This is not a comprehensive report on the contents of the Constitutional Treaty, whose ratification is shortly to be debated in Parliament. The details are available to all in public documents.

In November and December, I was invited to address, and reply to questions from, the members of the European and Foreign Affairs Parliamentary Committee. What follows is a summary of the main points that I made on those occasions.

My approach then, as now in this article, was to speak about my concerns at the start of the process that led to the drafting and then signing of the Constitutional Treaty and to present my broad conclusion at the end of the process and in the run-up to its ratification by the member states, including Malta.

I had one overriding central concern at the start of the Convention on the Future of Europe: it relates to the avowed necessity of heightened qualified majority decision-making (qualified majority voting in Council) as linked to the textual articulation of the rule of primacy ("Union law is supreme over national law") and the question of 'voice' for the national polity, especially that of national parliaments. The possible negative implications for a single state (especially, but not exclusively, for one that was 'small') in an enlarged Union of at least 25 were obvious.

Therefore, I argued at every opportunity that moves in this majoritarian direction could only be legitimated, and the results of majority decision-making claim legitimate primacy over national legislation and political support in the member states, if, at the same time as making a move to majoritarian decision-making in areas hitherto subject to unanimity, the Treaty also properly articulated procedural and substantive loyalty obligations under the principle of solidarity and, at the same time, ensured the preservation of the Community method's lynchpin, i.e. the role of the Commission as the guardian of the general interest and of small states in particular.

This at the general level, and for all member states, as there are ultimately no 'large' or 'small' states in a system of majority voting. Each and every one can be outvoted. But none should be ignored and none should see its essence diluted.

I argued that Malta was a small state with few and limited resources - natural, economic and human - and had a particular role and interest in the Mediterranean. Would these aspects be addressed as the case warranted?

What I hoped to see, then, in the light of our membership of the Union, was:

¤ articulation of the solidarity principle in value, procedural and substantive terms;

¤ Commission right of initiative and wherever possible sole power of initiative over all new Union legislation, so that only a truly independent and supranational body could propose laws;

¤ fullest involvement of the European Parliament combined with a guardianship role for national parliaments in protection of national interests (e.g., the implementation of the principles of subsidiarity, proportionality) and in particular in the sensitive area of freedom, security and justice;

¤ fullest possible jurisdiction for the European Court of Justice as the guardian of the rule of law in the Union;

¤ incorporation of the Charter and possible accession of the EU (for which legal personality would be necessary) to the European Convention;

¤ as a Union of Peoples and States full respect for individual rights as protected also by national constitutions and for the essence of statehood, essential specificities and national identity; and

¤ A proper articulation of the Union's role in the world (with an eye on the Mediterranean).

These were my own personal 'conditions' if the Constitutional Treaty were to get my 'personal' support. So, were my conditions fulfilled?

Broadly, yes. Disappointments? Not such as to deny support. Conclusion: I support, indeed welcome, the Constitutional Treaty. Broad reason: It is a clear improvement in terms of loyalty and fairness as between member states and citizens of the Union; in terms of democracy and openness in decision-making at European level; and in terms of capacity, promised effectiveness and efficiency in tackling common challenges and threats including those external threats, we all face and face better together.

Summary of reasons

1. While majority voting spreads to most areas of decision-making, barring in principle CFSP (foreign and security policy) and ESDP (security and defence), this is under co-decision (the 'ordinary legislative procedure' as it will be known) in most cases, i.e. with full involvement of the Commission and the EP. This should mean the fullest possible dialogue with national authorities, and lead to policy and legislative proposals resulting from a process that takes the fullest account of national specificities as well as the 'Union' objectives.

2. Where unanimity remains the method of decision-making, it does so in those areas where we would want it to remain: CFSP/ESDP, tax, social security, and decisions as to financial perspectives and structural funds.

3. National parliaments will have full opportunity to 'vet' legislative proposals and an express role and means of action under a special procedure to monitor the exercise of competences by the Union against the principles of subsidiarity and proportionality (but our European and Foreign Affairs Committee will need the resources to cope with the workload!).

