TheEuropeanConstitution:
theRubiconCrossed?
ErikOddvarEriksen,
JohnErikFossum,
MattiasKummand
AgustínJoséMenéndez
ARENAReportNo3/05
The European Constitution:
the Rubicon crossed?
Erik Oddvar Eriksen,
John Erik Fossum,
Mattias Kumm and
Agustín José Menéndez
Copyright ARENA
ISSN 0807-3139
Printed at ARENA
Centre for European Studies
University of Oslo
P.O.Box 1143, Blindern
N-0317 Oslo, Norway
Tel: + 47 22 85 76 77
Fax: + 47 22 85 78 32
E-mail: arena@arena.uio.no
http://www.arena.uio.no
Oslo, February 2005
Source cover picture:
http://europa.eu.int/comm/mediatheque/photo/select/treaty/92-d10-53h.jpg
Preface
The present report is produced under the framework of the CIDEL
project, and contains contributions presented at the CIDEL workshop
on “Constitution-making and Legitimacy” held in London by Birkbeck
College on 12-13 November 2004.
CIDEL - Citizenship and Democratic Legitimacy in the EU – is a 3-years
(2003-2005) joint research project with ten partners in six European
countries.
The project is coordinated by ARENA, University of Oslo, and is
supported by the European Commission’s Fifth Framework Programme
for Research, Key Action ‘Improving the Socio-Economic Knowledge
Base’.
Erik Oddvar Eriksen
Scientific Responsible
CIDEL project
Table of contents
Introduction – Crossing the Political Rubicon
Erik Oddvar Eriksen,
John Erik Fossum and
Agustín José Menéndez……………………………………………… 1
Chapter 1
To be a European citizen: Contsitutional Patriotism and the
Treaty Establishing a Constitution for Europe
Mattias Kumm …………………………………………………….. 7
Chapter 2
Closing of the EU’s legitimacy gap?
Erik Oddvar Eriksen and
John Erik Fossum………….……………………………………….. 65
Chapter 3
Still adrift in the Rubicon?
The Constitutional Treaty Assessed
John Erik Fossum and
Agustín José Menéndez………….………………………………….. 97
Annex
Treaty establishing a Constitution for Europe
Parts I and II……………………..………………………………... 145
Introduction
Crossing the Political Rubicon
Erik Oddvar Eriksen, John Erik Fossum and Agustín José Menéndez
ARENA, University of Oslo, and University of León
‘In the beginning, [the European Union] … was more of an
economic and technical collaboration… At long last, Europe is on its
way to becoming one big family, without bloodshed, a real
transformation clearly calling for a different approach from fifty years
1
ago, when six countries first took the lead’.
The Laeken Declaration asserted that the European Union is presently at a
crossroads. In December 2001, at the eve of large-scale enlargement and in
the midst of a broad debate on the Union’s future, this observation had
considerable merit. Today, although we have the text of the Constitutional
Treaty, this has not laid to rest the deep questions pertaining to the nature
and status of the European Union as a polity. But one thing has become
abundantly clear. We Europeans can no longer keep on pretending that the
Union is a mere economic enterprise. In addition to entering the
constitutional terrain, the Union makes up most of Europe, has instituted
European citizenship and a wide range of citizens' rights, controls monetary
policy in twelve countries, might soon get a police border of its own, and has
a decisive influence over national tax and spending policies.
1
Laeken Declaration, 2001.
2
Eriksen, Fossum and Menéndez
Since the inception of the pioneering Coal and Steel Community in 1951,
the process of European integration has achieved substantial political goals:
peaceful co-existence, improvement of living standards, and economic and
political solidarity among Europeans. Core means were undoubtedly
economic, among which of course are the four economic freedoms and the
free competition policy. But there were also explicit legal and political means.
The founding treaties gave birth to a new legal order, the legitimacy of which
rested on the common constitutional traditions of the Member States. As the
process of integration unfolded, as new competences were assumed in the
seventies, eighties and nineties, the political nature of the Communities
became more explicit. At the same time, the constitutional nature of the
European legal order was overtly affirmed. The weakest point was clearly that
the Union underwent constitutionalisation without constitutional politics,
that is, without direct popular input. The fact that the Union has a sort of
functional constitution which was never debated and approved by European
citizens is indeed at the root of the Union's democratic deficit.
This helps explain Joschka Fischer's insistence in his famous Humboldt speech
that the Union needed a Constitution that citizens could regard as their own
in order to overcome its legitimacy crisis. Fischer´s speech signalled the need
for Europe to invoke a genuine constitutional moment. The Laeken
Declaration not only acknowledged that, but also provided a concrete
response. It opened up a constitution-making process which departed
substantially from the ‘quasi-diplomatic’ mode of treaty-making that is
characteristic of Intergovernmental Conferences. One novelty of the Laeken
process is the conveyance of a deliberative Convention mandated to come up
with proposal(s) for the future constitutional order of the Union. The
Convention thus instilled a more democratic procedure for constitution
making.
As already indicated, the Union has been involved in constitution-making for
decades already, since the Communities' very inception. But now it has been
made much more reflexive. A much more variegated set of stakeholders have
been directly involved in the process. Indeed, most of the members of the
Convention were parliamentarians, not government representatives. In
addition, the Convention's work has been transparent and been openly
exposed to public influence and criticism. The political tensions that emanate
from Europe’s sheer diversity and from the breadth of constitutional visions
Crossing the Political Rubicon
3
and traditions came out in the open. Despite all this, the Convention
succeeded in putting forward one single coherent proposal, one blueprint for
a Constitution for Europe.
What can be said about the Draft? Can it be seen as a further step in the
forging of a European democratic constitution, or is it a mere exercise in
consolidating the structure in place? The jury is still out on these matters but
some projections are pertinent.
First, the Convention exercise amplifies the long-held notion that the EU has
entered the constitutional terrain. The constitution making process has gone
on for decades, but has now been made more reflexive. A much more
variegated set of stakeholders have been directly included in the process. This
has also exposed the political tensions that emanate from Europe’s sheer
diversity and from the breadth of constitutional visions and traditions.
Second, the very title Draft Treaty establishing the Constitution for Europe
suggests that the process has not yet come to a halt. But what is the nature of
this process? The EU constitution does not emanate from scratch, but rather
through the careful and incremental forging of a constitutional structure with
multiple roots: in EU law, in common national constitutional traditions, and
in international law.
Third, an important part of this process of European constitution-making has
been that of a process of fusion of national constitutional traditions.
Democratic constitution-making implies the appropriation of the Constitution
by its citizens, bound by reasons, not by the past. This aspect of fusion makes
the implications for national constitutional arrangements more readily
apparent. The continued insistence on the role and importance of democracy
is an obvious aspect of this fusion. This is also reflected in efforts to make the
emerging constitutional structure comply with democratic principles and to
offer a contribution to the rectification of the EU’s democratic deficit. The
measures include efforts to strengthen EU-level democracy, as well as to
strengthen national (parliamentary) involvement in EU activities.
Fourth, the Draft Constitution must be characterised as a hybrid between a
nation-state constitution and an international treaty - a constitutional treaty.
This is so because the Union is said to have a double source of legitimacy:
4
Eriksen, Fossum and Menéndez
one springing from the will of the national Member States, and another from
the will of the European citizens. In this sense, the Draft retains strong
vestiges of the system in place. It is marked by hybridity even though the
federal imprint is readily apparent.
Fifth, the Draft and the process of forging it are evocative of a clear move
beyond intergovernmentalism. The compelling language of the Charter - an
integral part of the Draft - offers further testimony to the entrenchment of a
supranational European Union.
These developments rhyme with the Laeken Declaration’s evocative language
of a real ongoing transformation. The Convention exercise amplifies the
long-held notion that the EU has entered the explicit constitutional terrain.
Some analysts have warned against such an endeavour, as they are concerned
with it possibly undermining the present legitimacy basis of the Union (i.e.,
its derivative character from States) without providing an alternative one.
However, there are grounds for cautioning against interpreting the Draft
Constitution as the forging of a state. The EU is not a state, and the Draft
does not offer the blueprint for an EU state. It offers no unambiguous
grounds for asserting that the EU has the clear vocation of becoming such. It
could be argued that the draft Constitution is an attempt to find a new
balance between a Europe of states and a Europe of citizens. The
Constitutional Treaty is not only a pact among citizens, but neither is it
merely a contract among states. It has achieved an element of supranational
normativity based on the principles of fundamental rights, rule of law, and
democracy. In practice, the claim for direct legitimacy is only partially heeded:
the citizens of Europe should be included directly or via their representatives
in EU law-making but the institutional channels for doing so are still
democratically defunct.
A constitutional moment has been signalled. A Constitutional text has been
drafted. Still, the European constitutional future is uncertain. But one thing is
clear: We can no longer seriously hold that the Union is a mere functional
organisation. It is, and it should keep on being, a genuine political
community.
In the below we offer three assessments of the Draft Constitutional Treaty,
which focus on its possible implications for the question of a European
Crossing the Political Rubicon
5
identity, the type of entity that we may envisage from the Draft and its
attendant legitimacy basis.
