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The policies of the Union
The third part of the draft constitutional Treaty groups together the provisions governing the Union's policies. Title III of this part is devoted specifically to internal policies and action, whereas the two subsequent titles deal with Union external action .
The Convention focused particular attention on the reform of certain policies, including justice and home affairs (JHA) , economic and monetary policy and the common foreign and security policy (CFSP). By contrast, given the limited mandate of the Convention, other policies have not been amended in any significant way, with the exception of a few specific policies.
However, beyond these few specific amendments, Union internal policies and action are directly affected by the general institutional changes proposed by the Convention (categories of competence, classification of legal acts, legislative procedure and qualified majority, and integration and consistency clauses).
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The draft constitution proposes horizontal innovations directly affecting all Union policies.
- New categorisation of competences
The description of the traditional common policies (agriculture, transport, internal market...) has not been amended and the existing articles are merely reproduced as such, although they are grouped together and classified in a coherent manner with respect to the new categorisation of competences described in Article I-11.
Policies in areas which are subject to shared competences are listed first: internal
market, economic and monetary policy, and policies relating to other specific areas
(employment, agriculture, transport, consumers...) and to the area of freedom, security
Areas of supporting, coordinating or complementary action are listed next. These include public health, industry, culture, education, vocational training, youth and sport, civil protection and administrative cooperation.
- Generally applicable clauses and integration clauses
The Constitution brings together under one Title at the beginning of Part III, the generally applicable integration and consistency clauses which must inform the definition and implementation of all policies. Article III-1 lays down a new clause which provides that "the Union shall ensure consistency between the different policies and activities, taking all of the Union's objectives into account". This new clause is supplemented by specific clauses, which already featured in the Treaty establishing the European Community (EC Treaty), on gender equality, the fight against all forms of discrimination, environmental and consumer protection and the proper functioning of the services of general economic interest.
- Definition of the type of act to adopt on each legal basis
The Convention established a break-down of the legal bases by defining for each legal basis the type of act to be adopted by the institutions with a view to implementing the Constitution. As a result, the provisions applicable to each individual policy no longer refer to the possibility of adopting "acts" or "measures", but instead define precisely the type of act to be used and, consequently, the procedure to be followed. Thus, it is provided that Union action will mainly take the form of laws or framework laws. However, about fifty legal bases provide for the Council of Ministers to adopt regulations or decisions.
- The legislative procedure
The consecration of the co-decision procedure as the normal
has a strong simplifying effect on the provisions in the current Treaty which provide
for co-decision: references to the proposal from the Commission and the co-decision
procedure are encompassed in the sole reference to the law or framework law. In addition,
after extending the scope of application of the normal legislative procedure, the
Convention decided to apply co-decision to about twenty legal bases which do not
currently provide for its application.
The special legislative procedure is applicable to about twenty legal bases for which laws of the Council are provided. The Commission retains the sole right of initiative for these laws and the Parliament must either be consulted or approve the act.
- Qualified majority as the general rule
Article I-22 provides that, as a general rule,
decisions of the Council shall be taken by qualified majority
. This entails that the reference to the Council deciding by qualified majority is
deleted in all the legal bases concerned.
In addition, the Convention decided to extend qualified majority voting to about twenty legal bases currently subject to unanimity.
- The new legal bases
In order to limit recourse to the so-called flexibility clause (Article I-17), the Convention included new legal bases in the draft constitution which explicitly empower the Union to act in certain areas.
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Services of general economic interest (Article III-6)
A new legal basis has been created for the adoption of laws relating to the principles and conditions, in particular economic and financial, underpinning these services of general economic interest.
Citizenship (Articles III-7 to III-13)
With regard to measures needed to combat discrimination, the first paragraph of
Article III-8 provides that laws of the Council of Ministers must obtain the prior
consent of the European Parliament. The Treaty establishing the European Community
(EC Treaty) merely provides for consultation.
Also in the context of combating discrimination, the second paragraph of Article III-8 extends the powers of the Union to the definition of the basic principles on which incentive measures may be adopted.
With regard to the right of European citizens to move and reside freely, the second paragraph of Article III-9 extends Union powers to areas previously excluded by the Treaty of Nice, including measures concerning passports, identity cards, residence permits or any other such documents and measures concerning social security or social protection. Laws in this field will be adopted by the Council of Ministers acting unanimously.
Article III-11 provides a new legal basis for adopting laws of the Council of Ministers laying down the necessary provisions to secure diplomatic and consular protection of citizens of the Union. Under the terms of the present EC Treaty it is for the Member States to establish such measures, via traditional agreement-type instruments.
