2.14 The 'Reform Treaty': the IGC mandate

fINTRODUCTION

The European Council agreed on 23 June 2007 to convene an Intergovernmental Conference (IGC) on the new ‘Reform Treaty’, with the objective of opening the IGC before the end of July. The IGC was charged to carry out its work on the Reform Treaty in accordance with the mandate as set out in Annex I to the Presidency Conclusions.¹

The European Council invited the incoming Presidency (Portugal) to draw up a draft Treaty text in line with the terms of the mandate and to submit this to the IGC as soon as it opens. The IGC “will complete its work as quickly as possible, and in any case before the end of 2007, so as to allow for sufficient time to ratify the resulting Treaty before the European Parliament elections in June 2009.”

The main aspects of Annex I are listed below.

It is clear that the majority of the Constitution’s proposals and innovations have been transferred to the Reform Treaty.

ANNEX I: DRAFT IGC MANDATE

I. GENERAL OBSERVATIONS

I/1 The Treaty will be called the ‘Reform Treaty’, amending the existing Treaties. The Reform Treaty will introduce into the existing Treaties, which remain in force, the innovations resulting from the 2004 IGC – which resulted in the ‘Constitution’.

I/2 The Reform Treaty will contain two substantive clauses amending respectively:

The Treaty on the European Union (TEU) – which will keep its present name.
The Treaty establishing the European Community (TEC) – which will be called the Treaty on the Functioning of the Union, the Union having a single legal personality.

The word ‘Community’ will throughout be replaced by the word ‘Union’. It will be stated that the two Treaties constitute the Treaties on which the Union is founded and that the Union replaces and succeeds the Community.

I/3 The TEU and the Treaty on the Functioning of the Union “will not have a constitutional character”. The terminology reflects this change from the Constitution:

The term ‘Constitution’ will not be used.
The ‘Union Minister for Foreign Affairs’ will be called the ‘High Representative of the Union for Foreign Affairs and Security Policy’. Note that the ‘High Representative for the CFSP’ is currently Javier Solana (Spain), who also the Secretary-General of the Council of the European Union.
The denominations ‘law’ and ‘framework law’ will be abandoned, the existing denominations ‘regulations’, ‘directives’ and ‘declarations’ being retained.
There will be no reference to the symbols of the EU such as the flag, anthem or motto.

I/4 The innovations resulting from the 2004 IGC will be integrated into the TEU and the Treaty on the Functioning of the Union. Modifications are clearly listed below. They concern:

The respective competences of the EU.
The specific nature of the Common Foreign and Security Policy (CFSP) (currently the CFSP comprises the 2nd pillar of the EU; the Community is the 1st pillar).
The enhanced role of national parliaments.
The treatment of the Charter for Fundamental Rights.
A mechanism, in the area of police and judicial cooperation in criminal matters, enabling Member States to go forward on a given act while allowing others not to participate. Note that the area of police and judicial cooperation in criminal matters is currently the 3rd pillar of the EU. Most of the areas of Maastricht’s Justice and Home Affairs, including asylum and immigration, were transferred to the 1st pillar – the Community – in the Amsterdam Treaty, when the UK and Ireland negotiated an ‘opt in’.

II. AMENDMENTS TO THE EU TREATY

II/7 The TEU will be divided into 6 Titles:

(I) Common Provisions.
(II) Provisions on democratic principles.
(III) Provisions on institutions.
(IV) Provisions on enhanced cooperation.
(V) General Provisions on the Union’s External Action and specific Provisions on the CFSP.
(VI) Final Provisions.

Common Provisions (I)

II/8 Title I of the existing TEU will be amended in line with the innovations of the 2004 IC. Reference to competition will be removed from the main Treaty into a Protocol.²

II/9 The Article on fundamental rights will contain a cross reference to a Protocol on the Charter of fundamental rights giving it legally binding value. The UK will be given an ‘opt-out’ in the sense that ECJ judgements will not directly affect UK law, unless British law permits them to. But all new EU legislation (which of course affects the UK) has to be compatible with the Charter.³

II/10 In the Article on fundamental principles concerning competences it will be specified that the Union shall act only within the limits conferred on it by Member States.

Provisions on democratic principles (II)

II/11 The democratic principles agreed in the 2004 IGC to be included.