If the stability and effectiveness of the European Union in the long term
depends on a sufficiently strong European identity, what kind of European
identity does the Constitutional Treaty invite European citizens to adopt? The
Constitutional Treaty, Mattias Kumm argues in Chapter 1, invites citizens of
Europe to become constitutional patriots. For purposes of conceptual
clarification, the first part of his chapter defends the idea of constitutional
patriotism as a European identity against a number of basic criticisms.
Through a close analysis of the Preamble as well as provisions addressing the
authority and legitimacy of the European Union Kumm analyzes what
concrete form a supranational identity focused on the Constitutional Treaty
could take. In a final part Kumm ventures to tentatively explore whether the
Constitutional Treaty and the political and legal practices it structures are
likely to contribute to the development of a European identity. It is argued
that, whatever other factors may also influence the development of a
European identity, the establishment of meaningful electoral politics on the
European level is likely to be a necessary condition for such an identity to
develop any time in the foreseeable future. The Constitutional Treaty does
little to help remove obstacles to the developments of meaningful electoral
politics in Europe, but there is a ray of hope: The chapter concludes that
purposive interpretation of the Constitutional Treaty in conjunction with
strong parliamentary assertiveness vis-à-vis the Council could create
conditions more favorable to the development of both a meaningful
European electoral process and a European identity grounded in
constitutional patriotism.
In Chapter 2, Erik O. Eriksen and John Erik Fossum underline that since the
early 1990s, the EU has changed from an organisation whose legitimacy was
derived from the Member States, to an entity which now claims that its
legitimacy be reflected in its own institutional and constitutional make-up.
But despite having taken measures to this effect, it still suffers from a
democratic legitimacy gap. Eriksen and Fossum address the character of this
gap from a deliberative democracy perspective. Further, they discuss whether
the ongoing process of constitutionalisation will bridge the gap. The EU, in
its present form is a polycentric entity, and contains a set of governance
structures that are based on non-hierarchical cooperation and problem-
6
Eriksen, Fossum and Menéndez
solving, conducive to deliberative supranationalism, but inadequate to bridge
the democratic legitimacy gap. In the chapter, Eriksen and Fossum discuss
what type of entity that can be envisaged from the Draft Treaty establishing a
Constitution for Europe. They find that it will be more coherent than the
present one, hence the notion of the EU as a fledgling bi-cephalous government.
The Draft represents an improvement on the present EU in legitimacy terms.
But rather than settling this issue the Draft better reflects the still-in-progress
EU, an entity that is forged through a process with a marked deliberative
imprint and through successive working agreements.
The purpose of Chapter 3 is to establish which conception of a legitimate
European Union the provisions of the Constitutional Treaty speak to. To do
so, Fossum and Menéndez proceed in four steps. Firstly, they spell out three
basic conceptions of legitimacy and apply these to the Union (as a problemsolving organisation, a value-based community, or a rights-based Union).
Secondly, they derive more specific expectations on the substantive contents
of the European Constitution from each of the three conceptions of the
Union. This is done in four specific regards: on the distribution of
competences; the structure of the law-making process; the protection of
fundamental rights; and the articulation and acknowledgment of identity.
Thirdly, Fossum and Menéndez analyse the actual contents of the
Constitutional Treaty, with specific attention to the issues listed above.
Fourthly, they discuss what the findings yield in terms of designating the
Union’s status in polity terms. The main finding is that the Union clearly has
transcended the problem-solving conception, and that the Constitutional
Treaty underlines this in both symbolic and substantive terms. This is so not
least because the Constitutional Treaty entails (a) a formalisation of the norms
which allocate competences among the Union and the Member States; (b)
the affirmation of direct legitimacy and parliamentary democratic legitimacy
as the pillars of the democratic legitimacy of Union law; (c) the formal
incorporation of a catalogue of fundamental rights binding all institutions
acting within the scope of Union law; and (c) the constitutionalisation of key
elements of a European identity.
Chapter 1
To be a European Citizen:
Constitutional Patriotism and the Treaty
Establishing a Constitution for Europe1
Mattias Kumm
Professor, NYU School of Law
‘L’identité de l’Europe sera constitutionelle ou ne sera pas.’
Le Monde, May 5 1998
The long term stability and efficiency of the European polity depends to some
extent on European citizens developing a sufficiently strong commitment to
and identification with it. If the European Union is to successfully master the
tasks assigned to it and, using a non-consensual procedure, decide on policies
significantly effecting the allocation of risks and resources between European
citizens, then the development of a sufficiently robust European identity is
widely believed to be necessary to ensure the legitimacy and the functioning
2
of the polity in the long term. There is little doubt that such an identity is
1
I thank the conveners and participants of the CIDEL workshop on Constitution-Making and
Democratic Legitimacy in the European Union at Birkbeck College, London on 13 and 14
November 2004 for their helpful input.
2
Empirical research suggests that there is a strong correlation between the development of a
European identity and support for European institutions, see A. Maurits van der Veen,
8
Mattias Kumm
3
currently missing. The general question is what such an identity should be
and what the conditions are under which such an identity is likely to
4
develop.
The question to be pursued here is what the Constitutional Treaty
(hereinafter: CT), signed by Member States on 29 October 2004 and to be
ratified within the next two years, has to contribute to the development of a
European identity. There are two aspects to this question. First, what is the
normative idea of the European Union that the CT embraces? What is the
normative core of the identity it invites citizens to adopt? Second, what are
the circumstances under which such an identity is likely to develop? And does
the Constitutional Treaty help to establish the conditions that support the
development of such an identity?
Determinants of European Identity: A Preliminary Investigation using Eurobarometer Data at
www. Isanet.org/noarchive/ vanderveen.html (analyzing Eurobarometer statistics to show that a
sense of European identity is not simply a proxy for support for European integration, but that
a sense of European identity has a far greater impact on support for integration than vice versa.
Moreover, variables that are often argued to promote support for European integration are
shown to do so primarily through their impact on a sense of European identity). For an
explanatory account why that may be so see J. Habermas, Ist die Herausbildung einer
europäischen Identität nötig, und ist sie möglich?, in: Der gespaltene Westen (Frankfurt am Main,
Suhrkamp 2004).
3
According to a 2003 Eurobarometer survey 43% of European citizens feel they are nationals
only and 47% feel they are firstly citizens of their own country and then citizens of Europe.
Only 7% feel they are Europeans firstly and then citizens of their country while 3% feel
European solely. See more generally A.-P. Frognier and S. Duchesne, Is there a European
Identity?, in: O. Niedermayer and R. Sinnot (eds.), Public Opinion and International Governance
(Oxford, Oxford University Press 1995), pp. 194-226.
4
The debate on what European citizenship could mean could be was spurred on by the
inclusion of a citizenship clause in the Maastricht Treaty. Helpful contributions include F.
Mayer and J. Palmowski, European Identities and the EU – The Ties that bind the Peoples of
Europe, 42 Journal of Common Market Studies (2004), pp. 573-578, J. E. Fossum, The European
Union in search of an identity, 2 European Journal of Political Theory (2003), pp. 319-340; J.
H.H.Weiler, To be a European citizen: Eros and Civilization, in: A Constitution of Europe
(Cambridge, Cambridge University Press 1999), p. 324; J.d’Oliveira, ‘European Citizenship: Its
Meaning, Its Potential’, in: R. Dehousee (ed.) Europe After Maastricht: An Ever Closer Union?
(Deventer, Kluwer 1994); E. Marias (ed.) European Citzenship (Maastricht, European Institute
Public Administration 1994); J. Shaw, ‘Citizenship of the Union: Towards Post-National
Membership’, 6 Academy of European Law (1995), p. 237. See also G. Soledad, European
Identity and the Search for Legitimacy (London; New York: Pinter Publishers for the Eleni Nakou
Foundation and the Royal Institute of International Affairs 1993).
Constitutional Patriotism and the Constitutional Treaty
9
The first question focuses on the normative ideal embraced by the
constitutional document itself. What is the story that the CT in its textual selfpresentation tells about the way the European Union fits into legal and political life in
Europe? What kind of European identity does it invite European citizens to
adopt? That question can be broken down into several more specific
questions: What does the CT say the European Union stands for? What is its
basic purpose? What is its authority in relationship to Member States? What
makes it legitimate? In answering these questions the core part of the article
provides a reconstructive account of the conception of supranational identity that
the CT embraces and its text articulates. It does not seek to contribute to the
immense literature discussing the normative questions what an adequate
European identity should be, whether national courts ought to accept the
ECJ’s claim that EU Law is the supreme law of the land or whether the EU is
in fact democratically legitimate or not. Its purpose is primarily reconstructive
and its method analytical. It seeks to highlight the core features of the
European Union as a supranational polity as it is presented in the CT. The core
part of the paper focuses on these questions. The second part is more
empirically focused and less developed. It tentatively explores whether the
Constitutional Treaty and the political and legal practices it structures are
likely to contribute to the development of such a European identity.
Because the identity the CT invites citizens of Europe to adopt is a version of
constitutional patriotism, the first part briefly presents the idea of
constitutional patriotism (I). Its purpose is to provide some conceptual
clarification and clear the ground for the more specific discussion of
constitutional patriotism as a European identity embraced by the CT. The
specific contours of Constitutional patriotism as a European identity will then
be explored by an analysis of the Preamble (II). To further give contours to
the idea of the specifically supranational identity that the CT embraces, the
article will then discuss some core provisions pertinent to the authority (III)
and legitimacy (IV) of EU Law and analyze the conception of authority and
legitimacy they reflect. The CT’s conception of authority and legitimacy
serves to highlight the relationship between Member States and the European
Union and gives more concrete contours to the idea of the EU as a
supranational community. In a final part the article ventures to tentatively
explore whether the Constitutional Treaty and the political and legal practices
it structures are likely to contribute to the development of a European
identity (V). It will argue that, whatever other factors may also influence the
10
Mattias Kumm
development of a European identity, the establishment of meaningful electoral
politics on the European level is likely to be a necessary condition for such an
identity to develop any time in the foreseeable future. The CT, however,
does not allocate decision-making authority between European institutions in
a way that strengthens European electoral politics. Instead there is a danger
that the CT will undermine rather than foster the development of a
meaningful European identity. Instead of embracing constitutional patriotism
European citizens are likely to continue to oscillate between disinterest in
European political life and national recalcitrance. But there is a ray of hope:
The article concludes that purposive interpretation of the CT in conjunction
with strong parliamentary assertiveness vis à vis the Council could create
conditions more favorable to the development of both a meaningful European
electoral process and a European identity grounded in constitutional
patriotism.
The Idea of Constitutional Patriotism
One well known answer to the question what a European identity could be is
5
that Europeans should become constitutional patriots. The basic principles of
the liberal democratic constitutional tradition should be understood as the
focal point for the development of a common European identity. The
constitutional commitment to human rights, democracy and the rule of law
highlighted as the foundational values of the European Union in Art. I-2 of
6
the Constitutional Treaty is to be the bond that ensures cohesion among
European citizens. But what does it mean for an identity to be shaped by
these ideals? A good way to clarify the basic structure of constitutional
patriotism as a collective identity is to discuss arguments claiming to discredit
the very idea of constitutional patriotism.
5
The best known contemporary proponent of constitutional patriotism as an identity for
citizens in liberal constitutional democracies generally, as well as the EU, is J. Habermas, Why
Europe Needs a Constitution, in: E.O.Eriksen, J.E. Fossum and A. Menéndes (eds.), Developing
a Constitution for Europe (London, Routledge 2004), pp. 19-35. See also J. Habermas, The
European Nation-State: On the Past and Future of Sovereignty and Citizenship, in: The
Inclusion of the Other (Cambridge, Polity Press 1998), pp. 105-127 and J. Habermas supra, note
1. See also A. Ingram, Constitutional Patriotism, 22 Philosophy and Social Criticism (1996), pp. 118.
6
Art I-2 CT states: The Union is founded on the values of respect for human dignity, liberty,
democracy, equality, the rule of law and respect for human rights.…
Constitutional Patriotism and the Constitutional Treaty
11
7
As has been pointed out , there are at least three problems with such an idea.
First, both as an ideal and as an actual political and legal practice there is
nothing specifically European about these commitments. They are shared by
liberal democracies as different as Canada, South Africa and India and, as
universal principles, claim to be morally valid everywhere human beings
politically organize their coexistence with one another. Second, rights,
democracy and the rule of law can not serve as a focal point for a European
identity, because there is no European consensus on what they mean. Rights,
democracy and the rule of law are conceptually too thick to have the function
ascribed too them. Human rights in Ireland are not the same as in the
Netherlands. Democracy in France is not the same as democracy in Spain.
And the British idea of the rule of law is different from the German
Rechtsstaatsprinzip. But an identity focused on rights, democracy and the rule
of law is not just too thick. A third problem with it is that it is also too thin. It
is doubtful whether the political liberal tradition of human rights, democracy
and the rule of law is sufficiently thick to effectively function as the cement of a
supranational political community in light of conflicting loyalties connected to
ethically thicker national identities. How can abstract principles – rather than
collectively shed blood sweat and tears - be the kit for a political community?
The response to the first challenge is that the universality of an ideal does not
make it formally inadequate as an ideal of a particular community. It certainly
does not mean that the inclusiveness of the ideal makes it too weak to serve as
a focal point of a common identity. The fact that Christianity or Islam claim
to provide universal doctrines leading to salvation surely has not undermined
their power to structure individual and collective identities. But there may be
a different problem. The problem with universalist ideals as the ideals of
territorially exclusive communities is merely that they do not establish decisive
criteria who may belong to it or not. To illustrate the point: Christians and
Muslims do not constitute territorially exclusive communities. Unlike
communities who establish public authorities whose jurisdiction is territorially
circumscribed, the community of Muslims (the Umma) or the community of
7
A prominent sceptic of constitutional patriotism is Richard Bellamy, Which Constitution for
What kind of Europe? Three Models of European Constitutionalism (on file with author). See also R.
Bellamy and D. Castiglione, Legitimizing the Euro-Polity and its Regime: The Normative
Turn in EU Studies, 2 European Journal of Political Theory (2003), pp.7-34. See also M. Everson,
Strong Evaluations, Self-Interpretation and Constitutional Patriotism, in: E.O. Eriksen, J.E.
Fossum and A.J. Menéndez, Constitution Making and Democratic Legitimacy, Arena Report No. 5
2002, pp.177-183.
12
Mattias Kumm
Christians (the Church in Christ) is not. Everyone is welcome to convert to
Christianity or Islam. Yet Europe is a territorially exclusive community. Not
8
all liberal states may join the European Union. Only European states may.
South Africa, Japan and India, for example, may not, no matter how perfect
their institutionalization of rights, democracy and the rule of law. Does the
insistence on boundaries suggest that universalist ideals are inadequate for
formal reasons to serve as the focal point of collective identities? They do not.
The requirement that a state be European is no reason to engage in soulsearching about the ontology of Europeanness. The requirement of
Europeanness is best understood and has in fact been understood as a loose
geographical criterion that underlines the idea that the European Union is a
regional and not a global organization. The universal idea it embodies is an
idea of world order in which states are regionally integrated as well as
belonging to organizations with universal membership. As a loose
geographical criterion its application should be governed political
considerations of a very practical kind in cases such as the accession of
9
Turkey, Bosnia or the Ukraine. There is no reason, then, why a European
8
Art. I-II CT states: ‘The European Union shall be open to all European states which respect
its values and are committed to promoting them together.’
9
There is no point in asking, for example, whether Turkey is really European, to resolve the
issue of Turkish membership. Its largest city is, whereas most of its land mass is not. Yet most of
its population centers are west of Cyprus, already an EU Member since May 2004. Instead
different questions need to be asked: What is there to gain and what is there to lose for the
progressive realization of European constitutional principles and practices that embody them?
Could Turkey’s membership, for example, help integrate Muslim communities more
effectively in existing Member States such as the UK, France and Germany and enrich
European political practice by deepening the understanding of what pluralism is all about in
Europe? Does Turkish European membership help stabilize and spread the ideas of human
rights, democracy and the rule of law into the Muslim world, where they are currently
struggling to take hold? Given the European Union’s stance in the past that has given rise to
legitimate expectations, what would the effects be if the European Union simply turned down
Turkey in the Muslim world? On the other hand: Is it true that such a step would effectively
preclude the development of genuine European democracy, a European public sphere and
strong social cohesion in Europe, because it would further alienate a majority of European
citizens, strengthening Euroscepticism across Europe? It may well be desirable for serious
efforts to be made by the political establishment in Member States in favor of Turkey’s
accession, but it is highly problematic politically to move forward with Turkish integration, if a
clear and stable majority of European citizens continues to be against it. In this respect the
decision by France to hold a referendum on Turkey’s membership (as France had done in the
case of the UK, Ireland and Denmark) need not be inappropriate. It is an attempt by the
French government to shift responsibility to its citizens and wash its hands of charges of cultural
xenophobia only, if the government makes no serious efforts to persuade the electorate of the
Constitutional Patriotism and the Constitutional Treaty
13
identity should not focus on the realization of ideals that are universal in
Europe.
The response to the second challenge is simple: Disagreement over the
meaning and implications of principles, does not rule them out as a focal point
of a common identity. The consensus on principles need not extend to their
full specification. All that is needed is some level of consensus on what they
mean, supplemented by a consensus that when political and legal conflicts get
serious, it is this vocabulary that is to be used to structure debates about what
10
should be done. Such a consensus clearly exists in the European Union.
