42nd CONVENTION NEWSLETTER
Report on the Convention's Plenary session on 27-28 February 2003.
Discussion on articles 1-16 of the draft Constitution and presentation of
article 24-33 on simplification.
Introduction: The Praesidium has received more than 1000 amendments for the first 16
articles. President Giscard d'Estaing underlined that he would keep the deadline of June
2003 and therefor introduced two informal meetings the 5 March (art 8-16) and 26 March
(art 1-7). There was an extensive debate on the word "federal" in the first article; which
was welcomed by many speakers but also received strong criticism. Furthermore, the
question of whether to refer to religion and God in the Constitution was debated, Giscard
concluded that the religious heritage would only be referred to in the preamble, as it
should have no legal nature. The debate on the division of categories focused on two
models; either creating a clear definition of the Union’s competences (a Competence
Catalogue) or creating broader categories of competences. The debate on objectives,
values and the Charter of fundamental rights, did not bring more clarity for the direction
of a consensus. The articles 24-33 on simplification, legislation method and instruments
were presented and will be discussed the 17-18 March. Thus the roadmap of the
Conventions future work is as following:
 5th March and 26 March - informal meeting (more dates may appear)
 17-18 March, Presentation of financing and the Union's policy.
 3-4 April, Presentation of the union's institutions and democratic foundation.
 15-16 May: Presentation of the whole draft Constitution.
The presented articles will always be discussed the following plenary session
Federal Nature of the Union
The very nature of the European Union was debated. The fact that the first article of the draft
Constitution pinpoints that the Union shall operate on a federal basis was heavily disputed.
Where some delegates stressed that the federal nature of the Union could not be understated,
others called for an omission of the word "federal" from the Constitution.
A large group of speakers favoured the use of the word federal. For example Mr. Duff (UK,
MEP), who said the draft should be as clear as possible on this point. He mentioned that the
federal nature of the European Union is already there and it should not be necessary to be
neither timid nor defensive on this fact. Mr. Brok (Germany, MEP) stated, that reality – and
especially the current international crisis - shows, that the Union is only successful when it acts
as a Union and not on an intergovernmental basis. Mr. Linden (Netherlands, NP) agreed and
said the federal basis should be the heart and soul of the new Constitution. This was supported
by Mr. Vitorino (Belgium, Commission), Mr. Rupo (Belgium, NP) and Mr. Borrell Fontelles
(Spain, NP). Some speakers - including Mr. Spini (Italy, NP) - referred to the disappointment of
younger generations in Europe, if the word federal – and thereby the federal ambition - was not
included in the text.
Some speakers expressed their opposition to the explicit use of the word federal. Mr. HeathcoatAmory (UK, NP) argued that the aim of providing a clearer and more comprehensive wording in
the Constitution would not be obtained by using a word like federal. He was backed by Ms.
Baronesse Scotland of Asthal (UK, Gov.), who stated that there must be a better way to describe
the way Member States shall coordinate their efforts to achieve common goals. Also Mr. Bonde
1
(Denmark, MEP) disapproved with the term federal. "A clear division of powers between the
federal level and the nations is missing. It looks more like a French unitary state than the
American federation. In this Constitution it is up to the federal authorities to decide what is left
to the nations”, he said.
Mr. Fayot (Luxembourg, NP) who spoke on behalf of several members from the socialist group
in the convention went for a compromise, wanting to use the expression "Community method"
instead of federal. He was supported by Mr. Brok (Germany, MEP) and Mr. Wuermeling
(Germany, MEP), who both stressed the importance of defining where the Unions competences
come from, and therefor to mention the will of the people.
According to President Mr. Giscard d'Estaing the Union should be seen as a unique entity whose
definition cannot be found in books of classical theory. It will be a federal approach without
making a federation as such. "No matter if the word federal is deleted or not from the text we
have to explain the relationship between the Member States and the Union" he said.
The discussion of the "federal nature" was rooted in a parallel debate on where the legitimacy of
the Union should arise from. A distinction was drawn between state versus nation and citizens
versus people.
For example Mr. Balázs, (Hungary, NP) stressed that in many of the applicant countries state
and nation is not necessarily the same thing. The national identity belongs to the people and not
to the member states.
Where some speakers wanted to emphasise, that the powers of the Union derives from the will
of the people, Mr. Brok (Germany, MEP) suggested that “people” should be replaced by
“citizens”, since it would then be easier to make references to citizens rights.
In the same line Mr. Giscard d'Estaing underlined that the term citizens - in contrast to the term
people, that can be defined broadly as a community of human beings – has a political meaning
linked to the enjoyment of legal rights. He said that in this way there should be a distinction in
the Constitution between the people, the citizens and the member states, since every entity in
this kind of trinity, has a different role to play.