Provisions on institutions (III)

II/12 The institutional changes agreed in the 2004 IGC will be integrated partly into the TEU and partly into Treaty on the Functioning of the Union. The institutions affected are:

The European Parliament: new composition and new powers of veto.
The European Council: transformation into an institution and creation of the office of President.
The Council (of the EU or Ministers): introduction of the double majority voting system, which reduces the ability of any one country to block legislation, and changes to the six-monthly Council presidency system. Qualified Majority Voting (QMV) becomes the norm.
The European Commission: new composition (ending of one Commissioner per Member State) and strengthening the role of its President.
The Union Minister for Foreign Affairs: creation of new office, with the title of the ‘High Representative of the Union for Foreign Affairs and Security Policy’.
The Court of Justice of the EU.

II/13 The ‘double majority’ voting system will take effect from 1 November 2014. Thereafter, there will be a transition phase until 2017.

Provisions on enhanced cooperation (IV)

II/14 The minimum number of Member States will be nine.

General Provisions on the Union’s External Action and specific Provisions on the CFSP (V)

II/15 The principles and objectives of the CFSP (including an EU diplomatic service and a common defence policy) will be much in line with the 2004 IGC agreements.

Final Provisions (VI)

II/16 These will much in line with the 2004 IGC agreements. They include:

The Union will have legal personality, allowing it to sign international treaties.
There will be an Article on voluntary withdrawal.

III. AMENDMENTS TO THE EC TREATY

III/17 The TEC will become the Treaty on the Functioning of the Union.

III/18 The innovations as agreed in the 2004 IGC will be inserted. They include:

Categories and areas of competences.
The scope of Qualified Majority Voting (QMV) and of co-decision. QMV to become the main general procedure of decision making in the Council as national vetoes are dropped.⁴
The distinction between legislative and non-legislative acts.
Provisions inter alia on:

Area of freedom, security and justice - including new powers to harmonise civil and criminal laws and legal procedures, the creation of a European Public Prosecutor and a common asylum and immigration system.
The solidarity clause.
Improvements of governance of the euro.
Horizontal provisions such as the social clause.⁵
Specific provisions such as public services, space, energy, civil protection, humanitarian aid, public health, sport, tourism, outer-most regions, administrative cooperation, financial provisions (including own resources, the multi-annual financial framework and the new budgetary procedure). These provisions expand the EU’s powers and are in addition to the new powers on economic coordination and employment policies and increased power over social policy.

III/19 Certain modifications will be introduced compared with the results of the 2004 IGC including:⁶

Member States will exercise again their competence to the extent that the Union has decided to cease exercising its competence.
Concerning police and judicial cooperation in criminal matters, the UK to ‘opt in’. This is a similar procedure to the ‘opting in’” by the UK and Ireland to the areas of Justice and Home Affairs (now the Area of freedom, security and justice) that were transferred from the 3rd pillar to the 1st pillar in the Amsterdam Treaty (1997).
Reference will be made to the spirit of solidarity between Member States in the case of severe difficulties in the supply of certain products and to the particular case of energy.
The particular need to combat climate change at the international level will be specified.

IV. PROTOCOLS AND THE EURATOM TREATY

IV/21 The new Protocols agreed in the 2004 IGC will be annexed to the existing Treaties.

V. DECLARATIONS

V/24 In addition to the Declaration made in the present mandate, the Declarations as agreed by the 2004 IGC will be taken over by the present IGC.

References

Council of the European Union, Brussels European Council (21/22 June 2007): Presidency Conclusions, Brussels, 23 June 2007, document 11177/07, Annex I: Draft IGC Mandate.
The Amendments to the EU Treaty, Annex 1 of Annex I, refer to the Protocol to be annexed to the Treaties on the internal market and competition (which had been removed from the main body of the Treaties).
The Amendments to the EU Treaty, Annex 1 of Annex I, refer to the Protocol to be annexed to the Treaties on the Charter. The amendments cover the UK’s ‘opt out’ including the statement, “nothing in the Charter creates justiciable rights applicable to the UK except in so far as the UK has provided for such rights in its national law.”
Vetoes will end in many areas including: transport, energy, space policy, sport and the annual budget.
‘Horizontal clauses’ are intended to ensure that certain fundamental values are taken into consideration in the formation and implementation of EU policies & activities.
The Amendments to the EC Treaty, Annex 2 of Annex I, provide further clarification.

Ruth Lea, June 2007.