cit exists, it shall adopt, without undue paragraph 6, that an excessive debt or deﬁ cit delay, on a recommendation from the exists, the Council shall adopt, without Commission, recommendations addressed undue delay, on a recommendation of the to the Member State concerned with a view Commission, recommendations addressed to bringing that situation to an end within a to the State concerned with a view to given period. Subject to the provisions of bringing that situation to an end within a paragraph 8, these recommendations shall given period. These recommendations shall be not be made public. made public.

137 PART IV

8. Where it establishes that there has been no effective action in response to its recommendations within the period laid down, the Council may make its recommendations public.

9. If a Member State persists in failing to 8. If a State persists in failing to put into put into practice the recommendations of practice the recommendations of the the Council, the Council may decide to give Council, the Council may decide, on a notice to the Member State to take, within a proposal of the Commission, to give notice to specifi ed time limit, measures for the defi cit the State to take, within a specifi ed time reduction which is judged necessary by the limit, measures for the reduction of the debt Council in order to remedy the situation. or defi cit in order to remedy the situation.

In such a case, the Council may request the In the case that the Council opposes the Member State concerned to submit reports Commission’s proposal, the European Parlia- in accordance with a speciﬁ c timetable in ment, at the request of the Commission, may order to examine the adjustment efforts of adopt the decision. The Parliament shall decide that Member State. by a majority of its component Members, acting within four weeks of the Council’s decision to 10. The rights to bring actions provided for in oppose the Commission’s proposal. Articles 258 and 259 may not be exercised within the framework of paragraphs 1 to 9 of The Commission may request the State this Article. concerned to submit reports in accordance with a speciﬁ c timetable in order to examine the adjustment efforts of that State.

11. As long as a Member State fails to 9. As long as a State fails to comply with a comply with a decision taken in accordance decision taken in accordance with with paragraph 9, the Council may decide to paragraph 8, the Council, on a proposal of apply or, as the case may be, intensify one or the Commission, may decide to apply or, as more of the following measures: the case may be, intensify one or more of the following measures:

– to require the Member State concerned – to require the State concerned to publish to publish additional information, to be additional information before issuing bonds speciﬁ ed by the Council, before issuing and securities, bonds and securities,

– to invite the European Investment Bank – to invite the European Investment Bank to reconsider its lending policy towards the to reconsider its lending policy towards the Member State concerned, State concerned,

– to require the Member State concerned – to require the State concerned to make a to make a non-interest-bearing deposit of an non-interest-bearing deposit of an appro- appropriate size with the Union until the priate size with the Union until the excessive deﬁ cit has, in the view of the excessive deﬁ cit has been corrected, Council, been corrected,

138 CHAPTER ONE

– to impose ﬁ nes of an appropriate size. – to impose ﬁ nes of an appropriate size.

The President of the Council shall inform the European Parliament of the decisions taken.

12. The Council shall abrogate some or all 10. The Commission and the Council shall of its decisions or recommendations abrogate some or all of their decisions or referred to in paragraphs 6 to 9 and 11 to recommendations referred to in paragraphs the extent that the excessive deﬁ cit in the 6 to 9 to the extent that the excessive deﬁ cit Member State concerned has, in the view of in the State concerned has, in the view of the Council, been corrected. If the Council the Commission, been corrected. has previously made public recommendations, it shall, as soon as the decision under 11. At any stage of the proceedings in para- paragraph 8 has been abrogated, make a public graphs 6 to 10, the parliament of the State statement that an excessive defi cit in the concerned may require the European Parlia- Member State concerned no longer exists. ment to hold an urgent hearing of the Commis- sion and the Council. 13. When taking the decisions or recommendations referred to in paragraphs 8, 9, 11 and 12, 12. At any stage of the proceedings in para- the Council shall act on a recommendation graphs 6 to 10, the European Parliament may from the Commission. propose amendments to the Commission’s recommendations or proposals. The Council When the Council adopts the measures may reject those amendments if the Commis- referred to in paragraphs 6 to 9, 11 and 12, it sion delivers a negative opinion. Otherwise the shall act without taking into account the recommendations or proposals shall be deemed vote of the member of the Council repre- to have been adopted by the Commission in senting the Member State concerned. their amended version.

A qualiﬁ ed majority of the other members The Commission’s recommendations or of the Council shall be deﬁ ned in accord- proposals shall be deemed to be adopted unless ance with Article 238(3)(a). opposed by the Council, which shall act without the participation in the vote of the State concerned. A qualifi ed majority shall be defi ned in accordance with Article 109.

13. The Council and Commission shall keep the European Parliament fully informed of the proposed recommendations, proposals and decisions throughout the procedures laid down in paragraphs 6 to 10. The President of the Council and the Commission may be invited to appear before the responsible committee of the Parliament.

14. Further provisions relating to the imple- 14. Further provisions relating to the implementation of the procedure described in mentation of the procedure described in this Article are set out in the Protocol on the this Article are set out in the Protocol No 10 excessive deﬁ cit procedure annexed to the on the excessive deﬁ cit procedure. Treaties.

139 PART IV

The Council shall, acting unanimously in The European Parliament and the Council accordance with a special legislative procedure shall, acting in accordance with the special and after consulting the European Parlia- legislative procedure and after consulting the ment and the European Central Bank, adopt European Central Bank, adopt the appro- the appropriate provisions which shall then priate provisions which shall then replace replace the said Protocol. the said Protocol.

Subject to the other provisions of this Subject to the other provisions of this paragraph, the Council shall, on a proposal paragraph, the European Parliament and the from the Commission and after consulting the Council shall, in accordance with the ordinary European Parliament, lay down detailed legislative procedure, lay down detailed rules rules and deﬁ nitions for the application of and deﬁ nitions for the application of the the provisions of the said Protocol. provisions of the said Protocol.

15. Without prejudice to Article 200, in the case that the States make direct contributions to the fi nancing of the Union budget, those contributions shall not be taken into account for the purposes of the excessive debt or defi cit procedure as laid down in this article. In any case, such direct contributions shall cease to be made fi ve years after the entry into force of the Fundamental Law.

Article 127 Article 226 (ex-Article 127 TFEU)

1. The primary objective of the European 1. The primary objective of the European System of Central Banks (hereinafter System of Central Banks (hereinafter referred to as ‘the ESCB’) shall be to referred to as ‘the ESCB’) shall be to maintain price stability. Without prejudice maintain price stability. Without prejudice to the objective of price stability, the ESCB to the objective of price stability, the ESCB shall support the general economic policies shall support the general economic policies in the Union with a view to contributing to in the Union with a view to contributing to the achievement of the objectives of the the achievement of the objectives of the Union as laid down in Article 3 of the Union as laid down in Article 3. The ESCB Treaty on European Union. The ESCB shall shall act in accordance with the principle of act in accordance with the principle of an an open, highly competitive social market open market economy with free competition, economy, favouring an efﬁ cient allocation favouring an efﬁ cient allocation of of resources, and in compliance with the resources, and in compliance with the prin- principles set out in Article 218. ciples set out in Article 119.

140 CHAPTER ONE

2. The basic tasks to be carried out 2. The basic tasks to be carried out through the ESCB shall be: through the ESCB shall be:

– to deﬁ ne and implement the monetary – to deﬁ ne and implement the monetary policy of the Union, policy of the Union,

– to conduct foreign-exchange operations – to conduct foreign-exchange operations consistent with the provisions of Article 219, consistent with the provisions of Article 441,

– to hold and manage the ofﬁ cial foreign – to hold and manage the ofﬁ cial foreign reserves of the Member States, reserves of the States,

– to promote the smooth operation of – to promote the smooth operation of payment systems. payment systems.

3. The third indent of paragraph 2 shall be 3. The third indent of paragraph 2 shall be without prejudice to the holding and without prejudice to the holding and management by the governments of management by the State governments of Member States of foreign-exchange working foreign-exchange working balances. balances.

4. The European Central Bank shall be 4. The European Central Bank shall be consulted: consulted:

– on any proposed Union act in its ﬁ elds – on any proposed Union act in its ﬁ elds of competence, of competence,

– by national authorities regarding any – by State authorities regarding any draft draft legislative provision in its ﬁ elds of legislative provision in its ﬁ elds of compe- competence, but within the limits and tence, but within the limits and under the under the conditions set out by the Council conditions set out by the Council in accord- in accordance with the procedure laid down ance with the procedure laid down in in Article 129(4). Article 229(4).

The European Central Bank may submit The European Central Bank may submit opinions to the appropriate Union institu- opinions to the appropriate Union institutions, bodies, offi ces or agencies or to tions, bodies, offi ces or agencies or to national authorities on matters in its fi elds national authorities on matters in its fi elds of competence. of competence.

5. The ESCB shall contribute to the 5. The ESCB shall contribute to the smooth conduct of policies pursued by the smooth conduct of policies pursued by the competent authorities relating to the competent authorities relating to the prudential supervision of credit institutions prudential supervision of credit institutions and the stability of the ﬁ nancial system. and the stability of the ﬁ nancial system.

141 PART IV

6. The Council, acting by means of regulations in accordance with a special legislative procedure, may unanimously, and after consulting the European Parliament and the European Central Bank, confer specifi c tasks upon the European Central Bank concerning policies relating to the prudential supervision of credit institutions and other fi nancial institutions with the exception of insurance undertakings.

Article 227

1. The Union shall undertake prudential oversight of credit institutions and other fi nancial institutions. For these purposes, it shall establish within a banking union an integrated fi nancial framework open to all States on a non-discriminatory basis.

The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, and after having consulted the European Central Bank, shall lay down the provisions governing a single supervisory mechanism and the establishment of an appropriate regulatory framework for the banking union as a whole, including a common resolution mechanism and deposit guarantee insurance. The prudential supervision of credit institutions and other fi nancial institutions may be conferred upon the European Central Bank.

2. For carrying out its functions, the single supervisory mechanism shall be accountable to the European Parliament and the Council. State Parliaments shall be kept informed as to the decisions taken under the single supervisory mechanism relevant to that State.

Without prejudice to Article 26, the European Parliament shall have the power to investigate the conduct of the single supervisory mechanism at all levels. State authorities and State parliaments are expected to cooperate with the European Parliament in ensuring eff ective parliamentary control of the exercise by the Union of prudential supervision.

142 CHAPTER ONE

3. Without prejudice to Article 230, the functions of the European Central Bank in the fi eld of surveillance and supervision of credit institutions shall not aff ect its independence in the area of monetary policy.

4. In respect of the banking union, the Commission shall assure the integrity of the internal market in fi nancial services.

Articles 128–135 Articles 228–235 ….. (ex-Articles 128–135 TFEU) …..

143 THE EUROZONE

CHAPTER TWO

This chapter deals with the arrangements for those states whose currency is the euro – soon to be, with Latvia, 18 out of 28 states. It incorporates at the level of primary law the relevant aspects of the measures taken by the EU since the onset of the ﬁ nancial crisis in 2007–08.

Article 236, the key provision, widens the scope for action of the eurozone states to develop a common economic policy, including the setting of minimum standards, within the context of enhanced cooperation. The European Stability Mechanism is brought within the proper Union framework. Formal provision is made for the creation by the euro states of the special ﬁ scal capacity for the eventual purpose of macro-economic stabilisation. This will be supplementary to the ordinary EU budget, whose primary purpose will continue to be the maintenance of support for the cohesion and competitiveness of the single market. Reform ‘budgetary and economic partnership’ programmes for eurozone states under the excessive deﬁ cit procedure shall be subject to a normal Union law. The national parliament of that state is enabled to call for a hearing in the European Parliament, and to formally address the Commission.

Provision is made for those states which are on track to joining the euro to participate to the maximum possible extent in meetings of the Eurogroup and Euro Summits (Article 237). The President of the Commission will chair the Euro Summits, and report to Parliament.

The Commission will represent the eurozone in international ﬁ nancial negotiations (Article 238).

Article 239 establishes that only those ministers coming from eurozone states will participate in decisions on those legal acts which concern exclusively the eurozone, including those on the ﬁ scal capacity. However, ‘pre-in’ states near to joining the euro will get automatic admission under the enhanced cooperation rules to the inner workings of the eurozone (Article 241).

144 CHAPTER TWO

MEASURES SPECIFIC THE EUROZONE TO THE EURO STATES

Article 136 Article 236 (ex-Article 136 TFEU)

1. In order to ensure the proper function- 1. In order to ensure the proper functioning of economic and monetary union, and ing of economic and monetary union, and in accordance with the relevant provisions without prejudice to Articles 104, 105 and 113, of the Treaties, the Council shall, in accord- the European Parliament and the Council ance with the relevant procedure from shall, in accordance with the ordinary legisla- among those referred to in Articles 121 and tive procedure, adopt enhanced cooperation 126, with the exception of the procedure set measures speciﬁ c to those States whose out in Article 126(14), adopt measures currency is the euro: speciﬁ c to those Member States whose currency is the euro: (a) to strengthen the coordination and surveillance of their budgetary discipline; (a) to strengthen the coordination and surveillance of their budgetary discipline; (b) to develop a common economic policy for them, while ensuring that it is compatible (b) to set out economic policy guidelines for with the economic policy guidelines adopted them, while ensuring that they are compat- for the whole of the Union. ible with those adopted for the whole of the Union and are kept under surveillance. These measures may include the setting of minimum standards.

2. For those measures set out in paragraph 1, only members of the Council representing Member States whose currency is the euro shall take part in the vote.

A qualifi ed majority of the said members shall be defi ned in accordance with Article 238(3)(a).

3. The Member States whose currency is 2. The European Parliament and the Council, the euro may establish a stability acting in accordance with the ordinary legisla- mechanism to be activated if indispensable tive procedure, may establish for the States to safeguard the stability of the euro area as whose currency is the euro a European a whole. The granting of any required stability mechanism to be activated if indis- ﬁ nancial assistance under the mechanism pensable to safeguard the stability of the euro will be made subject to strict conditionality. area as a whole. The granting of any required ﬁ nancial assistance under the mechanism will be made subject to strict conditionality.

3. The European Parliament and the Council, acting pursuant to Article 239, shall establish within the Union budget a specifi c fiscal capacity of the States whose currency is the euro.

145 PART IV

4. A State whose currency is the euro that is subject to an excessive defi cit procedure pursuant to Article 225 shall put in place a budgetary and economic partnership programme including a detailed description of the structural reforms which must be put in place and implemented to ensure an eff ective and durable correction of its excessive defi cit. The content and format of such programmes shall be defi ned in a Union law which shall be enacted under the ordinary legislative procedure.

The implementation of the budgetary and economic partnership programme, and the yearly budgetary plans consistent with it, will be monitored and applied by the Commission.

The Parliament of the State concerned may require the European Parliament to hold an urgent hearing of the Commission and the Council. At the conclusion of the hearing, that Parliament, acting either alone or jointly with the European Parliament, may address to the Commission a resolution. The Commission shall respond to the parliamentary resolution by way of a reasoned opinion within ten days.

5. With a view to the planning of debt issuance, the States shall report ex-ante on their public debt issuance plans to the Commis- sion. The Commission shall inform the European Parliament and the Council.

Article 137 Article 237 (ex-Article 137 TFEU)

Arrangements for meetings between 1. Arrangements for meetings between ministers of those Member States whose Heads of State or Government and between currency is the euro are laid down by the ministers of those States whose currency is Protocol on the Euro Group. the euro are laid down by the Protocol No 12 on the Eurogroup. The Euro Summits will be chaired by the President of the Commission.

2. Meetings of the Eurogroup will be chaired by the chair of the Council of Economic and Financial Aff airs who shall be drawn from the government of a State whose currency is the euro.

146 CHAPTER TWO

3. Notwithstanding the provisions on enhanced cooperation, States with a derogation shall participate in Euro Summit and Eurogroup meetings when those meetings concern the implementation of the rules for fi scal discipline, the modifi cation of the global architecture of the euro area and the fundamental rules which apply to it.

4. The President of the European Parliament shall participate at meetings of the Eurogroup Summit. The President of the Commission shall present a report to the Parliament after each Euro Summit meeting.

Article 138 Article 238 (ex-Article 138 TFEU)

1. In order to secure the euro’s place in the 1. In order to secure the euro’s place in the international monetary system, the Council, international monetary system, the on a proposal from the Commission, shall Council, on a proposal from the Commis- adopt a decision establishing common sion, shall adopt a decision establishing positions on matters of particular interest common positions on matters of particular for economic and monetary union within interest for economic and monetary union the competent international ﬁ nancial insti- within the competent international tutions and conferences. The Council shall ﬁ nancial institutions and conferences. The act after consulting the European Central Council shall act after consulting the Bank. European Central Bank.

2. The Council, on a proposal from the 2. The Commission, in close cooperation with Commission, may adopt appropriate measures the European Central Bank, shall represent the to ensure unifi ed representation within the Union within the international ﬁ nancial international ﬁ nancial institutions and institutions and conferences. conferences. The Council shall act after consulting the European Central Bank.

3. For the measures referred to in paragraphs 1 and 2, only members of the Council representing Member States whose currency is the euro shall take part in the vote.

A qualifi ed majority of the said members shall be defi ned in accordance with Article 238(3)(a).

Article 239

For the adoption of measures set out in Articles 201, 204, 206(11), 236, 237 and 238, only members of the Council representing States whose currency is the euro shall take part in the vote, in accordance with Article 109.

147 PART IV

Article 139 Article 240 ….. (ex-Article 139 TFEU) …..

Article 241

In accordance with the procedure laid down in Article 110, a State with a derogation may apply to join the enhanced cooperation of the States whose currency is the euro as established under the provisions of Article 236.

Once the participation of a State with a derogation is confi rmed by the Commission, that State shall be considered to be a State whose currency is the euro within the meaning and for the purposes of Articles 201, 203, 236, 237, 238 and 239 and of Protocol No 12.

Articles 140–144 Articles 242–246 ….. (ex-Articles 140–144 TFEU) …..

148 PART V THE POLICIES OF THE UNION

CHAPTER ONE

The ﬁ rst chapter in the part of the Fundamental Law which establishes the general policies of the Union contains provisions of horizontal application.

Here it is proposed to strengthen the imperative of employment policy (Article 249) and to combat climate change (Article 251).

149 PART V

GENERAL PROVISIONS

Articles 7–8 TFEU Articles 247–248 ….. (ex-Articles 7–8 TFEU) …..

Article 9 Article 249 (ex-Article 9 TFEU)

In defi ning and implementing its policies In defi ning and implementing its policies and activities, the Union shall take into and activities, the Union shall integrate account requirements linked to the requirements linked to the promotion of a promotion of a high level of employment, high level of employment, the guarantee of the guarantee of adequate social protection, adequate social protection, the fi ght against the fi ght against social exclusion, and a social exclusion, and a high level of high level of education, training and protec- education, training and protection of tion of human health. human health.

Article 10 Article 250 ..... (ex-Article 10 TFEU) .....

Article 11 Article 251 (ex-Article 11 TFEU)

Environmental protection requirements Environmental protection requirements must be integrated into the deﬁ nition and must be integrated into the deﬁ nition and implementation of the Union’s policies and implementation of the Union’s policies and activities, in particular with a view to activities, in particular with a view to promoting sustainable development. promoting sustainable development and to combatting climate change.

Articles 12–17 Articles 252–257 ….. (ex-Articles 12–17 TFEU) …..

150 NON-DISCRIMINATION AND CITIZENSHIP OF THE UNION

CHAPTER TWO

This chapter deals with the civic rights which are enjoyed by citizens of the European Union.

In important adjustments, it is here proposed to change the special laws of the Council into normal laws, adopted by co-decision between Council and Parliament – for example, in Article 259 for anti-discrimination policies, in Article 261 for freedom of movement, in Article 262 for the right to vote and stand in municipal and European Parliamentary elections, and in Article 263 for consular protection.

We adopt a more permissive approach to the addition of new rights, and provide that the EU institutions can be addressed in any European language (and not just in the EU’s 23 ‘ofﬁ cial’ languages).

In order to redress an injustice whereby many Europeans living abroad are deprived of the right to vote either for their original national parliament or for the national parliament of the state in which they reside, we propose to extend, under certain residency conditions, the right of EU citizens living in states other than their own to vote for their relevant State parliament (Articles 260(2)(d) and 262(3)).

151 PART V

NON-DISCRIMINATION AND CITIZENSHIP OF THE UNION CITIZENSHIP OF THE UNION

Article 18 Article 258 ….. (ex-Article 18 TFEU) …..

Article 19 Article 259 (ex-Article 19 TFEU)

1. Without prejudice to the other provi- Without prejudice to the other provisions of sions of the Treaties and within the limits of the Fundamental Law and within the limits the powers conferred by them upon the of the powers conferred by them upon the Union, the Council, acting unanimously in Union, the European Parliament and the accordance with a special legislative Council, acting in accordance with the procedure and after obtaining the consent of special legislative procedure, may take the European Parliament, may take appro- appropriate action to combat discrimination priate action to combat discrimination based on sex, racial or ethnic origin, based on sex, racial or ethnic origin, religion or belief, disability, age or sexual religion or belief, disability, age or sexual orientation. orientation.

2. By way of derogation from paragraph 1, 2. By way of derogation from paragraph 1, the European Parliament and the Council, the European Parliament and the Council, acting in accordance with the ordinary legis- acting in accordance with the ordinary lative procedure, may adopt the basic princi- legislative procedure, may adopt incentive ples of Union incentive measures, excluding measures to support action taken by the any harmonisation of the laws and regulations States which contributes to the achievement of the Member States, to support action taken of the objectives referred to in paragraph 1. by the Member States in order to contribute to the achievement of the objectives referred to in paragraph 1.

Article 20 Article 260 (ex-Article 20 TFEU)

1. Citizenship of the Union is hereby estab- 1. Citizenship of the Union is hereby established. Every person holding the nationality lished. Every person holding the nationality of a Member State shall be a citizen of the of a State shall be a citizen of the Union. Union. Citizenship of the Union shall be Citizenship of the Union shall be additional additional to and not replace national citi- to and not replace national citizenship. zenship.

2. Citizens of the Union shall enjoy the 2. Citizens of the Union shall enjoy these rights and be subject to the duties provided for specifi c rights: in the Treaties. They shall have, inter alia:

(a) the right to move and reside freely (a) the right to move and reside freely within the territory of the Member States; within the territory of the States;

152 CHAPTER TWO

(b) the right to vote and to stand as candi- (b) the right to vote and to stand as candidates in elections to the European Parlia- dates in municipal elections in their State of ment and in municipal elections in their residence, under the same conditions as Member State of residence, under the same nationals of that State; conditions as nationals of that State; (c) the right to vote and to stand as candi- (c) the right to enjoy, in the territory of a dates in elections to the European Parlia- third country in which the Member State of ment in any State, under the same condi- which they are nationals is not represented, tions as nationals of that State; the protection of the diplomatic and (d) the right to vote in parliamentary elections consular authorities of any Member State in their State of residence, under the same on the same conditions as the nationals of conditions as nationals of that State; that State; (e) the right to enjoy, in the territory of a (d) the right to petition the European Parlia- third country in which the State of which ment, to apply to the European they are nationals is not represented, the Ombudsman, and to address the institu- protection of the diplomatic and consular tions and advisory bodies of the Union in authorities of any State on the same condi- any of the Treaty languages and to obtain a tions as the nationals of that State; reply in the same language. (f) the right to petition the European Parlia- ment, to apply to the European These rights shall be exercised in accord- Ombudsman, and to address the institu- ance with the conditions and limits deﬁ ned tions and advisory bodies of the Union in by the Treaties and by the measures adopted any European language and to obtain a reply thereunder. in the same language.

These rights shall be exercised in accordance with the conditions and limits deﬁ ned by the Fundamental Law and by the measures adopted thereunder.

Article 21 Article 261 (ex-Article 21 TFEU)

1. Every citizen of the Union shall have the 1. Every citizen of the Union shall have the right to move and reside freely within the right to move and reside freely within the territory of the Member States, subject to territory of the States, subject to the limita- the limitations and conditions laid down in tions and conditions laid down in the the Treaties and by the measures adopted to Fundamental Law and by the measures give them effect. adopted to give them effect.

2. If action by the Union should prove 2. If action by the Union should prove necessary to attain this objective and the necessary to attain this objective and the Treaties have not provided the necessary Fundamental Law have not provided the powers, the European Parliament and the necessary powers, the European Parliament Council, acting in accordance with the and the Council, acting in accordance with ordinary legislative procedure, may adopt the ordinary legislative procedure, may provisions with a view to facilitating the adopt provisions with a view to facilitating exercise of the rights referred to in the exercise of the rights referred to in paragraph 1. paragraph 1.

153 PART V

3. For the same purposes as those referred 3. For the same purposes as those referred to in paragraph 1 and if the Treaties have to in paragraph 1 and if the Fundamental not provided the necessary powers, the Law has not provided the necessary powers, Council, acting in accordance with a special the European Parliament and the Council, legislative procedure, may adopt measures acting in accordance with the special legisla- concerning social security or social protective procedure, may adopt measures tion. The Council shall act unanimously after concerning social security or social protec- consulting the European Parliament. tion.

Article 22 Article 262 (ex-Article 22 TFEU)

1. Every citizen of the Union residing in a 1. Every citizen of the Union residing in a Member State of which he is not a national State of which he is not a national shall have shall have the right to vote and to stand as a the right to vote and to stand as a candidate candidate at municipal elections in the at municipal elections in the State in which Member State in which he resides, under he resides, under the same conditions as the same conditions as nationals of that nationals of that State. This right shall be State. This right shall be exercised subject exercised subject to detailed arrangements to detailed arrangements adopted by the adopted by the European Parliament and the Council, acting unanimously in accordance Council, acting in accordance with the with a special legislative procedure and after special legislative procedure. consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specifi c to a Member State.

2. Without prejudice to Article 223(1) and 2. Without prejudice to Article 23(1) and to to the provisions adopted for its implemen- the provisions adopted for its implementa- tation, every citizen of the Union residing tion, every citizen of the Union residing in a in a Member State of which he is not a State of which he is not a national shall have national shall have the right to vote and to the right to vote and to stand as a candidate stand as a candidate in elections to the in elections to the European Parliament in European Parliament in the Member State the State in which he resides, under the in which he resides, under the same condi- same conditions as nationals of that State. tions as nationals of that State. This right This right shall be exercised subject to shall be exercised subject to detailed detailed arrangements adopted by the arrangements adopted by the Council, European Parliament and the Council, acting acting unanimously in accordance with a in accordance with the special legislative special legislative procedure and after procedure. consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specifi c to a Member State.

154 CHAPTER TWO

3. Every citizen of the Union shall have the right to vote in elections to the State parliament of the State either of which he or she is a national or in which he or she resides. This right shall be exercised subject to detailed arrangements adopted by the European Parlia- ment and the Council, acting in accordance with the special legislative procedure. These arrangements may provide for derogations where warranted by problems specifi c to a State.

Article 23 Article 263 (ex-Article 23 TFEU)

Every citizen of the Union shall, in the Every citizen of the Union shall, in the territory of a third country in which the territory of a third country in which the Member State of which he is a national is State of which he or she is a national is not not represented, be entitled to protection by represented, be entitled to protection by the the diplomatic or consular authorities of any diplomatic or consular authorities of any Member State, on the same conditions as State, on the same conditions as the the nationals of that State. Member States nationals of that State. States shall adopt the shall adopt the necessary provisions and necessary provisions and start the interna- start the international negotiations required tional negotiations required to secure this to secure this protection. protection.

The Council, acting in accordance with a The European Parliament and the Council, special legislative procedure and after acting in accordance with the ordinary legis- consulting the European Parliament, may lative procedure, shall adopt directives estab- adopt directives establishing the coordina- lishing the coordination and cooperation tion and cooperation measures necessary to measures necessary to facilitate such facilitate such protection. protection.

Article 24 Article 264 ..... (ex-Article 24 TFEU) .....

155 PART V

Article 25 Article 265 (ex-Article 25 TFEU)

The Commission shall report to the The Commission shall report to the European Parliament, to the Council and to European Parliament and to the Council the Economic and Social Committee every every three years on the application of the three years on the application of the provi- provisions of this Part. This report shall sions of this Part. This report shall take take account of the development of the account of the development of the Union. Union.

On this basis, and without prejudice to the On this basis, and without prejudice to the other provisions of the Treaties, the other provisions of the Fundamental Law, Council, acting unanimously in accordance the European Parliament and the Council, with a special legislative procedure and after acting in accordance with the special legisla- obtaining the consent of the European Parlia- tive procedure, may adopt provisions to ment, may adopt provisions to strengthen or strengthen or to add to the rights listed in to add to the rights listed in Article 20(2). Article 260(2). These provisions shall enter into force after their approval by the Member States in accordance with their respective constitutional requirements.

156 THE INTERNAL MARKET

CHAPTER THREE

These articles establish the main principles of the internal market. As executive duties now falling on the Council are transferred to the Commission, we give both chambers of the legislature an equal, if limited, right to revoke the Commission’s decisions before their entry into force. Examples of this new system, which is comparable in some respects to the operation of delegated acts, are found in Articles 266(3), 272 and 300.

In the light of ECJ jurisprudence, we propose to add a new clause (Article 267) which clariﬁ es and afﬁ rms the right of the social partners to engage in collective labour agreements.

Faithful to the principle of equality between the two chambers of the legislature, we give the Parliament, under the special legislative procedure, the right of co-decision on measures which constitute a step backwards in the matter of liberalisation of capital with third countries (Article 298).

THE INTERNAL MARKET THE INTERNAL MARKET

Article 26 Article 266 (ex-Article 26 TFEU)

1. The Union shall adopt measures with 1. The Union shall adopt measures with the aim of establishing or ensuring the the aim of establishing or ensuring the functioning of the internal market, in functioning of the internal market. accordance with the relevant provisions of the Treaties.

2. The internal market shall comprise an 2. The internal market shall comprise an area without internal frontiers in which the area without internal frontiers in which the free movement of goods, persons, services free movement of goods, persons, services and capital is ensured in accordance with the and capital is assured. provisions of the Treaties.

157 PART V

3. The Council, on a proposal from the 3. The Commission shall determine the Commission, shall determine the guide- guidelines and conditions necessary to lines and conditions necessary to ensure ensure balanced progress in all the sectors balanced progress in all the sectors concerned. The decisions of the Commission concerned. shall enter into force after a period of four weeks if no objection has been expressed either by the European Parliament, acting pursuant to Article 12(8), or by the Council, acting pursuant to Article 14(5).

Article 267

The free movement of goods, persons, services and capital may not impair the exercise of social rights and principles as provided for in Union and State law. These include the right to negotiate and enforce collective agreements and to take collective action, and the autonomy of the social partners to exercise these rights.

Article 27 Article 268 ….. (ex-Article 27 TFEU) …..

FREE MOVEMENT OF GOODS FREE MOVEMENT OF GOODS

Articles 28–30 Articles 269–271 ….. (ex-Articles 28–30 TFEU) …..

Article 31 Article 272 (ex-Article 31 TFEU)

Common Customs Tariff duties shall be Common Customs Tariff duties shall be ﬁ xed by the Council on a proposal from the ﬁ xed by the Commission. The decisions of the Commission. Commission shall enter into force after a period of four weeks if no objection has been expressed either by the European Parliament, acting pursuant to Article 12(8), or by the Council, acting pursuant to Article 14(5).

Articles 32–37 Articles 273–278 ….. (ex-Articles 32–37 TFEU) …..

FREE MOVEMENT OF PERSONS, FREE MOVEMENT OF PERSONS, SERVICES AND CAPITAL SERVICES AND CAPITAL

Articles 45–63 Articles 279–297 ….. (ex-Articles 45–63 TFEU) …..

158 CHAPTER THREE

Article 64 Article 298 (ex-Article 64 TFEU)

1. The provisions of Article 63 shall be 1. The provisions of Article 297 shall be without prejudice to the application to third without prejudice to the application to third countries of any restrictions which exist on countries of any restrictions which exist on 31 December 1993 under national or Union 31 December 1993 under national or Union law adopted in respect of the movement of law adopted in respect of the movement of capital to or from third countries involving capital to or from third countries involving direct investment – including in real estate direct investment – including in real estate – establishment, the provision of ﬁ nancial – establishment, the provision of ﬁ nancial services or the admission of securities to services or the admission of securities to capital markets. In respect of restrictions capital markets. In respect of restrictions existing under national law in Bulgaria, existing under national law in Bulgaria, Estonia and Hungary, the relevant date Estonia and Hungary, the relevant date shall be 31 December 1999. shall be 31 December 1999.

2. Whilst endeavouring to achieve the 2. Whilst endeavouring to achieve the objective of free movement of capital objective of free movement of capital between Member States and third countries between States and third countries to the to the greatest extent possible and without greatest extent possible and without prejudice to the other Chapters of the prejudice to the other Chapters of the Treaties, the European Parliament and the Fundamental Law, the European Parlia- Council, acting in accordance with the ment and the Council, acting in accordance ordinary legislative procedure, shall adopt with the ordinary legislative procedure, the measures on the movement of capital to shall adopt the measures on the movement or from third countries involving direct of capital to or from third countries investment – including investment in real involving direct investment – including estate – establishment, the provision of investment in real estate – establishment, ﬁ nancial services or the admission of secu- the provision of ﬁ nancial services or the rities to capital markets. admission of securities to capital markets.

3. Notwithstanding paragraph 2, only the 3. Notwithstanding paragraph 2, where Council, acting in accordance with a special measures are adopted which constitute a step legislative procedure, may unanimously, and backwards in Union law as regards the after consulting the European Parliament, liberalisation of the movement of capital to adopt measures which constitute a step or from third countries, the European Parlia- backwards in Union law as regards the ment and the Council shall act according to the liberalisation of the movement of capital to special legislative procedure. or from third countries.

Article 65 Article 299 ….. (ex-Article 65 TFEU) …..

159 PART V

Article 66 Article 300 (ex-Article 66 TFEU)

Where, in exceptional circumstances, Where, in exceptional circumstances, movements of capital to or from third movements of capital to or from third countries cause, or threaten to cause, countries cause, or threaten to cause, serious difﬁ culties for the operation of serious difﬁ culties for the operation of economic and monetary union, the Council, economic and monetary union, the Commis- on a proposal from the Commission and after sion, after consulting the European Central consulting the European Central Bank, may Bank, may take safeguard measures with take safeguard measures with regard to regard to third countries for a period not third countries for a period not exceeding exceeding six months if such measures are six months if such measures are strictly strictly necessary. necessary.

