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The Elements of a Constitutional Settlement for the European Union

Published online by Cambridge University Press:  27 October 2017

Alan Dashwood
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Extract

A debate is under way about the future of the European Union. It was started by the Declaration adopted by the European Council of Nice in December 2000, was given more substance by the Declaration of Laeken in December 2001, and received a formal focus in the Convention which has been brought together in Brussels under the chairmanship of former President Giscard d’Estaing. The Nice Declaration referred to, among other things, ‘the simplification of the Treaties with a view to making them clearer and better understood without changing their meaning’, but the Laeken Declaration goes considerably further. There is a section in the Declaration entitled, ‘Towards a constitution for European citizens’, which contemplates possible changes to the structure not only of the Treaties but of the Union itself, including perhaps the abolition of the division into three so-called ‘pillars’, and the distinction between the European Union and the European Communities. The Declaration also raises the matter of the legal status of the Charter of Fundamental Rights which was proclaimed in Nice, and speculates as to the possible adoption ‘in the long run’ of what it calls a ‘constitutional text’. A reordering of the primary instruments of the Union is, therefore, very much on the agenda of the Convention, and the idea has heavyweight political supporters.

Type
Research Article
Information
Cambridge Yearbook of European Legal Studies , Volume 4 , 2001 , pp. 1 - 13
Copyright
Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2001

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References

1 See Declaration No 23 on the Future of the Union, pt. 5, third indent.

2 See Document No SN 273/01, annexed to the Laeken Presidency Conclusion.

3 The ECSC Treaty was concluded for a period of 50 years (Art. 97 ECSC). It came into force on 20 July 1952. Following the expiration of the Treaty, coal and steel products have fallen within the purview of the EC Treaty. There is a Protocol on the Financial Consequences of the Expiry of the ECSC Treaty and on the Research Fund for Coal and Steel annexed to the Treaty of Nice.

4 See Act concerning the conditions of accession and the adjustments to the Treaties, Title II, Ch. 3, Arts. 98 to 103.

5 The leading cases on direct effect and primacy are Case 26/62 Van Gend en Loos v. Nederlandse Administratie der Belastingen [1963] ECR 1; Case 6/64 Costa v. ENEL [1964] ECR 585; Case 106/77 Simmenthal [1978] ECR 629. The basic organising principles of the European Community were more recently restated by the Court of Justice in Opinion 1/91 European Economic Area Agreement, [1991] ECR 6079, para 21.

6 E.g. the series of Inter-Institutional Agreements (‘I.I.A’) containing ‘financial perspectives’ which, from 1988 onwards, have underpinned the financing of the Community/Union. For the text of the current I.I.A., see OJ 1999 C 172/1.

7 E.g. the practices governing the conduct of the meetings of Heads of State or Government of the Member States, together with the President of the Commission, which are known as ‘the European Council’. On the role and composition of the European Council, see Art. 4 TEU.

8 These ideas have been more fully developed by the writer elsewhere. See Dashwood, A. ‘The Limits of European Community Powers’ (1996) 21 ELRev 113 Google Scholar; ‘States in the European Union’ (1998) 23 ELRev 201, reprinted in Rider, B (ed.) Law at the Centre (The Hague, Kluwer Law, 1999) 235 Google Scholar. See also Wyatt and Dashwood’s European Union Law, (hereinafter, ‘Wyatt and Dashwood’) Ch. 7.

9 See the references in the Declaration, which were noted earlier, to possibly reviewing the distinction between the Union and the Communities, as well as the division into three pillars.

10 The Union/Community relationship is more fully analysed in Wyatt and Dashwood, Ch. 8.

11 The legal basis of the second pillar is found in Title V TEU and that of the third pillar in Title VI TEU.

12 Those tendencies are more fully analysed in the chapter entitled ‘Issues of Decision-Making in the European Union After Nice’, which the author has contributed to a forthcoming volume, Arnull, A. and Wincott, D. (eds.) Accountability and Legitimacy in the European Union (Oxford, OUP, 2002)Google Scholar.

13 Examples of such measures are the Framework Decision on the European arrest warrant and the Framework Decision on combating terrorism which were adopted by the Council on 13 June 2002.

