Draft Constitutional Treaty of the European Union


Table of Contents

1. DRAFT PROCLAMATION OF THE CONSTITUTIONAL TREATY OF THE

EUROPEAN UNION

2. DRAFT CONSTITUTIONAL TREATY OF THE EUROPEAN UNION

2.1 Introduction

2.2 Text of the Draft Treaty

Part One – Constitution of the European Union

1 Nature of the Union

2 Basic values of the Union

3 Objectives and Activities of the Union

4 Citizenship of the Union

5 Organising Principles of the Constitutional Order

6 Competence of the Union

7 Instruments

8 Institutions of the Union

9 The European System of Central Banks

      1. Final Provisions

Part Two – Institutions and Procedures

Part Three – Enhanced Cooperation

3. DRAFT AMENDING TREATY

3.1 Introduction

    • Table I – Elements of the Constitutional Treaty and their legal provenance
    • Table II – Treatment accorded to the elements of the existing EC Treaty and

Treaty on European Union under the proposed reorganisation

3.2 Text of the Draft Treaty

Title I Reorganisation of the Treaties

Title II Part One of the Constitutional Treaty

Title III Provisions amending the Treaty on European Union

Title IV Provisions amending the Treaty establishing the European

Community

Title V Provisions amending the Treaty establishing the European Atomic

Energy Community

Title VI Final Provisions

DRAFT

PROCLAMATION OF

THE CONSTITUTIONAL TREATY

OF THE EUROPEAN UNION

INTRODUCTION

The text that follows is designed to provide a short, clear and, it is hoped, inspiring answer to the questions: what is the European Union for, and – constitutionally speaking – what sort of animal is it?

Formally, the text is presented as a Proclamation of the Constitutional Treaty, which could be identified in the Amending Treaty as the event which, following ratification, will bring the new order into existence. This seems preferable to presentation as a Preamble to the Constitutional Treaty itself, which would be required to follow the traditional structure of a series of recitals constituting a single long sentence.

There is scope for adding other elements to the Proclamation, but it would be a pity to overload it. For the Proclamation to have an impact on public opinion, its content needs to be pithy and memorable.

PROCLAMATION

1. The process of European integration has brought together within the European Communities and the European Union ever more of the States of a Continent once divided by war, ideology and political oppression. Peaceful cooperation has replaced age-old rivalries.

2. Those achievements must be consolidated and taken forward, so as to ensure for all the peoples of the European Union:

  • continuing peace;
  • respect for the basic principles of democratic governance, human rights and fundamental freedoms, and the rule of law;
  • social progress and sustainable prosperity;
  • high levels of internal and external security; and
  • in the international sphere, the ability more effectively to pursue common interests, while advancing the general well-being of humankind.

3. To those ends, the Member States are resolved to set the relations between their peoples on a new foundation laid down by the Constitutional Treaty of the European Union.

4. As constituted under the Treaty, the European Union has these defining features:

  • The Member States have chosen, in some measure, to exercise their sovereignties in common, through the institutions of the Union.
  • In so combining their sovereignties, for defined purposes and within defined limits, the Member States retain their national identities.
  • The Union has only those powers which have been conferred on it by the Member States. All powers which the Member States enjoy by virtue of their sovereignty, and which they have not conferred on the Union, remain theirs exclusively.
  • Decisions are to be taken as openly as possible and as closely as possible to the citizen. The powers conferred on the Union are to be exercised in ways that encroach as little as possible on the powers of the Member States.

5. The European Union is thus a constitutional order of a new kind, uniting the peoples of the Member States, while preserving the diversity of political institutions and of cultural and linguistic traditions that enriches European civilisation.

[…]

Now, therefore, by this instrument, the Heads of State or Government of the Member States solemnly proclaim the Constitutional Treaty of the European Union.

