Constitutional Treaty – key elements [Archived]

EU leaders signed the Constitutional Treaty in autumn 2004, but the ratification was stalled following the two negative votes on the text in France and the Netherlands in 2005. EU leaders are now seeking to agree to a new treaty on the basis of the constitutional provisions. This dossier outlines the key changes proposed by the Constitutional Treaty text to the current system based on the provisions of the Nice Treaty.

Currently, the EU is governed by several treaties that have been revised during its 50-year history. The three original Treaties founding the European Communities were the Treaty establishing the European Coal and Steel Community (1951), the Treaty establishing the European Community (1957) and the Treaty establishing the Atomic Energy Community (1957). The fourth founding treaty is the Treaty of Maastricht (1992) which established the European Union.

The founding treaties have been amended on several occasions: by the Merger Treaty (1965), the Single European Act (1986), the Treaty of Amsterdam (1997) and the Treaty of Nice (2001), which has been in force since 1 February 2003. The Accession Treaties signed with new Member States are additional examples of treaty amendments.

The "Treaty establishing a Constitution for Europe" (Constitutional Treaty) is a single text which replaces all the existing Treaties, with the exception of the Euratom Treaty, and gives the European Union a single legal personality under domestic and international law. [The Euratom Treaty remains in existence as a separate legal entity while sharing the same institutions.]

The Treaty of Maastricht created a new entity, the European Union, with a three-pillar structure: the Community pillar (corresponding to the three Community Treaties), the Common Foreign and Security Policy (CFSP) pillar and the justice and home affairs (JHA) pillar.

The Treaty of Amsterdam transferred to the Community pillar part of the activities covered by the third pillar, which is now limited to judicial and police co-operation in criminal matters. The main characteristics of the second and third pillars are the decision-making procedures and instruments of action which are more intergovernmental in nature than those used in the first pillar [the 'Community method'].

The Constitutional Treaty merges the three "pillars" although special procedures are maintained in the fields of foreign policy, security and defence.

For the first time in the history of treaty revisions, the transparent 'Convention method' was used to produce a draft Constitutional Treaty which was then discussed by the EU Member States in the framework of an inter-governmental conference (IGC). The Convention, which produced a draft in July 2003, brought together the main stakeholders in the debate: government representatives (of the 15 Member States and 13 candidate countries), representatives of national parliaments, the European Parliament and the Commission, observers from the Committee of the Regions and the Economic and Social Committe, as well as representatives of the European social partners and the European Ombudsman.

The constitutional treaty has been ratified by two-thirds (18) of EU member states. However, following the failed referenda on the EU Constitution in France and the Netherlands in 2005, ratification has been put on hold. However, the EU is seeking to salvage the main elements of the Constitution in a new treaty to be agreed by EU leaders.

Modifications of the Constitutional Treaty will require the unanimous agreement of the Member States. Some modifications, however, such as the extension of the scope of qualified majority voting, can be made following a unanimous decision by the European Council. 

A new exit clause will allow Member States to leave the Union.

The Constitutional Treaty consists of four parts:

  • Part I: Definition of the objectives, powers, decision-making procedures and institutions of the Union
  • Part II: The Charter of Fundamental Rights
  • Part III: Policies and actions of the Union incorporating the provisions of the current Treaties
  • Part IV: Final clauses, including the procedures for adopting and reviewing the Constitution

The Constitution simplifies the legal instruments used in EU action. The number of instruments used will be reduced to six from the 15 currently in use. These will be: laws and framework laws (legislative acts), regulations and decisions (implementing acts), recommendations and opinions (non-binding acts).

Main changes to the institutional framework

Institution Changes From when (if other than entry into force of the Treaty)
European Council
  • Becomes an institution.
  • Will be chaired by a President appointed for two and a half years, renewable once
EU Minister of Foreign Affairs
  • Merges the tasks of the High Representative for the Common Foreign and Security Policy and the External Relations Commissioner
  • Will be a member of the Commission
  • Will chair the Foreign Affairs Council
Council of Ministers
  • The presidency of the different Council formations will continue to rotate (with the exception of the External Relations Council) on an equal basis, to be decided upon by the European Council.
European Parliament
  • Maximum number of seats is raised to 750
  • Minimum number of seats per country: 6
  • Maximum number of seats per country: 96
  • Parliament's powers increased: 95 % of European laws will be adopted under the co-decision procedure (to be called the 'ordinary legislative procedure')
Parliament to propose and European Council to adopt a decision by a unanimous vote on the EP's composition before the European elections in 2009
  • One Commissioner per Member State principle maintained until 2014
  • From 2014, the number of Commissioners will be reduced to two-thirds of the number of Member States (including both its President and the EU Minister for Foreign Affairs)
  • The Commissioners will be chosen on the basis of equal rotation among the Member States
November 2014


Definition of qualified majority voting (QMV)

The European Council agreed to define qualified majority as 55 per cent (but at least 15) of the Member States representing at least 65 per cent of the EU's population. A blocking minority can be formed by at least four Member States. However, Council members representing at least three-quarters of a blocking minority (either at the level of Member States or the level of population) can demand that the Council should further discuss the issue. This measure will be applied until at least 2014 when the Council may decide to withdraw it.

Where the Council acts on its own initiative, an initiative of a Member State or on a recommendation from the Commission or the European Central Bank, qualified majority voting will be defined as 72 per cent of the Council's members representing 65 per cent of the EU's population. This occurs notably in the fields of justice and home affairs, common foreign and security policy, economic and monetary policy and in a possible future case of suspension or withdrawal of a Member State.

The document makes a special mention of areas where only some Council members have the right to vote (eg. eurozone or enhanced co-operation). In such cases, the same percentages would apply (depending on the policy area) but only to the Member States with voting rights.

Population figures: EU-27
Country Population % of population in EU-27
Germany 82.54 17.04
France 59.90 12.37
UK 59.33 12.25
Italy 57.48 11.87
Spain 40.98 8.46
Poland 38.19 7.88
Romania 21.71 4.48
Netherlands 16.26 3.35
Greece 11.05 2.28
Portugal 10.48 2.16
Belgium 10.40 2.15
Czech Republic 10.21 2.11
Hungary 10.12 2.09
Sweden 8.97 1.85
Austria 8.09 1.67
Bulgaria 7.80 1.61
Denmark 5.40 1.11
Slovakia 5.38 1.11
Finland 5.22 1.08
Ireland 4.03 0.83
Lithuania 3.45 0.71
Latvia 2.32 0.48
Slovenia 1.99 0.41
Estonia 1.35 0.28
Cyprus 0.73 0.15
Luxembourg 0.45 0.09
Malta 0.40 0.08
Total 483.44 100 %

Unanimity will continue to apply in the field of taxation, partially in the field of social policy and a number of areas in the area of foreign, security and defence policy. Laws on own resources, the financial perspectives and future revisions of the Constitution itself will have to be adopted unanimously.

Enhanced co-operation

'Permanent structured co-operation' will be put in place in the area of defence enabling a group of Member States to build closer co-operation and to jointly undertake more complex military tasks.

In the area of common foreign and security policy, Member States will be able to build 'enhanced co-operation' conditional upon a unanimous decision of the Council. The core group will then be able to decide whether to adopt qualified majority voting or the ordinary legislative procedure.

In all other areas covered by the Constitution, the Member States that wish to co-operate more closely together should request the Commission to submit a proposal to the Council specifying the scope and objectives of the co-operation. The Council grants authorisation via a European decision and after obtaining the consent of the European Parliament.

Enhanced co-operation is becoming a possibility for members of the euro-group which will be able to implement common tax policies (eg for turnover taxes or VAT harmonisation) by means of qualified majority voting.

Economic and Monetary Union

Members of the euro area will be equipped with more power to make decisions under the Constitutional Treaty. It will be up to the 'Euro-Ecofin Council' (Concil configuration comprising members of the eurozone) to adopt recommendations made to Member States that are part of the euro area as well as to approve measures related to excessive deficits. The Euro-Ecofin Council will have the first say on the accession of new countries to the EMU. Members of the euro area will have a unified representation in international financial institutions.

Area of freedom, security and justice

All areas that fall within this domain will follow the Community method. Qualified majority voting will apply to a majority of areas, including the areas of asylum, immigration and judicial co-operation in criminal matters. However, 'emergency brakes' have been inserted allowing a Member State to appeal to the European Council if it feels that its national interests are at stake. [This was introduced at the request of the UK in order to prevent that upcoming legislation infringe on the fundamental principles of its legal system].

The Constitutional Treaty enables the Council to set up the office of the European Public Prosecutor by means of a unanimous decision. The remit of the Prosecutor will initially be limited to 'combating crimes affecting the financial interests of the Union'. This can later be extended to include 'serious crime with a cross-border dimension'.

Increased transparency

Under the provisions of the Constitution one million signatures by citizens from a significant number of Member States can invite the Commission to submit an appropriate proposal to the legislator.

Council proceedings, when exercising its legislative funcion, are to be open to the public.

National parliaments will be informed about all new initiatives from the Commission. If one third of them consider that a proposal does not comply with the principle of subsidiarity, the Commission must review its proposal.

The Treaty will guarantee better protection of fundamental rights.

  • The EU Constitution was stalled following two negative referenda in France and the Netherlands in 2005.
  • So far, 18 member states (two-thirds) have ratified the text.
  • The German Presidency seeks to salvage the key elements of the constitutional treaty and set up an Intergovernmental Conference (IGC) to agree on a text for a new treaty under the Portuguese Presidency during the second half of 2007.

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