The European Constitution Cases and Materials in EU and Member States’ Law pot

The European Constitution

The European
Constitution
Cases and Materials in EU and
Member States’ Law
Giuliano Amato
Vice-President of the European Convention 2002–2003,
Professor, European University Institute, former
Prime Minister of Italy
Jacques Ziller
Professor at the European University Institute, Italy,
formerly at Université de Paris I – Panthéon-Sorbonne, France
With the collaboration of Rebeca Lizasoain Brandys, Research Assistant,
European University Institute
Edward Elgar
Cheltenham, UK • Northampton, MA, USA
© Giuliano Amato and Jacques Ziller 2007
All rights reserved. No part of this publication may be reproduced, stored in a
retrieval system or transmitted in any form or by any means, electronic,
mechanical or photocopying, recording, or otherwise without the prior permission
of the publisher.
Published by
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Edward Elgar Publishing, Inc.
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A catalogue record for this book
is available from the British Library
Library of Congress Cataloguing in Publication Data
Amato, Giuliano.
The European Constitution : cases and materials in EU & member states’ law
/ Giuliano Amato, Jacques Ziller.
p. cm.
Includes bibliographical references and index.
1. Constitutional law—European Union countries. 2. European Union
countries—Politics and government. I. Ziller, Jacques. II. Title.
KJE4445.A45 2007
342.24—dc22 2007000156
ISBN 978 1 84720 129 4 (cased)
Typeset by Cambrian Typesetters, Camberley, Surrey
Printed and bound in Great Britain by MPG Books Ltd, Bodmin, Cornwall
Contents
List of abbreviations vi
Foreword vii
Acknowledgements ix
1 The ratification of the Treaty of Rome of 29 October 2004
establishing a constitution for Europe 1
2 Referendums in the ratification process: constitutional bases,
results, consequences 43
3 Innovations in the constitution for Europe 68
4 Primacy of EU law 89
5 The EU Charter of Fundamental Rights 114

6 Competences, legal bases and instruments in the constitution
for Europe 146
7 The role of national parliaments and the principles of
subsidiarity and proportionality 189
8 The area of freedom, security and justice 220
9 Developments under the Common Foreign and Security and
Defence Policies 257
Index 307
v
Abbreviations
CFSP Common Foreign and Security Policy
CoR Committee of the Regions
COSAC Conference of the Community and European Affairs Committees
of EU Member States
CT Constitutional Treaty, that is, treaty establishing a constitution for
Europe
EC European Community
ECB European Central Bank
ECHR European Convention of Human Rights
ECJ European Court of Justice
EU European Union
EUI European University Institute
IGC Intergovernmental Conference
SEA Single European Act
TEC Treaty establishing the European Community
TEU Treaty on the European Union
UK United Kingdom
UN United Nations
vi
Foreword

At the meeting of the European Council on 16–17 June 2005, two weeks after
the negative referendums on the Treaty establishing a Constitution for Europe,
the Heads of State and Government agreed upon a period of reflection ‘to
enable a broad debate to take place in each of our countries, involving citizens,
civil society, social partners, national parliaments and political parties’. While
some declared the Constitutional Treaty dead and others carried on with the
processes leading to its ratification, the academic debate continued. As a
modest contribution to this academic debate, we held a seminar on ‘the ratifi-
cation of the Constitution for Europe’ at the European University Institute in
Florence from January to March 2005. Edward Elgar Publishing showed inter-
est in publishing the materials we used in the framework of this seminar to
prompt discussion with post-graduate students and post-doctoral fellows in
law and political science.
The present book offers a selection of these materials, including excerpts of
the European Convention’s work; selected statutory and constitutional provi-
sions of the Member States; related passages from pertinent court decisions –
from both European courts as well as Member States’ constitutional courts;
institutional and doctrinal analyses; and relevant excerpts from the
Constitutional Treaty itself. Many of these documents directly relate to the
provisions of the Constitutional Treaty, while the others, although not directly
related, are nevertheless relevant to the debate surrounding it. These docu-
ments should help the reader to better understand some of the most important
changes that would be introduced by the Constitutional Treaty in the EU legal
and political system. They might also help to assess the need for the reforms
embedded in the Constitutional Treaty as well as the quality of the formula-
tions agreed upon at the European Council of 18 June 2004, which resulted in
the Treaty signed in Rome on 29 October of the same year.
The book is divided into nine chapters. Chapters 1 and 2 are designed to
have a broad overview of the ratification process as a whole and especially of
the referendums which took place in four Member States in 2005. They are not

