On 25 November, the Italian Presidency presented its first overall proposal to Member States on the future constitutional treaty, with a view to the IGC conclave at Foreign Minster level on 28 and 29 November in Naples. The explanatory note in English and in French (our translation) is published in full in EUROPE/Documents, as well as a number of significant appendices on the 38 attachments presented, in 51 pages, on the different articles of the future Constitution (see also yesterday's EUROPE, pages 4 and 5).
IGC 2003 - NAPLES MINISTERIAL CONCLAVE: PRESIDENCY PROPOSAL
In line with the conclusions of the European Council meeting in Thessaloniki, the work of the InterGovernmental Conference has been carried out at political level. The IGC meetings so far, together with a series of bilateral contacts, have enabled the Presidency to identify a number of issues in the draft Constitutional Treaty which delegations consider need either clarifying or amending, and in some cases to draw up proposals for a possible way forward.
LEGAL/TECHNICAL ISSUES
In parallel with discussions at political level the Presidency, with the agreement of all delegations, set up a group of legal experts in order to undertake a legal review of the draft Treaty establishing the Constitution drawn up by the Convention. The legal experts group met in October and November under the Chair of the Legal Counsel of the IGC. The outcome of the group's proceedings has been circulated in document CIG 51/03.
The revised texts contained in doc. CIG 50/03 and ADD 1 incorporate all the improvements of a legal or technical nature which are suggested by common accord of the legal experts of the Member States and of the acceding States, without prejudging any amendments which delegations might wish to put forward at the political level. The Presidency considers that the texts resulting from the legal experts group should not be reopened and should serve as a reference point for ministers and Heads in their discussions on the political issues.
OTHER ISSUES
As a complement to this consolidated text, the Presidency submits to delegations the current document which is intended to help make progress on the political issues in order to pave the way for an overall agreement in December. This document is based on the work of the IGC to date. It contains a number of issues identified by the Presidency on the basis of clarifications, modifications and improvements requested by delegations or suggested by the Presidency. Addendum 1 contains proposals for texts. On some issues on which it is not yet possible to draw conclusions, the Presidency describes the current situation and limits itself to setting out the outlines of a possible way forward.
The current document, which constitutes the basis for the discussions in Naples, is intended to evolve in the light of subsequent discussions. It could be revised to take account of the discussions up to the moment when there is a final and overall agreement. In the absence of an issue being raised in this document, the Presidency considers that the text of the draft Constitutional Treaty (as set out in CIG 50/03) remains the basis for future work. This is without prejudice to the right of delegations at any stage to ask to discuss any additional issue on which they maintain that there is a need for clarification or amendment.
This document is not binding on any delegation, nor does it prejudice any position taken by delegations to date. It is being circulated on the basis that none of the proposals contained in it can be considered final until agreement is reached on the draft Constitutional Treaty as a whole.
I. PREAMBLE / DEFINITION AND OBJECTIVES OF THE UNION
a) Christian inheritance
The Presidency has noted that this is an important issue for a number of delegations, but does not at this stage put forward suggestions for amending the Convention text. A proposal will be presented on this issue at a later stage referring not only to Europe's Christian inheritance, but also to the secular nature of the institutions of EU Member States (principe de laïcité).
b) Union's values
Rights of minorities
Equality between men and women
The Presidency proposes to respond to the request for a treaty reference to the rights of minorities and to equality between men and women by means of an amendment to the existing Article 2 on the values of the Union.
c) Primacy of EU law
The Presidency proposes to address the issue of the primacy of EU law, as requested by several delegations, by means of a declaration.
II. CHARTER OF FUNDAMENTAL RIGHTS
The Presidency proposes that, for reasons of transparency and legal certainty, the last preambular provision be amended to refer also to the updating of the official explanations on the Charter and that these explanations be incorporated into a declaration to the Final Act of the IGC which, together with the other declarations, will be published in the Official Journal.
III. INSTITUTIONAL ISSUES
a) Definition of QMV
The Presidency has noted that a large number of delegations support the draft Convention text on this issue. The Presidency is nevertheless aware that for a few delegations, the Convention proposal is not acceptable as it now stands. Given these differing views and the overall objective of maintaining the institutional balance established by the Convention, the Presidency does not propose changes to the Convention's proposals on the definition of qualified majority. It is however of the opinion that it is necessary to continue to reflect on possible ways to respond to these concerns, bearing in mind the shared overall objective of having simple, efficient and transparent decision making procedures.
b) Composition of the Commission
In an enlarged Union, the Commission needs to function effectively. The Presidency considers that the Convention text provides a good basis for meeting this objective. Nevertheless the Presidency is also aware that a significant number of delegations would prefer, for reasons of legitimacy, that the Commission be composed of one national from each Member State. The Commission itself has expressed the same opinion in its communication to the InterGovernmental Conference.