There may be disagreement, for example, about what the role of the
European Parliament has to be in Europe for the European legislative process
to be democratically legitimate. But there is a consensus that legitimacy is a
function of some conception of democracy that integrates the idea of the rule
of law and individual rights. Legitimacy in Europe is not a function of Europe
remaining true to its Christian heritage, for example, or a function of
effectively maximizing the wealth of all citizens, or giving authentic
expression to a particular stage of class struggle in the development in world
history. Furthermore democratic legitimacy clearly requires more popular
participation than Louis XIV deliberating with his personal advisors about
what to do. It requires less than Athenian democracy or a New England town
hall meeting. It is not necessary for all citizens to come together in a public
space to deliberate and vote on every law. ‘Democracy’ as the common term
of reference to discuss issues of legitimacy focuses and constrains any
disagreement that may exist. At any point in time there is likely to be a
relatively thick shared understanding about what these concepts mean, likely
to limit the range and depth of disagreements, while providing a common set
of references that facilitate constructive debate and mutual engagement. Even
if human rights, democracy and the rule of law are essentially contested
11
concepts , they provide a meaningful common point of reference to structure
stakes and raise the level of public discussion. Clearly then, the stakes are high and the answer
may not be an easy one. But it is a mistake to assume that arguments from European identity
provide good reasons to exclude Turkey.
10
The CT presupposes such a consensus in Art. I-2. See also Art. I-59 that authorizes the
suspension of certain rights in cases of a serious and persistent breach by a Member State of
these principles.
11
On the features and function of essentially contested concepts in the context of European
integration, focusing in particular on sovereignty, see S. Besson, Post-souveraineté ou simple
14
Mattias Kumm
legal and political debates. They also illustrate the nature of a liberal identity:
It is focused on debates, contestation and justification and not a rich
substantive consensus that establishes unquestioned truths.
The response to the third challenge – abstract principles are too thin to
effectively serve as the cement for a political community - is that abstract
principles may be thin, but identities focused on them are not. Constitutional
patriotism is misunderstood as an attachment to universal moral principles
contained in constitutional texts and nothing more. Such an account has
certainly never been an adequate representation of the idea as it has been
12
presented by its best known contemporary proponent, Jürgen Habermas.
Instead, these principles are given a specific interpretation and take on a
concrete institutional shape in the constitution. This concrete institutional
shape is to some extent the response to the historical experiences of the
community and the objectives it has set itself for the future. Constitutional
patriotism, then, is a thick identity. It does not merely consist in abstract
commitments to human rights, democracy and the rule of law. It is an
identity that connects an account of the past with a commitment to a concrete set of
constitutional arrangements as a framework for the political realization of common
aspirations for the future. The reflections on the past are guided by the question
how it exemplified or failed to live up to these ideals, present institutions are
conceived as interpretations of these ideals, and the future is imagined as
creating a more perfect union as defined by a greater realization and deeper
understanding of these ideals. In this way universal values are meaningfully
connected to concrete political and legal practices of specific communities.
It is neither necessary nor sufficient for such rich connections between the
past, the present and the future to be established directly in the constitutional
text. What matters is that it is anchored in the public culture of a political
community and an integral part of the way that citizens understand
themselves. But constitutions in their preambles, in their provisions on rights,
in the way they structure institutions and describe their functioning to some
extent invite citizens to make these connections. In the case of the CT, the
changement de paradigms? Variations sur un concept essentiellement contestable, in T.
Balmelli, A. Borghi and P.-A. Hildbrand (eds), La souveraineté au XXIième siècle (Fribourg 2003).
12
‘The political culture of a country crystallizes around its constitution. Each national culture
develops a distinctive interpretation of those constitutional principles that are equally embodied
in other republican constitutions … in light of its own history.’ J. Habermas, The European
Nation-State, supra note 4, at 118.
Constitutional Patriotism and the Constitutional Treaty
15
Preamble provides an illustration of a shorthand account of some central
themes around which a European identity could develop. The Preamble is an
invitation to European citizens to think of themselves as participating in and
giving further substance to the basic barebones structure of the story the
Preamble tells. What kind of a story is it? What is the idea of a European
identity that emerges on a close reading of the preamble?
Thick Constitutional Patriotism and the Preamble
The first textual paragraph of the preamble reaffirms that the rights of the
human person, democracy and the rule of law are universal values. It mirrors
the provision describing the Union’s foundational values in Art. I-2: respect
for human dignity, freedom, equality, democracy and the rule of law. These
values are the bedrock, the main protagonists of the story. This is the
universalist core of any identity properly referred to as constitutional
patriotism. But right away, even as they are introduced in the first paragraph,
they are connected to the ‘cultural, religious and humanist inheritance’ from
which they have developed in Europe. The past here is cast as something that
inspiration can be drawn from, and that, as a spiritual, intellectual and cultural
‘inheritance’ remains a presence culturally sustaining the commitment to
human dignity, human rights, democracy and the rule of law. Awareness for
universal values has its source in the particular history of a community and is
embedded in a particular culture.
But history is not just an inheritance to be appropriated or an inspiration to
draw from. It also provides for a lesson to be learnt. The peoples of Europe
‘reunited after bitter experience’ are cast as ‘determined to transcend ancient
divisions’. In the allusions to ancient divisions and bitter experiences the dark
side of the past is invoked as something that needs to be transcended. Europe
is to become a space where wars, persecutions, genocide, and ethnic cleansing
are to be confined to the past by giving them virtual presence in the form of
memory. Naturally the specifics of the negative lessons and the emphasis on
what is to be learnt from them will be different for, say, Germans, Spaniards,
Estonians, Poles or Czechs. But they converge on a commitment to human
rights, democracy and the rule of law that embraces both appropriately
reconceived national identities and the commitment to ‘forge a common destiny’
and to build a Europe ‘united in its diversity’.
16
Mattias Kumm
Thus the lessons to be learnt concern the concrete legal and political forms of
organization that are desirable in Europe. A commitment to universal
principles is connected with the establishment of a special kind of
supranational community on the European level – neither a full-fledged
federal state nor a mere international organization - that is a response to the
lessons of the past. It emphasizes that ‘the peoples of Europe’ remain proud of their
own national identities and history’. European integration, then, and a
commitment to universal values is cast as compatible with celebrating national
identity and the historical narratives that sustain it. The European Union is
not to supplant national identities with a European identity. The Citizenship
Clause, Art. I-10 in the CT, is illuminating in this respect. Every national and
only nationals of Member States shall be a citizen of the Union. Not only
does citizenship of the Union not replace national citizenship, it makes it a
13
prerequisite. But national identity and history has to be reconceived as open
to transnational integration into a wider community. Nationality must no
longer serve as a divisive force in Europe. European Nations are to coexist
with and flourish within the constitutional framework established by the
supranational community. This constitutional framework is to help ‘forge a
common destiny’.
What then are the contours of that ‘common destiny’ to be forged and the
‘common future’ to be built? How are the lessons in the past and the
commitment to a particular supranational community in Europe connected to
the future? The Preamble spells out some features of the ‘path of civilization,
progress and prosperity’ that Europe is to embark on. It is to be ‘for the good
of all inhabitants, including the weakest and most deprived’. Europe ‘wishes
to remain a continent open to culture, learning and social progress’. And it
‘strives for peace, justice and solidarity throughout the world’, while being
aware of the ‘responsibilities towards future generations and the earth’. With
regard to these aspirations continuity, rather than a break with the past is the
theme. Europe ‘intends to continue along the path of civilization, progress and
prosperity’. It is ‘determined to continue the work within the framework of
the Treaties establishing the European communities and the Treaty on
European Union, by ensuring the continuity of the Community acquis’.
13
The interdependence between national and European citizenship is also emphasized by
J.H.H. Weiler, To Be a European Citizen: Eros and Civilization, in: The Constitution for Europe:
‘Do the New Clothes Have An Emperor?’ and Other Essays on European Integration (Cambridge,
Cambridge University Press 1999).
Constitutional Patriotism and the Constitutional Treaty
17
At least in part the specific list in the Preamble reveals what it is that Europe
defines itself in relation to. The Constitutional Convention that drew up this
text under the Presidency of Giscard D’Estaing was working as the United
States fought a war in Iraq. As the unprecedented mass demonstrations in
London, Barcelona, Madrid, Rome, Paris and Berlin on February 15 2003
illustrated, many Europeans saw the United States not just as dangerously
disrespectful of international law. What also found resonance in Europe, was a
description of the U.S. as a country led by a less than articulate President,
who is supported by a non-progressive religious base and aggressively engages
in distributive politics in favor of the well to do, while refusing to engage
seriously environmental concerns. This image is the inverse of the idea of a
‘culture of learning and social progress’, for ‘the good of all inhabitants
including the most deprived’, ‘striving for peace and solidarity in the world’
and recognizing ‘responsibilities towards future generations’. The United
States shares with Europe and has historically played a central role fostering in
Europe the foundational commitments referred to in the Preamble. The U.S.
Constitution is the earliest, the CT the latest constitution that is grounded in
enlightenment political ideals. But the contemporary interpretation of these
commitments embodied in the policies of the Bush administration at the time
of drafting may well have provided a focal point for a widespread consensus
on how these values are not to be understood in Europe. The Preamble
provides a competing interpretation of these commitments and articulates the
core themes of an alternative vision of a transnational liberal civilization, the
realization of which the Preamble describes as ‘the great venture’. This
alternative vision is not just something European citizens are encouraged to
rally around to make their lives better. The Preamble describes Europe as ‘a
special area of human hope’. It echoes the ‘city on the hill’ theme that is a
14
staple element of American exceptionalism. Europe, too, aspires to be a
15
model that others have reasons to emulate.
14
The original draft drawn up by the Convention went further and described Europe as ‘a
continent that has brought forth civilization’, claimed that ‘freedom, equality and respect for
reason’ were humanist values (that is: not religious values) and introduced the Preamble with a
Thucydides cite on the meaning of democracy (long before the Americans!), printed in ancient
Greek (a language that less than 3% of European citizens can read). Furthermore the secularist
triumphalism of the original Draft made no mention of ‘bitter experiences’. After strong
criticism the Intergovernmental Conference that finally agreed to the CT made the relevant
changes in June 2004.
15
See the illuminating discussion by A. von Bogdandy, The European Constitution and
European Identity: Potentials and Dangers of the IGC's Treaty Establishing a Constitution for
18
Mattias Kumm
The Preamble, then, connects a commitment to universal principles with an
account of the past, a commitment to a particularly constituted supranational
community in the present and a set of distinct aspirations for the future.
Europe as a political idea thus develops specific and distinct contours. It is
grounded not just in universal principles, but in a religious and humanist
culture, that is its inheritance. It embraces a supranational legal and political
form that is neither a European nation state nor a mere international
organization. And it subscribes to a particular political program and an ideal of
a liberal civilization that is distinctively European. This then is the idea that
the Preamble invites Europeans to make their own by engaging with it,
giving substance to it and making it real.
The Authority of the Constitutional Treaty:
Europeanizing the Exercise of Residual National
Sovereignty
But what kind of supranational community does the Constitutional Treaty
establish? How exactly does the national element relate to the European in
the supranational community established by the CT? At the heart of a
supranational constitution and at the heart of a meaningful identity that relates
to the constitution must be a more concrete idea of nature of the relationship
between the supranational and the national. How then does the CT and the
institutions it establishes flesh out and give meaning to the idea of a
supranational community? What are the distinctive features of the account of
authority and legitimacy that underlies it?
The Constitutional Treaty is distinguishable from the current Treaties in that
it explicitly establishes a comprehensive framework of legal authority. The Primacy
Clause of the CT explicitly establishes EU Law as the supreme law of the
land. Yet, the CT makes no mention of a European people as its basis and is
not ratified by a procedure that expresses an act of self-constitution by a
European People. How then can the claim to authority be sustained? How
can such a claim be squared with the supranational character of the EU?
Europe, in Weiler and Eisgruber (eds), Altneuland: The EU Constitution in a Contextual
Perspective, Jean Monnet Working Paper 5/04,
[http://www.jeanmonnetprogram.org/papers/04/040501-07.html].
Constitutional Patriotism and the Constitutional Treaty
19
The special nature of the EU is reflected in the way that the EU is committed
to exercising its authority. It is to exercise its authority with due respects to
residual sovereign rights. As will be argued below, the claim to comprehensive
authority, is flanked by substantive guarantees, even authorizations, for Member States
to protect the inner sanctum of sovereignty. Threats of resistance, always in the
background of European practice from de Gaulle’s Empty Chair Politics to
resistance by national constitutional courts in the name of national
constitutional commitments, are explicitly addressed in the CT. States are
authorized to protect their essential sovereignty and they may unilaterally
withdraw from the Union.
If this is so, a superficial assessment of the CT would suggest that it merely
restates the status quo. The ECJ has long claimed that EU Law is to be
accorded primacy in Europe. Equally well known is that the highest courts in
many Member States have in fact claimed that they would set aside and not
enforce EU Law if it violates certain fundamental national constitutional
commitments. And states would have claimed a sovereign right to withdraw
from the Union, even without such authorization by the current Treaties.
Yet, it would be a mistake to see the CT merely as a restatement of the status
quo. The CT reframes the relationship between EU Law and national law in
different terms. It explicitly establishes a comprehensive framework of authority.
Whatever states may do they do within a legal framework that explicitly
establishes the supreme law of the land. Furthermore the CT provides a
procedural framework for the exercise of these residual sovereign rights. The CT
changes the very nature of the relationship between the EU and its member
States, by Europeanizing and legalizing even the assertion of these residual sovereign
rights and thus strengthens the authority of the European Union. The CT
informs Member States that even moments of national recalcitrance,
resistance, conflict, even withdrawal are moments in which they are to engage
European procedures and European institutions. To illustrate the mechanisms
by which the CT institutionalizes this complex dynamic, more context is
necessary. The following will focus first on the EU’s primacy clause as it
relates to the guarantee of national identities and fundamental political and
constitutional structures (a) and then the provisions governing the voluntary
withdrawal from the Union (b).
20
Mattias Kumm
The Primacy of EU Law and the Guarantee of National
Fundamental Constitutional Structures
Unlike the Treaties that the CT replaces, the CT explicitly establishes the
primacy of EU Law. Art. I-6 states: ‘The Constitution and law adopted by the
institutions of the Union in exercising competences conferred on it shall have
primacy over the law of Member States’. In many respects there is little that is
new in such a clause. It is the restatement of a doctrine that the ECJ has
embraced for over forty years. Indeed, just to ensure that the specific
formulations of Art.I-6 is not misunderstood as anything other than an
endorsement of the ECJ’s jurisprudence, the Member States annexed a formal
declaration to the CT stating that ‘Art. I-6 reflects the existing case law of the
Court of Justice of the European Communities and of the Court of First
16
Instance’ . Yet such a clause is likely to make a significant difference.
Nearly as well known as the ECJ’s jurisprudence on the primacy of EU Law –
17
18
19
Costa, Comet and Simmenthal
- are the leading court decisions by
20
various highest Courts of Member States resisting that claim. Originally
some national courts have claimed that they will subject EU Law to national
constitutional rights guarantees. Even though they generally won’t do so
anymore after the ECJ developed its own fundamental rights jurisprudence,
national courts are still likely to insist on enforcing their constitution over EU
Law, if EU Law is in clear violation of specific constitutional rules.
Furthermore there is the issue of ‘Kompetenz-Kompetenz’. National courts,
invoking constitutional arguments, have threatened to set aside EU Law they
16
CIG 87/04 Add2, Declaration re Art. I-6.
ECJ Case 6/44 Costa v. Enel, [1964] ECR 585.
18
ECJ Case 43/76, Comet BV v. Produktschap voor Siergwassen. [1976] ECR 2043.
19
Amministrazione delle Finanze dello Stato v. Simmenthal, [1978] ECR 629.
20
For general overviews of note on the issue see A. M. Slaughter, A. Stone and J.H.H. Weiler,
The European Courts and National Courts – Doctrine and Jurisprudence (Oxford, Hart Publishing
1998), C. Grewe and H. R. Fabri, Droits Constitutionnels Européens (Paris, Presses Universitaires
de France 1995), Franz Mayer, Kompetenzüberschreitung und Letztbegründung (Muenchen, C.H.
Beck 2000). For a collection of the leading cases across jurisdictions see A. Oppenheimer (ed.),
The Relationship between European Community Law and National Law: The Cases (Cambridge
1994 [Vol.1] and 2003 [Vol.2])
20
For a general overview of the the situation in the Netherlands and Belgium see B. de Witte,
Do not Mention the Word: Sovereignty in Two Europhile Countries: Belgium and the
Netherlands, in: N. Walker (ed), Sovereignty in Transition (Oxford, Hart Publishing 2003), pp.
351-366.
17
Constitutional Patriotism and the Constitutional Treaty
21
deem to be clearly enacted ultra vires, even in cases where the ECJ has
previously upheld such laws as falling within the competences of the EU. The
relationship between EU Law and national constitutional law remains
complex, with very few national courts having accepted outright that EU
21
Law is the supreme law of the land.
22
As was argued extensively elsewhere , even if content-wise Art. I-6 is merely
the codification of the acquis communitaire, such a codification is likely to make
an important difference to the way national courts engage with EU Law. The
ECJ can now simply cite the text of the CT. It no longer has to cite its own
jurisprudence, which was the result of an interpretative exercise that involved
complex conceptual, empirical and normative questions. Furthermore each
Member State will have to explicitly endorse the primacy of EU Law during
the ratification of the CT in line with national constitutional requirements. If
such ratification will occur, there is no doubt that such an explicit approval
will at the very least carry significant weight with national courts. In some
cases it is likely that the constitution will be amended, explicitly for the
purpose of enabling a state to ratify a Treaty that contains a supremacy
23
clause. The explicit constitutional endorsement of the ECJ’s primacy
21
See supra, note 19.