meant only as documents on contemporary history but as a contribution to the
reflections of lawyers, political scientists, politicians and practitioners on the
procedures to be adopted for future amendment of EU treaties. Chapter 3
presents a general but not exhaustive overview of the numerous innovations
introduced by the Constitutional Treaty, from mere codification to institutional
vii
reforms. This should also be useful for the reflection on the future of the
European Union, both from the perspective of the possible entry into force of
the Constitutional Treaty (either in its form as of 2004 or in an amended
version) and from the perspective of a prolonged pause in constitutional
reform at EU level. Chapters 4 to 9 explore in more depth several dimensions
of these innovations: the wording of essential EU law principles such as the
principle of primacy (Chapter 4), the transformation into a legally binding
instrument of the Nice Charter of Fundamental Rights (Chapter 5), the stream-
lining of EU competences, instruments and legal bases (Chapter 6) and a
specific aspect of the institutional changes which have an impact at both EU
and Member State level, namely, the role of national parliaments. The two
final chapters are devoted to the two policy areas where the constitution for
Europe would introduce the biggest changes as compared to the present situa-
tion, that is, in the area of freedom, security and justice (the so-called ‘third
pillar’ of the EU – see Chapter 8) and, last but not least, in the field of the
common foreign, security and defence policies (Chapter 9).
We have tried to present a wide variety of documents, including translations
of documents which do not exist in the English language, so as to give the
readers as much information as possible in order for them to make up their
minds in an independent way. We also avoided cutting the documents down
too much, and we have kept our introductory comments to a very short intro-
duction, in order to allow for discussion by those who will use this book as a
teaching instrument to each chapter. We hope and expect that the discussions
generated by these documents will be intense and fruitful.

Giuliano Amato and Jacques Ziller
July 2006
viii The European Constitution
Acknowledgements
We would like to thank Rebeca Lizasoain Brandys, who helped us to collect
and present the materials for our seminar and who assisted us in the prepara-
tion of this book, and Mel Marquis, who handled the English language revi-
sions of our introductions to each chapter and of the Foreword. We would also
like to thank the EUI researchers who translated those documents which were
not available in the English language:
1
Luke Mason,
2
Tobias McKenney
3
and
Thomas Roberts.
4
Notes
1. Translations made under our responsibility are signalled by the indication ‘[translation]’ in the
title of the Document.
2. Documents 2.2, 2.14 and 8.11.
3. Documents 2.9, 2.10, 3.3 and 4.4.
4. Documents 1.10, 1.11, 2.5, 2.12, 4.6, 4.9, 7.9, 8.8, 8.9, 8.10 and 9.2.
ix

1. The ratification of the Treaty of Rome
of 29 October 2004 establishing a
constitution for Europe
Document summary

1.1 Article 48, Treaty on European Union
1.2 Article IV-447, Treaty Establishing a Constitution for Europe
1.3 Declaration no. 30 on the ratification of the Treaty establishing a
Constitution for Europe, annexed to the Treaty Establishing a
Constitution for Europe
1.4 European Commission, Summary Table – Procedures planned for the
Ratification of the European Constitution
1.5 Declaration by the Heads of State or Government of the Member States
of The European Union on The Ratification of the Treaty Establishing
a Constitution For Europe (European Council, 16 and 17 June 2005)
1.6 Article 18, Vienna Convention on the Law of Treaties of 22 May 1969
1.7 European Parliament, Committee on Constitutional Affairs, Report on
the Period of Reflection: the Structure, Subjects and Context for an
Assessment of the Debate of the European Union, A6-9999/2005, 16
December 2005 (selected extracts)
1.8 Committee of the Regions, Opinion on the Period of Reflection: the
Structure, Subjects and Context for an Assessment of the Debate of the
European Union, Const-032, 21 October 2005 (selected extracts)
1.9 German Federal Government, Angela Merkel’s Government Policy
Statement, 30 November 2005 (selected extracts)
1.10 French Socialist Party, Le Mans Conference 18 to 20 November 2005
– Final Motion ‘Winning From the Left With the Socialists’ (selected
extracts) [translation]
1.11 Jacques Ziller, ‘The Constitution for Europe, let’s talk about it!’, in
Revue du Marché Commun et de l’Union européenne, no. 426, March
2006, pp. 1–6 (selected extracts) [translation]
1.12 Bruno De Witte, ‘How Might the EU’s Constitutional Arrangements be
Settled? Escape Routes from the Constitution Trap and their Legal
Feasibility’, unpublished conference paper, 1 February 2006
1

