The Convention's Draft Constitutional Treaty: A 'Tidying-Up Exercise' that Needs Some Tidying-Up of its Own

Abstract

This paper offers a critical overview of several issues arising from the Convention's draft Treaty Establishing a Constitution for Europe, relevant to readers with a general interest in EU legal developments: rationalisation of the Union's constitutional architecture; the protection of fundamental rights; Union competences; reform of legal instruments; changes to the enhanced cooperation provisions; and ratification/amendment of the future Constitution. It is argued that the draft Constitution, despite its many successes, suffers from several legal shortcomings, for example: the unhelpful provisions on the legal effects of rights and principles within the Charter; an early warning system on subsidiarity which suffers from serious operational flaws; the inaccurate provisions on exclusive competence, particularly as regards competition law and external relations; the messy dividing line between shared and supporting competences; and a new hierarchy of norms which appears confused in its basic concepts, and confusing in the arrangements for supervising non-legislative acts. Despite M. Giscard d'Estaing's pleas for the Member States to respect the integrity of the text agreed by the Convention, one hopes that the IGC will revisit at least these provisions - since they might otherwise undermine the workability of the final Constitution by creating new and unnecessary problems for the future.