4. While there is no general solidarity clause of the kind I would have wanted to see - providing a synchronised mechanism for the extending of assistance to the "willing but unable" (thus freeing them to vote in favour of measures that they agree to in principle but feel they must decline to support because they involve burdens that member states such as Malta feel they cannot bear without specific guarantees of assistance) - this principle is articulated as a value and also in a concrete way in specific cases (e.g., illegal immigration). And this in the context of a new general two-way loyalty clause and a statement of values that includes solidarity.

Therefore, there are several provisions that expressly demand that solidarity be practised procedurally in specific contexts and this as part of the decision-making process. Suffice it to say that we find this in at least three articles within the Chapter on the Area of Freedom, Security and Justice alone. Otherwise solidarity is listed as a value of the member states and the Union in Article I-2.

The Union and the member states must further, "in full mutual respect", assist each other in carrying out the tasks which flow from the Constitution. This is as close as we get to a general solidarity clause that is specific in the sense of mutual assistance in concrete terms.

I emphasise that, on my reading, this duty of loyalty as owed by the states does not mean that member states will be bound to assist the Union where the Treaty itself provides that member states may 'constructively abstain' or otherwise opt out of, or choose whether to opt in to, any particular policy decision.

The 'grey area' as to the relationship between this respect-and-assist clause and the obligation on members to "facilitate the Union's tasks and refrain from any measure which would jeopardise the attainment of the Union's objectives", in my view, does not affect the primary position; it seems clear to me that the obligation "to facilitate, etc." in the general clause cannot override the specific opt-out mechanisms; and the general provision is there to ensure that there is real dialogue and exchange over positions, rather than to pressure one party or the other in any particular direction; in short, the two ideas stand side by side: respect for the national position and respect for the Union position - mutual respect and a mutual obligation if they find themselves on opposite sides of the fence to endeavour to work things out to mutual satisfaction.

5. Article 1-6 (coincidentally the same numbering as for our own Constitution's supremacy clause) textualises the "primacy rule" for the first time. It provides that: "The Constitution and the law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the member states."

My comment is: the primacy rule is not new. Member states have 'lived with it', indeed accepted it, for over 40 years precisely because it has its limits and because Community law/Union law is made within limits, even if made by majority. It is precisely the role of a Constitution to set out those limits as clearly as it sets out powers.

Majoritarianism is not uncontrolled. The rule of law prevails. And this 'law' includes values, general principles of Union law (such as respect for fundamental rights, proportionality, etc.), Article 1-5, the limits on competence and attributed power, the Charter on Fundamental Rights as incorporated in Part Two of the Treaty, the consultation and legislative procedures, the safeguard clauses, the two-way loyalty clause rooted in solidarity and ultimately the dialogical discourse (conducted by the European Court and the national courts) between the two legal orders - the Union legal order and the national legal order - in virtue of the preliminary reference procedure.

The 'law' is a wider realm than that of 'secondary Union law' (law made by the institutions) and wider even than the Treaty, which itself does not exist in a vacuum of law. The role of the European Court of Justice (ECJ) itself is to ensure that in the interpretation and application of the Constitutional Treaty 'the law' is observed; this formula again is not new and has always meant sensitivity to national constitutional traditions, general principles of law in the member states and principles of international law.

In a system of 'rule of law' then, it is only valid Union law - made within the limits to which I have referred - that 'benefits from' the Union's primacy rule. Union law can be, and has often been held to be, invalid by the European Court of Justice for breach of these limits.

As I read the Treaty, the member states, while clarifying competences and ensuring that decisions can be taken in areas where they need to be taken, have clarified and indeed added to the 'limits' around Union law and the exercise of competence.

The article that immediately precedes Article I-6, namely Article I-5, expresses limits, in the context of a new two-way loyalty clause, vis-à-vis national constitutions as such: it obliges the Union to respect not only the principle of equality as between member states (and the principle of equal treatment means fair treatment), but also their national identities inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government.

Article I-5 also provides that the Union shall respect the member states' 'essential state functions', 'including' (not exhaustively, therefore) those of ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security.

We cannot say just how widely or narrowly these provisions will be interpreted in the future, but it seems clear to me that the intention was to reproduce the principal reservations to the scope of the primacy rule that were expressed over the years by some member state supreme courts, mostly in the context of their own Constitutional human rights clauses, as well as their constitutional structures.

As I said above, the primacy principle is not new, and has been accepted in principle by member states and their Constitutional Courts. On the other hand, the new express restrictions (or limitations) on the Union primacy rule, and to be added to all the other possible causes of invalidity of Union law, and set out in Article 1-5, are new.

The ECJ never itself acknowledged that there were any such limits to Union competence and therefore to the primacy rule that it had set out. It is now the member states themselves that have articulated and inserted the primacy rule in a Treaty for the first time, but in doing so they have taken care to limit its possible reach as I said above - reflecting case-law at the highest constitutional levels in the member states - thereby preserving the ultimate sovereignty of the essence of their constitutions and of their people.

I made another point to the Parliamentary Committee. Neither the Treaties, nor the European Court of Justice in the course of interpreting the current treaties and developing the Union legal order, nor now the Constitutional Treaty, have ever insisted, or been taken to mean, that as a matter of Community/Union law there can be no 'domestic primacy rule', whether express or tacit, in a member state's constitution. Nor could they formally do that; for there is no competence in the Union to regulate national constitutions or their contents.

Article I-6 of the Constitutional Treaty could not be interpreted as doing any such thing. I am sure it does not. Had the intention been to eliminate the ultimately sovereign nation state or the sovereign will of its people in favour of a Union state and the sovereignty of a European people, there would be no withdrawal clause, as there is in the Constitutional Treaty.

Moreover, the Treaty would have constituted the European Court of Justice a truly supreme Constitutional Court by giving it jurisdiction to declare national law invalid, as it would have done if we were looking at a 'state' model.

Ultimate sovereignty continues to reside in the people of each state and their Constitution. This explains why the ECJ's primacy caselaw was addressed to national courts, addressing to them the primacy rule in terms of an obligation to give effect to the Community rule while not applying any conflicting national rule in any particular proceedings before them having a Community element.

Even with textualisation of the rule in the Treaty, where it is arguably directed not only at courts but also at legislatures and governments (the de facto and de jure situation even under the current Treaties) the ECJ could not declare invalid even an ordinary national law, let alone a provision of a national constitution - for it has been given no jurisdiction to do so. Only a national supreme court can do that.

All the ECJ can do is hold that a member state is in breach of its obligations under the Treaty if the latter breaches those obligations (whether because its courts interpret the law as being in conflict or for any other reason). The consequences according to Union law are not invalidity of the provisions of a national Constitution or the laws or acts of the member state, but the consequences as they emerge from the Treaty should national courts (and other national authorities) fail to apply valid and applicable Union law.

Moreover, and especially where the difficulty in applying Union law involves a perceived conflict with a national constitution, the EU constitutional method is for there to be a constitutional dialogue as between the Union 'sphere' and the national constitutional sphere, wherein processes of interpretation have in the past resolved many conflicts.

Articles I-6 and Article I-5 of the Constitutional Treaty, and that complex set of principles and rules that go to limit Union action and declare its invalidity as a matter of Union law itself, are to be taken and read together: they say that the Treaty and law made under it must be applied by national courts in preference to any truly conflicting national law, even constitutional law, where they are valid rules that have passed the test of the legal limits on the making of such rules, which in turn are in place to protect the essence of national constitutions and the rights and prerogatives of the member states.

Therefore, Article I-6 must be read in context if it is to be understood. And another important part of this context is the consideration that the European Court of Justice will reach its conclusion (on the Union law position, not the national law position), most often through and after a process of full dialogue between the two areas or spaces, via the preliminary reference procedure initiated by a national court.

And this leads me to my final point: our Constitutional Court, as other member states' constitutional courts, can best and most strongly engage in such a dialogue if in fact there be, as there is, a national primacy rule bidding them to apply our Constitution. So Section 6 of our Constitution not only may but, I argue, should remain, for this reason.

This is not to say that consensus may not be found to reword Section 6 to retain its essence while giving a message more widely that Malta fully intends to comply with its international obligations - I leave this to the politicians to consider. Alternatively, the ratification measure might itself be so worded as to reflect this idea.

To be concluded

Peter Xuereb is Professor of European and Comparative Law, Jean Monnet Professor, chairman of the European Documentation and Research Centre (Jean Monnet European Centre of Excellence) at the University of Malta. The views expressed in this article are those of the author and do not necessarily reflect those of the EDRC.