administrative co unties

Treaty establishing a Constitution for Europe

The Treaty establishing a Constitution for Europe (TCE), commonly referred to as the European Constitution, was an unimplemented international treaty intended to create a constitution for the European Union. It was signed in 2004 by representatives of the 25 member states of the Union but was subject to ratification by all member states. Most of them did so, by parliamentary ratification or by referendum, but two member states (France and the Netherlands) rejected it in referenda. Its main aims were to replace the overlapping set of existing treaties (see Treaties of the European Union) that compose the Union's current informal constitution, to codify human rights throughout the EU and to streamline decision-making in what is now a 27-member organisation.

The TCE was signed in Rome by representatives of the member states on 29 October 2004, and was in the process of ratification by the member states when, in 2005, French (29 May) and Dutch (1 June) voters rejected the treaty in referenda. The failure of the treaty to win popular support in these two countries caused some other countries to postpone or halt their ratification procedures, and the European Council (of heads of government of the Member States) to call a "period of reflection". Had it been ratified by all Member States, the treaty would have come into force on 1 November 2006. In perspective, 18 member states ratified the text (three by referendum: Spain, Luxembourg and Romania) while 7 postponed the ratification process after the 2 rejections.

Following the period of reflection, the European Council meeting in June 2007 decided to start negotiations on a Reform Treaty as a replacement.



The TCE took as its starting point the codification of the EU's two primary existing treaties, the Treaty of Rome of 1957 and the Maastricht treaty of 1992, as modified by the treaties of Amsterdam (1997) and Nice (2001). The current debate on the future of Europe is often said to have been given a major push by a speech made by German Foreign Minister Joschka Fischer in Berlin in 2000, calling for a debate on the finality of European integration.

The process started following the Laeken declaration in December 2001, when the European Convention was established to produce a draft of the Constitution, chaired by former French President Valéry Giscard d'Estaing. Giscard d'Estaing told the convention members that their countrymen would one day "build statues of you on horseback in the villages you all come from", a comment which provoked widespread derision, particularly when the unpopularity of the draft in Giscard's own country became clear. The "Draft Treaty establishing a Constitution for Europe" was published in July 2003.

In the meanwhile Romano Prodi, the President of the European Commission backed a draft text, called Penelope Project, which contained a deeper integration of the countries and a more clear institutional model.

After protracted negotiations in the Intergovernmental Conference (IGC) during italian presidency, disputes arose over the proposed framework for qualified majority voting: the final text of the TCE was settled in June 2004 under the irish presidency.


The Treaty establishing a Constitution for Europe was signed in Rome on 29 October 2004 by 53 senior political figures from the 25 member states of the European Union. In most cases heads of state designated plenipotentiaries to sign the treaty, but some presidents also signed on behalf of states which were republics. Most designated plenipotentiaries were prime ministers and foreign ministers.


It was initially expected that almost all member states (besides Ireland which generally, but not always, must hold a referendum on EU treaties due to Article 29.4.10 of the Constitution of Ireland and an Irish Supreme Court decision) would ratify the TCE by a parliamentary or other high political process, which would be quite straightforward, given the support of all ruling governments and its approval by an overwhelming majority in the European Parliament (Report by Richard Corbett and Íñigo Méndez de Vigo). Indeed, the number of EU countries that approved the treaty by a parliamentary vote now forms a large majority. However, unanimity is required before any new treaty can come into force.

The first country to attempt a test of public opinion in a popular referendum was Spain. The TCE was approved in the referendum vote by almost 77% of the votes, although participation was around 43%.

In the United Kingdom, however, Prime Minister Tony Blair unexpectedly promised a referendum on 20 April 2004. The anti-treaty Conservatives and the pro-treaty Liberal Democrats were both in favour of a referendum. Together, these two parties had a majority in the House of Lords. The Lords could have delayed ratification until after the general election. If that happened, Labour would have been in the uncomfortable position of being the only party against a referendum. The promise of a British referendum put pressure on French President Jacques Chirac, who also then promised a referendum in France.