Where the draft text suggests that the Union shall respect the national identities of its Member
States, many speakers suggested a respect of sovereignty of the member states instead. (For
example Mr. Bonde (Denmark, MEP), Mr. Kirkhope (UK, MEP), Mr. Carey (Ireland, NP) and
Mr. Abitbol (France, MEP).
The name of the Union
Even though the discussion of the name of the new entity established by the draft Constitution is
scheduled for a later date, many members expressed their satisfaction with the current name
European Union. Not at least because this name is familiar to the people.
Some members also made a call for more symbols of the Union. Next to the flag and hymn of
Europe, there should be a common motto, a song, etc. to unite the peoples.
Religion
The invitation from Mr. Giscard d'Estaing to openly discuss the reference to religion was
welcomed by many members of the Convention. Firm views were expressed on this highly
controversial issue concerning the roots and cultural heritage of Europe. The lines were drawn
between those who wanted a reference to God or more specific the Judeo-Christian tradition and
those who do not believe there should be any mentioning of religion in the Constitution.
2
Ms. Berès (France, MEP) suggested a firm distinction between the state (Union) and the church.
“The convention is about to construct a democratic and legal power, not a spiritual power”, she
said. She further finds that the Charter of Fundamental Rights is clear on this point. Many
delegates shared her views - here among Ms Hjelm-Wallén (Sweden, NP) and Ms. Paciotti,
(Italy, MEP). Ms. Kaufmann, (Germany, MEP) argued, that there should be no distinction in the
Union between believers and non-believers. Some speakers mentioned that Greek philosophy
has been just as important for European values and identity as religion.
In contrast Mr. Wittbrodt, (Poland, NP) will like the Constitution to stress, that Europe's values
are founded on religious values. Not necessarily by mentioning of a specific religion but a
referral to God and specific religious values as done in the Polish Constitution. However, Mr.
Fini (Italy, Gov.) believes that the European identity is rooted in the Judeo-Christian values. Mr.
Haenel (France, NP), Mr. Brok and Mr. Tajani (Italy, MEP) expressed similar views.
President Giscard d'Estaing said that in the next draft there will be a reference to religious
heritage in the preamble but not in the articles as such since these should be of legal nature.
Charter of Fundamental Rights (art. 5.1)
The inclusion of the Charter of Fundamental Rights in the Constitution was another big issue in
the debate on values of the Union. There was, as in previous plenary sessions, a general
consensus that the Charter of Fundamental Rights should be included in one way or another in
the Constitution. However no general agreement was reached.
Some members of the convention want the Charter – or some parts of the Charter – included in
the beginning of the Constitution to avoid an overlap art 2 (values) since the same values would
have to be repeated twice. At the same time this placement will stress the great importance of
citizens’ rights. This was supported by Mr. Meyer (Germany, NP), Mr. Arabadjiev (Bulgaria,
NP), Ms. Paciotti (Italy, MEP), Mr. Farnleitner (Austria, Gov.).
Many other speakers argued that even though the Charter is important it does not have a form
suitable for the beginning of the Constitution and therefore it would be better to place it in
another part of the Treaty. Commissioner Mr. Barnier argued along this line together with Ms.
Maij-Weggen (Netherlands, MEP) and Ms. Tiilikainen (Finland, Gov.). Mr. Kutskova
(Bulgaria, Gov.) suggested to place the Charter in a protocol.
A small minority of the speakers stated that the Charter should not be legally binding at all. For
example Ms. Scotland of Asthal (UK, NP), thinks that the Charter – though very welcome - was
not drafted in a manner applicable to be put in a treaty.
Objectives (art. 3)
As for the objectives of the Union there was an overlap with the discussion of values. For
example equality – many members mentioned equality between men and women - is seen as a
value by some while for others it is an objective. Mr Ben Fayot (Luxembourg) spoke on behalf
of several socialist members of the Convention when he stressed the need to include the fight
against poverty and social exclusion among the objectives and for social justice to be considered
as a value. The cultural and linguistic diversity of the Union was also stressed as a value of the
Union.
Mr. Villepin referred more generally to strengthening the European social model.
Ms. Maij-Weggen (Netherlands, MEP) also stressed that environmental protection should be an
objective and suggested an inclusion in the text of a social ecological market economy.
Some speakers were concerned that the aquis communautaire would be neglected in the
Constitution. Both Ms. Thorning-Schmidt (Denmark, MEP) and Ms. Dybkjær (Denmark, MEP)
referred in particular to the absence of some of the new objectives called for by many members
3
of the Convention. They mentioned equality between men and women, special rights for
disabled people and children's rights as issues where it would be “unacceptable to retreat from
the aquis”. President Giscard d'Estaing answered that there would be absolutely no backtracking
from the aquis.
The competence debate
Vice-president Mr. Amato initiated the debate on title III: The Union’s competences by stating
that the goal was to give the citizens a clear picture of what is decided where or as Mr.
