¹ I have benefited from the insights in the general survey of the Constitutional Treaty, as it emerged from the Convention on the future of Europe, by Kokott, J and Rüth, A, ‘The European Convention and its Draft Treaty establishing a Constitution for Europe: Appropriate answers to the Laeken Questions?’ (2003) 40 CMLRev 1315 Google Scholar. However, I do not wholly share the authors’ evaluations of the Treaty.

² Opinion 1/92 European Economic Area [1991] ECR I–6079.

³ In his pamphlet on the Constitutional Treaty, A Union of its Own Kind, MacCormick draws a contrast between the present functional constitution of the Union and the formal constitution to be established pursuant to the Treaty. MacCormick’s, N views on the constitution al structure of the present Union are more fully set out in Questioning Sovereignty (Oxford, Clarendon Press, 1999)Google Scholar.

⁴ Art 281 EC, as interpreted by the Court of Justice in Case 22/70 Commission v Council (AETR) [1971] ECR 263.

⁵ The TEU does not explicitly acknowledge that the Union possesses legal personality. However, Art 24 TEU establishes a procedure under which international agreements may be concluded for the purposes of the CFSP and PJCCM. The Council has adopted the practice of concluding such agreements in the name of the Union, and this practice has not been questioned by international partners. For a fuller discussion of the legal personality issue, see Dashwood, A, ‘Issues of Decision-making in the European Union after Nice’ in Arnull, A and Wincott, D (eds), Accountability and Legitimacy in the European Union (Oxford, Oxford University Press, 2003) 13 Google Scholar, at 17–21.

⁶ I argue in that piece that a basis exists, even under the present Treaty structure, for the recognition of a ‘general’ Union personality, which has subsumed the personalities of the European Community and the ‘limited’ personality of the Union, as established by the practice of Treaty-making under Art 24 TEU.

⁷ The leading cases on primacy that pre-date the United Kingdom’s accession to the Communities are: Case 6/64 Costa v ENEL [1964] ECR 585; Case 11/70 Internationale Handelsgesellschaft mbH v EVGF [1970] ECR 1125.

⁸ The primacy principle was authoritatively re-stated by the Court of Justice in Case 106/77 Simmenthal [1978] ECR 629.

⁹ Joined Cases C–10 to 22/97 IN.CO.GE [1998] ECR I–6037.

¹⁰ Case 11/70, above n 6.

^10a However, national courts must endeavour to interpret national law in conformity with binding Third Pillar measures: See Case C-105/03, Pupino, judgment of 16 June 2005, not yet reported.

¹¹ [1994] 1 CMLR 57.

¹² See, notably, Factortame v Secretary of State for Transport [1991] 1 AC 603; Equal Opportunities Commission v Secretary of State for Employment [1994] 1 WLR 409.

¹³ Thorburn v Sunderland City Council [2002] 4 All ER 156.

¹⁴ On the generalisation of the co-decision procedure, presently provided for by Art 251 EC, so that it will become the ‘ordinary legislative procedure’ of the Union, see below.

¹⁵ Art I–21(4).

¹⁶ Art III–300(2)(b).

¹⁷ On fundamental rights generally, see Hartley, T, The Foundations of European Community Law (5th ed, Oxford, Oxford University Press, 2003)Google Scholar ch 6; Arnull, A, The European Community and its Court of Justice (Oxford, Oxford University Press, 1999)Google Scholar ch 6. On the Charter, see QC, LordGoldsmith ‘A Charter of Rights, Freedoms and Principles’ (2001) 38 CMLRev 1201 Google Scholar; Arnull, A ‘From Charter to Constitution and Beyond: Fundamental Rights in the new European Union’ [2003] Public Law 774 Google Scholar.

¹⁸ The rights of the elderly (Art II–85), the integration of persons with disabilities (Art II–86); and environmental protection and sustainability (Art II–97).

¹⁹ See the literature cited above in n 17.

²⁰ The EURATOM Treaty would be retained as a separate text, though Protocol No 36 would amend it, so as to bring it into line with the Constitutional Treaty. Since this is a sectorally-specific Treaty of minor importance, it was evidently not thought to be worth the trouble of integrating EURATOM into the unified structure.

²¹ Art I–12(1), (2) and (5).

²² Art I–13(1). The inclusion in the list of competition rules necessary for the functioning of the common market is inept but not actually damaging; such rules could not, in any event, be adopted at Member State level. I am more unhappy about Art I–13(2), which identifies the circumstances that render exclusive the competence of the Union to conclude international agreements. For a critical discussion, see Dashwood, A, ‘The Relationship between the Member States and the European Union/European Community’ (2004) 41 CMLRev 355 Google Scholar, at 371–373.

²³ Art I–17.

²⁴ Art I–14.

²⁵ See Art I–1(1) and Art I–11(2).

²⁶ For more detailed consideration of the institutional structure envisaged by the Constitutional Treaty, see Dashwood, A and Johnston, A, ‘The Institutions of the Enlarged EU under the Regime of the Constitutional Treaty’ (2004) 41 CMLRev 1481 Google Scholar.

²⁷ Art 13(2) TEU.

²⁸ My criticisms of the current practice are more fully developed in Dashwood, A, ‘Decisionmaking at the Summit’ (2000) 3 CYELS 79 Google Scholar and in Dashwood, A ‘Issues of Decision-making in the European Union after Nice’ in Arnull, A and Wincott, D (eds), Accountability and Legitimacy in the European Union (Oxford, Oxford University Press, 2003) 13, at 35–36Google Scholar.

²⁹ Art I–22.

³⁰ So that, for example, the nomination of the Commission President will continue to be a power of the Council meeting in the composition of Heads of State or Government (Art 214(2) EC), rather than of the European Council as such.

³¹ That is the office presently held by Mr Xavier Solana, as provided for by Art 207(2) EC and Art 26(2) TEU. For a Commissioner to be a Council office-holder would be incompatible with his/her duty neither to seek nor to take instructions ‘from any other body’ (Art 213(2) EC).

³² It is laid down by Art 251 EC.

³³ See, respectively, Art 37 EC (consultation of the European Parliament) and Art 161 EC (assent of the European Parliament).

³⁴ Protocol No 1 on the Role of National Parliaments in the European Union, Art 2, third para.

³⁵ Ibid, Art 5.

³⁶ See Protocol No 2 on the application of the principles of subsidiarity and proportionality.