The decisions of the Commission may be revoked either by the European Parliament, acting pursuant to Article 12(8), or by the Council, acting pursuant to Article 14(5).

160 COMPETITION, TAXATION AND APPROXIMATION OF LAWS

CHAPTER FOUR

Throughout this chapter, which features important building blocks of the single market, we normalise the legislative procedure (co-decision). We transfer residual executive powers of the Council to the Commission, subject to the power of revocation by the legislature (Article 312). Special laws of the Council are abolished in the cases of Articles 303, 307, 309, 313 and 317.

Nevertheless, in Article 303 provision is made for a new EU competition authority to be established at arm’s length from the Commission to operate the Union’s competition policy. This change reﬂ ects the more political role of the Commission, and the necessity, in these circumstances, for the Commission to drop its quasi-judicial functions with respect to market supervision.

In Article 313, legislation on both direct and indirect taxation is made subject to the ordinary legislative procedure. Besides making a major contribution to simpliﬁ cation (including the repeal of ex-Article 115 TFEU), the Union acquires a greater ability to use tax as an instrument to bolster the internal market.

Article 314 on the approximation of laws, has been and will continue to be the key article in the construction of the integrated single market. We eliminate the prohibition (ex-paragraph 2) on legislation relating to the ﬁ scal aspects of the free movement of labour. This will increase the capacity of the EU to act to facilitate the mobility of labour by introducing minimum terms and conditions for the treatment of taxation, mortgages, pensions and welfare beneﬁ ts.

161 PART V

COMMON RULES ON COMPETITION, COMPETITION, TAXATION TAXATION AND APPROXIMATION AND APPROXIMATION OF LAWS OF LAWS

Articles 101–102 Articles 301–302 ….. (ex-Articles 101–102 TFEU) …..

Article 103 Article 303 (ex-Article 103 TFEU)

1. The appropriate regulations or directives 1. The European Parliament and the to give effect to the principles set out in Council, acting in accordance with the Articles 101 and 102 shall be laid down by ordinary legislative procedure, shall by way of the Council, on a proposal from the Commis- regulations or directives give effect to the sion and after consulting the European Parlia- principles set out in Articles 301 and 302. ment. 2. A European competition authority shall be established with the powers necessary to implement the competition law of the Union. The competition authority shall report annually to the Commission, the European Parliament and the Council.

Any natural or legal person may appeal against decisions of the European competition authority to the Court of Justice in accordance with Article 58 where the decision directly concerns them.

2. The regulations or directives referred to 3. The regulations or directives referred to in paragraph 1 shall be designed in partic- in paragraph 1 shall be designed in particular: ular:

(a) to ensure compliance with the prohibi- (a) to ensure compliance with the prohibitions laid down in Article 101(1) and in tions laid down in Article 301(1) and in Article 102 by making provision for ﬁ nes Article 302 by making provision for ﬁ nes and periodic penalty payments; and periodic penalty payments;

(b) to lay down detailed rules for the appli- (b) to lay down detailed rules for the application of Article 101(3), taking into account cation of Article 301(3), taking into account the need to ensure effective supervision on the need to ensure effective supervision on the one hand, and to simplify administra- the one hand, and to simplify administration to the greatest possible extent on the tion to the greatest possible extent on the other; other;

(c) to deﬁ ne, if need be, in the various (c) to deﬁ ne, if need be, in the various branches of the economy, the scope of the branches of the economy, the scope of the provisions of Articles 101 and 102; provisions of Articles 301 and 302;

162 CHAPTER FOUR

(d) to deﬁ ne the respective functions of the (d) to deﬁ ne the respective functions of the Commission and of the Court of Justice of Commission, the competition authority and the European Union in applying the provi- of the Court of Justice of the European sions laid down in this paragraph; Union in applying the provisions laid down in this paragraph;

(e) to determine the relationship between (e) to determine the relationship between national laws and the provisions contained State laws and the provisions contained in in this Section or adopted pursuant to this this Section or adopted pursuant to this Article. Article.

Article 104 Article 304 ….. (ex-Article 104 TFEU) …..

Article 105 Article 305 (ex-Article 105 TFEU)

1. Without prejudice to Article 104, the 1. Without prejudice to Article 304, the Commission shall ensure the application of Commission and the European competition the principles laid down in Articles 101 and authority shall ensure the application of the 102. On application by a Member State or principles laid down in Articles 301 and on its own initiative, and in cooperation 302. On application by a State or on its own with the competent authorities in the initiative, and in cooperation with the Member States, which shall give it their competent authorities in the States, which assistance, the Commission shall investi- shall give it their assistance, the European gate cases of suspected infringement of competition authority shall investigate cases these principles. If it ﬁ nds that there has of suspected infringement of these princi- been an infringement, it shall propose ples. If it ﬁ nds that there has been an appropriate measures to bring it to an end. infringement, it shall propose appropriate measures to bring it to an end.

2. If the infringement is not brought to an 2. If the infringement is not brought to an end, the Commission shall record such end, the European competition authority shall infringement of the principles in a reasoned record such infringement of the principles decision. The Commission may publish its in a reasoned decision. The European compe- decision and authorise Member States to tition authority may publish its decision and take the measures, the conditions and authorise States to take the measures, the details of which it shall determine, needed conditions and details of which it shall to remedy the situation. determine, needed to remedy the situation.

3. The Commission may adopt regulations 3. The Commission may adopt regulations relating to the categories of agreement in relating to the categories of agreement in respect of which the Council has adopted a respect of which the European Parliament regulation or a directive pursuant to Article and the Council have adopted a regulation 103(2)(b). or a directive pursuant to Article 303(2)(b).

Article 106 Article 306 ….. (ex-Article 106 TFEU) …..

163 PART V

Article 107 Article 307 (ex-Article 107 TFEU)

1. Save as otherwise provided in the 1. Save as otherwise provided in the Treaties, any aid granted by a Member State Fundamental Law, any aid granted by a or through State resources in any form State or through State resources in any form whatsoever which distorts or threatens to whatsoever which distorts or threatens to distort competition by favouring certain distort competition by favouring certain undertakings or the production of certain undertakings or the production of certain goods shall, in so far as it affects trade goods shall, in so far as it affects trade between Member States, be incompatible between States, be incompatible with the with the internal market. internal market.

2. The following shall be compatible with 2. The following shall be compatible with the internal market: the internal market:

(a) aid having a social character, granted to (a) aid having a social character, granted to individual consumers, provided that such individual consumers, provided that such aid is granted without discrimination aid is granted without discrimination related to the origin of the products related to the origin of the products concerned; concerned;

(b) aid to make good the damage caused by (b) aid to make good the damage caused by natural disasters or exceptional occurrences; natural disasters or exceptional occurrences;

(c) aid granted to the economy of certain areas of the Federal Republic of Germany aff ected by the division of Germany, in so far as such aid is required in order to compensate for the economic disadvantages caused by that division. Five years after the entry into force of the Treaty of Lisbon, the Council, acting on a proposal from the Commission, may adopt a decision repealing this point.

3. The following may be considered to be 3. The following may be considered to be compatible with the internal market: compatible with the internal market:

(a) aid to promote the economic develop- (a) aid to promote the economic development of areas where the standard of living ment of areas where the standard of living is abnormally low or where there is serious is abnormally low or where there is serious underemployment, and of the regions underemployment, and of the regions referred to in Article 349, in view of their referred to in Article 128, in view of their structural, economic and social situation; structural, economic and social situation;

(b) aid to promote the execution of an (b) aid to promote the execution of an important project of common European important project of common European interest or to remedy a serious disturbance interest or to remedy a serious disturbance in the economy of a Member State; in the economy of a State;

164 CHAPTER FOUR

(c) aid to facilitate the development of (c) aid to facilitate the development of certain economic activities or of certain certain economic activities or of certain economic areas, where such aid does not economic areas, where such aid does not adversely affect trading conditions to an adversely affect trading conditions to an extent contrary to the common interest; extent contrary to the common interest;

(d) aid to promote culture and heritage (d) aid to promote culture and heritage conservation where such aid does not affect conservation where such aid does not affect trading conditions and competition in the trading conditions and competition in the Union to an extent that is contrary to the Union to an extent that is contrary to the common interest; common interest;

(e) such other categories of aid as may be (e) such other categories of aid as may be speciﬁ ed by decision of the Council on a speciﬁ ed by the European Parliament and the proposal from the Commission. Council, acting by way of a regulation, in accordance with the ordinary legislative procedure.

Article 108 Article 308 ….. (ex-Article 108 TFEU) …..

Article 109 Article 309 (ex-Article 109 TFEU)

The Council, on a proposal from the Commis- The European Parliament and the Council, in sion and after consulting the European Parlia- accordance with the ordinary legislative ment, may make any appropriate regulations procedure, may make any appropriate regula- for the application of Articles 107 and 108 tions for the application of Articles 307 and and may in particular determine the condi- 308 and may in particular determine the tions in which Article 108(3) shall apply and conditions in which Article 308(3) shall the categories of aid exempted from this apply and the categories of aid exempted procedure. from this procedure.

Articles 110–111 Articles 310–311 …. (ex-Articles 110–111 TFEU) …..

Article 112 Article 312 (ex-Article 112 TFEU)

In the case of charges other than turnover In the case of charges other than turnover taxes, excise duties and other forms of taxes, excise duties and other forms of indirect taxation, remissions and repay- indirect taxation, remissions and repay- ments in respect of exports to other Member ments in respect of exports to other States States may not be granted and counter- may not be granted and countervailing vailing charges in respect of imports from charges in respect of imports from States Member States may not be imposed unless may not be imposed unless the measures the measures contemplated have been previ- contemplated have been previously ously approved for a limited period by the approved for a limited period by the Council on a proposal from the Commission. Commission.

165 PART V

The decision of the Commission may be revoked either by the European Parliament, acting pursuant to Article 12(8), or by the Council, acting pursuant to Article 14(5).

Article 113 Article 313 (ex-Article 113 TFEU)

The Council shall, acting unanimously in The European Parliament and Council shall, accordance with a special legislative acting in accordance with the ordinary legisla- procedure and after consulting the European tive procedure, adopt provisions for the Parliament and the Economic and Social harmonisation of legislation concerning Committee, adopt provisions for the harmo- direct taxation and turnover taxes, excise nisation of legislation concerning turnover duties and other forms of indirect taxation taxes, excise duties and other forms of to the extent that such harmonisation is indirect taxation to the extent that such necessary to ensure the establishment and harmonisation is necessary to ensure the the functioning of the internal market and establishment and the functioning of the to avoid distortion of competition. internal market and to avoid distortion of competition.

Article 114 Article 314 (ex-Article 114 TFEU)

1. Save where otherwise provided in the 1. Save where otherwise provided in the Treaties, the following provisions shall apply Fundamental Law, the following provisions for the achievement of the objectives set out shall apply for the achievement of the objec- in Article 26. The European Parliament and tives set out in Article 266. The European the Council shall, acting in accordance with Parliament and the Council shall, acting in the ordinary legislative procedure and after accordance with the ordinary legislative consulting the Economic and Social procedure, adopt the measures for the Committee, adopt the measures for the approximation of the provisions laid down approximation of the provisions laid down by law, regulation or administrative action by law, regulation or administrative action in States which have as their object the in Member States which have as their object establishment and functioning of the the establishment and functioning of the internal market. internal market.

2. Paragraph 1 shall not apply to fi scal provisions, to those relating to the free movement of persons nor to those relating to the rights and interests of employed persons.

166 CHAPTER FOUR

3. The Commission, in its proposals 2. The Commission, in its proposals envisaged in paragraph 1 concerning envisaged in paragraph 1 concerning health, safety, environmental protection and health, safety, environmental protection and consumer protection, will take as a base a consumer protection, will take as a base a high level of protection, taking account in high level of protection, taking account in particular of any new development based on particular of any new development based on scientiﬁ c facts. Within their respective scientiﬁ c facts. Within their respective powers, the European Parliament and the powers, the European Parliament and the Council will also seek to achieve this Council will also seek to achieve this objective. objective.

4. If, after the adoption of a harmonisation 3. If, after the adoption of a harmonisation measure by the European Parliament and measure by the European Parliament and the Council, by the Council or by the the Council or by the Commission, a State Commission, a Member State deems it deems it necessary to maintain national necessary to maintain national provisions provisions on grounds of major needs on grounds of major needs referred to in referred to in Article 277, or relating to the Article 36, or relating to the protection of protection of the environment or the the environment or the working environ- working environment, it shall notify the ment, it shall notify the Commission of Commission of these provisions as well as these provisions as well as the grounds for the grounds for maintaining them. maintaining them.

5. Moreover, without prejudice to 4. Moreover, without prejudice to paragraph 4, if, after the adoption of a paragraph 3, if, after the adoption of a harmonisation measure by the European harmonisation measure by the European Parliament and the Council, by the Council Parliament and the Council or by the or by the Commission, a Member State Commission, a State deems it necessary to deems it necessary to introduce national introduce national provisions based on new provisions based on new scientifi c evidence scientifi c evidence relating to the protection relating to the protection of the environ- of the environment or the working environment or the working environment on ment on grounds of a problem specifi c to grounds of a problem specifi c to that that State arising after the adoption of the Member State arising after the adoption of harmonisation measure, it shall notify the the harmonisation measure, it shall notify Commission of the envisaged provisions as the Commission of the envisaged provi- well as the grounds for introducing them. sions as well as the grounds for introducing them.

6. The Commission shall, within six 5. The Commission shall, within six months of the notifi cations as referred to in months of the notifi cations as referred to in paragraphs 4 and 5, approve or reject the paragraphs 3 and 4, approve or reject the national provisions involved after having national provisions involved after having verifi ed whether or not they are a means of verifi ed whether or not they are a means of arbitrary discrimination or a disguised arbitrary discrimination or a disguised restriction on trade between Member States restriction on trade between States and and whether or not they shall constitute an whether or not they shall constitute an obstacle to the functioning of the internal obstacle to the functioning of the internal market. market.

167 PART V

In the absence of a decision by the Commis- In the absence of a decision by the Commis- sion within this period the national provision within this period the national provisions referred to in paragraphs 4 and 5 shall sions referred to in paragraphs 3 and 4 shall be deemed to have been approved. be deemed to have been approved.

When justiﬁ ed by the complexity of the When justiﬁ ed by the complexity of the matter and in the absence of danger for matter and in the absence of danger for human health, the Commission may notify human health, the Commission may notify the Member State concerned that the period the State concerned that the period referred referred to in this paragraph may be to in this paragraph may be extended for a extended for a further period of up to six further period of up to six months. months.

7. When, pursuant to paragraph 6, a 6. When, pursuant to paragraph 5, a State Member State is authorised to maintain or is authorised to maintain or introduce introduce national provisions derogating national provisions derogating from a from a harmonisation measure, the harmonisation measure, the Commission Commission shall immediately examine shall immediately examine whether to whether to propose an adaptation to that propose an adaptation to that measure. measure.

8. When a Member State raises a specifi c 7. When a State raises a specifi c problem problem on public health in a fi eld which on public health in a fi eld which has been has been the subject of prior harmonisation the subject of prior harmonisation measures, it shall bring it to the attention of measures, it shall bring it to the attention of the Commission which shall immediately the Commission which shall immediately examine whether to propose appropriate examine whether to propose appropriate measures to the Council. measures to the European Parliament and Council.

9. By way of derogation from the procedure 8. By way of derogation from the procedure laid down in Articles 258 and 259, the laid down in Articles 54 and 55, the Commission and any Member State may Commission and any State may bring the bring the matter directly before the Court of matter directly before the Court of Justice of Justice of the European Union if it considers the European Union if it considers that that another Member State is making another State is making improper use of the improper use of the powers provided for in powers provided for in this Article. this Article.

10. The harmonisation measures referred to 9. The harmonisation measures referred to above shall, in appropriate cases, include a above shall, in appropriate cases, include a safeguard clause authorising the Member safeguard clause authorising the States to States to take, for one or more of the non- take, for one or more of the non-economic economic reasons referred to in Article 36, reasons referred to in Article 277, provi- provisional measures subject to a Union sional measures subject to a Union control control procedure. procedure.

Article 115 [delete] .....

168 CHAPTER FOUR

Articles 116–117 Articles 315–316 ….. (ex-Articles 116–117 TFEU) …..

Article 118 Article 317 (ex-Article 118 TFEU)

In the context of the establishment and In the context of the establishment and functioning of the internal market, the functioning of the internal market, the European Parliament and the Council, European Parliament and the Council, acting in accordance with the ordinary legis- acting in accordance with the ordinary lative procedure, shall establish measures legislative procedure, shall establish for the creation of European intellectual measures for the creation of European intel- property rights to provide uniform protec- lectual property rights to provide uniform tion of intellectual property rights protection of intellectual property rights throughout the Union and for the setting throughout the Union and for the setting up of centralised Union-wide authorisation, up of centralised Union-wide authorisation, coordination and supervision arrange- coordination and supervision arrangements. ments.

The Council, acting in accordance with a The European Parliament and the Council, special legislative procedure, shall by means acting in accordance with the special legisla- of regulations establish language arrange- tive procedure, shall by means of regula- ments for the European intellectual tions establish language arrangements for property rights. The Council shall act unan- the European intellectual property rights. imously after consulting the European Parliament.

169 EMPLOYMENT

CHAPTER FIVE

The revised Article 318 upgrades employment to be regarded as a common policy of the Union with the clear objective of ‘achieving a high level of employment’. The change allows for the deletion of ex-Article 147 TFEU.

In an important change to the decision-making procedures, the powers of the Commission to drive the policy are enhanced (Article 320). The annual employment guidelines will become a legislative act. The Commission will make a proposal for recommendations to the Council. Parliament may amend the Commission’s proposal unless its amendments are rejected by a double majority of Commission and Council. This procedure is based on that used for the macro-economic guidelines (Article 220), which remain a non-binding recommendation (pursuant to Article 81). In the case of the employment guidelines, however, the EU has no possibility to impose sanctions where its recommendations are ignored. Nevertheless, the possibility of more intensive EU action is foreseen in certain critical circumstances.

This is particularly so with respect of the euro states. In Article 321 we lift the prohibition against the harmonisation of national laws at least for the eurozone.

170 CHAPTER FIVE

EMPLOYMENT EMPLOYMENT

Article 145 Article 318 (ex-Articles 145 & 147 TFEU)

Member States and the Union shall, in The Union shall establish a common policy accordance with this Title, work towards devel- aimed at achieving a high level of employment, oping a coordinated strategy for employment particularly through the development of a skilled, and particularly for promoting a skilled, trained and adaptable workforce and labour trained and adaptable workforce and labour markets responsive to economic change. markets responsive to economic change with a view to achieving the objectives defi ned The objective of a high level of employment in Article 3 of the Treaty on European Union. shall be taken into consideration in the formulation and implementation of Union policies and activities.

Article 146 Article 319 …. (ex-Article 146 TFEU) …..

Article 147 [delete] …..

Article 148 Article 320 (ex-Article 148 TFEU)

1. States shall regard their employment policies as a matter of common concern, and shall coordinate them within the context of a European semester.

1. The European Council shall each year 2. The European Council shall each year consider the employment situation in the consider the employment situation in the Union and adopt conclusions thereon, on Union and adopt conclusions thereon, on the basis of a joint annual report by the the basis of a joint annual report by the Council and the Commission. Council and the Commission.

2. On the basis of the conclusions of the Having considered the conclusions of the European Council, the Council, on a European Council, the European Parliament proposal from the Commission and after and the Council, on a proposal of the consulting the European Parliament, the Commission and in accordance with the Economic and Social Committee, the ordinary legislative procedure, shall each year Committee of the Regions and the Employment adopt guidelines which the States shall take Committee referred to in Article 150, shall into account in their employment policies. each year draw up guidelines which the These employment guidelines shall be Member States shall take into account in consistent with the broad macro-economic their employment policies. These guidelines policy guidelines adopted pursuant to shall be consistent with the broad guidelines Article 220(2). adopted pursuant to Article 121(2).

171 PART V

3. Each Member State shall provide the 3. Each State shall provide the Council and Council and the Commission with an the Commission with an annual report on annual report on the principal measures the principal measures taken to implement taken to implement its employment policy its employment policy in the light of the in the light of the guidelines for employ- guidelines for employment as referred to in ment as referred to in paragraph 2. paragraph 2.

4. The Council, on the basis of the reports 4. The Commission, on the basis of the referred to in paragraph 3 and having reports referred to in paragraph 3 and received the views of the Employment having received the views of the Employ- Committee, shall each year carry out an ment Committee, shall each year carry out examination of the implementation of the an examination of the implementation of employment policies of the Member States the employment policies of the States in the in the light of the guidelines for employ- light of the guidelines for employment. The ment. The Council, on a recommendation Council, on a proposal of the Commission, from the Commission, may, if it considers it may, if it considers it appropriate in the appropriate in the light of that examination, light of that examination, make recommen- make recommendations to Member States. dations to States. The recommendations shall be made public.

In the case that a State fails to follow the recommendations, the Council may decide, on a proposal of the Commission, to take more intensive action.

5. At any stage of the procedure, the European Parliament may request the right to be heard and may propose amendments to the Commis- sion’s proposal for recommendations. The Council may reject those amendments if the Commission delivers a negative opinion. Otherwise the Commission’s proposal shall be deemed to have been adopted by the Council in its amended version.

The Council shall act without the participation in the vote of the State concerned. A qualifi ed majority shall be defi ned in accordance with Article 109.

5. On the basis of the results of that exami- 6. On the basis of the results of the examination, the Council and the Commission nation referred to in paragraph 4, the Council shall make a joint annual report to the and the Commission shall make the joint European Council on the employment annual report to the European Council on situation in the Union and on the imple- the employment situation in the Union and mentation of the guidelines for employ- on the implementation of the guidelines for ment. employment.

172 CHAPTER FIVE

Article 149 Article 321 (ex-Article 149 TFEU)

The European Parliament and the Council, The European Parliament and the Council, acting in accordance with the ordinary legis- acting in accordance with the ordinary lative procedure and after consulting the legislative procedure, may adopt incentive Economic and Social Committee and the measures designed to encourage cooper- Committee of the Regions, may adopt ation between States and to support their incentive measures designed to encourage action in the ﬁ eld of employment through cooperation between Member States and to initiatives aimed at developing exchanges of support their action in the ﬁ eld of employ- information and best practices, providing ment through initiatives aimed at devel- comparative analysis and advice as well as oping exchanges of information and best promoting innovative approaches and evalu- practices, providing comparative analysis ating experiences, in particular by recourse and advice as well as promoting innovative to pilot projects. approaches and evaluating experiences, in particular by recourse to pilot projects.

Those measures shall not include harmoni- For States whose currency is the euro, those sation of the laws and regulations of the measures may include harmonisation of the Member States. laws and regulations of those States.

Article 150 Article 322 ….. (ex-Article 150 TFEU) …..

173 EUROPEAN SOCIETY

CHAPTER SIX

In this chapter we group the policies which impact upon the quality of European life. In all areas, the Fundamental Law adopts a more conﬁ dent tone than that of the Lisbon Treaty, and drops certain constraints on the scope of these societal policies which limit their effectiveness at the European level.

In the key Article 325, we cross, as it were, the passerelle (ex-Article 153(2) TFEU) and introduce either the special or ordinary legislative procedure in areas which are to date covered by special laws of the Council. We drop the complete exclusion of the harmonisation of national laws, leaving it up to the EU legislature to act should it choose to do so. We drop the prohibition against EU legislation on pay in order to widen the scope of EU competence in the social policy ﬁ eld (Article 325(5)).

The provisions on education, vocational training, youth and sport, on culture and on public health are streamlined and made subject to the normal co-decision procedures. We propose to sharpen the focus of these policies. The provision on consumer protection needs no amendment.

SOCIAL POLICY SOCIAL POLICY

Articles 151–152 Articles 323–324 ….. (ex-Articles 151–152 TFEU) …..

Article 153 Article 325 (ex-Article 153 TFEU)

1. With a view to achieving the objectives 1. With a view to achieving the objectives of Article 151, the Union shall support and of Article 324, the social policy of the Union complement the activities of the Member States shall comprise action in the following ﬁ elds: in the following ﬁ elds:

(a) improvement in particular of the (a) improvement in particular of the working environment to protect workers’ working environment to protect workers’ health and safety; health and safety;

(b) working conditions; (b) working conditions;

174 CHAPTER SIX

(d) protection of workers where their (d) protection of workers where their employment contract is terminated; employment contract is terminated;

(e) the information and consultation of (e) the information and consultation of workers; workers;

(f) representation and collective defence of (f) representation and collective defence of the interests of workers and employers, the interests of workers and employers, including co-determination, subject to including co-determination, subject to paragraph 5; paragraph 5;

(g) conditions of employment for third- (g) conditions of employment for third- country nationals legally residing in Union country nationals legally residing in Union territory; territory;

(h) the integration of persons excluded from (h) the integration of persons excluded from the labour market, without prejudice to the labour market; Article 166;

(i) equality between men and women with (i) equality between men and women with regard to labour market opportunities and regard to labour market opportunities and treatment at work; treatment at work;

(j) the combating of social exclusion; (j) the combating of social exclusion;

(k) the modernisation of social protection (k) the modernisation of social protection systems without prejudice to point (c). systems.

2. To this end, the European Parliament 2. To this end, the European Parliament and the Council: and the Council:

(a) may adopt measures designed to (a) may adopt measures designed to encourage cooperation between Member encourage cooperation between States States through initiatives aimed at through initiatives aimed at improving improving knowledge, developing knowledge, developing exchanges of infor- exchanges of information and best mation and best practices, promoting inno- practices, promoting innovative approaches vative approaches and evaluating experi- and evaluating experiences, excluding any ences; harmonisation of the laws and regulations of the Member States;

175 PART V

(b) may adopt, in the fi elds referred to in (b) may adopt, by means of directives, paragraph 1(a) to (i), by means of directives, measures comprising minimum require- minimum requirements for gradual implements, having regard to the conditions and mentation, having regard to the conditions technical rules obtaining in each of the and technical rules obtaining in each of the States. Such directives shall avoid imposing Member States. Such directives shall avoid administrative, ﬁ nancial and legal imposing administrative, ﬁ nancial and legal constraints in a way which would hold back constraints in a way which would hold back the creation and development of small and the creation and development of small and medium-sized undertakings. medium-sized undertakings.

The European Parliament and the Council The European Parliament and the Council shall act in accordance with the ordinary shall act in accordance with the ordinary legislative procedure after consulting the legislative procedure. Economic and Social Committee and the Committee of the Regions.

In the ﬁ elds referred to in paragraph 1(c), In the ﬁ elds referred to in paragraph 1(c), (d), (f) and (g), the Council shall act unani- (d), (f) and (g), they shall act in accordance mously, in accordance with a special legisla- with the special legislative procedure. tive procedure, after consulting the European Parliament and the said Committees.

The Council, acting unanimously on a proposal from the Commission, after consulting the European Parliament, may decide to render the ordinary legislative procedure applicable to paragraph 1(d), (f) and (g).

3. A Member State may entrust manage- 3. A State may entrust management and ment and labour, at their joint request, with labour, at their joint request, with the imple- the implementation of directives adopted mentation of directives adopted pursuant to pursuant to paragraph 2, or, where appro- paragraph 2, or, where appropriate, with the priate, with the implementation of a Council implementation of a decision adopted in decision adopted in accordance with Article accordance with Article 327. 155. In this case, it shall ensure that, no later In this case, it shall ensure that, no later than the date on which a directive or a than the date on which a directive or a decision must be transposed or imple- decision must be transposed or implemented, management and labour have mented, management and labour have introduced the necessary measures by introduced the necessary measures by agreement, the State concerned being agreement, the Member State concerned required to take any necessary measure being required to take any necessary enabling it at any time to be in a position to measure enabling it at any time to be in a guarantee the results imposed by that position to guarantee the results imposed directive or that decision. by that directive or that decision.

176 CHAPTER SIX

4. The provisions adopted pursuant to this 4. The provisions adopted pursuant to this Article: Article:

– shall not affect the right of Member – shall not affect the right of States to States to defi ne the fundamental principles defi ne the fundamental principles of their of their social security systems and must social security systems and must not signif- not signifi cantly affect the fi nancial equilib- icantly affect the fi nancial equilibrium rium thereof, thereof,

– shall not prevent any Member State – shall not prevent any State from main- from maintaining or introducing more taining or introducing more stringent stringent protective measures compatible protective measures compatible with the with the Treaties. Fundamental Law.

5. The provisions of this Article shall not 5. The provisions of this Article shall not apply to pay, the right of association, the right apply to the right of association, the right to to strike or the right to impose lock-outs. strike or the right to impose lock-outs.

Article 154 Article 326 ….. (ex-Article 154) …..

Article 155 Article 327 (ex-Article 155 TFEU)

1. Should management and labour so 1. Should management and labour so desire, the dialogue between them at Union desire, the dialogue between them at Union level may lead to contractual relations, level may lead to contractual relations, including agreements. including agreements.

2. Agreements concluded at Union level 2. Agreements concluded at Union level shall be implemented either in accordance shall be implemented either in accordance with the procedures and practices speciﬁ c with the procedures and practices speciﬁ c to management and labour and the Member to management and labour and the States States or, in matters covered by Article 153, or, in matters covered by Article 326, at the at the joint request of the signatory parties, joint request of the signatory parties, by the by a Council decision on a proposal from the European Parliament and the Council, acting Commission. The European Parliament shall in accordance with the ordinary legislative be informed. procedure.

The Council shall act unanimously where The European Parliament and the Council the agreement in question contains one or shall act in accordance with the special legisla- more provisions relating to one of the areas tive procedure where the agreement in for which unanimity is required pursuant question contains one or more provisions to Article 153(2). relating to Article 325(1)(c), (d), (f) and (g).

Articles 156–159 Articles 328–331 ….. (ex-Articles 156–159) …..

177 PART V

Articles 160–161 [delete] …..

THE EUROPEAN SOCIAL FUND THE EUROPEAN SOCIAL FUND

Articles 162–164 Articles 332–334 ….. (ex-Articles 162–164 TFEU) …..

EDUCATION, VOCATIONAL EDUCATION, VOCATIONAL TRAINING, YOUTH AND SPORT TRAINING, YOUTH AND SPORT

Article 165 Article 335 (ex-Article 165 TFEU)

1. The Union shall contribute to the devel- 1. The Union shall contribute to the development of quality education by encouraging opment of quality education and life-long cooperation between Member States and, if learning. necessary, by supporting and supplementing their action, while fully respecting the responsi- The Union shall contribute to the bility of the Member States for the content of promotion of European sport, while taking teaching and the organisation of education account of its speciﬁ c nature, its structures systems and their cultural and linguistic based on voluntary activity and its social diversity. and educational function.

The Union shall contribute to the promotion of European sporting issues, while taking account of the speciﬁ c nature of sport, its structures based on voluntary activity and its social and educational function.

2. Union action shall be aimed at: 2. Union action shall be aimed at:

– developing the European dimension in – developing the European dimension in education, particularly through the teaching education, particularly through the teaching and dissemination of the languages of the and dissemination of European languages, Member States,

– encouraging mobility of students and – encouraging mobility of students and teachers, by encouraging inter alia, the teachers, by encouraging inter alia, the academic recognition of diplomas and academic recognition of diplomas and periods of study, periods of study,

– promoting cooperation between educa- – promoting cooperation between educational establishments, tional establishments,

– developing exchanges of information – developing exchanges of information and experience on issues common to the and experience on issues common to the education systems of the Member States, education systems of the States,

178 CHAPTER SIX

– encouraging the development of youth – encouraging the development of youth exchanges and of exchanges of socio-educa- exchanges and of exchanges of socio-educational instructors, and encouraging the tional instructors, and encouraging the participation of young people in democratic participation of young people in democratic life in Europe, life in Europe,

– encouraging the development of – encouraging the development of distance education, distance education,

– developing the European dimension in – developing the European dimension and sport, by promoting fairness and openness identity in sport, by promoting fairness and in sporting competitions and cooperation openness. between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest sportsmen and sportswomen.

3. The Union and the Member States shall 3. The Union and the States shall foster foster cooperation with third countries and cooperation with third countries and the the competent international organisations competent international organisations in in the ﬁ eld of education and sport, in partic- the ﬁ eld of education and sport, in particular the Council of Europe. ular the Council of Europe.

4. In order to contribute to the achievement of 4. The European Parliament and the the objectives referred to in this Article: Council, acting in accordance with the ordinary legislative procedure, shall adopt – the European Parliament and the Council, measures to achieve the objectives referred to in acting in accordance with the ordinary legisla- this Article. tive procedure, after consulting the Economic and Social Committee and the Committee of the Regions, shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States,

– the Council, on a proposal from the Commission, shall adopt recommendations.

Article 166 Article 336 (ex-Article 166 TFEU)

1. The Union shall implement a vocational 1. The Union shall implement a vocational training policy which shall support and training policy. supplement the action of the Member States, while fully respecting the responsibility of the Member States for the content and organisation of vocational training.

179 PART V

2. Union action shall aim to: 2. Union action shall aim to:

– facilitate adaptation to industrial – facilitate adaptation to industrial changes, in particular through vocational changes, in particular through vocational training and retraining, training and retraining,

– improve initial and continuing voca- – improve initial and continuing vocational training in order to facilitate vocational training in order to facilitate vocational integration and reintegration into the tional integration and reintegration into the labour market, labour market,

– facilitate access to vocational training – facilitate access to vocational training and encourage mobility of instructors and and encourage mobility of instructors and trainees and particularly young people, trainees and particularly young people,

– stimulate cooperation on training – stimulate cooperation on training between educational or training establish- between educational or training establishments and ﬁ rms, ments and ﬁ rms,

– develop exchanges of information and – develop exchanges of information and experience on issues common to the experience on issues common to the training systems of the Member States. training systems of the States.

