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.
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.
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.
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.
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.
|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).|
| 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. |
| 1 June 2005|
| . Consultative referendum: 61.54% to 38.46% against, 63.30% participation. |
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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.
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.
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.
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.
In its relations with the wider world the Union's objectives are:
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).
This clause has been present in EU law since the original Treaty of Rome, which established the EEC in 1958.
The TCE unifies legal instruments across areas of policy (referred to as pillars of the European Union in previous treaties). Specifically: