ARTICLES 24-33 AND THE PROTOCOLS OF THE DRAFT "EUROPEAN CONSTITUTION"

Thursday 6 March 2003

The Praesidium's draft 'European Constitution' is shown on the left and Timothy Kirkhope's alternative simplifying Treaty is shown on the right.

PRAESIDIUM

TIMOTHY KIRKHOPE MEP

TITLE V: EXERCISE OF UNION COMPETENCE

TITLE V: EXERCISE OF COMMUNITYCOMPETENCE

Article 24: The legal acts of the Union

1. In exercising the competences conferred on it in the Constitution, the Union shall use as legal instruments, in accordance with the provisions of Part Two, European laws, European framework laws, European regulations, European decisions, recommendations and opinions.

A European law shall be a legislative act having general application. It shall be binding in its entirety and directly applicable in all Member States.

A European framework law shall be a legislative act which shall be binding, as to the result to be achieved, on the Member States to which it is addressed, but shall leave the national authorities entirely free to choose the form and means of achieving that result.

A European regulation shall be a non-legislative act having general application for the implementation of legislative acts and of certain specific provisions of the Constitution. It shall be binding in its entirety and directly applicable in all Member States.

A European decision shall be a non-legislative act, binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.

Recommendations and opinions adopted by the institutions shall have no binding force.

Article 24: The legal acts of the Community

1. In exercising the competences conferred on it in the simplifying Treaty, the Community shall use as legal instruments, in accordance with the provisions of Part Two, European Community laws and European Community opinions.

A European Community law shall be a legislative act having general application. It shall be binding in its entirety and directly applicable in all Member States.

European Community opinions adopted by the institutions shall have no binding force.

2. When considering proposals for legislative acts, the European Parliament and the Council shall refrain from adopting acts not provided for by the Constitution.

2. When considering proposals for European Community laws or European Community opinions, the European Parliament and the Council shall refrain from adopting acts not provided for by the simplifying Treaty.

Explanation: Restricting the available legal instruments to binding European Community laws and non-binding European Community opinions would improve accountability in the Community.

Article 25: Legislative acts

1. European laws and European framework laws shall be adopted, on the basis of proposals from the Commission, jointly by the European Parliament and the Council in accordance with the rules of the legislative procedure referred to in Article X (Part Two of the Constitution). If the two institutions cannot reach agreement on an act, it shall not be adopted.

Specific provisions shall apply in the cases referred to in Article Z (ex-third pillar).

Article 25: Legislative acts

1. European Community laws shall be adopted, on the basis of proposals from the European Parliament, jointly by the Parliament and the Council in accordance with the rules of the legislative procedure referred to in Article X (Part Two of the simplifying Treaty).If the two institutions cannot reach agreement on an act, it shall not be adopted.
2. In the specific cases provided for by the Constitution, European laws and European framework laws shall be adopted by the Council. DELETE
3. When acting under any procedure for the adoption of a European law or a European framework law, the European Parliament and the Council shall meet in public. 3. When adopting a European Community law, the European Parliament and the Council shall meet in public.

Article 26: Non-legislative acts

The Council and the Commission as well as the European Central Bank, shall adopt European regulations or European decisions in the cases referred to in Articles 27 and 28 and in cases specifically laid down in the Constitution.

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Article 27: Delegated regulations

1. European laws and European framework laws may delegate to the Commission the power to enact delegated regulations in order to supplement or amend certain non-essential elements of the law or framework law.

The objectives, content, scope and duration of the delegation shall be explicitly defined in the laws and framework laws. A delegation may not cover the essential elements of an area. These shall be reserved for the law or framework law.

2. The conditions of application to which the delegation is subject shall be explicitly determined in the law or framework law; they shall consist of one or more of the following possibilities:

Ò the European Parliament and the Council may decide to revoke the delegation;

Ò the delegated regulation may enter into force only if no objection has been expressed by the European Parliament or the Council within a period set by the law or framework law;

Ò the provisions of the delegated regulation are to lapse after a period set by the law or framework law. They may be extended, on a proposal from the Commission, by decision of the European Parliament and of the Council.

For the purposes of the preceding paragraph, the European Parliament shall act by a majority of its members, and the Council by a qualified majority.