14 The procedure enables a member of the Council to oppose the adoption of a measure by QMV ‘for important and stated reasons of national policy’. The Council, acting by QMV, may request that the matter be referred to the European Council, for decision by unanimity. See Art. 23(2), second para. TEU. For criticism of the procedure, see Dashwood, ‘States in the Union’, above n 8.

15 On the role of Presidency, see Art. 18 TEU. On the role of the Secretary General as High Representative for the common foreign and security policy, see Art. 26 TEU.

16 See Art. 25 TEU, as amended by the Treaty of Nice.

17 See Dashwood, A. (ed.) Reviewing Maastricht: Issues for the 1996 IGC, 215 ffGoogle Scholar.

18 A procedure for the negotiation and conclusion of international agreements relating to second and third pillar matters was introduced into the TEU by the Treaty of Amsterdam: see Arts. 24 and 38 TEU. The procedure has been used to conclude agreements in the name of the Union: Council Dec. 2001/352 concerning the conclusion of the Agreement between the European Union and the Federal Republic of Yugoslavia (FRY) on the activities of the European Union Monitoring Mission (EUMM) in the FRY, OJ 2001 L 125/1; Council Dec. 2001/682 concerning the conclusion of the Agreement between the European Union and the Former Yugoslav Republic of Macedonia (FYROM) on the activities of the European Union Monitoring Mission (EUMM) in the FYROM, OJ 2001 L 241/1.

19 The issues here referred to are more fully analysed by the writer in the chapter referred to above n 12.

20 See de Witte, B. ‘The Pillar Structure and the Nature of the European Union: Greek Temple or French Gothic Cathedral?’ in Heukels, T. et al. (eds.) The European Union after Amsterdam: a Legal Analysis (The Hague, Kluwer Law International, 1998) 51 Google Scholar.

21 See Developments in the European Union, July–Dec. 2000, The French Presidency, 8.

22 ‘Reforming Europe: New Era, New Questions’.

23 See the line of ECJ authorities, beginning with Case 293/83 Gravier v. City of Liège [1985] ECR 606. The authorities are fully considered in Wyatt and Dashwood, Ch. 28.

24 The procedure is set out in Art. 252 EC.

25 The procedure is set out in Art. 251 EC.

26 On the original (Maastricht) version of co-decision, see Dashwood, A. ‘Community Legislative Procedures in the Era of the TEU’ (1994) ELRev 343 Google Scholar. On the version of the procedure resulting from the Treaty of Amsterdam, see Dashwood, A. ‘European Community Legislative Procedures after Amsterdam’ (1998) 1 CYELS 25 Google Scholar. On the law-making process post-Nice, see Dashwood, A. ‘The Constitution of the European Union after Nice: law-making procedures’ (2001) ELRev 215 Google Scholar.

27 See e.g. Arts. 107(5) and (6) EC and Arts. 111(1) and (2) EC. The ECB exercises its right of initiative by way of a recommendation.

28 See Art. 110 EC.

29 See the Report presented to the European Council of Nice by the French Presidency and the General Secretariat of the Council (Press Release: Brussels (28.11.2000)—No 1336. 1/00). See also the Press Release issued following the Joint European Parliament /Council/ Commission Seminar of 6 and 7 November 2000 on the functioning of the co-decision procedure since the Amsterdam Treaty.

30 See Art. 37(2) third sub para. EC.

31 See Art. 161 EC.

32 The Report by the Presidency to the Seville European Council on ‘Measures to Prepare the Council for Enlargement’ refers in fine to the fact that opinion is favourable to opening Council meetings to the public when the Council is acting in co-decision with the European Parliament. This would occur at the initial stage of the procedure and at the deliberation stage and the final vote. See doc. No 9939/02, POLGEN 25.

33 See ibid. the proposals relating to preparation for, and the conduct of, proceedings of the European Council.

34 Or it might be called more adventurously, “Constitutional Treaty of the European Union”.

35 See the Report ‘Reforming the Treaties’ Amendments Procedures’ which was submitted to the Commission on 31 July 2000.

36 Or, arguably, by what the EUI Report calls a ‘super-qualified majority’ of, say, four-fifths of the Member States.