3. The Union and the Member States shall 3. The Union and the States shall foster foster cooperation with third countries and cooperation with third countries and the the competent international organisations competent international organisations in in the sphere of vocational training. the sphere of vocational training.

4. The European Parliament and the 4. The European Parliament and the Council, acting in accordance with the Council, acting in accordance with the ordinary legislative procedure and after ordinary legislative procedure, shall adopt consulting the Economic and Social Committee measures to achieve the objectives referred to and the Committee of the Regions, shall adopt in this Article. measures to contribute to the achievement of the objectives referred to in this Article, excluding any harmonisation of the laws and regulations of the Member States, and the Council, on a proposal from the Commission, shall adopt recommendations.

CULTURE CULTURE

Article 167 Article 337 (ex-Article 167 TFEU)

1. The Union shall contribute to the 1. The Union shall contribute to the ﬂ owering of the cultures of the Member States, ﬂ owering of European culture, while while respecting their national and regional respecting its national and regional diversity and at the same time bringing the diversity. common cultural heritage to the fore.

180 CHAPTER SIX

2. Action by the Union shall be aimed at 2. Action by the Union shall be aimed at encouraging cooperation between Member encouraging cooperation between States in States and, if necessary, supporting and the following areas: supplementing their action in the following areas: – improvement of the knowledge and – improvement of the knowledge and dissemination of the culture and history of dissemination of the culture and history of the European peoples, the European peoples, – conservation and safeguarding of – conservation and safeguarding of cultural heritage of European signiﬁ cance, cultural heritage of European signiﬁ cance, – non-commercial cultural exchanges, – non-commercial cultural exchanges, – artistic and literary creation. – artistic and literary creation, including in the audiovisual sector.

3. The Union and the Member States shall 3. The Union and the States shall foster foster cooperation with third countries and cooperation with third countries and the the competent international organisations competent international organisations in in the sphere of culture, in particular the the sphere of culture, in particular the Council of Europe. Council of Europe.

4. The Union shall take cultural aspects 4. The Union shall take cultural aspects into account in its action under other provi- into account in its action under other provisions of the Treaties, in particular in order sions of the Fundamental Law, in particular to respect and to promote the diversity of its in order to respect and to promote the cultures. diversity of its cultures.

5. In order to contribute to the achieve- 5. In order to contribute to the achievement of the objectives referred to in this ment of the objectives referred to in this Article: Article, the European Parliament and the Council, acting in accordance with the – the European Parliament and the ordinary legislative procedure, shall adopt Council acting in accordance with the incentive measures. ordinary legislative procedure and after consulting the Committee of the Regions, shall Other measures shall be adopted in accordance adopt incentive measures, excluding any with the special legislative procedure. harmonisation of the laws and regulations of the Member States,

– the Council, on a proposal from the Commission, shall adopt recommendations.

181 PART V

PUBLIC HEALTH PUBLIC HEALTH

Article 168 Article 338 (ex-Article 168 TFEU)

1. A high level of human health protection 1. A high level of human health protection shall be ensured in the deﬁ nition and imple- shall be ensured in the deﬁ nition and implementation of all Union policies and activities. mentation of all Union policies and activities.

Union action, which shall complement Union action, which shall complement State national policies, shall be directed towards policies, shall be directed towards improving improving public health, preventing physical public health, preventing physical and and mental illness and diseases, and mental illness and diseases, and obviating obviating sources of danger to physical and sources of danger to physical and mental mental health. Such action shall cover the health. Such action shall cover the ﬁ ght ﬁ ght against the major health scourges, by against the major health scourges, by promoting research into their causes, their promoting research into their causes, their transmission and their prevention, as well transmission and their prevention, as well as health information and education, and as health information and education, and monitoring, early warning of and combating monitoring, early warning of and combating serious cross-border threats to health. serious cross-border threats to health.

The Union shall complement the Member The Union shall take action in reducing States’ action in reducing drugs-related drugs-related health damage, including health damage, including information and information and prevention. prevention.

2. The Union shall encourage cooperation 2. The Union shall encourage and lend between the Member States in the areas referred support to the States in improving the comple- to in this Article and, if necessary, lend mentarity of their health services in cross- support to their action. It shall in particular border areas. encourage cooperation between the Member States to improve the complementarity of The Commission may take any useful initia- their health services in cross-border areas. tives to promote the coordination of State policies and programmes in the fi eld of public Member States shall, in liaison with the health, in particular initiatives aiming at the Commission, coordinate among themselves establishment of guidelines and indicators, their policies and programmes in the areas the organisation of exchange of best referred to in paragraph 1. The Commission practice, and the preparation of the may, in close contact with the Member States, necessary elements for periodic monitoring take any useful initiative to promote such and evaluation. The European Parliament coordination, in particular initiatives shall be kept fully informed. aiming at the establishment of guidelines and indicators, the organisation of exchange of best practice, and the preparation of the necessary elements for periodic monitoring and evaluation. The European Parliament shall be kept fully informed.

182 CHAPTER SIX

3. The Union and the Member States shall 3. The Union and the States shall foster foster cooperation with third countries and cooperation with third countries and the the competent international organisations competent international organisations in in the sphere of public health. the sphere of public health.

4. By way of derogation from Article 2(5) and 4. The European Parliament and the Article 6(a) and in accordance with Article Council, acting in accordance with the 4(2)(k) the European Parliament and the ordinary legislative procedure, shall Council, acting in accordance with the contribute to the achievement of the objec- ordinary legislative procedure and after tives referred to in this Article by adopting consulting the Economic and Social Committee measures in the following areas: and the Committee of the Regions, shall contribute to the achievement of the objec- (a) measures setting high standards of tives referred to in this Article through quality and safety of organs and substances adopting in order to meet common safety of human origin, blood and blood deriva- concerns: tives; these measures shall not prevent any State from maintaining or introducing (a) measures setting high standards of more stringent protective measures; quality and safety of organs and substances of human origin, blood and blood deriva- (b) measures in the veterinary and tives; these measures shall not prevent any phytosanitary ﬁ elds which have as their Member State from maintaining or intro- direct objective the protection of public ducing more stringent protective measures; health;

(b) measures in the veterinary and (c) measures setting high standards of phytosanitary ﬁ elds which have as their quality and safety for medicinal products direct objective the protection of public and devices for medical use; health; (d) incentive measures designed to protect (c) measures setting high standards of and improve human health and in partic- quality and safety for medicinal products ular to combat the major cross-border and devices for medical use. health scourges, measures concerning monitoring, early warning of and combating serious cross-border threats to health, and measures which have as their direct objective the protection of public health regarding tobacco and the abuse of alcohol.

183 PART V

5. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, may also adopt incentive measures designed to protect and improve human health and in particular to combat the major cross-border health scourges, measures concerning monitoring, early warning of and combating serious cross-border threats to health, and measures which have as their direct objective the protection of public health regarding tobacco and the abuse of alcohol, excluding any harmonisation of the laws and regulations of the Member States.

6. The Council, on a proposal from the Commission, may also adopt recommendations for the purposes set out in this Article.

7. Union action shall respect the responsi- 5. Union action shall respect the responsibilities of the Member States for the deﬁ ni- bilities of the States for the deﬁ nition of tion of their health policy and for the organ- their health policy and for the organisation isation and delivery of health services and and delivery of health services and medical medical care. The responsibilities of the care. The responsibilities of the States shall Member States shall include the manage- include the management of health services ment of health services and medical care and medical care and the allocation of the and the allocation of the resources assigned resources assigned to them. The measures to them. The measures referred to in referred to in paragraph 4(a) shall not affect paragraph 4(a) shall not affect national national provisions on the donation or provisions on the donation or medical use medical use of organs and blood. of organs and blood.

CONSUMER PROTECTION CONSUMER PROTECTION

Article 169 Article 339 (ex-Article 169 TFEU)

1. In order to promote the interests of 1. In order to promote the interests of consumers and to ensure a high level of consumers and to ensure a high level of consumer protection, the Union shall consumer protection, the Union shall contribute to protecting the health, safety contribute to protecting the health, safety and economic interests of consumers, as and economic interests of consumers, as well as to promoting their right to informa- well as to promoting their right to information, education and to organise themselves tion, education and to organise themselves in order to safeguard their interests. in order to safeguard their interests.

184 CHAPTER SIX

2. The Union shall contribute to the attain- 2. The Union shall contribute to the attainment of the objectives referred to in ment of the objectives referred to in paragraph 1 through: paragraph 1 through:

(a) measures adopted pursuant to Article (a) measures adopted pursuant to Article 114 in the context of the completion of the 314 in the context of the completion of the internal market; internal market;

(b) measures which support, supplement (b) measures which support, supplement and monitor the policy pursued by the and monitor the policy pursued by the Member States. States.

3. The European Parliament and the 3. The European Parliament and the Council, acting in accordance with the Council, acting in accordance with the ordinary legislative procedure and after ordinary legislative procedure, shall adopt consulting the Economic and Social the measures referred to in paragraph 2(b). Committee, shall adopt the measures referred to in paragraph 2(b).

4. Measures adopted pursuant to 4. Measures adopted pursuant to paragraph 3 shall not prevent any Member paragraph 3 shall not prevent any State State from maintaining or introducing from maintaining or introducing more more stringent protective measures. Such stringent protective measures. Such measures must be compatible with the measures must be compatible with the Treaties. The Commission shall be notiﬁ ed Fundamental Law. The Commission shall of them. be notiﬁ ed of them.

185 AGRICULTURE AND FISHERIES

CHAPTER SEVEN

The main innovation in this chapter is to separate fi sheries from agriculture, giving the common fi sheries policy its distinct set of objectives (Article 342). This change signals the enhanced political importance of the fi sheries sector, and will assist in the modernisation of the EU’s common fi sheries policy.

The objectives of the CAP are modernised, which should ease the process of reform.

Consistent with the logic of the Fundamental Law, the authority to ﬁ x farm prices and ﬁ sh quotas is transferred from the Council, on a proposal of the Commission, to the Commission itself (Article 346(3)).

AGRICULTURE AND FISHERIES AGRICULTURE AND FISHERIES

Article 38 Article 340 (ex-Article 38 TFEU)

1. The Union shall defi ne and implement a 1. The Union shall defi ne and implement a common agriculture and fi sheries policy. common agriculture and fi sheries policy.

The internal market shall extend to agricul- The internal market shall extend to agriculture, fi sheries and trade in agricultural ture, fi sheries and trade in agricultural products. ‘Agricultural products’ means the products. ‘Agricultural products’ means the products of the soil, of stock farming and of products of the soil, of stock farming and fi sheries and products of fi rst-stage products of fi rst-stage processing directly processing directly related to these related to these products. ‘Fishery products’ products. References to the common agricul- means aquatic organisms resulting from any tural policy or to agriculture, and the use of the fi shing activity or products derived thereof. term ‘agricultural’, shall be understood as also referring to fi sheries, having regard to the specifi c characteristics of this sector.

2. Save as otherwise provided in Articles 2. Save as otherwise provided in Articles 39 to 44, the rules laid down for the estab- 341 to 347, the rules laid down for the establishment and functioning of the internal lishment and functioning of the internal market shall apply to agricultural products. market shall apply to agricultural and fi shery products.

186 CHAPTER SEVEN

3. The products subject to the provisions of 3. The products subject to the provisions of Articles 39 to 44 are listed in Annex I. Articles 341 to 347 are listed in Annex I.

4. The operation and development of the 4. The operation and development of the internal market for agricultural products internal market for agricultural and fi shery must be accompanied by the establishment products must be accompanied by the estab- of a common agricultural policy. lishment of a common agricultural policy and a common fi sheries policy.

Article 39 Article 341 (ex-Article 39 TFEU)

1. The objectives of the common agricul- 1. The objectives of the common agricultural policy shall be: tural policy shall be:

(a) to increase agricultural productivity by (a) to increase agricultural productivity by promoting technical progress and by promoting technical progress and by ensuring the rational development of agri- ensuring the rational development of agricultural production and the optimum utili- cultural production and the optimum utilisation of the factors of production, in partic- sation of the factors of production, in particular labour; ular labour;

(b) thus to ensure a fair standard of living (b) thus to ensure a fair standard of living for the agricultural community, in partic- for the agricultural community; ular by increasing the individual earnings of persons engaged in agriculture; (c) to stabilise markets;

(d) to assure the availability of supplies; (e) to ensure food safety and animal welfare.

(e) to ensure that supplies reach consumers at reasonable prices.

2. In working out the common agricultural 2. In working out the common agricultural policy and the special methods for its appli- policy and the special methods for its application, account shall be taken of: cation, account shall be taken of the particular nature of agricultural activity, which (a) the particular nature of agricultural results from the social structure of agricul- activity, which results from the social ture and from structural and natural structure of agriculture and from structural disparities between the various agricultural and natural disparities between the various regions. agricultural regions;

(b) the need to eff ect the appropriate adjustments by degrees;

187 PART V

Article 342

1. The objectives of the common fi sheries policy shall be:

(a) to sustain fi sh stocks and conserve marine biological resources;

(b) to manage fi sheries by contributing to long-term social, economic and environmental sustainability;

(d) to stabilise markets;

(e) to assure the security of fi sh supplies;

(f) to ensure food safety and the welfare of fi sh.

2. In working out the common fi sheries policy and the special methods for its application, account shall be taken of the particular nature of fi shing activity, which results from the social structure of the fi sheries sector and from structural and natural disparities between the various maritime regions.

Article 40 Article 343 (ex-Article 40 TFEU)

1. In order to attain the objectives set out 1. In order to attain the objectives set out in Article 39, a common organisation of in Article 341, a common organisation of agricultural markets shall be established. agricultural markets shall be established.

This organisation shall take one of the This organisation shall take one of the following forms, depending on the product following forms, depending on the product concerned: concerned:

(a) common rules on competition; (a) common rules on competition;

(b) compulsory coordination of the various (b) compulsory coordination of the various national market organisations; national market organisations;

In order to attain the objectives set out in Article 342, a common organisation of the markets in fi shery and aquaculture products shall be established.

188 CHAPTER SEVEN

2. The common organisation established 2. The common organisations established in accordance with paragraph 1 may include in accordance with paragraph 1 may include all measures required to attain the objec- all measures required to attain the objectives set out in Article 39, in particular tives set out in Articles 341 and 342, in regulation of prices, aids for the production particular regulation of prices, aids for the and marketing of the various products, production and marketing of the various storage and carryover arrangements and products, marketing standards, consumer common machinery for stabilising imports information, storage and carryover arrange- or exports. ments and common machinery for stabilising imports or exports.

The common organisation shall be limited The common organisations shall be limited to pursuit of the objectives set out in Article to pursuit of the objectives set out in 39 and shall exclude any discrimination Articles 341 and 342 and shall exclude any between producers or consumers within the discrimination between producers or Union. consumers within the Union.

Any common price policy shall be based on Any common price policy shall be based on common criteria and uniform methods of common criteria and uniform methods of calculation. calculation.

3. In order to enable the common organisa- 3. In order to enable the common organisation referred to in paragraph 1 to attain its tions referred to in paragraph 1 to attain objectives, one or more agricultural their objectives, one or more agricultural guidance and guarantee funds may be set guidance and guarantee funds and a up. fi sheries and maritime fund may be set up.

Article 41 Article 344 (ex-Article 41 TFEU)

To enable the objectives set out in Article 39 To enable the objectives set out in Articles to be attained, provision may be made 341 and 342 to be attained, provision may be within the framework of the common agri- made within the framework of the common cultural policy for measures such as: agricultural and fi sheries policies for measures such as:

(a) an effective coordination of efforts in the (a) an effective coordination of efforts in spheres of vocational training, of research the spheres of vocational training, of scien- and of the dissemination of agricultural tifi c research and of the dissemination of knowledge; this may include joint ﬁ nancing knowledge; this may include joint ﬁ nancing of projects or institutions; of projects or institutions as well as data sharing;

(b) joint measures to promote consumption (b) joint measures to promote consumption of certain products. of certain products.

189 PART V

Article 42 Article 345 (ex-Article 42 TFEU)

The provisions of the Chapter relating to The provisions of the Chapter relating to rules on competition shall apply to produc- rules on competition shall apply to production of and trade in agricultural products tion of and trade in agricultural and fi shery only to the extent determined by the products only to the extent determined by European Parliament and the Council the European Parliament and the Council within the framework of Article 43(2) and in within the framework of Article 346(2) and accordance with the procedure laid down in accordance with the procedure laid down therein, account being taken of the objec- therein, account being taken of the objectives set out in Article 39. tives set out in Articles 341 and 342.

The Council, on a proposal from the Commis- The Commission may authorise the granting sion, may authorise the granting of aid: of aid:

(a) for the protection of enterprises handi- (a) for the protection of enterprises handi- capped by structural or natural conditions; capped by structural or natural conditions; (b) within the framework of economic (b) within the framework of economic development programmes. development programmes.

Article 43 Article 346 (ex-Article 43 TFEU)

1. The Commission shall submit proposals 1. The Commission shall submit proposals for working out and implementing the for implementing the common agricultural common agricultural policy, including the and fi sheries policies, including the replace- replacement of the national organisations ment of the national organisations by one of by one of the forms of common organisa- the forms of common organisation provided tion provided for in Article 40(1), and for for in Article 343(1). implementing the measures specifi ed in this Title.

These proposals shall take account of the These proposals shall take account of the interdependence of the agricultural matters interdependence of agricultural and fi sheries mentioned in this Title. matters.

2. The European Parliament and the 2. The European Parliament and the Council, acting in accordance with the Council, acting in accordance with the ordinary legislative procedure and after ordinary legislative procedure, shall consulting the Economic and Social establish the common organisations of agri- Committee, shall establish the common cultural and fi shery markets provided for in organisation of agricultural markets Article 343(1) and the other provisions provided for in Article 40(1) and the other necessary for the pursuit of the objectives of provisions necessary for the pursuit of the the common agricultural policy and the objectives of the common agricultural common ﬁ sheries policy. policy and the common ﬁ sheries policy.

190 CHAPTER SEVEN

3. The Council, on a proposal from the 3. The Commission shall adopt measures Commission, shall adopt measures on on fi xing prices, levies, aid and quantitative fi xing prices, levies, aid and quantitative limitations and on the fi xing and allocation limitations and on the fi xing and allocation of fi shing opportunities. of fi shing opportunities.

4. In accordance with paragraph 2, the 4. In accordance with paragraph 2, the national market organisations may be national market organisations may be replaced by the common organisation replaced by the common organisations provided for in Article 40(1) if: provided for in Article 343(1) if:

(a) the common organisation offers (a) the common organisation offers States Member States which are opposed to this which are opposed to this measure and measure and which have an organisation of which have an organisation of their own for their own for the production in question the production in question equivalent safe- equivalent safeguards for the employment guards for the employment and standard of and standard of living of the producers living of the producers concerned, account concerned, account being taken of the being taken of the adjustments that will be adjustments that will be possible and the possible and the specialisation that will be specialisation that will be needed with the needed with the passage of time; passage of time;

(b) such an organisation ensures conditions (b) such an organisation ensures conditions for trade within the Union similar to those for trade within the Union similar to those existing in a national market. existing in a national market.

5. If a common organisation for certain 5. If a common organisation for certain raw materials is established before a raw materials is established before a common organisation exists for the corre- common organisation exists for the corresponding processed products, such raw sponding processed products, such raw materials as are used for processed products materials as are used for processed products intended for export to third countries may intended for export to third countries may be imported from outside the Union. be imported from outside the Union.

Article 44 Article 347 ….. (ex-Article 44 TFEU) …..

191 TRANSPORT

CHAPTER EIGHT

The chapter on transport dates from the Treaty of Rome, at a time when Europe’s borders were almost closed, and is anomalous. We propose that transport is treated like any other service industry under normal internal market rules.

To the goals of the common transport policy we add a provision to allow the EU to take charge of modernising cross-border transport systems according to high standards of technology and ecology (Article 348(1)(d)). We insert in the same operational article the two still relevant substantive clauses from ex-Article 95(2) and ex-Article 97(3) TFEU.

Article 90 [delete] …..

Article 91 Article 348 (ex-Article 91 TFEU)

1. For the purpose of implementing Article 1. Taking into account the distinctive 90, and taking into account the distinctive features of transport, the European Parlia- features of transport, the European Parlia- ment and the Council shall, acting in ment and the Council shall, acting in accordance with the ordinary legislative accordance with the ordinary legislative procedure, lay down: procedure and after consulting the Economic and Social Committee and the (a) common rules applicable to interna- Committee of the Regions, lay down: tional transport to or from the territory of a State or passing across the territory of one (a) common rules applicable to interna- or more States; tional transport to or from the territory of a Member State or passing across the territory (b) the conditions under which non-resident of one or more Member States; carriers may operate transport services within a State; (b) the conditions under which non-resident carriers may operate transport services (c) measures to improve transport safety; within a Member State; (d) measures to modernise intra-state transport (c) measures to improve transport safety; across the Union according to the highest standards of ecology and technology; (d) any other appropriate provisions. (e) any other appropriate provisions.

192 CHAPTER EIGHT

2. When the measures referred to in 2. In the case of transport within the Union, paragraph 1 are adopted, account shall be discrimination which takes the form of carriers taken of cases where their application might charging diff erent rates and imposing diff erent seriously aff ect the standard of living and level conditions for the carriage of the same goods of employment in certain regions, and the over the same transport links on grounds of the operation of transport facilities. country of origin or of destination of the goods in question shall be prohibited.

3. Charges or dues in respect of the crossing of frontiers which are charged by a carrier in addition to the transport rates shall not exceed a reasonable level after taking the costs actually incurred thereby into account.

Article 92 [delete] …..

Article 93 Article 349 ..... (ex-Article 93 TFEU) .....

Articles 94–95 [delete] .....

Article 96 Article 350 ….. (ex-Article 96 TFEU) …..

Articles 97–100 [delete] ….

193 TRANS-EUROPEAN NETWORKS

CHAPTER NINE

Similarly to the previous chapter on transport, we upgrade the role of the Commis- sion and widen the scope of the ordinary legislative procedure with respect to the building of trans-European networks. We insert a mention of project bonds, particularly apt for cross-border investment.

Article 170 Article 351 ….. (ex-Article 170 TFEU) …..

Article 171 Article 352 (ex-Article 171 TFEU)

1. In order to achieve the objectives 1. In order to achieve the objectives referred to in Article 170, the Union: referred to in Article 351, the Union:

– shall establish a series of guidelines – shall establish a series of guidelines covering the objectives, priorities and broad covering the objectives, priorities and broad lines of measures envisaged in the sphere of lines of measures envisaged in the sphere trans-European networks; these guidelines of trans-European networks; these guide- shall identify projects of common interest, lines shall identify projects of common interest,

– shall implement any measures that may – shall implement any measures that may prove necessary to ensure the interopera- prove necessary to ensure the interopera- bility of the networks, in particular in the bility of the networks, in particular in the ﬁ eld of technical standardisation, ﬁ eld of technical standardisation,

– may support projects of common – may support projects of common interest supported by Member States, which interest which are identifi ed in the are identifi ed in the framework of the framework of the guidelines referred to in guidelines referred to in the fi rst indent, the fi rst indent, particularly through feasi- particularly through feasibility studies, loan bility studies, loan guarantees, interest-rate guarantees or interest-rate subsidies; the subsidies or project bonds; the Union may Union may also contribute, through the also contribute, through the Cohesion Fund Cohesion Fund set up pursuant to Article set up pursuant to Article 358, to the 177, to the fi nancing of specifi c projects in fi nancing of specifi c projects in States in Member States in the area of transport the area of transport infrastructure. infrastructure.

194 CHAPTER NINE

The Union’s activities shall take into The Union’s activities shall take into account the potential economic viability of account the potential economic viability of the projects. the projects.

2. Member States shall, in liaison with the 2. The Commission shall coordinate the Commission, coordinate among themselves the policies pursued at State level which may policies pursued at national level which may have a signiﬁ cant impact on the achieve- have a signiﬁ cant impact on the achievement of the objectives referred to in Article ment of the objectives referred to in Article 351. The Commission may, in close cooper- 170. The Commission may, in close cooperation with the State, take any useful initia- ation with the Member State, take any tive to promote such coordination. useful initiative to promote such coordination.

3. The Union may decide to cooperate with 3. The Union may decide to cooperate with third countries to promote projects of third countries to promote projects of mutual interest and to ensure the interoper- mutual interest and to ensure the interoper- ability of networks. ability of networks.

Article 172 Article 353 (ex-Article 172 TFEU)

The guidelines and other measures referred The guidelines and other measures referred to in Article 171(1) shall be adopted by the to in Article 352 shall be adopted by the European Parliament and the Council, European Parliament and the Council, acting in accordance with the ordinary legis- acting in accordance with the ordinary lative procedure and after consulting the legislative procedure. Economic and Social Committee and the Committee of the Regions.

Guidelines and projects of common interest Guidelines and projects of common interest which relate to the territory of a Member which relate to the territory of a Member State shall require the approval of the State shall require the approval of the Member State concerned. Member State concerned.

195 INDUSTRY

CHAPTER TEN

In the logic of the Fundamental Law, we streamline the Union’s industrial policy by strengthening the powers of the Commission to drive matters, as well as by removing the prohibition on the harmonisation of national laws (Article 354(3)).

A new sub-clause refers to the new technologies.

One may note in the context of general industrial policy the abolition of a speciﬁ c article of the Treaty of Lisbon on tourism on the grounds of its superﬂ uity (ex-Article 195 TFEU).

Article 173 Article 354 (ex-Article 173 TFEU)

1. The Union and the Member States shall 1. The Union shall contribute to the develop- ensure that the conditions necessary for the ment of Europe’s industry. competitiveness of the Union’s industry exist.

For that purpose, in accordance with a For that purpose, in accordance with a system of open and competitive markets, system of open and competitive markets, its their action shall be aimed at: action shall be aimed at:

– speeding up the adjustment of industry – speeding up the adjustment of industry to structural changes, to structural changes,

– encouraging an environment favourable – encouraging an environment favourable to initiative and to the development of to initiative and to the development of under- undertakings throughout the Union, partic- takings throughout the Union, particularly ularly small and medium-sized undertak- small and medium-sized undertakings, ings, – encouraging an environment favourable – encouraging an environment favourable to cooperation between undertakings, to cooperation between undertakings, – fostering better exploitation of the indus- – fostering better exploitation of the trial potential of policies of innovation, industrial potential of policies of innova- research and technological development, tion, research and technological development. – developing a strategy to help new technologies deliver sustainable economic growth.

196 CHAPTER TEN

2. The Member States shall consult each other 2. The Commission may take any useful in liaison with the Commission and, where initiative to promote the coordination of the necessary, shall coordinate their action. The industrial policies of the States, in particular Commission may take any useful initiative initiatives aiming at the establishment of to promote such coordination, in particular guidelines and indicators, the organisation initiatives aiming at the establishment of of exchange of best practice, and the prepa- guidelines and indicators, the organisation ration of the necessary elements for of exchange of best practice, and the prepa- periodic monitoring and evaluation. The ration of the necessary elements for European Parliament and the Council shall periodic monitoring and evaluation. The be kept fully informed. European Parliament shall be kept fully informed.

3. The Union shall contribute to the 3. The Union shall contribute to the achievement of the objectives set out in achievement of the objectives set out in paragraph 1 through the policies and activi- paragraph 1 through the policies and activities it pursues under other provisions of the ties it pursues under other provisions of the Treaties. The European Parliament and the Fundamental Law. The European Parliament Council, acting in accordance with the and the Council, acting in accordance with the ordinary legislative procedure and after ordinary legislative procedure, shall adopt consulting the Economic and Social measures to achieve the objectives referred to in Committee, may decide on specifi c measures in this Article. support of action taken in the Member States to achieve the objectives set out in paragraph 1, excluding any harmonisation of the laws and regulations of the Member States.

This Title shall not provide a basis for the This Article shall not provide a basis for the introduction by the Union of any measure introduction by the Union of any measure which could lead to a distortion of competi- which could lead to a distortion of competition or contains tax provisions or provisions tion or contains tax provisions or provisions relating to the rights and interests of relating to the rights and interests of employed persons. employed persons.

197 ECONOMIC, SOCIAL AND TERRITORIAL COHESION

CHAPTER ELEVEN

In this chapter the legislative procedure is normalised and the focus sharpened.

Article 174 Article 355 (ex-Article 174 TFEU)

In order to promote its overall harmonious In order to promote its overall harmonious development, the Union shall develop and development, the Union shall develop and pursue its actions leading to the strength- pursue its actions leading to the strengthening of its economic, social and territorial ening of its economic, social and territorial cohesion. cohesion.

In particular, the Union shall aim at In particular, the Union shall aim at reducing disparities between the levels of reducing disparities between the levels of development of the various regions and the development of the various regions and the backwardness of the least favoured regions. backwardness of the least favoured regions.

Among the regions concerned, particular Among the regions concerned, particular attention shall be paid to rural areas, areas attention shall be paid to rural areas, areas affected by industrial transition, and affected by industrial transition, and regions which suffer from severe and regions which suffer from severe and permanent natural or demographic permanent natural or demographic handicaps such as the northernmost handicaps such as the northernmost regions with very low population density regions with very low population density and island, cross-border and mountain and island, cross-border and mountain regions. regions.

198 CHAPTER ELEVEN

Article 175 Article 356 (ex-Article 175 TFEU)

Member States shall conduct their economic The Union shall conduct its economic policies and shall coordinate them in such a policies and implement the internal market in way as, in addition, to attain the objectives such a way as to attain the objectives set out set out in Article 174. The formulation and in Article 355. The Union shall also support implementation of the Union’s policies and the achievement of these objectives by the actions and the implementation of the internal action it takes through the Structural Funds market shall take into account the objectives set (European Agricultural Guidance and out in Article 174 and shall contribute to their Guarantee Fund, Guidance Section; achievement. The Union shall also support European Social Fund; European Regional the achievement of these objectives by the Development Fund), the European Invest- action it takes through the Structural Funds ment Bank and the other existing Financial (European Agricultural Guidance and Instruments. Guarantee Fund, Guidance Section; European Social Fund; European Regional Development Fund), the European Invest- ment Bank and the other existing Financial Instruments.

The Commission shall submit a report to The Commission shall submit a report to the European Parliament, the Council, the the European Parliament, the Council every Economic and Social Committee and the three years on the progress made towards Committee of the Regions every three years achieving economic, social and territorial on the progress made towards achieving cohesion and on the manner in which the economic, social and territorial cohesion various means provided for in this Article and on the manner in which the various have contributed to it. This report shall, if means provided for in this Article have necessary, be accompanied by appropriate contributed to it. This report shall, if proposals. necessary, be accompanied by appropriate proposals.

If speciﬁ c actions prove necessary outside If speciﬁ c actions prove necessary outside the Funds and without prejudice to the the Funds and without prejudice to the measures decided upon within the measures decided upon within the framework of the other Union policies, such framework of the other Union policies, such actions may be adopted by the Council actions may be adopted by the European acting in accordance with the ordinary legis- Parliament and the Council acting in accord- lative procedure and after consulting the ance with the ordinary legislative procedure. Economic and Social Committee and the Committee of the Regions.

Articles 176–178 Articles 357–359 ….. (ex-Articles 176–178 TFEU) …..

199 RESEARCH AND TECHNOLOGICAL DEVELOPMENT AND SPACE

CHAPTER TWELVE

Consistent with the changes made to the competences of the EU with respect to R&D (Article 19), the special law of the Council used by the Lisbon Treaty for the establishment of the multi-annual EU research programmes is replaced by the ordinary legislative procedure.

Articles 179–181 Articles 360–362 ….. (ex-Articles 179–181 TFEU) …..

Article 182 Article 363 (ex-Article 182 TFEU)

1. A multiannual framework programme, 1. A multiannual framework programme, setting out all the activities of the Union, shall setting out all the activities of the Union, be adopted by the European Parliament and shall be adopted by the European Parlia- the Council, acting in accordance with the ment and the Council, acting in accordance ordinary legislative procedure after consulting with the ordinary legislative procedure. the Economic and Social Committee.

The framework programme shall: The framework programme shall:

– establish the scientifi c and technological – establish the scientifi c and technological objectives to be achieved by the activities objectives to be achieved by the activities provided for in Article 180 and fi x the provided for in Article 361 and fi x the relevant priorities, relevant priorities,

– indicate the broad lines of such activities, – indicate the broad lines of such activities,

– fi x the maximum overall amount and – fi x the maximum overall amount and the detailed rules for Union fi nancial partic- the detailed rules for Union fi nancial ipation in the framework programme and participation in the framework programme the respective shares in each of the activi- and the respective shares in each of the ties provided for. activities provided for.

2. The framework programme shall be 2. The framework programme shall be adapted or supplemented as the situation adapted or supplemented as the situation changes. changes.

200 CHAPTER TWELVE

3. The framework programme shall be 3. The framework programme shall be implemented through specifi c programmes implemented through specifi c programmes developed within each activity. Each specifi c developed within each activity. Each specifi c programme shall defi ne the detailed rules programme shall defi ne the detailed rules for implementing it, fi x its duration and for implementing it, fi x its duration and provide for the means deemed necessary. provide for the means deemed necessary. The sum of the amounts deemed necessary, The sum of the amounts deemed necessary, fi xed in the specifi c programmes, may not fi xed in the specifi c programmes, may not exceed the overall maximum amount fi xed exceed the overall maximum amount fi xed for the framework programme and each for the framework programme and each activity. activity.

4. The Council, acting in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee, shall adopt the specifi c programmes.

5. As a complement to the activities planned in the multiannual framework programme, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall establish the measures necessary for the implementation of the European research area.

Articles 183–187 Articles 364–368 ….. (ex-Articles 183–187 TFEU) …..

Article 188 Article 369 (ex-Article 188 TFEU)

The Council, on a proposal from the Commis- sion and after consulting the European Parlia- ment and the Economic and Social Committee, shall adopt the provisions referred to in Article 187.

201 PART V

Article 189 Article 370 (ex-Article 189 TFEU)

1. To promote scientiﬁ c and technical 1. To promote scientiﬁ c and technical progress, industrial competitiveness and the progress, industrial competitiveness and implementation of its policies, the Union the implementation of its policies, the shall draw up a European space policy. To Union shall draw up a European space this end, it may promote joint initiatives, policy. To this end, it may promote joint support research and technological develop- initiatives, support research and technolog- ment and coordinate the efforts needed for ical development and coordinate the efforts the exploration and exploitation of space. needed for the exploration and exploitation of space.

2. To contribute to attaining the objectives 2. To contribute to attaining the objectives referred to in paragraph 1, the European referred to in paragraph 1, the European Parliament and the Council, acting in Parliament and the Council, acting in accordance with the ordinary legislative accordance with the ordinary legislative procedure, shall establish the necessary procedure, shall establish the necessary measures, which may take the form of a measures, which may take the form of a European space programme, excluding any European space programme. harmonisation of the laws and regulations of the Member States.

3. The Union shall establish any appro- 3. The Union shall establish any appropriate relations with the European Space priate relations with the European Space Agency. Agency.

4. This Article shall be without prejudice to the other provisions of this Title.

Article 190 Article 371 ….. (ex-Article 190 TFEU) …..

202 ENVIRONMENT

CHAPTER THIRTEEN

Combating climate change is added to the objectives of EU environment policy, and its decision-making procedures normalised. In Article 373, the special legislative procedure is proposed to replace the special law of the Council for the particularly sensitive areas of the policy which tread on national planning law. Consequent on the changes made in Article 313, the special character of ﬁ scal law is dropped.

The ﬁ nancing of EU environment policy becomes an integral part of the EU budget (deletion of ex-Article 192(4) TFEU).

Article 191 Article 372 (ex-Article 191 TFEU)

1. Union policy on the environment shall 1. Union policy on the environment shall contribute to pursuit of the following objec- contribute to pursuit of the following objectives: tives:

– combating climate change,

– preserving, protecting and improving – preserving, protecting and improving the quality of the environment, the quality of the environment,

– protecting human health, – protecting human health,

– prudent and rational utilisation of – prudent and rational utilisation of natural resources, natural resources,

– promoting measures at international – promoting measures at international level to deal with regional or worldwide level to deal with regional or worldwide environmental problems, and in particular environmental problems, and in particular combating climate change. combating climate change.

203 PART V

2. Union policy on the environment shall 2. Union policy on the environment shall aim at a high level of protection taking into aim at a high level of protection taking into account the diversity of situations in the account the diversity of situations in the various regions of the Union. It shall be various regions of the Union. It shall be based on the precautionary principle and on based on the precautionary principle and on the principles that preventive action should the principles that preventive action should be taken, that environmental damage be taken, that environmental damage should as a priority be rectiﬁ ed at source should as a priority be rectiﬁ ed at source and that the polluter should pay. and that the polluter should pay.

In this context, harmonisation measures In this context, harmonisation measures answering environmental protection answering environmental protection requirements shall include, where appro- requirements shall include, where appropriate, a safeguard clause allowing Member priate, a safeguard clause allowing States to States to take provisional measures, for non- take provisional measures, for non- economic environmental reasons, subject to economic environmental reasons, subject to a procedure of inspection by the Union. a procedure of inspection by the Union.

3. In preparing its policy on the environ- 3. In preparing its policy on the environment, the Union shall take account of: ment, the Union shall take account of:

– available scientiﬁ c and technical data, – available scientiﬁ c and technical data,

– environmental conditions in the various – environmental conditions in the various regions of the Union, regions of the Union,

– the potential beneﬁ ts and costs of action – the potential beneﬁ ts and costs of action or lack of action, or lack of action,

– the economic and social development of – the economic and social development of the Union as a whole and the balanced the Union as a whole and the balanced development of its regions. development of its regions.

4. Within their respective spheres of 4. Within their respective spheres of competence, the Union and the Member competence, the Union and the States shall States shall cooperate with third countries cooperate with third countries and with the and with the competent international organ- competent international organisations. The isations. The arrangements for Union coop- arrangements for Union policy may be the eration may be the subject of agreements subject of agreements between the Union between the Union and the third parties and the third parties concerned. concerned.

The previous subparagraph shall be without prejudice to Member States’ competence to negotiate in international bodies and to conclude international agreements.

204 CHAPTER THIRTEEN

Article 192 Article 373 (ex-Article 192 TFEU)

1. The European Parliament and the 1. The European Parliament and the Council, acting in accordance with the Council, acting in accordance with the ordinary legislative procedure and after ordinary legislative procedure, shall decide consulting the Economic and Social Committee what action is to be taken by the Union in and the Committee of the Regions, shall order to achieve the objectives referred to in decide what action is to be taken by the Article 372. Union in order to achieve the objectives referred to in Article 191.

2. By way of derogation from the decision- 2. Without prejudice to Article 313, the making procedure provided for in paragraph 1 European Parliament and the Council, acting and without prejudice to Article 114, the in accordance with the special legislative Council acting unanimously in accordance procedure, shall adopt: with a special legislative procedure and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, shall adopt:

(a) provisions primarily of a fi scal nature;

(b) measures affecting: (a) measures affecting:

– town and country planning, – town and country planning,

– quantitative management of water – quantitative management of water resources or affecting, directly or indirectly, resources or affecting, directly or indirectly, the availability of those resources, the availability of those resources,

– land use, with the exception of waste – land use, with the exception of waste management; management;

(c) measures signiﬁ cantly affecting a (b) measures signiﬁ cantly affecting a State’s Member State’s choice between different choice between different energy sources energy sources and the general structure of and the general structure of its energy its energy supply. supply.

The Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, may make the ordinary legislative procedure applicable to the matters referred to in the fi rst subparagraph.

205 PART V

3. General action programmes setting out 3. General action programmes setting out priority objectives to be attained shall be priority objectives to be attained and the adopted by the European Parliament and measures necessary for their implementa- the Council, acting in accordance with the tion shall be adopted by the European ordinary legislative procedure and after Parliament and the Council, acting in consulting the Economic and Social Committee accordance with the ordinary legislative and the Committee of the Regions. procedure.

The measures necessary for the implementation of these programmes shall be adopted under the terms of paragraph 1 or 2, as the case may be.

4. Without prejudice to certain measures adopted by the Union, the Member States shall fi nance and implement the environment policy.

5. Without prejudice to the principle that 4. Without prejudice to the principle that the polluter should pay, if a measure based the polluter should pay, if a measure based on the provisions of paragraph 1 involves on the provisions of paragraph 1 involves costs deemed disproportionate for the costs deemed disproportionate for the public authorities of a Member State, such public authorities of a Member State, such measure shall lay down appropriate provi- measure shall lay down appropriate provisions in the form of: sions in the form of:

– temporary derogations, and/or – temporary derogations, and/or

– ﬁ nancial support from the Cohesion – ﬁ nancial support from the Cohesion Fund set up pursuant to Article 177. Fund set up pursuant to Article 358.

Article 193 Article 374 ….. (ex-Article 193 TFEU) …..

206 ENERGY

CHAPTER FOURTEEN

Consistent with the changes proposed to environment policy, the energy chapter is revised to drop the absolute prohibition that EU policy must not affect a State’s right to determine its own choice of energy supply (Article 375(2)). The special legislative procedure replaces the special law of the Council in these cases.

Article 376 encapsulates the vestigial and important powers of the Union conferred under the Euratom Treaty in the matter of nuclear safety – which, under Article 19, becomes an exclusive competence of the Union.

This chapter as amended is a signiﬁ cant extension of the Union’s competence in energy supply policy and is commensurate with its existing powers on the demand side. The focus shifts from protecting individual and largely uncoordinated state interests to having dutiful care towards the environmental and energy interests of the Union as a whole. Without such a change the idea of a ‘European energy community’ will remain a chimera.

Article 194 Article 375 (ex-Article 194 TFEU)

1. In the context of the establishment and 1. In the context of the establishment and functioning of the internal market and with functioning of the internal market and with regard for the need to preserve and improve regard for the need to preserve and improve the environment, Union policy on energy the environment, the common energy policy shall aim, in a spirit of solidarity between of the Union shall aim, in a spirit of soli- Member States, to: darity between States, to:

(a) ensure the functioning of the energy (a) ensure the functioning of the energy market; market;

(b) ensure security of energy supply in the (b) ensure security of energy supply in the Union; Union;

(c) promote energy efﬁ ciency and energy (c) promote energy efﬁ ciency and energy saving and the development of new and saving and the development of new and renewable forms of energy; and renewable forms of energy; and

(d) promote the interconnection of energy (d) promote the interconnection of energy networks. networks.

207 PART V

2. Without prejudice to the application of 2. Without prejudice to the application of other provisions of the Treaties, the other provisions of the Fundamental Law, European Parliament and the Council, the European Parliament and the Council, acting in accordance with the ordinary legis- acting in accordance with the ordinary lative procedure, shall establish the legislative procedure, shall establish the measures necessary to achieve the objec- measures necessary to achieve the objectives in paragraph 1. Such measures shall be tives in paragraph 1. adopted after consultation of the Economic and Social Committee and the Committee of the Where such measures may affect a State’s Regions. determination of the conditions for exploiting its energy resources, its choice Such measures shall not affect a Member between different energy sources and the State’s right to determine the conditions for general structure of its energy supply, the exploiting its energy resources, its choice European Parliament and the Council shall between different energy sources and the act in accordance with the special legislative general structure of its energy supply, procedure, pursuant to Article 373(2)(b). without prejudice to Article 192(2)(c).

3. By way of derogation from paragraph 2, the Council, acting in accordance with a special legislative procedure, shall unanimously and after consulting the European Parliament, establish the measures referred to therein when they are primarily of a ﬁ scal nature.

Article 376

1. The Union shall establish a common policy in the fi eld of atomic energy aimed at achieving the following objectives:

(a) promote research and ensure the dissemination of technical information, (b) establish uniform safety standards for the nuclear industry, (c) ensure that nuclear materials are not diverted to purposes other than those for which they are intended, (d) exercise the right of ownership conferred upon it with respect to special fi ssile materials, (e) establish with other countries and international organisations such relations as will maintain progress in the peaceful uses of nuclear energy.

208 CHAPTER FOURTEEN

2. States shall consult the Commission ex ante on plans to develop nuclear installations. Each State shall provide the Commission with data relating to any plan for the disposal of radioactive waste in whatever form as will make it possible to determine whether the implementation of such plans is liable to result in the radioactive contamination of the water, soil or airspace. The Commission may carry out inspections within the States.

3. The Commission shall make proposals to the States with regard to the level of radioac- tivity. In cases of urgency, the Commission shall issue a decision requiring the State concerned to take, within a period laid down by the Commission, all necessary measures to prevent infringement of the health and safety regulations as determined by Union law.

4. An agency shall be established to monitor the respect for safety and security standards relating to nuclear installations.

5. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall lay down regulations and directives necessary to achieve these objectives.

TOURISM

Article 195 [delete] …..

209

PART VI FREEDOM, SECURITY AND JUSTICE WITHIN THE UNION

CHAPTER ONE

Major changes are made to the treaty in respect of the Union as an area of freedom, security and justice.

In general, we strengthen the role of the Commission and follow the logic of the rest of the Fundamental Law, which is to make the two chambers of the legislature co-equal and to normalise qualiﬁ ed majority voting in the Council plus co-decision with the Parliament (the ordinary legislative procedure). Where the Commission takes over executive powers from the Council, the legislature is given the power of revocation (Article 383). It is proposed to abolish the right of a quarter of the states to make legislative initiatives in the area of freedom, security and justice (ex-Article 76 TFEU).

Greater emphasis is placed on the principle of mutual recognition (Article 378).

In cases of emergency inﬂ ow of refugees, we empower the Commission to adopt provisional measures (Article 385). As far as the integration of immigrant populations is concerned, and action against crime, we drop the prohibition on the harmonisation of national law (Articles 386(4) and 391, respectively).

Sensitive issues, such as in the ﬁ eld of family law, will be enacted by the special legislative procedure, but the veto given by the Lisbon Treaty to any one national parliament is eliminated (Article 388(3)). Likewise, in matters of criminal justice and police, the ‘emergency brake’ given to any one state is dropped – as is the ‘automatic throttle’ towards enhanced cooperation (Articles 389(3), 390(3), 393(1) and 394(3)).

We take the step, only preﬁ gured in the Lisbon Treaty, of proposing that Eurojust takes on the form of an EU public prosecutor, with wider powers, by eliminating the special law of the Council and the veto power of the European Council (Article 393) (1) and (4).

211 PART VI

AREA OF FREEDOM, SECURITY AREA OF FREEDOM, AND JUSTICE SECURITY AND JUSTICE

Article 67 Article 377 (ex-Article 67 TFEU)

1. The Union shall constitute an area of 1. The Union shall constitute an area of freedom, security and justice with respect freedom, security and justice with respect for fundamental rights and the different for fundamental rights and the different legal systems and traditions of the Member legal systems and traditions of the States. States.

2. It shall ensure the absence of internal 2. It shall ensure the absence of internal border controls for persons and shall frame border controls for persons and shall frame a common policy on asylum, immigration a common policy on asylum, immigration and external border control, based on soli- and external border control, based on solidarity between Member States, which is fair darity between States and citizens, which is towards third-country nationals. For the fair towards third-country nationals. For the purpose of this Title, stateless persons shall purpose of this Chapter, stateless persons be treated as third-country nationals. shall be treated as third-country nationals.

3. The Union shall endeavour to ensure a 3. The Union shall endeavour to ensure a high level of security through measures to high level of security through measures to prevent and combat crime, racism and xeno- prevent and combat crime, racism and xeno- phobia, and through measures for coordina- phobia, and through measures for coordination and cooperation between police and tion and cooperation between police and judicial authorities and other competent judicial authorities and other competent authorities, as well as through the mutual authorities, as well as through the mutual recognition of judgments in criminal recognition of judgments in criminal matters and, if necessary, through the matters and, if necessary, through the approximation of criminal laws. approximation of criminal laws.

4. The Union shall facilitate access to 4. The Union shall facilitate access to justice, in particular through the principle justice, in particular through the principle of mutual recognition of judicial and extra- of mutual recognition of judicial and extrajudicial decisions in civil matters. judicial decisions in civil matters.

Articles 68–69 [delete] …..

212 CHAPTER ONE

Article 70 Article 378 (ex-Article 70 TFEU)

Without prejudice to Articles 258, 259 and Without prejudice to Articles 54, 55 and 56, 260, the Council may, on a proposal from the the European Parliament and the Council, Commission, adopt measures laying down acting in accordance with the ordinary legisla- the arrangements whereby Member States, tive procedure, may adopt measures laying in collaboration with the Commission, down the arrangements whereby States, in conduct objective and impartial evaluation of collaboration with the Commission, facili- the implementation of the Union policies tate full application of the principle of referred to in this Title by Member States’ mutual recognition. authorities, in particular in order to facilitate full application of the principle of mutual recognition. The European Parliament and national Parliaments shall be informed of the content and results of the evaluation.

Articles 71–72 Articles 379–380 ….. (ex-Articles 71–72 TFEU) .....

Article 73 Article 381 (ex-Article 73 TFEU)

It shall be open to Member States to It shall be open to States, after consulting the organise between themselves and under Commission, to organise between them- their responsibility such forms of cooper- selves and under their responsibility such ation and coordination as they deem appro- forms of cooperation and coordination as priate between the competent departments they deem appropriate between the of their administrations responsible for competent departments of their administra- safeguarding national security. tions responsible for safeguarding national security. The European Parliament and the parliaments of the States shall be kept informed.

Article 74 Article 382 (ex-Article 74 TFEU)

The Council shall adopt measures to ensure The European Parliament and the Council, in administrative cooperation between the accordance with the ordinary legislative relevant departments of the Member States procedure, shall adopt measures to ensure in the areas covered by this Title, as well as administrative cooperation between the between those departments and the relevant departments of the States in the Commission. It shall act on a Commission area of freedom, security and justice, as well as proposal, subject to Article 76, and after between those departments and the consulting the European Parliament. Commission.

213 PART VI

Article 75 Article 383 (ex-Article 75 TFEU)

Where necessary to achieve the objectives Where necessary to achieve the objectives set out in Article 67, as regards preventing set out in Article 377, as regards preventing and combating terrorism and related activi- and combating terrorism and related activities, the European Parliament and the ties, the European Parliament and the Council, acting by means of regulations in Council, acting by means of regulations in accordance with the ordinary legislative accordance with the ordinary legislative procedure, shall defi ne a framework for procedure, shall defi ne a framework for administrative measures with regard to administrative measures with regard to capital movements and payments, such as capital movements and payments, such as the freezing of funds, fi nancial assets or the freezing of funds, fi nancial assets or economic gains belonging to, or owned or economic gains belonging to, or owned or held by, natural or legal persons, groups or held by, natural or legal persons, groups or non-State entities. non-State entities.

The Council, on a proposal from the Commis- The Commission shall adopt measures to sion, shall adopt measures to implement the implement the framework referred to in the framework referred to in the ﬁ rst ﬁ rst paragraph. The decisions of the Commis- paragraph. sion shall enter into force after a period of two weeks if no objection has been expressed either by the European Parliament, acting pursuant to Article 12(8), or by the Council, acting pursuant to Article 14(5).

The acts referred to in this Article shall The acts referred to in this Article shall include necessary provisions on legal safe- include necessary provisions on legal safeguards. guards.

Article 76

..... [delete]

214 CHAPTER ONE

POLICIES ON BORDER CHECKS, BORDERS CONTROLS ASYLUM AND IMMIGRATION

Article 77 Article 384 (ex-Article 77 TFEU)

1. The Union shall develop a policy with a 1. The Union shall establish a policy with a view to: view to:

(a) ensuring the absence of any controls on (a) ensuring the absence of any controls on persons, whatever their nationality, when persons, whatever their nationality, when crossing internal borders; crossing internal borders;

(b) carrying out checks on persons and (b) carrying out checks on persons and efﬁ cient monitoring of the crossing of efﬁ cient monitoring of the crossing of external borders; external borders;

(c) the gradual introduction of an integrated (c) the gradual introduction of an integrated management system for external borders. management system for external borders.

2. For the purposes of paragraph 1, the 2. The European Parliament and the European Parliament and the Council, Council, acting in accordance with the acting in accordance with the ordinary legis- ordinary legislative procedure, shall adopt lative procedure, shall adopt measures measures concerning: concerning:

(a) the common policy on visas and other (a) the common policy on visas and other short-stay residence permits; short-stay residence permits;

(b) the checks to which persons crossing (b) the checks to which persons crossing external borders are subject; external borders are subject;

(c) the conditions under which nationals of (c) the conditions under which nationals of third countries shall have the freedom to third countries shall have the freedom to travel within the Union for a short period; travel within the Union for a short period;

(d) any measure necessary for the gradual (d) any measure necessary for the gradual establishment of an integrated management establishment of an integrated management system for external borders; system for external borders;

(e) the absence of any controls on persons, (e) the issuance of passports, identity cards, whatever their nationality, when crossing residence permits or any other such internal borders. document;

(f) the absence of any controls on persons, whatever their nationality, when crossing internal borders.

215 PART VI

3. If action by the Union should prove 3. If action by the Union should prove necessary to facilitate the exercise of the right necessary to facilitate the exercise of the referred to in Article 20(2)(a), and if the right referred to in Article 260(2)(a), and if Treaties have not provided the necessary the Fundamental Law has not provided the powers, the Council, acting in accordance with necessary powers, the European Parliament a special legislative procedure, may adopt and the Council, acting in accordance with provisions concerning passports, identity the special legislative procedure, may adopt cards, residence permits or any other such provisions concerning passports, identity document. The Council shall act unanimously cards, residence permits or any other such after consulting the European Parliament. document.

4. This Article shall not affect the compe- 4. This Article shall not affect the competence of the Member States concerning the tence of the States concerning the geograph- geographical demarcation of their borders, ical demarcation of their borders, in accord- in accordance with international law. ance with international law.

ASYLUM

Article 78 Article 385 (ex-Article 78 TFEU)

1. The Union shall develop a common 1. The Union shall establish a common policy on asylum, subsidiary protection and policy on asylum, subsidiary protection and temporary protection with a view to offering temporary protection with a view to offering appropriate status to any third-country appropriate status to any third-country national requiring international protection national requiring international protection and ensuring compliance with the principle and ensuring compliance with the principle of non-refoulement. This policy must be in of non-refoulement. This policy must be in accordance with the Geneva Convention of accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and 1967 relating to the status of refugees, and other relevant treaties. other relevant treaties.

2. For the purposes of paragraph 1, the 2. For the purposes of paragraph 1, the European Parliament and the Council, European Parliament and the Council, acting in accordance with the ordinary legis- acting in accordance with the ordinary lative procedure, shall adopt measures for a legislative procedure, shall adopt measures common European asylum system for a common European asylum system comprising: comprising:

(a) a uniform status of asylum for nationals (a) a uniform status of asylum for nationals of third countries, valid throughout the of third countries, valid throughout the Union; Union;

(b) a uniform status of subsidiary protec- (b) a uniform status of subsidiary protection for nationals of third countries who, tion for nationals of third countries who, without obtaining European asylum, are in without obtaining European asylum, are in need of international protection; need of international protection;

216 CHAPTER ONE

(c) a common system of temporary protec- (c) a common system of temporary protection for displaced persons in the event of a tion for displaced persons in the event of a massive inﬂ ow; massive inﬂ ow;

(d) common procedures for the granting (d) common procedures for the granting and withdrawing of uniform asylum or and withdrawing of uniform asylum or subsidiary protection status; subsidiary protection status;

(e) criteria and mechanisms for deter- (e) criteria and mechanisms for determining which Member State is responsible mining which State is responsible for for considering an application for asylum or considering an application for asylum or subsidiary protection; subsidiary protection;

(f) standards concerning the conditions for (f) standards concerning the conditions for the reception of applicants for asylum or the reception of applicants for asylum or subsidiary protection; subsidiary protection;

(g) partnership and cooperation with third (g) partnership and cooperation with third countries for the purpose of managing countries for the purpose of managing inﬂ ows of people applying for asylum or inﬂ ows of people applying for asylum or subsidiary or temporary protection. subsidiary or temporary protection.

3. In the event of one or more Member 3. In the event of one or more States being States being confronted by an emergency confronted by an emergency situation char- situation characterised by a sudden infl ow acterised by a sudden infl ow of nationals of of nationals of third countries, the Council, third countries, the Commission may adopt on a proposal from the Commission, may provisional measures for the benefi t of the adopt provisional measures for the benefi t State(s) concerned. It shall act after of the Member State(s) concerned. It shall consulting the European Parliament and the act after consulting the European Parlia- Council. ment.

IMMIGRATION

Article 79 Article 386 (ex-Article 79 TFEU)

1. The Union shall develop a common 1. The Union shall establish a common immigration policy aimed at ensuring, at all immigration policy aimed at ensuring, at stages, the effi cient management of all stages, the effi cient management of migration fl ows, fair treatment of third- migration fl ows, fair treatment of third- country nationals residing legally in country nationals residing legally in States, Member States, and the prevention of, and and the prevention of, and enhanced enhanced measures to combat, illegal measures to combat, illegal immigration immigration and traffi cking in human and traffi cking in human beings. beings.

217 PART VI

2. For the purposes of paragraph 1, the 2. For the purposes of paragraph 1, the European Parliament and the Council, European Parliament and the Council, acting in accordance with the ordinary legis- acting in accordance with the ordinary lative procedure, shall adopt measures in legislative procedure, shall adopt measures the following areas: in the following areas:

(a) the conditions of entry and residence, (a) the conditions of entry and residence, and standards on the issue by Member and standards on the issue by States of States of long-term visas and residence long-term visas and residence permits, permits, including those for the purpose of including those for the purpose of family family reuniﬁ cation; reuniﬁ cation;

(b) the deﬁ nition of the rights of third- (b) the deﬁ nition of the rights of third- country nationals residing legally in a country nationals residing legally in a State, Member State, including the conditions including the conditions governing freedom governing freedom of movement and of of movement and of residence in other residence in other Member States; States;

(c) illegal immigration and unauthorised (c) illegal immigration and unauthorised residence, including removal and repatria- residence, including removal and repatriation of persons residing without authorisation of persons residing without authorisation; tion;

(d) combatting trafﬁ cking in persons, in (d) combatting trafﬁ cking in persons, in particular women and children. particular women and children.

3. The Union may conclude agreements 3. The Union may conclude agreements with third countries for the readmission to with third countries for the readmission to their countries of origin or provenance of their countries of origin or provenance of third-country nationals who do not or who third-country nationals who do not or who no longer fulﬁ l the conditions for entry, no longer fulﬁ l the conditions for entry, presence or residence in the territory of one presence or residence in the territory of one of the Member States. of the States.

4. The European Parliament and the 4. The European Parliament and the Council, acting in accordance with the Council, acting in accordance with the ordinary legislative procedure, may establish ordinary legislative procedure, may measures to provide incentives and support establish measures to provide incentives for the action of Member States with a view and support for the action of States with a to promoting the integration of third- view to promoting the integration of third- country nationals residing legally in their country nationals residing legally in their territories, excluding any harmonisation of the territories. laws and regulations of the Member States.

5. This Article shall not aff ect the right of Member States to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed.

218 CHAPTER ONE

Article 80 Article 387 ….. (ex-Article 80 TFEU) …..

JUDICIAL COOPERATION JUDICIAL COOPERATION IN CIVIL MATTERS IN CIVIL MATTERS

Article 81 Article 388 (ex-Article 81 TFEU)

1. The Union shall develop judicial cooper- 1. The Union shall establish judicial coop- ation in civil matters having cross-border eration in civil matters having cross-border implications, based on the principle of implications, based on the principle of mutual recognition of judgments and of mutual recognition of judgments and of decisions in extrajudicial cases. Such coop- decisions in extrajudicial cases. Such cooperation may include the adoption of eration may include the adoption of measures for the approximation of the laws measures for the approximation of the laws and regulations of the Member States. and regulations of the States.

2. For the purposes of paragraph 1, the 2. For the purposes of paragraph 1, the European Parliament and the Council, European Parliament and the Council, acting in accordance with the ordinary legis- acting in accordance with the ordinary lative procedure, shall adopt measures, legislative procedure, shall adopt measures, particularly when necessary for the proper particularly when necessary for the proper functioning of the internal market, aimed functioning of the internal market, aimed at ensuring: at ensuring:

(a) the mutual recognition and enforcement (a) the mutual recognition and enforcement between Member States of judgments and between States of judgments and of of decisions in extrajudicial cases; decisions in extrajudicial cases;

(b) the cross-border service of judicial and (b) the cross-border service of judicial and extrajudicial documents; extrajudicial documents;

(c) the compatibility of the rules applicable (c) the compatibility of the rules applicable in the Member States concerning conﬂ ict of in the States concerning conﬂ ict of laws and laws and of jurisdiction; of jurisdiction;

(d) cooperation in the taking of evidence; (d) cooperation in the taking of evidence;

(e) effective access to justice; (e) effective access to justice;

(f) the elimination of obstacles to the (f) the elimination of obstacles to the proper functioning of civil proceedings, if proper functioning of civil proceedings, if necessary by promoting the compatibility of necessary by promoting the compatibility of the rules on civil procedure applicable in the rules on civil procedure applicable in the Member States; the States;

(g) the development of alternative methods (g) the development of alternative methods of dispute settlement; of dispute settlement;

219 PART VI

(h) support for the training of the judiciary (h) support for the training of the judiciary and judicial staff. and judicial staff.

3. Notwithstanding paragraph 2, measures 3. Notwithstanding paragraph 2, measures concerning family law with cross-border concerning family law with cross-border implications shall be established by the implications shall be established by the Council, acting in accordance with a special European Parliament and the Council in legislative procedure. The Council shall act accordance with the special legislative unanimously after consulting the European procedure. Parliament.

The Council, on a proposal from the Commis- sion, may adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act unanimously after consulting the European Parliament.

The proposal referred to in the second subparagraph shall be notifi ed to the national Parlia- ments. If a national Parliament makes known its opposition within six months of the date of such notifi cation, the decision shall not be adopted. In the absence of opposition, the Council may adopt the decision.

JUDICIAL COOPERATION JUDICIAL COOPERATION IN CRIMINAL MATTERS IN CRIMINAL MATTERS

Article 82 Article 389 (ex-Article 82 TFEU)

1. Judicial cooperation in criminal matters 1. Judicial cooperation in criminal matters in the Union shall be based on the principle in the Union shall be based on the principle of mutual recognition of judgments and of mutual recognition of judgments and judicial decisions and shall include the judicial decisions and shall include the approximation of the laws and regulations approximation of the laws and regulations of the Member States in the areas referred of the States in the areas referred to in to in paragraph 2 and in Article 83. paragraph 2 and in Article 390.

The European Parliament and the Council, The European Parliament and the Council, acting in accordance with the ordinary legis- acting in accordance with the ordinary legislative procedure, shall adopt measures to: lative procedure, shall adopt measures to:

(a) lay down rules and procedures for (a) lay down rules and procedures for ensuring recognition throughout the Union ensuring recognition throughout the Union of all forms of judgments and judicial of all forms of judgments and judicial decisions; decisions;

220 CHAPTER ONE

(b) prevent and settle conﬂ icts of jurisdic- (b) prevent and settle conﬂ icts of jurisdiction between Member States; tion between States;

(c) support the training of the judiciary and (c) support the training of the judiciary and judicial staff; judicial staff;

(d) facilitate cooperation between judicial or (d) facilitate cooperation between judicial or equivalent authorities of the Member States equivalent authorities of the States in in relation to proceedings in criminal relation to proceedings in criminal matters matters and the enforcement of decisions. and the enforcement of decisions.

2. To the extent necessary to facilitate 2. To the extent necessary to facilitate mutual recognition of judgments and mutual recognition of judgments and judicial decisions and police and judicial judicial decisions and police and judicial cooperation in criminal matters having a cooperation in criminal matters having a cross-border dimension, the European cross-border dimension, the European Parliament and the Council may, by means Parliament and the Council may, by means of directives adopted in accordance with the of directives adopted in accordance with the ordinary legislative procedure, establish ordinary legislative procedure, establish minimum rules. Such rules shall take into minimum rules. Such rules shall take into account the differences between the legal account the differences between the legal traditions and systems of the Member traditions and systems of the States. States.

They shall concern: They shall concern inter alia:

(a) mutual admissibility of evidence (a) mutual admissibility of evidence between Member States; between States;

(b) the rights of individuals in criminal (b) the rights of individuals in criminal procedure; procedure;

(d) any other specifi c aspects of criminal procedure which the Council has identifi ed in advance by a decision; for the adoption of such a decision, the Council shall act unanimously after obtaining the consent of the European Parliament.

Adoption of the minimum rules referred to Adoption of the minimum rules referred to in this paragraph shall not prevent Member in this paragraph shall not prevent States States from maintaining or introducing a from maintaining or introducing a higher higher level of protection for individuals. level of protection for individuals.

221 PART VI

3. Where a member of the Council 3. Where a member of the Council considers that a draft directive as referred to considers that a draft directive as referred to in paragraph 2 would affect fundamental in paragraph 2 would affect fundamental aspects of its criminal justice system, it may aspects of its criminal justice system, the request that the draft directive be referred to the law shall be adopted in accordance with the European Council. In that case, the ordinary special legislative procedure. legislative procedure shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.

Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft directive concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.

Article 83 Article 390 (ex-Article 83 TFEU)

1. The European Parliament and the 1. The European Parliament and the Council may, by means of directives Council may, by means of directives adopted in accordance with the ordinary adopted in accordance with the ordinary legislative procedure, establish minimum legislative procedure, establish minimum rules concerning the deﬁ nition of criminal rules concerning the deﬁ nition of criminal offences and sanctions in the areas of offences and sanctions in the areas of particularly serious crime with a cross- particularly serious crime with a cross- border dimension resulting from the nature border dimension resulting from the nature or impact of such offences or from a special or impact of such offences or from a special need to combat them on a common basis. need to combat them on a common basis.

These areas of crime are the following: These areas of crime are the following: terrorism, traffi cking in human beings and terrorism, traffi cking in human beings and sexual exploitation of women and children, sexual exploitation of women and children, illicit drug traffi cking, illicit arms traf- illicit drug traffi cking, illicit arms traffi cking, money laundering, corruption, fi cking, money laundering, corruption, counterfeiting of means of payment, counterfeiting of means of payment, computer crime and organised crime. computer crime and organised crime.

222 CHAPTER ONE

On the basis of developments in crime, the On the basis of developments in crime, the Council may adopt a decision identifying Commission may propose to the European other areas of crime that meet the criteria Parliament and the Council a decision iden- speciﬁ ed in this paragraph. It shall act tifying other areas of crime that meet the unanimously after obtaining the consent of the criteria speciﬁ ed in this paragraph. The European Parliament. Council shall act by a majority of three quarters of the States. The Parliament shall act by a majority of its component Members.

2. If the approximation of criminal laws 2. If the approximation of criminal laws and regulations of the Member States and regulations of the States proves proves essential to ensure the effective essential to ensure the effective implemen- implementation of a Union policy in an area tation of a Union policy in an area which which has been subject to harmonisation has been subject to harmonisation measures, directives may establish measures, directives may establish minimum rules with regard to the deﬁ ni- minimum rules with regard to the deﬁ nition of criminal offences and sanctions in tion of criminal offences and sanctions in the area concerned. Such directives shall be the area concerned. adopted by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article 76.

3. Where a member of the Council 3. Where a member of the Council considers that a draft directive as referred to considers that a draft directive as referred to in paragraph 1 or 2 would affect funda- in paragraph 1 or 2 would affect fundamental aspects of its criminal justice mental aspects of its criminal justice system, it may request that the draft directive system, the law shall be adopted in accordance be referred to the European Council. In that with the special legislative procedure. case, the ordinary legislative procedure shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.

223 PART VI

Article 84 Article 391 (ex-Article 84 TFEU)

The European Parliament and the Council, The European Parliament and the Council, acting in accordance with the ordinary legis- acting in accordance with the ordinary lative procedure, may establish measures to legislative procedure, may establish promote and support the action of Member measures to promote and support the action States in the ﬁ eld of crime prevention, of the States in the ﬁ eld of crime preven- excluding any harmonisation of the laws and tion. regulations of the Member States.

Article 85 Article 392 ..... (ex-Article 85 TFEU) .....

Article 86 Article 393 (ex-Article 86 TFEU)

1. In order to combat crimes affecting the 1. In order to combat crimes affecting the fi nancial interests of the Union, the fi nancial interests of the Union, the Council, by means of regulations adopted in European Parliament and the Council, by accordance with a special legislative means of regulations adopted in accordance procedure, may establish a European Public with the special legislative procedure, may Prosecutor’s Offi ce from Eurojust. The establish a European Public Prosecutor’s Council shall act unanimously after obtaining Offi ce from Eurojust. the consent of the European Parliament.

In the absence of unanimity in the Council, a group of at least nine Member States may request that the draft regulation be referred to the European Council. In that case, the procedure in the Council shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council for adoption.

Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft regulation concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.

224 CHAPTER ONE

2. The European Public Prosecutor’s Offi ce 2. The European Public Prosecutor’s Offi ce shall be responsible for investigating, prose- shall be responsible for investigating, prose- cuting and bringing to judgment, where cuting and bringing to judgment, where appropriate in liaison with Europol, the appropriate in liaison with Europol, the perpetrators of, and accomplices in, perpetrators of, and accomplices in, offences against the Union’s fi nancial offences against the Union’s fi nancial interests, as determined by the regulation interests, as determined by the regulation provided for in paragraph 1. It shall exercise provided for in paragraph 1. It shall exercise the functions of prosecutor in the the functions of prosecutor in the competent courts of the Member States in competent courts of the States in relation to relation to such offences. such offences.

3. The regulations referred to in paragraph 3. The regulations referred to in paragraph 1 shall determine the general rules appli- 1 shall determine the general rules applicable to the European Public Prosecutor’s cable to the European Public Prosecutor’s Ofﬁ ce, the conditions governing the perfor- Ofﬁ ce, the conditions governing the performance of its functions, the rules of mance of its functions, the rules of procedure applicable to its activities, as well procedure applicable to its activities, as well as those governing the admissibility of as those governing the admissibility of evidence, and the rules applicable to the evidence, and the rules applicable to the judicial review of procedural measures judicial review of procedural measures taken by it in the performance of its taken by it in the performance of its functions. functions.

4. The European Council may, at the same 4. The European Parliament and the time or subsequently, adopt a decision Council, in accordance with the special legisla- amending paragraph 1 in order to extend tive procedure, may, at the same time or the powers of the European Public Prosecu- subsequently, adopt a decision amending tor’s Ofﬁ ce to include serious crime having paragraph 1 in order to extend the powers a cross-border dimension and amending of the European Public Prosecutor’s Ofﬁ ce accordingly paragraph 2 as regards the to include serious crime having a cross- perpetrators of, and accomplices in, serious border dimension and amending accord- crimes affecting more than one Member ingly paragraph 2 as regards the perpetra- State. The European Council shall act unani- tors of, and accomplices in, serious crimes mously after obtaining the consent of the affecting more than one State. European Parliament and after consulting the Commission.

225 PART VI

POLICE COOPERATION POLICE COOPERATION

Article 87 Article 394 (ex-Article 87 TFEU)

1. The Union shall establish police cooper- 1. The Union shall establish police cooperation involving all the Member States’ ation involving all the States’ competent competent authorities, including police, authorities, including police, customs and customs and other specialised law enforce- other specialised law enforcement services ment services in relation to the prevention, in relation to the prevention, detection and detection and investigation of criminal investigation of criminal offences. offences.

(a) the collection, storage, processing, (a) the collection, storage, processing, analysis and exchange of relevant informa- analysis and exchange of relevant information; tion;

(b) support for the training of staff, and (b) support for the training of staff, and cooperation on the exchange of staff, on cooperation on the exchange of staff, on equipment and on research into crime- equipment and on research into crime- detection; detection;

(c) common investigative techniques in (c) common investigative techniques in relation to the detection of serious forms of relation to the detection of serious forms of organised crime. organised crime.

3. The Council, acting in accordance with 3. The European Parliament and the a special legislative procedure, may Council, by means of regulations adopted in establish measures concerning operational accordance with the special legislative cooperation between the authorities procedure, may establish measures referred to in this Article. The Council shall concerning operational cooperation act unanimously after consulting the European between the authorities referred to in this Parliament. Article.

In case of the absence of unanimity in the Council, a group of at least nine Member States may request that the draft measures be referred to the European Council. In that case, the procedure in the Council shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council for adoption.

226 CHAPTER ONE

Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft measures concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.

The specifi c procedure provided for in the second and third subparagraphs shall not apply to acts which constitute a development of the Schengen acquis.

Article 88 Article 395 (ex-Article 88 TFEU)

1. Europol’s mission shall be to support 1. Europol’s mission shall be to support and strengthen action by the Member and strengthen action by the States’ police States’ police authorities and other law authorities and other law enforcement enforcement services and their mutual services and their mutual cooperation in cooperation in preventing and combating preventing and combating serious crime serious crime affecting two or more affecting two or more States, terrorism and Member States, terrorism and forms of forms of crime which affect a common crime which affect a common interest interest covered by a Union policy. covered by a Union policy.

2. The European Parliament and the 2. The European Parliament and the Council, by means of regulations adopted in Council, by means of regulations adopted in accordance with the ordinary legislative accordance with the ordinary legislative procedure, shall determine Europol’s procedure, shall determine Europol’s structure, operation, ﬁ eld of action and structure, operation, ﬁ eld of action and tasks. These tasks may include: tasks. These tasks may include:

(a) the collection, storage, processing, analysis (a) the collection, storage, processing, and exchange of information, in particular analysis and exchange of information, in that forwarded by the authorities of the particular that forwarded by the authorities Member States or third countries or bodies; of the States or third countries or bodies;

(b) the coordination, organisation and (b) the coordination, organisation and implementation of investigative and opera- implementation of investigative and operational action carried out jointly with the tional action carried out jointly with the Member States’ competent authorities or in States’ competent authorities or in the the context of joint investigative teams, context of joint investigative teams, where where appropriate in liaison with Eurojust. appropriate in liaison with Eurojust.

227 PART VI

These regulations shall also lay down the These regulations shall also lay down the procedures for scrutiny of Europol’s activi- procedures for scrutiny of Europol’s activities by the European Parliament, together ties by the European Parliament, together with national Parliaments. with national Parliaments.

3. Any operational action by Europol must 3. Any operational action by Europol must be carried out in liaison and in agreement be carried out in liaison and in agreement with the authorities of the Member State or with the authorities of the State or States States whose territory is concerned. The whose territory is concerned. The applica- application of coercive measures shall be tion of coercive measures shall be the the exclusive responsibility of the competent exclusive responsibility of the competent national authorities. national authorities.

Article 89 Article 396 (ex-Article 89 TFEU)

The Council, acting in accordance with a The European Parliament and Council, acting special legislative procedure, shall lay down in accordance with the special legislative the conditions and limitations under which procedure, shall lay down the conditions and the competent authorities of the Member limitations under which the competent States referred to in Articles 82 and 87 may authorities of the States referred to in operate in the territory of another Member Articles 389 and 394 may operate in the State in liaison and in agreement with the territory of another State in liaison and in authorities of that State. The Council shall agreement with the authorities of that State. act unanimously after consulting the European Parliament.

228 CIVIL PROTECTION

CHAPTER TWO

We lift the prohibition on the harmonisation of national legislation.

CIVIL PROTECTION CIVIL PROTECTION

Article 196 Article 397 (ex-Article 196 TFEU)

1. The Union shall encourage cooperation 1. The Union shall encourage cooperation between Member States in order to improve between States in order to improve the the effectiveness of systems for preventing effectiveness of systems for preventing and and protecting against natural or man-made protecting against natural or man-made disasters. disasters.

Union action shall aim to: Union action shall aim to:

(a) support and complement Member (a) support and complement States’ action States’ action at national, regional and local at national, regional and local level in risk level in risk prevention, in preparing their prevention, in preparing their civil-protec- civil-protection personnel and in tion personnel and in responding to natural responding to natural or man-made or man-made disasters within the Union; disasters within the Union;

(b) promote swift, effective operational (b) promote swift, effective operational cooperation within the Union between cooperation within the Union between national civil protection services; national civil protection services;

(c) promote consistency in international (c) promote consistency in international civil-protection work. civil-protection work.

2. The European Parliament and the 2. The European Parliament and the Council, acting in accordance with the Council, acting in accordance with the ordinary legislative procedure shall ordinary legislative procedure shall establish the measures necessary to help establish the measures necessary to help achieve the objectives referred to in achieve the objectives of this Article. paragraph 1, excluding any harmonisation of the laws and regulations of the Member States.

229 ADMINISTRATIVE COOPERATION

CHAPTER THREE

It is proposed to strengthen the imperative towards closer cooperation between national administrations in their implementation of EU law, and to drop the prohibition on the harmonisation of national legislation.

ADMINISTRATIVE ADMINISTRATIVE COOPERATION COOPERATION

Article 197 Article 398 (ex-Article 197 TFEU)

1. Effective implementation of Union law 1. Effective implementation of Union law by the Member States, which is essential for by the States, which is essential for the the proper functioning of the Union, shall proper functioning of the Union, shall be be regarded as a matter of common interest. regarded as a matter of common concern.

2. The Union may support the efforts of 2. The Union shall support the efforts of Member States to improve their administra- States to improve their administrative tive capacity to implement Union law. Such capacity to implement Union law. Such action may include facilitating the exchange action may include facilitating the exchange of information and of civil servants as well of information and of civil servants as well as supporting training schemes. No Member as supporting training schemes. The State shall be obliged to avail itself of such European Parliament and the Council, support. The European Parliament and the acting by means of regulations in accord- Council, acting by means of regulations in ance with the ordinary legislative procedure, accordance with the ordinary legislative shall establish the necessary measures to procedure, shall establish the necessary this end. measures to this end, excluding any harmonisation of the laws and regulations of the Member States.

3. This Article shall be without prejudice 3. This Article shall be without prejudice to the obligations of the Member States to to the obligations of the States to implement implement Union law or to the prerogatives Union law or to the prerogatives and duties and duties of the Commission. It shall also of the Commission. It shall also be without be without prejudice to other provisions of prejudice to other provisions of the Funda- the Treaties providing for administrative mental Law providing for administrative cooperation among the Member States and cooperation among the States and between between them and the Union. them and the Union.

230 PART VII ASSOCIATION OF THE OVERSEAS TERRITORIES

This chapter concerns the overseas dominions of Denmark (including Greenland), France, the Netherlands and the UK.

For the development of the EU’s relations with these territories, we propose the special legislative procedure.

Articles 198–202 Articles 399–403 ….. (ex-Articles 198–202 TFEU) …..

Article 203 Article 404 (ex-Article 203 TFEU)

The Council, acting unanimously on a The European Parliament and the Council, proposal from the Commission, shall, on the acting in accordance with the special legisla- basis of the experience acquired under the tive procedure, shall, on the basis of the expe- association of the countries and territories rience acquired under the association of the with the Union and of the principles set out countries and territories with the Union in the Treaties, lay down provisions as and of the principles set out in the Funda- regards the detailed rules and the procedure mental Law, lay down provisions as regards for the association of the countries and the detailed rules and the procedure for the territories with the Union. Where the provi- association of the countries and territories sions in question are adopted by the Council in with the Union. accordance with a special legislative procedure, it shall act unanimously on a proposal from the Commission and after consulting the European Parliament.

Article 204 Article 405 ….. (ex-Article 204 TFEU) …..

231

PART VIII THE EXTERNAL ACTION OF THE UNION

CHAPTER ONE

The general description of the objectives of the Union’s external action adds to paragraph 1 of Article 406 the provision on neighbourhood policy found in ex-Article 8 TEU.

The Fundamental Law adjusts the role of the European Council to focus the heads of government on setting the strategic orientation of the Union in international affairs, leaving to the Commission and Council the job of taking operational decisions. We also seek to strengthen the collegial ties of the Foreign Minister to the Commission, and to enhance the role of the Commission to initiate and coordinate policy.

GENERAL PROVISIONS ON GENERAL PROVISIONS THE UNION’S EXTERNAL ACTION AND SPECIFIC PROVISIONS ON THE COMMON FOREIGN AND SECURITY POLICY

Article 21 Article 406 (ex-Articles 8 & 21 TEU)

1. The Union’s action on the international 1. The Union’s action on the international scene shall be guided by the principles scene shall be guided by the principles which have inspired its own creation, devel- which have inspired its own creation, development and enlargement, and which it opment and enlargement, and which it seeks to advance in the wider world: seeks to advance in the wider world: democracy, the rule of law, the universality democracy, the rule of law, the universality and indivisibility of human rights and and indivisibility of human rights and fundamental freedoms, respect for human fundamental freedoms, respect for human dignity, the principles of equality and soli- dignity, the principles of equality and solidarity, and respect for the principles of the darity, and respect for the principles of the United Nations Charter and international United Nations Charter and international law. law.

233 PART VIII

The Union shall seek to develop relations The Union shall seek to develop relations and build partnerships with third countries, and build partnerships with third countries, and international, regional or global organi- and international, regional or global organisations which share the principles referred sations which share the principles referred to in the ﬁ rst subparagraph. It shall to in the ﬁ rst subparagraph. It shall promote multilateral solutions to common promote multilateral solutions to common problems, in particular in the framework of problems, in particular in the framework of the United Nations. the United Nations.

The Union shall seek to develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation.

2. The Union shall defi ne and pursue 2. The Union shall defi ne and pursue common policies and actions, and shall common policies and actions, and shall work for a high degree of cooperation in all work for a high degree of cooperation in all fi elds of international relations, in order to: fi elds of international relations, in order to:

(a) safeguard its values, fundamental (a) safeguard its values, fundamental interests, security, independence and interests, security, independence and integrity; integrity;

(b) consolidate and support democracy, the (b) consolidate and support democracy, the rule of law, human rights and the principles rule of law, human rights and the principles of international law; of international law;

(c) preserve peace, prevent conﬂ icts and (c) preserve peace, prevent conﬂ icts and strengthen international security, in accord- strengthen international security, in accordance with the purposes and principles of ance with the purposes and principles of the United Nations Charter, with the princi- the United Nations Charter, with the principles of the Helsinki Final Act and with the ples of the Helsinki Final Act and with the aims of the Charter of Paris, including aims of the Charter of Paris, including those relating to external borders; those relating to external borders;

(d) foster the sustainable economic, social (d) foster the sustainable economic, social and environmental development of devel- and environmental development of developing countries, with the primary aim of oping countries, with the primary aim of eradicating poverty; eradicating poverty;

(e) encourage the integration of all (e) encourage the integration of all countries into the world economy, including countries into the world economy, including through the progressive abolition of restric- through the progressive abolition of restrictions on international trade; tions on international trade;

234 CHAPTER ONE

(f) help develop international measures to (f) help develop international measures to preserve and improve the quality of the preserve and improve the quality of the environment and the sustainable manage- environment and the sustainable management of global natural resources, in order to ment of global natural resources, in order to ensure sustainable development; ensure sustainable development;

(g) assist populations, countries and regions (g) assist populations, countries and regions confronting natural or man-made disasters; confronting natural or man-made disasters; and and

(h) promote an international system based (h) promote an international system based on stronger multilateral cooperation and on stronger multilateral cooperation and good global governance. good global governance.

3. The Union shall respect the principles and 3. The Union shall ensure consistency pursue the objectives set out in paragraphs 1 between the different areas of its external and 2 in the development and implementation action and between these and its other of the diff erent areas of the Union’s external policies. action covered by this Title and by Part Five of the Treaty on the Functioning of the European Union, and of the external aspects of its other policies.

The Union shall ensure consistency between the different areas of its external action and between these and its other policies. The Council and the Commission, assisted by the High Representative of the Union for Foreign Aff airs and Security Policy, shall ensure that consistency and shall cooperate to that eff ect.

Article 22 Article 407 (ex-Article 22 TEU)

1. On the basis of the principles and objec- On the basis of the principles and objectives tives set out in Article 21, the European set out in Article 406, and on the basis of Council shall identify the strategic interests proposals made by the Commission, the and objectives of the Union. European Council shall identify the strategic interests and objectives of the Decisions of the European Council on the Union. strategic interests and objectives of the Union shall relate to the common foreign The identifi cation by the European Council and security policy and to other areas of the of the strategic interests and objectives of external action of the Union. Such decisions the Union shall relate to the common may concern the relations of the Union with foreign and security policy and to other a speciﬁ c country or region or may be areas of the external action of the Union. thematic in approach. They shall defi ne their Such orientations may concern the relations duration, and the means to be made available of the Union with a speciﬁ c country or by the Union and the Member States. region or may be thematic in approach.

235 PART VIII

The European Council shall act unanimously on a recommendation from the Council, adopted by the latter under the arrangements laid down for each area. Decisions of the European Council shall be implemented in accordance with the procedures provided for in the Treaties.

2. The High Representative of the Union for Foreign Aff airs and Security Policy, for the area of common foreign and security policy, and the Commission, for other areas of external action, may submit joint proposals to the Council.

Article 23 [delete] …..

236 COMMON FOREIGN AND SECURITY POLICY

CHAPTER TWO

Article 408 elides the treatment of CFSP more closely to that of other Union policies, for example, and importantly, by lifting the restriction on the authority of the European Court of Justice in this area. It also takes a more positive stance on the goal of a common defence policy.

To rectify one of the obvious weaknesses of Lisbon, we give to the Foreign Minister two political deputies (Article 411).

The convoluted decision-making procedure of the Lisbon treaty is greatly simplifi ed in Article 412. Consistent with our approach throughout the Fundamental Law, it is foreseen that the Council will normally act by qualifi ed majority vote. This does not preclude the fact that the foreign ministers in Council will have a consensual approach to decisions in foreign policy, but it does lighten the shadow of a unilateral national veto. Recourse to the European Council is to be a last resort in cases of serious disagreement. Parliament is given the right of consent to decisions of the Council in the fi eld of CFSP, subject to the observance of strict time-limits.

In Article 414 we strengthen the role of the Foreign Minister in speaking for the Union in international fora, not least at the UN.

The role of the European Parliament is further enhanced, in that it will now be informed and consulted over the conduct of operations in addition to the ‘main aspects and basic choices’ (Article 415). Parliament also has a strengthened role on the budgetary aspects of CFSP (Article 417).

237 PART VIII

Article 24 Article 408 (ex-Article 24 TEU)

1. The Union’s competence in matters of 1. The Union’s competence in matters of common foreign and security policy shall common foreign and security policy shall cover all areas of foreign policy and all cover all areas of foreign policy and all questions relating to the Union’s security, questions relating to the Union’s security, including the progressive framing of a including the progressive framing of a common defence policy that might lead to a common defence policy leading to a common defence. common defence.

The common foreign and security policy is subject to specifi c rules and procedures. It shall be defi ned and implemented by the European Council and the Council acting unanimously, except where the Treaties provide otherwise. The adoption of legislative acts shall be excluded. The common foreign and security policy shall be put into eff ect by the High Representative of the Union for Foreign Aff airs and Security Policy and by Member States, in accordance with the Treaties. The specifi c role of the European Parliament and of the Commission in this area is defi ned by the Treaties. The Court of Justice of the European Union shall not have jurisdiction with respect to these provisions, with the exception of its jurisdiction to monitor compliance with Article 40 of this Treaty and to review the legality of certain decisions as provided for by the second paragraph of Article 275 of the Treaty on the Functioning of the European Union.

2. Within the framework of the principles 2. Within the framework of the principles and objectives of its external action, the and objectives of its external action, the Union shall conduct, defi ne and implement Union shall conduct, defi ne and implement a common foreign and security policy, a common foreign and security policy, based on the development of mutual based on the development of mutual political solidarity among Member States, political solidarity among the States, the the identifi cation of questions of general identifi cation of questions of general interest and the achievement of an ever- interest and the achievement of an ever- increasing degree of convergence of increasing degree of convergence. Member States’ actions.

3. The Member States shall support the 3. The States shall support the Union’s Union’s external and security policy actively external and security policy actively and and unreservedly in a spirit of loyalty and unreservedly in a spirit of loyalty and mutual solidarity and shall comply with the mutual solidarity and shall comply with the Union’s action in this area. Union’s action in this area.

238 CHAPTER TWO

The Member States shall work together to The States shall work together to enhance enhance and develop their mutual political and develop their mutual political solidarity. solidarity. They shall refrain from any They shall refrain from any action which is action which is contrary to the interests of contrary to the interests of the Union or the Union or likely to impair its effective- likely to impair its effectiveness as a ness as a cohesive force in international cohesive force in international relations. relations.

The Council and the High Representative The Council and the Foreign Minister shall shall ensure compliance with these princi- ensure compliance with these principles. ples.

Article 25 Article 409 (ex-Article 25 TEU)

The Union shall conduct the common The Union shall conduct the common foreign and security policy by: foreign and security policy by defi ning general guidelines, adopting decisions (a) defi ning the general guidelines; defi ning actions and positions, and by strengthening systematic cooperation (b) adopting decisions defi ning: between the States in the conduct of policy.

(i) actions to be undertaken by the Where the international situation requires Union; operational action by the Union, the Council shall adopt the necessary decisions on the basis (ii) positions to be taken by the Union; of proposals made by the Commission.

(iii) arrangements for the implementation Where a State has to take urgent action in of the decisions referred to in points (i) and cases of imperative need, it shall inform the (ii); Commission immediately. and by

Article 26 Article 410 (ex-Article 26 TEU)

1. The European Council shall identify the Union’s strategic interests, determine the objectives of and defi ne general guidelines for the common foreign and security policy, including for matters with defence implications. It shall adopt the necessary decisions.

239 PART VIII

If international developments so require, the President of the European Council shall convene an extraordinary meeting of the European Council in order to defi ne the strategic lines of the Union’s policy in the face of such developments.

2. The Council shall frame the common 1. On the basis of proposals of the Commis- foreign and security policy and take the sion, and in accordance with the general guide- decisions necessary for deﬁ ning and imple- lines and strategic lines defi ned by the menting it on the basis of the general guide- European Council, the Council shall frame lines and strategic lines deﬁ ned by the the common foreign and security policy. European Council.

The Council and the High Representative of The Council and the Foreign Minister shall the Union for Foreign Affairs and Security ensure the unity, consistency and effective- Policy shall ensure the unity, consistency ness of action by the Union. and effectiveness of action by the Union.

3. The common foreign and security policy 2. The common foreign and security policy shall be put into effect by the High Repre- shall be put into effect by the Foreign sentative and by the Member States, using Minister and by the States, using State and national and Union resources. Union resources.

Article 27 Article 411 (ex-Article 27 TEU)

1. The High Representative of the Union 1. The Foreign Minister, who shall chair for Foreign Affairs and Security Policy, who the Foreign Affairs Council, shall shall chair the Foreign Affairs Council, contribute through his or her proposals to shall contribute through his proposals to the development of the common foreign the development of the common foreign and security policy and shall coordinate the and security policy and shall ensure imple- activities of the States within the Council. The mentation of the decisions adopted by the Foreign Minister shall ensure implementa- European Council and the Council. tion of the decisions adopted by the Council.

2. The High Representative shall represent 2. The Foreign Minister shall represent the the Union for matters relating to the Union for matters relating to the common common foreign and security policy. He foreign and security policy. He or she shall shall conduct political dialogue with third conduct political dialogue with third parties parties on the Union’s behalf and shall on the Union’s behalf and shall express the express the Union’s position in interna- Union’s position in international organisa- tional organisations and at international tions and at international conferences. conferences.

240 CHAPTER TWO

3. In fulﬁ lling his mandate, the High 3. In fulﬁ lling his or her mandate, the Representative shall be assisted by a Foreign Minister shall be assisted by the European External Action Service. This Foreign Service. This service shall work in service shall work in cooperation with the cooperation with the diplomatic services of diplomatic services of the Member States the States. and shall comprise offi cials from relevant departments of the General Secretariat of the 4. The Foreign Minister shall have political Council and of the Commission as well as staff deputies. One deputy minister shall chair the seconded from national diplomatic services of Political and Security Committee responsible the Member States. The organisation and for the political control and strategic direction functioning of the European External Action of crisis management operations. The deputy Service shall be established by a decision of the ministers may represent the Foreign Minister Council. The Council shall act on a proposal at the European Parliament and Council. from the High Representative after consulting the European Parliament and after obtaining The deputy foreign ministers will be nominated the consent of the Commission. by the President of the Commission after having consulted the Council. They will take up their appointment having been subject to a hearing and a vote of approval by the responsible committee of the European Parliament.

Articles 28–30 [delete] …..

Article 31 Article 412 (ex-Article 31 TEU)

1. Decisions under this Chapter shall be 1. Decisions in common foreign and security taken by the European Council and the policy shall be taken by the Council, on Council acting unanimously, except where proposals by the Commission, with the consent this Chapter provides otherwise. The of the European Parliament, except where the adoption of legislative acts shall be excluded. Fundamental Law provides otherwise. The Council shall act in accordance with the voting procedure laid down in Article 14(5).

When abstaining in a vote, any member of When abstaining in a vote, any member of the Council may qualify its abstention by the Council may qualify its abstention by making a formal declaration under the making a formal declaration under the present subparagraph. In that case, it shall present subparagraph. In that case, it shall not be obliged to apply the decision, but not be obliged to apply the decision, but shall accept that the decision commits the shall accept that the decision commits the Union. In a spirit of mutual solidarity, the Union. In a spirit of mutual solidarity, the Member State concerned shall refrain from State concerned shall refrain from any any action likely to conﬂ ict with or impede action likely to conﬂ ict with or impede Union action based on that decision and the Union action based on that decision and the other Member States shall respect its other states shall respect its position. position. If the members of the Council quali- fying their abstention in this way represent at least one third of the Member States comprising at least one third of the population of the Union, the decision shall not be adopted.

241 PART VIII

2. By derogation from the provisions of 2. If a member of the Council declares paragraph 1, the Council shall act by qualifi ed that, for vital and stated reasons of national majority: policy, it intends to oppose the adoption of a decision to be taken by qualiﬁ ed majority, a – when adopting a decision defi ning a Union vote shall not be taken. The Foreign action or position on the basis of a decision of Minister will, in close consultation with the the European Council relating to the Union’s State involved, search for a solution accept- strategic interests and objectives, as referred to able to it. If the Foreign Minister does not in Article 22(1), succeed, the Council may, acting by a qualiﬁ ed majority, request that the matter – when adopting a decision defi ning a Union be referred to the European Council for a action or position, on a proposal which the decision by unanimity. High Representative of the Union for Foreign Aff airs and Security Policy has presented 3. The European Parliament shall act in following a specifi c request from the European accordance with the voting procedure laid Council, made on its own initiative or that of down in Article 12(7). The Parliament shall the High Representative, deliver its decision within a time-limit which will be set depending on the urgency of the – when adopting any decision implementing matter and will be specifi ed in the draft a decision defi ning a Union action or position, decision of the Council. In the absence of a decision by Parliament within that time-limit, – when appointing a special representative in the Council may adopt the decision. accordance with Article 33.

If a member of the Council declares that, for vital and stated reasons of national policy, it intends to oppose the adoption of a decision to be taken by qualiﬁ ed majority, a vote shall not be taken. The High Repre- sentative will, in close consultation with the Member State involved, search for a solution acceptable to it. If he does not succeed, the Council may, acting by a qualiﬁ ed majority, request that the matter be referred to the European Council for a decision by unanimity.

3. The European Council may unanimously adopt a decision stipulating that the Council shall act by a qualifi ed majority in cases other than those referred to in paragraph 2.

4. Paragraphs 2 and 3 shall not apply to decisions having military or defence implications.

5. For procedural questions, the Council shall act by a majority of its members.

242 CHAPTER TWO

Article 32 Article 413 (ex-Article 32 TEU)

Member States shall consult one another The States shall consult one another within within the European Council and the the European Council and the Council on Council on any matter of foreign and any matter of foreign and security policy of security policy of general interest in order to general interest in order to determine a determine a common approach. Before common approach. Before undertaking any undertaking any action on the international action on the international scene or scene or entering into any commitment entering into any commitment which could which could affect the Union’s interests, affect the Union’s interests, each State shall each Member State shall consult the others consult the Commission. States shall ensure, within the European Council or the Council. through the convergence of their actions, Member States shall ensure, through the that the Union is able to assert its interests convergence of their actions, that the Union and values on the international scene. is able to assert its interests and values on States shall show mutual solidarity. the international scene. Member States shall show mutual solidarity. The diplomatic missions of the States and the Union delegations in third countries When the European Council or the Council and at international organisations shall has defi ned a common approach of the Union cooperate and shall contribute to formu- within the meaning of the fi rst paragraph, the lating and implementing the common High Representative of the Union for Foreign approach. Aff airs and Security Policy and the Ministers for Foreign Aff airs of the Member States shall coordinate their activities within the Council.

The diplomatic missions of the Member States and the Union delegations in third countries and at international organisations shall cooperate and shall contribute to formulating and implementing the common approach.

Article 33 [delete] …..

Article 34 Article 414 (ex-Article 34 TEU)

1. Member States shall coordinate their 1. The Foreign Minister shall coordinate the action in international organisations and at action of the Union in international organi- international conferences. They shall sations and at international conferences, uphold the Union’s positions in such and shall uphold the Union’s positions in forums. The High Representative of the such forums. Union for Foreign Affairs and Security Policy shall organise this coordination.

243 PART VIII

In international organisations and at inter- In international organisations and at international conferences where not all the national conferences where not all the Member States participate, those which do States participate, those which do take part take part shall uphold the Union’s positions. shall uphold the Union’s positions.

2. In accordance with Article 24(3), 2. In accordance with Article 408(3), States Member States represented in international represented in international organisations organisations or international conferences or international conferences where not all where not all the Member States participate the States participate shall keep the other shall keep the other Member States and the States and the Foreign Minister informed of High Representative informed of any any matter of common interest. matter of common interest.

Member States which are also members of States which are also members of the the United Nations Security Council will United Nations Security Council will concert and keep the other Member States concert and keep the other States and the and the High Representative fully Foreign Minister fully informed. States informed. Member States which are which are members of the Security Council members of the Security Council will, in will, in the execution of their functions, the execution of their functions, defend the defend the positions and the interests of the positions and the interests of the Union, Union, without prejudice to their responsi- without prejudice to their responsibilities bilities under the provisions of the United under the provisions of the United Nations Nations Charter. Charter.

When the Union has deﬁ ned a position on a When the Union has deﬁ ned a position on a subject which is on the United Nations subject which is on the United Nations Security Council agenda, those Member Security Council agenda, the Foreign States which sit on the Security Council shall Minister shall present the Union’s position. request that the High Representative be invited to present the Union’s position.

Article 35 [delete] …..

Article 36 Article 415 (ex-Article 36 TEU)

The High Representative of the Union for The Foreign Minister shall regularly inform Foreign Affairs and Security Policy shall and consult the European Parliament on the regularly consult the European Parliament main aspects, basic choices and operational on the main aspects and the basic choices of decisions of the common foreign, security and the common foreign and security policy and defence policies. The Foreign Minister shall the common security and defence policy ensure that the views of the European and inform it of how those policies evolve. He Parliament are duly taken into account. The shall ensure that the views of the European deputy ministers and special representatives Parliament are duly taken into consideration. may also be involved in brieﬁ ng the Special representatives may be involved in European Parliament. brieﬁ ng the European Parliament.

244 CHAPTER TWO

The European Parliament may address The European Parliament may address questions or make recommendations to the questions or make recommendations to the Council or the High Representative. Twice a Commission or the Council. Twice a year it year it shall hold a debate on progress in shall hold a debate on progress in imple- implementing the common foreign and menting the common foreign, security and security policy, including the common defence policies of the Union. security and defence policy.

Article 37 Article 416 (ex-Article 37 TEU)

The Union may conclude agreements with The Union may conclude agreements with one or more States or international organi- one or more States or international organisations in areas covered by this Chapter. sations in the fi eld of common foreign, security and defence policies.

Articles 38–40 [delete] …..

Article 41 Article 417 (ex-Article 41 TEU)

1. Administrative expenditure to which the 1. Administrative expenditure to which the implementation of this Chapter gives rise implementation of this Chapter gives rise for the institutions shall be charged to the for the institutions shall be charged to the Union budget. Union budget.

2. Operating expenditure to which the 2. Operating expenditure to which the implementation of this Chapter gives rise implementation of this Chapter gives rise shall also be charged to the Union budget, shall also be charged to the Union budget, except for such expenditure arising from except for such expenditure arising from operations having military or defence impli- operations having military or defence implications and cases where the Council acting cations in cases where the Council, acting unanimously decides otherwise. unanimously on a proposal of the Commis- sion, so decides.

In cases where expenditure is not charged In cases where military or defence related to the Union budget, it shall be charged to expenditure is not charged to the Union the Member States in accordance with the budget, it shall be charged to the States in gross national product scale, unless the accordance with the gross national product Council acting unanimously decides scale. States whose representatives in the otherwise. As for expenditure arising from Council have made a formal declaration operations having military or defence impli- under Article 412(1) shall not be obliged to cations, Member States whose representa- contribute to the ﬁ nancing thereof. tives in the Council have made a formal declaration under Article 31(1), second subparagraph, shall not be obliged to contribute to the ﬁ nancing thereof.

245 PART VIII

3. The Council shall adopt a decision estab- 3. The European Parliament and the lishing the specifi c procedures for guaran- Council, acting in accordance with the teeing rapid access to appropriations in the ordinary legislative procedure, shall enact a Union budget for urgent fi nancing of initia- law laying down the specifi c procedures for tives in the framework of the common guaranteeing rapid access to appropriations foreign and security policy, and in particular in the Union budget for urgent fi nancing of for preparatory activities for the tasks referred initiatives in the framework of the common to in Article 42(1) and Article 43. It shall act foreign, security and defence policies. after consulting the European Parliament. The regulation shall establish mechanisms for Preparatory activities for the tasks referred to the coordination of the fi nancial contributions in Article 42(1) and Article 43 which are not of the States and for the fi nancial accounta- charged to the Union budget shall be fi nanced bility of the scheme to the European Parlia- by a start-up fund made up of Member States’ ment and State Parliaments and to the Court contributions. of Auditors.

The Council shall adopt by a qualifi ed majority, on a proposal from the High Repre- sentative of the Union for Foreign Aff airs and Security Policy, decisions establishing:

(a) the procedures for setting up and fi nancing the start-up fund, in particular the amounts allocated to the fund;

(b) the procedures for administering the start-up fund;

When the task planned in accordance with Article 42(1) and Article 43 cannot be charged to the Union budget, the Council shall authorise the High Representative to use the fund. The High Representative shall report to the Council on the implementation of this remit.

246 COMMON SECURITY AND DEFENCE POLICY

CHAPTER THREE

In the adjustments to this chapter, we encourage the evolution of the Union towards adopting a common defence policy.

The position of the Commission, including the Foreign Minister, is rationalised in order that it can contribute more to the development of CSDP.

The battlegroups gain a legal base (Article 418) and the role of the European Defence Agency is strengthened through the involvement of the European Parliament (Article 421). Parliament also gains consultative powers in the establishment of a permanent military core group of the Union (Article 422).

Article 42 Article 418 (ex-Article 42 TEU)

1. The common security and defence 1. The common security and defence policy shall be an integral part of the common policy shall provide the Union with an oper- foreign and security policy. It shall provide the ational capacity drawing on civilian and Union with an operational capacity drawing military assets. The Union may use them on civilian and military assets. The Union on missions outside the Union for peace- may use them on missions outside the keeping, conﬂ ict prevention and strength- Union for peace-keeping, conﬂ ict preven- ening international security in accordance tion and strengthening international with the principles of the United Nations security in accordance with the principles of Charter. The performance of these tasks the United Nations Charter. The perfor- shall be undertaken using capabilities mance of these tasks shall be undertaken provided by the States. using capabilities provided by the Member States.

247 PART VIII

2. The common security and defence policy 2. The common security and defence policy shall include the progressive framing of a shall involve the progressive framing of a common Union defence policy. This will lead common Union defence. It shall not pre - to a common defence, when the European judice the speciﬁ c character of the security Council, acting unanimously, so decides. It shall and defence policy of certain States. in that case recommend to the Member States the adoption of such a decision in accordance The defence policy of the Union shall respect with their respective constitutional requirements. the obligations of those States which see their common defence realised in the North The policy of the Union in accordance with this Atlantic Treaty Organisation (NATO), under Section shall not prejudice the specifi c character the North Atlantic Treaty and be compatible of the security and defence policy of certain with the common security and defence Member States and shall respect the obliga- policy established within that framework. tions of certain Member States, which see Union defence policy shall be consistent their common defence realised in the North with commitments to NATO, which, for Atlantic Treaty Organisation (NATO), under those States which are members of it, the North Atlantic Treaty and be compatible remains the foundation of their collective with the common security and defence policy defence and the forum for its implementa- established within that framework. tion.

3. Member States shall make civilian and 3. States shall make civilian and military military capabilities available to the Union capabilities available to the Union for the for the implementation of the common implementation of the common security security and defence policy, to contribute to and defence policy. the objectives defi ned by the Council. Those Member States which together establish Those States which together establish multinational forces may also make them multinational forces may also make them available to the common security and available to the common security and defence policy. defence policy.

Member States shall undertake progres- A European battlegroup may be formed by sively to improve their military capabilities. three or more States as laid down in Protocol The Agency in the fi eld of defence capabili- No 8 on permanent structured cooperation. ties development, research, acquisition and armaments (hereinafter referred to as ‘the States shall undertake progressively to European Defence Agency’) shall identify improve their military capabilities. The operational requirements, shall promote Agency in the fi eld of defence capabilities measures to satisfy those requirements, development, research, acquisition and shall contribute to identifying and, where armaments (hereinafter ‘the European appropriate, implementing any measure Defence Agency’) shall identify operational needed to strengthen the industrial and requirements, shall promote measures to technological base of the defence sector, satisfy those requirements, shall contribute shall participate in defi ning a European to identifying and, where appropriate, capabilities and armaments policy, and implementing any measure needed to shall assist the Council in evaluating the strengthen the industrial and technological improvement of military capabilities. base of the defence sector, shall participate in defi ning a European capabilities and armaments policy, and shall assist the Commission and the Council in evaluating the improvement of military capabilities.

248 CHAPTER THREE

4. Decisions relating to the common 4. Decisions relating to the common security and defence policy, including those security and defence policy shall be adopted initiating a mission as referred to in this by the Council acting unanimously on a Article, shall be adopted by the Council proposal from the Commission, which may acting unanimously on a proposal from the propose the use of both State resources and High Representative of the Union for Foreign Union instruments. Aff airs and Security Policy or an initiative from a Member State. The High Representa- tive may propose the use of both national resources and Union instruments, together with the Commission where appropriate.

5. The Council may entrust the execution 5. The Council may entrust the execution of a task, within the Union framework, to a of a task, within the Union framework, to a group of Member States in order to protect group of States in order to protect the the Union’s values and serve its interests. Union’s values and serve its interests. The The execution of such a task shall be execution of such a task shall be governed governed by Article 44. by Article 420.

6. Those Member States whose military 6. Those States whose military capabilities capabilities fulﬁ l higher criteria and which fulﬁ l higher criteria and which have made have made more binding commitments to more binding commitments to one another one another in this area with a view to the in this area with a view to the most most demanding missions shall establish demanding missions shall establish permanent structured cooperation within permanent structured cooperation within the Union framework. Such cooperation the Union framework. Such cooperation shall be governed by Article 46. It shall not shall be governed by Article 422. affect the provisions of Article 43.

7. If a Member State is the victim of armed 7. If a State is the victim of armed aggres- aggression on its territory, the other sion on its territory, the other States shall Member States shall have towards it an obli- have towards it an obligation of aid and gation of aid and assistance by all the means assistance by all the means in their power, in their power, in accordance with Article 51 in accordance with Article 51 of the United of the United Nations Charter. This shall not Nations Charter. prejudice the specifi c character of the security and defence policy of certain Member States.

Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisa- tion, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation.

249 PART VIII

Article 43 Article 419 (ex-Article 43 TEU)

1. The tasks referred to in Article 42(1), in 1. The tasks referred to in Article 418(1), in the course of which the Union may use the course of which the Union may use civilian and military means, shall include civilian and military means, shall include joint disarmament operations, humani- joint disarmament operations, humanitarian and rescue tasks, military advice and tarian and rescue tasks, military advice and assistance tasks, confl ict prevention and assistance tasks, confl ict prevention and peace-keeping tasks, tasks of combat forces peace-keeping tasks, tasks of combat forces in crisis management, including peace- in crisis management, including peace- making and post-confl ict stabilisation. All making and post-confl ict stabilisation. All these tasks may contribute to the fi ght these tasks may contribute to the fi ght against terrorism, including by supporting against terrorism, including by supporting third countries in combating terrorism in third countries in combating terrorism in their territories. their territories.

2. The Council shall adopt decisions 2. The Council shall adopt decisions relating to the tasks referred to in paragraph relating to the tasks referred to in paragraph 1, deﬁ ning their objectives and scope and 1, on proposals of the Commission, deﬁ ning the general conditions for their implementa- their objectives and scope and the general tion. The High Representative of the Union conditions for their implementation. The for Foreign Affairs and Security Policy, Foreign Minister shall ensure coordination acting under the authority of the Council and of the civilian and military aspects of such in close and constant contact with the Political tasks. and Security Committee, shall ensure coordination of the civilian and military aspects of such tasks.

Article 44 Article 420 (ex-Article 44 TEU)

1. Within the framework of the decisions 1. Within the framework of the decisions adopted in accordance with Article 43, the adopted in accordance with Article 419, the Council may entrust the implementation of Union may entrust the implementation of a a task to a group of Member States which task to a group of States which are willing are willing and have the necessary capa- and have the necessary capability for such a bility for such a task. Those Member States, task. Those States, in close cooperation with in association with the High Representative the Foreign Minister, shall agree on the of the Union for Foreign Affairs and management of the task. Security Policy, shall agree among themselves on the management of the task.

250 CHAPTER THREE

2. Member States participating in the task 2. States participating in the task shall shall keep the Council regularly informed keep the Commission and the Council of its progress on their own initiative or at regularly informed of its progress on their the request of another Member State. Those own initiative or at the request of another States shall inform the Council immedi- State. Those States shall inform the ately should the completion of the task Commission and the Council immediately entail major consequences or require should the completion of the task entail amendment of the objective, scope and major consequences or require amendment conditions determined for the task in the of the objective, scope and conditions deter- decisions referred to in paragraph 1. In mined for the task in the decisions referred such cases, the Council shall adopt the to in paragraph 1. In such cases, the necessary decisions. Council, on a proposal of the Commission, shall adopt the necessary decisions.

Article 45 Article 421 (ex-Article 45 TEU)

1. The European Defence Agency referred 1. The European Defence Agency, subject to in Article 42(3), subject to the authority of to the authority of the Commission, shall the Council, shall have as its task to: have as its task to:

(a) contribute to identifying the Member (a) identify the States’ military capability States’ military capability objectives and objectives and evaluating observance of the evaluating observance of the capability capability commitments given by the States; commitments given by the Member States;

(b) promote harmonisation of operational (b) promote harmonisation of operational needs and adoption of effective, compatible needs and adoption of effective, compatible procurement methods; procurement methods;

(c) propose multilateral projects to fulfi l the (c) propose multilateral projects to fulfi l the objectives in terms of military capabilities, objectives in terms of military capabilities, ensure coordination of the programmes ensure coordination of the programmes implemented by the Member States and implemented by the States and manage- management of specifi c cooperation ment of specifi c cooperation programmes; programmes;

(d) support defence technology research, (d) support defence technology research, and coordinate and plan joint research activ- and coordinate and plan joint research activities and the study of technical solutions ities and the study of technical solutions meeting future operational needs; meeting future operational needs;

(e) contribute to identifying and, if necessary, (e) identify and, if necessary, implement any implementing any useful measure for useful measure for strengthening the strengthening the industrial and technolog- industrial and technological base of the ical base of the defence sector and for defence sector and for improving the effec- improving the effectiveness of military tiveness of military expenditure. expenditure.

251 PART VIII

2. The European Defence Agency shall be 2. The European Parliament and the open to all Member States wishing to be Council, acting in accordance with the part of it. The Council, acting by a qualifi ed ordinary legislative procedure, shall establish majority, shall adopt a decision defi ning the the European Defence Agency. The Agency Agency’s statute, seat and operational rules. shall be open to all States wishing to be part That decision should take account of the of it. That decision should take account of level of effective participation in the the level of effective participation in the Agency’s activities. Speciﬁ c groups shall be Agency’s activities. Speciﬁ c groups shall be set up within the Agency bringing together set up within the Agency bringing together Member States engaged in joint projects. States engaged in joint projects. The Agency The Agency shall carry out its tasks in shall carry out its tasks in liaison with the liaison with the Commission where Commission where necessary. necessary.

Article 46 Article 422 (ex-Article 46 TEU)

1. Those Member States which wish to 1. Those States which wish to participate participate in the permanent structured in the permanent structured cooperation, cooperation referred to in Article 42(6), which fulﬁ l the criteria and have made the which fulﬁ l the criteria and have made the commitments on military capabilities set commitments on military capabilities set out in the Protocol No 8 on permanent out in the Protocol on permanent struc- structured cooperation, shall notify their tured cooperation, shall notify their intention to the Commission. intention to the Council and to the High Representative of the Union for Foreign Aff airs and Security Policy.

2. Within three months following the noti- 2. Within three months following the notifi cation referred to in paragraph 1 the fi cation referred to in paragraph 1 the Council shall adopt a decision establishing Council shall adopt a decision establishing permanent structured cooperation and permanent structured cooperation and determining the list of participating determining the list of participating States. Member States. The Council shall act by a The Council shall act on a proposal of the qualifi ed majority after consulting the High Commission by a qualifi ed majority after Representative. consulting the European Parliament.

3. Any Member State which, at a later 3. Any State which, at a later stage, wishes stage, wishes to participate in the to participate in the permanent structured permanent structured cooperation shall cooperation shall notify its intention to the notify its intention to the Council and to the Commission. High Representative.

252 CHAPTER THREE

The Council shall adopt a decision The Council shall adopt a decision confi rming the participation of the Member confi rming the participation of the State State concerned which fulfi ls the criteria concerned which fulfi ls the criteria and and makes the commitments referred to in makes the commitments referred to in Articles 1 and 2 of the Protocol on Articles 1 and 2 of Protocol No 8. The permanent structured cooperation. The Council shall act on a proposal of the Council shall act by a qualifi ed majority Commission by a qualifi ed majority, after after consulting the High Representative. consulting the Parliament. Only members of Only members of the Council representing the Council representing the participating the participating Member States shall take States shall take part in the vote. part in the vote. A qualifi ed majority shall be defi ned in A qualifi ed majority shall be defi ned in accordance with Article 14(4). accordance with Article 238(3)(a) of the Treaty on the Functioning of the European Union.

4. If a participating Member State no 4. If a participating State no longer fulfi ls longer fulfi ls the criteria or is no longer able the criteria or is no longer able to meet the to meet the commitments referred to in commitments referred to in Articles 1 and 2 Articles 1 and 2 of the Protocol on of the Protocol, the Council may adopt a permanent structured cooperation, the decision suspending the participation of the Council may adopt a decision suspending State concerned. the participation of the Member State concerned. The Council shall act on a proposal of the Commission by a qualifi ed majority, after The Council shall act by a qualifi ed consulting the Parliament. Only members of majority. Only members of the Council the Council representing the participating representing the participating Member States, with the exception of the State in States, with the exception of the Member question, shall take part in the vote. State in question, shall take part in the vote. A qualifi ed majority shall be defi ned in A qualifi ed majority shall be defi ned in accordance with Article 14(4). accordance with Article 238(3)(a) of the Treaty on the Functioning of the European Union.

5. Any participating Member State which 5. Any participating State which wishes to wishes to withdraw from permanent struc- withdraw from permanent structured coop- tured cooperation shall notify its intention eration shall notify its intention to the to the Council, which shall take note that the Commission, which shall inform the Council Member State in question has ceased to and Parliament that the State in question participate. has ceased to participate.

253 PART VIII

6. The decisions and recommendations of the Council within the framework of permanent structured cooperation, other than those provided for in paragraphs 2 to 5, shall be adopted by unanimity. For the purposes of this paragraph, unanimity shall be constituted by the votes of the representatives of the participating Member States only.

Article 205 [delete] …..

254 COMMON COMMERCIAL POLICY

CHAPTER FOUR

The scope of the commercial policy is widened from foreign direct investment to include all investment, which will reduce the number of over-complicated ‘mixed’ EU and intergovernmental agreements (Article 424(1)).

Article 206 Article 423 (ex-Article 206 TFEU)

By establishing a customs union in accord- By establishing a customs union in accordance with Articles 28 to 32, the Union shall ance with Articles 269 to 273, the Union contribute, in the common interest, to the shall contribute, in the common interest, to harmonious development of world trade, the harmonious development of world the progressive abolition of restrictions on trade, the progressive abolition of restric- international trade and on foreign direct tions on international trade and on foreign investment, and the lowering of customs direct investment, and the lowering of and other barriers. customs and other barriers.

Article 207 Article 424 (ex-Article 207 TFEU)

1. The common commercial policy shall be 1. The common commercial policy shall be based on uniform principles, particularly based on uniform principles, particularly with regard to changes in tariff rates, the with regard to changes in tariff rates, the conclusion of tariff and trade agreements conclusion of tariff and trade agreements relating to trade in goods and services, and relating to trade in goods and services, and the commercial aspects of intellectual the commercial aspects of intellectual property, foreign direct investment, the property, foreign investment, the achieve- achievement of uniformity in measures of ment of uniformity in measures of liberali- liberalisation, export policy and measures to sation, export policy and measures to protect trade such as those to be taken in protect trade such as those to be taken in the event of dumping or subsidies. The the event of dumping or subsidies. The common commercial policy shall be common commercial policy shall be conducted in the context of the principles conducted in the context of the principles and objectives of the Union’s external and objectives of the Union’s external action. action.

255 PART VIII

2. The European Parliament and the 2. The European Parliament and the Council, acting by means of regulations in Council, acting by means of regulations in accordance with the ordinary legislative accordance with the ordinary legislative procedure, shall adopt the measures procedure, shall adopt the measures deﬁ ning the framework for implementing deﬁ ning the framework for implementing the common commercial policy. the common commercial policy.

3. Where agreements with one or more 3. Where agreements with one or more third countries or international organisa- third countries or international organisations need to be negotiated and concluded, tions need to be negotiated and concluded, Article 218 shall apply, subject to the special Article 439 shall apply, subject to the special provisions of this Article. provisions of this Article.

The Commission shall make recommenda- The Commission shall make recommendations to the Council, which shall authorise tions to the Council, which shall authorise it to open the necessary negotiations. The it to open the necessary negotiations. The Council and the Commission shall be Commission shall be responsible for responsible for ensuring that the agree- ensuring that the agreements negotiated ments negotiated are compatible with are compatible with internal Union policies internal Union policies and rules. and rules.

The Commission shall conduct these nego- The Commission shall conduct these negotiations in consultation with a special tiations in consultation with a special committee appointed by the Council to committee appointed by the Council to assist the Commission in this task and assist the Commission in this task and within the framework of such directives as within the framework of such directives as the Council may issue to it. The Commis- the Council may issue to it. The Commis- sion shall report regularly to the special sion shall report regularly to the special committee and to the European Parliament committee and to the European Parliament on the progress of negotiations. on the progress of negotiations.

4. For the negotiation and conclusion of 4. For the negotiation and conclusion of the agreements referred to in paragraph 3, the agreements referred to in paragraph 3, the Council shall act by a qualiﬁ ed majority. the Council shall act by a qualiﬁ ed majority.

For the negotiation and conclusion of agree- For the negotiation and conclusion of agreements in the fi elds of trade in services and the ments which include provisions for which the commercial aspects of intellectual property, as special legislative procedure is required for the well as foreign direct investment, the Council adoption of internal rules, the Council shall shall act unanimously where such agreements act in accordance with its voting rules under include provisions for which unanimity is the special legislative procedure. required for the adoption of internal rules.

256 CHAPTER FOUR

The Council shall also act unanimously for The Council shall act unanimously for the the negotiation and conclusion of agree- negotiation and conclusion of agreements: ments:

(a) in the ﬁ eld of trade in cultural and audi- (a) in the ﬁ eld of trade in cultural and audiovisual services, where these agreements ovisual services, where these agreements risk prejudicing the Union’s cultural and risk prejudicing the Union’s cultural and linguistic diversity; linguistic diversity;

(b) in the ﬁ eld of trade in social, education (b) in the ﬁ eld of trade in social, education and health services, where these agree- and health services, where these agreements risk seriously disturbing the national ments risk seriously disturbing the national organisation of such services and preju- organisation of such services and prejudicing the responsibility of Member States dicing the responsibility of the States to to deliver them. deliver them.

5. The negotiation and conclusion of inter- 5. The negotiation and conclusion of international agreements in the ﬁ eld of transport national agreements in the ﬁ eld of shall be subject to Title VI of Part Three transport shall be subject to Article 433. and to Article 218.

6. The exercise of the competences 6. The exercise of the competences conferred by this Article in the ﬁ eld of the conferred by this Article in the ﬁ eld of the common commercial policy shall not affect common commercial policy shall not affect the delimitation of competences between the delimitation of competences between the Union and the Member States, and shall the Union and the States, and shall not lead not lead to harmonisation of legislative or to harmonisation of legislative or regulatory regulatory provisions of the Member States provisions of the States in so far as the in so far as the Treaties exclude such Fundamental Law excludes such harmoni- harmonisation. sation.

257 INTERNATIONAL RELATIONS

CHAPTER FIVE

Here we insist that EU states which wish to conduct their own supplementary international policies with third countries must at the least inform the Commission in advance. The purpose is to integrate more closely residual national development aid policies with the Union’s common policy.

The Commission takes over from the Council the power to impose sanctions against third countries, subject to revocation by either chamber of the legislature (Article 430).

DEVELOPMENT DEVELOPMENT COOPERATION COOPERATION

Article 208 Article 425 (ex-Article 208 TFEU)

1. Union policy in the ﬁ eld of development 1. Union policy in the ﬁ eld of development cooperation shall be conducted within the cooperation shall be conducted within the framework of the principles and objectives framework of the principles and objectives of the Union’s external action. The Union’s of the Union’s external action. The Union’s development cooperation policy and that of development cooperation policy and that of the Member States complement and the States shall complement and reinforce reinforce each other. each other.

Union development cooperation policy shall Union development cooperation policy shall have as its primary objective the reduction have as its primary objective the reduction and, in the long term, the eradication of and, in the long term, the eradication of poverty. The Union shall take account of the poverty. The Union shall take account of the objectives of development cooperation in objectives of development cooperation in the policies that it implements which are the policies that it implements which are likely to affect developing countries. likely to affect developing countries.

2. The Union and the Member States shall 2. The Union and the States shall comply comply with the commitments and take with the commitments and take account of account of the objectives they have approved the objectives they have approved in the in the context of the United Nations and context of the United Nations and other other competent international organisa- competent international organisations. tions.

258 CHAPTER FIVE

Article 209 Article 426 (ex-Article 209 TFEU)

1. The European Parliament and the 1. The European Parliament and the Council, acting in accordance with the Council, acting in accordance with the ordinary legislative procedure, shall adopt ordinary legislative procedure, shall adopt the measures necessary for the implementa- the measures necessary for the implementation of development cooperation policy, tion of development cooperation policy, which may relate to multiannual cooper- which may relate to multiannual cooperation programmes with developing ation programmes with developing countries or programmes with a thematic countries or programmes with a thematic approach. approach.

2. The Union may conclude with third 2. The Union may conclude with third countries and competent international countries and competent international organisations any agreement helping to organisations any agreement helping to achieve the objectives referred to in Article achieve the objectives referred to in Articles 21 of the Treaty on European Union and in 406 and 425. Article 208 of this Treaty.

The fi rst subparagraph shall be without States intending to negotiate in international prejudice to Member States’ competence to bodies and to conclude agreements shall inform negotiate in international bodies and to the Commission thereof. conclude agreements.

3. The European Investment Bank shall 3. The European Investment Bank shall contribute, under the terms laid down in its contribute, under the terms laid down in its Statute, to the implementation of the Statute, to the implementation of the measures referred to in paragraph 1. measures referred to in paragraph 1.

Article 210 Article 427 ….. (ex-Articles 210 TFEU) …..

Article 211 [delete] .....

259 PART VIII

ECONOMIC, FINANCIAL AND ECONOMIC COOPERATION TECHNICAL COOPERATION WITH THIRD COUNTRIES

Article 212 Article 428 (ex-Article 212 TFEU)

1. Without prejudice to the other provi- 1. Without prejudice to the other provisions of the Treaties, and in particular sions of the Fundamental Law, and in Articles 208 to 211, the Union shall carry particular Articles 425 to 427, the Union out economic, fi nancial and technical coop- shall carry out economic, fi nancial and eration measures, including assistance, in technical cooperation measures, including particular fi nancial assistance, with third assistance, in particular fi nancial assis- countries other than developing countries. tance, with third countries other than devel- Such measures shall be consistent with the oping countries. Such measures shall be development policy of the Union and shall consistent with the development policy of be carried out within the framework of the the Union and shall be carried out within principles and objectives of its external the framework of the principles and objec- action. The Union’s operations and those of tives of its external action. The Union’s the Member States shall complement and operations and those of the States shall reinforce each other. complement and reinforce each other.

2. The European Parliament and the 2. The European Parliament and the Council, acting in accordance with the Council, acting in accordance with the ordinary legislative procedure, shall adopt ordinary legislative procedure, shall adopt the measures necessary for the implementa- the measures necessary for the implementation of paragraph 1. tion of paragraph 1.

3. Within their respective spheres of 3. Within their respective spheres of competence, the Union and the Member competence, the Union and the States shall States shall cooperate with third countries cooperate with third countries and the and the competent international organisa- competent international organisations. The tions. The arrangements for Union cooper- arrangements for Union cooperation may ation may be the subject of agreements be the subject of agreements between the between the Union and the third parties Union and the third parties concerned. concerned.

The fi rst subparagraph shall be without States intending to negotiate in international prejudice to the Member States’ competence to bodies and to conclude agreements shall inform negotiate in international bodies and to the Commission thereof. conclude international agreements.

Article 213 [delete] …..

260 CHAPTER FIVE

HUMANITARIAN AID HUMANITARIAN AID

Article 214 Article 429 (ex-Article 214 TFEU)

1. The Union’s operations in the ﬁ eld of 1. The Union’s operations in the ﬁ eld of humanitarian aid shall be conducted within humanitarian aid shall be conducted within the framework of the principles and objec- the framework of the principles and objectives of the external action of the Union. tives of the external action of the Union. Such operations shall be intended to Such operations shall be intended to provide ad hoc assistance and relief and provide ad hoc assistance and relief and protection for people in third countries who protection for people in third countries who are victims of natural or man-made are victims of natural or man-made disasters, in order to meet the humani- disasters, in order to meet the humanitarian needs resulting from these different tarian needs resulting from these different situations. The Union’s measures and those situations. The Union’s measures and those of the Member States shall complement and of the States shall complement and reinforce each other. reinforce each other.

2. Humanitarian aid operations shall be 2. Humanitarian aid operations shall be conducted in compliance with the principles conducted in compliance with the princi- of international law and with the principles ples of international law and with the prin- of impartiality, neutrality and non-discrimi- ciples of impartiality, neutrality and non- nation. discrimination.

3. The European Parliament and the 3. The European Parliament and the Council, acting in accordance with the Council, acting in accordance with the ordinary legislative procedure, shall ordinary legislative procedure, shall establish the measures deﬁ ning the establish the measures deﬁ ning the framework within which the Union’s framework within which the Union’s humanitarian aid operations shall be imple- humanitarian aid operations shall be implemented. mented.

4. The Union may conclude with third 4. The Union may conclude with third countries and competent international countries and competent international organisations any agreement helping to organisations any agreement helping to achieve the objectives referred to in achieve the objectives referred to in paragraph 1 and in Article 21 of the Treaty paragraph 1 and in Article 406. on European Union. States intending to negotiate in international The ﬁ rst subparagraph shall be without bodies and to conclude agreements shall inform prejudice to Member States’ competence to the Commission thereof. negotiate in international bodies and to conclude agreements.

261 PART VIII

5. In order to establish a framework for 5. In order to establish a framework for joint contributions from young Europeans joint contributions from young Europeans to the humanitarian aid operations of the to the humanitarian aid operations of the Union, a European Voluntary Humani- Union, a European Voluntary Humani- tarian Aid Corps shall be set up. The tarian Aid Corps shall be set up. The European Parliament and the Council, European Parliament and the Council, acting by means of regulations in accord- acting by means of regulations in accordance with the ordinary legislative procedure, ance with the ordinary legislative procedure, shall determine the rules and procedures shall determine the rules and procedures for the operation of the Corps. for the operation of the Corps.

6. The Commission may take any useful 6. The Commission may take any useful initiative to promote coordination between initiative to promote coordination between actions of the Union and those of the actions of the Union and those of the States, Member States, in order to enhance the efﬁ - in order to enhance the efﬁ ciency and ciency and complementarity of Union and complementarity of Union and national national humanitarian aid measures. humanitarian aid measures.

7. The Union shall ensure that its humani- 7. The Union shall ensure that its humanitarian aid operations are coordinated and tarian aid operations are coordinated and consistent with those of international organ- consistent with those of international organisations and bodies, in particular those isations and bodies, in particular those forming part of the United Nations system. forming part of the United Nations system.

RESTRICTIVE RESTRICTIVE MEASURES MEASURES

Article 215 Article 430 (ex-Article 215 TFEU)

1. Where a decision, adopted in accordance 1. Where a decision adopted in the fi eld of with Chapter 2 of Title V of the Treaty on common foreign and security policy provides European Union, provides for the interrup- for the interruption or reduction, in part or tion or reduction, in part or completely, of completely, of economic and fi nancial economic and fi nancial relations with one or relations with one or more third countries, more third countries, the Council, acting by a the Commission shall adopt the necessary qualifi ed majority on a joint proposal from the measures. High Representative of the Union for Foreign Aff airs and Security Policy and the Commis- Where a decision in the fi eld of common sion, shall adopt the necessary measures. It foreign and security policy so provides, the shall inform the European Parliament thereof. Commission may adopt restrictive measures against natural or legal persons and groups 2. Where a decision adopted in accordance or non-State entities. with Chapter 2 of Title V of the Treaty on European Union so provides, the Council The decisions of the Commission shall enter may adopt restrictive measures under the into force after a period of four weeks if no procedure referred to in paragraph 1 against objection has been expressed either by the natural or legal persons and groups or European Parliament, acting pursuant to non-State entities. Article 12(8), or by the Council, acting pursuant to Article 14(5).

262 CHAPTER FIVE

3. The acts referred to in this Article shall 2. The acts referred to in this Article shall include necessary provisions on legal safe- include necessary provisions on legal safeguards. guards.

263 INTERNATIONAL AGREEMENTS

CHAPTER SIX

Speciﬁ c provision has to be made for Associate States to join the international agreements of the Union (Article 431).

The key provision is Article 433 (ex-Article 218 TFEU), where several adjustments are made to simplify and rationalise the procedures. It is made clear that the Commis- sion can prompt the Council to open an international negotiation, even in foreign and security policy matters, and that the Commission is the negotiator on behalf of the Union as a whole. Parliament’s consent will now be needed both to authorise and to conclude all international treaties of the EU, including those in the ﬁ eld of CFSP. Decision-making procedures for international treaties must mirror those used for the Union’s internal rules.

Similarly, the Commission’s role is enhanced in global monetary matters (Article 434).

Article 216 Article 431 (ex-Article 216 TFEU)

1. The Union may conclude an agreement 1. The Union may conclude an agreement with one or more third countries or interna- with one or more third countries or international organisations where the Treaties so tional organisations where the Funda- provide or where the conclusion of an mental Law so provides or where the agreement is necessary in order to achieve, conclusion of an agreement is necessary in within the framework of the Union’s order to achieve, within the framework of policies, one of the objectives referred to in the Union’s policies, one of the objectives the Treaties, or is provided for in a legally referred to in the Fundamental Law, or is binding Union act or is likely to affect provided for in a legally binding Union act common rules or alter their scope. or is likely to affect common rules or alter their scope.

2. Agreements concluded by the Union are 2. Agreements concluded by the Union are binding upon the institutions of the Union binding upon the institutions of the Union and on its Member States. and on its States. These agreements shall bind an Associate State in accordance with the terms of its specifi c participation.

264 CHAPTER SIX

Article 217 Article 432 (ex-Article 217 TFEU)

The Union may conclude with one or more The Union may conclude with one or more third countries or international organisa- third countries or international organisations agreements establishing an associations agreements establishing an association involving reciprocal rights and obligation involving reciprocal rights and obligations, common action and special tions, common action and special procedure. procedure.

Article 218 Article 433 (ex-Article 218 TFEU)

1. Without prejudice to the speciﬁ c provi- 1. Without prejudice to the speciﬁ c provisions laid down in Article 207, agreements sions laid down in Article 424, agreements between the Union and third countries or between the Union and third countries or international organisations shall be negoti- international organisations shall be negotiated and concluded in accordance with the ated and concluded in accordance with the following procedure. following procedure.

2. The Council shall authorise the opening 2. Acting in accordance with the ordinary of negotiations, adopt negotiating directives, legislative procedure, on a proposal from the authorise the signing of agreements and Commission, the European Parliament and conclude them. Council shall authorise the opening of negotiations, adopt negotiating directives, authorise the signing of agreements and conclude them.

3. The Commission, or the High Represent- 3. The Commission shall submit proposals ative of the Union for Foreign Aff airs and to the Council, which shall adopt a decision Security Policy where the agreement envisaged authorising the opening of negotiations. relates exclusively or principally to the common The Commission shall conduct the negotia- foreign and security policy, shall submit tions. recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union’s negotiating team.

4. The Council may address directives to the negotiator and designate a special committee in consultation with which the negotiations must be conducted.

265 PART VIII

5. The Council, on a proposal by the negoti- 4. The Council, on a proposal by the ator, shall adopt a decision authorising the Commission, shall adopt a decision author- signing of the agreement and, if necessary, ising the signing of the agreement. If its its provisional application before entry into provisional application before entry into force. force is necessary, the decision can only be adopted after obtaining the consent of the European Parliament.

6. The Council, on a proposal by the negoti- 5. The Council, on a proposal by the ator, shall adopt a decision concluding the Commission, shall adopt a decision agreement. concluding the agreement after obtaining the consent of the European Parliament. Except where agreements relate exclusively to the common foreign and security policy, the The European Parliament shall deliver its Council shall adopt the decision concluding the decision within a time-limit which the agreement: Commission may set depending on the urgency of the matter. In the absence of a (a) after obtaining the consent of the European decision within that time-limit, the Council Parliament in the following cases: may act.

(i) association agreements;

(ii) agreement on Union accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms;

(iii) agreements establishing a specifi c institutional framework by organising cooperation procedures;

(iv) agreements with important budgetary implications for the Union;

(v) agreements covering fi elds to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required.

The European Parliament and the Council may, in an urgent situation, agree upon a time-limit for consent.

266 CHAPTER SIX

(b) after consulting the European Parliament in other cases. The European Parliament shall deliver its opinion within a time-limit which the Council may set depending on the urgency of the matter. In the absence of an opinion within that time-limit, the Council may act.

7. When concluding an agreement, the 6. When concluding an agreement, the Council may, by way of derogation from para- Council may authorise the Commission to graphs 5, 6 and 9, authorise the negotiator to approve on the Union’s behalf modifi ca- approve on the Union’s behalf modifi cations tions to the agreement where it provides for to the agreement where it provides for them them to be adopted by a simplifi ed to be adopted by a simplifi ed procedure or procedure or by a body set up by the by a body set up by the agreement. The agreement. The Council may attach specifi c Council may attach specifi c conditions to conditions to such authorisation. such authorisation.

