The Treaty establishing a Constitution for Europe (TCE; commonly referred to as the European Constitution or as the Constitutional Treaty) was an unratified international treaty intended to create a consolidated constitution for the European Union (EU). It would have replaced the existing European Union treaties with a single text, given legal force to the Charter of Fundamental Rights, and expanded qualified majority voting into policy areas which had previously been decided by unanimity among member states.
The Treaty was signed on 29 October 2004 by representatives of the then 25 member states of the European Union. It was later ratified by 18 member states, which included referendums endorsing it in Spain and Luxembourg. However, the rejection of the document by French and Dutch voters in May and June 2005 brought the ratification process to an end.
Following a period of reflection, the Treaty of Lisbon was created to replace the Constitutional Treaty. This contained many of the changes that were originally placed in the Constitutional Treaty but, instead of repealing and replacing the existing treaties, simply amended them and abandoned the idea of a single codified constitution. Signed on 13 December 2007, the Lisbon Treaty entered into force on 1 December 2009, after ratification by all Member States.
History
Drafting
The drafting of the European Constitution began in a call for a new debate on the future of Europe, made at the Laeken European Council in December 2001. A European Convention was founded shortly afterward; this was chaired by former French President Valéry Giscard d'Estaing and composed of two Members of the national Parliament (generally one from the governing majority and one from the opposition) of each Member State and applicant state, 16 MEPs, two members of the European Commission and a minister from each government. It met in public. Giscard d'Estaing proposed to draft a Constitution that would replace the existing treaties. Romano Prodi, the President of the European Commission, put forward a draft text, termed the 'Penelope Project', which contained a deeper integration of the countries and a clearer institutional model. National governments, parliaments and the European Parliament also put forward ideas.
The results of the convention were submitted to an Intergovernmental Conference (IGC) of the Member States during the Italian presidency of the EU Council. Some disputes arose over the proposed framework for qualified majority voting: the final text of the TCE was settled in June 2004 under the Irish presidency.
Mention of Christianity in the preamble
Several countries urged that the preamble of the Constitution include a reference to Christianity. Among these were Italy, Lithuania, Malta, Poland, Portugal, the Czech Republic, and Slovakia, which in May 2004 sent a letter to the Irish Presidency, saying "the governments of those countries consider as a priority the recognition of the Christian tradition in the Preamble" and noting that the list of signatories was not exhaustive as they hoped other countries would join their initiative. The Greek government likewise supported a reference to Christianity.
The strongest opponents of any reference to Christianity were France and Belgium. Other countries opposing such a reference were Germany, Denmark, Sweden, Finland, Slovenia, and Cyprus. Among other nations, Spain originally supported the inclusion of a reference to Christianity, but the incoming Zapatero government reversed the stance of its predecessor.
Eventually the agreed-upon Constitution made no explicit references to Christianity, only mentioning the "cultural, religious and humanist inheritance of Europe". This decision caused disappointment in the Vatican, but satisfaction from candidate state Turkey.
Signing
The Treaty establishing a Constitution for Europe was signed in Rome on 29 October 2004 by 53 senior political figures from the 25 member states of the European Union. In most cases heads of state designated plenipotentiaries to sign the treaty, but some presidents also signed on behalf of states which were republics. Most designated plenipotentiaries were prime ministers and foreign ministers.
Ratification
On 12 January 2005 the European Parliament voted a legally non-binding resolution (Corbett-Mendez de Vigo Report) approving the Constitution by 500 votes in favour to 137 votes against, with 40 abstentions.
Before an EU treaty can enter into force, it must be ratified by all member states. Ratification takes different forms in each country, depending on its traditions, constitutional arrangements and political processes. Most member states ratify EU treaties following parliamentary votes, while some — notably Ireland and Denmark — sometimes hold referendums, in Ireland's case where the treaty requires a constitutional amendment, for all amendments have to be approved by referendum. As a reaction to what was seen as the novel nature of the Constitution, many advocates and opponents of the Constitution argued that it should be subjected to referendums across the European Union.
On 20 April 2004, the then British prime minister Tony Blair unexpectedly announced an intention to hold a referendum, a proposal which he had previously rejected. A further seven member states announced or had already announced that they would hold referendums on the Constitution, these being Denmark, France, Ireland, Luxembourg, the Netherlands, Spain and Portugal.
Spain was the first country to hold a referendum on the Constitution. On 20 February 2005, Spanish voters backed the treaty with 76% voting in favour to 24% against, on a turnout of 43%.
On 29 May 2005, the French people rejected the Constitution by a margin of 55% to 45% on a turnout of 69%. On 1 June, the Dutch people rejected the constitution by a margin of 61% to 39% on a turnout of 62%.
Notwithstanding the rejection in France and the Netherlands, Luxembourg held a referendum on 10 July 2005 approving the Constitution by 57% to 43%. It was the last referendum to be held on the Constitution, for all of the other member states that had proposed to hold referendums cancelled them.