See M. Kumm and V.F. Comella, The Future of Constitutional Conflict in the European
Union: Constitutional Supremacy after the Constitutional Treaty, in J.H.H.Weiler and
C.L.Eisgruber (eds), Altneuland: The EU Constitution in a Contextual Perspective, Jean
Monnet Working Paper 5/04 [http://www.jeanmonnetprogramm.org/papers/04/04050115.html].
23
In Spain, for example, the ‘Consejo de Estado’ (a body that advises the government) has
published a report (dated October 21, 2004) suggesting that the primacy clause of article I-6
may collide with the principle according to which the Spanish Constitution is the supreme
norm of the legal system that is applied in Spain, a principle that is established in the Spanish
Constitution itself. Therefore, the Consejo suggests that it may be necessary to amend the
Spanish Constitution in order for Spain to be able to validly ratify a Constitutional Treaty that
includes such a primacy clause. After the report was made public, the government decided to
ask the Constitutional Court whether there is indeed such a contradiction between the Spanish
Constitution and the Treaty. For an argument that the primacy clause of article I-6 does not
make it necessary for Spain to change its Constitution, see V. F. Comella and A.S. Arnaiz,
¿Realmente hay que reformar la Constitución española para adecuarla a la cláusula de primacía
de la Constitución europea?, Actualidad Jurídica Aranzadi, Año XIV, number 645, 18 November
2004.
In Portugal, a similar debate has already led to a constitutional amendment (introduced on 24
July 2004). Article 8 of the Portuguese Constitution now includes a clause (in paragraph 4) that
explicitly declares that EU Law is applicable in the domestic legal system in the terms defined
22
22
Mattias Kumm
jurisprudence, once it is duly ratified by Member States, strengthens the case
for the supremacy of EU Law, even if it may not conclusively resolve all
24
constitutional conflicts.
There are two main reasons why it is unlikely to conclusively resolve all
conflicts. The first concerns the text of the supremacy clause. The clause
establishes only that EU enacted by EU institutions ‘exercising competences
conferred on it’ shall have primacy. This still leaves open the question who
gets to determine with ultimate authority whether particular legislation was
enacted within ‘competences conferred’ on the EU or not. The ‘KompetenzKompetenz’ questions remains unresolved. Furthermore the clause merely
states that EU Law shall have primacy over ‘the law’ of Member States.
Unlike the supremacy clause in the US, the clause does not specifically
determine whether ‘law’ refers only to ordinary MS law or also includes state
constitutions. Besides the ambiguity of the text the second concern is related
primarily to the ratification procedure, but also to other features of the CT, such
as its Preamble. The Preamble begins not with an invocation of ‘We the
People’. It begins with ‘His Majesty the King of the Belgians, her Majesty the
Queen of Denmark, the President of the Federal Republic of Germany’ etc…
and it ends with ‘have designated as their Plenipotentiaries who have
exchanged their full powers’ etc… This has the smell of old world diplomacy
about it. It does not express the passion and momentousness of an act of selfconstitution by a European People. It is only fitting that such a document is
by EU law, with due respect to the fundamental principles of a democratic State under the rule
of law.
In France, the Constitutional Council was asked by the President of the Republic to render an
opinion on the constitutionality of the Treaty. In its decision (number 2004-505 DC, 19
November 2004), the Council established that, although the Constitution needs to be amended
before France can ratify the Constitutional Treaty for other reasons, the primacy clause presents
no specific constitutional problem. The Council emphasizes that the Treaty establishing a
Constitution for Europe is still a Treaty, and that article I-5 entails that the Treaty respects the
existence of the French Constitution and its place as the highest norm of the internal legal
order. The Council notes that in earlier decisions (numbers 2004-496, 2004-497, 2004-498,
2004-499) it had already accepted that EU law has primacy, except when it contradicts specific
provisions of the French Constitution, and it finds no reason to think that the primacy clause
should now alter that conclusion.
24
It won’t be conclusively resolved because there will be arguments that the CT remains a
document ultimately ratified according to national constitutional provisions of Member States.
This grounds the CT in national constitutional practices. The CT will not have been enacted
by European citizens acting collectively as ‘We the People’ – as a European pouvoir constituent in a European referendum or in specific ratifying conventions established on the national level.
Constitutional Patriotism and the Constitutional Treaty
23
25
ratified ‘in accordance with respective national constitutional requirements’.
The CT does not require either a Europe-wide referendum of ratifying
conventions in Member States. Nothing in the ratification-procedure expresses the
idea that a new ultimate legal and political authority is to be established by a European
citizenry acting as ‘We the People’. Instead, the ratification procedure links the
CT to the constitutional requirements as they happen to be in Member States.
At least ten of the 25 Member States are going to use parliamentary
procedures to ratify the CT. Some constitutions will either require or allow a
26
referendum to be held. There are even attempts by the European Parliament
to get Member States to coordinate national referenda to allow for greater
cross-referencing in debates and the creation genuine Europe-wide
27
momentum. But that may well be insufficient for some national courts to
accept the primacy of EU Law, when EU legislation is in conflict with
fundamental national constitutional commitments.
It is exactly to address these situations of constitutional conflict that another
CT innovation comes into play. The current Art. 6 Sect. 3 EUT already states
that ‘the Union shall respect the national identities of its Member States’. But
the new Art I-5 CT is considerably more elaborate: ‘The Union shall respect
… Member States… national identities, inherent in their fundamental
structures, political and constitutional….It shall respect their essential state
functions, including ensuring territorial integrity of the State, maintaining law
and order and safeguarding national security’.
Such a clause can be of significance in various ways. Governments, for
example, may invoke it when, in cases of a national emergency, they don’t
respect certain provisions of EU Law in order to more effectively deal with
the crisis. But beyond reading it as the EU’s emergency clause, it may have a
more mundane significance. It could be of considerable significance for
25
See Art. IV-447 CT.
As of 18 November 2004, nine Member States have committed themselves to do so: Czech
Republic, Denmark, France, Ireland, Luxembourg, the Netherlands, Portugal, Spain and the
United Kingdom. Some other States are still undecided whether to hold a referendum. See
http://europa.eu.int/futurum/ratification.
27
The European Parliament has passed a resolution (14 October 2004) calling on the Council
to devise a coordinated approach to the timetabling of national ratification procedures, and
suggesting that the period from 5 to 8 May 2005 might be chosen as a suitable period for
holding the planned referenda on the Constitution or the parliamentary ratification in the
Member States.
26
24
Mattias Kumm
national constitutional courts adjudicating issues involving conflicts with
national constitutional law. One way to understand the explicit guarantee of
national constitutional identity is as an authorization of national courts to set aside
EU Law on national constitutional grounds, if and to the extent it is necessary to
safeguard national constitutional identities.
Such a reading of the CT is suggestive in a number of ways. For one, it
would not be particularly harmful. Art. I-5 read in this way would only
authorize something that Member States’ highest courts are generally
committed to do even without such authorization. Yet, something of great
symbolic significance is gained. When national courts set aside EU Law
invoking this clause in conjunction with their national constitutional
provisions, they are no longer actors in a Schmittian drama, in which ultimate
allegiances are affirmed and the European rule of law is suspended. Instead
national courts act as duly authorized agents of the European Union never
leaving the parameters defined by EU Constitutional Law. The status of EU
Constitutional Law as the supreme law of the land would remain undisputed.
Such a construction would give further expression to the idea that EU Law
ultimately frames the terms on which European citizens relate to one another,
even in extreme cases where fundamental national constitutional
commitments are at stake.
Beyond the symbolic significance of reframing the role of a national
constitutional court in this way, there is a further subtle advantage in the CT
authorizing national courts to serve as guardians of fundamental national
commitments. This CT provides a basis to further procedurally circumscribe and
engage national constitutional courts even, even when they adjudicate questions of
national constitutional law and even when they contemplate setting aside EU
Law on national constitutional grounds. The new Art.I-5 Sect 2 states that
‘pursuant to the principle of sincere cooperation, the Union and its member
States shall, in full mutual respect, assist each other in carrying out tasks which
flow from the constitution.’ The current Art. 10 ECT establishes only a good
faith duty of Member States to ensure the fulfillment of their obligations. The
new provision focuses on mutual respect and cooperation. In order to be able
to operationalize that mutual respect, the ECJ has good reasons to require national
28
constitutional courts to engage the ECJ as it interprets national constitutional law.
The ECJ could insist that national courts – including national constitutional
28
The following is drawn from M. Kumm and V. Ferrerez Comella, supra, note 21.
Constitutional Patriotism and the Constitutional Treaty
25
courts - are required to make a preliminary reference to the ECJ explaining
the issue as it arises under national constitutional law. In this way the ECJ
would have an opportunity not just to examine how best to interpret the EU
provision in light of the possibility of conflict. The ECJ would also be able to
contribute its views on the interpretation of the national constitutional
principles at stake. Of course the ultimate authority on the interpretation of
the national constitutional provision would remain with the national court.