DRAFT

CONSTITUTIONAL TREATY

OF THE EUROPEAN UNION

INTRODUCTION

The present draft is based on certain assumptions as to political decisions that may be taken, affecting the future structure of the European Union:

  • The distinction between the Union and the Communities will be abolished. In other words, the European Community (EC) and the European Atomic Energy Community (EURATOM) will cease to exist as constitutional entities distinct from the Union. The institutions will be explicitly acknowledged as belonging to the Union, and there will be a single legal personality of the Union.
  • The distinctive institutional and procedural arrangements presently found in Title VI TEU, which organise Union activity in respect of Police and Judicial Cooperation in Criminal Matters (the so-called "Third Pillar") will be assimilated to the arrangements presently applicable under the EC Treaty (the so-called "First Pillar") largely, if not entirely.
  • On the other hand, the institutional arrangements presently found in Title V TEU, which organise Union activity in respect of Foreign, Security and Defence Policy (the so-called "Second Pillar") will remain strongly differentiated.

The model which is here proposed for the simplification of the existing Treaties consists of a Constitutional Treaty, setting out the common and fundamental principles of the Union order, with ‘Acts’ annexed to it, laying down detailed substantive provisions.

Within the Constitutional Treaty itself, a distinction is proposed between a Part One, which is designed to present, in a clear and reasonably accessible fashion, the truly ‘constitutional’ elements of the order (such as the definition of the nature of the Union, citizenship, the limits of Union powers, the institutions and the instruments through which the Union acts, etc.); a Part Two, which would contain more detailed institutional, procedural and financial provisions (essentially incorporating the present Part Five of the EC Treaty, appropriately amended); and a Part Three on the general principles governing possible enhanced cooperation between certain Member States on certain matters (essentially incorporating the present Title VII TEU, again as amended).

Part One of the Constitutional Treaty, entitled "Constitution of the European Union", has been drafted out in full. On the other hand, for the purposes of the present drafting exercise, it seemed sufficient merely to indicate by chapter headings the subject-matter to be transferred from the existing Treaties into Parts Two and Three of the Constitutional Treaty.

It is proposed that the substantive provisions of the EC Treaty and of Title VI TEU (the First and Third Pillars), as amended, be incorporated into an Act annexed to the Constitutional Treaty and called "Act concerning Economic and Social Policy"; and those of Title V TEU (the Second Pillar), as amended, into a similarly annexed Act, called "Act concerning Foreign, Security and Defence Policy". Those are provisional titles; for the Act concerning Economic and Social Policy, in particular, it may be possible to think of a title more descriptive of its diverse subject-matter. It was not thought necessary, at this stage in the drafting process, to set out the texts of the annexed Acts.

As regards the substantive provisions of the EURATOM Treaty, there are two available options: either they could be incorporated into the Act concerning Economic and Social Policy; or they could constitute a separate annexed Act, which could be called "Act concerning the peaceful use of Atomic Energy".

The Constitutional Treaty has thus been conceived as a composite text. The new Part One of the Treaty will be "bolted onto" reorganised and amended elements of the existing Treaties. How this can be achieved is demonstrated by the Draft Amending Treaty.

It would be technically possible for the content of the proposed two (or more) Acts to be brought together in a single voluminous text. However, the proposed model appears better adapted to the aims, identified by the Nice and Laeken Declarations, of simplifying and making more transparent the instruments upon which the European Union is founded.

Text of the Draft Treaty

PART ONE

Constitution of the European Union

1. Nature of the Union

Article 1

By this Constitutional Treaty, the HIGH CONTRACTING PARTIES establish among themselves a European Union, hereinafter called "the Union".

The Union shall be established as a constitutional order of sovereign States. The Member States have chosen in some measure to exercise their sovereignties in common, through the institutions of the Union, under the conditions laid down by this Treaty.

In so combining their sovereignties, for defined purposes and within defined limits, the Member States maintain their national identities. The institutions of the Union, when acting pursuant to powers conferred by this Treaty, shall respect the national identities of the Member States, their cultural and linguistic diversity and their traditions.

Commentary

This Article establishes the European Union as a "constitutional order of sovereign States", and goes on to clarify what that description entails. The drafting is designed to convey the idea that, by adhering to the Union, the Member States have not divested themselves of their sovereignty in whole or in part; they have chosen rather to "pool" aspects of their respective sovereignties, by exercising those aspects in common, though the institutions of the Union.