The Presidency proposes, at this stage, to address delegations' concerns by clarifying the provisions of the Convention text on the precise role and responsibilities of the "non-voting" Commissioners. These clarifications could cover the following points:
full participation by "non-voting" Commissioners in the work of the Commission, including in meetings of the College;
the assignment to "non-voting" Commissioners by the President of the Commission of substantive dossiers with real responsibilities.
The Presidency does not exclude the possibility of a discussion on other aspects relating to the composition of the Commission during the meeting in Naples.
c) Council of Ministers - formations and Presidency
On the basis of the broad support for its earlier proposals on this issue, the Presidency maintains its approach and submits a draft text. The Presidency has taken note that a large majority of Member States are opposed to the creation of a legislative Council, but recalls that this could be done subsequently by means of a decision of the European Council.
d) Foreign Minister
The Presidency maintains its earlier proposals for clarifying the provisions on the Foreign Minister, and suggests additional adjustments in order to meet some concerns from some delegations on this issue while fully maintaining the concept of double hatting.
e) European Council - Judicial control of its legal acts
The Presidency proposes, as agreed by a majority of delegations, that the legal acts which are intended to produce legal effects vis-à-vis third parties adopted by the European Council (which is formally becoming an institution) be subject to judicial control by the Court of Justice.
f) European Parliament
The Presidency has noted that a large number of delegations support the draft Convention text on this issue, although some have proposed that the minimum threshold of four members per Member State should be raised.
IV. FINANCES / BUDGET / ECONOMIC AND MONETARY POLICY
The Presidency has taken into account the various views of delegations on the full range of issues covered under this heading. It submits proposals for clarification or modification on some of those points, taking into account the degree of support which they have received as well as the necessity of not calling into question the general balance achieved in the Convention, especially as far as institutional issues are concerned.
a) Financial Perspective
The Presidency has taken note of concerns expressed by some delegations over the procedures for adopting the Financial Perspective after 2013, and suggests that the Conference might discuss the idea of a "rendez-vous" clause as a possible way of meeting these concerns.
b) Budget
The Presidency has noted that a very significant number of delegations have strong objections to the provisions on the budget in the draft Constitutional Treaty as they stand now. However at this stage the Presidency considers it appropriate to maintain the provisions in the Convention text, given that the various alternative approaches put forward so far would have the effect of calling into question the overall institutional balance within the budget procedures.
c) Multilateral surveillance
The Presidency has noted that some delegations have proposed amendments to the Convention text, in particular on the procedures for establishing detailed rules for the multilateral surveillance procedure. However the Presidency proposes not to introduce changes to the text in order to maintain the balanced approach of the Convention.
d) European Central Bank
The Presidency proposes to:
amend the procedures for conferring on the ECB specific tasks concerning policies relating to prudential supervision;
enlarge the scope of provisions covered by the existing enabling clause for amending the ECSB/ECB statute;
provide for the introduction of QMV for appointment of members of the ECB.
e) Lamfalussy procedures
The Presidency proposes to address the concerns of some delegations on this issue by means of a declaration.
f) EIB enabling clause
The Presidency proposes modifying the procedures for amending the statute of the EIB.
g) EMU - decision-making process concerning the euro
The Presidency proposes two amendments to the provisions on decision-making concerning the euro.
V. AREA OF FREEDOM, SECURITY AND JUSTICE
The Presidency has noted the concerns from a number of delegations on provisions under this chapter, and specifically on judicial cooperation in criminal law. It proposes to address these concerns (in particular those related to the existence of different legal systems) in the following ways:
a) Criminal law
The Presidency proposes to address these particular concerns by means of amendments to the Convention text which, while not changing its substance nor the voting procedure, will inter alia give assurances to the delegations concerned that they can specifically raise their particular concerns through adequate procedures before an act is adopted.
The Presidency proposes to clarify that the scope of the remit of the public prosecutor concerns the fight against fraud affecting the Union's financial interests.
b) Civil law
The Presidency proposes to clarify some aspects of the provision on judicial cooperation in civil matters.
