Constitution for Europe, Part II
By Dr. Eugene Eteris, BC International Editor
We continue to publish most important articles new EU Constitutional draft with our short commentaries (previous part I is in BC’s summer issue No 10, 2003, pp.38–41). We hope that our readers can find the Draft Constitution in the net, as we are not able to cover all aspects of the Draft in our magazine. But we intend to inform top managers and business leaders about the consequences of the new Constitution on undertakings and member states.
Main issues covered in our first review of the draft have been
connected, so far, with definition, objectives of the Union and its institutional framework. In this regard it is important to remember that a thorough description of the whole EU institutional system, as well as that of any separate institution or body, can only be found following various parts of the draft. Generally, such information could be found in the first one (Part I), defining main objectives of the Union; and in the second (in Part III), describing main policies and functions of the Union. In the latter, there are articles on internal policies and actions, and a chapter (Title VI), concerning provisions governing relationships among EU institutions shall be taken into consideration..
After the European Parliament, European Council, the European Commission and Council of Ministers, the next EU’s Institution in line in the Draft is the Union’s Court of Justice. And here again information about EU Court can be found following chapters pertaining to the Court system through the whole draft’s text. In particular, through draft’s first part with a general description of the Institutions, the second one with much more detailed description, and third, those Draft chapters where the institutions’ function was complementary though not at all less important.
In this comment we would attract our readers’ attention to only one important issue, that of the new role of specialised courts within the EU legislative system.
Article 28: The Court of Justice
1. The Court of Justice shall include the European Court of Justice, the High Court and specialised courts. It shall ensure respect for the law in the interpretation and application of the Constitution. Member States shall provide rights of appeal sufficient to ensure effective legal protection in the field of Union law. 2. The European Court of Justice shall consist of one judge from each Member State, and shall be assisted by Advocates-General.
2. The High Court shall include at least one judge per Member State: the number shall be fixed by the Statute of the Court of Justice.
The judges and the Advocates-General of the European Court of Justice and the judges of the High Court, chosen from persons whose independence is beyond doubt...shall be appointed by common accord of the governments of the Member States for a term of six years, renewable.
3. The Court of Justice shall:
rule on actions brought by a Member State, an Institution or a natural or legal person in accordance with the provisions of Part III;
give preliminary rulings, at the request of Member State courts, on the interpretation of Union law or the validity of acts adopted by the Institutions;
rule on the other cases provided for in the Constitution.
But, of course, it’s not the only article that deals with the Court roles and competencies. Thus, in Draft’s TITLE VI called “THE FUNCTIONING OF THE UNION” in Chapter 1” PROVISIONS GOVERNING THE INSTITUTIONS” one can read in the following article additional aspects of Court’s functioning:
1. European laws may establish specialized courts attached to the High Court to hear and determine at first instance certain classes of action or proceeding brought in specific areas. They shall be adopted either on a proposal from the Commission after consultation with the Court of Justice or at the request of the Court of Justice after consultation of the Commission.
2. The European law establishing a specialized court shall lay down the rules on the organization of the court and the extent of the jurisdiction conferred upon it.
3. Decisions given by specialized courts may be subject to a right of appeal on points of law only or, when provided for in the European law establishing the specialized court, a right of appeal also on matters of fact, before the High Court.
4. The members of the specialized courts shall be... appointed by the Council of Ministers, acting unanimously...
Among the articles describing role and functions of the main EU Institutions (Part.1), important place is attached to European Central Bank (ECB). In Ch. II of the Draft’s first part “Other Institutions and bodies”, some basic information about ECB can be found in Part III of the Draft in Ch. 2 “Economic and Monetary policy”. It is important to mention here that the Draft, first of all, recognizes the fact that some member-states do not join the EU common currency system and, second, that ECB’s main task is to maintain price stability.
The EU Summit decided to form a European Convent to draft a new Constitution for the European Union in view of the next Community's enlargement
Inauguration meeting of the EU Convent
Final Draft presented to the EU Summit in Greece
October 4 th 2003
The EU member states and applicant countries' Heads of State/Government at an Intergovernmental Meeting in Rome endorsed the final draft of the European Constitution
The Italian Presidency's idea - "From Rome'57 to Rome'03"
December 12-13, 2003
EU Summit in Brussels to adopt a final EU Constitution's text
New EU Constitution being adopted by all 25 EU member states
The EU Constitution enters into force
Article 29: The European Central Bank
1. The European Central Bank, together with the national central banks, shall constitute the European System of Central Banks. The European Central Bank, together with the national central banks of the Member States which have adopted the Union currency, the Euro, shall conduct the monetary policy of the Union. 2. The European System of Central Banks shall be governed by the decision-making bodies of the European Central Bank. The primary objective of the European System of Central Banks shall be to maintain price stability. Without prejudice to the objective of price stability, it shall support general economic policies in the Union with a view to contributing to the achievement of the Union’s objectives...
3. The European Central Bank is an Institution, which has legal personality. It alone may authorize the issue of the Euro. In the exercise of its powers and for its finances, it shall be independent. Union Institutions and bodies, and the governments of the Member States shall undertake to respect this principle.
4. The European Central Bank shall adopt such measures as are necessary to carry out its tasks... those Member States which have not adopted the Euro, and their central banks, shall retain their powers in monetary matters.
5. Within its areas of competence, the European Central Bank shall be consulted on all proposed Union acts, and all proposals for regulation at national level, and may give an opinion...
European Central Bank (ECB) was established in Frankfurt am Main on 1 June 1998 when the appointment of ECB’s President, his Vice-President and four other members of the ECB’s Executive Board took effect. ECB’ main function is to control the money supply of participating countries, and is largely responsible for the stability of the single currency.
Its first president Wim Duisenberg was elected in 1998 for a term of 5 years. In October 2003 a new President was chosen, Frenchman Jean-Claude Trichet. He is well prepared for the post of the guardian of the euro-zone’s “stability and growth” development, as during 1990s he oversaw France’s strong franc monetary policy. He graduated fifth in 1971 from France’s top academy for public servants (Ecole Nationale d’Administration). Later on he served as an adviser on energy and economic matters to President V.G.d’Estaing. Aged 38, Trichet became country Treasure’s international affairs division, then in 1993 he became head of France’s central bank. In 1985-86 he chaired Paris Club of rich creditor nations. In mid-October 2003 he was acquitted on all charges in a scandal over state-owned Credit Lyonnais, when he was head of Treasure from 1987 to 1993.
Some special provisions concerning those member states that have had adopted common currency are revealed in the PROTOCOL ON THE EURO GROUP attached to the Draft.
The protocol has acknowledged that the Member states, which have adopted Euro, are eager... to promote conditions for stronger economic growth in Europe and, to that end, to develop ever-closer coordination of economic policies within Euro area..., and to lay down special provisions for enhanced dialogue among the States in Euro-group, pending the accession of all Member States of the Union to the Euro area. With such aims in mind, the Ministers of the Member States, which have adopted the Euro, shall meet informally. Such meetings shall take place, when necessary, to discuss questions related to the specific responsibilities they share with regard to the single currency. The Commission and the European Central Bank shall be invited to take part in such meetings, which shall be prepared by the representatives of the Ministers with responsibility for finance of the Member States which have adopted the Euro... The Ministers of the Member States, which have adopted the Euro, shall elect a president for two and a half years, by a majority of those Member States.
Other important issues concerning ECB functions were included into Draft’s ch. 2 “Economic and monetary policy”, in part 3 on Union policies and functions (art.69–96).
The draft has made a completely new system of the EU legislative acts, included into the Title V: Exercise of Union Competence, in the Draft’s part I. First of all, some legal background was provided:
Article 10: Union law
1. The Constitution, and law adopted by the Union’s Institutions in exercising competencies conferred on it, shall have primacy over the law of the Member States.
2. Member States shall take all appropriate measures, general or particular, to ensure fulfillment of the obligations flowing from the Constitution or resulting from the Union Institutions’ acts.
Then, the new system of legal acts in the European Union has been proposed, i.e. previous regulations will be called European laws, directives become framework laws, etc.:
Article 32: The legal acts of the Union
1. In exercising the competencies conferred on it in the Constitution, the Union shall use as legal instruments... European laws, European framework laws, European regulations, European decisions, recommendations and opinions.
A European law shall be a legislative act of general application. It shall be binding in its entirety and directly applicable in all Member States.
A European framework law shall be a legislative act binding, as to the result to be achieved, on the Member States to which it is addressed, but leaving the national authorities entirely free to choose the form and means of achieving that result.
A European regulation shall be a non-legislative act of general application for the implementation of legislative acts and of certain specific provisions of the Constitution. It may either be binding in its entirety and directly applicable in all Member States, or be binding, as regards the result to be achieved, on all Member States to which it is addressed, but leaving the national authorities entirely free to choose the form and means of achieving that result.
A European decision shall be a non-legislative act, binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.
Recommendations and opinions adopted by the Institutions shall have no binding force.
Article 34: Non-legislative acts
1. The Council of Ministers and the Commission shall adopt European regulations or European decisions... The European Council shall adopt European decisions in the cases specifically provided for in the Constitution. The European Central Bank shall adopt European regulations and European decisions when authorized to do so by the Constitution.
2. The Council of Ministers and the Commission, and the European Central Bank when so authorized in the Constitution, adopt recommendations.
Article 35: Delegated regulations
1. European laws and European framework laws may delegate to the Commission the power to enact delegated regulations to supplement or amend certain non-essential elements of the European law or framework law.