Post-rejection
Following the French and Dutch referendum results, European leaders decided to hold a "period of reflection" on what to do next. As part of this reflection period, a group of politicians and officials was set up to consider possible courses of action. This group of high-level European politicians – former prime ministers, ministers and members of the European Commission – first met on 30 September 2006 in Rome.
On 4 June 2007, this group, known as the Amato Group, presented its report. They proposed to establish a new Inter-Governmental Conference with a view to writing a new treaty which would rewrite the Maastricht Treaty, amend the Treaty of Rome and give the Charter of Fundamental Rights of the European Union a legally binding status. The new treaty would be based on the first and fourth parts of the Constitution, the rest of the Constitution's changes being achieved through amendments to the Treaty of Rome.
In the June 2007 European summit meeting, member states agreed to abandon the constitution and to amend the existing treaties, which would remain in force. They also agreed a detailed mandate for a new intergovernmental conference to negotiate a new treaty containing such amendments to the existing treaties (primarily the Treaty of Rome and the Treaty of Maastricht). These negotiations were completed by the end of the year. The new treaty, which had previously been referred to as the Reform Treaty, became the Treaty of Lisbon on its signing in Lisbon on 13 December 2007.
Content
Institutional structure
Under the TCE, the Council of the European Union would have been formally renamed the "Council of Ministers", which is already its informal title. The "General Affairs Council" would have been formally split from the "Foreign Affairs Council", which had informally held meetings separately since June 2002.
The TCE proposed the formal recognition of a flag, an anthem and a motto for the Union, although none of them were new.
Conferral, subsidiarity, proportionality
The TCE would have reiterated several key principles of how the Union functions:
- the principle of conferral: that all EU competences are conferred on it voluntarily by member states;
- the principle of subsidiarity: that governmental decisions should be taken at the lowest level possible while still remaining effective;
- the principle of proportionality: that the EU may only act exactly to the extent that is needed to achieve its objectives;
- the primacy of EU law: in areas where member states have made legally binding agreements at EU level, they may not then pass national laws incompatible with those EU laws.
The TCE would have specified that the EU is a union of member states, and that all its competences (areas of responsibility) are voluntarily conferred on it by its member states according to the principle of conferral. The EU would have no competences by right, and thus any areas of policy not explicitly specified in the Constitution would have remained the domain of the sovereign member states (notwithstanding the 'flexibility clause').
According to the TCE, the EU may act (i.e. make laws) only where its member states agree unanimously that actions by individual countries would be insufficient. This is the principle of subsidiarity and is based on the legal and political principle that governmental decisions should be taken as close to the people as possible while still remaining effective. It is a main argument against claims that Europe limits national sovereignty, but critics say that it is a principle to which lip service only is paid and, in practice, the reach of the EU has been increasingly ambitious.
Primacy of Union law
Amongst European countries, the European Court of Justice has consistently ruled since 1964 that EU law has primacy over the laws of member states in the areas where member states allow it to legislate. National law that is incompatible with an agreement already made at European level is deemed to be 'disapplied' when questions arise in courts. This controversial and fundamental principle of European Community law was first recognised in the case of Van Gend en Loos in 1963 which was followed in Costa v ENEL in 1964.
Judicial protection and fundamental rights
The TCE would have maintained the role of the Court of Justice of the European Union (articles III-353 et seq.).
It would further have rendered the (at that point) non-binding Charter of Fundamental Rights legally binding. Unlike the Treaty of Lisbon, it incorporated the text of the Charter in the Treaty itself (see Part II of the TCE). This included various adjustments to the Charter as promulgated in 2000, including granting persuasive value to the Explanations to the Charter (see article II-112(7) and Declaration 12 to the TCE).
This would continue to exist alongside the protection of fundamental rights as general principles of EU law (article (I-9(3) TCE). Further, article I-9(2) TCE required the EU to accede to the European Convention on Human Rights.
Common values of the Union's member states
As stated in Articles I-1 and I-2, the Union is open to all European States that respect the member states' common values, namely:
Member states also declare that the following principles prevail in their society:
Some of these provisions would have been codified for the first time in the TCE.
Aims of the Union
The aims of the EU were stated to be (Article I-3):
In its relations with the wider world the Union's objectives are:
- to uphold and promote its values and interests.
- to contribute to peace, security, the sustainable development of the Earth.
- solidarity and mutual respect among people.
- free and fair trade.
- eradication of poverty and the protection of human rights, in particular the rights of the child.
- strict observance and development of international law, including respect for the principles of the United Nations Charter.
Scope of the Union
Competences
The EU has six exclusive competences, policy areas in which member states have agreed that they should act exclusively through the EU and not legislate at a national level. The list remains unchanged from the previous treaties: