The European Constitution The European Constitution Cases and Materials in EU and Member States’ Law Giuliano Amato Vice-President of the European Convention 2002–2003, Professor, European University Institute, former Prime Minister of Italy Jacques Ziller Professor at the European University Institute, Italy, formerly at Université de Paris I – Panthéon-Sorbonne, France With the collaboration of Rebeca Lizasoain Brandys, Research Assistant, European University Institute Edward Elgar Cheltenham, UK • Northampton, MA, USA © Giuliano Amato and Jacques Ziller 2007 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited Glensanda House Montpellier Parade Cheltenham Glos GL50 1UA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Cataloguing in Publication Data Amato, Giuliano. The European Constitution : cases and materials in EU & member states’ law / Giuliano Amato, Jacques Ziller. p. cm. Includes bibliographical references and index. 1. Constitutional law—European Union countries. 2. European Union countries—Politics and government. I. Ziller, Jacques. II. Title. KJE4445.A45 2007 342.24—dc22 2007000156 ISBN 978 1 84720 129 4 (cased) Typeset by Cambrian Typesetters, Camberley, Surrey Printed and bound in Great Britain by MPG Books Ltd, Bodmin, Cornwall Contents List of abbreviations vi Foreword vii Acknowledgements ix 1 The ratification of the Treaty of Rome of 29 October 2004 establishing a constitution for Europe 1 2 Referendums in the ratification process: constitutional bases, results, consequences 43 3 Innovations in the constitution for Europe 68 4 Primacy of EU law 89 5 The EU Charter of Fundamental Rights 114 6 Competences, legal bases and instruments in the constitution for Europe 146 7 The role of national parliaments and the principles of subsidiarity and proportionality 189 8 The area of freedom, security and justice 220 9 Developments under the Common Foreign and Security and Defence Policies 257 Index 307 v Abbreviations CFSP Common Foreign and Security Policy CoR Committee of the Regions COSAC Conference of the Community and European Affairs Committees of EU Member States CT Constitutional Treaty, that is, treaty establishing a constitution for Europe EC European Community ECB European Central Bank ECHR European Convention of Human Rights ECJ European Court of Justice EU European Union EUI European University Institute IGC Intergovernmental Conference SEA Single European Act TEC Treaty establishing the European Community TEU Treaty on the European Union UK United Kingdom UN United Nations vi Foreword At the meeting of the European Council on 16–17 June 2005, two weeks after the negative referendums on the Treaty establishing a Constitution for Europe, the Heads of State and Government agreed upon a period of reflection ‘to enable a broad debate to take place in each of our countries, involving citizens, civil society, social partners, national parliaments and political parties’. While some declared the Constitutional Treaty dead and others carried on with the processes leading to its ratification, the academic debate continued. As a modest contribution to this academic debate, we held a seminar on ‘the ratifi- cation of the Constitution for Europe’ at the European University Institute in Florence from January to March 2005. Edward Elgar Publishing showed inter- est in publishing the materials we used in the framework of this seminar to prompt discussion with post-graduate students and post-doctoral fellows in law and political science. The present book offers a selection of these materials, including excerpts of the European Convention’s work; selected statutory and constitutional provi- sions of the Member States; related passages from pertinent court decisions – from both European courts as well as Member States’ constitutional courts; institutional and doctrinal analyses; and relevant excerpts from the Constitutional Treaty itself. Many of these documents directly relate to the provisions of the Constitutional Treaty, while the others, although not directly related, are nevertheless relevant to the debate surrounding it. These docu- ments should help the reader to better understand some of the most important changes that would be introduced by the Constitutional Treaty in the EU legal and political system. They might also help to assess the need for the reforms embedded in the Constitutional Treaty as well as the quality of the formula- tions agreed upon at the European Council of 18 June 2004, which resulted in the Treaty signed in Rome on 29 October of the same year. The book is divided into nine chapters. Chapters 1 and 2 are designed to have a broad overview of the ratification process as a whole and especially of the referendums which took place in four Member States in 2005. They are not meant only as documents on contemporary history but as a contribution to the reflections of lawyers, political scientists, politicians and practitioners on the procedures to be adopted for future amendment of EU treaties. Chapter 3 presents a general but not exhaustive overview of the numerous innovations introduced by the Constitutional Treaty, from mere codification to institutional vii reforms. This should also be useful for the reflection on the future of the European Union, both from the perspective of the possible entry into force of the Constitutional Treaty (either in its form as of 2004 or in an amended version) and from the perspective of a prolonged pause in constitutional reform at EU level. Chapters 4 to 9 explore in more depth several dimensions of these innovations: the wording of essential EU law principles such as the principle of primacy (Chapter 4), the transformation into a legally binding instrument of the Nice Charter of Fundamental Rights (Chapter 5), the stream- lining of EU competences, instruments and legal bases (Chapter 6) and a specific aspect of the institutional changes which have an impact at both EU and Member State level, namely, the role of national parliaments. The two final chapters are devoted to the two policy areas where the constitution for Europe would introduce the