VI. DEFENCE
As far as structured cooperation is concerned, taking account of the concerns expressed by a number of delegations, the Presidency submits proposals which, with a view to making such cooperation inclusive, align mutatis mutandis the structured cooperation provisions more closely with the more general provisions on enhanced cooperation in CFSP. As far as "mutual defence" is concerned, the text proposed clarifies that the clause shall not prejudice existing commitments under NATO.
VII. CFSP
The Presidency proposes that, in order to achieve an overall balanced outcome on decision-making procedures, as well as to ensure an effective CFSP, qualified majority voting within the CFSP should be extended.
VIII. OTHER POLICIES OF THE EU
The Presidency has taken note of the various proposals from delegations for amending or clarifying some of the provisions on policies in Part III of the draft Constitutional Treaty. In the light of reactions from all delegations, the Presidency submits proposals for changes to the Convention text or declarations on the following issues:
a) social clause;
b) social security;
c) taxation;
d) social policy;
e) economic, social and territorial cohesion;
f) transport;
g) research and development
h) energy
i) public health
j) sport
k) tourism
IX. REVISION PROCEDURE
In the light of the discussions on simplified procedures for revising the Constitutional Treaty, the Presidency proposes to address the issue in two ways:
as to the decision to move from unanimity to qualified majority, or from a special legislative procedure to the ordinary legislative procedure (general bridging clause), it is proposed that the text be amended to include a provision whereby that decision would not come into effect if [X] national parliaments raise an objection ("nihil obstat" procedure);
as to the decision to amend the Constitution provisions on internal policies (Title III of Part III (special revision procedure), the Presidency maintains its approach as proposed to ministers at the last IGC meeting: no increase of competencies conferred on the Union in the Constitution, decision of the European Council by qualified majority and approval by all Member States in accordance with their respective constitutional requirements. Such an approach would have the advantage of removing the requirement for an InterGovernmental Conference.
X. OTHER ISSUES
a) Outermost regions
The Presidency proposes to include a possibility to adapt the list of outermost regions through a simpler procedure.
b) Protocol on Denmark
In the light of the discussion in the ministerial meeting on 18 November, the Presidency proposes the amended protocol No 5 on the position of Denmark.
c) Services of general interest
The Presidency proposes to amend the Convention text so as to recall the competence of Member States to provide, commission and fund such services.
d) EU neighbouring small States
The Presidency has noted the request for the inclusion of a specific reference to the EU neighbouring small States, and proposes to address this by means of a declaration.
e) EU accession to the European Convention on Human Rights
In the light of discussions on this issue, the Presidency puts forward a minor amendment to the Convention text. It also suggests that this would be an appropriate issue on which qualified majority voting in the Council could apply.
f) Protection and welfare of animals
The Presidency proposes to convert the existing protocol on protection and welfare of animal into a provision to be put at the beginning of Part III of the draft Constitution.
g) Signature of Constitutional Treaty by acceding states
The three candidate countries (Bulgaria, Romania and Turkey) have requested that they be signatories to the text resulting from the InterGovernmental Conference. The Presidency proposes that these countries be invited to sign the Final Act as observors.
MISCELLANEOUS
In a final Annex, on items which were discussed but not solved in the Group of legal experts and were supported by a large majority of delegations, the Presidency proposes some adaptations to the Convention text either to make the text legally more correct or to address some of these items.
On the delimitation between CFSP procedures and other policies' procedures, the Presidency proposes to amend the text of that rule in order to make it legally more sound.
On access to documents of the European Investment Bank, the Presidency proposes to align the treatment of these documents with the treatment of the documents of the European Central Bank.
On the right to vote in European Parliament elections and the fact that the Convention text deprives about 1 million people from the right to vote in such elections, the Presidency proposes to amend the text so as to correct this effect.
On the role of national parliaments under the subsidiarity protocol and the protocol on national parliaments, the Presidency proposes to clarify the drafting to address the particularities of federal structures.
On the fluctuation margins which must be observed in order to become member of the euro zone, the Presidency proposes to refer to the European Monetary System in the relevant provision.
On the power of the Court of Justice to impose fines on Member States, the Presidency proposes amending the Convention text to clarify the power of the Court.
On the legal basis to adopt European laws in common commercial policy, the Presidency proposes to clarify that urgent unilateral trade protection measures be adopted under a lighter procedure than the legislative one.
On enhanced cooperation, the Presidency proposes to remove the bridging clause, and on the specific provisions concerning enhanced cooperation in CFSP, it suggests making it clearer that these follow normal CFSP procedures.