1.13 Brussels European Council, 15 and16 June 2006, Presidency
Conclusions (selected extracts)
Introduction
Article IV-447 of the Constitutional Treaty (CT) [Document 1.2] estab-
lishes the rules for the Treaty’s ratification and entry into force: ratification
according to the requirements of the Member States’ constitutions, and the
necessity of a unanimous ratification for the entry into force of the Treaty.
Article IV-447 thus applies the same rules as Article 48 of the Treaty on
European Union [Document 1.1], and this is indispensable owing to the
fact that the Constitutional Treaty was written in such a way that it replaces
both the Treaty establishing the European Community (TEC) and the Treaty
on European Union (TEU). This was a logical consequence of the decision
to merge the European Union’s three ‘pillars’ (that is, the European
Community, the Common Foreign and Security Policy and Justice and
Home Affairs) and to give the EU a single legal personality, which was
accepted by the European Convention in October 2002 and endorsed by
the intergovernmental conference (IGC) which followed, when the
IGC decided in October 2003 to negotiate on the basis of the draft Treaty
establishing a Constitution for Europe as it had been prepared by the
Convention.
At the time the work of the European Convention was concluded, in the
spring of 2003, a number of precedents were known which already demon-
strated that problems could arise and impede the entry into force of a Treaty
agreed upon by unanimous governments.
A case in point concerned the Single European Act (SEA), which was
agreed at the Luxembourg summit of December 1985. The Council of
Ministers set 17 February as the date of signature. However, only Belgium,
France, Germany, Ireland, Luxembourg, The Netherlands, Portugal, Spain
and the United Kingdom signed the Treaty in Luxembourg on that date. The
draft SEA was submitted on 21 January 1986 to the Danish Parliament,

which rejected it by 80 votes to 75. The Danish government then called a
national referendum, which yielded a 56.2 per cent majority in favour of the
Treaty on 27 February 1986. The next day, Italy, Greece and Denmark
signed the SEA in The Hague. The date of the entry into force of the SEA
was specified as 1 January 1987 by its own final provisions. This was an
innovation, as in the past a specific deadline had only been set for treaties
providing for the accession of new Member States to the European
Communities. However, the SEA’s entry into force was delayed until 1 July
1987 owing to the unforeseen application of Mr Crotty to the Irish Supreme
Court.
1
According to the court, the Act could not be ratified by Ireland
2 The European Constitution
without a constitutional amendment; such an amendment, in turn, required a
referendum, which was held on 27 May 1987, with a significant majority
voting in favour of ratification.
By its own terms, the Treaty of Maastricht – signed on 7 February 1992 –
was scheduled to enter into force on 1 January 1993. However, the effective
date of this Treaty too was delayed, this time until 1 November 1993, owing
to two unforeseen events. In Denmark, an initial referendum on 2 June 1992
had a negative outcome, and the Danish government decided to organise a
second referendum after the adoption of a series of palliative documents by
the European Council of Edinburgh in December 1992. The referendum in
France in September 1992 yielded a positive result, but only by a razor-thin
majority.
2
Furthermore, Mr Brünner, a member of the German Bundestag,
made an application to Germany’s Federal Constitutional Court in order to
prevent the ratification of the Maastricht Treaty by Germany, and the court
did not issue its ruling (which opened the way to ratification) until 12 October

1993.
3
The relevant clauses in the SEA and the Treaty of Maastricht contained a
provision similar to the last part of Article IV-447.2 CT, which postponed the
entry into force of those treaties until the first day of the second month follow-
ing the deposit of the instrument of ratification by the last signatory State.
Drawing the lesson from these events, the drafters of the Treaty of Amsterdam
did not set a specific date for its entry into force: its Article 14.2 only provided
that ‘This Treaty shall enter into force on the first day of the second month
following that in which the instrument of ratification is deposited by the last
signatory State to fulfil that formality.’ The Treaty of Amsterdam was signed
on 2 October 1997, and the ratification process encountered no specific prob-
lem. But the Treaty could not enter into force until 1 May 1999, as the high
number of parliamentary authorisations required in Belgium (see below)
following that country’s constitutional reform of 1993 created quite a long
delay.
The Treaty of Nice, which was signed on 26 February 2001, reproduced in
its Article 12 the same text contained in Article 14 of the Treaty of
Amsterdam. Once again, as with the Treaty of Maastricht, a negative refer-
endum – this time in Ireland on 21 June 2001 – delayed the Treaty’s entry into
force: it was only after a second referendum, on 28 November 2002, that
Ireland could ratify the Treaty of Nice on 18 December 2002, allowing it to
take effect on 1 March 2003, when the European Convention was already
drafting the provisions of the draft Constitutional Treaty. A few weeks later,
the Treaty of Accession of ten new Member States was signed in Athens on
16 April 2003 and the process of ratification began – with the prospect of a
series of rather uncertain referendums in the Central and Eastern European
candidate countries.
The ratification of the Treaty of Rome 3
Doubts about a smooth referendum process, parliamentary votes and possi-

