Flexibility in a 'Reorganised' and 'Simplified' Treaty

Abstract

This paper contemplates some key aspects of the overall flexibility question in a simplified and reorganised New Constitutional Treaty (NCT). It is limited to discussion on the location of the enhanced co-operation provisions, on whether and what type of opt-out or derogation arrangements should survive under the new constitutional regime, and finally, on whether or not the NCT should prohibit the conclusion of international agreements between the Member States (some or all of them) outside the institutional framework of the EU. The paper accepts a positive synergy between the principles of flexibility and constitutionalism, viewing flexibility as a normative principle of governance. It concludes that the enhanced co-operation, mainstreamed with the Union system, should be included in the Part One of the NCT among the provisions on constitutional structure. It would be useful to explain to the citizens what this concept means (definitional clause) together with references to the nature of the enhanced co-operation (enabling clause). As for the opt-out arrangements and derogation, it seems unnecessary to include them in the NCT itself. It should suffice to provide for these either in Part Two or in a set of protocols.

Keywords: Flexibility, draft Constitutional Treaty, enhanced co-operation