FEASIBILITY STUDY
CONTRIBUTION TO A PRELIMINARY DRAFT
CONSTITUTION OF THE EUROPEAN UNION
WORKING DOCUMENT

This document was produced, at the request of President PRODI in agreement with Mr BARNIER and Mr VITORINO by a working party under the responsibility of François LAMOUREUX and made up of

Marie LAGARRIGUE,
Paolo STANCANELLI,
Pieter VAN NUFFEL,
Alain VAN SOLINGE,

with the technical assistance of
Marguerite GAZZE

THIS FEASIBILITY STUDY DOES NOT NECESSARILY REPRESENT THE VIEWS OF THE EUROPEAN COMMISSION.

STRUCTURE

AGREEMENT ON THE ENTRY INTO FORCE OF THE TREATY ON THE CONSTITUTION OF THE EUROPEAN UNION

I PRINCIPLES 
TITLE I FOUNDATIONS 
TITLE II TASKS 
TITLE III POWERS 
TITLE IV INSTITUTIONS 
TITLE V INSTRUMENTS 
TITLE VI THE DEMOCRATIC LIFE OF THE UNION 
TITLE VII FINANCE 
TITLE VIII MISCELLANEOUS PROVISIONS 
TITLE IX REVISION AND ACCESSION 

III POLICIES
PART 1 POLICIES FOR DEVELOPING THE EUROPEAN MODEL OF SOCIETY
TITLE I INTERNAL MARKET
TITLE II COMPETITION
TITLE III AGRICULTURE AND FISHERIES
TITLE IV TRANSPORT
TITLE V ECONOMIC AND SOCIAL COHESION
TITLE VI SOCIAL POLICY AND EMPLOYMENT
TITLE VII ENVIRONMENT
TITLE VIII RESEARCH AND TECHNOLOGICAL DEVELOPMENT
TITLE IX CONSUMER PROTECTION
TITLE X TRANS-EUROPEAN NETWORKS
TITLE XI HEALTH
TITLE XII COMPLEMENTARY ACTION

PART 2 ECONOMIC AND MONETARY POLICY
TITLE I COORDINATION OF ECONOMIC POLICIES
TITLE II MONETARY POLICY
TITLE III TRANSITIONAL PROVISIONS

PART 3 REINFORCEMENT OF THE AREA OF FREEDOM, SECURITY AND JUSTICE
TITLE I INTERNAL AND EXTERNAL BORDERS AND FREE MOVEMENT OF PERSONS
TITLE II ASYLUM AND IMMIGRATION
TITLE III CRIMINAL LAW AND POLICE COOPERATION
TITLE IV FREE MOVEMENT OF ACTS IN JUDICIAL AND CIVIL MATTERS

PART 4 EXTERNAL RELATIONS POLICY
TITLE I CONSISTENCY
TITLE II INSTRUMENTS AND PROCEDURES
TITLE III EXTERNAL REPRESENTATION AND INTERNATIONAL ORGANISATIONS
TITLE IV TRANSITIONAL PROVISIONS

No 1 - Defence
No 2 –Peaceful use of atomic energy
No 3 - Association of the overseas countries and territories
No 4 – Supplementary institutional provisions
No 5 – Territorial application, protocols, transitional and miscellaneous provisions

Method
Agreement on the entry into force of the Treaty on the Constitution of the European Union 
TEXT OF THE CONSTITUTION OF THE EUROPEAN UNION 

I PRINCIPLES 
II FUNDAMENTAL RIGHTS 
III POLICIES
ADDITIONAL ACTS TO THE CONSTITUTION
Summary 
Table of contents

The purpose of this working document is to give a general idea of the content of a future Constitution of the European Union - not only the institutional part but also the policies to be carried out within the framework of the Constitution.

The work follows on from that begun at the Commission’s request by the European University Institute in Florence (EUI).1 The purpose of the EUI feasibility study was to rationalise the Treaties by distinguishing between the essential provisions and the less important ones which nonetheless had to be retained because of the need to leave the substance unchanged.

1 "A basic treaty for the European Union", study by the European University Institute (EUI) on the reorganisation of the Treaties (Report submitted on 15 May 2000 to Romano Prodi, President of the European Commission)

However, the Convention context makes it possible - and it is the aim of this exercise - to go beyond the existing provisions with regard to the institutions, and to simplify the policies while ensuring that the acquis communautaire remains as it is and that no new powers are enshrined in the Constitution.