The first sentence of the final paragraph asserts that the pooling, in some measure, of Member States’ sovereignties has not impaired their respective national identities. The indicative mood is used since this is an explanatory statement, and not a consequence drawn from the Constitutional Treaty. The second sentence puts the institutions of the Union under an express obligation to respect Member States’ national identities, and the elements that go to define such identity.

2. Basic values of the Union

Article 2

1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.

2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950, as identified in the Charter of Fundamental Rights of the European Union, and as they result from the constitutional traditions common to the Member States, as general principles of Union law.

3. Decisions shall be taken as openly as possible and as closely as possible to the citizen.

4. Respect by the Member States for the principles referred to in paragraph (1) shall be ensured by the institutions of the Union in accordance with procedures which are laid down in Part Two of this Treaty and which enable steps to be taken to prevent or sanction breaches of those principles.

Commentary

This text largely reproduces Articles 6(1) and (2) TEU, save for the reference to the Charter of Fundamental Rights. Regardless of its final legal status (perhaps becoming a legally enforceable Bill of Rights incorporated into the Treaties, or perhaps remaining a non-binding point of reference for the institutions), some explicit reference to the Charter is important in terms of enhancing the Union’s legitimacy and transparency. It would certainly seem unsatisfactory for the Union to have promulgated a Charter of Fundamental Rights, which is then excluded altogether from the Constitutional Treaty’s list of notional sources of inspiration for the protection of human rights. The phrasing "identified in" has been employed (in contrast to "guaranteed") on the assumption that the Charter will not be further incorporated into the Union’s constitutional instruments.

Paragraph (3) of the Article picks up wording presently found in Article 1, second paragraph TEU.

Paragraph (4) of the Article cross-refers to Part Two of the Treaty, where the procedures of the present Article 7 TEU, as amended by the Treaty of Nice, properly belong.

The reference in the present Article 6(3) TEU to respecting the national identities of the Member States has been subsumed into Article 1, third paragraph, above.

The reference in the present Article 6(4) TEU to providing the Union with the necessary means of achieving its objectives, is to be found in Article 3, second paragraph, below.

3. Objectives and Activities of the Union

Article 3

The objectives of the Union shall be achieved in accordance with the provisions set out in this Constitutional Treaty, and in the Act concerning Economic and Social Policy and the Act concerning Foreign, Security and Defence Policy which are annexed to it. These two Acts shall hereinafter collectively be called "the annexed Acts".

The Union shall provide itself with the means necessary to attain its objectives and carry through its policies.

Commentary

This Article identifies the Constitutional Treaty and the two annexed Acts as the primary instruments of the Union order.

It might be desirable to give the Act concerning Economic and Social Policy a title which is more fully descriptive of its varied content (including Justice and Home Affairs); however, this should not be too cumbersome.

If it is decided that the EURATOM Treaty should not be integrated into the Act concerning Economic and Social Policy, it would have to be annexed to the Constitutional Treaty as an Act in its own right, which might be entitled "Act concerning the Peaceful Use of Nuclear Energy".

As mentioned in the Introduction, it would be legally possible to combine the contents of the two (or three) proposed Acts in a single Act ("The Single Annexed Act" model), but this would be at the expense of the aims of transparency and simplification.

The second paragraph of Article 3 incorporates the text of the present Article 6(4) TEU.

Article 4

The Union shall have as its objectives:

  1. to promote economic and social progress, and a high level of employment and of social protection; and to achieve throughout the Union a harmonious, balanced and sustainable development of economic activities, including non-inflationary growth, a high degree of competitiveness and convergence of economic performance; in particular through the creation of an area without internal frontiers, through the strengthening of economic and social cohesion and solidarity between Member States, and through the establishment of economic and monetary union, including a single currency;
  2. to combat discrimination based on nationality, racial or ethnic origin, religion or belief, disability, age or sexual orientation, and to promote equality between men and women;
  3. to achieve a high level of protection and improvement of the quality of the environment and to raise the standard of living and quality of life across the Union;
  4. to strengthen the protection of the rights and interests of the nationals of its Member States through their citizenship of the Union;
  5. to maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime;
  6. to assert its identity on the international scene, in particular through the implementation of a foreign, security and defence policy.