On the solidarity clause, the Presidency proposes amending the text to make it clear that any decision with defence implications will be taken by unanimity, and that the defence aspects of any such decision would be excluded from the competence of the Court of Justice.
In Article 5, the Presidency proposes to replace the term "internal" security with "national" security.
On the question as to who negotiates an agreement on the withdrawal of a Member State from the Union, the Presidency proposes amending the text to refer to the relevant aspects of the general provision on the negotiation of agreements in Part III.
ANNEX
VALUES OF THE UNION
RIGHTS OF MINORITIES
EQUALITY BETWEEN MEN AND WOMEN
Article I-2
The values on which the Union is founded are respect for human dignity, freedom, democracy, equality, rule of law, as well as respect for human rights, including the rights of persons belonging to minorities. These values are common to all Member States in a society characterised by pluralism, non-discrimination, tolerance, justice, solidarity, and the principle of equality between women and men.
FORMATIONS OF THE COUNCIL OF MINISTERS
Article I-23
The Council sits in different formations.
The General Affairs Council ensures coherence in the work of the different Council formations. It prepares meetings of the European Council and ensures these meetings are followed up in liaison with the President of the European Council and the Commission.
The Foreign Affairs Council develops the Union's external policy according to strategic guidelines determined by the European Council and ensures its action is coherent. The Foreign Affairs Council is presided by the Union Foreign Minister.
The European Council adopts a decision by qualified majority establishing a list of the other Council formations. (Declaration of the Conference providing for this list to be established on the basis of the decision taken by the European Council in Seville).
The Council meets in public when it deliberates and votes on proposals for a legislative acts. To this end, each Council session is divided into two parts, devoted to deliberations on legislative acts of the Union and to non-legislative activities respectively.
The Presidency of the Council formations, except the Foreign Affairs Council, is held by the representatives of the Member States in Council according to a system of equal and fair rotation, subject to conditions decided unanimously by European Council decision.
EUROPEAN COUNCIL PROPOSAL FOR A DECISION RELATING TO
THE PRESIDENCY OF THE COUNCIL OF MINISTERS
(The proposal of decision will be adopted the day when the Treaty takes effect)
Article 1
The Presidency of the Council formations, except for the General Affairs Council and the Foreign Affairs Council, is collectively ensured by predetermined groups of three Member States for a continuous period of 12 months. These groups are composed by equal rotation of Member States, taking into account their diversity and geographical balance within the Union.
The Presidency of the different Council formations is shared equally between Member States of the group entrusted with this task throughout the period stated in the first paragraph.
Article 2
The Presidency of the General Affairs Council and of the Committee of Permanent Representatives is held by each of the members of the group in turn, for four months.
Article 3
The Presidency of the bodies responsible for preparing the Council formations in accordance with Article 1 is held by the Member State which holds the Council Presidency. The Presidency of the Political and Security Committee is ensured by a representative of the Union Foreign Minister.
Article 4
The General Affairs Council ensures consistency and continuity in the work of the different Council formations in the context of a multiannual programme. The Member States holding the Presidency make every provision they can, with the assistance of the general secretariat of the Council, to contribute to the correct organisation and functioning of the work of the Council.
Article 5
The Council adopts by qualified majority, European decisions establishing the measures for practical implementation of the present decision. (Declaration of decision providing for the European Commission to begin preparing the decision set out under Article 5 as soon as the Constitutional Treaty is signed. It will approve it politically within 6 months).
FOREIGN MINISTER
Article I-25
(text unchanged)
(text unchanged)
(text unchanged)
The Commission is fully independent in the exercise of its responsibilities. In accomplishing their duties, the President, the European Commissioners, the non-voting Commissioners and the Foreign Minister of the Union neither ask for nor accept instructions from any government or any body except the Union Foreign Minister when representing the Council of Ministers on matters relating to Common Foreign and Security Policy.
The Commission, as a College, is accountable to the European Parliament. The President of the Commission is answerable to the Parliament for the activities of Commissioners. The European Parliament may adopt a motion of censure toward the Commission according to the modalities set out in Article III-243. If such a motion is adopted, the European Commissioners and the non-voting Commissioners must resign collectively of their functions and the Union's Minister of Foreign Affairs will have to resign the positions he holds at the Commission. The Commission will continue to deal with current affairs until a new College is appointed.
Article 1-26
(text unchanged)
(text unchanged)
The President of the Commission:
defines the direction of the framework in which the Commission carries out its mission,
decides on its internal organisation in order to ensure coherency, effectiveness and the collegial manner of its action,
appoints the Vice Presidents at the College.
