A Constitution for Europe
Part IV of the Constitutional Treaty comprises the general and final provisions. It covers the repeal of previous treaties whilst assuring legal continuity of the Community acquis and enacts transitional provisions on the entry into force of the Constitution. It also defines the territorial scope of the Treaty.
Furthermore, it contains provisions on revising the Constitution: the ordinary provision procedure, simplified procedure ("bridging clauses") and simplified provision procedure applicable to the Union's internal policies and action. The simplified procedures are one of the key innovations of the Constitution, especially the "bridging clauses", which enable the scope for qualified majority voting and the ordinary legislative procedure to be extended to other areas.
Finally, this last part establishes the duration of the Treaty (for an unlimited period), the ratification procedure and the entry into force of the Constitution.
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The draft Constitution aims to replace the Treaty establishing the European Community (EC Treaty) and the Treaty on European Union (EU Treaty), together with any acts and treaties which have supplemented or amended them, including the Single European Act, the Treaty of Amsterdam , the Treaty of Nice and the accession treaties (Article IV-437).
However, some provisions of the various accession treaties, especially those whose effect is permanent or which enact transitional provisions on accession which are not yet obsolete, must remain in force to ensure legal continuity. To this end, two protocols have been annexed to the Constitutional Treaty:
- the protocol on the accession treaties and acts for Denmark, the United Kingdom, Ireland, Greece, Spain, Portugal, Austria, Finland and Sweden;
- the protocol on the accession treaties and acts for the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia.
Article IV-438 specifies the details of succession and legal continuity: the new Union established by the Constitution is the successor to the European Community (EC) and the European Union (EU). The institutions, bodies and organisations existing on the date of entry into force of the Constitutional Treaty will continue to exercise their powers, in the composition of that date, in accordance with the Constitutional Treaty.
Unlike the primary legislation, all the acts on institutions adopted pursuant to the Treaty and acts repealed by Article IV-437 will remain in force. They will continue to have legal effect as long as these acts are not repealed, annulled or amended. The same applies to the other elements of the Community acquis, such as the institutional agreements, the decisions and agreements concluded by the representatives of the Member States and declarations or resolutions. This also means that all the declarations made by previous intergovernmental conferences (especially those leading to the Single European Act, the Treaties of Maastricht, Amsterdam and Nice, and the accession treaties) remain in force, although the treaties concluded by these conferences will be repealed if the Constitution enters into force.
The case law of the Court of Justice of the European Communities and the Court of First Instance on the interpretation and application of the treaties and acts repealed remains valid as a source of interpretation of the Union's law and, in particular, those provisions of the Constitution which are comparable to the former treaties.
Article IV-439 on the transitional provisions governing certain institutions refers to the protocol with the same name annexed to the Constitutional Treaty providing for specific transitional measures on the composition of the Parliament, definition of a qualified majority in the Council, composition of the Commission and the Minister of Foreign Affairs.
Article IV-440 defines the territorial scope of the Constitution, in particular with regard to certain islands. The overseas countries and territories feature in Annex II of the Constitutional Treaty. The Constitution does not change the territorial scope of the current treaties at all.
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Of all the earlier treaties, only the Euratom Treaty establishing the European Atomic Energy Community, concluded in 1957, will remain in force. This Community is not merged with the Union and therefore keeps a separate legal personality whilst sharing the same institutions. The Constitutional Treaty specifies the amendments that need to be made to the Euratom Treaty in the "protocol amending the Euratom Treaty", which is annexed to the Constitution. These consist only of adaptations to the new rules established by the Constitution, particularly in the institutional and financial field.
A declaration by five Member States, Germany, Ireland, Hungary, Austria and Sweden, points out that the essential provisions of the Euratom Treaty have not been amended since its entry into force and that an update is required. The five countries are therefore in favour of an intergovernmental conference being convened as soon as possible to revise it.
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The Constitutional Treaty distinguishes between three procedures for revising the Constitution: the ordinary procedure, the simplified procedure ("bridging clauses") and the simplified procedure applicable to the Union's internal policy and action.
The ordinary revision procedure
Article IV-443 contains the provisions of the ordinary revision procedure and introduces several innovations in relation to the current situation deriving from Article 48 of the Treaty on European Union (EU Treaty).
The first innovation is that it enables the European Parliament to submit proposals for revising the Constitution, thereby putting it on an equal footing with the Commission and the governments of the Member States who already have this right.
Secondly, the Constitutional Treaty perpetuates the model of the European Convention so that future revisions of the Constitution will also be prepared by such a body. This Convention would be made up of representatives of the national parliaments, of Heads of State or Government, of the European Parliament and the Commission. Its task would be to examine proposals for amendments and to adopt, by a consensus, a recommendation to the Intergovernmental Conference (ICG) convened by the President of the Council of Ministers so as to determine by common accord the amendments to be made to the Treaty establishing the Constitution. However, the European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene the Convention if the amendments are relatively minor. In this case, the European Council will define the terms of reference for a conference of representatives of the governments of the Member States, which will draw up the necessary amendments.
Irrespective of which procedure is followed, the amendments to the Treaty establishing the Constitution will enter into force only after having been ratified by all the Member States in accordance with their respective constitutional rules.
Apart from the increased role of the Parliament and the inclusion of the model of the Convention in the revision procedure, Article IV-443 does not therefore substantially change the current revision procedure.