bly judicial review thus explain the wording of Article IV-447 CT [Document
1.2] and the corresponding Declaration (or ‘rendez-vous clause’) of the IGC
[Document 1.3]. Unlike the corresponding provisions of the SEA and the
Treaty of Maastricht, the setting of a deadline corresponded not to naïve opti-
mism but, on the contrary, to a cautious diffidence.
By the time the Heads of States and Governments agreed upon the
Constitutional Treaty during the European Council of 18 June 2004, British
Prime Minister Tony Blair had already announced that a referendum would be
held in the United Kingdom. Opinion polls, however, indicated strong support
for the Treaty in all the other ‘old’ Member States, starting with France and
The Netherlands. The ratification process was launched in the new Member
States in the autumn of 2004, at a time when doubts were surfacing with
respect to the outcome of the French referendum. The forebodings of some
proved to be prophetic when, on 29 May 2005, a majority of French voters
rejected ratification of the Constitutional Treaty, followed on 1 June by a
majority of Dutch voters [Document 1.4].
4
Six days later, the British govern-
ment decided to postpone the referendum it had started preparing.
5
At its meet-
ing in Brussels on 16 and 17 June 2005, the European Council agreed that a
period of reflection was necessary [Document 1.5]. This has often been
referred to as a ‘pause for reflection’, as the European Council agreed that
those governments electing to change their ratification calendar in light of the
French and Dutch votes could do so.
Yet there was no pause in the ratification process. At the time of the June
2005 European Council, ten Member States had completed the process allow-
ing for ratification – either by a vote of parliament only or by both a referen-
dum and a parliamentary vote. Ayear later, five other Member States had done

so [Document 1.4]. However, in a strict legal sense, it is wrong to say that 15
Member States had ratified the text by June 2006, as was stated in the
Conclusions of the Austrian Presidency [Document 1.13]. In fact, by that time
only 12 Member States had deposited their instruments of ratification of the
Constitutional Treaty. Romania and Bulgaria could be added to these 12, as
they formally signed on 25 April 2005 a Treaty of Accession to the
Constitutional Treaty – which however contained a clause providing that these
countries would accede instead to the TEC and the TEU if the CT had not
entered into force at the moment of their accession. Meanwhile, three of the
15 Member States which were purported to have ratified the Constitutional
Treaty [Document 1.4] had not done so: the Heads of State of Belgium,
Germany and Slovakia each had to wait for a decision of their respective
Constitutional Courts or, in the case of Belgium, for the lapse of the deadline
for a possible application for judicial review. In Finland, the ratification
process was under way, and the competent standing committee of the
4 The European Constitution
Parliament had already endorsed the Treaty. In the remaining nine countries,
the procedure had been slowed down or even halted.
From a legal point of view, the attitudes of these nine Member States, as
well as those of France and The Netherlands, must be seen in light of their
obligations under Article 18 of the Vienna Convention on the Law of Treaties
[Document 1.6]: the Declaration of the European Council of June 2005
[Document 1.5] is a recognition of the validity of a pause in the ratification
process for those Member States which were so inclined. The Conclusions of
the Presidency of the European Council of June 2006 [Document 1.13] extend
this permission until June 2008 at the latest. Both documents demonstrate that
the Constitutional Treaty, far from being ‘dead’, has the validity of a multilat-
eral treaty which has been signed but has not yet entered into force. It may thus
be used as an instrument of interpretation, and indeed it may be regarded as
the formulation of an agreement on the wording of those clauses which are to

be considered as a codification of existing law.
6
As pointed out above, therefore, the ‘pause for reflection’ is not a pause in
the ratification process. But in this regard another question arises. Is there any
‘reflection’ in the Member States and EU institutions, as called for in both
documents of the European Council?
There has indeed been reflection in those Member States which had not
yet completed their process of authorisation for ratification in June 2005 but
have done so since then. This is demonstrated by the referendum in
Luxembourg and by the number of parliamentary debates, with a record of
seven parliamentary debates in Belgium, thanks to the federal structure of
the kingdom and to the significant competences assigned to the regions and
to the (language-based) communities in external relations [Document 1.4].
Some reflection has also taken place in the EU institutions and organs: the
European Parliament [Document 1.7] has been the place where debate never
ceased, while the Committee of the Regions [Document 1.8] also had its
share in the reflection, as compared to the quite limited amount of debate in
a number of Member States, especially in France and The Netherlands,
where silence has been the clearest answer to the referendums. From
November 2005 onwards, the German government [Document 1.9] has been
the flagship of those in favour of trying to ratify the Constitutional Treaty,
while the French Socialist Party clearly preferred a new, renegotiated treaty
– without saying to what extent such a new text should differ from the exist-
ing one [Document 1.10].
The scholarly literature envisages several different scenarios at EU and at
national level [Documents 1.11 and 1.12], which are all compatible with the
positions expressed at the European Council of June 2006 [Document 1.13]:
the ‘pause of reflection’could continue as a ‘wait and see’ period, as happened
from June 2005 to June 2006. Alternatively it could also develop into a
The ratification of the Treaty of Rome 5