The TCE was signed in a ceremony at Rome on 29 October 2004. Before it enters into force, however, it must be ratified by each member state. Ratification takes different forms in each country, depending on its traditions, constitutional arrangements, and political processes. In several member states, the head of state is also required to approve the TCE once it has been approved by parliament or referendum. The President of Germany has not yet done so, due to a pending legal challenge over the way ratification was handled without a referendum. Slovakia's president has also not yet approved the constitution following a request from the country's Constitutional Court.

On 12 January 2005 the European Parliament voted a legally non-binding resolution in support of the TCE by 500 votes in favour to 137 votes against, with 40 abstentions.

Lithuania, Hungary, Slovenia, Italy, Greece, Slovakia, Austria, Germany, Latvia, Cyprus, Malta, Belgium, Estonia, Finland, Bulgaria and Romania have already completed parliamentary ratification of the TCE.

Ten of the 27 member states had announced their intention to hold a referendum on the subject. In some cases, the result would be legally binding; in others it would be consultative (as was the case in the Netherlands). Five referenda have now taken place, resulting in Spain, Luxembourg and Romania ratifying the TCE, and it being rejected in France and the Netherlands. While the referendum in the Netherlands was consultative only, the Dutch government had pledged that it would not ratify.

Since the French vote, some EU countries have confirmed their intention to abandon or postpone referenda on ratification, including the United Kingdom, where then Foreign Secretary Jack Straw has said there is "no point" in planning a referendum following the decisions in France and the Netherlands. Other countries have continued with ratification procedures, including Luxembourg, which approved the treaty in a referendum on 10 July 2005 albeit the result was very narrowly in favour.

On 15 September 2005, MEPs Johannes Voggenhuber of the Austrian Green Party and Andrew Duff of the Liberal Democrats suggested the following plan of action:

  • before the end of 2006, write a strongly reduced treaty containing only the non-controversial points (i.e., charter of fundamental rights, European referendum, the principle of "no law without parliament").
  • before the end of 2009, a new constitutional convention should decide on a new European Constitution, especially regarding the "favoured social system" and the Common Foreign and Security Policy.
  • together with the elections for European Parliament in 2009, a European referendum on the constitutional treaty should be called.

Their proposal was not followed by the European Parliament, which preferred to keep options open during the "period of reflection" that member states had agreed following the negative referendum results, in its resolution passed by on 19 January 2006 by 385 in favour to 125 against.

In 2007, Member States agreed to abandon the constitution and to amend the existing treaties, which would remain in force. At the European Council meeting of June 2007, they agreed a detailed mandate for a new intergovernmental conference (IGC) to negotiate a new treaty containing such amendments to the existing treaties (primarily the Treaty of Rome and the Treaty bof Maastricht). These negotiations were completed by the end of the year and Member States signed the new Treaty in Lisbon at the end of 2007. It is known as the "Reform treaty" or "Treaty of Lisbon" and is currently (early 2008) subject to national ratification.

National processes at a glance

Member state Date Result

Deposition with Italian Government
11 November 2004 . Seimas: 84 to 4 in favour, 3 abstentions. 17 December 2004
20 December 2004 . Országgyűlés: 323 to 12 in favour, 8 abstention. 30 December 2004
1 February 2005 . Državni zbor: 79 to 4 in favour, 0 abstentions. 9 May 2005
25 January 2005
6 April 2005
. Camera dei Deputati: 436 to 28 in favour, 5 abstentions.
. Senato della Repubblica: 217 to 16 in favour, 0 abstentions.
25 May 2005

28 April 2005
18 May 2005
. Consultative referendum: 76.73% to 17.24% in favour, 6.03% blanks, 42.32% participation.
. Congreso de los Diputados: 311 to 19 in favour, 0 abstentions.
. Senado: 225 to 6 in favour, 1 abstention.
15 June 2005
11 May 2005
25 May 2005
. Nationalrat: Approved by show of hands with 1 against.
. Bundesrat: Approved by show of hands with three against.
17 June 2005
19 April 2005 . Βουλή των Ελλήνων: 268 to 17 in favour, 15 abstentions. 28 July 2005
6 July 2005 . Il-Kamra: Agreed without a division. 2 August 2005
30 June 2005 . Βουλή των Αντιπροσώπων: 30 to 19 in favour, one abstention. 6 October 2005
2 June 2005 . Saeima: 71 to 5 in favour, six abstentions. 3 January 2006
10 July 2005
25 October 2005
. Consultative referendum: 56.52% to 43.48% in favour, 87.77% participation.
. Châmber: 57 to 1 in favour, no abstentions.
30 January 2006
28 April 2005
19 May 2005
17 June 2005
20 June 2005
29 June 2005
19 July 2005
8 February 2006
. Senaat/Sénat: 54 to 9 in favour, one abstention.
. Kamer/Chambre: 118 to 18 in favour, one abstention.
. Parlement Bruxellois/Brussels Hoofdstedelijk Parlement: 70 to 10 in favour, 0 abstentions.
. Parlament der Deutschsprachigen Gemeinschaft: 21 to 2 in favour, no abstentions.
. Parlement wallon: 55 to 2 in favour, 0 abstention.
. Parlement de la Communauté française: 79 to 0 in favour, no abstentions.
. Vlaams Parlement: 84 to 29 in favour, one abstention.
13 June 2006
9 May 2006 . Riigikogu: 73 to 1 in favour, no abstentions. 26 September 2006
1 January 2007 . Due to the provisions of Treaty of Accession 2005 Not required
1 January 2007 . Due to the provisions of Treaty of Accession 2005 Not required
11 May 2005 . Národná rada: 116 to 27 in favour, four abstentions. Pending. President of the republic has not yet signed the law.
12 May 2005
27 May 2005
. Bundestag: 569 to 23 in favour, two abstentions.
. Bundesrat: 66 to 0 in favour, three abstentions.
Pending. President of the republic has not yet signed the law (due to pending decisions of the Constitutional Court).

incl. Åland
5 December 2006
. Eduskunta/Riksdag: 125 to 39 in favour, four abstentions.
29 May 2005
. Referendum: 54.68% to 45.32% against, 69.34% participation.
Assemblée Nationale:
1 June 2005
. Consultative referendum: 61.54% to 38.46% against, 63.30% participation.
Tweede Kamer:
Eerste Kamer:
Poslanecká sněmovna:
Dáil Éireann:
Seanad Éireann:
Assembleia da Republica:
Cancelled Riksdag:
House of Commons:
House of Lords:


The rejection of the constitution in the referendums in France and the Netherlands made the TCE's future and the implementation of its provisions highly uncertain, provoking a crisis of confidence in the project which resulted, at least initially, in a degree of strategic paralysis. However, despite the enlargement of the Union to 27 states, it has continued to function without the TCE, the reforms agreed in the Treaty of Nice being particularly important in this respect. A long-planned referendum in Luxembourg went ahead after the defeats in the Netherlands and France, but even there the majority in favour of TCE was unexpectedly narrow. No other country has pursued plans for a referendum, including the United Kingdom. It was considered increasingly uncertain that such referenda could secure support for the TCE in the political climate following the French and Dutch rejections.

In France, rejection was considered a humiliation for then president Jacques Chirac. The TCE was rejected both by right-wing proponents of national sovereignty, such as Charles Pasqua and Philippe de Villiers, and by the anti-globalisation movement, gathered around Socialist Party MP Laurent Fabius, the Communist Party, the Revolutionary Communist League and the Workers' Struggle party. The Socialist party, which had come out in favour after an internal referendum of all its members, saw some of its supporters follow Laurent Fabius instead of its leader François Hollande.

British Prime Minister Tony Blair supported the TCE and said he would campaign for its ratification in any British referendum. But after its rejection by the voters of France and the Netherlands, he stated in a speech in Oxford in February 2006 that

We locked ourselves in a room at the top of the tower and debated things no ordinary citizen could understand. And yet I remind you the Constitution was launched under the title of 'Bringing Europe closer to its citizens'.
He went on:
The evening of the French result, I remember being in Italy with friends, and someone saying, in despair at the vote: 'What's wrong with them?', meaning those who voted 'no'. I said, 'I'm afraid the question is: 'What's wrong with us?', meaning 'us' the collective political leadership of Europe.
As of June 2007, when the Reform Treaty emerged as one solution to overcome the failed European Constitution, Austria, Belgium, Bulgaria, Cyprus, Estonia, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Romania, Slovenia and Spain had already ratified the constitutional treaty, either at parliamentary level or by referendum (Spain, Romania and Luxembourg held referenda, with clear majorities in favour). Finland, Germany and Slovakia completed parliamentary procedures required for ratification. The other member states had postponed ratification of EU constitution indefinitely after French/Dutch rejection. In total, 18 member states ratified or nearly ratified the text, 7 postponed the ratification process, and 2 rejected the text.