But just as the ECJ may profit from the views of national courts when it
decides how to interpret EU Law in the ordinary practice of the preliminary
reference procedure, so national courts may profit from the ECJ’s views when
it interprets national constitutional provisions in a context where the
enforcement of EU Law is at stake. Such a procedural device may help
expand the fruitful vertical and horizontal dialogue between national courts
and the ECJ to include provisions of national constitutional law.
Another procedural barrier that the ECJ may want to establish as it fleshes out
the implications of the new ‘mutual respect’ clause is to require national
courts to notify the Commission of its decision to set aside EU Law, when it
does so. This way the Commission would know of the issue and be aware of
the constitutional concerns described by the national court. As the political
guardian of the European legal order the Commission could then assess
whether it is necessary and helpful to address the issue on the political level in
order to resolve it.
Seen as whole the CT’s primacy clause as it relates to constitutional conflicts
further strengthens the authority of EU Law in three ways. First, by expressly
codifying what previously merely existed in the form of an ECJ doctrine it
strengthens the claim that EU Law is in fact now the supreme law of the land.
Second, by explicitly authorizing Member States courts in narrowly
circumscribed circumstances to do as a matter of EU Law what they would
have done as disobedient national actors anyway strengthens the plausibility of
that claim to authority. And third, by authorizing Member States to act in
ways incompatible with secondary EU Law when residual sovereign rights are
at stake, it paves the way to procedurally circumscribe the use of this
authority.
26
Mattias Kumm
Withdrawal from the Union
A similar structure for dealing with residual sovereign rights can be found in
the CT’s provisions dealing with the withdrawal of a state from the Union.
Before the CT the Treaties did not explicitly address under what
circumstances a state could withdraw from the Union. The Treaties were
concluded for an unlimited time (Art. 51 EUT, Art. 312 ECT), as is the CT
(Art. IV-446). There was some dispute what this meant, legally. Some
suggested this meant that there was no right to withdrawal. Withdrawal
would be the equivalent of illegal secession. Others suggested that
international rules governing the termination of Treaties, in particular Art.54
-56 of the Vienna Convention of the Law of Treaties, would be applicable.
This would have required the consent of all parties. Most national
constitutional lawyers insisted that nothing could ultimately prevent unilateral
withdrawal, for so long as it occurred in accordance with national
constitutional requirements. Ultimately there was agreement that in the real
world no legal argument would ultimately carry much weight when a state
was committed to withdrawal. In this sense the right to withdrawal remained
a residual sovereign right, unencumbered by and prior to EU Law.
The CT provides for rules governing the voluntary withdrawal from the
Union. Art. I-60 states that ‘Any Member State may decide to withdraw from
the Union in accordance with its own constitutional requirements.’ The CT
therefore provides an explicit legal authorization for states to do what they
very likely would have done anyway, if they believed it to be in their
interests. In some sense, the provision merely recognizes the residual
sovereignty remaining with Member States. But if the CT establishes the
primacy of EU Law and then authorizing States to withdraw unilaterally as
they please, what is its point? If this is the assertion of authority, it is a
conception of authority fittingly ridiculed by Saint-Exupery in the story of
the Little Prince and the King on Asteroid 325.
The king was the sole inhabitant of asteroid 325. When the little prince
arrived he was happy to see the little prince (Aha! A Subject!). ‘Clad in royal
purple and ermine’ and ‘seated on a throne at the same simple and majestic’
he claimed to have absolute authority, though it was not clear what it was he
ruled over or what the basis of his authority was. His air of authority sparked
the curiosity of the little prince.
Constitutional Patriotism and the Constitutional Treaty
27
‘Sire over what do you rule?’
‘Over everything’, said the king, with magnificent simplicity.
‘Over everything?’
The king made a gesture that took in his planet, the other planet, and all the
stars.
‘And the stars obey you’?
‘Certainly they do’, the king said. ‘They obey instantly. I do not permit
insubordination.’
The Little Prince then asks the king to order the sun to set, because he desired
to see a sunset. At this point, the king starts to provide deeper insights into the
nature of his authority.
‘If I ordered a general to fly from one flower to another like a butterfly, or to
write a tragic drama, or to change himself into a sea bird, and if the general
did not carry out the order that he had received, which one of us would be
wrong?’ ‘Accepted authority rests first of all on reason. If you ordered your
people to go and throw themselves in the sea, they would rise up in
revolution. I have the right to require obedience, because my orders are
reasonable.’
‘Then my sunset?’ The little Prince reminded him…
‘You shall have your sunset. I shall command it. But, according to my science
of government, I shall have to wait until conditions are favorable.’
When asked when that would be the King consults a bulky almanac, before
informing the Prince that this evening favorable conditions would pertain at
twenty minutes to eight.
At this point, the little Prince was beginning to lose interest and wanted to
leave. The king, however, refused to let him go, because he was proud to
have a subject. The little prince turns to the king and says:
‘If Your Majesty wishes to be promptly obeyed he should be able to give me
a reasonable order. He should be able, for example, to order me to be gone
by the end of one minute. It seems to me conditions are favorable…’ He then
leaves, not without noticing the king’s ‘magnificent air of authority’.
28
Mattias Kumm
Does the authority of the CT structurally resemble the authority of Saint
Exupery’s king on asteroid 325? What is the significance of having the
withdrawal provision in the CT?
First, unlike the king on asteroid 325 the EU’s authority in its core domain of
operation is significant and undisputed. The question is merely how that
authority is to be construed. According to the currently still dominant view,
EU Law ultimately derives its authority from Member States whose
constitutions also circumscribe the limits of EU Law’s authority. Under these
circumstances, the claim to establish a comprehensive framework of authority in
conjunction with an authorization to withdraw is not just of symbolic
significance. It invites citizens to reconceive what it means to exercise residual
sovereign rights. The CT suggests that EU Law now legally grounds the exercise even
of the right to withdraw. It is no longer a residual sovereign right of Member
States that exists independent of and prior to anything EU Law prescribes.
The CT thus suggests that a shift in ultimate authority has occurred. This shift
does not entail Member States losing their residual sovereign right to
withdraw. But it does mean that the right is now Europeanized. Member
States, even when they exercise residual sovereign rights, are admonished to
understand themselves as agents acting under the authority of EU Law.
Second, this conceptual revolution in constructing EU authority, has practical
implications. Voluntary withdrawal is now procedurally circumscribed. These
procedural hurdles are not cumbersome in any formal way. According to
Sect. 2 of Art. I-60 a Member State ‘shall notify the Commission of its
intention. In the light of the guidelines provided by the European Council,
the Union shall negotiate and conclude an agreement with that State, setting
out the arrangements for its withdrawal, taking account of the framework for
its future relationship with the Union’ following the procedures generally
applicable for the negotiation of international agreements between the Union
29
and third parties. Note that the CT does not stipulate a requirement that a
consensus needs to be reached. The text merely states that ‘the Union shall
negotiate and conclude an agreement with that State’. This procedural hurdle
does not establish formal barriers of any significance. Yet, the legal
establishment of such a procedure is significant in at least two ways. First, as
far as the withdrawing state is concerned, it is drawn into a complex legal
process of negotiations, which involves the future status of that State. The
29
These are laid out in Art. III-325.
Constitutional Patriotism and the Constitutional Treaty
29
negotiations have the function to require the withdrawing state to engage the
EU on a high level, no doubt triggering extended crisis management and jaw30
boning, perhaps conducive to a state reconsidering its position. Second, as far
as the other Member States are concerned, they find themselves negotiating
together within the institutional framework and familiar procedures of the
EU. Such an arrangement is likely to help normalize, tone-down and manage a
situation that has the potential to spiral into a major constitutional crisis. From
the perspective of the EU the authorization and proceduralization of a state’s
withdrawal ensures sustained engagement among all parties and normalizes
such an event (the withdrawing state is just exercising its right under the CT
and we’ve got a procedure for dealing with this…). Withdrawal threats of a
Member State no longer raise the specter of high politics and the talk of
emergency threatening the framework of the CT. This may help to contain
the danger of spillover and prevent the authority and legitimacy of the whole
edifice from being undermined.
Finally, a further significance of this provision lies in its exploitability for
assuring acceptance among national citizens in the ratification process.
Governments, many of which are facing a skeptical audience, can claim that
ultimate sovereignty continues to lie with the nation state. The CT has many
features of a constitution and does explicitly establish that EU law is the
supreme law of the land. That is likely to provoke serious resistance in the
name of sovereignty. Governments can now point to the CT and explain that
it provides an exit option that can be used should it become necessary and it is
in the national interest to do so. Signing on to the CT is not an irreversible
act. It is not comparable to joining a federal state. There will be no civil war,
should a nation wish to re-establish its independence. Assuming that it is
understood that states have such a residual right anyway, the clause is a
placebo for a Eurosceptic populace attuned to the language of sovereignty.
But this placebo comes with a dialectical twist. By allowing national actors to
point to the CT as the source of a right to withdrawal, it strengthens the CT’s
claim to authority: States don’t just have such a right in virtue of being a
nation organized as a sovereign state. The CT establishes that they have such a
right. The CT brings to public expression that even moments of deep
national recalcitrance, resistance and conflict are moments where the
30
For the significance of institutional structures that perpetuate ‘jaw-boning’ as a means of
shaping state behavior see A. Chayes and A.Chayes, The New Sovereignty (Cambridge MA,
Harvard University Press 1995).