biggest changes as compared to the present situa- tion, that is, in the area of freedom, security and justice (the so-called ‘third pillar’ of the EU – see Chapter 8) and, last but not least, in the field of the common foreign, security and defence policies (Chapter 9). We have tried to present a wide variety of documents, including translations of documents which do not exist in the English language, so as to give the readers as much information as possible in order for them to make up their minds in an independent way. We also avoided cutting the documents down too much, and we have kept our introductory comments to a very short intro- duction, in order to allow for discussion by those who will use this book as a teaching instrument to each chapter. We hope and expect that the discussions generated by these documents will be intense and fruitful. Giuliano Amato and Jacques Ziller July 2006 viii The European Constitution Acknowledgements We would like to thank Rebeca Lizasoain Brandys, who helped us to collect and present the materials for our seminar and who assisted us in the prepara- tion of this book, and Mel Marquis, who handled the English language revi- sions of our introductions to each chapter and of the Foreword. We would also like to thank the EUI researchers who translated those documents which were not available in the English language: 1 Luke Mason, 2 Tobias McKenney 3 and Thomas Roberts. 4 Notes 1. Translations made under our responsibility are signalled by the indication ‘[translation]’ in the title of the Document. 2. Documents 2.2, 2.14 and 8.11. 3. Documents 2.9, 2.10, 3.3 and 4.4. 4. Documents 1.10, 1.11, 2.5, 2.12, 4.6, 4.9, 7.9, 8.8, 8.9, 8.10 and 9.2. ix [...]... improvement in the functioning, simplicity and transparency of the EU compared to the existing treaties; 8 considers that in broadening out the debate on the future of the European Union its institutions should focus on the actual and potential practical benefits that membership and citizenship bring to its citizens; 9 in order to rebuild the trust of European citizens in the European project, calls on the EU. .. on the other hand there are the campaign arguments Two strands of criticism were levelled against the European Constitution during the referendum campaign, in The ratification of the Treaty of Rome 25 responses to opinion pollsters as well as, as the case may be, during the debates which followed it In the first place there were substantive critiques, which can be summed up in the fear that the European. .. asks the Constitutional Affairs Committee to work closely with all other committees directly interested in the preparation of the Parliamentary Forums and the drafting of the working documents for them; 35 Instructs its President to forward this Resolution to the members of the European Council, the Council, the Commission, the national and regional parliaments of the Member States, the Committee of the. .. political institutions to encourage a pro-active attitude on the part of the media (in particular television, the press and local radio) and to enlist them for the purpose of publicising and intensifying the debate; 16 Proposes that the first Parliamentary Forum be convened in the spring of 2006, in advance of the June meeting of the European Council, in order to hear reports from the French and Dutch... about the future of Europe and the governance of the Union which should be addressed in subsequent Forums and in the broader public debate, such as: (i) what is the goal of European integration? (ii) what role should Europe have in the world? (iii) in the light of globalisation, what is the future of the European social and economic model? (iv) how do we define the boundaries of the European Union? (v)... debates on the context rather than the text, with issues such as the future of the European social model, European economic prospects, the speed of enlargement, the medium term budget and the single market in services, all featuring prominently, P The Commission has published its contribution on the period of reflection with the aim of restoring public confidence in the European Union by supporting national... Constitution for Europe European Commission, Summary Table – Procedures planned for the Ratification of the European Constitution Declaration by the Heads of State or Government of the Member States of The European Union on The Ratification of the Treaty Establishing a Constitution For Europe (European Council, 16 and 17 June 2005) Article 18, Vienna Convention on the Law of Treaties of 22 May 1969 European. .. referendum would be held in the United Kingdom Opinion polls, however, indicated strong support for the Treaty in all the other ‘old’ Member States, starting with France and The Netherlands The ratification process was launched in the new Member States in the autumn of 2004, at a time when doubts were surfacing with respect to the outcome of the French referendum The forebodings of some proved to be... of the Union, have since ratified the Constitution in accordance with their own constitutional requirements, including by means of a referendum in both Spain and Luxembourg, F France and the Netherlands, following referendums held on 29 May and 1 June 2005 respectively, have failed to ratify the Constitution – with the result that the ratification process has subsequently stalled in most of the remaining... to merge the European Union’s three ‘pillars’ (that is, the European Community, the Common Foreign and Security Policy and Justice and Home Affairs) and to give the EU a single legal personality, which was accepted by the European Convention in October 2002 and endorsed by the intergovernmental conference (IGC) which followed, when the IGC decided in October 2003 to negotiate on the basis of the draft . The European Constitution The European Constitution Cases and Materials in EU and Member States’ Law Giuliano Amato Vice-President of the European. Treaty in all the other ‘old’ Member States, starting with France and The Netherlands. The ratification process was launched in the new Member States in the