Article I-12, paragraph 4, of the Constitution gives the European Union (EU) competence to define and implement a common foreign and security policy (CFSP), including the progressive framing of a common defence policy . This policy is based on "the development of mutual political solidarity among Member States, the identification of questions of general interest and the achievement of an ever-increasing degree of convergence of Member States' actions" (Article I-40).
The Constitution makes two principal amendments to the provisions of the Treaty
on European Union (EU Treaty), with the institution of a Union Minister for Foreign
Affairs, and the creation of a European External Action Service. The
Minister for Foreign Affairs
will contribute to the development of the CFSP and will implement it. He/she will
take on the CFSP external representation role currently carried out by the Presidency
and will coordinate Member States' action within international organisations.
The European External Action Service will assist the Minister for Foreign Affairs and will comprise officials from the Secretariat-General of the Council and the Commission and detached staff from the national diplomatic services.
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According to the Constitution, the Commission will no longer be able to make proposals concerning the CFSP. It may, however, support an initiative of the Minister for Foreign Affairs.
No real progress has been made in terms of decision-making, with the Council of Ministers continuing to decide by unanimity in most cases. Member States will continue to have the right of veto.
As in the EU Treaty, qualified majority voting is provided for in only a few specific cases, but the Constitution has added a new case. The Council of Ministers may act by qualified majority on a proposal put to it by the Minister for Foreign Affairs following a specific request from the European Council (Article III-300).
The Constitution also provides for use of the "switchover" to qualified majority voting. The European Council may thus decide unanimously that the Council of Ministers shall act by a qualified majority in cases where this is not provided by the Constitution (Articles I-40 and III-300). It should also be noted that this "switchover" does not apply to decisions with military implications or in the area of defence.
Where majority voting applies, any Member State may declare its intention to oppose the adoption of a decision. However, from now on it must cite 'vital' rather than merely 'important' reasons of national policy, as is currently the case under the EU Treaty. The Minister for Foreign Affairs will then act as mediator in order to arrive at an acceptable solution before referring the matter to the European Council , which will decide by unanimity where necessary.
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In substance, the Constitution's provisions in relation to enhanced cooperation are equivalent to the current provisions of the EU Treaty. The only significant change is the amendment of the minimum number of participating Member States, which is changed from the current eight to one-third of Member States.
Enhanced cooperation may also be established in any area of the common foreign and security policy and no longer only for the implementation of a joint action or a common position, as provided for in Article 27b of the EU Treaty. However, establishing enhanced cooperation in the CFSP now requires a unanimous decision by the Council. In addition, "structured cooperation" may be established in the area of defence. This is a significant departure from the EU Treaty, where it was expressly prohibited.
It should also be noted that, according to Article III-422 of the Constitution, in the context of enhanced cooperation, participating Member States may decide to act by qualified majority, even if, in principle, unanimity is required. However, this provision does not apply to decisions with military implications or to those in the area of defence. This could nevertheless lead to the creation of a "hard core" of countries in relation to the CFSP.
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Compared with the EU Treaty, the Constitution has limited the CFSP instruments, restricting them to European decisions and international agreements. The Council may therefore adopt European decisions on:
- actions to be taken by the Union;
- positions to be taken by the Union;
- how to implement actions and positions.
The use of legislative instruments such as European laws and framework laws is excluded.
Moreover, despite the very poor take-up of common strategies under the EU Treaty, they have been included in the Constitution in the form of strategic interests and objectives, which are identified by the European Council and which, unlike the common strategies set out in Article 13 TEU, also include external action outside the CFSP (Article III-293).
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CFSP expenditure will still be charged to the general budget of the European Union, with the exception of expenditure arising from operations having military or defence implications. In addition, the Constitution provides for the adoption of a European decision guaranteeing rapid access to budget appropriations for urgent financing of initiatives in the framework of the common foreign and security policy, and in particular for preparatory activities for the Petersberg tasks (humanitarian tasks and rescue of nationals, peace-keeping tasks, tasks of combat forces in crisis management, including peacemaking, etc.).
A start-up fund consisting of contributions from the Member States is also created to fund preparatory activities for the Petersberg tasks, which are not covered by the general budget of the EU (Article III-215).
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The Court of Justice does not have jurisdiction over the CFSP. However, it does have jurisdiction to rule on proceedings reviewing the legality of restrictive measures adopted by the Council of Ministers against natural or legal persons.
The Court of Justice also has jurisdiction to rule on whether an international agreement, including in the area of the CFSP, is compatible with the provisions of the Constitution, and on the clause which states that the implementation of the CFSP shall not affect the competences related to other policies, and vice versa.
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|Article I-12 paragraph 4||Principle of EU competence in the area of the CFSP||-|
|Article I-16||Competences in the area of the CFSP||-|
|Article I-28||Appointment, role and responsibilities of the Minister for Foreign Affairs||New provisions|
|Article I-40||Specific provisions for implementing the common foreign and security policy||-|
|Article I-41||Specific provisions for implementing the common security and defence policy||-|
|Article I-44||Enhanced cooperation||-|
|Articles III-294 to III-313 (Chapter II of Title V)||Provisions related to the CFSP||-|
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.