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The simplified revision procedure ("bridging clauses")
The Convention proposed general bridging clauses to extend the scope of qualified majority voting and the ordinary legislative procedure to cases where unanimity or a special legislative procedure were supposed to apply.
The Constitutional Treaty incorporated this proposal in Article IV-444. Two general bridging clauses therefore enable the European Council, by a unanimous decision, to apply qualified majority voting or the ordinary legislative procedure in a field for which the Constitution still provides for unanimity or a special legislative procedure.
The Constitutional Treaty provides that the national parliaments have a say in the process: any move by the European Council to make use of this bridging clause must be put before the national parliaments. If any national parliament objects to the use of the clause within a period of six months, the decision is not adopted.
These bridging clauses are applicable only to Part III of the Constitution and are ruled out for decisions on defence or with military implications. The European Council takes a unanimous vote after approval by the European Parliament which decides by a majority of its members.
The bridging clauses represent one of the key innovations of the Constitutional Treaty.
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Specific bridging clauses
The Constitutional Treaty contains other specific bridging clauses applicable to certain Union policies. The Council may decide, by a unanimous vote after consulting Parliament, to replace the special procedure by the ordinary legislative procedure (which also involves changing over to qualified majority voting) in the following three areas:
- social policy (Article III-210);
- environment (Article III 234);
- family law (Article III-269).
Secondly, the Council may extend the scope of qualified majority voting in the field of common foreign and security policy, deciding by a unanimous vote (Articles I-40 and III-300).
In neither case does the Constitution provide for any involvement of the national parliaments.
Finally, the Constitutional Treaty provides that certain protocols may be amended on a case-to-case basis, either by a European law or by a Council law, namely:
- the statute of the European system of central banks (SEBC);
- the statute of the Court of Justice of the European Union;
- the protocol on the excessive deficit procedure and the protocol on the statute of the European Investment bank (EIB);
- the transitional provisions of the two protocols on the accession treaties (repealing of obsolete provisions).
For the first time the Constitutional Treaty therefore offers several ways of amending certain specific and clearly defined provisions without having to resort to the more cumbersome procedure for ordinary revision of the Constitutional Treaty.
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The simplified revision procedure for internal policy and action
Article IV-445 of the Constitutional Treaty provides for a simplified revision procedure for the provisions under Title III of Part III on the Union's internal policies and action. It should be noted that the Convention did not propose any amendment to the substance of the Union's internal policies when it drew up the draft Constitution, confining itself to adapting them to the changes proposed in other areas. The ICG therefore thought it was advisable to introduce a simplified revision clause for that part of the Constitutional Treaty so that it could subsequently be amended more easily. However, this procedure may under no circumstances increase the competences assigned to the Union by the Constitutional Treaty.
As in the normal procedure, the government of any Member State, the European Parliament or the Commission may submit to the European Council proposals for revising Title III of Part III. The European Council may then adopt a European decision amending all or part of the provisions under this title. The European Council decides by a unanimous vote after consulting the Parliament, the Commission and, in the case of institutional changes affecting monetary policy, the European Central Bank.
This decision must then be ratified by the Member States. It is therefore not necessary to go through the stage of a Convention or a formal ICG to amend those parts of the Constitutional Treaty, but the decision remains a unanimous decision taken by the European Council and ratified by all the Member States.
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The Constitutional Treaty, which is being concluded for an unlimited period, must be ratified by the Member States in accordance with their respective constitutional rules, i.e. either by parliament or by a referendum.
As with the previous treaties, ratification by all Member States is needed for the new text to enter into force.
According to the Constitution, the ratification process was expected to last for two years, and the Constitution was due to enter into force no later than 1 November 2006.
Following the ratification problems encountered in certain Member States, the Heads of State and Government decided at the European Council of 16 and 17 June 2005 to launch a "period of reflection" on the future of Europe. The idea was to initiate a broad debate with European citizens. At the European Council meeting on 21 and 22 June 2007, European leaders reached a compromise and agreed to convene an IGC to finalise and adopt, not a Constitution, but a "reform treaty" for the European Union. The final text of the treaty, drawn up by the IGC, was approved at the informal European Council in Lisbon on 18 and 19 October. The Treaty of Lisbon was signed by the Member States on 13 December 2007.
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|I-40||Special provisions on common foreign and security policy||Special bridging clause|
|III-210||Social policy||Special bridging clause|
|III-234||Environment||Special bridging clause|
|III-269||Judicial cooperation on civil matters -- family law||Special bridging clause|
|III-300||Common foreign and security policy||Special bridging clause|
|IV-437||Repealing of previous treaties||New rules|
|IV-438||Succession and legal continuity||New rules|
|IV-439||Transitional provisions for certain institutions||New rules|
|IV-442||Protocols and annexes||-|
|IV-443||Ordinary revision procedure||Major changes|
|IV-444||Simplified revision procedure||General bridging clause|
|IV-445||Simplified revision procedure for the Union's internal polices and action||New rules|
|IV-447||Ratification and entry into force||-|
|Protocol amending the Treaty establishing the European Atomic Energy Community||Technical adaptation||-|
|Declaration on the ratification of the Treaty establishing a Constitution for Europe||Declaration in the event of non-ratification||-|
The fact sheets are not legally binding on the European Commission. They do not claim to be exhaustive and do not represent an official interpretation of the text of the Constitution.