Internal market (Articles III-14 to III-68)
The chapter on the internal market contains seven sections (establishment of the internal market; free movement of persons and services; free movement of goods; capital and payments; rules on competition; fiscal provisions; approximation of legislation). Although almost all the provisions of this chapter already feature in the EC Treaty, it should be noted that there has been a re-organisation of these Articles, which are to be found under three separate Titles in the EC Treaty
Social security benefits (Article III-21)
The legal basis facilitating freedom of movement via the coordination of national laws and regulations in the field of social security benefits is extended to cover not only employees but also self-employed workers Also, unanimous voting is replaced by qualified majority voting. It should be noted, however, that this legal basis cannot be used to adopt provisions applicable to other categories of European citizens (pensioners, students). Recourse to the flexibility clause - and hence to unanimous voting in the Council - will therefore remain necessary in these latter cases.
Freezing of assets (Article III-49)
A new legal basis is created, allowing the Council to adopt laws defining the legal framework needed to limit the free movement of capital and freeze the assets of persons, groups or non-state entities, as a means of fighting organised crime, terrorism and trafficking of human beings.
Exemption regulations regarding the rules on competition applicable to undertakings (Article III-54) and exemption regulations regarding the rules on State aid (Article III-57)
The draft constitution explicitly provides that the Commission may adopt such regulations, after receiving authorisation from the Council of Ministers.
Administrative cooperation and combating tax fraud and tax evasion in the field of indirect taxation (Article III-62) and in the field of company taxation (Article III-63)
Where the Council finds, unanimously, that certain measures that it is examining, in these areas, relate to administrative cooperation or to combating tax fraud or tax evasion, it will adopt laws or framework laws relating to these measures by a qualified majority.
Approximation of national laws and regulations for the establishment and functioning of the internal market (Articles III-64 and III-65)
The rule and the exception are reversed in comparison with the EC Treaty. Article III-65, which provides for a law or framework law and co-decision, becomes the rule, while Article III-64, which provides for a framework law of the Council of Ministers adopted by unanimous vote, becomes the exception.
European intellectual property instruments and other centralised procedures (Article III-68)
A new legal basis is created, allowing the adoption of laws or framework laws establishing measures for the creation and protection of European intellectual property rights and for the setting up of centralised Union-wide authorisation, coordination and supervision arrangements. However, the language arrangements for these instruments will be established in a law of the Council of Ministers adopted unanimously.
Employment (Articles III-97 to III-102)
The provisions covering this area are not substantively amended, but it should be noted that coordination of Member States' employment policies is now recognised as a particular Union competence, together with coordination of economic policies (Articles I-11 and I-14).
Open method of coordination in the social policy field (Article III-107)
In this provision - which provides that the Commission shall encourage cooperation between the Member States in this field - it is added that the Commission's action may take the form of initiatives particular to the open method of coordination (establishment of guidelines and indicators, organisation of exchange of best practice, periodic monitoring and evaluation). It is also provided that the European Parliament be kept informed.
Economic, social and territorial cohesion (Articles III-116 to III-120)
It should be noted that the addition of the reference to territorial cohesion accords with the definition contained in the provision on the Union's general objectives (Article I-3).
Agriculture and fisheries (Article III-127)
A breakdown of the legal instruments in this field is established: laws or framework laws establish the common organisation of the agricultural markets and the other provisions necessary for the achievement of the objectives of the common agricultural policy and the common fisheries policy, whereas Council regulations or decisions, adopted on a proposal from the Commission but without consultation of the European Parliament, determine the measures relating to the fixing of prices, levies, aid and quantitative limitations and to the fixing and allocation of fishing opportunities.
Sea and air transport (Article III-143)
The "passerelle" provided for in the EC Treaty (a Council decision by qualified majority) for adopting measures in the field of sea and air transport - which had in fact become obsolete - has been deleted.
Research and technological development (Articles III-146 to III-156)
In Article III-146, promoting cross-border cooperation between researchers has
In Article III-148 - which provides that the Commission shall encourage cooperation between Member States in the field of research and technological cooperation - it has been added that the Commission's action may take the form of initiatives particular to the open method of coordination (establishment of guidelines and indicators, organisation of exchange of best practice, periodic monitoring and evaluation). It is also provided that the European Parliament be kept informed.
Space (Article III-155)
A new legal basis is created, allowing the adoption of laws or framework laws establishing measures for a European space policy, including a European space programme.
Energy (Article III-157)
A new legal basis is created, allowing the adoption of laws or framework laws establishing measures relating to energy policy, without affecting Member States' choices between different energy sources and the general structure of their energy supply.