A European Commissioner or a non-voting Commissioner will present his resignation if the President requests him to do so. The Vice President, Union Minister of Foreign Affairs will present his resignation if the President requests him to do so in accordance with the European Council.
Article 1-27
(text unchanged)
(text unchanged)
The Union's Minister of Foreign Affairs is one of the European Commission's Vice Presidents. He will ensure the coherency of Union action in the area of external affairs, together with Common Foreign and Security Policy. At the Commission, he will be in charge of other Commission responsibilities in the area of external relations and the coordination of other aspects of external action by the Union. In the exercise of these responsibilities at the Commission, and for these responsibilities alone, the Union's Minister of Foreign Affairs is subject to procedures determining the functioning of the Commission, insofar as this is compatible with the provisions in paragraph 2.
COMMON FOREIGN AND DEFENCE POLICY
Permanent Structured Cooperation
Article 1-40 paragraph 6
Member States that fulfil the criteria of higher military capability and which have between them made more binding commitments in this area in view of the most demanding of missions, establish permanent structured cooperation within the Union. This cooperation is governed by the provisions in Article 3-213.
Article 3-213
Member States seeking to participate in permanent structured cooperation defined in Article 1-40, paragraph 6, which fulfil the criteria and meet the commitments of military capability in the Protocol annexed to the current treaty (title) notify their intention to the Council, the Union's Minister of Foreign Affairs and the Commission.
The decision establishing permanent structured cooperation including the list of participants, whose number cannot be less than (X), is taken within a three month deadline following notification by the Council deciding by qualified majority voting following the opinion of the Union's Minister of Foreign Affairs.
If, at any time, a Member State seeks to participate in the cooperation thus established, he subsequently informs the Council. The Council, deciding by qualified majority after having consulted the Minister of Foreign Affairs, confirms the participation of the Member State in question after indicating whether the conditions for its participation are fulfilled.
Without introducing any obstacles to the previous paragraphs, the appropriate provisions on strengthened cooperation in the field of CFSP (Articles 3-325, paragraph 2, and 3-326, paragraph 2) apply to permanent structured cooperation governed by the present Article.
Closer cooperation in mutual defence
Article I-40, paragraph 7
In the even that a Member State is subject to armed aggression on its territory, the other Member States will provide it with aid and assistance, employing all the means in their power, military and otherwise, in compliance with the provisions of Article 51 of the United Nations Charter.
The commitments and cooperation in this area remain in compliance with the commitments made within NATO and also remain, for the countries that are members, the basis for their collective defence.
Article 3-214
(deleted)
SIMPLIFIED REVISION PROCEDURE OF THE CONSTITUTION
TRANSITITION FROM UNANIMITY TO QUALIFIED MAJORITY AND SPECIAL LEGISLATIVE PROCEDURE AND ORDINARY LEGISLATIVE PROCEDURE
Article 4-7 (a)
(new)
When Part 3 lays down that the Council decides by unanimity in an area or in specific case, the European Council can adopt a European decision authorising the Council to decide by qualified majority in this area or in this case.
This paragraph does not apply to decision that have military implications or to the remit of defence.
When Part 3 holds that European laws or framework laws are adopted by the Council in compliance with a special legislative procedure, the European Council can adopt a European decision authorising the adoption of the said laws or framework laws in compliance with the ordinary legislative procedure.
Any initiative taken by the European Council on the basis of paragraphs 1 and 2 is notified to the national parliaments of the Member States. In the absence of opposition from (X) national parliaments within a deadline of six months after notification, the European Council can adopt the European decision in the first and second paragraphs. In case of opposition by (X) national parliaments notified to the European council in the said time limit, the European decision is not adopted.
For the adoption of European decisions in the first and second paragraphs, the European Council decides at unanimity after approval from the European Parliament, which decides according to the majority of its members.
Article 1-24 Qualified Majority
(paragraph 4 deleted)
SIMPLIFIED REVISION PROCEDURES OF THE CONSTITUTION
AMENDMENT OF INTERNAL POLICIES
Article 4-(7C)
(new)
The government of any Member State, European Parliament, or Commission, can submit to the European Council projects dealing with the revision of the internal policies of the Union (heading 3 of part 3) which do not increase the competencies of the Union as they are defined in the present treaty.
After consultation with the European Parliament and the Commission, the European adopts by qualified majority, he amendments in heading 3 of part 3 of he treaty establishing the Constitution.
These amendments enter into force after approval by the Member States according to their respective constitutional rules.