8. The Council shall act by a qualiﬁ ed 7. The Council shall act by a qualiﬁ ed majority throughout the procedure. majority throughout the procedure.

However, it shall act unanimously when the However, for the negotiation and conclusion of agreement covers a fi eld for which unanimity is agreements which include provisions for which required for the adoption of a Union act as well the special legislative procedure is required for as for association agreements and the agree- the adoption of internal rules, the Council ments referred to in Article 212 with the States shall act in accordance with Article 14(5). which are candidates for accession. The Council shall also act unanimously for the The decision concluding the agreement on agreement on accession of the Union to the accession of the Union to the European European Convention for the Protection of Convention for the Protection of Human Human Rights and Fundamental Rights and Fundamental Freedoms shall Freedoms; the decision concluding this enter into force after it has been approved agreement shall enter into force after it has by the States in accordance with their been approved by the Member States in respective constitutional requirements. accordance with their respective constitutional requirements.

9. The Council, on a proposal from the 8. The Commission shall adopt a decision Commission or the High Representative of the suspending application of an agreement Union for Foreign Aff airs and Security Policy, and establishing the positions to be adopted shall adopt a decision suspending applica- on the Union’s behalf in a body set up by an tion of an agreement and establishing the agreement, when that body is called upon to positions to be adopted on the Union’s adopt acts having legal effects, with the behalf in a body set up by an agreement, exception of acts supplementing or when that body is called upon to adopt acts amending the institutional framework of having legal effects, with the exception of the agreement. acts supplementing or amending the institutional framework of the agreement.

267 PART VIII

10. The European Parliament shall be 9. The European Parliament shall be immediately and fully informed at all stages immediately and fully informed at all stages of the procedure. of the procedure.

In cases where the Council acts according to its rules under the special legislative procedure, the Parliament shall vote to give its consent by a majority of its component Members.

11. A Member State, the European Parlia- 10. A State, the European Parliament, the ment, the Council or the Commission may Council or the Commission may obtain the obtain the opinion of the Court of Justice as opinion of the Court of Justice as to whether to whether an agreement envisaged is an agreement envisaged is compatible with compatible with the Treaties. Where the the Fundamental Law. Where the opinion opinion of the Court is adverse, the of the Court is adverse, the agreement agreement envisaged may not enter into envisaged may not enter into force unless it force unless it is amended or the Treaties is amended or the Fundamental Law is are revised. revised.

Article 219 Article 434 (ex-Article 219 TFEU)

1. By way of derogation from Article 218, 1. By way of derogation from Article 433, the Council, either on a recommendation the Commission, either on a recommenda- from the European Central Bank or on a tion from the Council or the European recommendation from the Commission and Central Bank, and after consulting the after consulting the European Central European Central Bank, in an endeavour to Bank, in an endeavour to reach a consensus reach a consensus consistent with the consistent with the objective of price objective of price stability, may conclude stability, may conclude formal agreements formal agreements on an exchange-rate on an exchange-rate system for the euro in system for the euro in relation to the relation to the currencies of third States. currencies of third States. The Council shall act unanimously after consulting the European Parliament and in The Commission may, either on a recom- accordance with the procedure provided for in mendation from the Council or the European paragraph 3. Central Bank, and after consulting the European Central Bank, in an endeavour to The Council may, either on a recommenda- reach a consensus consistent with the tion from the European Central Bank or on objective of price stability, adopt, adjust or a recommendation from the Commission, abandon the central rates of the euro within and after consulting the European Central the exchange-rate system. The President of Bank, in an endeavour to reach a consensus the Commission shall inform the European consistent with the objective of price Parliament and the Council of the adoption, stability, adopt, adjust or abandon the adjustment or abandonment of the euro central rates of the euro within the central rates. exchange-rate system. The President of the Council shall inform the European Parlia- ment of the adoption, adjustment or abandonment of the euro central rates.

268 CHAPTER SIX

2. In the absence of an exchange-rate 2. In the absence of an exchange-rate system in relation to one or more currencies system in relation to one or more currencies of third States as referred to in paragraph 1, of third States as referred to in paragraph 1, the Council, either on a recommendation the Commission, after consulting the from the Commission and after consulting European Parliament, the Council and the the European Central Bank or on a recom- European Central Bank or on a recommen- mendation from the European Central dation from the European Central Bank, Bank, may formulate general orientations may formulate general orientations for for exchange-rate policy in relation to these exchange-rate policy in relation to these currencies. These general orientations shall currencies. These general orientations shall be without prejudice to the primary be without prejudice to the primary objective of the ESCB to maintain price objective of the ESCB to maintain price stability. stability.

3. By way of derogation from Article 218, 3. By way of derogation from Article 433, where agreements concerning monetary or where agreements concerning monetary or foreign exchange regime matters need to be foreign exchange regime matters need to be negotiated by the Union with one or more negotiated by the Union with one or more third States or international organisations, third States or international organisations, the Council, on a recommendation from the the Commission, after consulting the Council Commission and after consulting the and the European Central Bank, shall European Central Bank, shall decide the decide the arrangements for the negotiation arrangements for the negotiation and for and for the conclusion of such agreements. the conclusion of such agreements. These These arrangements shall ensure that the arrangements shall ensure that the Union Union expresses a single position. expresses a single position. The Commission shall be fully associated with the negotiations.

4. Without prejudice to Union competence 4. Without prejudice to Union competence and Union agreements as regards economic and Union agreements as regards economic and monetary union, Member States may and monetary union, States may negotiate negotiate in international bodies and in international bodies and conclude inter- conclude international agreements. national agreements. States intending so to negotiate in shall inform the Commission thereof.

THE UNION’S RELATIONS WITH INTERNATIONAL INTERNATIONAL ORGANISATIONS ORGANISATIONS AND THIRD COUNTRIES AND UNION DELEGATIONS

Articles 220–221 Articles 435–436 ….. (ex-Articles 220–221 TFEU) …..

269 SOLIDARITY

CHAPTER SEVEN

The ﬁ nal chapter deals with the procedures concerning solidarity in the case of disasters. The role of the Commission and Parliament are enhanced in the protection of the security interest of the Union.

SOLIDARITY CLAUSE SOLIDARITY

Article 222 Article 437 (ex-Article 222 TFEU)

1. The Union and its Member States shall 1. The Union and its States shall act jointly act jointly in a spirit of solidarity if a in a spirit of solidarity if a State is the object Member State is the object of a terrorist of a terrorist attack or the victim of a attack or the victim of a natural or natural or man-made disaster. The Union man-made disaster. The Union shall shall mobilise all the instruments at its mobilise all the instruments at its disposal, disposal, including the military resources including the military resources made made available by the States, to: available by the Member States, to:

(a) – prevent the terrorist threat in the (a) – prevent the terrorist threat in the territory of the Member States; territory of the Union;

– protect democratic institutions and the – protect democratic institutions and the civilian population from any terrorist attack; civilian population from any terrorist attack;

– assist a Member State in its territory, at – assist a State in its territory, at the the request of its political authorities, in the request of its political authorities, in the event of a terrorist attack; event of a terrorist attack;

(b) assist a Member State in its territory, at (b) assist a State in its territory, at the the request of its political authorities, in the request of its political authorities, in the event of a natural or man-made disaster. event of a natural or man-made disaster.

270 CHAPTER SEVEN

2. Should a Member State be the object of a 2. Should a State be the object of a terrorist terrorist attack or the victim of a natural or attack or the victim of a natural or man- man-made disaster, the other Member States made disaster, the Union institutions and the shall assist it at the request of its political other States shall assist it at the request of authorities. To that end, the Member States its political authorities. To that end, the shall coordinate between themselves in the Commission shall coordinate the assistance. Council.

3. The arrangements for the implementa- 3. The arrangements for the implementation by the Union of the solidarity clause tion by the Union of the solidarity clause shall be deﬁ ned by a decision adopted by the shall be deﬁ ned in regulations laid down by Council acting on a joint proposal by the the European Parliament and the Council, Commission and the High Representative of acting on a proposal by the Commission, in the Union for Foreign Aff airs and Security accordance with the special legislative Policy. The Council shall act in accordance procedure. with Article 31(1) of the Treaty on European Union where this decision has defence implications. The European Parliament shall be informed.

For the purposes of this paragraph and For the purposes of this paragraph and without prejudice to Article 240, the without prejudice to Article 38, the Council Council shall be assisted by the Political shall be assisted by the Political and and Security Committee with the support Security Committee with the support of the of the structures developed in the context of structures developed in the context of the the common security and defence policy common security and defence policy and by and by the Committee referred to in Article the Committee referred to in Article 380; 71; the two committees shall, if necessary, the two committees shall, if necessary, submit joint opinions. submit joint opinions.

4. The European Council shall regularly 4. The European Council shall regularly assess the threats facing the Union in order assess the threats facing the Union in order to enable the Union and its Member States to enable the Union and its States to take to take effective action. effective action.

IN WITNESS WHEREOF, the undersigned Plenipotentiaries have signed this Fundamental Law.

Done at ………………………………………….

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We make no proposal to alter Protocol Nos 1 or 2 on the role of national parliaments. Interparliamentary cooperation between the European Parliament and national parliaments is bedding down. To date, the requisite number of national parliaments has not been found to trigger the ‘yellow card’ against a draft law on the grounds of an alleged breach of the principle of subsidiarity.

Protocol No 3 comprises a radically amended version of the 1976 Act which, already having the status of EU primary law, introduced direct elections to the European Parliament. The new Protocol reﬂ ects the new mandate of MEPs, made by the Lisbon treaty, as being ‘representatives of the citizens of the Union’ (Article 1). Article 3 deﬁ nes what is meant by the principle of degressive proportionality. Article 4 empowers the Parliament to establish an arithmetical formula for seat apportionment. Article 5 introduces the concept of electing a certain number of MEPs in a pan-EU constituency from transnational lists. An EU electoral authority will be established to oversee the conduct of elections to the Parliament.

No changes are proposed at this stage to the Statutes of the ECJ, ECB or EIB (Protocol Nos 4, 5 and 6, respectively).

Protocol No 7 modernises the 1965 Protocol on privileges and immunities with respect to the rights and duties of MEPs. The new regime reﬂ ects the supranational autonomy of the European Parliament.

Protocol No 8, on permanent structured cooperation in defence, includes the concept of the battlegroup.

Protocol No 9 ﬂ eshes out the concept of Associate Membership of the Union (Article 136). Article 2 lays down the obligations of Associate Members. Article 3 provides for the relationship between the associate and full member states. Articles 4 and 5 lay down the institutional engagement of associates.

We propose no change to Protocol No 10 except to the title to include the factor of excessive debt as well as deﬁ cit. No change is proposed to the euro convergence criteria in Protocol No 11. Protocol No 12 is amended to reﬂ ect the fact that economic governance of the euro states is pitched by the Fundamental Law within the context of enhanced cooperation.

Protocol No 18 sets out the procedure for the entry into force of the Fundamental Law and a contingency plan for what happens if unanimity of ratiﬁ cation is not

272 PROTOCOLS

achieved. In short, EU member states which do not wish to take the federal step forward will be expected either to adopt associate membership status or to leave the Union altogether. They will be discouraged from blocking deeper integration by and for those who want it.

A number of Lisbon Protocols are deleted either because they are redundant or because they contradict the general approach taken in the Fundamental Law that all EU members are expected to join the euro and to play a full part in all aspects of integration. Opt-outs and derogations are discouraged in favour of the more formal, and less destabilising, associate membership. It remains for the three countries concerned, Denmark, Ireland and the UK, to make their choices.

We delete ex-Protocol No 6 of Lisbon to reﬂ ect the new system for decisions on the location of seats (Article 120).

PROTOCOLS PROTOCOLS

Protocol No 1 Protocol No 1 on the role of National Parliaments in the The Role of State Parliaments European Union ….. …..

Protocol No 2 Protocol No 2 on the application of the Principles of The Application of the Principles of Subsidi- Subsidiarity and Proportionality arity and Proportionality ….. …..

ACT Protocol No 3 concerning the election of the Seat Apportionment and Electoral members of the European Parliament Procedure of the European Parliament by direct universal suffrage

Article 1 Article 1 (ex-Article 1 Electoral Act)

1. In each Member State, members of the 1. Members of the European Parliament European Parliament shall be elected on the shall be elected as representatives of the basis of proportional representation, using citizens of the Union on the basis of propor- the list system or the single transferable tional representation, using the list system vote. or the single transferable vote.

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Article 2 Article 2 (ex-Article 2 Electoral Act) In accordance with its specifi c national situation, each Member State may establish Each State may establish constituencies for constituencies for elections to the European elections to the European Parliament or Parliament or subdivide its electoral area in subdivide its electoral area in a different a different manner, without generally manner, without generally affecting the affecting the proportional nature of the proportional nature of the voting system. voting system. Article 3 Article 3 1. For the purpose of the apportionment of Member States may set a minimum seats among States in accordance with the threshold for the allocation of seats. At principle of degressive proportionality pursuant national level this threshold may not exceed to Article [12(3)] of the Fundamental Law, the 5 per cent of votes cast. ratio between the population and the number of seats of each State, before rounding to whole Article 4 numbers, shall vary in relation to their respective populations in such a way that each Each Member State may set a ceiling for Member elected in a more populous State candidates’ campaign expenses. represents more citizens than each Member elected in a less populous State and also, Article 5 conversely, that no less populous State has more seats than a more populous State. 1. The ﬁ ve-year term for which members of the European Parliament are elected shall 2. Where a State accedes to the Union during begin at the opening of the ﬁ rst session a parliamentary term, it shall be allocated following each election. seats which will be added to the number of seats provided for in Article [12(2)] on a transitional It may be extended or curtailed pursuant to basis for the remainder of that parliamentary the second subparagraph of Article 10 (2). term.

2. The term of ofﬁ ce of each member shall Article 4 begin and end at the same time as the period referred to in paragraph 1. The European Parliament and the Council, acting in accordance with the special legislative Article 6 procedure, shall establish a fair, durable and transparent system for the apportionment of the 1. Members of the European Parliament seats in the Parliament per State. The system shall vote on an individual and personal will take account of demography, the principle basis. They shall not be bound by any of degressive proportionality as set forth in instructions and shall not receive a binding Article 3(1), and the election of a certain mandate. number of Members in accordance with the provisions of Article 5. 2. Members of the European Parliament shall enjoy the privileges and immunities applicable to them by virtue of the Protocol of 8 April 1965 on the privileges and immunities of the European Communities.

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Article 7 Article 5

1. The ofﬁ ce of member of the European 1. Pursuant to Article [12(3)] of the Funda- Parliament shall be incompatible with that of: mental Law, there shall be one additional constituency formed of the entire territory of the − member of the government of a Member Union from which shall be elected a certain State, number of Members. The number of such Members to be elected from the single European − member of the Commission of the seat at the next elections shall be determined European Communities, before the end of the fourth calendar year of the parliamentary term. − Judge, Advocate-General or Registrar of the Court of Justice of the European This decision on the number of such Members Communities or of the Court of First shall be taken on a proposal of the Parliament Instance, by the Council, acting by qualifi ed majority, and with the consent of Parliament, which − member of the Board of Directors of the shall act by a majority of its component European Central Bank, Members.

− member of the Court of Auditors of the 2. The European Parliament and the Council, European Communities, acting in accordance with the ordinary legislative procedure, shall establish a European − Ombudsman of the European Commu- electoral authority to conduct and verify the nities, electoral process of the European Union constituency. − member of the Economic and Social Committee of the European Community 3. The transnational lists of candidates for and of the European Atomic Energy election in the European Union constituency Community, shall be registered with the European electoral authority by the European political parties. − member of the Committee of the The lists shall be admissible only if composed of Regions, candidates resident in at least one third of the States. − member of committees or other bodies set up pursuant to the Treaties establishing the 4. Each elector shall have two votes, one that European Community and the European may be cast for the election of Members in the Atomic Energy Community for the purposes of State and one supplementary vote that may be managing the Communities’ funds or carrying cast for the European Union-wide list. Seats out a permanent direct administrative task, shall be allocated from the European lists in accordance with the Sainte-Laguë method. − member of the Board of Directors, Management Committee or staff of the Article 6 European Investment Bank, (ex-Article 3 Electoral Act)

− active ofﬁ cial or servant of the institu- States may set a minimum threshold for the tions of the European Communities or of allocation of seats. At national level this the specialised bodies attached to them or threshold may not exceed 5 per cent of votes of the European Central Bank. cast.

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2. From the European Parliament elections in There shall be no minimum threshold for the 2004, the offi ce of member of the European allocation of seats from the European Union Parliament shall be incompatible with that of constituency. member of a national parliament. Article 7 By way of derogation from that rule and (ex-Article 4 Electoral Act) without prejudice to paragraph 3: The limitation of campaign expenses of candi- − members of the Irish National Parliament dates and political parties shall be laid down in who are elected to the European Parliament at delegated acts. a subsequent poll may have a dual mandate until the next election to the Irish National Article 8 Parliament, at which juncture the fi rst subpar- (ex-Articles 5, 10 & 11 Electoral Act) agraph of this paragraph shall apply; 1. Elections to the European Parliament − members of the United Kingdom Parlia- shall be held in May; for all States this date ment who are also members of the European shall fall within the same period starting on Parliament during the fi ve-year term preceding a Saturday morning and ending on the election to the European Parliament in 2004 Sunday. The European Parliament and the may have a dual mandate until the 2009 Council, acting in accordance with the European Parliament elections, when the fi rst ordinary legislative procedure, shall determine subparagraph of this paragraph shall apply. the date of the polling days of the next election before the end of the fourth calendar year of the 3. In addition, each Member State may, in parliamentary term. the circumstances provided for in Article 8, extend rules at national level relating to incom- 2. States may not offi cially make public the patibility. results of their count until after the close of polling in the State whose electors are the 4. Members of the European Parliament to last to vote within the polling period. whom paragraphs 1, 2 and 3 become applicable in the course of the fi ve-year period 3. The fi ve-year term for which Members referred to in Article 5 shall be replaced in of the European Parliament are elected shall accordance with Article 13. begin at the opening of the fi rst session following each election. The Parliament Article 8 shall meet, without requiring to be convened, on the fi rst Tuesday after expiry Subject to the provisions of this Act, the of an interval of one month from the end of electoral procedure shall be governed in the polling period. each Member State by its national provisions. The powers of the Parliament shall cease upon the opening of the fi rst sitting of the These national provisions, which may if new Parliament. appropriate take account of the specifi c situation in the Member States, shall not affect the essentially proportional nature of the voting system.

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Article 9 Article 9 (ex-Article 6 Electoral Act) No one may vote more than once in any election of members of the European Parlia- 1. Members of the European Parliament ment. shall vote on an individual and personal basis. They shall not be bound by any Article 10 instructions and shall not receive a binding mandate. 1. Elections to the European Parliament shall be held on the date and at the times 2. Members of the European Parliament fi xed by each Member State; for all Member shall have the rights and obligations laid down States this date shall fall within the same in the Members’ Statute and the Protocol on period starting on a Thursday morning and the privileges and immunities of the ending on the following Sunday. European Union.

2. Member States may not offi cially make Article 10 public the results of their count until after (ex-Article 7 Electoral Act) the close of polling in the Member State whose electors are the last to vote within the 1. The offi ce of Member of the European period referred to in paragraph 1. Parliament shall be incompatible with that of: Article 11 − member of a State or of a regional parlia- 1. The Council, acting unanimously after ment or assembly with legislative powers, consulting the European Parliament, shall determine the electoral period for the fi rst − member of the government of a State, elections. − member of the European Commission, 2. Subsequent elections shall take place in the corresponding period in the last year of − Judge, Advocate-General or Registrar of the fi ve-year period referred to in Article 5. the European Court of Justice,

Should it prove impossible to hold the elections − member of the Board of Directors of the in the Community during that period, the European Central Bank, Council acting unanimously shall, after consulting the European Parliament, − member of the Court of Auditors, determine, at least one month before the end of the fi ve-year term referred to in Article 5, − Ombudsman, another electoral period which shall not be more than two months before or one month − member of the Economic and Social after the period fi xed pursuant to the preceding Committee, subparagraph. − member of the Committee of the Regions, 3. Without prejudice to Article 196 of the Treaty establishing the European Community − active ofﬁ cial or servant of an institution, and Article 109 of the Treaty establishing the agency or body of the European Union. European Atomic Energy Community, the European Parliament shall meet, without 2. Members of the European Parliament to requiring to be convened, on the ﬁ rst whom paragraph 1 becomes applicable in

277 PROTOCOLS

Tuesday after expiry of an interval of one the course of the ﬁ ve-year period referred to month from the end of the electoral period. in Article 8 shall be replaced in accordance with Article 15 or 16. 4. The powers of the European Parliament shall cease upon the opening of the ﬁ rst Article 11 sitting of the new European Parliament. (ex-Article 8 Electoral Act)

Article 12 Subject to the provisions of this Protocol, the electoral procedure shall be governed in The European Parliament shall verify the each State by its own provisions. credentials of members of the European Parliament. For this purpose it shall take These provisions shall not affect the essen- note of the results declared ofﬁ cially by the tially proportional nature of the voting system. Member States and shall rule on any disputes which may arise out of the provi- Article 12 sions of this Act other than those arising (ex-Article 9 Electoral Act) out of the national provisions to which the Act refers. Without prejudice to Article 5(4), no one may vote more than once in any election of Article 13 members of the European Parliament.

1. A seat shall fall vacant when the Article 13 mandate of a member of the European (ex-Article 12 Electoral Act) Parliament ends as a result of resignation, death or withdrawal of the mandate. The European Parliament shall verify the credentials of the Members of Parliament on 2. Subject to the other provisions of this the basis of the results declared offi cially by Act, each Member State shall lay down the European electoral authority and by the appropriate procedures for fi lling any seat States, respectively. It shall rule on any which falls vacant during the fi ve-year term disputes which may arise. of offi ce referred to in Article 5 for the remainder of that period. Article 14 (ex-Article 13(1) Electoral Act) 3. Where the law of a Member State makes explicit provision for the withdrawal of the A seat shall fall vacant when the mandate of mandate of a member of the European a member of the European Parliament ends Parliament, that mandate shall end as a result of resignation, death or with- pursuant to those legal provisions. The drawal of the mandate. competent national authorities shall inform the European Parliament thereof. Article 15 (ex-Article 13(2-4) Electoral Act) 4. Where a seat falls vacant as a result of resignation or death, the President of the 1. In the case of the Members elected in the European Parliament shall immediately States, and subject to the other provisions of inform the competent authorities of the this Protocol, each State shall lay down appro- Member State concerned thereof. priate procedures for fi lling any seat which falls vacant during the fi ve-year term of offi ce referred to in Article 8 for the remainder of that period.

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Article 14 2. Where the law of a State provides for a temporary replacement of a member of its State Should it appear necessary to adopt measures Parliament on maternity leave, that State may to implement this Act, the Council, acting decide that such provisions are to apply mutatis unanimously on a proposal from the European mutandis to the Members of the European Parliament after consulting the Commission, Parliament elected in that State. shall adopt such measures after endeavouring to reach agreement with the European Parlia- 3. Where the law of a State makes explicit ment in a conciliation committee consisting of provision for the withdrawal of the mandate of the Council and representatives of the a Member of the European Parliament elected European Parliament. in that State, that mandate shall end pursuant to those legal provisions. Such legal provisions Article 15 shall not be adopted with retroactive eff ect. The competent State authorities shall inform the This Act is drawn up in the Danish, Dutch, European Parliament thereof. English, Finnish, French, German, Greek, Irish, Italian, Portuguese, Spanish and 4. Where a seat of a Member elected in the Swedish languages, all the texts being equally States falls vacant as a result of resignation or authentic. death, the President of the European Parlia- ment shall immediately inform the competent Annexes I and II shall form an integral part of authorities of the State concerned thereof. this Act. Article 16 Article 16 1. In the case of the Members elected for the The provisions of this Act shall enter into force European Union constituency, and subject to on the fi rst day of the month following that the other provisions of this Protocol, appro- during which the last of the notifi cations priate procedures for the fi lling of any vacancy referred to in the Decision is received. for the remainder of the fi ve-year term of offi ce referred to in Article 8 shall be laid down in Udfærdiget i Bruxelles, den tyvende september delegated acts. nitten hundrede og seksoghalvfj erds. 2. Where the law of the Union makes explicit provision for the withdrawal of the mandate of Geschehen zu Brüssel am zwanzigsten a Member of the European Parliament elected September neunzehnhundert- on the European Union-wide list, that sechsundsiebzig. mandate shall end pursuant to those legal provisions. The electoral authority shall inform Done at Brussels on the twentieth day of the European Parliament thereof. September in the year one thousand nine hundred and seventy-six. 3. Where a seat of a Member elected for the European Union constituency falls vacant as a Fait à Bruxelles, le vingt septembre mil neuf result of resignation or death, the President of cent soixante-seize. the European Parliament shall immediately inform the electoral authority thereof. Arna dhéanamh sa Bhruiséil, an fi chiú lá de mhí Mhéan Fómhair, míle naoi gcéad seachtó a sé.

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Fatto a Bruxelles, addì venti settembre mille- novecentosettantasei.

Gedaan te Brussel, de twintigste september negentienhonderd zesenze- ventig.

ANNEX I

The United Kingdom will apply the provisions of this Act only in respect of the United Kingdom.

ANNEX II

Declaration on Article 14

As regards the procedure to be followed by the Conciliation Committee, it is agreed to have recourse to the provisions of paragraphs 5, 6 and 7 of the procedure laid down in the joint declaration of the European Parliament, the Council and the Commission of 4 March 1975.

Protocol No 3 Protocol No 4 on the statute of the Court of Justice of the The Statute of the Court of Justice of the European Union European Union …......

Protocol No 4 Protocol No 5 on the statute of the European System of The Statute of the European System of Central Banks and of the European Central Central Banks and of the European Central Bank Bank …......

Protocol No 5 Protocol No 6

On the statute of the European Investment The Statute of the European Investment Bank Bank ….. …..

Protocol No 6 [delete] on the location of the seats of the institutions and of certain bodies, ofﬁ ces, agencies and departments of the European Union

280 PROTOCOLS

Protocol No 7 Protocol No 7 on the privileges and immunities of the The Privileges and Immunities of the European European Union Union

Articles 1–6 Articles 1–6 ….. …..

Article 7 Article 7

No administrative or other restriction shall No administrative or other restriction shall be imposed on the free movement of be imposed on the free movement of Members of the European Parliament trav- Members of the European Parliament. elling to or from the place of meeting of the European Parliament. Members of the European Parliament shall, in respect of customs and exchange control, Members of the European Parliament shall, be accorded: in respect of customs and exchange control, be accorded: (a) by their own government, the same facilities as those accorded to senior offi cials (a) by their own government, the same travelling abroad on temporary offi cial facilities as those accorded to senior offi cials missions; travelling abroad on temporary offi cial missions; (b) by the government of other States, the same facilities as those accorded to repre- (b) by the government of other Member sentatives of foreign governments on States, the same facilities as those accorded temporary offi cial missions. to representatives of foreign governments on temporary offi cial missions.

Article 8 Article 8

Members of the European Parliament shall Members of the European Parliament shall not be subject to any form of inquiry, at no time be subject to any form of inquiry, detention or legal proceedings in respect of detention or legal proceedings in respect of opinions expressed or votes cast by them in any action taken, votes cast or statement made the performance of their duties. in the exercise of their mandate.

The European Parliament shall decide, on the application of a Member, whether an action was taken or a statement was made in the exercise of his or her mandate.

The European Parliament shall lay down provisions for the implementation of this Article in its rules of procedure.

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Article 9 Article 9

During the sessions of the European Parlia- 1. Any restriction of a Member’s personal ment, its Members shall enjoy: freedom shall be permitted only with the consent of the European Parliament, except (a) in the territory of their own State, the where he or she is caught in the act of commit- immunities accorded to members of their ting an off ence. parliament; 2. The seizure of a Member’s documents or (b) in the territory of any other Member State, electronic records or the searching of his or her immunity from any measure of detention and person, offi ce or place of residence or intercep- from legal proceedings. tion of his or her mail or telephone calls may be ordered only with the consent of the European Immunity shall likewise apply to Members Parliament. while they are travelling to and from the place of meeting of the European Parliament. 3. A Member shall be entitled to decline to give evidence about information which that Immunity cannot be claimed when a Member Member has obtained in the exercise of his or is found in the act of committing an off ence her mandate or about persons from or to whom and shall not prevent the European Parliament he or she has obtained or given such informa- from exercising its right to waive the immunity tion. of one of its Members. 4. Investigations or criminal proceedings against a Member shall be suspended at the request of the European Parliament.

5. Consent pursuant to paragraph 2 shall be applied for only by a State authority competent under the law of that State.

Consent pursuant to paragraph 2 or suspension pursuant to paragraph 4 may be granted condi- tionally, or for a limited period or on a restricted basis.

Articles 10–22 Articles 10–22 ….. …..

Protocol No 8 [delete]

Relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Funda- mental Freedoms

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Protocol No 9 [delete] on the decision of the Council relating to the implementation of Article 16(4) of the Treaty on European Union and Article 238(2) of the Treaty on the Functioning of the European Union between 1 November 2014 and 31 March 2017 on the one hand, and as from 1 April 2017 on the other

Protocol No 10 Protocol No 8 on permanent structured cooperation estab- Permanent Structured Cooperation in lished by Article 42 of the Treaty on Defence European Union ......

Article 1 Article 1

The permanent structured cooperation The permanent structured cooperation referred to in Article 42(6) of the Treaty on referred to in Article [42(6)] of the Funda- European Union shall be open to any Member mental Law shall be open to any State which State which undertakes, from the date of entry undertakes to: into force of the Treaty of Lisbon, to:

(a) proceed more intensively to develop its (a) proceed more intensively to develop its defence capacities through the development defence capacities through the development of its national contributions and participa- of its national contributions and participation, where appropriate, in multinational tion, where appropriate, in multinational forces, in the main European equipment forces, in the main European equipment programmes, and in the activity of the programmes, and in the activity of the Agency in the ﬁ eld of defence capabilities European Defence Agency in the ﬁ eld of development, research, acquisition and defence capabilities development, research, armaments (European Defence Agency), and acquisition and armaments;

(b) have the capacity to supply by 2010 at the (b) have the capacity to supply, either at latest, either at national level or as a State level or as a component of multina- component of multinational force groups, tional force groups, targeted combat units targeted combat units for the missions for the missions planned, structured at a planned, structured at a tactical level as a tactical level as a battlegroup, with support battlegroup, with support elements elements including transport and logistics, including transport and logistics, capable of capable of carrying out the tasks referred to carrying out the tasks referred to in Article in Article [43], within a period of ﬁ ve to 30 43 of the Treaty on European Union, within days, in particular in response to requests a period of ﬁ ve to 30 days, in particular in from the United Nations Organisation, and response to requests from the United which can be sustained for an initial period Nations Organisation, and which can be of 30 days and be extended up to at least 120 sustained for an initial period of 30 days days; and be extended up to at least 120 days.

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(c) establish a battlegroup under European command comprising three or more States in accordance with a Union law which shall lay down the modalities of military command, political control, fi nancing, recruitment, armament, and deployment.

Article 2 Article 2 ......

Protocol No 11 [delete] on Article 42 of the Treaty on European Union

Protocol No 9

Associate Membership of the Union

Article 1

1. This Protocol lays down guidelines for the negotiation and conclusion of an agreement admitting any European state to associate membership of the Union, pursuant to Article 137. The agreement will set out the terms, conditions, scope and limits of associate membership and the adjustments to the law of the Union which such association entails. The agreement may be of limited duration.

Article 2

The agreement shall commit the Associate State to respect and promote the values and principles of the Union, as laid down in Article 2. The Associate State shall not obstruct the Union from pursuing and accom- plishing its goals and objectives, as laid down in Article 3. It shall be bound to respect the principle of sincere cooperation, pursuant to Article 4(3). It shall respect and promote the Charter of Fundamental Rights.

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Article 3

1. The agreement shall specify in which of the Union’s policies and functions the Associate State is to participate, and the terms and conditions, fi nancial and institutional, which shall apply to that participation.

2. Participation by an Associate State in the internal market, in whole or in part, may not risk the operation of the market.

3. Participation by an Associate State in the external action of the Union or in an international agreement of the Union shall not prejudice the cohesion or limit the scope of the Union’s position.

4. Associate States may have service agreements with the Commission or the agencies of the Union for the delivery of policy in certain specifi ed fi elds. These arrangements may contain reciprocal rights and obligations as well as the possibility of undertaking activities jointly.

Article 4

1. Members of the government and parliament of an Associate State shall be invited to participate in meetings of the European Parlia- ment, European Council and Council, respectively, as and when appropriate for the purposes of implementing the agreement.

2. Offi cials representing the government of an Associate State may participate in relevant consultative processes of the European Commis- sion and in appropriate committees which dispose of delegated acts and implementing measures.

3. The modalities of the participation of representatives of Associate States shall be laid down by each institution in its own rules of procedure.

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Article 5

1. Associate States shall acknowledge the jurisdiction of the Court of Justice.

An Associate State may intervene in cases before the Court of Justice. It may institute third-party proceedings to contest a judgment rendered without its being heard, where the judgment is prejudicial to its rights.

2. Associate States shall nominate judges to the Court of Justice and General Court on the same terms and conditions, and according to the same procedures, as a judge nominated by a State having full membership of the Union.

Judges from Associate States shall not sit in cases where the law of the Union does not apply specifi cally to the Associate State concerned.

Article 6

An associate membership agreement may be suspended, in whole or in part, in accordance with the procedures laid down in Article 133.

Protocol No 12 Protocol No 10 on the excessive deﬁ cit procedure The Excessive Debt and Deﬁ cit Procedure ….. …..

Protocol No 13 Protocol No 11 on the convergence criteria The euro convergence criteria ….. …..

