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Published online by Cambridge University Press: 27 October 2017
The convention on the Future of Europe, which came together in the spring of 2002, completed its work in June 2003. In the event, the various tasks that were set for the Convention by the Laeken Declaration of December 2001 on the Future of the European Union came to be subsumed in the overall task of devising a Constitution for the Union. A sufficient degree of consensus was achieved by the Convention to enable its President, Mr Valery Giscard d’Estaing, to present the outcome of the deliberations of the past 15 months, in the form of a Draft Treaty Establishing a Constitution for Europe, to the European Council of Thessaloniki. So it is through the proposed Constitutional Treaty (referred to hereinafter as ‘the Convention text’) that the specific objectives identified in the Nice and Laeken Declarations, such as those of re-legitimating the Union order and rendering the primary law of the Union more comprehensible to its subjects, now fall to be achieved.
1 This was annexed to the Presidency Conclusions of the European Council of Laeken. It gave concrete content to the broad remit established by the Nice Declaration of the previous December.
2 See Part III of the Laeken Declaration.
3 The composition of the Convention, fixed by the Laeken Declaration, was as follows: Chairman, Valery Giscard d’Estaing; Vice-Chairmen, Giuliano Amato and Jean-Luc Dehaene; 15 representatives of Heads of State or Government; 30 members of national Parliaments (2 per Member State); 16 members of the European Parliament; and 2 Commission representatives. The Praesidium consisted of the Chairman, Vice-Chairmen and 9 members of the Convention. There were also representatives of the countries due to accede to the Union in 2004.
4 The Cambridge text, with a commentary, has been published in (2003) 28 European Law Review 3.
5 The writer is undertaking research on the Convention process, but this remains at an early stage.
6 See Convention text, Art IV–6 (2).
7 See Dashwood, , ‘The Elements of a Constitutional Settlement for the European Union’, 4 Cambridge Yearbook of European Legal Studies (2001) 1 CrossRefGoogle Scholar.
8 Art IV–1.
9 The forerunner to Art I–15 in the Convention text.
10 The new categorisation of Union competences is further discussed below.
11 Penguin Classics, translated by Rex Warner, p 122.
12 See the Cambridge text, Art 1, second and third paragraphs: (2003) European Law Review, at p 6.
13 Emphasis added.
14 If the Commission does not rally to the Presidency compromise, the Council can act only by unanimity: see Art 250(1) EC; Art III–297 of the Convention text.
15 The legitimacy of this practice has been endorsed by the Court of justice: Case C–280/93, Germany v Council [1994] ECR I–4793, paras 35 to 37.
16 In Art I–16 of the Convention text, the areas of supporting competence comprise: industry; protection and improvement of human health; education, vocational training, youth and sport; culture; and civil protection. Art 10 of the Cambridge text also includes economic policy, employment, trans-European networks, research and (tentatively) consumer protection.
17 Art I–13 (1).
18 Comprising: internal market; area of freedom, security and justice; agriculture and fisheries, excluding the conservation of marine biological resources; transport and trans-European networks; energy; social policy ‘for aspects defined in Part Three’; economic, social and territorial cohesion; environment; consumer protection; and common safety concerns in public health matters.
19 Case 14/68, Wilhelm v Bundeskartellamt [1969] ECR 1.
20 As to this, see section VIII below, regarding Art I–10 (1) of the Convention text.
21 Case C–491/01, Ex parte British American Tobacco.
22 See the trenchant criticism of the previous version of Art I–12 by Dougan, ‘Assessing the “legal legitimacy” of the Draft Constitutional Treaty’.
23 [1977] ECR 741.
24 [1994] ECR I–5257, at paras 82 to 86.
25 Case C–467/98, Commission v Denmark, judgment of 5 November 202, not yet reported, para 57. Emphasis added.
26 At Para 86.
27 Case 22/70, Commission v Council [1971] ECR 263.
28 The initial formulation of the principle is at para 17 of the judgment.
29 Besides AETR itself, the leading cases are: Opinion 2/91 [1993] ECR I–1061; Opinion 1/94, see n 24, above; Opinion 2/92 [1995] ECR I–521; Case C–467/98, Commission v Denmark, see n 25, above. For an authoritative survey and analysis of the case law, see O’Keeffe, , ‘Exclusive, Concurrent and Shared Competence’ in Dashwood, and Hillion, (eds) The General Law of EC External Relations, p 179 Google Scholar.
30 See Opinion 1/94, para 77.
31 AETR judgment, para 21.
32 See the position taken by the Commission in the Opinion 1/94 proceedings: [1994] ECR I–5267, at 5323 to 5324 regarding the GATS, and 5336 to 5337 regarding the TRIPS.
33 The European Council is the Union’s supreme political authority, composed of Heads of State or Government, together with the Commission President (see Art 4 TEU); whereas the Council (of Ministers) is the main decision-making body, composed of representatives of each Member State, at ministerial level, who are authorised to commit the government of that Member State (see Art 203 EC).
34 Convention text, Art I–20 (4).
35 Convention text, Art I–23 (2).
36 The provisions on ‘double-hatting’ are in Convention text, Art I–27 (3).
37 EC Treaty, Art 300 (1). See Convention text, Art III–222.
38 EC Treaty, Art 300 (2). See Convention text, Art 222. The primary role of the Council in concluding Treaties on behalf of the EC was confirmed in Case C–327/91, France v Commission [1994] ECR I–3641.
39 The exclusive competence of the Community in the field of the common commercial policy was first recognised in Opinion 1/75 [1975] ECR 1355.
40 See n 24, above. The dispute was resolved by the Court in the Council’s favour.
40a See the Declaration on the Creation of a European External Action Service.
41 See Art I–1 (1), Art I–9 (2).
42 Case 6/64, [1964] ECR 585.
43 Dougan, see n 22, above, queries the wisdom of this ‘attempt to codify a principle characterised by sophisticated nuances in the case law, and extensive debate among academics’.
44 Presently laid down by Art 251EC.
45 Art III–59 of the Convention text would allow the adoption by QMV of fiscal measures relating to administrative cooperation or to combating tax fraud, but only after the Council had made a unanimous finding that the proposal in question was genuinely concerned with those matters.