The objectives, content, scope and duration of the delegation shall be explicitly defined in the European laws and framework laws. A delegation may not cover the essential elements of an area. These shall be reserved for the European law or framework law.
2. The conditions of application to which the delegation is subject shall be explicitly determined in the European laws and framework laws. They may consist of the following possibilities:
* the European Parliament or the Council of Ministers may decide to revoke the delegation;
* the delegated regulation may enter into force only if no objection has been expressed by the European Parliament or the Council of Ministers within a period set by the European law or framework law.
For the purposes of the preceding paragraph, the European Parliament shall act by a majority of its members, and the Council of Ministers by a qualified majority.
Article 36: Implementing acts
1. Member States shall adopt all measures of national law necessary to implement legally binding Union acts...
3. The European laws shall lay down in advance rules and general principles for the mechanisms for control by Member States of Union implementing acts.
4. Union implementing acts shall take the form of European implementing regulations or European implementing decisions.
Article 37: Principles common to the Union’s legal acts
1. Unless the Constitution contains a specific stipulation, the Institutions shall decide, in compliance with the procedures applicable, the type of act to be adopted in each case, in accordance with the principle of proportionality set out in Article 9.
2. European laws, European framework laws, European regulations and European decisions shall state the reasons on which they are based and shall refer to any proposals or opinions required by the Constitution.
At the same time, one of the articles in the law section provides for inclusion of laws into decision-making process in the European Union:
Article 33: Legislative acts
1. European laws and European framework laws shall be adopted, on the basis of proposals from the Commission, jointly by the European Parliament and the Council of Ministers under the ordinary legislative procedure as set out in Article III-302. If the two Institutions cannot reach agreement on an act, it shall not be adopted. In the cases specifically provided for in Article III-165, European laws and European framework laws may be adopted at the initiative of a group of Member States...
2. In the specific cases provided for by the Constitution, European laws and European framework laws shall be adopted by the European Parliament with the participation of the Council of Ministers, or by the latter with the participation of the European Parliament, in accordance with special legislative procedures.
As for publication and entry into force, the Draft proclaimed that European laws and framework laws shall be adopted under ordinary legislative procedure and shall be signed by the President of the European Parliament and by the President of the Council of Ministers. In other cases such laws shall be signed by the President of the European Parliament or by the President of the Council of Ministers (Art.38). The laws shall enter into force on the date specified in them or, in the absence of such a stated date, on the twentieth day following their publication.
For the first time in the history of member sates’ contractual relationships within the Community development an issues has been raised concerning their accession and suspension. These issues were included into a special chapter on Union membership.
Article 57: Conditions of eligibility and procedure for accession to the Union
1. The Union shall be open to all European States, which respect the values, referred to in Article 2, and are committed to promoting them together.
2. Any European State which wishes to become a member of the Union shall address its application to the Council of Ministers. The European Parliament and the Member States’ national Parliaments shall be notified of this application. The Council of Ministers shall act unanimously after consulting the Commission and after obtaining the consent of the EuropeanParliament. The conditions and arrangements for admission shall be the subject of an agreement between the Member States and the candidate State. That agreement shall be subject to ratification by each contracting State, in accordance with its respective constitutional requirements.
Article 58: Suspension of Union membership rights
1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the Commission, the Council of Ministers, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may adopt a European decision determining that there is a clear risk of a serious breach by a Member State of the values mentioned in Article 2. Before making such a determination, the Council of Ministers shall hear the Member State in question and, acting in accordance with the same procedure, may address recommendations to that State.
The Council of Ministers shall regularly verify that the grounds on which such a determination was made continue to apply.
2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may adopt a European decision determining the existence of a serious and persistent breach by a Member State of the values mentioned in Article 2, after inviting the Member State in question to submit its observations.
3. Where a determination under paragraph 2 has been made, the Council of Ministers, acting by a qualified majority, may adopt a European decision suspending certain of the rights deriving from the application of the Constitution to the Member State in question, including the voting rights of that Member State in the Council of Ministers. In so doing, the Council of Ministers shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.
That Member State shall in any case continue to be bound by its obligations under the Constitution...
The symbols of the Union
(PART IV GENERAL AND FINAL PROVISIONS)
The flag 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.
The currency of the Union shall be the euro.
9 May shall be celebrated throughout the Union as Europe day.
Article 59: Voluntary withdrawal from the Union
1. Any Member State may decide to withdraw from the European Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention; the European Council shall examine that notification. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be concluded on behalf of the Union by the Council of Ministers, acting by a qualified majority, after obtaining the consent of the European Parliament.
The representative of the withdrawing Member State shall not participate in Council of Ministers or European Council discussions or decisions concerning it.
3. The Constitution shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, decides to extend this period.
4. If a State which has withdrawn from the Union asks to re-join, its request shall be subject to the procedure referred to in Article 57.