Possible adjustments

The TCE's rejection by France and the Netherlands sent shock waves through Europe, since these countries had been regarded as committed members of the European project. The failure of the TCE to win popular support in those countries forced a re-examination of the constitutional question.

Four options presented themselves. One was to do nothing for the time being in order to allow the dust to settle; this seemed to be the position favoured by the United Kingdom and Germany. A second was to attempt to persuade opponents to accept the TCE in its existing, or substantially in its existing, form; this appeared to be the ambition of Austria during its presidency of the Union, but it was persuaded that this was unrealistic. Another was to re-draft the TCE comprehensively so as to make it more palatable; however, there was no desire in any country to start from scratch. Finally, French president Jacques Chirac proposed to German Chancellor Angela Merkel to "cut it piece by piece", in other words, to bring in parts only of the existing draft, so as to make the document more digestible and the process less controversial, but Merkel apparently thought it better to wait until 2007, when Germany was President of the European Council. In June 2006, Italian prime minister Romano Prodi said that he believed the treaty would be significantly revised, but that it should not take place until after the French presidential election, 2007.

The Amato Group presented its proposal to replace the current Treaty on European Union, to amend the current Treaty establishing the European Community and to give the current Charter of Fundamental Rights of the European Union a legally binding status on 4 June 2007. The June 2007 European summit discussed the future of the European Constitution. The German presidency has proposed that a Reform Treaty instead of a constitution should be adopted.


Institutional structure

Under the TCE, the Council of the European Union would have been formally renamed the "Council of Ministers", which is already its informal title. The "General Affairs Council" would have been formally split from the "Foreign Affairs Council", which had informally held meetings separately since June 2002.

The TCE included a flag, an anthem and a motto, which had previously not had treaty recognition, although none of them are new.

Conferral, subsidiarity, proportionality

The TCE would have reiterated several key principles of how the Union functions:

  • the principle of conferral: that all EU competences are conferred on it voluntarily by member states;
  • the principle of subsidiarity: that governmental decisions should be taken at the lowest level possible while still remaining effective;
  • the principle of proportionality: that the EU may only act to exactly the extent that is needed to achieve its objectives;
  • the primacy of EU law: in areas where member states have made legally binding agreements at EU level, they may not then pass national laws incompatible with those EU laws.

The TCE would have specified that the EU is a union of member states, and that all its competences (areas of responsibility) are voluntarily conferred on it by its member states according to the principle of conferral. The EU would have no competences by right, and thus any areas of policy not explicitly specified in the Constitution would have remained the domain of the sovereign member states (notwithstanding the ‘flexibility clause' – see below).

According to the TCE, the EU may act (i.e. make laws) only where its member states agree unanimously that actions by individual countries would be insufficient. This is the principle of subsidiarity, and is based on the legal and political principle that governmental decisions should be taken as close to the people as possible while still remaining effective. It is a main argument against claims that Europe limits national sovereignty but critics say that it is a principle to which lip service only is paid, and, in practice, the reach of the EU has been increasingly ambitious.

Primacy of Union law

Amongst European countries, the European Court of Justice has consistently ruled since 1964 that EU law has primacy over the laws of member states in the areas where member states allow it to legislate. National law which is incompatible with an agreement already made at European level is deemed to be 'disapplied' when questions arise in courts. This controversial and fundamental principle of European Community law was first recognised in the case of Van Gend en Loos in 1963 which was followed in Costa v. ENEL in 1964.

Common values of the Union's member states

As stated in Treaty establishing a Constitution for Europe: Part I#Article I-1: Establishment of the Union and Treaty establishing a Constitution for Europe: Part I#Article I-2: The Union.27s values, the Union is open to all European States that respect the member states' common values, namely:

Member states also declare that the following principles prevail in their society:

Some of these provisions are codified for the first time in the TCE.