This is the first document to give a practical view of what the future Constitution might look like.

The basic concept is to provide the Union with a Constitution which replaces the existing treaties.

The structure of this contribution essentially follows that established by the Praesidium of the European Convention.2

2 Preliminary draft of the Constitutional Treaty of 28 October 2002 (CONV 369/02).

Taking the line already set by the Commission,3 the exercise has tried to be comprehensive:

3 Commission Communication to the Convention of 22 May 2002 "A Project for the European Union" COM(2002)247, point 2 "A Constitutional Treaty", p. 18.

• drafting of a "text of a constitutional nature" which puts in a single instrument all the present Treaties by merging the Union and Community Treaties, doing away with the pillars and incorporating the Charter of Fundamental Rights;

• simplification of the Treaties, which "contain hundreds of provisions of various importance and scale", by eliminating provisions on policies which are obsolete, redundant or unnecessary;

• "distinction between the fundamental provisions (fundamental rights, organisation of powers, principles of the common policies) and the application provisions which can be modified by less stringent procedures than the current treaties";

• "critical reappraisal" of the derogations enjoyed by certain Member States;

• response to "the consequences of any failure to ratify by one or more Member States of the Union".

This working document is therefore divided into three parts:

• principles: the key institutional principles and a statement of the key objectives for each policy;

• fundamental rights: the text of the Charter is taken over in full with just three operational provisions added. Inclusion of the Charter for political reasons makes the Constitution far less reader-friendly. A variant would be to include the Charter as an Additional Act (as envisaged also by the Convention Praesidium). It must be realised that certain provisions of the Charter reappear elsewhere in the document, such as those relating to political parties or the ban on discrimination;

• policies: this part describes the content of the policies and contains the legal bases for implementing them. It is divided into four parts: policies for developing the European model of society (the internal market and its flanking policies), economic and monetary policy, policy to strengthen the area of freedom, security and justice, and external relations policy.

Attached to the Constitution are five Acts which form an integral part but which can - except for Acts Nos 1 and 2 - be amended more easily than the Constitution itself:

• Additional Act No 1. Defence, applicable solely to the Member States subscribing to the obligation of mutual assistance in the event of an attack, which should be defined in Article 6(2) of the Constitution. The Additional Act would put in place a capacity for deciding on and conducting military operations in external theatres in response to international crises or in the territory of the Union in response, for example, to terrorist attacks by non-State entities. It would organise the development of an internal market in defence goods and services and of the European arms industry through joint research projects and industrial projects. It would set up a European Arms Agency;

• Additional Act No 2. Peaceful use of atomic energy, which takes over all the provisions of the Euratom Treaty except those which are obsolete or duplicate the general provisions of the Constitution;

• Additional Act No 3. Association of Overseas Countries and Territories;

• Additional Act No 4. Supplementary institutional provisions (taking over the institutional provisions which do not rank as principles);

• Additional Act No 5. Territorial application, protocols, transitional and other provisions (dealing with the Acts of Accession and "Schengen" provisions).

The preliminary draft of the Constitution is also accompanied by an Agreement on its entry into force in order to propose a solution to the problem - almost inextricable in law - of the situation which arises if a State refuses to ratify the new Treaty establishing the Constitution.

This structure differs from that presented by the Praesidium of the Convention principally on two points. One is political and consists in the absence of a rigid classification of categories of powers (exclusive, concurrent, national). The other is technical and consists in more detailed provisions on the tasks of the Union and the objectives of the policies in Part I of the Constitution (Principles).

The work of simplifying the existing policies (Part III of the Constitution) follows necessarily from the structure chosen, which involves a technical rewriting and the necessary modernisation of terminology without touching the substance.

It can be characterised as a genuine updating, as referred to by the Commission in its Communication of 22 May 2002 on "A Project for the European Union".

This is also the method envisaged by the preliminary draft of the Treaty drawn up by the Praesidium of the Convention.

The simplification assumes that areas of competence are unchanged, i.e. no new areas of action have been written into the preliminary draft of the Constitution and no new powers assigned. There is no new Chapter on energy, for example.

At most a consolidation or reinforcement of existing actions is reflected in an adaptation of the legal foundations (for example, health).

The simplification was carried out in such a way as not to call into question the acquis communautaire as interpreted by the Court of Justice or the parts of the Treaty which are so compact that it was difficult to rewrite them.