Lenmarker, (Sweden, NP) phrased it, “who to blame for what”. The very heart of the Unions
democratic deficit is that you don’t know who to blame.
The competences of the Union are laid out in article 8-16. These articles can be divided into four
categories: 1) The guiding principles (8-10), 2) the supranational decision making method (1112, and 15), 3) the intergovernmental decision making method (13-14), and 4) the flexibility
clause (16).
Categories of competences or a Competence Catalogue?
The Praesidium's suggestion for the basic principle of division of powers between the Member
States and is that the "competences not conferred upon the Union remain with the Member
States". In the three supranational articles (11, 12, and 15) the Praesidium has made a list of
competences under each article, but the Praesidium stressed strongly that these lists were not
exhaustive. The Praesidium is not trying to create a Competence Catalogue but categories for
the competences. This approach enjoyed broad support in the Convention (for example Mr.
Fischer, (Germany, Gov.), Mr. Antunes, (Portugal, Gov.), Mr. Dastis, (Spain, Gov.), even
though some, as for example Mr. Fayot, (Luxembourg, NP), wanted the list expanded and
others, as for example Mr. Wuermeling, (Germany, MEP), wanted it shortened. Several
suggestions for amendments to the list of the Unions exclusive competences were put forward
during the debate.
Mr. Heathcoat-Amory, (UK, NP) argued that the present drafting fails to reach the Praesidium's
goal. Instead of creating clarity, it is ambiguous and lacks check and balances. Instead the
powers should be angered in the national democracies of the Member States. This was
supported by both Mr. Abitbol, (France, MEP) and Mr. Querió, (Portugal, MEP).
Many German members of the Convention (Mr. Brok, (Germany, MEP), Mr. Hänsch (Germany,
MEP) and Mr. Teufel, (Germany, NP)) also criticised the Praesidium's approach and called for a
clearer division of the competences into the three categories – a Competence Catalogue. For Mr.
Teufel, making a clear division of competences is the test of the Convention's work.
But while the German attacked the proposed division for not being clear enough Mr. Duff (UK,
MEP) is of the opinion that the division is too rigid. This seemed to be supported by Mr.
Barnier, (France, Commission), who argued that the division of competences should be of a
pure political nature, and Mr. Serracino-Inglott, (Malta, Gov.), who argued that the demarcation
should be based on the principle of subsidiarity and the principle that the closer an issue is to
culture and national identity the more it should be a national competence. Finally Ms.
Tiilikainen, (Finland, Gov.) suggested that the guiding principle should be that each of the
objectives stated in article 3 should have a corresponding legal basis and visa versa.
Economic coordination (Art. 13)
4
Article 13 sets out that the Union shall coordinate the economic policies of the Member States.
This formulation spurred much debate about content as well as procedure. A clear majority of
speakers argued that the article should be expanded by including social and employment policy.
Mr. Schmit, (Luxembourg, Gov.) especially underlined the importance of a strong reference to
employment because this was what the citizens of Europe expected from the Union. The call for
inclusion of social and employment policy could in many ways be seen as a concrete reflection
of the two big political groups in the European Parliament’s (the Socialist and the Christian
Conservative) call for a social market economy as the basic societal model for Europe. But a
small minority of speakers wanted to weaken the article. Ms. Hjelm-Wallén, (Sweden, Gov.)
suggested that the article should talk about coordination of the economic policies in the Union
not the Union coordinating the economic policies and Mr. Dastis, (Spain, Gov.) suggested that
the Constitution should merely guarantee that there would be economic coordination.
The formulation "Union" in article 13 created a debate about the institutional triangle of the
Union. Some, for example Mr. Tomlinson, (UK, NP), wanted it clearly stated that it is the
Council that coordinate the economic policies instead of the loose term Union. Others didn't feel
that the council was a real part of the Union and therefore wanted the Commission and the
Parliament more involved. This spurred a debate about the status of the council in the
institutional set up of the Union. Especially Mr. Borrell Fontelles, (Spain, NP) and Mr. Duff,
(UK, MEP) underlined that the Council is an institution under the Union. But Vice-President
Mr. Amato said that this was one of the questions that should receive more thoughts and further
debate.
The Flexibility clause (art. 16)
The suggested article 16 replaces article 308 of the TEC (the so-called rubber paragraph) in the
Constitution giving the Union the possibility of taking appropriate measures if the Union finds
itself in a situation where it doesn’t have the necessary powers to attain one of the objectives set
by the Constitution. Most of the speakers supported this article but the decision procedure
created some debate. Mr. Lekberg, (Sweden, NP) argued that there should be no involvement of
European Parliament in the decision procedure (in the Praesidium's suggestion it shall give its
assent). Mr Antunes, (Portugal, Gov.) and Mr. Spini (Italy, NP) argued that the Council should
use qualified majority voting (whereas it shall use unanimity in the Praesidium's suggestion).