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Protocol No 14 Protocol No 12 on the euro group The Eurogroup

THE HIGH CONTRACTING PARTIES, Article 1 DESIRING to promote conditions for stronger economic growth in the European Union and, Conscious of the need to lay down special to that end, to develop ever-closer coordination provisions for closer integration between the of economic policies within the euro area, States whose currency is the euro, those States CONSCIOUS of the need to lay down agree to establish enhanced cooperation between special provisions for enhanced dialogue themselves, pending the euro becoming the between the Member States whose currency currency of all States of the Union. is the euro, pending the euro becoming the currency of all Member States of the Union, They shall act in accordance with the enhanced HAVE AGREED UPON the following provi- cooperation provisions of the Fundamental sions, which shall be annexed to the Treaty on Law save where that Law and this Protocol European Union and to the Treaty on the otherwise provide. Functioning of the European Union: Article 2 Article 1 (ex-Article 1)

The Ministers of the Member States whose The ministers of the States whose currency currency is the euro shall meet informally. is the euro form the Eurogroup. They shall Such meetings shall take place, when meet when necessary to discuss questions necessary, to discuss questions related to related to the specifi c responsibilities they the specifi c responsibilities they share with share with regard to the single currency. regard to the single currency. The Commis- The Commission shall take part in the sion shall take part in the meetings. The meetings. The European Central Bank shall European Central Bank shall be invited to be invited to take part in such meetings, take part in such meetings, which shall be which shall be prepared by the representa- prepared by the representatives of the tives of the Ministers with responsibility for Ministers with responsibility for fi nance of fi nance of the States whose currency is the the Member States whose currency is the euro and of the Commission. euro and of the Commission. Article 3 Article 2 Meetings of the Eurogroup shall be chaired by The Ministers of the Member States whose the Chair of the Council of Economic and currency is the euro shall elect a president Financial Aff airs. for two and a half years, by a majority of those Member States. The Eurogroup will agree and publish its rules of procedure.

Protocol No 15 [delete] on certain provisions relating to the United Kingdom of Great Britain and Northern Ireland

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Protocol No 16 [delete] on certain provisions relating to Denmark

Protocol No 17 [delete] on Denmark

Protocol No 18 Protocol No 13 on France on France ….. …..

Protocol No 19 [delete] on the Schengen acquis integrated into the framework of the European Union

Protocol No 20 [delete] on the application of certain aspects of Article 26 of the Treaty on the Functioning of the European Union to the United Kingdom and to Ireland

Protocol No 21 [delete] on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice

Protocol No 22 [delete] on the position of Denmark

Protocol No 23 [delete] on external relations of the Member States with regard to the crossing of external borders

Protocol No 24 Protocol No 14 on asylum of nationals of Member States of on asylum of nationals of Member States of the European Union the European Union ….. …..

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Protocol No 25 [delete] on the exercise of shared competence

Protocol No 26 Protocol No 15 on services of general interest on services of general interest ….. …..

Protocol No 27 [delete] on the internal market and competition

Protocol No 28 [delete] on economic, social and territorial cohesion

Protocol No 29 Protocol No 16 on the system of public broadcasting in the on the system of public broadcasting in the Member States Member States ….. …..

Protocol No 30 [delete] on the application of the Charter of Funda- mental Rights of the European Union to Poland and to the United Kingdom

Protocol No 31 [delete] concerning imports into the European Union of petroleum products reﬁ ned in the Netherlands Antilles

Protocol No 32 [delete] on the acquisition of property in Denmark

Protocol No 33 [delete] concerning Article 157 of the Treaty on the Functioning of the European Union

Protocol No 34 Protocol No 17 on special arrangements for Greenland on special arrangements for Greenland ….. …..

289 PROTOCOLS

Protocol No 35 [delete] on Article 40.3.3 of the Constitution of Ireland

Protocol No 36 Protocol No 18 on transitional provisions Transitional Provisions ….. 1. This Fundamental Law shall be ratifi ed in accordance with Article 48(4) of the Treaty on European Union.

2. Pursuant to Article 48(5) of the Treaty on European Union, if, two years after the signature of the Fundamental Law, four fi fths of the States have ratifi ed it and one or more States have encountered diffi culties in proceeding with ratifi cation, the matter shall be referred to the European Council.

3. At that stage, and in accordance with Article 30(4) of the Vienna Convention on the Law of Treaties (1969), the Fundamental Law will be deemed to govern the relations between those States which have completed ratifi cation according to their respective constitutional requirements.

4. The European Council shall invite any State which has not completed the ratifi cation of the Fundamental Law either to apply to become an Associate State of the Union in accordance with the same procedures as those laid down in Article 137 of the Fundamental Law or to notify its intention to secede from the Union in accordance with Article 50 of the Treaty on European Union (Article 138 of the Fundamental Law).

Protocol No 37 [delete] on the ﬁ nancial consequences of the expiry of the ECSC Treaty and on the research fund for coal and steel

290 TABLES OF EQUIVALENCES

FUNDAMENTAL LAW OLD TREATIES PART I – CONSTITUTIONAL PROVISIONS Article 1 Article 1 TEU Article 2 Article 2 TEU Article 3 Article 3 TEU Article 4 Article 4 TEU Article 5 Article 5 TEU Article 6 Article 6 TEU Article 8 TEU (repealed) Article 7 Article 9 TEU Article 8 Article 10 TEU Article 9 Article 11 TEU Article 10 Article 12 TEU Article 11 Article 13 TEU Article 12 Article 14 TEU Article 13 Article 15 TEU Article 14 Articles 16 TEU & 238 TFEU Article 15 Article 17 TEU Article 18 TEU (repealed) Article 16 Article 19 TEU Preamble TFEU (repealed) Article 1 TFEU (repealed) Article 17 Article 2 TFEU Article 18 Article 3 TFEU Article 19 Article 4 TFEU Article 5 TFEU (repealed) Article 20 Article 6 TFEU Article 21 Article 352 TFEU Article 22 new Article 23 Article 223 TFEU Article 24 Article 224 TFEU Article 25 Article 225 TFEU Article 26 Article 226 TFEU Article 27 Article 227 TFEU Article 28 Article 228 TFEU Article 29 Article 229 TFEU Article 30 Article 230 TFEU

291 Tables of Equivalences

FUNDAMENTAL LAW OLD TREATIES Article 31 Article 231 TFEU Article 32 Article 232 TFEU Article 33 Article 233 TFEU Article 34 Article 234 TFEU Article 35 Article 235 TFEU Article 236 TFEU (repealed) Article 36 Article 237 TFEU Article 238 TFEU (repealed) Article 37 Article 239 TFEU Article 38 Article 240 TFEU Article 39 Article 241 TFEU Article 242 TFEU (repealed) Article 40 Article 243 TFEU Article 244 TFEU (repealed) Article 41 Article 245 TFEU Article 42 Article 246 TFEU Article 43 Article 247 TFEU Article 44 Article 248 TFEU Article 45 Article 249 TFEU Article 46 Article 250 TFEU Article 47 Article 251 TFEU Article 48 Article 252 TFEU Article 49 Article 253 TFEU Article 50 Article 254 TFEU Article 51 Article 255 TFEU Article 52 Article 256 TFEU Article 53 Article 257 TFEU Article 54 Article 258 TFEU Article 55 Article 259 TFEU Article 56 Article 260 TFEU Article 57 Article 261 TFEU Article 262 TFEU (repealed) Article 58 Article 263 TFEU Article 59 Article 264 TFEU Article 60 Article 265 TFEU Article 61 Article 266 TFEU Article 62 Article 267 TFEU Article 63 Article 268 TFEU Article 64 Article 269 TFEU Article 65 Article 270 TFEU Article 66 Article 271 TFEU Article 67 Article 272 TFEU Article 68 Article 273 TFEU Article 69 Article 274 TFEU

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FUNDAMENTAL LAW OLD TREATIES Article 275 TFEU (repealed) Article 276 TFEU (repealed) Article 70 Article 277 TFEU Article 71 Article 278 TFEU Article 72 Article 279 TFEU Article 73 Article 280 TFEU Article 74 Article 281 TFEU Article 75 Article 282 TFEU Article 76 Article 283 TFEU Article 77 Article 284 TFEU Article 78 Article 285 TFEU Article 79 Article 286 TFEU Article 80 Article 287 TFEU Article 81 Article 288 TFEU Article 82 Article 289 TFEU Article 83 Article 290 TFEU Article 84 Article 291 TFEU Article 85 Article 292 TFEU Article 86 Article 293 TFEU Article 87 Article 294 TFEU Article 88 new Article 89 Article 295 TFEU Article 90 Article 296 TFEU Article 91 Article 297 TFEU Article 92 Article 298 TFEU Article 93 Article 299 TFEU Article 94 Article 300 TFEU Article 95 Article 301 TFEU Article 96 Article 302 TFEU Article 97 Article 303 TFEU Article 98 Article 304 TFEU Article 99 Article 305 TFEU Article 100 Article 306 TFEU Article 101 Article 307 TFEU Article 102 Article 308 TFEU Article 103 Article 309 TFEU Article 104 Article 20 TEU Article 105 Article 326 TFEU Article 106 Article 327 TFEU Article 107 Article 328 TFEU Article 108 Article 329 TFEU Article 109 Article 330 TFEU Article 110 Article 331 TFEU Article 111 Article 332 TFEU

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FUNDAMENTAL LAW OLD TREATIES Article 112 Article 333 TFEU Article 113 Article 334 TFEU Article 114 Articles 47 TEU & 335 TFEU Article 115 Article 336 TFEU Article 116 Article 337 TFEU Article 117 Article 338 TFEU Article 118 Article 339 TFEU Article 119 Article 340 TFEU Article 120 Article 341 TFEU Article 121 Article 342 TFEU Article 122 Article 343 TFEU Article 123 Article 344 TFEU Article 124 Article 345 TFEU Article 125 Article 346 TFEU Article 126 Article 347 TFEU Article 127 Article 348 TFEU Article 128 Article 349 TFEU Article 129 Article 350 TFEU Article 130 Article 351 TFEU Article 353 TFEU (repealed) Article 131 Article 355 TFEU Article 132 Article 356 TFEU Article 357 TFEU (repealed) Article 358 TFEU (repealed) Article 133 Article 7 TEU Article 134 Article 354 TFEU Article 135 Article 48 TEU Article 136 Article 49 TEU Article 137 new Article 138 Article 50 TEU Article 139 new Article 140 Article 51 TEU Article 141 Article 52 TEU Article 142 Article 53 TEU Article 143 Article 54 TEU Article 144 Article 55 TEU PART II – CHARTER OF FUNDAMENTAL RIGHTS Preamble (repealed) Article 145 Article 1 CFR Article 146 Article 2 CFR Article 147 Article 3 CFR Article 148 Article 4 CFR Article 149 Article 5 CFR

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FUNDAMENTAL LAW OLD TREATIES Article 150 Article 6 CFR Article 151 Article 7 CFR Article 152 Article 8 CFR Article 153 Article 9 CFR Article 154 Article 10 CFR Article 155 Article 11 CFR Article 156 Article 12 CFR Article 157 Article 13 CFR Article 158 Article 14 CFR Article 159 Article 15 CFR Article 160 Article 16 CFR Article 161 Article 17 CFR Article 162 Article 18 CFR Article 163 Article 19 CFR Article 164 Article 20 CFR Article 165 Article 21 CFR Article 166 Article 22 CFR Article 167 Article 23 CFR Article 168 Article 24 CFR Article 169 Article 25 CFR Article 170 Article 26 CFR Article 171 Article 27 CFR Article 172 Article 28 CFR Article 173 Article 29 CFR Article 174 Article 30 CFR Article 175 Article 31 CFR Article 176 Article 32 CFR Article 177 Article 33 CFR Article 178 Article 34 CFR Article 179 Article 35 CFR Article 180 Article 36 CFR Article 181 Article 37 CFR Article 182 Article 38 CFR Article 183 Article 39 CFR Article 184 Article 40 CFR Article 185 Article 41 CFR Article 186 Article 42 CFR Article 187 Article 43 CFR Article 188 Article 44 CFR Article 189 Article 45 CFR Article 190 Article 46 CFR Article 191 Article 47 CFR Article 192 Article 48 CFR Article 193 Article 49 CFR

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FUNDAMENTAL LAW OLD TREATIES Article 194 Article 50 CFR Article 195 Article 51 CFR Article 196 Article 52 CFR Article 197 Article 53 CFR Article 198 Article 54 CFR PART III – FINANCES OF THE UNION Article 199 Article 310 TFEU Article 200 Article 311 TFEU Article 201 new Article 202 new Article 203 Article 312 TFEU Article 204 new Article 205 Article 313 TFEU Article 206 Article 314 TFEU Article 207 Article 315 TFEU Article 208 Article 316 TFEU Article 209 Article 317 TFEU Article 210 Article 318 TFEU Article 211 Article 319 TFEU Article 212 Article 320 TFEU Article 213 Article 321 TFEU Article 214 Article 322 TFEU Article 215 Article 323 TFEU Article 216 Article 324 TFEU Article 217 Article 325 TFEU PART IV – ECONOMIC AND MONETARY UNION Article 218 Article 119 TFEU Article 219 Article 120 TFEU Article 220 Article 121 TFEU Article 221 Article 122 TFEU Article 222 Article 123 TFEU Article 223 Article 124 TFEU Article 224 Article 125 TFEU Article 225 Article 126 TFEU Article 226 Article 127 TFEU Article 227 new Article 228 Article 128 TFEU Article 229 Article 129 TFEU Article 230 Article 130 TFEU Article 231 Article 131 TFEU Article 232 Article 132 TFEU Article 233 Article 133 TFEU

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FUNDAMENTAL LAW OLD TREATIES Article 234 Article 134 TFEU Article 235 Article 135 TFEU Article 236 Article 136 TFEU Article 237 Article 137 TFEU Article 238 Article 138 TFEU Article 239 new Article 240 Article 139 TFEU Article 241 new Article 242 Article 140 TFEU Article 243 Article 141 TFEU Article 244 Article 142 TFEU Article 245 Article 143 TFEU Article 246 Article 144 TFEU PART V – THE POLICIES OF THE UNION Article 247 Article 7 TFEU Article 248 Article 8 TFEU Article 249 Article 9 TFEU Article 250 Article 10 TFEU Article 251 Article 11 TFEU Article 252 Article 12 TFEU Article 253 Article 13 TFEU Article 254 Article 14 TFEU Article 255 Article 15 TFEU Article 256 Article 16 TFEU Article 257 Article 17 TFEU Article 258 Article 18 TFEU Article 259 Article 19 TFEU Article 260 Article 20 TFEU Article 261 Article 21 TFEU Article 262 Article 22 TFEU Article 263 Article 23 TFEU Article 264 Article 24 TFEU Article 265 Article 25 TFEU Article 266 Article 26 TFEU Article 267 new Article 268 Article 27 TFEU Article 269 Article 28 TFEU Article 270 Article 29 TFEU Article 271 Article 30 TFEU Article 272 Article 31 TFEU Article 273 Article 32 TFEU Article 274 Article 33 TFEU Article 275 Article 34 TFEU

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FUNDAMENTAL LAW OLD TREATIES Article 276 Article 35 TFEU Article 277 Article 36 TFEU Article 278 Article 37 TFEU Article 279 Article 45 TFEU Article 280 Article 46 TFEU Article 281 Article 47 TFEU Article 282 Article 48 TFEU Article 283 Article 49 TFEU Article 284 Article 50 TFEU Article 285 Article 51 TFEU Article 286 Article 52 TFEU Article 287 Article 53 TFEU Article 288 Article 54 TFEU Article 289 Article 55 TFEU Article 290 Article 56 TFEU Article 291 Article 57 TFEU Article 292 Article 58 TFEU Article 293 Article 59 TFEU Article 294 Article 60 TFEU Article 295 Article 61 TFEU Article 296 Article 62 TFEU Article 297 Article 63 TFEU Article 298 Article 64 TFEU Article 299 Article 65 TFEU Article 300 Article 66 TFEU Article 301 Article 101 TFEU Article 302 Article 102 TFEU Article 303 Article 103 TFEU Article 304 Article 104 TFEU Article 305 Article 105 TFEU Article 306 Article 106 TFEU Article 307 Article 107 TFEU Article 308 Article 108 TFEU Article 309 Article 109 TFEU Article 310 Article 110 TFEU Article 311 Article 111 TFEU Article 312 Article 112 TFEU Article 313 Article 113 TFEU Article 314 Article 114 TFEU Article 115 TFEU (repealed) Article 315 Article 116 TFEU Article 316 Article 117 TFEU Article 317 Article 118 TFEU Article 318 Articles 145 & 147 TFEU

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FUNDAMENTAL LAW OLD TREATIES Article 309 Article 146 TFEU Article 147 TFEU (repealed) Article 320 Article 148 TFEU Article 321 Article 149 TFEU Article 322 Article 150 TFEU Article 323 Article 151 TFEU Article 324 Article 152 TFEU Article 325 Article 153 TFEU Article 326 Article 154 TFEU Article 327 Article 155 TFEU Article 328 Article 156 TFEU Article 329 Article 157 TFEU Article 330 Article 158 TFEU Article 331 Article 159 TFEU Article 160 TFEU (repealed) Article 161 TFEU (repealed) Article 332 Article 162 TFEU Article 333 Article 163 TFEU Article 334 Article 164 TFEU Article 335 Article 165 TFEU Article 336 Article 166 TFEU Article 337 Article 167 TFEU Article 338 Article 168 TFEU Article 339 Article 169 TFEU Article 340 Article 38 TFEU Article 341 Article 39 TFEU Article 342 new Article 343 Article 40 TFEU Article 344 Article 41 TFEU Article 345 Article 42 TFEU Article 346 Article 43 TFEU Article 347 Article 44 TFEU Article 90 TFEU (repealed) Article 348 Article 91 TEFU Article 92 TFEU (repealed) Article 349 Article 93 TFEU Article 94 TFEU (repealed) Article 95 TFEU (repealed) Article 350 Article 96 TFEU Article 97 TFEU (repealed) Article 98 TFEU (repealed) Article 99 TFEU (repealed) Article 100 TFEU (repealed) Article 351 Article 170 TFEU

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FUNDAMENTAL LAW OLD TREATIES Article 352 Article 171 TFEU Article 353 Article 172 TFEU Article 354 Article 173 TFEU Article 355 Article 174 TFEU Article 356 Article 175 TFEU Article 357 Article 176 TFEU Article 358 Article 177 TFEU Article 359 Article 178 TFEU Article 360 Article 179 TFEU Article 361 Article 180 TFEU Article 362 Article 181 TFEU Article 363 Article 182 TFEU Article 364 Article 183 TFEU Article 365 Article 184 TFEU Article 366 Article 185 TFEU Article 367 Article 186 TFEU Article 368 Article 187 TFEU Article 369 Article 188 TFEU Article 370 Article 189 TFEU Article 371 Article 190 TFEU Article 372 Article 191 TFEU Article 373 Article 192 TFEU Article 374 Article 193 TFEU Article 375 Article 194 TFEU Article 376 new Article 195 TFEU (repealed) PART VI – FREEDOM, SECURITY AND JUSTICE WITHIN THE UNION Article 377 Article 67 TFEU Article 68 TFEU (repealed) Article 69 TFEU (repealed) Article 378 Article 70 TFEU (repealed) Article 379 Article 71 TFEU Article 380 Article 72 TFEU Article 381 Article 73 TFEU Article 382 Article 74 TFEU Article 383 Article 75 TFEU Article 76 TFEU (repealed) Article 384 Article 77 TFEU Article 385 Article 78 TFEU Article 386 Article 79 TFEU Article 387 Article 80 TFEU Article 388 Article 81 TFEU

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FUNDAMENTAL LAW OLD TREATIES Article 389 Article 82 TFEU Article 390 Article 83 TFEU Article 391 Article 84 TFEU Article 392 Article 85 TFEU Article 393 Article 86 TFEU Article 394 Article 87 TFEU Article 395 Article 88 TFEU Article 396 Article 89 TFEU Article 397 Article 196 TFEU Article 398 Article 197 TFEU PART VII – ASSOCIATION OF THE OVERSEAS TERRI- TORIES Article 399 Article 198 TFEU Article 400 Article 199 TFEU Article 401 Article 200 TFEU Article 402 Article 201 TFEU Article 403 Article 202 TFEU Article 404 Article 203 TFEU Article 405 Article 204 TFEU PART VIII – THE EXTERNAL ACTION OF THE UNION Article 406 Articles 8 & 21 TEU Article 407 Article 22 TEU Article 23 TEU (repealed) Article 408 Article 24 TEU Article 409 Article 25 TEU Article 410 Article 26 TEU Article 411 Article 27 TEU Article 28 TEU (repealed) Article 29 TEU (repealed) Article 30 TEU (repealed) Article 412 Article 31 TEU Article 413 Article 32 TEU Article 33 TEU (repealed) Article 414 Article 34 TEU Article 35 TEU (repealed) Article 415 Article 36 TEU Article 416 Article 37 TEU Article 38 TEU (repealed) Article 39 TEU (repealed) Article 39 TEU (repealed) Article 417 Article 41 TEU Article 418 Article 42 TEU

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FUNDAMENTAL LAW OLD TREATIES Article 419 Article 43 TEU Article 420 Article 44 TEU Article 421 Article 45 TEU Article 422 Article 46 TEU Article 205 TFEU (repealed) Article 423 Article 206 TFEU Article 424 Article 207 TFEU Article 425 Article 208 TFEU Article 426 Article 209 TFEU Article 427 Article 210 TFEU Article 211 TFEU (repealed) Article 428 Article 212 TFEU Article 213 TEFU (repealed) Article 429 Article 214 TFEU Article 430 Article 215 TFEU Article 431 Article 216 TFEU Article 432 Article 217 TFEU Article 433 Article 218 TFEU Article 434 Article 219 TFEU Article 435 Article 220 TFEU Article 436 Article 221 TFEU Article 437 Article 222 TFEU PROTOCOLS Protocol No 1 Protocol No 1 Protocol No 2 Protocol No 2 Protocol No 3 1976 Act Protocol No 4 Protocol No 3 Protocol No 5 Protocol No 4 Protocol No 6 Protocol No 5 Protocol No 6 (repealed) Protocol No 7 Protocol No 7 Protocol No 8 (repealed) Protocol No 9 (repealed) Protocol No 8 Protocol No 10 Protocol No 11 (repealed) Protocol No 9 new Protocol No 10 Protocol No 12 Protocol No 11 Protocol No 13 Protocol No 12 Protocol No 14 Protocol No 15 (repealed) Protocol No 16 (repealed) Protocol No 17 (repealed) Protocol No 13 Protocol No 18 Protocol No 19 (repealed)

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FUNDAMENTAL LAW OLD TREATIES Protocol No 20 (repealed) Protocol No 21 (repealed) Protocol No 22 (repealed) Protocol No 23 (repealed) Protocol No 14 Protocol No 24 Protocol No 25 (repealed) Protocol No 15 Protocol No 26 Protocol No 27 (repealed) Protocol No 28 (repealed) Protocol No 16 Protocol No 29 Protocol No 30 (repealed) Protocol No 31 (repealed) Protocol No 32 (repealed) Protocol No 33 (repealed) Protocol No 17 Protocol No 34 Protocol No 35 (repealed) Protocol No 18 Protocol No 36 Protocol No 37 (repealed)

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Last Words by Thomas Fischer und Joachim Fritz-Vannahme, Bertelsmann Stiftung

For many observers of the current political debate about Europe’s future, publishing a constitutional draft for a federal Europe at this point in time seems highly ambitious at best – or even unrealistic at worst. Alerted by the sharp decrease in public support for the European project since the beginning of the Euro crisis, even those political decision-makers who are in favour of further deepening integration consider another reform of the EU Treaty to be an incalculable political risk. Most of them are still suffering from the extremely cumbersome exercise of giving life to the Lisbon Treaty. The memory of this long and arduous journey is too fresh in their minds to already embark on the next fundamental revision of the EU’s primary law. From the perspective of the so-called pragmatists, pleading now for a qualitative constitutional leap towards a federal Europe is coming close to denying a reality characterized by the resurging idea of national sovereignty. With reference to the subsidiarity principle, a growing number of member – state governments seem to seriously question the EU Treaty’s objective of “an ever closer Union”. By launching its “Balance of Competences Review” aiming at the repatriation of EU powers, the British government has been the forerunner in this trend. Another striking example is the Dutch government, which has recently published its “wish list” naming those policy areas where the Netherlands does not want to see additional power transferred to the EU. Whether due to so-called pragmatism or the conviction that the creation of the “United States of Europe” would point in the wrong direction, the project of a federal constitution for Europe apparently has to face strong headwinds in the current political debate. Against this backdrop, the reader of this book may wonder why the Bertelsmann Stiftung has joined forces with the Spinelli Group to publish the draft for “A Funda- mental Law of the European Union”. The reason is not that we agree on every detail of the proposal or that we have fallen victim to pro-European idealism. On the contrary, we think that heading for our foundation’s leitmotif of the “United States of Europe” is a much more pragmatic position these days than shying away from ambitious treaty reforms. We share the conviction of the Spinelli Group that by voicing support for a federal EU constitution, we are making a much more important contribution to the much-needed democratic debate on Europe’s future than those who desperately avoid the notion of federalism and vaguely talk about deeper integration or the advantages of a political union. With the publication of this book, we primarily want to provoke an open dispute about competing political options between supporters and opponents of the idea of the “United States of Europe” and provide a sort of sounding board that allows for the mapping of alternative ideas about how to shape the future EU.

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To put it slightly differently, we are driven by the deep conviction that Europe will not progress if the public and political debate gets stuck in TINA (“There is no alternative”) thinking. Although we support large parts of the Spinelli Group’s constitutional draft and its philosophy, we see the primary purpose of its publication as triggering an open process of deliberation which allows those alternatives to win for which the best arguments are put forward. From our viewpoint, one of the key merits of the Spinelli Group’s blueprint for the constitutional architecture of a federal Europe is that it clarifi es from the very beginning its main purpose: According to the authors, “All the reforms proposed are aimed at strengthening the capacity of the EU to act”. Completely in line with their understanding of federalism, we do not promote a centralized European superstate but “a constitutional union in which different levels of democratic government are coordinate, not subordinate”. Regarding political priorities, we share the Group’s conclusion that completing Economic and Monetary Union (EMU) is the key challenge for Europe’s policy- makers and that “more of the same” will not be suffi cient to achieve this objective. Several aspects of EMU featuring high on Europe’s current political agenda already raise the question of to what extent they will be possible without changing the EU Treaty. Actually, the Treaty on Stability, Coordination and Governance (better known as the “Fiscal Compact”), which aims to foster fi scal discipline and structural reforms, provides for its incorporation into the EU Treaty before the end of 2017. The introduction of a fi scal capacity or a “solidarity mechanism” for Eurogroup members based upon bilateral contracts between single member states and the EU institutions might require revisions of the EU’s primary law. The same applies to the need to extend democratic control by the European Parliament to the European Central Bank in its new role as Single Bank Supervisory Authority and – at least in the longer run – for the creation of a European Banking Resolution Fund and a European Deposit Guarantee Scheme. And if it should prove necessary to introduce new mechanisms for the mutualisation of debts at the EMU level, such as a European Debt Redemption Fund or a European Debt Agency, the German Constitutional Court has clearly decided that this will not be possible without changes to the “no bail-out” clause of the Lisbon Treaty. Against this backdrop, we think the Spinelli Group is perfectly right in high- lighting that the installation of a true “economic government of the fi scal union” in Part IV of the Fundamental Law constitutes the main innovation in their constitutional draft. Most of the reform proposals presented there, such as the introduction of the new post of Treasury Minister to foster the Commission’s role as the EU’s fi scal and economic government, the measures suggested to make sure that member states observe stronger fi scal discipline or the introduction of a special fi scal capacity for the Euro countries, we can fully support. Beyond that, we welcome the proposed extension of the Treaty rules on enhanced cooperation to the eurozone. This would allow for a multi-speed Europe that does

306 Last Words

not run the risk of growing fragmentation between the ins, pre-ins and outs of EMU. Without this remedy, eurozone members might be increasingly tempted to fall back on separate intergovernmental agreements outside the EU Treaty, such as the Fiscal Compact or the Treaty on the European Stability Mechanisms, to live up to the functional requirements resulting from the single currency. Since we are convinced that, in parallel, the Treaty objective of a socially balanced market economy has to be implemented more effi ciently within and across member states, we agree with the Spinelli Group that the role of the Commission and the European Parliament in formulating employment and macro-economic policy guidelines ought to be strengthened and that the Treaty’s horizontal social clause should be tightened. Beyond that, the other proposals presented in the Fundamental Law to “refresh” European powers in the fi elds of energy, agriculture and common fi sheries, the internal market, competition, transport, R&D, environmental protection and climate change, justice and home affairs, and external affairs also make, by and large, sense from our point of view – as far as the EU’s capacities to act more effi ciently are concerned. Details still have to be further discussed, of course. Our overall impression is that the Fundamental Law of the European Union is perfectly fi t for the purpose of re-initiating the debate on the EU’s future constitution and, if another European Convention should be set up within the next few years, of contributing to the preparation of the next Treaty reform. For that reason, we have decided to publish this book jointly with the Spinelli Group. The Bertelsmann Stiftung will, however, further elaborate on some questions which the present publication can only touch upon. The authors of the Fundamental Law basically assume that EU institutions will become “more responsive to the needs and aspirations of the people they serve” if the EU’s capacity to act (i.e. its “output legitimacy”) is strengthened and if its institutional setup is further developed along the lines of a fully fl edged federal two-chamber system – made up of the European Parliament and the Council – with the European Commission turning into a democratic constitutional government. The basic intention of the Spinelli Group may also be circumscribed along the lines of the offi cial motto of the Union, which the Fundamental Law provides for: “Unity in diversity”. First of all, the group seeks to strengthen unity to overcome excessive diversity. This approach is hardly surprising given that the authors of the constitutional draft are Members of the European Parliament. From their perspective, more unity – that is, the allocation of additional powers at the EU level – is crucial for restoring citizens’ trust in the European integration project. This, however, will only be possible if, at the same time, there is more democratic accountability and legitimacy of European policymaking. Accordingly, the Fundamental Law includes a number of excellent proposals for democratic reform. To provide for a clearer separation of powers, the Council (as second legislative chamber) is deprived of its executive powers which are transferred to the European Commission as democratic government of the Union. The Funda-

307 Last Words

mental Law co-decision between Parliament and Council applies throughout – including in those areas where the Council currently enjoys the right to legislate alone. The European Commission President is made more accountable to the European Parliament, and the role of the President of the European Council is limited to directing and coordinating the affairs of the Council. Last but not least, a certain number of deputies of the European Parliament ought to be elected from a pan – European constituency in future, which shall also contribute to the emergence of truly European parties. These institutional reforms are complemented by treaty changes aiming to foster democratic legitimacy by upgrading the status of European citizenship. In this context, the most signifi cant innovations are – from our viewpoint – the incorporation of the EU’s Charter of Fundamental Rights into the Treaty text, the simplifi cation of access to the European Court of Justice for individuals, the extension of the voting rights of EU citizens living in EU member states other than their own to national parliamentary elections, and the widening of the scope of the European Citizens’ Initiative to include political agenda-setting. We do not doubt that this package of reform measures would contribute to making the democratic foundations of EU institutions much more solid. Neverthe- less, we think that they are only insuffi ciently apt to solve the profound dilemma the European Union has to face: On the one hand, from a purely functional perspective, there are rather strong arguments in favour of transferring additional powers to the Union level. On the other hand, however, political and public acceptance in member states is fading away the more the Union interferes in fi elds of national high politics constituting the core of nation-statism and the closely related construct of national sovereignty. This dilemma is not at all new. Since the Maastricht Treaty and the introduction of the EMU at the latest, it has been an increasingly diffi cult exercise to fi nd the right balance between the requirements of effi cient policymaking and the political preferences of citizens. However, since the outbreak of the Eurocrisis, this dilemma has assumed a completely new quality. The most ambitious European project, the single currency, which had been perceived since its introduction as a success story by most European citizens, has turned into one of the most controversially discussed issues in the political and public debate about the EU. In the meantime, the surge of Euro- scepticism we have witnessed in recent years has spread to the EU as a whole and triggered much more fundamental national debates about the added value of European integration. It goes without saying that representatives of national governments – in their role as members of the Council or the European Council – are particularly affected by this growing gap between effi cient EU policies and predominant public attitudes at home. Former Eurogroup President Jean-Claude Juncker has perfectly summarized their diffi cult position. When responding to the question of why the Europeans only have halfhearted answers to the sovereign debt crisis, he said:

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“We all know what to do; we just don't know how to get re-elected after we've done it.” The Spinelli Group implicitly refers to this problem in its Fundamental Law by stating that “at the level of the heads of governments, meeting in the European Council, the response to the fi nancial and economic crisis has tended to be too little too late.” At the same time, this is exactly the reason why the authors strongly plead for replacing the intergovernmental model of decision-making with a federal EU government. Nevertheless, this approach can only be part of the solution. It does not give a persuasive answer to the question of how to tackle the issue of increasingly divergent public policy preferences and the revival of the subsidiarity principle in the political debates at the member-state level. It is against this background that, from our point of view, the success and viability of the European project will largely depend on the ability to develop a completely new system of federal checks and balances tailor-made to keep a sound balance between effi ciency requirements at the EU level and public acceptance at the national level. Accordingly, this will be one of the key priorities in our foundation’s work on Europe’s future for the next few years. Amongst other issues, it might be particularly worthwhile in this context to have a closer look at the role of national parliaments in European policymaking and at potential patterns of interparliamentary collaboration between them and the European Parliament. With regard to this crucial issue, the Fundamental Law of the European Union hardly goes beyond the status quo of the Lisbon Treaty. Hence, we would be delighted if we could cooperate with the Spinelli Group to further elaborate on the future role of national parliaments in EU decision-making. When talking about the future of the EU, we are actually talking about the question of how to provide for a functioning democracy able to cope effi ciently with the internal and global challenges Europe is currently facing. This is the key issue we have to address – and we urgently need answers. With the publication of the Fundamental Law of the European Union, the Spinelli Group and the Bertelsmann Stiftung give a possible response to this essential question.

309