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Article 28: Implementing acts

1. Member States shall adopt all measures of national law necessary to implement the Union's legally binding acts.

2. Where uniform conditions for the implementation of the Union's binding acts are needed, those acts may confer implementing powers on the Commission or in specific cases and in the cases provided for in Article (CFSP), on the Council.

Article 28: Implementing acts

1. Member States shall adopt all measures of national law necessary to implement European Community law subject to the approval of their national Parliament.

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3. Implementing acts of the Union may be subject to control mechanisms which shall be consonant with principles and rules laid down in advance by the European Parliament and the Council in accordance with the legislative procedure. 3. The implementation of European Community law in each Member State shall be subject to the scrutiny of a joint committee of national MEPs and MPs before being voted on by the National Parliament.

Explanation: A joint committee of MPs and MEPs is needed to oversee the transposition of European Community law in order to prevent Îgold platingÌ by national governments. The Belgian Chamber of Representatives has an Advisory Committee on European Affairs made up of 10 MPs and 10 MEPs and the German Bundestag has a Committee where MEPs are entitled to propose subjects for discussion and to give opinions on the proposals discussed. The Greek Parliament also has a similar arrangement. Similar joint committees would ensure that this Îbest practiceÌ spreads across the Community.
4. Implementing acts of the Union shall take the form of European implementing regulations or European implementing decisions.  

Article 29: (Common foreign and security policy)

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Article 30: (Common defence policy)

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Article 31: (Police and criminal justice policy)

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Article 32: Principles common to acts of the Union

Article 32: Principles for European Community laws and opinions
1. Unless the Constitution contains a specific stipulation, the institutions shall decide, in compliance with the procedures applicable, on the type of act to be adopted in each case, in accordance with the principle of proportionality set out in Article 8. 1. Unless the simplifying Treaty contains a specific stipulation, the institutions shall decide, in compliance with the procedures applicable, on whether a European Community law or a European Community opinion is more appropriate, in accordance with the principle of proportionality set out in Article 8.
2. European laws, European framework laws, European regulations and European decisions shall state the reasons on which they are based and shall refer to any proposals or opinions required by this Constitution. 2. European Community laws and European Community opinions shall state the reasons on which they are based and shall refer to any proposals or opinions required by this simplifying Treaty.
Article 33: Publication and entry into force Article 33: Publication and entry into force

1. European laws and European framework laws adopted in accordance with the legislative procedure shall be signed by the President of the European Parliament and by the President of the Council. In other cases they shall be signed by the President of the Council. European Union laws and European Union framework laws shall be published in the Official Journal of the European Union and shall enter into force on the date specified in them or, in the absence of such a stated date, on the twentieth day following that of their publication.

1. European Community laws and opinions adopted in accordance with the legislative procedure shall be signed by the President of the European Parliament and by the President of the Council. European Community laws shall be published in the Official Journal of the European Community and shall enter into force on the date specified in them or, in the absence of such a stated date, on the twentieth day following that of their publication.
2. European regulations of the Commission or of the Council and European decisions which do not specify those to whom they are addressed or which are addressed to all Member States shall be published in the Official Journal of the European Union and shall enter into force on the date specified in them or, in the absence of such a stated date, on the twentieth day following that of their publication. DELETE
3. Other decisions shall be notified to those to whom they are addressed and shall take effect upon such notification. DELETE

PRAESIDIUM

TIMOTHY KIRKHOPE MEP
DRAFT PROTOCOL ON THE APPLICATION OF THE PRINCIPLES OF SUBSIDIARITY AND PROPORTIONALITY DRAFT PROTOCOL ON THE APPLICATION OF THE PRINCIPLES OF SUBSIDIARITY AND PROPORTIONALITY
THE HIGH CONTRACTING PARTIES,

WISHING to ensure that decisions are taken as closely as possible to the citizens of the Union.

RESOLVED to establish the conditions for the application of the principles of subsidiarity and proportionality, as enshrined in Article 8 of the Constitution, and to establish a system for monitoring the application by the institutions of those principles.

HAVE AGREED UPON the following provisions, which shall be annexed to the Constitution:

 THE HIGH CONTRACTING PARTIES,

WISHING to ensure that decisions are taken as closely as possible to the citizens of the Community.

RESOLVED to establish the conditions for the application of the principles of subsidiarity and proportionality, as enshrined in Article 8 of the simplifying Treaty, and to establish a system for monitoring the application by the institutions of those principles.

HAVE AGREED UPON the following provisions, which shall be annexed to the simplifying Treaty:
1. Each institution shall ensure constant respect for the principles of subsidiarity and proportionality, as laid down in Article 8 of the Constitution. 1. Each institution shall ensure constant respect for the principles of subsidiarity and proportionality, as laid down in Article 8 of the simplifying Treaty.
2. Before proposing legislative acts, the Commission shall consult widely, except in cases of particular urgency or confidentiality. Such consultations shall, where appropriate, take into account the regional and local dimension of the action envisaged. 2. The European Parliament shall have the right of initiative.

Explanatory note: The simplifying Treaty should move power away from the unelected EU Institutions to the elected ones. As part of this process, the right of initiative should reside with the European Parliament and the European Council rather than the European Commission. National parliaments, national governments, civil society and members of the public should have the right to propose legislative changes to Members of the European Parliament who can then debate whether to carry them forward. This would revitalise debate, quell voter apathy and reduce the democratic deficit.
3. The Commission shall send all its legislative proposals and its amended proposals to the national parliaments of the Member States at the same time as to the Union legislator. The European Parliament and the Council shall send their legislative resolutions and common positions respectively, upon adoption, to the national parliaments of the Member States. 3.The European Parliament shall send all legislative proposals agreed to by a majority vote to the European Council who will then decide, by qualified majority, which should be debated by national parliaments.

Footnote: Legislative proposals under the exclusive competence of the Community (Article 11) require a qualified majority of the national parliaments to become a European Community law or opinion. Proposals under the shared competence of the Community (Article 12) or areas for supporting action (Article 15) shall require the unanimous support of the national parliaments for approval. Proposals rejected as European Community laws or opinions can be adopted by individual Member States on a bilateral basis.
4. The Commission shall justify its proposal with regard to the principle of subsidiarity. Any legislative proposal should contain a detailed statement making it possible to appraise compliance with the principle of subsidiarity. This statement should contain some assessment of the proposal's financial impact and, in the case of a framework law, of its implications for the rules to be put in place by Member States, including, where necessary, the regional legislation. The reasons for concluding that a Union objective can be better achieved at Union level must be substantiated by qualitative and, wherever possible, quantitative indicators. The Commission shall take account of the need for any burden, whether financial or administrative, falling upon the Union, national governments, regional or local authorities, economic operators and citizens, to be minimised and commensurate with the objective to be achieved. 4. The European Parliament shall justify its proposal to the European Council with regard to the principle of subsidiarity. Any legislative proposal should contain a detailed statement making it possible to appraise compliance with the principle of subsidiarity. This statement should contain an assessment of the proposalÌs financial impact. The reasons for concluding that a Community objective can be better achieved at Community level must be substantiated by qualitative and, wherever possible, quantitative indicators. The Parliament shall take account of the need for any burden, whether financial or administrative, falling upon the Community, national governments, regional or local authorities, economic operators and citizens, to be minimised and commensurate with the objective to be achieved.
5. Any national parliament of a Member State may, within six weeks from the date of transmission of the Commission's legislative proposal, send to the Presidents of the European Parliament, the Council and the Commission a reasoned opinion stating why it considers that the proposal in question does not comply with the principle of subsidiarity. It will be for each national parliament to make the internal arrangements for consulting each chamber in the case of bicameral parliaments and/or, where appropriate, regional parliaments with legislative powers. 5. Any national parliament of a Member State may, within six weeks from the date of transmission of a European Parliament proposal approved by the European Council, send to a Mediating Committee a reasoned opinion stating why it considers that the proposal in question does not comply with the principle of subsidiarity. It will be for each national parliament to make the internal arrangements for consulting each chamber in the case of bicameral parliaments and/or, where appropriate, regional parliaments with legislative powers.

Explanation: The Mediating Committee shall be composed of representatives of the national Parliaments concerned, the European Parliament and the European Council. The details of the precise composition of the Mediating Committee, what the remit of the Committee should be and how legislation should be referred back to other national parliaments can, of course, be debated.
6. The European Parliament, the Council and the Commission shall take account of the reasoned opinions of the national parliaments. 

Where at least one third of national parliaments issue reasoned opinions on the Commission proposal's non-compliance with the principle of subsidiarity, the Commission shall review its proposal. After such review, the Commission may decide to maintain, amend or withdraw its proposal. The Commission shall give reasons for its decision.