Aims of the Union

The aims of the EU, according to the TCE, are made explicit (Treaty establishing a Constitution for Europe: Part I#Article I-3: The Union.27s objectives):

In its relations with the wider world the Union's objectives are:

  • to uphold and promote its values and interests
  • to contribute to peace, security, the sustainable development of the Earth
  • solidarity and mutual respect among people
  • free and fair trade
  • eradication of poverty and the protection of human rights, in particular the rights of the child
  • strict observance and development of international law, including respect for the principles of the United Nations Charter.

Scope of the Union


The EU has six exclusive competences, policy areas in which member states have agreed that they should act exclusively through the EU and not legislate at a national level. The list remains unchanged from the previous treaties:

  • customs union;
  • those competition rules that govern the internal market;
  • eurozone monetary policy;
  • conservation of marine biological resources (the Common Fisheries Policy);
  • common commercial policy;
  • the conclusion of certain limited international agreements.

There are a number of shared competences. These are areas in which member states agree to act individually only where they have not already acted through the EU, or where the EU has ceased to act (though these are areas where member states may act both nationally and through the EU if they wish). Three new competences have been added to those in previous treaties (see below).

There are a number of areas where the EU may take only supporting, coordinating or complementary action. In these areas, member states do not confer any competences on the Union, but they agree to act through the Union in order to support their work at national level. Again, three new competences have been added to those from previous treaties (see below).

Flexibility clause

The TCE's flexibility clause allows the EU to act in areas not made explicit in the TCE, but only:

  • if all member states agree;
  • with the consent of the European Parliament; and
  • where this is necessary to achieve an agreed objective under the TCE.

This clause has been present in EU law since the original Treaty of Rome, which established the EEC in 1958.

Common foreign and security policy

The EU is charged with defining and implementing a common foreign and security policy in due time. The wording of this article is taken from the existing Treaty on European Union.

New provisions

Legal personality

The European Union for the first time has legal personality under the TCE. This means that it is able to represent itself as a single body in certain circumstances under international law. Most significantly, it is able to sign treaties as a single body where all its member states agree.

New competences

The TCE would have conferred upon the EU as new 'shared competences' the areas of territorial cohesion, energy, and space. These are areas where the EU may act alongside its individual member states. The EU has conferred upon it as new areas of 'supporting, coordinating or complementary action' the areas of tourism, sport, and administrative co-operation.

Criminal justice proceedings

Member states would have continued to co-operate in some areas of criminal judicial proceedings where they agree to do so, as at present. Under the TCE, seven new areas of co-operation would have been added:

Solidarity clause

The new solidarity clause of the TCE specifies that any member state which falls victim to a terrorist attack or other disaster will receive assistance from other member states, if it requests it. The type of assistance to be offered is not specified. Instead, the arrangements will be decided by the Council of Ministers should the situation arise.

European Public Prosecutor

Provision exists for the creation of a European Public Prosecutor's Office, if all member states agree to it and if the European Parliament gives its consent.

Charter of Fundamental Rights of the European Union

The TCE includes a copy of the Charter already agreed to by all EU member states. This is included in the Constitution so that EU institutions themselves are obliged to conform to the same standards of fundamental rights. At the time of the Charter's original agreement, the British Government said that it did not have binding effect. Incorporation into TCE would have put its importance beyond doubt.


Simplified jargon and legal instruments

The TCE makes an effort to simplify jargon and reduce the number of EU legal instruments (ways in which EU countries may act). However, it is a long document couched in obscure and technical terms, which proved unpopular when presented (for example) to French voters in their referendum on the TCE.

The TCE unifies legal instruments across areas of policy (referred to as pillars of the European Union in previous treaties). Specifically:

  • 'European Regulations' (of the Community pillar) and 'Decisions' (of the Police and Judicial Co-operation in Criminal Matters (PJC) pillar) both become referred to as European laws.
  • 'European Directives' (of the Community pillar) and 'Framework Decisions' (of the PJC pillar) both become referred to as European framework laws.
  • 'Conventions' (of the PJC pillar) are done away with, replaced in every case by either European laws or European framework laws.
  • 'Joint actions' and 'Common positions' (of what is now the Common Foreign and Security Policy Pillar) are both replaced by Decisions.

Position of Union Minister for Foreign Affairs

Under the TCE, the present role of High Representative for the Common Foreign and Security Policy would be amalgamated with the role of the Commissioner for External Relations. This would create a new Union Minister for Foreign Affairs who would also be a Vice President of the Commission. This individual would be responsible for co-ordinating foreign policy across the Union, representing the EU abroad in areas where member states agree to speak with one voice.

