A Constitution could be defined as:
'A written Constitution is a legal document defining the framework of how a State is organised and how the divisions of sovereign powers are regulated. Hence, it is the body of fundamental principles and rules of a state from which stem the duties and powers of the government and the duties and rights of the people.'
In the UK, the constitution is based on statute, common law and convention and, as there is no formal draft, it is considered to be unwritten; as a result, it may be modified from time to time by act of Parliament.
In the United States, the constitution cannot ordinarily be modified, except through such processes described in the constitution itself .
The Constitution of the European Union can be modified by amendments to the Treaty by the processes laid down in the Treaty [Article IV-443].
Background to the Constitution
The existing European treaties, taken together, form the primary legislation and are in effect the "constitution" of the Community; they provide the legal basis for all secondary legislation - regulations, directives and decisions - made by the institutions of the Community. Essentially, the Treaties produce obligations for the Member States and rights for individuals. This relationship has developed to encompass the concept of the European Union as being an area of security for individuals and legal persons.
The structure and the provisions of the combined treaties has become increasingly complex, with Nice being the seventh European treaty since 1951. As each treaty became law, it was incorporated into the existing treaties, which together form the consolidated Treaty on European Union.
The intention of the Constitution is to replace this complexity with one Treaty drafted as a whole. Hence in future, the law of the European Union will be based on this single text, rather than the large number of different treaties which have been consolidated. In this sense, the Union is effectively starting a new stage in its existence.
Enlargement of the European Union
The driving force behind the Constitution has been the proposed enlargement of the European Union to include ten new Member States in Eastern Europe. Under the current Treaties, the organisation of the European Union institutions are not in an appropriate state to be able to accommodate this expansion. In the discussions during the negotiations leading up to the Treaty of Nice, it was agreed that the arrangements proposed in that Treaty were not suitable and a new treaty would have to be drafted.
It was also agreed that there should be a meeting of the European Council in Laeken to consider further this whole area. The Laeken Declaration, which arose from this meeting, set up the Convention on the Future of Europe, which in turn has produced the draft Constitution.
Ratification of the Constitution
The Draft Constitution was presented to the European Council in Rome on 18 July 2003 by Valery Giscard d'Estaing, the President of the Convention. It was hoped that the Treaty would have been signed on 9 May 2004, as this is 'Europe Day'. In the event, through the break down in the discussions in the IGC in December 2003, the signing took place on 29 October 2004.
After this, all the Member States are required to ratify the Treaty by their respective legislative procedures for it to become law. At the moment, there are at least ten countries which have stated that they will hold a referendum on the Constitution, including the Czech Republic, Denmark, France, Ireland, Luxembourg, The Netherlands, Portugal, Spain and the United Kingdom.
Notes on the Text
The Convention had been given eighteen months to complete its tasks. It spent fifteen months discussing the text of the Constitution in Part I and the Charter of Fundamental Rights, leaving only three months to discuss Part III and Part IV.
Owing to this lack of time, there are a number of anomalies in the text of Part III, including obsolete articles such as Articles III-166(2) and III-243, on German reunification, and Article III-215 on “paid holiday schemes”.
Part II of the Treaty contains the text of the Charter of Fundamental Rights of the Union which was introduced as a non-binding declaration in the Treaty of Nice. There have not been any major changes to the text from Nice to the version in the Constitutional Treaty, except in incorporating the legally binding nature of the Charter, so that it comes under the jurisdiction of the Court of Justice. This is defined in Article II-112. In addition, the Praesidium has prepared updated explanations for the interpretation of the Charter, and these have been included as a Declaration attached to the Treaty.
BMDF Annotations in the text
In Parts I, III and IV, the articles in the official text do not have any references to the old article numbers from the current Treaties. Where appropriate, the BMDF has included references to these old articles to show the origin of the articles in Parts I, III and IV. New articles introduced by the Constitutional Treaty are indicated as such.
The references are shown after the article number i.e. Article III-121 (new); Article III-122 (ex Article 16 TEC). In particular cases, such as Article I-14(2), ex-article numbers are shown against individual provisions i.e. - Energy (new); - Environment (ex Article 174 TEC).
The ex-article numbers refer to the article numbers in the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC), as renumbered by the Treaty of Amsterdam and included in the Treaty of Nice.
The Constitutional Treaty extensively rewrites and reorders the articles from the earlier Treaties, and so in some cases the references to the old article numbers can only give an indication of their origin. This particularly applies to Part I of the Treaty and to the areas in Part III concerning ‘Freedom, Security and Justice’ (starting at Article III-257) and ‘The Union’s External Action’ (starting at Article III-292).
In Economic and Monetary Policy, Article III-197(2) defines the provisions which do not apply to the United Kingdom, owing to the opt-out from the Euro. The articles that do not apply to the UK have been indicated by a BMDF note at the end of each individual article or provision.