1. Introductory remark
Whether there is a European Constitution is not free from controversy. The following text deals with the topic in a historical perspective.
2. EC Treaty as a constitutional charter and the general principles of Community law
The treaties governing the European Communities (European Community; EC Treaty) created a new legal order for the benefit of which the states had limited their sovereign rights in more and more areas and the subjects of which comprised not only Member States but also their nationals (ECJ Case 26/62 – van Gend & Loos  ECR 1). The principal characteristics of this Community legal order were its primacy over the laws of the Member States (ECJ Case 6/64 – Costa  ECR 585) and the direct effect of many provisions on both their nationals and the states themselves. Therefore, according to the ECJ, the EEC Treaty, albeit concluded in the form of an international agreement, nonetheless constituted the constitutional charter of a community based on the rule of law (ECJ Case 294/83 – Les Verts  ECR 1339; Opinion 1/91 – European Economic Area  ECR I‑6079). The same applied to the EC Treaty (ECJ Case C‑15/00 – Commission v European Investment Bank  ECR I‑7281; Joint Cases C-402/05 P and C-415/05 P – Kadi and Al Barakaat v Council and Commission  ECR I-06351). The EC Treaty was not based on the traditional separation of powers. However, it did contain a system of checks and balances by which an institutional balance was to be created (ECJ Case 138/79 – Roquette Frères  ECR 3333; ECJ Case C‑70/88 – Parliament v Council  I‑4529). The fundamental status of nationals of the EC Member States was that of Union citizenship. Within the scope of application of the EC Treaty it conveyed a comprehensive right to non-discrimination based on nationality (ECJ Case C‑184/99 – Grzelczyk  ECR I‑6193, Union citizenship; discrimination (general)).
In developing the law, the European Court of Justice (ECJ) recognized unwritten general principles of law which were considered as part of primary Community law. In 2009, the ECJ declared that the general principles of Community law have constitutional status (ECJ Case C-101/ 08 – Audiolux and Others  ECR I-09823).
This category included, for example, the principle of proportionality (ECJ Case C‑310/ 04 – Spain v Council  ECR I‑7285) later enshrined in Art 5 EC/replaced by Art 5 TEU, as well as the principles of protection of legitimate expectations (ECJ, op cit) and the right to be heard (ECJ Case C‑240/03 P – Comunità montana della Valnerina  ECR I‑731).
The ECJ especially included fundamental human rights in the general principles of Community law protected by the Court (ECJ Case 29/69 – Stauder  ECR 419). The concept of protection of fundamental rights developed by the ECJ was later reflected in the EU Treaty (1992), Art 6(2) of which states that the Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, as general principles of Community law. The fundamental rights under Community law were primarily directed at the Community institutions. According to the case law of the ECJ, however, acts of the Member States were also to be measured against fundamental Community rights where they act within the scope of Community law, eg in implementing Community rules (ECJ Case 5/88 – Wachauf  ECR 2609 and ECJ Case C‑260/89 – ERT  ECR I‑2925).
According to the formula developed by the ECJ in Wachauf, restrictions could be imposed on the exercise of fundamental rights which the Court had recognized provided that those restrictions in fact corresponded to objectives of general interest pursued by the Community and did not constitute, with regard to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of those rights. In cases where fundamental Community rights conflicted with the fundamental freedoms (fundamental freedoms (general principles)) in the EC Treaty, the ECJ had laid down the following principles: since both the Community and its Member States are required to respect fundamental rights, the protection of those rights is a legitimate interest which, in principle, justifies a restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed by the EC Treaty such as the free movement of goods or the freedom to provide services (ECJ Case C‑112/00 – Schmidberger  ECR I‑5659; ECJ Case C‑36/02 – Omega  ECR I‑9609). It was said in Schmidberger that the interests involved must be weighed having regard to all the circumstances of the case in order to determine whether a fair balance was struck between those interests. In more recent decisions it has been said that the exercise of the fundamental rights concerned must be reconciled with the requirements relating to rights protected under the EC Treaty and in accordance with the principle of proportionality (ECJ Case C‑438/05 – Viking  ECR I‑10779; ECJ Case C‑341/05 – Laval  ECR I‑11767).