Functioning of the institutions

Qualified majority voting

More day-to-day decisions in the Council of Ministers would be to be taken by qualified majority voting, requiring a 55% majority of members of the Council representing a 65% majority of citizens. (The 55% is raised to 72% when the Council acts on its own initiative rather than on a legislative proposal from the Commission or the Union Minister for Foreign Affairs.) The unanimous agreement of all member states would only be required for decisions on more sensitive issues, such as tax, social security, foreign policy and defense.

President of the European Council

The six-month rotating Presidency of the European Council would switch to a chair chosen by the heads of government, in office for 2½ years and renewable once. The role itself would remain administrative and non-executive, but rather than the Presidency being held by a member state as at present, it would be held by an individual elected by and accountable to the Council.

President of the Council of Ministers

The six-month rotating Presidency of the Council of Ministers, which currently coincides with the Presidency of the European Council, would be changed to an 18-month rotating Presidency shared by a trio of member countries, in an attempt to provide more continuity. The exception would be the Council's Foreign Affairs configuration, which would be chaired by the newly-created Union Minister for Foreign Affairs.

Smaller Commission

The Commission would be reduced in size from 27 to 15 by the year 2014. There would be fewer Commissioners, with member states taking it in turn to nominate Commissioners two times out of three.

Parliamentary power and transparency

  • President of the Commission: The candidate for President of the European Commission would be proposed by the European Council, after consultation with MEPs, and would be elected by the European Parliament. Parliament would have the final say.
  • Parliament as co-legislature: The European Parliament would acquire equal legislative power under the codecision procedure with the Council in virtually all areas of policy. Previously, it had this power in most cases but not all.
  • Meeting in public: The Council of Ministers would be required to meet in public when debating all new laws. Currently, it meets in public only for texts covered under the Codecision procedure.
  • Budget: The final say over the EU's annual budget would be given to the European Parliament. Agricultural spending would no longer be ring-fenced, and would be brought under the Parliament's control.
  • Role of national parliaments: Member states' national parliaments would be given a new role in scrutinising proposed EU laws, and would be entitled to object if they feel a proposal oversteps the boundary of the Union's agreed areas of responsibility. If the Commission wishes to ignore such an objection, it would be forced to submit an explanation to the parliament concerned and to the Council of Ministers.
  • Popular mandate (aka initiative): The Commission would be invited to consider any proposal "on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Constitution" which has the support of one million citizens. The mechanism by which this would be put into practice has yet to be agreed. (See Treaty establishing a Constitution for Europe: Part I#Article I-46: The principle of representative democracy for details.)

Further integration, amendment and withdrawal

Enhanced co-operation

There would be a tightening of existing rules for 'enhanced cooperation', where some member states would have chosen to act together more closely and others not. A minimum of one third of member states would now be forced to participate in any enhanced cooperation, and the agreement of the European Parliament is needed. The option for enhanced cooperation would also be widened to all areas of agreed EU policy.

Treaty revisions

Previously, alteration of treaties was decided by unanimous agreement of the European Council in private meeting. Proponents of the TCE claim that any amendments to the Constitutional treaty will involve the convening of a new Convention, similar to that chaired by Valéry Giscard d'Estaing in drafting the TCE. This process may be bypassed if the European Parliament agrees, in which case, the final say on adopting proposals will rest with the European Council, who must agree unanimously. However, small revisions (switching from unanimity voting to qualified majority voting in specific policy areas) can be made by the European Council through the so-called 'Passerelle Clause' (Treaty establishing a Constitution for Europe: Part IV – General and Final Provisions#Article IV-444: Simplified revision procedure) if every member state agrees.

Withdrawal clause

A new clause in the TCE allows for the withdrawal of any member state without renegotiation of the TCE or violation of treaty commitments (clause I-60). Under this clause, when a country notifies the Council of its intent to withdraw, a settlement is agreed in the Council with the consent of Parliament. If negotiations are not agreed within two years, the country leaves anyway. The process described is a formalisation of the process which Greenland used to leave the EC in 1985.

See also


External links

Media overviews

Monitoring reports

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