Public health (Article III-179)
In the provision stipulating that the Commission shall encourage cooperation between
Member States in the field of public health, it has been added that the Commission's
action may take the form of initiatives particular to the open method of coordination
(establishment of guidelines and indicators, organisation of exchange of best practice,
periodic monitoring and evaluation). It is also provided that the European Parliament
be kept informed.
This article reflects the dual nature of competence in this field: shared competence regarding the common safety concerns, complementary competence regarding measures to protect and improve human health.
The statement that laws or framework laws may establish measures to combat the major cross-border health scourges could have the effect of restricting the Union's competence in this area, given that the Union is at present competent to intervene to combat all the major scourges, whether of a cross-border nature or otherwise.
Industry (Article III-180)
In the provision stipulating that the Commission shall encourage cooperation between
Member States in the field of industry, it has been added that the Commission's action
may take the form of initiatives particular to the open method of coordination (establishment
of guidelines and indicators, organisation of exchange of best practice, periodic
monitoring and evaluation). It is also provided that the European Parliament be kept
It has also been added that the harmonisation of national laws and regulations is not allowed, which is in fact a characteristic of all the areas of supporting, coordinating or complementary action.
Education, training, youth and sport (Article III-182)
This article includes a specific new competence in respect of sport. This new
competence is reflected in a legal basis allowing laws and framework laws to be adopted
establishing measures for developing the European dimension in sport. As this is
an area of supporting, coordinating or complementary action, the harmonisation of
national laws and regulations is not allowed.
Another addition which should be emphasised is the provision that Union action should be aimed at encouraging the participation of young people in democratic life in Europe.
Civil protection (Article III-184)
A new legal basis has been created, allowing the adoption of laws or framework laws establishing measures aimed at supporting Member States' action in this field and promoting operational cooperation. As this is an area of supporting, coordinating or complementary action, the harmonisation of national laws and regulations is not allowed.
Administrative cooperation (Article III-185)
A new legal basis has been created, allowing the adoption of laws to improve Member States' administrative capacity to implement Union law. As this is an area of supporting, coordinating or complementary action, the harmonisation of national laws and regulations is not allowed. This cooperation is without prejudice to the obligations of the Member States or to the prerogatives and duties of the Commission (for example in the context of infringement proceedings).
Overseas countries and territories (Articles III-186 to III-192)
In Articles III-186 and III-191, the reference to the principles regarding the
association of these countries and territories set out in the Preamble to the EC
Treaty is deleted.
In Art. III-190, a legal basis is created for organising the free movement of workers between the Union and these countries and territories. The measures in question shall take the form of non-legislative acts adopted by the Council unanimously and acting on its own initiative.
In Art. III-191, by introducing a breakdown of the legal acts, the Convention decided that acts relating to the detailed rules and the procedure for the association of these countries and territories should be non-legislative (i.e. regulations or decisions). Moreover, a Commission proposal is not required for these acts.
Outermost regions (Article III-330)
The provision relating to the outermost regions is in a Title separate from the policies, as is also the case in the present EC Treaty. The conditions under which the Constitution will apply to these regions are to be established by non-legislative acts of the Council of Ministers, adopted on a proposal from the Commission and after consultation of the European Parliament. Note the clarification in the second paragraph regarding the policy areas to which these conditions apply.
Despite the wishes of some members of the Convention, this field is not explicitly mentioned in the draft Constitution. It could, however, be deemed to be covered by competence in industrial matters.
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|III-6||Services of general economic interest||-|
|III-7 to III-13||Citizenship||-|
|III-14 to III-68||Internal market||-|
|III-21||Social security benefits||-|
|III-49||Freezing of assets||-|
|III-54 and III-57||Exemption regulations regarding the rules on competition applicable to undertakings and exemption regulations regarding the rules on State aid||-|
|III-62 and III-63||Administrative cooperation and combating tax fraud and tax evasion in the field of indirect taxation and in the field of company taxation||-|
|III-64 and III-65||Approximation of national laws and regulations for the establishment and functioning of the internal market||-|
|III-68||European intellectual property instruments and other centralised procedures||-|
|III-97 to 102||Employment||-|
|III-107||Open method of coordination in the social policy field||-|
|III-116 to 120||Economic, social and territorial cohesion||-|
|III-127||Agriculture and fisheries||-|
|III-143||Sea and air transport||-|
|III-146 to 156||Research and technological development||-|
|III-182||Education, training, youth and sport||-|
|III-186 to III-192||Overseas countries and territories||-|
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.