In June 1999, the European Council decided at its summit in Cologne that a Charter of fundamental rights of the European Union was required in order to make the overriding importance and relevance of fundamental rights more visible to the Union’s citizens. A convention consisting of representatives of heads of state and government, members of the European Parliament and national parliaments and a person appointed by the president of the European Commission was assigned to carry out this task. The Charter of fundamental rights of the European Union ( OJ C364/1) was solemnly proclaimed and signed by the Council, Parliament and Commission in Nice on 7 December 2000 after the European Council had approved the draft Charter (human rights and fundamental rights (ChFR and ECHR)). It was not signed by the Member States.
The ECJ dealt with the Charter for the first time in a judgment on 27 June 2006 (ECJ Case C‑540/03 – Parliament v Council  ECR I‑5769). It said with regard to its legal status that, while the Charter was not a legally binding instrument, the Community legislature had, however, acknowledged its importance by stating in a recital in the preamble to the directive concerned that the directive observed the principles recognized in the Charter. Furthermore, the principal aim of the Charter, as apparent from its preamble, was to reaffirm rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention on the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case law of the Court of Justice of the European Communities and of the European Court of Human Rights.
Neither the Member States nor the Community institutions could avoid review of the question whether the measures adopted by them were in conformity with the basic constitutional charter of the Community, namely the EC Treaty. The observance of general legal principles, including fundamental rights, was included in such a judicial review. Individuals were therefore entitled to effective judicial protection of the rights they derive from the Community legal order (ECJ Case C‑50/00 P – Unión de Pequeños Agricultores  ECR I‑6677).
Under Art 10 EC/essentially replaced by Art 4(3) TEU, Member States were to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of that treaty or resulting from action taken by the institutions of the Community. They were to facilitate the achievement of the Community’s tasks. The ECJ derived from this provision inter alia the principle whereby a state must be liable for loss and damage caused to individuals as a result of breaches of Community law for which the state can be held responsible (ECJ Joined Cases C‑6/90 – Francovich and Others – and C‑9/90 – Brasserie du pêcheur and Factortame  ECR I‑5357; ECJ Case C‑224/01 – Köbler  ECR I‑10239).
3. EU Treaty (1992)
Unlike the EC Treaty, the EU Treaty (1992) (EU Treaty) was not designated as a constitutional charter by the ECJ. Article 6(1) EU/6 TEU contained an acknowledgment of fundamental constitutional principles. It read: ‘The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.’ However, the EU legal order created by the EU Treaty (1992) could not be described as a new legal order comparable with the EC. It was merely a preliminary stage along that route. Common foreign and security policy (so-called ‘second pillar’) decisions were taken within a framework of intergovernmental cooperation. The ECJ had not been accorded any jurisdiction in this area. The status that the EU Treaty (1992) granted to the ECJ with regard to police and judicial cooperation between the Member States in criminal matters (the so-called ‘third pillar’) lagged well behind that which it held under the EC Treaty (European Court of Justice).
4. Treaty establishing a Constitution for Europe
In Declaration 23 annexed to the Treaty of Nice (EU Treaty) a deeper and wider debate about the future of the European Union was called for. It was to address four problems in particular: the delimitation of powers between the European Union and the Member States; the status of the Charter of Fundamental Rights; a simplification of the treaties; and the role of the national parliaments in the European architecture. In December 2001, the European Council announced in its Laeken Declaration that a convention on the future of Europe was to be convened and named Giscard d’Estaing as its president. The composition of this convention was based on that of the Convention on Fundamental Rights. The candidate countries were also included, however. The Laeken Declaration contained a long list of issues that were to be the subject of discussion. One of the questions raised was whether the requisite simplification and reorganization might not lead in the long run to the adoption of a constitutional text in the Union. The Convention drew up a draft Constitution by consensus and submitted it in July 2003. The draft was revised by an intergovernmental conference convened in October 2003. The Member States of the EU, whose number had in the meantime increased to 25, signed the Treaty establishing a Constitution for Europe in Rome on 29 October 2004 ( OJ C310/1).
The Treaty establishing a Constitution for Europe is based on the concept of replacing the EU Treaty and the EC Treaty with one single instrument titled a ‘Constitution’. The Euratom Treaty continues as it stands but is adjusted in line with the new Constitution in a protocol.
The Constitutional Treaty consists of four main parts, each of which has the same legal standing, and no less than 36 protocols. A preamble of a constitutional nature, which refers to the cultural, religious and humanist inheritance of Europe, comes first. Part I of the Treaty (which does not have a heading) sets out the principles, objectives and institutional provisions of the European Union. Part II consists of the Charter of Fundamental Rights of the Union in a revised version weakened by the distinction drawn between rights and principles. Part III, which is headed ‘The policies and functioning of the Union’, puts Part I in concrete terms and builds on the provisions of the EC Treaty and the EU Treaty. Part IV contains general and final provisions, including provisions on treaty revision procedures.
The Constitutional Treaty contains the following innovations, in particular: it gives legally binding effect to the Charter of Fundamental Rights and provides for Union accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms. It affords the Union its formerly disputed legal personality. The primacy of Union law over the law of the Member States is specifically stated in the wording of the treaty. One of the articles is devoted to the symbols of the Union. The various types of competency are defined in the wording of the treaty based on the case law of the ECJ and are split between the Union and the Member States without any major changes. There are now just six types of legal instruments, which include European laws and European framework laws, the definitions of which are essentially the same as the definitions of regulations and directives in the TFEU/EC Treaty. The Council meets in public when considering and voting on a draft legislative act. There is a solidarity clause governing common action in the event of terrorist attacks and disasters. The Constitutional Treaty defines the democratic foundations of the Union and makes provision for a citizens’ initiative. It recognizes the right of voluntary withdrawal from the Union.
The maximum number of seats in the European Parliament is 750. They are apportioned in such a way that representation of citizens is digressively proportional. The procedure whereby the presidency of the European Council changed every six months has been abolished. The European Council is headed by a president who is elected for a term of two-and-a-half years. From 2014 onwards the number of commissioners is to be just two-thirds of the number of Member States. Each successive Commission is to be so composed as to reflect satisfactorily the demographic and geographical range of all the Member States. The President of the Commission is to be elected by the European Parliament on a candidature proposal put forward by the European Council. The European Council appoints a Union Minister for Foreign Affairs. He replaces the former High Representative for the Common Foreign and Security Policy and is at the same time one of the vice-presidents of the Commission and the commissioner responsible for external relationships. He is supported by the European External Action Service.
According to a new definition, a qualified majority is defined as at least 55 percent of the members of the Council, comprising at least 15 of them and representing Member States comprising at least 65 percent of the population of the Union. A blocking minority must include at least four Council members, failing which the qualified majority is deemed attained. The scope of qualified majority voting in the Council is again expanded. The co-decision procedure is elevated to a general rule. The Union is given competency over further political matters. In the protocol on the application of the principles of subsidiarity and proportionality the national parliaments are given a procedure enabling them to raise objections to what they consider to be infringements of the principle of subsidiarity.
The Constitutional Treaty abolishes the pillar structure of the EU. However, it contains specific rules on a common foreign and security policy and a common security and defence policy, which is included as an integral part of the former policy. European laws and framework laws are excluded in this context. The European Parliament is only granted a secondary role. The Constitutional Treaty obliges the Member States to progressively improve their military capabilities. It provides for the setting up of a European Defence Agency. Permanent structure cooperation to which military criteria apply is facilitated as a special form of enhanced cooperation. Union jurisdiction does not extend, in principle, to the common foreign and security policy. The Constitutional Treaty also includes certain specific rules in relation to police and judicial cooperation in criminal matters, eg a right of initiative for Member States and a special mechanism for enhanced cooperation. The roles of Europol and Eurojust are expanded and provision is made for the possibility of establishing a European Public Prosecutor’s Office.
If the ratification process had gone according to plan, the Treaty establishing a Constitution for Europe would have entered into force on 1 November 2006. However, it was rejected in France by a referendum held on 29 May 2005. Nor did it obtain a majority in a popular consultation held in the Netherlands on 1 June 2005. A period of reflection was therefore decided on by the European Council on 16/17 June 2005.
5. Lisbon Treaty
In June 2007, the European Council set out a precise mandate to convene an intergovernmental conference which was to draw up a Reform Treaty to replace a constitution. This initiative led to the framework treaty known as the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community ( OJ C‑306/1), which the Member States signed on 13 December 2007. The Lisbon Treaty adopts material elements of the Treaty establishing a Constitution for Europe in the purely technical form of treaty amendments connected with renumbering. There are 13 protocols and a table of equivalences annexed to the text of the treaty. The name of the EC Treaty is changed to ‘Treaty on the Functioning of the European Union’ (TFEU) and the word ‘Community’ is changed all the way through to ‘Union’. The TFEU organizes the functioning of the Union and determines the areas of, delimitation of, and arrangements for exercising its competences. The EU Treaty (2007) [subsequently referred to here as TEU] and the TFEU have the same legal value. They form the new basis of the European Union. The EU replaces the EC and is its legal successor in title.