Mr. Teufel, (Germany, NP) and Mr. Wuermeling, (Germany, MEP) are of the opinion that the
use of art. 16 should be limited to the Single Market (as the present art. 308 TEC) and the
Economic and Monetary Union and have a duration of three years.
Other debates on competences
Mr. Borrell Fontelles, (Spain, Gov.) wanted it to be made clear that the subsidiarity principle
means that decisions should be taken at the level most appropriate and not necessarily the lowest
level. Furthermore he and others called for a renaming of the category “exclusive competence”
so it would be called “own competences”.
Mr. MacCormick, (UK, MEP) suggested that the subsidiarity principle should be extended to
cover the category: Exclusive competence (whereas it only covers Shared Competence in the
Praesidium's draft).
It was also discussed under which category the Single Market should fall: Mr. Spini (Italy, NP)
and Mr. Brok, (Germany, MEP) argued that it should fall under “Exclusive competence”. Mr.
Duff (UK, MEP) supports this suggestion under the condition that fiscal policy was excluded
and subsidiarity applied. Ms. Hjelm-Wallén (Sweden, Gov.) wants the Single Market to be
5
under “Shared competence“ and Mr. Hololei, (Estonia, Gov.) wants it to be under the
competence of the Member State.
Common Foreign and Security Policy (CFSP)
The President of the Convention Mr. Giscard d’Estaing raised the theme of the Common
Foreign and Security policy already in his opening statement of this session in his analysis of the
serious division in Europe over the policy towards Iraq. The President thinks that had the
countries followed the Maastricht decision to reflect together before going public the division in
Europe would not have been so grave. But he also stressed that institutions are useless without
political will. Many other members of the convention supported the President in this critique of
the Member States policy and Mr. Fischer, (Germany, Gov.) called for a stronger CFSP within
stronger institutions.
In title III: Division of Competences the Common Foreign and Security Policy (CFSP) has its
own article (art. 14). Here it is stated that the Member State shall support the Unions CFSP and
refrain from action contrary to the Union’s interests. As one of the few speakers Ms. Scotland of
Asthal, (UK, Gov.) supported the Praesidium's suggestion of putting CFSP in its own article
because it shows that it is another kind of competence. But most speakers agreed with Mr.
Borrell Fontelles, (Spain, Gov.) and Mr. Carnero González (Spain, MEP) in their call for the
CFSP to fall under the exclusive competence of the Union. Also Mr Brok, (Germany, MEP)
called for the use of qualified majority voting in CFSP and Mr. Lequiller (France, NP) called for
the inclusion of a reference to the implementation of a defence policy (whereas now the article
only talks about the framing of one) was widely supported.
10 new articles on Exercising of Union competence
President Giscard d'Estaing opened the Friday session by presenting the Praesidium's suggestion
for Title V: Exercise of Union competence (art. 24-33). The drafting of these articles is based on
the suggestions by the working group on simplification chaired by Vice-president Mr. Amato.
The goal is to meet the demand from Laaken for simplification. This is done by drastically
reducing the number of instruments and removing the pillar structure so that the instruments
apply to all areas of the Constitution. There will be five instruments: legislative acts (law and
framework law), non-legislative acts (regulations and decisions), and recommendations and
opinions. The most controversial suggestion, according to Giscard d'Estaing, is a suggestion for
a delegation act making it possible to delegate certain competences from Council/Parliament to
Commission. These articles will be debate at the session 17-18 March.
Moreover two protocols, one on the National Parliaments and one on subsidiarity, were
presented.
From here to Constitution - the conventions future work
The debate over the timeframe for the conventions work was, once again, subject for debate.
Giscard d'Estaing clearly stated that the Praesidium intends to stick to the June-deadline.
Therefor the Praesidium will present the next articles in the session 17-18 March on Financing
and the Unions policies. Next, articles about the Union's institutions and democratic life will be
presented 3-4 April, and the whole draft Constitution will be presented 15-16 May. To meet the
critique from many convention delegates about the lack of time for discussion the Praesidium
further suggested informal meetings and reducing the speaking time pr. speaker to two minutes
thereby giving everybody an opportunity to voice their opinion.
Mr. Bonde (Denmark, MEP) strongly criticised both the June-deadline and the reduction of
speaking time. Instead he wants the deadline to be moved to December so that there is enough
time for debate. Giscard d'Estaing rejected this suggestion by arguing that the deadline was set
6
by the European Council and if Mr. Bonde wanted their decision changed he should go to his
national government and not the Convention.
The two first informal meetings will be held 5 March about the Union's competences (Art 8-16)
and 26 March about the definition of the Union (Art. 1-7).
7