Commentary

This text largely reproduces Article 2 TEU and Article 2 EC.

The choice of words (the Union "promotes equality" in case of discrimination based on gender, but "combats discrimination" in case of other forms of discrimination) is intended to reflect the status quo, whereby positive/affirmative action is expressly permitted under Article 141 EC in order to achieve substantive gender equality, but is not explicitly provided for under Article 13 EC as regards (for example) discrimination based on race or disability.

The reference in Article 2 (first paragraph, fifth indent) TEU to maintaining the acquis communautaire has been omitted. This seems an inappropriate place to include such a reference, as compared to the Act concerning Economic and Social Policy.

Article 5

1. For the purpose of attaining the objectives set out in Articles 4 (a) to (e), the activities of the Union shall, as provided for in the Act concerning Economic and Social Policy, consist of the following:

  1. maintenance of an internal market comprising an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured by the abolition of obstacles restricting such freedom and by the approximation, so far as may be necessary, of the laws of the Member States, and which has a system to prevent competition from being distorted;
  2. adoption of an economic policy based on the close co-ordination of Member States’ economic policies, on the internal market and on the definition of common objectives, and conducted in accordance with the principles of an open market economy with free competition; and, concurrently, the operation of a single currency, the euro, and of a monetary policy;
  3. a common commercial policy;
  4. common policies in the spheres of agriculture, fisheries and transport;
  5. establishment of an area of freedom, security and justice, comprising visas, asylum and immigration policies, and other measures concerning the entry and movement of persons, as well as police and judicial cooperation in criminal matters;
  6. a policy in the social sphere, and the promotion of coordination between the employment policies of the Member States;
  7. a policy on the environment;
  8. the strengthening of economic and social cohesion;
  9. a contribution by the Union: to the strengthening of the competitiveness of industry; to the promotion of research and technological development; to the establishment and development of trans-European networks; to the attainment of a high level of health protection; to education and training of high quality and to the flowering of the cultures of the Member States; and to the strengthening of consumer protection;
  10. measures in the sphere of energy, civil protection and tourism;
  11. policies in the sphere of external relations, in particular, on development cooperation, and on economic, financial and technical cooperation with third countries, as well the association of the overseas countries and territories.

2. For the purpose of attaining the objectives set out in Article 4 (f), the activities of the Union shall be designed, as provided for in the Act concerning Foreign, Security and Defence Policy:

    • to safeguard the common values, fundamental interests, independence and integrity of the Union in conformity with the principles of the United Nations Charter;
    • to strengthen the security of the Union in all ways;
    • to preserve peace and strengthen international security, in accordance with the principles of the United Nations Charter, as well as the principles of the Helsinki Final Act and the objectives of the Paris Charter, including those on external borders;
    • to promote international cooperation;
    • to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms.

Commentary

Paragraph 1 of Article 5 regroups the elements presently found in Article 3 and 4 EC, while paragraph 2 refers to the attainment of the objectives identified in the present Article 11(1) TEU. The proposal is that the list of activities in paragraph 1 be exhaustive, which it is not in the present Article 3 EC.

The horizontal integration and non-discrimination clauses presently contained in the EC Treaty (for example: Article 3(2) on equal treatment between men and women, and Article 6 on protection of the environment) may be thought to belong in the Act concerning Economic and Social Policy, rather than in the Constitutional Treaty.

4. Citizenship of the Union

Article 6

1. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship.

2. Citizens of the Union shall enjoy the rights conferred by this Treaty, and by the Act concerning Economic and Social Policy, and shall be subject to the duties imposed thereby.

3. Every citizen of the Union residing in a Member State of which that person [he or she] is not a national shall have, in particular, the right:

    • to vote and stand as a candidate in elections to the European Parliament in the Member State where that person [he or she] resides, under the same conditions as nationals of that State; and
    • to vote and to stand as a candidate at municipal elections in the Member State in which that person [ he or she] resides, under the same conditions as nationals of that State.

These rights shall be exercised subject to the detailed arrangements laid down by the Act concerning Economic and Social Policy.

4. Citizens of the Union shall enjoy the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down by the Act concerning Economic and Social Policy and by the measures adopted to give it effect.

Commentary

This text reproduces some of the provisions contained in the present Articles 17, 18 and 19 EC. However, it is thought appropriate to reverse the order of the present paragraph (1) and (2) of Article 19 EC.

Further, as regards the right to vote and stand in European Parliament and municipal elections, and the right to free movement, a general cross-reference to the Act concerning Economic and Social Policy has been preferred over any more detailed account of legislative competences to adopt secondary measures, in order to keep the text as "light" as possible. The right to consular protection, currently found in Article 20 EC, being a more "detailed" right, will be found only in the Act. Reference to the citizen’s right to petition the institutions as set out in Article 21 EC seems more appropriately placed either in Part II of the Constitutional Treaty (if it is intended to cover the Union’s activities as carried out under both Acts) or in the Act concerning Economic and Social Policy (if it is intended to cover only the Union’s activities carried out under that particular instrument).

5. Organising Principles of the Constitutional Order

Article 7

1. The following shall be general and fundamental principles of the constitutional order established pursuant to this Treaty:

    • the principle of conferred powers;
    • the principle of subsidiarity;
    • the principle of proportionality; and
    • the principle of loyal cooperation.

2. According to the principle of conferred powers, the Union shall have only those powers which have been conferred on it by the Member States pursuant to this Treaty. It shall have no inherent or residual powers.

All powers which the Member States enjoy by virtue of their sovereignty, and which they have not conferred on the Union pursuant to this Treaty, remain within the exclusive competence of the Member States.

The conferment of powers on the Union shall not in itself restrict the powers of the Member States in respect of the same subject-matter, except in the areas identified in Article 9 of this Treaty as falling within the exclusive competence of the Union.

3. The principle of subsidiarity requires that powers be located and exercised at the level of the Member States, except in areas identified in Article 9 of this Treaty as falling within the exclusive competence of the Union, or where a clear common advantage can be discerned in acting at the level of the Union.

The principle of subsidiarity shall serve as a guide when this Treaty is being amended.

The institutions of the Union shall, in accordance with the principle of subsidiarity, refrain from exercising a power which has been conferred on the Union pursuant to this Treaty, in any case where the objective of the contemplated action is capable of being achieved by action at the level of the Member States, and there is no demonstrable common advantage in acting at the level of the Union.

4. As it applies to the relationship between the Union and the Member States, the principle of proportionality requires that the powers of the former be exercised so as to encroach as little as possible, consistently with the relevant Treaty objectives, on the powers of the latter.

The institutions of the Union shall respect the principle of proportionality when deciding on the form of action to be taken, and on any legal instrument to be used, in the course of exercising any power conferred on the Union by this Treaty. They shall, in particular, proceed by way of co-ordinated action, organised on the basis of a non-binding instrument, in any case where the relevant Treaty objectives can sufficiently be attained through such action.

5. The principle of loyal cooperation requires that the Member States support the actions and policies of the Union actively and unreservedly in a spirit of loyalty and mutual solidarity, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Union.

The Member States shall facilitate the achievement of the Union’s tasks as provided for in the Act on Economic and Social Policy and in the Act on Foreign, Security and Defence Policy. They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness.

Commentary

Paragraph (1) identifies four principles, of conferred powers (sometimes referred to as the principle of the attribution of powers), of subsidiarity, of proportionality and of loyal cooperation. Those principles are further developed in respectively, paragraphs (2), (3), (4) and (5) of the Article.

Paragraph (2), first sub-paragraph contains a formulation of the principle of conferred powers which is presently found in Article 5, first paragraph EC. The wording refers explicitly to the fact that the Union’s powers have been conferred by the Member States pursuant to the Constitutional Treaty.

It would be inappropriate to refer in the Constitutional Treaty to the related principle of specific attribution, which is characteristic of the EC Treaty but not of Title V and VI TEU. That principle could be formulated, for the purposes of the appropriate Act, as follows:

Any action which is taken by the Institutions in the name of the Union must be specifically authorised by a power-conferring provision contained in, or adopted under, this Act.

The second sub-paragraph of paragraph (2) notes that action on any matter in respect of which the Union has not been empowered to act under the Treaty remains the exclusive prerogative of the Member States. The drafting (using the indicative mood) makes clear that the "residual" powers of the Member States belong to them independently of the Treaty.

Paragraph (2), third sub-paragraph establishes that, even where powers have been conferred on the Union, Member States remain free to act in respect of the matters in question, except in the rare cases where the Treaty expressly provides that the competence of the Union shall be exclusive. The only existing instances of exclusive EC powers are in respect of the common commercial policy, fisheries protection and, presumably, monetary policy (for those Member States participating in the Euro). Articles 9 to 11 of the Treaty draw a distinction between those instances of exclusive Union competence, and the areas of "complementary" and shared competence.

Paragraph (3), first sub-paragraph formulates the principle of subsidiarity in general terms, as a fundamental principle of the constitutional order.

Paragraph (3), second sub-paragraph refers to the role of the principle as a guide to the Union constitution-making authority.

Paragraph (3), third sub-paragraph refers to the role of the principle as a brake on the exercise of conferred powers. This is the sense of the present Article 5, second paragraph TEU. The obligation to respect the principle is explicitly imposed on the institutions when they exercise powers under the Treaty. The wording is designed to overcome the ambiguity of the paragraph as presently drafted. The principle applies under three conditions: the power in question must not be one of those which is stated by the Treaty to be exclusive to the Union; the objective of the contemplated action must be capable of being achieved by Member State action; and it cannot be demonstrated that there would be a common advantage in taking action at the level of the Union.

Paragraph (4), first sub-paragraph formulates, in harder terms, the principle of proportionality presently found in Article 5, third paragraph EC.

Paragraph (4), second sub-paragraph makes clear that the institutions of the Union are required to respect the principle when deciding on the form of action they could take, and on the type of instrument they should use, for the purpose of exercising a power of the Union in a given instance.

Paragraph (5) incorporates the principle of loyal cooperation which is imposed on the Member States. This is an organising principle of the constitutional order, on the same level as the principles of conferred powers, subsidiarity and proportionality, and balances those principles by underlining the obligation of the Member States to further the objectives of the Union. Different versions of the principle are currently found in Article 11(2) TEU and in Article 10 EC. The proposed text combines wording from those two Articles, in a way which is intended to conserve the principle, while avoiding any derogation from, or extension of, the acquis communautaire (as to this, see Article C of the Amending Treaty, below).

In paragraph (5), first sub-paragraph, the obligation to show loyalty and mutual solidarity is taken from Article 11(2) TEU, first sub-paragraph and the obligation of result concerning fulfilment of Treaty obligations is taken from the first sentence of Article 10 EC.

Paragraph (5), second sub-paragraph spells out the positive and negative obligations of the Member States resulting from the principle. The reference to facilitating the achievement of the Union’s tasks, which comes from the second sentence of Article 10 EC, is specifically related to the tasks set, respectively, by the Act on Economic and Social Policy and the Act on Foreign, Security and Defence Policy. The negative obligation imposed by the final sentence comes from the second sub-paragraph of Article 11(2) TEU (though without the limitation to the sphere of international relations).

Article 8

Any proposal for a regulation or a directive of the European Parliament and the Council, or of the Council, shall, prior to its definitive adoption, be examined, in the form in which it is to be submitted for definitive adoption, under the arrangements that apply to the parliamentary scrutiny of Union measures in each Member State, in order specifically to determine whether the proposal complies with the principles of subsidiarity and proportionality as defined by Article 7 of this Treaty.

The conditions under which proposals shall be submitted for such examination, and the action, if any, to be taken in the light of the outcome, shall be as provided for by Article X [in Part Two] of this Treaty.

Commentary

This Article creates a mechanism to ensure compliance with the principles of subsidiarity and proportionality, based on national arrangements for the Parliamentary scrutiny of Union measures. The detailed provisions governing the operation of the mechanism belong in Title II of Part Two of the Constitutional Treaty.

6. Competence of the Union

Article 9

The competence conferred on the Union shall be exclusive in the following areas falling within the scope of the Act concerning Economic and Social Policy:

    • common commercial policy;
    • fisheries conservation;
    • monetary policy for the Member States which adopt the euro as their currency.

In areas of exclusive Union competence, the Member States may act only as trustees of the Union interest, and where they have been authorised to do so in accordance with the applicable Union procedure.

Action by the Union in areas of exclusive competence may be by way of any of the instruments available for the purposes of the Act concerning Economic and Social Policy.

Commentary

This Article is concerned with exclusive competence which exists a priori, i.e. by the very nature of the field of Union activity in question.

Exclusive competence here refers to the idea that only the Union institutions are legally capable of carrying out independent action within the relevant policy field; any such action by the Member States is strictly precluded. Defining the areas of exclusive Union competence is important for two reasons: first, to identify the fields in which the Member States’ independent regulatory competence has been curtailed; secondly, to delimit the scope of the principle of subsidiarity, which does not apply in areas of exclusive competence.

Within fields of exclusive competence, the Member States may still act where they have been authorised by the Union to do so. Such authorisation is usually express, i.e. contained in the relevant Union secondary legislation. However, authorisation may in limited circumstances arise implicitly, i.e. where the Union has failed to exercise its exclusive powers and in order to protect the vital interests of the Union from the danger of a regulatory vacuum, the Court of Justice has recognised that the Member States may act as "trustees of the common interest" (the Kramer case, Cases 3, 4 and 6/76, [1976] ECR 1279). In both situations, the Member States of course remain subject to the obligations imposed under primary law, especially the duty of loyal cooperation contained in the present Article 10 EC.

Exclusive competence existing a priori has been recognised by the Court of Justice only as regards the areas of Union activity listed above. There are differences of opinion about whether other fields should be recognised as belonging also to the exclusive competence of the Union. For example, several Advocates General have argued that the internal market should be considered as an area of exclusive competence existing a priori, but this analysis has not so far been adopted by the Court of Justice. Nor, it is submitted, is the analysis correct: subject to the provisions on freedom of movement, the Member States are at liberty to regulate matters affecting the internal market unless and until approximation measures have been adopted by the Union.

Exclusivity may exist not only a priori, but also may arise through the adoption of secondary legislation which is pre-emptive in nature. This type of exclusivity is treated below under the Article on shared competence, i.e. where Member States must respect the obligations imposed upon them by measures adopted under the Act concerning Economic and Social Policy, including the creation of harmonised norms which exclude the exercise of derogating or supplementary national competence. Exclusivity arising by pre-emptive secondary legislation is reversible: repeal or amendment of the relevant Union measures may lead to the resurrection of independent Member State regulatory competence.

Article 10

The competence of the Union shall be complementary to that of the Member States under the legal bases provided for by the Act concerning Economic and Social Policy in the following areas:

    • economic policy;
    • employment;
    • education, vocational training and youth;
    • culture;
    • public health;
    • consumer protection;
    • trans-European networks;
    • industry;
    • research and technological development.

In areas of complementary competence, action by the Union shall be limited to supporting, encouraging, and coordinating action taken by the Member States.

In such areas, except in respect of matters which shall be identified specifically in the applicable legal basis, action by the Union shall not entail the adoption of regulations or directives, or the harmonisation of the laws and regulations of the Member States.

The fact that the Union has exercised its complementary competence in respect of a certain matter shall not, except in the aforementioned cases where the adoption of regulations or directives is exceptionally authorised, prevent Member States from acting in respect of the same matter, subject to the obligations imposed on them by or under the Act concerning Economic and Social Policy.

Commentary

In the areas listed in the first paragraph, the determination of policy remains the preserve of the Member States. The Union is given a supportive or coordinating role, to be performed, typically, through the adoption of broad guidelines or incentive measures, or by facilitating the exchange of information about "best practice". The reference to "legal bases" should make it possible accurately to identify the matters that are subject to complementary competence. From the point of view of clearly demarcating the scope of the Union’s competences, it is preferable for the list of policy areas to be exhaustive.

The limited scope of the Union’s complementary competence is given concrete expression in the third and fourth paragraphs of this Article. In the policy areas in question, Union competence may not, in principle, be exercised by adopting legislative instruments (regulations or directives) or through the harmonisation of national legislation; exceptionally, however, such action by the Union may be authorised in respect of specific matters identified in the applicable legal basis: see, e.g., as regards public health, the measures referred to in the present Article 152 (4) (a) and (b) EC. Subject to the same exception, the so-called AETR or ERTA principle, Case 22/70, [1971] ECR 263, which restricts action at the level of the Member States once the Union has acted, does not apply in areas of complementary competence.

The reference in the fourth paragraph to the "the obligations imposed on [the Member States] by or under the Act concerning Economic and Social Policy" is intended to make clear that "horizontal" principles, such as the principles of non-discrimination and of free movement, bind the Member States even in areas of complementary competence (as regards, e.g., access to higher education: see the Gravier line of authority of the Court of Justice, Case 293/83, [1985] ECR 593). If there were a desire to restrict the application of the horizontal principles in a given area (for instance, the possible impact of the freedom to provide/receive services on public health provision, as illustrated by the judgment of the Court in Peerbooms, Case C-157/99, [2001] ECR I-5473), this could best be achieved by amending the relevant substantive provisions of the Act concerning Economic and Social Policy (perhaps by giving a narrower meaning to the concept of "services").

Article 11

The competences of the Union which are neither exclusive nor complementary shall be shared with the Member States.

In areas of shared competence, when the Union has acted in respect of a certain matter, the Member States shall respect the obligations imposed on them by the relevant Union measures, as well as by, as the case may be, the Act concerning Economic and Social Policy or the Act concerning Foreign, Security and Defence Policy.

Action by the Union in areas of shared competence may be:

    • as regards matters falling within the scope of the Act concerning Economic and Social Policy, by way of any of the instruments available for the purposes of that Act, and subject to the detailed provisions contained therein; and
    • as regards matters falling within the scope of the Act concerning Foreign, Security and Defence Policy, by way of any of the instruments available for the purposes of that Act, and subject to the detailed provisions contained therein.

Commentary

Shared competence is the residual category of Union competences.

In areas of shared competence, unless and until the Union has adopted a measure, the Member States retain their freedom of action, subject to the horizontal obligations enshrined in the Constitutional Treaty and the annexed Acts. So, for example, national measures intended to protect the environment must respect the rules on free movement of goods.

Once the Union has acted in a certain matter, the legal framework of Member States’ action changes. Where the Union legislation is found by the Court to be pre-emptive (as in the recent Product Liability Directive cases – see Commission v. Greece, Case C-154/00, Commission v. France, Case C-54/00 and González Sánchez, Case C-183/00, all judgments of 25 April 2002), Member States are precluded from exercising any independent competence to derogate from or supplement the harmonised norms. Where the Union legislation provides for minimum harmonisation (as in the case of measures adopted under Article 137 EC on social policy), Member States are free to enact more stringent measures. In any case, Member States still remain subject to the relevant horizontal obligations.

Union competence under the Act concerning Foreign, Security and Defence Policy (the present Second Pillar) is thought to be shared – rather than complementary – in character, having regard to the legal effects more particularly of joint actions as defined by the present Article 14 TEU, and of common positions as defined by the present Article 15 TEU. Those legal effects, of course, differ fundamentally from the effects of Union measures in the domain of the Act concerning Economic and Social Policy.

The wording of the third paragraph is intended to ensure that, although the full range of instruments applicable to each Act is, in principle, available to the Union, the detailed provisions of any given legal basis within each Act can specify the particular instruments which may be adopted thereunder. For example, existing Article 137 EC permits the adoption only of directives (not regulations) for the attainment of the objectives of the Community social policy.

7. Instruments

Article 12

1. The instruments available to the Union for the purposes of the Act concerning Economic and Social Policy shall be:

(a) regulations, which shall have general application. They shall be binding in their entirety and directly applicable in all Member States;

(b) directives, which shall be binding, as to the result to be achieved, upon each Member State to which they are addressed, but shall leave to the national authorities the choice of form and methods. In cases where the relevant Act so provides, directives shall not have direct effect;

(c) individual decisions, which shall be binding in their entirety upon those to whom they are addressed;