The following substantive differences from the Constitutional Treaty should be noted in particular: the term ‘Constitution’ is not used. The provision on the primacy of Union law is swapped for a mere declaration that refers to the case law of the ECJ. There are no provisions on Union symbols. The phrases ‘European law’ and ‘European framework law’ are again replaced by the terms ‘regulation’ and ‘directive’. The title of a ‘Union Minister for Foreign Affairs’ is abandoned in favour of the name ‘European Union High Representative for Foreign and Security Policy’. Instead of integrating the Charter of Fundamental Rights into the wording of the treaty, Art 6(1) TEU refers to the Charter (in the version dated 12 December 2007) and attributes the same legal value to it as to the TEU and TFEU. Because of a special rule for Poland and the United Kingdom the Charter does not extend the ability of the ECJ, or any court or tribunal in those Member States, to find that their laws, regulations or administrative provisions, practices or action are inconsistent with the fundamental rights, freedoms and principles that the Charter reaffirms. The agreement on accession of the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms requires a unanimous decision by the Council, which has to be ratified by the Member States. The new definition of a qualified majority within the Council does not apply until November 2014. Moreover, until March 2017 a Member State may request that voting in a particular case be conducted in accordance with the former procedure. National parliaments are afforded a greater role in monitoring compliance with the principle of subsidiarity. In the article on the Union’s objectives the phrase ‘where competition is free and undistorted’, which came after the words ‘internal market’, is deleted. On the other hand, a protocol on the internal market and competition was agreed, which says that the internal market includes a system ensuring that competition is not distorted. The combating of climate change is named as an environmental objective. Several provisions pay tribute to the spirit of solidarity in relation to policy on energy. It is also made clear that under the revision procedure the competences conferred on the Union can also be reduced. The criteria for accession to the Union have been tightened.
In the light of the elections to the European Parliament due to take place in June 2009, the date that was aspired to for the treaty’s coming into force was 1 January 2009. However, the treaty was not approved in a referendum held in Ireland on 12 June 2008. A compromise was reached in the European Council on 11/12 December 2008: each Member State is still to be able to appoint one Commissioner. Ireland is being offered legal guarantees according to which its government’s competency in the fields of military neutrality, fiscal policy and abortion policy is not to be affected. The Irish government therefore agreed to hold a new referendum. This referendum held on 2 October 2009 resulted in a large majority for ratification. The Czech Republic negotiated an opt-out from the Charter of Fundamental Rights which will form part of the next accession treaty. On 1 December 2009, the Treaty of Lisbon entered into force.
6. Recent case-law
The ECJ is systematically adapting its case-law on the nature of the EC Treaty and the general legal principles to the new legal framework created by the Treaty of Lisbon. It has already stated the primacy of Union law (ECJ Case C-409/06 – Winner Wetten  ECR I-0000) and has required national law to be interpreted in conformity with European Union law (ECJ Case C-555/07 – Kücükdeveci  ECR I-0000). The general principles of Community law have been transformed into general principles of EU law (ECJ Case C-317/08 – Alassini  ECR I-0000). Regarding the principle of State liability, the ECJ held that it is inherent in the system of treaties on which the European Union is based (ECJ Case C-118/08 – Transportes Urbanos y Servicios Generales  ECR I-0000). It is highly probable that the ECJ will one day call these treaties the constitutional charter of the EU.
Ingolf Pernice and Jiri Zemánek (eds), A Constitution for Europe—The IGC, the Ratification Process and Beyond (2005); Juan Antonio Carrillo Salcedo and others, Teoría y Realidad Constitucional—El tratado por el que se establece una Constitución para Europa (2005); Jean-Claude Piris, The Constitution for Europe—A Legal Analysis (2006); Nicolas Moussis, ‘Le Traité de Lisbonne: une constitution sans en avoir le titre’  Revue du Marché commun et de l’Union européene 161; Joakim Nerglius, The EU Constitution in a Comparative and Historical Perspective—An Analysis of the Lisbon Treaty and its Importance (2009); Michael O’Neill, The Struggle for the European Constitution—A Past and Future History (2009); Paul P Craig, The Lisbon Treaty (2010); Allan Rosas and Lorna Armati, EU Constitutional Law—an Introduction (2010); Armin von Bogdandy and Jürgen Bast (eds), Principles of European Constitutional Law (2nd edn, 2010); Koen Lenaerts, Piet van Nuffel and Robert Bray, Constitutional Law of the European Union (3rd edn, 2011).