 6. The Mediating Committee shall take account of the reasoned opinions of the national parliaments.

Where at least one third of national parliaments issue reasoned opinions on the proposalÌs non-compliance with the principle of subsidiarity, the proposal shall be withdrawn and Member States may proceed on a bilateral basis.
7. The national parliaments of the Member States may also, during the period between the convening of the Conciliation Committee meeting and the holding of that meeting, issue a reasoned opinion stating why they consider either that the Council's common position does not comply with the principle of subsidiarity or that the European Parliament's amendments do not so comply. At the Conciliation Committee meeting, the European Parliament and the Council shall take the fullest account of the opinions expressed by the national parliaments of the Member States.

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8. Under Article (current Article 230) of the Constitution, the Court of Justice shall have jurisdiction to hear actions brought by Member States on grounds of infringement of the principle of subsidiarity, where appropriate at the request of their national parliaments, in accordance with their respective constitutional rules. Under the same Article of the Constitution, the Committee of the Regions may also bring such actions as regards legislative acts on which it was consulted. 8. Under Article (current Article 230) of the simplifying Treaty, there shall be a European Arbitrator who can be consulted in cases when it is felt that the principle of subsidiarity has been misapplied, at the request of a single national government or a petition by forty percent of MPs in the national parliaments of at least a quarter of the Member States

Explanation: MEPs and members of the European Scrutiny Committees in the national parliaments would elect an Arbitrator who had the backing of at least four national governments. The Arbitrator would then be appointed for a five-year term. The principle of having a European Arbitrator combines the very best of both suggestions for monitoring subsidiarity. The judicial element is contained in the fact that Member States would be encouraged to nominate candidates with a legal background and the political element is maintained through selection by national governments and election by MPs and MEPs. (For more information, see working document 10 from working group V).

Please note that the European Arbitrator is for existing European Community laws and opinions. Just as citizens turn to the European Ombudsman to ensure the application of European law and the Court of Auditors to guarantee the financial regularity of European funding, they could consult a European Arbitrator in cases where they feel the principle of subsidiarity has been misapplied. Whereas the Mediating Committee considers legislative proposals before adoption.
9. The Commission shall submit each year to the European Council, the European Parliament and the Council a report on the application of Article 7(3) of the Constitution. This annual report shall also be forwarded to the Committee of the Regions and to the Economic and Social Committee. 9. The Commission shall submit each year to the European Council, the European Parliament and national parliaments a report on the application of Article 7(3) of the simplifying Treaty.

PRAESIDIUM

TIMOTHY KIRKHOPE MEP
DRAFT PROTOCOL ON THE ROLE OF NATIONAL PARLIAMENTS IN THE EUROPEAN UNION DRAFT PROTOCOL ON THE ROLE OF NATIONAL PARLIAMENTS IN THE EUROPEAN UNION
THE HIGH CONTRACTING PARTIES,

RECALLING that the way in which individual national parliaments scrutinise their own governments in relation to the activities of the Union is a matter for the particular constitutional organisation and practice of each Member State.

DESIRING, however, to encourage greater involvement of national parliaments in the activities of the European Union and to enhance their ability to express their views on matters which may be of particular interest to them.

HAVE AGREED UPON the following provisions, which shall be annexed to the Constitution:

 THE HIGH CONTRACTING PARTIES,

RECALLING that the way in which individual national parliaments scrutinise their own governments in relation to the activities of the Community is a matter for the particular constitutional organisation and practice of each Member State.

DESIRING, however, to encourage greater involvement of national parliaments in the activities of the European Community and to enhance their ability to express their views on matters which may be of particular interest to them.

