The Convention on the Future of Europe will consider a series of documents presented at the previous plenary session (*) at its next plenary session on April 23-24. Article 46 of Title X on Union Membership will doubtless arouse most debate as it provides for a clause on voluntary withdrawal from the EU for countries that balk at further European integration. These documents finish off the first part of the draft Constitutional Treaty, with the exception of articles concerning the EU's competences or legal bases on the Common Foreign and Security Policy and on security and defence policy. Article 14 of Title III (Competences), Articles 29 and 30 of Title V (Legal instrument) and Article 41 of Title VIII (Representation of the EU) and the articles of the second part of the Treaty on the implementation of CFSP and CSDP should be finalised by the Praesidium at the end of April, at the same time as Title IV on the institutions.

The current Treaties do not contain a voluntary withdrawal clause. Article 46 of Title X (EU Membership) stipulates that “Any Member State may decide to withdraw from the European Union in accordance with its own constitutional requirements. A Member State which decides to withdraw shall notify the Council of its intention. Once that notification has been given, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the Assent of the European Parliament. The withdrawing State shall not participate in the Council's discussions or decisions concerning it. The Constitution shall cease to apply to the State in question as from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification.” The procedure is therefore inspired in part by the Vienna Convention on treaty law. However, it also provides scope for the Union and the Member State concerned to conclude an agreement on the details of its departure and establishes the framework for future relations. However, according to the Praesidium, such an agreement should not constitute a condition for withdrawal, in order to preserve the voluntary nature of the approach. In the absence of an agreement, the legal consequences should be examined later.

Title X consists of three other articles. Article 43 establishes eligibility criteria for Union membership this too is a new provision which provides that the Union is “open to all European States whose peoples share the values referred to in Article 2 (on Union values) and who respect them and are committed to promoting them together. Accession to the Union implies acceptance of its Constitution”. The two other articles are directly inspired by the existing Treaties. The procedure outlined in Article 44 on Union accession takes up the provisions outlined in Article 49 of the European Union Treaty, simply adding notification of the European Parliament and national parliaments on the submission of application requests. Finally, the procedures outlined in Article 45, which provides for the suspension of EU membership rights in case of serious violation of its values, takes up those currently outlined in Article 7 of the European Union Treaty and in Article 309 of the European Community Treaty.

Legal basis for data protection.

Draft Articles 33 to 37 of Title VI (democratic life of the EU) establish a number of principles designed to enable citizens to understand that they can contribute to the elaboration of EU decisions. The first, Article 33, is a new text, establishing the principle according to which citizens are equal before European institutions. Article 34, also new, lists the essential elements of participative democracy and aims to provide a framework and a content for dialogue between institutions, on the one hand, civil society and representative institutions on the other. Article 35 describes the role of the European Ombudsman, whilst Article 35b, based on Article 191 of the European Community Treaty, describes the role of political parties at the European level. However, the articles on uniform electoral law for election to the European Parliament and voting rules in EU institutions, initially due to be included in Title VI, will finally be included in Title IV on EU institutions. Article 36, which takes up elements of Article 1 of the TEU, establishes a transparent process for the adoption of laws and European framework laws: the European Parliament and the Council will sit in public in the context of this legislative process. It also outlines the conditions for access to documents from the institutions.

Draft Article 36a is of particular importance. It aims to create a single legal basis for the protection of personal data, regarding both the protection of such data by the institutions and by the Member States when they act in areas falling within the ambit of EU law. The text is based on the current Community regime, stemming both from the 1995 Directive on data protection, for action by the Member States, and Article 286 of the European Community Treaty in respect of EU institutions. This Article 36a thus specifies that “Everyone has the right to the protection of personal data concerning him or her. The Parliament and the Council, in accordance with the legislative procedure, shall adopt the rules relating to the protection of individuals with regard to the processing of personal data by the Union's institutions and bodies, and by the Member States when carrying out activities which come under the scope of Union law, and the rules relating to the free movement of such data”. It therefore appeared more logical to create this single legal basis permitting the creation of a general protection regime for personal data which provides for a specific reference to action in the context of the current third pillar.

Finally, draft Article 37 integrates and gives legal value to Declaration N° 11 - annexed to the Amsterdam Treaty - on the status of churches and non confessional organisations, and introduces an additional paragraph concerning the dialogue between European institutions, churches and these organisations. It will therefore be set down in the future Treaty that: “The European Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States”, and that it also respects “the status of philosophical and non-confessional organisations”. Two of the demands made by churches are therefore met. All that is lacking is the third, inclusion in the Treaty of a reference to religious heritage, which might be included in the preamble to the future Constitution.

Neighbourliness clause.

Title IX (the EU and its immediate environment) contains a single article, which does not have its equivalent in the current Treaties. This Article 42 provides a flexible framework outlining the current arrangements through which the EU manages its relations through various agreement with countries or groups of countries. Without creating any new obligations, it therefore recognises for the first time the importance to the Union of its immediate environment (not limited solely to neighbouring countries, and establishes a “neighbourliness” clause. The first paragraph emphasises that “the Union shall develop a special relationship with its neighbouring States, aiming to establish an area of prosperity and good neighbourliness characterised by close and peaceful relations based on co-operation”. The following paragraph defines more precisely the instruments of this policy. However, over an above this manifest desire to establish good relations with neighbouring countries, the new article may finally launch the debate on Union frontiers.

Finally, the Praesidium presented the general and final provisions of the first part of the Constitutional Treaty. Some correspond to those contained in the current Treaties (Articles D on regional unions, E on protocols, F on procedures for the revision of the Constitutional Treaty, H on duration and I on languages); others modify them or are entirely new, reflecting the fact that the future Constitution will replace the existing Treaties. Thus Article A identifies the principal Treaties to be abrogated by the Constitution, whilst Article B outlines the replacement of the current European Community and European Union by the new “European Union”. However it is Articles F, on revision procedure, and G on the adoption, ratification and entry into force of the Constitutional Treaty, that are likely to arouse most discussion over the coming weeks.

Ratification and review of the Constitution.

Article G establishes the procedure for the ratification and entry into force of the Constitutional Treaty. The procedure proposed is that currently referred to in Article 52 of the Treaty on European Union. This means that the Constitutional Treaty cannot enter into force unless it has been ratified by all the Member States which signed it. Without undermining the existing judicial system, it is however proposed that a new paragraph be added to the effect that the European Council will assess the political consequences of possible failure to ratify the Treaty by one or more Member States: “If, two years after the signature of the Constitutional Treaty, four-fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council”. Certain contributions to the Convention have proposed that the Constitutional Treaty should enter into force once ratified be a certain number of countries. However, this raises major problems since the current Treaties can only be repealed with the consent of all the Member States (15 at present, rising to 25 after the entry into force of the Accession Treaties).

Finally, whilst Article F takes up existing procedures for the revision of the Constitutional Treaty, it stipulates that the Convention may examine other alternatives if it wishes, in particular the procedure currently followed for drawing up the Constitution (Inter-Governmental Conference prepared by a Convention adopting a recommendation by consensus). However, the Praesidium draws the Convention's attention to the questions the choice of a new procedure would raise: scope for the Council to amend the Constitution; use solely of the IGC for very limited modifications; initiative for such modifications; unanimity or qualified majority; participation of the Commission, the European Parliament and national parliaments and the role of a future Congress.

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