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The policies of the Union
The common commercial policy
Development cooperation policy
Cooperation with third countries
The Union and its immediate environment
In their draft Constitution for Europe, the members of the Convention have substantially rewritten the provisions on the external action of the European Union (EU), making significant amendments and introducing new provisions to enhance the current set-up and strengthen the effectiveness and visibility of the Union's action in the international arena.
Under the draft constitution, the Union is accorded international legal personality (Article I-6), taking over the rights and obligations of the European Community and the Union.
The discarding of the pillar structure in the field of foreign policy is one of the linchpins of the draft constitution. The provisions relating to the external action of the Union are grouped together under a single title covering all aspects of that action:
- the common foreign and security policy (CFSP);
- the common security and defence policy ;
- the common commercial policy;
- development cooperation policy;
- economic, financial and technical cooperation with third countries;
- humanitarian aid;
- international agreements;
- relations with international organisations; and
- implementation of the solidarity clause.
At the institutional level, the draft constitution introduces two important innovations. First, it creates the post of Minister for Foreign Affairs . The incumbent will conduct and implement the CFSP on behalf of the European Council and be one of the Vice-Presidents of the European Commission . In the latter capacity, he or she will be responsible for handling external relations and for coordinating other aspects of the Union's external action. Secondly, the draft constitution provides for the creation of a President of the European Council who shall, amongst other things, ensure at his or her level the external representation of the Union on issues concerning the CFSP, without prejudice to the responsibilities of the Minister for Foreign Affairs.
Article III-193 of the draft constitution lays down the detailed objectives of the Union's external action. In the pursuit of these objectives, the Council of Ministers and the Commission, assisted by the Minister for Foreign Affairs, will ensure consistency between the different areas of its external action and between these and its other policies.
This summary note covers the main amendments made by the draft constitution in the field of Union external action. Amendments to the common foreign and security policy and defence policy are covered in two separate notes.
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Article I-12 of the draft constitution clearly accords the Union exclusive competence for the common commercial policy. The common commercial policy is extended to foreign direct investment (Article III-217). However, agreements in the field of transport remain outside the scope of the common commercial policy.
In terms of decision-making, the provisions of the current Article 133 of the Treaty establishing the European Community (EC Treaty) are simplified. However, qualified majority voting is not extended to all aspects of the common commercial policy. In fact, the draft constitution retains the principle of parallelism between internal and external rules established at Nice . According to this principle, decisions relating to the negotiation and conclusion of agreements in areas of trade in services, which involve the movement of persons and commercial aspects of intellectual property, are subject to unanimity when these agreements contain provisions for which unanimity is required for the adoption of internal rules. The draft constitution also provides for unanimity for agreements in the field of trade in cultural and audiovisual services, where there is a risk that they could prejudice the Union's cultural and linguistic diversity.
In terms of parliamentary oversight, the draft constitution marks significant progress. The European Parliament , which has no say in commercial policy under the EC Treaty, is now involved in the decision-making process. The legislative procedure (the current co-decision procedure) is thus applied to the adoption of all autonomous acts of a legislative nature in the field of commercial policy. Similarly, all trade agreements have to be approved by the Parliament. Finally, the Parliament must be kept fully informed of ongoing trade negotiations.
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Article I-13 of the draft constitution lists development cooperation as an area of shared competence between the Union and the Member States. The exercise of this competence by the Union does not prevent the Member States from exercising theirs. The Union would thus be conducting an autonomous development policy, even though this policy only complements those conducted by the Member States (Article 177(1) of the EC Treaty). The draft constitution provides that the Union's development cooperation policy and that of the Member States complement and reinforce each other.
It should be pointed out that the draft constitution states, more clearly than before, that the reduction and, in the long term, the eradication of poverty is a primary objective of Union development cooperation policy. The Union must take account of this objective in the policies that it implements which are likely to affect developing countries.
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The draft constitution reproduces the provisions of Article 181a of the EC Treaty on economic, financial and technical cooperation with third countries (other than developing countries), introducing the legislative procedure for decision-making. In addition, when the situation in a third country requires urgent financial aid from the Union, the Council may decide by a qualified majority on a proposal from the Commission, instead of having recourse to Article 308 of the EC Treaty, which provides for unanimity, as is the case at present (Article III-222).
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Article III-223 of the draft constitution provides the Union with a specific legal basis for the implementation of operations in the field of humanitarian aid. These operations are to be conducted in compliance with the principles of international humanitarian law, in particular the principles of impartiality and non-discrimination.
The legislative procedure applies to the definition of the framework within which the Union's humanitarian aid operations are to be implemented.
In order to establish a framework for joint contributions from young Europeans to the humanitarian actions of the Union, a European Voluntary Humanitarian Aid Corps is to be set up.
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In terms of restrictive measures (interruption or reduction of economic and financial relations with one or more third countries), the draft constitution maintains a two-stage approach. The adoption by the Council , acting by a qualified majority, of sanctions against third countries must be based on a prior Union decision adopted by unanimity (in principle) within the framework of the common foreign and security policy.
Article III-224 of the draft constitution governs economic and financial sanctions not only against States, but also against natural or legal persons and non-State groups or bodies. Sanctions against all these non-State entities are currently subject to Article 308 of the EC Treaty, and hence to unanimity.
Finally, it should be noted that the provisions on restrictive measures do not form part of the Chapter on the CFSP and that, as a result, they fall within the jurisdiction of the European Court of Justice . The Court is also empowered to rule on the legality of restrictive measures adopted by the Council against natural or legal persons.
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With respect to the power of the Union to conclude international agreements, Article III-225 of the draft constitution institutionalises the case law of the European Court of Justice on implied external powers . Thus, the Union may conclude agreements where the Constitution so provides or where the conclusion of an agreement is necessary in order to achieve one of the objectives set by the Constitution and where there is provision for it in a binding Union legislative act or where it affects one of the Union's internal acts.
The same applies to the case law of the Court with regard to exclusive powers. Article 12(2) of the Constitution provides that the Union shall have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union, which is necessary to enable it to exercise its internal competence, or affects an internal Union act.
A single provision - Article III-227 of the Constitution - covers all international agreements concluded by the Union except agreements in the monetary field. The Constitution sets out clearly the respective responsibilities of the Commission and of the Minister for Foreign Affairs with respect to the opening of negotiations. It specifies that the Minister for Foreign Affairs is responsible for negotiating agreements which exclusively or principally relate to the common foreign and security policy. However, Article III-227 does not designate a negotiator. It leaves it up to the Council of Ministers, depending on the subject of the future agreement, to nominate the negotiator or leader of the Union's negotiating team.
The draft constitution also strengthens the position of the European Parliament by extending its right to be consulted to all agreements covering fields to which the legislative procedure applies. Under the EC Treaty, the Parliament's power of assent was limited to agreements requiring an adopted act to be amended under the co-decision procedure, as well as association agreements or agreements with significant budgetary implications (Article 300(3) of the EC Treaty).
Finally, with regard to the decision-making process, voting within the Council of Ministers remains subject to the rule of parallelism of forms. Thus, the Council takes a decision by a qualified majority, except in cases where the agreement relates to an area in which unanimity is required for the adoption of a Union act. Otherwise, unanimity is the principle in the case of association agreements or agreements which have major constitutional implications, e.g. in the case of the Union's accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms.
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The first part of the Constitution contains a Title VIII entitled "The Union and its immediate environment". The sole article of this Title provides that the Union will develop a special relationship with neighbouring States, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation.
For this purpose, the Union may conclude and implement specific agreements with the countries concerned. These agreements may contain reciprocal rights and obligations as well as the possibility of undertaking activities jointly. Thus, the draft constitution creates a new legal basis for concluding a new type of agreement, namely neighbourliness agreements. This type of agreement would complement other types of agreements concluded by the Union, such as association agreements.
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|I-3||The Union's objectives in its relations with the rest of the world||-|
|I-6||Union legal personality||New provisions|
|I-11||Competence in the field of the CFSP||-|
|I-12||Exclusive competence for the common commercial policy||-|
|I-13||Shared competence in the field of development cooperation||-|
|I-15||The common foreign and security policy||-|
|I- 21||Role of the President of the European Council||New provisions|
|I-23||The Foreign Affairs Council||-|
|I-25||Role of the European Commission||-|
|I-27||Appointment, role and responsibilities of the Minister for Foreign Affairs||New provisions|
|I-39||Specific provisions for implementing common foreign and security policy||-|
|I-40||Specific provisions for implementing the common security and defence policy||-|
|I-42||Solidarity clause||New provisions|
|I-56||The Union and its immediate environment||New provisions|
|III-193||Principles and objectives of external action||-|
|III-195 to III- 215||The common foreign and security policy||Significant changes|
|III-216 and III-217||The common commercial policy||Significant changes|
|III-218 to III-220||Development cooperation||Significant changes|
|III-221 and III-222||Economic, financial and technical cooperation with third countries||Significant changes|
|III-223||Humanitarian aid||New provisions|
|III-225 to 228||International agreements||Significant changes|
|III-229 and 230||The Union's relations with international organisations and third countries and Union delegations||-|
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 Convention.