This is why some chapters have hardly been altered (EMU, competition, social policy, Euratom), while most of the others have been modernised and some have been rewritten from first principles (external relations policy, area of freedom, security and justice).

Along with simplification,4 there has been some modernisation with the introduction of new concepts (e.g. information society, governance, knowledgebased society) and new modes of action (e.g. open method of coordination).

4 In rewriting, every effort has been made to eliminate the vague language of the current Treaties which conceals a lack of clarity in the policies - terms such as "in particular", "without prejudice", "each policy shall incorporate the objectives of the others of which they form an integral part", etc. All that these tricks, used in the recent Treaties (Amsterdam, Nice), end up doing is giving credence to Napoleon’s dictum that "a good Constitution must be short and obscure".

The result in figures is that, starting with a total of some 225 pages (excluding the Protocols), the summarising and simplification process reduces the volume by half (to 125 pages).5 If the Additional Acts are omitted, the Constitution proper is less than 100 pages long - i.e., as Jack Straw wants, something that will fit in the pocket!

5 If we go on to count the characters (letters or figures but excluding spaces), we reach a total of 270.000 characters, compared with a starting point of 460.000 characters.

One advantage of this simplification exercise - the only systematic exercise of its kind that has so far been carried out - should also be emphasised: it produces the first complete, coherent document on all the policies. This should preclude any single part of the acquis communautaire (cohesion, agriculture or social policy) being called into question in the Convention's preparatory work with the policies being looked at one by one, without an overview.

The draft Constitution is based on simplification around a few key principles:

• general use of the Community method (right of initiative of the Commission, qualified majority voting, codecision);

• refocusing of each institution on its core function (rather than its powers) in order to underscore the fact that the Council and Parliament perform the legislative function, and the Commission the executive function (indeed this is its own function); the Council retains "autonomous" decision-making power, exercised moreover in conjunction with the Commission, only for economic policy, external relations and police cooperation; if the Council has only this residual decision-making executive power, there is no reason to opt for a Union presidency as an institution; administration of the Union is the Commission’s preserve;

• regrouping and classification of instruments: law for the legislative function, regulation for the executive function, etc.; laws replace regulations, directives and framework decisions as the prime instruments of secondary legislation. A distinction is drawn between Institutional Laws (i.e. those governing the organisation of the institutions and the workings of the Union) and ordinary Laws. The characteristics and basic content of these Laws are spelled out in detail.

• systematic use of qualified majority voting (either simple or reinforced); the unanimity requirement is dropped in all cases, even for the revision of the Constitution, except for the admission of new members;

• revision of the codecision procedure, imposing strict time limits, even at first reading, and simplification of the budgetary procedure;

• election of the President of the Commission by the European Parliament by reinforced majority (i.e. two thirds of its Members) and confirmation by the European Council by reinforced qualified majority;

• integration of the Secretary of the Union (for external relations) into the Commission with a special status;

• Commission accountable to both Parliament and the European Council, which decide by reinforced majorities.

However, this institutional architecture differs from that drawn up by the Praesidium of the Convention on a few points. This contribution highlights the fact that the European Council is one formation - the most important - of the Council, and not a separate institution. Thus, the approach taken precludes a Presidency of the European Council or of the Council with tasks other than those of chairing meetings or organising business. Moreover, it does not take over the idea of a Congress, nor the possibility of intergovernmental action within the Union, which carries the risk of a covert reintroduction of the "pillars".

This preliminary draft Constitution introduces certain new elements which are set out in detail in the attached summary: for committee procedures, the establishment of infringements by the Commission, the Agencies, and the European Public Prosecutor for the fight against fraud. Simplification not only of the policies but also of the treaty provisions on the working of the institutions has meant that provisions on numerous bodies and committees (Coreper, Economic and Financial Committee, Employment Committee, etc.) are consigned to Additional Act No 4.

III. Tasks and powers
1. Tasks

The definition of the Union’s tasks is closely bound up with the question of demarcating powers, which is one of the most difficult topics for the Convention. The current system is not clear and not readily comprehensible, since hitherto the treaties have enumerated the areas of Union action in very general terms without the various levels of responsibility for each policy being immediately obvious.

The Convention seems to be moving towards a solution, corresponding to the structure established by the Praesidium, of classifying four types of powers, possibly defined in detail – exclusive powers, shared powers, support action and joint action by the Member States.

Because of the criticism levelled at such a rigid classification of powers 6, this contribution proposes another approach that is consistent with the development of European integration, combining clarity, efficiency and flexibility.

6 See, for instance, Commission Communication to the Convention, 22 May 2002, A Project for the European Union, COM(2002)247, p. 21-22.

The individual policies and activities are set out in such a way as to highlight the various gradations of responsibilities given to the Union – as principal or not – and are classified on the basis of the type of initiative needed to carry out its tasks (harmonisation, coordination, etc.).

It must be said again that this presentation is in conformity with the current breakdown of powers between the Union and the Member States.

Moreover the classification of the various policies in this or that category is entirely without prejudice to the importance and role of each individual policy in the general Union system.

In practical terms, the Union’s internal policies and activities are classified as:

• Principal policies, which include the policies conducted by the Union as the principal party by adopting initiatives which set the framework for or even take the place – partly at least – of action by the Member States (area of freedom, security and justice, internal market, competition, economic and monetary policy, agriculture and fisheries, transport, peaceful use of atomic energy);

• Flanking policies, which include the policies to accompany the Member States’ efforts through coordination and convergence of national policies (economic and social cohesion, social policy and employment, environment, research and technological development, consumer protection, trans-European networks, health). These policies complement and boost the principal policies but do not seek to oust the Member States;

• Complementary actions, which support national policies (education, vocational training, culture, audiovisual media, industrial competitiveness, civil protection, utilisation of space). These actions are developed on a coherent basis with the principal and flanking policies, though not using the same instruments.

On the external front, the general objectives of the external relations policy are laid down. All the provisions that previously were scattered throughout the different parts of the Treaties are gathered together in a single unit in the form of a part specifically given over to this overarching external relations policy to guarantee its coherence.

The general principles and criteria for the conferment and exercise of the Union’s powers are:

• the principle that the Union has only such powers as are conferred on it by the Constitution and that powers not so conferred remain with the Member States;

• the subsidiarity and proportionality principles.

In accordance with the positions expressed both by the Commission and by the Convention, these principles must also be enforced more strongly.

There is provision for self-compliance by the institutions, political review by national Parliaments and a stricter obligation to give reasons for legislative acts. But to avoid over-burdening the already complex institutional set-up, this document makes no provision for a new subsidiarity review body.

It is generally acknowledged that the Union needs to preserve its capacity for flexibility. There is accordingly a provision similar to the current Article 308 of the EC Treaty, providing a legal basis for action to attain the objectives of the Constitution in the absence of specific powers of action.

The possibility of action under this provision is not confined, as it is by Article 308, to the operation of the common market but extends right across the range of the Union’s policies. The decision-making procedure for action in such cases is also modified: the unanimity requirement in the Council is dropped and the European Parliament is more actively involved.

More precisely, decisions will be taken by the Council, acting on a proposal from the Commission after obtaining the assent of the European Parliament, reinforced majorities being required in both institutions.

As stated at point I.2, the simplification exercise is being conducted in such a way as to avoid undermining the acquis communautaire.

Most chapters have simply been modernised, some have been recast.

Apart from the removal of obsolete transitional provisions, the EMU part has not been simplified. Many of its provisions are therefore still cumbersome and repetitive and in marked contrast to the remainder of the "Policies" part of the Constitution. The few changes of substance are in line with the guidelines already adopted by the Commission.

The Commission will now make proposals, and not recommendations, for the coordination of economic policies, including the surveillance of excessive deficits. It acts as the Union’s external representative on exchange rate policy.

A Council for the euro zone is set up with decision-making powers in areas of common interest for the States which have adopted the euro. The European Parliament is to be kept better informed.

Creating an area of freedom, security and justice in the Union is one of the most pressing demands of the citizens.

The Constitution brings all the various activities provided for by the current treaties within a single framework.

Following on from the programme drawn up by the 1999 Tampere European Council, this policy is based around a number of broad goals: making the free movement of persons a reality while strengthening controls at external borders; implementing genuinely common policies on immigration and asylum; improving judicial cooperation in both the civil and criminal spheres, including by mutual recognition and, if necessary, alignment of the different national legislations; and strengthening police cooperation. In this context, EUROJUST and EUROPOL are recognised as Union Agencies and their tasks are clearly set out.

This policy is essentially subject to normal decision-making procedures. For a few particularly sensitive measures, which involve emergency responses to sudden influxes of third-country nationals and coordination between the national police authorities (implementation of joint operations) it is provided that the Council should act alone, by reinforced qualified majority.

a) The situation

The external relations of the Community, and then of the Union, have developed in two phases:

Unlike the Euratom Treaty, the 1957 EC Treaty did not contain a chapter on external relations. For the main part they were dealt with in provisions on three areas (commercial policy, international agreements and association agreements).

The Single Act, and then above all the Maastricht and Amsterdam Treaties, incorporated the common foreign and security policy into the Treaty, but without adopting the Community method (no Commission monopoly on initiatives, unanimity rule, representation by the Presidency, virtual non-existence of the European Parliament, absence of the Court of Justice, etc.).

One consequence of this situation is that today the Union does not have an overall external policy but a juxtaposition of powers which vary depending on the area involved (commercial policy, development cooperation, external aspects of internal policies, common foreign and security policy, etc.) and with very different decision-making procedures.

What is more, the specific nature of the common foreign and security policy in the present system of powers further complicates the situation since the Member States have the natural tendency to feel that "foreign policy" should overarch the "sectoral policies".

b) The new approach A new part of the Treaty is devoted to the Union's external relations policy the objectives of which are enumerated in the Principles of the Constitution.

This part covers the whole range of external relations: the common foreign and security policy, external economic relations policy and sustainable development policy, development cooperation policy and the external component of internal policies.

Thus, though the procedures and instruments may differ, a single framework brings together all the elements of external policy which will give the Union - the biggest trading power, foremost donor of humanitarian and technical aid, main shareholder in the European Bank for Reconstruction and Development and in the World Bank - a greater influence on the international stage.
– The Union will thus be in a position to follow an overall, coherent policy.

• The European Council adopts the principles and broad guidelines of external policy;

• The Council remains at the centre of decision-making: it concludes international agreements, it adopts joint actions, it adopts declarations, it sets penalties; it is assisted by an External Relations Committee; it decides on these matters by qualified majority on a proposal from the Commission or, possibly, the Secretary of the Union; the European Parliament is consulted on all agreements;

• Legislative instruments such as the import regime or financial and technical cooperation programmes are adopted by Law by codecision between the European Parliament and the Council, as is already often the case.

– The creation within the Commission of the function of Secretary of the Union, Vice-President of the Commission, gives the Union a new capacity of initiative, visibility and implementation in the field of the common foreign and security policy. Under the authority of the President of the Commission, the Secretary of the Union will also ensure the coherence of all initiatives and actions in the field of external relations.

These functions warrant a special status based on a close relationship of confidence with the European Council.

During a transitional period of a duration still to be determined, the Commission's right of initiative in the field of the common foreign and security policy is exercised by the Secretary of the Union under certain circumstances.

The Euratom Treaty has been substantially slimmed down by removing a series of provisions which:

• duplicated those already included in the Constitution (and previously in the Treaty establishing the European Community), i.e. the chapters on the promotion of research and dissemination of information, on the institutions and on external relations; or

• were obsolete and had never been applied: this is the case in particular of part of the chapter on supplies, especially the provisions on the right of option on ores and the chapter on property ownership, which has never been applied.

Conversely, the provisions retained are those on the setting of standards (Chapter III on health and safety) with small adjustments to incorporate nuclear safety, Chapter IV on investments (with more explicit authorisation power), Chapter V on joint undertakings and Chapter VII on safeguards.

These chapters, which contain some of the best drafting of the existing treaties, have hardly been changed and are included in an Additional Act.

Parliament is restored to the institutional system, as it is given the power to adopt, with the Council, "Laws" for basic standards whereas at present it is very much outside the decision-making process. There remain only a few cases where the Council would decide on its own, on a proposal from the Commission, for instance where specific rules concerning the non-disclosure of confidential information apply.

The Union will be financed by own resources guaranteeing its financial autonomy, which may take the form of Community taxes, although these are mentioned only in principle. The decision laying down the nature and ceiling of own resources, including any European taxes, is adopted by an Institutional Law, i.e. by the codecision procedure with reinforced majorities. The national parliaments are associated, but precautions are taken to ensure that a decision cannot be blocked by a single Member State: a decision may not enter into force if the national parliaments in a majority of Member States are opposed.

The multiannual financial perspective is the reference framework for budgetary discipline and is designed to ensure orderly development over the medium term by broad categories of expenditure. It is adopted on a proposal from the Commission by the European Council after Parliament has given its assent. Both act by reinforced qualified majority.

The disappearance of the distinction between compulsory expenditure and non-compulsory expenditure simplifies the budgetary procedure. In future it will start with the Commission proposal and involve a single reading in the European Parliament and the Council, followed by conciliation if there is failure to agree. If disagreement continues, it is for Parliament to take a decision within strict limits. Parliament may always reject the budget by a reinforced majority. The budget is formally adopted by a Finance Law.

The Council is more closely associated with the discharge in respect of the implementation of the budget. It must give its assent.

1. Article 48 of the Treaty on European Union provides that the treaties may be amended only if the amending treaty is ratified by all the Member States.

It is possible, however, that some Member States will not manage to ratify the Treaty on the Constitution (e.g. in the case of a "no" vote in a referendum). Such a situation would block the whole process.

All the proposals that have so far been put forward - including the preliminary draft constitutional treaty presented by the Praesidium of the Convention - have shied away from this thorny problem. An innovative solution is proposed to facilitate the ratification process, leaving an alternative to the States which are not able to accept the new constitutional system. Thus, each Member State could choose between continued participation in the Union, now based on a Constitution, and withdrawal from the Union to take on a special status under which it would not lose anything compared with the current situation because it would continue to benefit to a large extent from the existing arrangements.

In concrete terms, it is proposed that:

a) the Agreement on the entry into force of the Treaty on the Constitution be concluded and ratified by all the Member States. This satisfies the unanimity requirement of Article 48 TEU.

But, at the time of ratification, each Member State

• either makes a Declaration confirming the resolve of its people to continue to belong to the Union;

• or does not make this Declaration. In this case, that Member State leaves the Union. The Agreement lays down the procedure to be applied, which includes giving the withdrawing Member State a guarantee that it will not lose its established rights. The future relations between the Union and the withdrawing State will be governed by an agreement between them, which will determine the conditions for the retention of these rights and the association of this State with the Union.

b) the Treaty on the Constitution enters into force according to the conditions laid down in the Agreement in point (a) above, in particular on condition that at least three quarters of the Member States have made the Declaration referred to. It applies only to the States which, by making this Declaration, have manifested their intention to remain within the Union, now founded on a Constitution.

2. In the event of a Member State refusing to ratify the Agreement on the entry into force of the Treaty on the Constitution, there is no simple solution under the terms of Article 48 of the Treaty on European Union which satisfies, on the one hand, the desire of both those Member States wishing to move ahead and those which do not want to prevent others doing so but prefer to retain the status quo for themselves, taking the status of associated countries, and, on the other hand, the desire of a country which does not want to make this choice but would prefer that nothing should change.

To resolve this dilemma, the Agreement on the entry into force of the Treaty provides that if, by a given date, five sixths of the Member States have ratified this Agreement - regardless of whether or not they have made the declaration that they wish to continue in the new Union - the Agreement enters into force and Member States which have not ratified are deemed to have decided to leave the Union.

This last resort clause is a break with Article 48 TEU, but it is consistent with international law since the Agreement offers the Member State concerned every guarantee that it will retain its established rights though, in this case, it would decline to assert them. The proposed solution requires the agreement, at the time of signature, of all the States. In other words, the innovative solution (each Member State must choose between remaining within the Union founded on a Constitution and withdrawal from the Union) will have been the subject of a unanimous prior political agreement.

The unanimity requirement is dropped for revision of the Constitution. A number of different mechanisms are proposed, depending on which provisions are to be amended (cf. also the Table in Annex 1):

1. a demanding procedure is introduced for revision of the "Principles" and "Fundamental Rights" parts of the Constitution, though unanimity of the Member States within the European Council and ratification by all the national parliaments are not required. The use of a Convention at the preparatory stage becomes a permanent feature;

2. the "Policies" part of the Constitution and Additional Acts Nos 1 and 2 may be revised by a less demanding procedure than the one referred to under a);

3. Additional Acts Nos 3, 4 and 5 may be revised by an even simpler procedure, i.e. that laid down for the adoption of Institutional Laws.

Since unanimity is no longer required, some Member States could find themselves in a minority. Revision would still be imposed on such States, which could then accept them or withdraw from the Union.

Withdrawal is therefore not an option that can be exercised freely at any time, but can arise only when the Constitution or its Additional Acts are revised. A specific procedure is laid down for the conclusion of an agreement between the Union and the withdrawing State, which would determine their reciprocal rights and obligations and how the State in question might remain associated with the Union.

The accession of new countries to the Union is still governed by conditions similar to those laid down in Article 49 of the present Treaty on European Union, in particular the requirement that applicant countries respect the fundamental principles of the Union. However, the procedure takes place exclusively at Union level (the Accession Treaty is concluded by the European Council and not by the Member States, as required by the present Article 49) and does not require unanimity (but a majority of five sixths instead). However, it is worth stressing that the entry into force of an Accession Treaty is subject to ratification by all the Member States. This is the only instance of unanimity in the Constitution, apart from the fundamental provision, whereby the Council must act unanimously to change a Commission proposal unilaterally.

The provision on serious and persistent violation of fundamental democratic principles — Article 7 of the present Treaty on European Union — is retained.

Under this procedure, a State may be suspended from participation in the Union if it has repeatedly breached those principles.

As has already been made clear, a recasting of all the Treaties is proposed. Thus, the Constitution repeals and replaces the current Treaties (Treaty on European Union, Treaty establishing the European Community, Euratom Treaty).

However, the maintenance of the acquis communautaire is fully guaranteed, thanks both to the taking over in the Constitution of all the relevant provisions of these Treaties, and also by the explicit reference to the acquis as the prime source of interpretation of the Constitution.

The Protocols annexed to the current Treaties are retained insofar as they are not obsolete. The old accession Treaties are maintained for a period of three years after the entry into force of the Constitution, a period in which the legislator must decide which provisions of these acts have lapsed or are obsolete. With regard to the Accession Treaty for the future accessions, a similar procedure is provided for at the end of the longest transition period. These arrangements are the subject of Additional Act No 5.

Acts of secondary legislation adopted pursuant to the current Treaties (regulations, directives, decisions, etc.) remain in force and continue to have effect, provided that they are compatible with the Constitution.

In the light of the constitutional nature of the new system (and the possibility of making changes to it without the agreement of all the Member States), special variable geometry arrangements must be limited. Specific provisions govern the three current cases of variable geometry.7 Furthermore, the extension of qualified majority voting to general use, the creation of a Council for the euro area and the  Additional Act on Defence will considerably reduce the requirement for, or even usefulness of, these arrangements.

Consequently, the very detailed provisions on closer cooperation are not taken over in the Constitution. However, it is proposed that a general clause of the Benelux clause type be maintained, allowing closer cooperation between Member States working towards objectives that cannot be reached by applying the Constitution, on condition that the cooperation in question respects the Constitution.

A summary of the draft Constitution is given at the end of this document.

Annex 1: Majorities for the revision of the Constitution and for the adoption/revision of acts of the institutions

His Majesty the King of the Belgians, etc.

Recalling the procedure provided for in Article 48 of the Treaty on European Union for the revision of the Treaties, but desiring to take a further step in European integration by enabling the Union to give itself a Constitution,

Have determined the conditions for the entry into force of the Treaty on the Constitution of the European Union and to this end have designated as their Plenipotentiaries:

His Majesty ....

Who, having exchanged their full powers, found in good and due form, have agreed as follows:

Article 1

By this Agreement the HIGH CONTRACTING PARTIES, the Member States of the European Union, accept that the European Union will henceforth be founded on a Constitution.

Article 2

1. On the date of entry into force of the Treaty on the Constitution of the European Union, hereinafter called "Treaty on the Constitution", the Treaty establishing the European Community, the Treaty establishing the European Atomic Energy Community and the Treaty on European Union, together with the other treaties and acts supplementing or amending them are hereby repealed.

2. The European Union shall succeed to all the international and domestic rights and obligations of the European Union and the European Communities, arising before the entry into force of the Treaty on the Constitution by virtue of the Treaties referred to in paragraph 1, including all assets and liabilities.

3. The provisions of the acts of the Union institutions adopted pursuant to the Treaties and acts referred to in paragraph 1 shall continue to have effect, in so far as they are compatible with the Constitution. The law established on the basis of those Treaties and acts and the case-law of the Court of Justice of the European Communities shall continue to be a primary source of interpretation of the Constitution and of acts adopted under it.

Article 3

Before the date of entry into force of the Treaty on the Constitution, each Member State shall make a solemn declaration confirming the resolve of its people to continue to belong to the European Union.
A Member State which is not in a position to make that solemn declaration shall leave the European Union on the date of entry into force of the Treaty on the Constitution. Relations between the Union and the Member State leaving it shall be governed by the agreement which will be concluded between them in accordance with Article 4.

Article 4

1. As soon as a Member State has announced that it is not in a position to make the solemn declaration referred to in Article 3, negotiations shall begin between that Member State and the European Union with a view to concluding an agreement to govern their future relations. The Commission shall conduct these negotiations in consultation with the Council and in accordance with the directives given to it by the Council. The agreement shall be concluded for the Union by the Council, acting by a majority of two thirds of its members, with the assent of the European Parliament.
   The Member State leaving the Union shall not participate in the decisions of the Union on the negotiation and conclusion of that agreement.
   The Member State leaving the Union may continue to be a contracting party to the Agreement on the European Economic Area.

2. If the agreement between the Union and the Member State concerned on the reciprocal rights and obligations has not entered into force when the Treaty on the Constitution enters into force, the respective rights and obligations of the Member States making up the Union and of the Member State which has left it shall, for no more than two years, continue to be governed by the law applicable on the day preceding that of the entry into force of the Treaty. In this case the Member State leaving the European  Union shall not participate in the institutions, procedures and mechanisms of the Union and shall not contribute to the budget of the Union; payments due to natural or legal persons residing on its territory by virtue of rights and obligations arising before the entry into force of the Treaty on the Constitution shall be borne by the Member State leaving the European Union.

3. Should a Member State leave the European Union, the adjustments to the Constitution which this necessitates shall be adopted in accordance with the procedure provided by the Constitution for the adoption of an institutional law. To this end the provisions of the Constitution relating to the adoption of institutional laws shall apply provisionally.

Article 5

The Treaty on the Constitution shall enter into force on 1 January of the year following that in which this Agreement enters into force, provided that three-quarters of the Member States have made the solemn declaration referred to in Article 3.

Article 6

1. This Agreement 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.
   This Agreement shall enter into force 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.

2. If by 31 August 200n this Agreement has not been ratified by one or more Member States, not exceeding in number one-sixth of the Member States, this Agreement shall enter into force, notwithstanding paragraph 1, on 1 October 200n. In that case, the Member States which have not yet ratified this Agreement shall have the possibility of making the solemn declaration referred to in Article 3 before the entry into force of the Treaty on the Constitution.
   Should a Member State which has not ratified this Agreement not have made the solemn declaration before the date of entry into force of the Treaty on the Constitution, it shall be deemed to have decided to leave the Union at that date.
   Relations between the Union and the Member State which is deemed to have decided to leave the Union shall be governed by international law, unless the Member State concerned announces that it wishes to avail itself of Article 4.

3. If by 31 August 200n this Agreement has still not been ratified by at least five-sixths of the Member States, paragraph 2 shall apply in the year in which by 31 August at least five sixths of the Member States have ratified this Agreement.

Article 7

This Agreement, drawn up in a single original, in the Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Slovak, Slovene, Spanish and Swedish languages, the twenty-one texts being equally authentic, shall be deposited in the archives of the government of the Italian Republic, which will transmit a certified copy to each of the governments of the other signatory States.

TREATY ON THE CONSTITUTION OF THE EUROPEAN UNION

Meeting in [...], on [date] Reference to the European Convention

– ADDITIONAL ACT No 1
Defence
– ADDITIONAL ACT No 2
Peaceful use of atomic energy
– ADDITIONAL ACT No 3
Association of overseas countries and territories
– ADDITIONAL ACT No 4
Supplementary institutional provisions
– ADDITIONAL ACT No 5
Territorial Application, protocols, transitional and miscellaneous provisions

This Treaty on the Constitution of the European Union, drawn up in a single original, in the Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Slovak, Slovene, Spanish and Swedish languages, the twenty-one texts being equally authentic, shall be deposited in the archives of the government of the Italian Republic, which will transmit a certified copy to each of the governments of the other signatory States.

This Treaty shall enter into force at the date and subject to the conditions determined by the Agreement on the entry into force of the Treaty on the Constitution of the European Union, signed in [...] , [same date]

-------------------------------------

DRAFT CONSTITUTION