HAVE AGREED UPON the following provisions, which shall be annexed to the simplifying Treaty:
I. Information for Member States' national parliaments I. Information for Member States' national parliaments
1. All Commission consultation documents (green and white papers and communications) shall be forwarded directly by the Commission to Member States' national parliaments. 1. All European Parliament consultation documents (green and white papers and communications) shall be forwarded directly by the Parliament to Member States' national parliaments.
2. The Commission shall send all its proposals for legislation directly to Member States' national parliaments at the same time as to the European Parliament and to the Council. 2. The European Parliament shall send all its proposals for legislation directly to Member States' national parliaments at the same time as to the European Commission and to the Council.
3. The Member States' national parliaments may send to the Presidents of the European Parliament, the Council and the Commission a reasoned opinion on whether the Commission's legislative proposal complies with the principle of subsidiarity, according to the procedure laid down in the Protocol on the application of the principles of subsidiarity and proportionality. 3. The Member States' national parliaments may send to the European Arbitrator a reasoned opinion on whether the European Parliament's legislative proposal complies with the principle of subsidiarity, according to the procedure laid down in the Protocol on the application of the principles of subsidiarity and proportionality.
4. A six-week period shall elapse between a legislative proposal being made available by the Commission to the European Parliament, the Council and the Member States' national parliaments in their languages and the date when it is placed on a Council agenda for adoption or for adoption of a position under the legislative procedure set out in Article (X in Part II of the Treaty establishing a constitution for Europe), subject to exceptions on grounds of extreme urgency, the reasons for which shall be stated in the act or common position. 4. A six-week period shall elapse between a legislative proposal being made available by the European Parliament to the European Commission, the Council and the Member States' national parliaments in their languages and the date when it is placed on a Council agenda for adoption or for adoption of a position under the legislative procedure set out in Article (X in Part II of the simplifying Treaty), subject to exceptions on grounds of extreme urgency, the reasons for which shall be stated in the act or common position
5. The agendas for and the outcome of Council meetings shall be transmitted directly to Member States' national parliaments. 5. The agendas for and the outcome of Council meetings shall be transmitted directly to Member States' national parliaments.
6. The Commission shall send Member States' national parliaments, for information, any instrument of legislative planning or policy strategy that it submits to the European Parliament and to the Council, at the same time as to those institutions. 6. The European Parliament shall send Member States' national parliaments, for information, any instrument of legislative planning or policy strategy that it submits to the European Commission and to the Council, at the same time as to those institutions.
7. The Court of Auditors shall send its annual report to the Member States' national parliaments, for information, at the same time as to the European Parliament and to the Council. 7.The Court of Auditors shall send its annual report to the Member States' national parliaments, for information, at the same time as to the European Parliament and to the Council.
8. The European Parliament and the national parliaments shall together examine how interparliamentary cooperation may be effectively promoted within the European Union. 8. The European Parliament and the national parliaments shall together examine how interparliamentary cooperation may be effectively promoted within the European Community.
9. The Conference of European Affairs Committees, set up on 16 and 17 November 1989, may submit any contribution it deems appropriate for the attention of the European Parliament, the Council and the Commission. Such contributions shall in no way bind national parliaments or prejudge their position.

Praesidium comments: Paragraph 9 reproduces, in simplified form (since the references to specific fields in the present text are superfluous), the central concept of paragraphs 4 to 7 of the present protocol, allowing COSAC (the Conference of European Affairs Committees) to submit any contribution which it deems appropriate for the attention of the European Parliament, the Council and the Commission. The following is the text of the Amsterdam Protocol concerning COSAC:

"4. The Conference of European Affairs Committees, hereinafter referred to as COSAC, established in Paris on 16-17 November 1989, may make any contribution it deems appropriate for the attention of the institutions of the European Union, in particular on the basis of draft legal texts which representatives of governments of the Member States may decide by common accord to forward to it, in view of the nature of their subject matter.

 9. The Conference of European Affairs Committees, set up on 16 and 17 November 1989, may submit any contribution it deems appropriate for the attention of the European Parliament, the Council and the Commission. Such contributions shall in no way bind national parliaments or prejudge their position.

Comments: Paragraph 9 reproduces, in simplified form (since the references to specific fields in the present text are superfluous), the central concept of paragraphs 4 to 7 of the present protocol, allowing COSAC (the Conference of European Affairs Committees) to submit any contribution which it deems appropriate for the attention of the European Parliament, the Council and the Commission. The following is the text of the Amsterdam Protocol concerning COSAC:

"4. The Conference of European Affairs Committees, hereinafter referred to as COSAC, established in Paris on 16-17 November 1989, may make any contribution it deems appropriate for the attention of the institutions of the European Union, in particular on the basis of draft legal texts which representatives of governments of the Member States may decide by common accord to forward to it, in view of the nature of their subject matter. Such contributions must follow a motion for resolution and approval by COSAC.