genuine period of discussion, in academia as well as in the political arena,
which could lead to a resolute conclusion about the future of the CT.
7
Document 1.1: Treaty on European Union, Article 48 (ex Article N)
The government of any Member State or the Commission may submit to the
Council proposals for the amendment of the Treaties on which the Union is
founded.
If the Council, after consulting the European Parliament and, where appropriate,
the Commission, delivers an opinion in favour of calling a conference of represen-
tatives of the governments of the Member States, the conference shall be convened
by the President of the Council for the purpose of determining by common accord
the amendments to be made to those Treaties. The European Central Bank shall also
be consulted in the case of institutional changes in the monetary area.
The amendments shall enter into force after being ratified by all the Member
States in accordance with their respective constitutional requirements.
Document 1.2: Treaty Establishing a Constitution for Europe, Article
IV-447 ‘Ratification and entry into force’
1. This Treaty shall be ratified by the High Contracting Parties in accordance with
their respective constitutional requirements. The instruments of ratification shall be
deposited with the Government of the Italian Republic.
2. This Treaty shall enter into force on 1 November 2006, provided that all the
instruments of ratification have been deposited, or, failing that, on the first day of
the second month following the deposit of the instrument of ratification by the last
signatory State to take this step.
Document 1.3: Declaration no. 30 on the ratification of the Treaty
establishing a Constitution for Europe, Treaty Establishing a
Constitution for Europe, annexed to the Treaty Establishing
a Constitution for Europe
The Conference notes that if, two years after the signature of the Treaty establish-
ing a Constitution for Europe, four fifths of the Member States have ratified it and

one or more Member States have encountered difficulties in proceeding with ratifi-
cation, the matter will be referred to the European Council.
Document 1.4: European Commission, Summary Table –
Procedures planned for the Ratification of the European Constitution,
Updated: 10 May 2006 available at www.europa.eu/constitution/
ratification_en.htm
Summary table – Procedures planned for the ratification of the European
Constitution. Some of the information in this table is subject to change. In
particular, certain Member States might decide to hold a referendum.
6 The European Constitution
The ratification of the Treaty of Rome 7
Table 1.1 Procedures planned for the ratification of the EC
Member state Procedure Date scheduled Previous European
referendums
Austria Parliamentary Approval by the 1994: accession
(Nationalrat and Nationalrat 11 May
Bundesrat) 2005
Approval by
Bundesrat 25 May
2005
Belgium Parliamentary Approval by the No
(Chamber and Senate: 28 April
Senate and 2005
Assemblies of Approval by the
Communities and Chamber: 19 May
Regions) 2005
Indicative Approval by the
referendum Brussels regional
ruled out parliament:
17 June 2005

Approval by the
German Community
Parliament of
Belgium: 20 June
2005
Approval by the
Walloon regional
Parliament:
29 June 2005
Approval by the
French Community
Parliament: 19 July
2005
Approval by the
Flemish regional
Parliament:
8 February 2006.
Cyprus Parliamentary Approval by the No
House: 30 June
2005
Czech Republic Referendum. Referendum 2003: accession
But no final postponed to end
decision so far of 2006–beginning
of 2007
Denmark Referendum Referendum 1972: accession
postponed (no new 1986: Single
date has been set) European Act
1992: Maastricht
Treaty (twice)
8 The European Constitution

Table 1.1 continued
Member state Procedure Date scheduled Previous European
referendums
1998: Amsterdam
Treaty
2000: euro
Estonia Parliamentary Approval by 2003: accession
Parliament:
9 May 2006
Finland Parliamentary Presentation by Consultative
the Government referendum:
of a report to the 1994: accession
parliament:
25 November
2005 Ratification
expected during
the presidency of
the Council in the
second half of
2006
France Referendum Referendum 1972: enlargement
29 May 2005 EEC 1992:
negative Maastricht Treaty
(No: 54.68%;
turnout: 69.34%)
Germany Parliamentary Approval by No
(Bundestag and Bundestag:
Bundesrat) 12 May 2005
Adoption by
Bundesrat:

27 May 2005
Greece Parliamentary Approval by No
but the Left Parliament:
parties submitted 19 April 2005
a joint proposal
for a referendum
Hungary Parliamentary Approval by 2003: accession
Parliament:
20 December 2004
Ireland Parliamentary and Referendum 1972: accession
Referendum postponed (no date 1987: Single
has been set) European Act
A White paper was 1992: Maastricht
presented to the Treaty
Parliament on 1998: Amsterdam
13 October 2005 Treaty
2001 and 2002:
Nice Treaty
The ratification of the Treaty of Rome 9
Member state Procedure Date scheduled Previous European
referendums
Italy Parliamentary Approval by the Consultative
(Chamber and Chamber on referendum
Senate) 25 January 2005 1989: possible
and by the Senate draft Constitution
on 6 April
Latvia Parliamentary Approval by the 2003: accession
chamber on 2 June
2005
Lithuania Parliamentary Approval by 2003: accession

Parliament: 11
November 2004
Luxembourg Parliamentary Approval by the No
(two votes) and Chamber (first
consultative reading) 28 June
referendum 2005
Positive Referendum
10 July 2005:
56.52% in favour,
43.48% against
Final approval by
the Chamber
25 October 2005
(57 votes in favour,
1 against)
Malta Parliamentary Approval by 2003: accession
Parliament: 6 July
2005
Netherlands Parliamentary Referendum 1 June No
(First and second 2005 negative
Chambers) and (No: 61.6%,
consultative turnout: 62.8%)
referendum
Poland No decision so far The Parliament 2003: accession
failed on 5 July
2005 to vote on
the ratification
procedure
Ratification
postponed (no date

has been set)
Portugal Referendum Referendum No
postponed (no date
has been set)
Slovakia Parliamentary Approval by 2003: accession
Parliament: 11 May
2005
Document 1.5: Declaration by the Heads of State or Government of the
Member States of The European Union on The Ratification of the
Treaty Establishing a Constitution For Europe (European Council, 16
and 17 June 2005), Brussels, 18 June 2005 SN 117/05, available on the
website of the Council of the European Union at
www.consilium.europa.eu
We have held a wide-ranging review of the process of ratification of the Treaty
establishing a Constitution for Europe. This Treaty is the fruit of a collective
process, designed to provide the appropriate response to ensure that an
enlarged European Union functions more democratically, more transparently
and more effectively.
Our European ambition, which has served us so well for over 50 years and
which has allowed Europe to unite around the same vision, remains more rele-
vant than ever. It has enabled us to ensure the well-being of citizens, the
defence of our values and our interests, and to assume our responsibilities as
10 The European Constitution
Table 1.1 continued
Member state Procedure Date scheduled Previous European
referendums
Slovenia Parliamentary Approval by 2003: accession
Parliament:
1 February 2005
Spain Parliamentary Referendum 20 No

(Congress and February 2005:
Senate) and 76.7% in favour.
consultative Turnout: 42.3%
referendum Approval of the
Congress on
28 April
Approval of the
Senate on 18 May
2005
Sweden Parliamentary Ratification Consultative
No referendum postponed (no referendums:
envisaged at this date has been set) 1994: accession
stage 2003: euro
United Kingdom Parliamentary Parliamentary 1975: Continued
(House of ratification membership of the
Commons and process suspended EC
House of Lords) (suspension
and referendum announced by UK
government, 6 June
2005)
a leading international player. In order to fight unemployment and social
exclusion more effectively, to promote sustainable economic growth, to
respond to the challenges of globalisation, to safeguard internal and external
security, and to protect the environment, we need Europe, a more united
Europe presenting greater solidarity.
To date, 10 Member States have successfully concluded ratification proce-
dures, thereby expressing their commitment to the Constitutional Treaty. We
have noted the outcome of the referendums in France and the Netherlands. We
consider that these results do not call into question citizens’ attachment to the
construction of Europe. Citizens have nevertheless expressed concerns and

worries which need to be taken into account. Hence the need for us to reflect
together on this situation.
This period of reflection will be used to enable a broad debate to take
place in each of our countries, involving citizens, civil society, social part-
ners, national parliaments and political parties. This debate, designed to
generate interest, which is already under way in many Member States, must
be intensified and broadened. The European institutions will also have to
make their contribution, with the Commission playing a special role in this
regard.
The recent developments do not call into question the validity of continu-
ing with the ratification processes. We are agreed that the timetable for the rati-
fication in different Member States will be altered if necessary in response to
these developments and according to the circumstances in these Member
States.
We have agreed to come back to this matter in the first half of 2006 to
make an overall assessment of the national debates and agree on how to
proceed.
Document 1.6: Vienna Convention on the Law of the Treaties of 22 May
1969, Article 18
Article 18 ‘Obligation not to defeat the object and purpose of a treaty prior to its
entry into force’
A State is obliged to refrain from acts which would defeat the object and purpose
of a treaty when:
(a) it has signed the treaty or has exchanged instruments constituting the treaty
subject to ratification, acceptance or approval, until it shall have made its intention
clear not to become a party to the treaty; or
(b) it has expressed its consent to be bound by the treaty, pending the entry
into force of the treaty and provided that such entry into force is not unduly
delayed.
The ratification of the Treaty of Rome 11

Document 1.7: European Parliament, Resolution on the period of
reflection: the structure, subjects and context for an assessment of the
debate on the European Union (selected extracts), Session document
A6-0414/2005, 16.12.2005, available on the website of the European
Parliament at www.europarl.europa.eu/eu
European Parliament – 2004–2009, Report on the period of reflection: the
structure, subjects and context for an assessment of the debate on the European
Union (2005/2146(INI)), Committee on Constitutional Affairs, Co-rappor-
teurs: Andrew Duff and Johannes Voggenhuber
[ ]
The European Parliament,
– having regard to the Treaty of Nice,
– having regard to the Treaty establishing a Constitution for Europe,
– having regard to its resolution of 12 January 2005 on the Treaty establish-
ing a Constitution for Europe,
– having regard to the Declaration of 18 June 2005 by the Heads of State or
Government on the ratification of the Treaty establishing a Constitution for
Europe, at the conclusion of the European Council of 16 and 17 June 2005,
– having regard to the Treaty concerning the Accession of the Republic of
Bulgaria and Romania to the European Union,
– having regard to the opinions on the period of reflection delivered by the
Committee of the Regions on 13 October 2005 and the European
Economic and Social Committee on 26 October 2005 at the request of the
European Parliament,
– having regard to Rule 45 of its Rules of Procedure,
– having regard to the report of the Committee on Constitutional Affairs and
the opinions of the Committee on Foreign Affairs, the Committee on
Industry, Research and Energy, the Committee on Regional Development,
the Committee on Agriculture and Rural Development, the Committee on
Culture and Education, the Committee on Legal Affairs, the Committee on

Civil Liberties, Justice and Home Affairs and the Committee on Women’s
Rights and Gender Equality (A60414/2005),
Whereas
A. The Treaty establishing a Constitution for Europe was signed by the
Heads of State and Government of the twenty-five Member States of the
European Union on 29 October 2004, and confirmed again by the European
Council in its Declaration of 18 June 2005,
B. The Constitution was drafted by the European Convention which,
compared to previous procedures to prepare new treaties, achieved new levels
of openness, pluralism and democratic legitimacy,
12 The European Constitution
C. The European Parliament endorsed the Constitution by a majority of
over two-thirds as ‘a good compromise and a vast improvement on the exist-
ing treaties . . . [which] will provide a stable and lasting framework for the
future development of the European Union that will allow for further enlarge-
ment while providing mechanisms for its revision when needed’ in its
Resolution of 12 January 2005,
D. The reforms for which the Treaty establishing a Constitution for
Europe provides are intended, inter alia, to cope with the consequences of
the enlargement of the Union on 1 May 2004, and the success of this and
future enlargements will be in jeopardy unless a constitutional package is
ratified,
E. Thirteen Member States, representing a majority of the Member States
of the Union, have since ratified the Constitution in accordance with their own
constitutional requirements, including by means of a referendum in both Spain
and Luxembourg,
F. France and the Netherlands, following referendums held on 29 May and
1 June 2005 respectively, have failed to ratify the Constitution – with the result
that the ratification process has subsequently stalled in most of the remaining
ten Member States,

G. Under Article 48 of the Treaty on European Union, the Constitution will
not enter into force unless and until it is ratified by all Member States,
H. Declaration 30 annexed to the Treaty Establishing a Constitution for
Europe, states that ‘if 2 years after the signature of the Treaty Establishing a
Constitution for Europe, four fifth of the Member States have ratified and one
or more Member States have encountered difficulties with proceeding with
ratification, the matter will be referred to the European Council’,
I. It is necessary to respect those Member States and their peoples which
have ratified the Constitution as well as those which have not, and to analyse
carefully the reasons for the negative results in France and the Netherlands,
J. The No votes appear to have been rather more an expression of dissent at
the present state of the Union than a specific objection to the constitutional
reforms, but, paradoxically, the result of the Noes is to maintain the status quo
and block reform,
K. The European Council confirmed this analysis by taking the view, in its
Declaration of 18 June 2005, that ‘these results do not call into question citi-
zens’ attachment to the construction of Europe’ but that ‘citizens have never-
theless expressed concerns and worries which need to be taken into account’;
the European Council therefore decided on a ‘period of reflection . . . to enable
a broad debate to take place in each of our countries, involving citizens, civil
society, social partners, national parliaments and political parties’; the heads of
government agreed that in the first half of 2006 they would ‘make an overall
assessment of the national debates and agree on how to proceed’,
The ratification of the Treaty of Rome 13
L. In that Declaration, the heads of government declared that the ratifica-
tion process could continue, and also agreed that the original timetable for the
entry into force of the Constitution (1 November 2006) would be extended,
M. The European Council, however, failed to give a clear focus to the
period of reflection or to define the methods and the framework for drawing
conclusions from this debate, and has since been seen to lack both the politi-

cal will and the capacity to stimulate and manage the European dialogue,
N. The absence of an agreement on the policy challenges and budgetary
means of the enlarged Union for the period 2007–2013 further undermines the
present and future Union,
O. The period of reflection has started with debates on the context rather
than the text, with issues such as the future of the European social model,
European economic prospects, the speed of enlargement, the medium term
budget and the single market in services, all featuring prominently,
P. The Commission has published its contribution on the period of reflec-
tion with the aim of restoring public confidence in the European Union by
supporting national debates and promoting initiatives at community level, but
this should not prevent all of Europe’s political institutions from making a
combined effort or from exercising leadership which takes seriously the strate-
gic importance of the Constitution and the political reality of the preconditions
upon which its success depends,
Q. The national parliaments have declared their support for a series of joint
parliamentary meetings that will ‘stimulate, steer and synthesize’the European
dialogue,
1. Reaffirms its conviction that the Treaty of Nice is not a viable basis for
the continuation of the European integration process;
2. Confirms its commitment to achieving without undue delay a constitu-
tional settlement which strengthens parliamentary democracy, transparency and
the rule of law, anchors fundamental rights, develops citizenship, and enhances
the capacity of the enlarged Union to act effectively at home and abroad; fears
that without such a constitutional settlement it will not be possible for the
Union to expect the support of its citizens, to maintain the momentum of inte-
gration and to become a credible partner in world affairs; recalls its endorse-
ment of the Treaty establishing a Constitution for Europe as achieving these
objectives; calls also on the European Council of June 2006 solemnly to declare
the same commitment to a constitutional settlement on the future of Europe;

3. Stresses that it is not possible to further enlarge the Union after the acces-
sion of Bulgaria and Romania on the basis of the Treaty of Nice;
4. Recalls that the political problems and institutional weakness that the
Convention was set up to address will persist – and, indeed, grow unless and
until the reforms enshrined in the Treaty establishing a Constitution for Europe
are brought into force;
14 The European Constitution
5. Notes that many of the concerns expressed relate more to general and
specific problems of context than to the text itself; considers that if progress can
be made in such issues, it will be easier to find a solution regarding the text;
6. Resists proposals to establish core groups of certain Member States
while the constitutional process is still in train; deplores any suggestion that
coalitions of certain Member States could be formed outside the EU system;
points out that forms of enhanced cooperation should promote the achieve-
ment of the Union’s aims, preserve its interests and reinforce the process of
integration, and be open to all the Member States at any time; also stresses that
these possible forms of cooperation should not be implemented to the detri-
ment of the efforts being made to arrive at a Constitution for Europe without
undue delay;
7. Warns that a strategy based on the selective implementation of the
Constitution risks destroying the consensus that achieved a balance between
the institutions and among Member States, thereby aggravating the crisis of
confidence;
8. Notes that there are only a limited number of democratic reforms that can
be introduced at this stage without treaty change but by revision of rules of
procedure or interinstitutional agreement – such as transparency of law-
making in the Council, introduction of a form of citizens’ initiative, improve-
ments to the comitology procedure, full use of the ‘passerelle’ clauses in the
field of justice and home affairs, and the more rigorous scrutiny by each
national parliament of its government’s conduct of EU affairs;

9. Proposes to use the current period of reflection to re-launch the constitu-
tional project on the basis of a broad public debate about the future of
European integration; resolves that this European dialogue – whose results
should not be prejudged – should aim to clarify, deepen and democratise the
consensus around the Constitution and address criticisms and find solutions
where expectations have not been met;
10. Welcomes the beginnings of a broad debate about the Union’s policy
direction but stresses that this must take place within the context of overcom-
ing the constitutional crisis, and that policy prescriptions at EU level must
relate directly to the rules, powers and procedures of the EU institutions as
well as to the competences conferred on the EU by the Member States and
should identify the issues that are common throughout Europe;
11. Suggests that this new dialogue, which should be seen as a chance to
promote European democracy, should be conducted and coordinated across
the Union, structured by common themes and in realistic stages according to
an agreed framework for evaluation, and designed to lead to decisive political
choices;
12. Insists that the public debate be engaged within both the European and
the national framework; warns that narrowly focussed national debates will do
The ratification of the Treaty of Rome 15