30
Mattias Kumm
connection to Europe and the comprehensive framework of authority
established by the CT remains intact.
The CT, then, establishes EU Law as the supreme law of the land without
relying on a European ‘We the People’ as a constituent power. Under these
circumstances, a claim to ultimate authority is only tenable, if the CT also
serves as a guardian of Member States sovereign rights and by and large leaves
the exercise of these rights in the discretion of Member States. In the process,
however, these residual sovereign rights are Europeanized. Their ultimate
legal base has become the CT that establishes the right and lays down the
procedures for exercising it. There is no residual sovereign space in which
national actors are exclusively national actors. Even in the domain of residual
sovereignty, national actors act on authorization of the EU and they remain
embedded in European institutional practices. The CT seeks to organize a highly
interdependent and pluralist institutional structure within a jurisprudentially monist
framework of legal authority. This, in a nutshell, is the CT’s conception of
supranational authority.
The Legitimacy of the Constitutional Treaty and
Linkages to National Constitutional Legitimacy:
Negative inference, Co-option and Borrowing
But is the authority the CT establishes legitimate authority? A very
conventional understanding of democratic legitimacy in a constitutional
democracy suggests that a constitution is legitimate in virtue of it having been
endorsed by ‘We the People’. The CT, on the other hand is to be ratified by
Member States according to their respective national constitutional
requirements. The ongoing political process under a constitution is generally
believed to be legitimate first, because it takes place under a duly adopted
constitutional framework and second, because of electoral politics and the role
of directly representative institutions at the heart of the political process
established by the constitution. In Europe, on the other hand, no European
agenda-setter is directly and meaningfully accountable to a European
electorate. Furthermore, given the significant legislative powers of the EU,
that allow for legislation to be enacted without requiring the consent of each
state to be bound, the legitimacy of EU Law can not convincingly be linked
to state consent. Clearly, the practices of the European Union can be justified
Constitutional Patriotism and the Constitutional Treaty
31
neither in terms of the conventional constitutional model or the international
law model. There are libraries filled about the question how legitimacy and
democracy can appropriately be conceived within the supranational polity of
the European Union. Here the much more narrow question is what, in the
self-presentation of the CT grounds the CT’s claim to legitimacy.
The complex account of legitimacy to be found in the CT finds its condensed
expression in title six, addressing the ‘Democratic Life in the Union’. The
heading arouses suspicion. Does the invocation of ‘democratic life’ in the
European Union serve as a detractor for the lack of European democratic
institutions? Or does it merely signal that a deeper more integrative account of
democratic legitimacy, that includes European democratic institutions, will be
provided? The account provided has three main prongs, focusing on
outcomes (the principle of democratic equality), the political process
(representative democracy) and competences (decisions to be made as close to
the citizen as possible, in order to enhance participation) respectively.
Correspondingly this section will give an account of the CT’s basic rules on
competences (1.), the structure of its political process (2.) and its substantive
commitments, and its human rights provisions specifically (3.). The main
purpose of this analysis is to illustrate how the CT’s claim to legitimacy is
closely linked to national legitimacy. This link to national legitimacy is
established by the techniques of negative implication with regard to the EU’s
competences, the co-option of national institution to enhance the legitimacy of
European legislation and borrowing of national human rights standards to assure
legitimate outcomes. National institutional actors, standards and practices are
at the heart of the EU’s claim to legitimacy. The legitimacy of the supranational
community is defined not on independent terms, but by persistent reference to national
practices. Yet this reference to national practices serves to ultimately define a distinct
supranational standard of legitimacy.
Competences: Constitutionalizing Subsidiarity
Art. I-46 establishes that decisions shall be taken as closely to the citizen as
possible. This formula connects questions of democratic participation with the
jurisdictional or competence related idea of subsidiarity. The basic idea is this:
If there are no good reasons for a political issue to be shifted up to the
European level, there is a good reason to leave it to be decided by Member
States. Something is lost, democracy-wise, when jurisdiction is shifted
32
Mattias Kumm
upwards. The significance of the vote goes down as the number of the
electorate goes up. Organizing a demonstration in your municipality is
comparatively less costly time and energy-wise than it would be organizing a
demonstration in Brussels. Getting access to your local representative is likely
to be easier than getting access to a European representative. Getting your
letter published in a paper of local circulation is likely to be easier than getting
it published if it has wider circulation. These differences between levels of
government are magnified in the European Union by the comparative
underdevelopment of a European civil society, a European public sphere and
a European identity. A central theme of the Constitutional Convention was
therefore to enhance the legitimacy of the EU by establishing a European
polity, which reflected a serious commitment to the principle of subsidiarity
31
and more effectively established jurisdictional limits to European legislation.
The CT institutionalizes this commitment to subsidiarity not just by
specifically enumerating competencies, distinguishing between different
32
33
categories of competencies and different legal acts of the Union. It also
establishes that the exercise of the Union’s competences is governed by the
principles of subsidiarity and proportionality. Except for the very limited
domain in which the CT preempts Member States’ action by establishing
exclusive competences for the European Union, any exercise of competences must
meet the requirements of subsidiarity and proportionality. Even when EU action falls
under a jurisdictional heading in the CT, it is not enough that EU policies
further some generally desirable policy. The EU can act only if it can show
that ‘the objectives of the proposed action cannot be sufficiently achieved by
MS … but rather, by reason of the scale or effects of the proposed action, be
34
better achieved at the Union level.’ In other words the EU must show that it
31
In the words of the Laeken Declaration: ‘Citizens often hold expectations of the European
Union that are not always fulfilled. And vice-versa-they sometimes have the impression that the
Union takes on too much in areas where its involvement is not always essential. Thus the
important thing is to clarify, simplify and adjust the divison of competence between the Union
and the Member States in the light of the new challenges facing the Union.’
32
Art. I-12 CT.
33
Art. I-33 CT. A European law that is binding in its entirety effect MS autonomy more than a
European framework law. A European framework law as a law binding as to the results
achieved but leaving to the MS the choice of form or method is more intrusive than nonbinding recommendations and opinions in particular affect the autonomy of MS.
34
The language in the CT and the Protocol on the application of subsidiarity and
proportionality is convoluted and obfuscating rather than illuminating. Restating the current
law Art I-11 CT states: ‘Under the principle of subsidiarity … the Union shall act only if and
Constitutional Patriotism and the Constitutional Treaty
33
is acting to solve a specific collective action problem – a problem relating to
externalities, race to the bottom concerns etc…. This is the core meaning of
the commitment to subsidiarity. The proportionality requirement additionally
establishes that even when the EU acts to address such a problem, the EU’s
action must be the least intrusive to MS autonomy of all equally effective
means to address the collective action problem, and it must not be
disproportionately intrusive when compared to the benefits it brings.
This way of thinking about constitutionalizing the allocation of decisionmaking authority between two levels of governance is radical. Instead of a
conventional jurisdictional approach that consists of a one-step analysis, there
are two steps. The question is not merely: Does an action fall under the
jurisdictional heading that confers competences to the European level. That is
just the first part of a richer inquiry. An affirmative answer to that inquiry
does not resolve the issue whether the EU acted within its competences. Even
when the EU is clearly acting under one of its competences, whether and the
extent to which it may be exercised is subject to the subsidiarity and proportionality test.
This test requires a highly contextual analysis of the effects of such action and
the reasons that justify the use of EU Law rather than Member States action
to address the issue.
The connection between the subsidiarity and proportionality test and the
EU’s legitimacy can now be specified: The subsidiarity test links the exercise of
EU competences to the existence of inherent structural problems with procedures on the
level of Member States. Only if and to the extent the exercise of MS jurisdiction
is likely to be tainted by such a problem, may the EU exercise its
competences. The legitimacy of EU legislative action is thus linked to
structural defects of any MS action that EU Law may preempt. In this sense,
the legitimacy of the exercise of the EU’s competences is tied to the existence
of defects of MS actions. It is the potentially tainted nature of Member States action
that prima facie legitimates the EU’s action. The legitimacy of the EU’s action in
these circumstances derives in part from its comparative advantage over a
national process, which is tainted due to the existence of collective action
problems. Call this legitimacy by negative implication.
insofar as the objectives of the proposed action cannot be sufficiently achieved by MS … but
rather, by reason of the scale or effects of the proposed action, be better achieved at the Union
level’.
34
Mattias Kumm
In endorsing this basic understanding of competences, the CT provides
nothing that is new. There are numerous changes with regard to specific
provisions, and the CT distinguishes more clearly between different kind of
competencies and different forms of EU action. But with regard to basic
principles, the CT mostly restates the current law. But there is a problem with
the current law that the CT suggests an innovative solution to: Under the
current arrangement there is a wide spread skepticism about the extent to
which the EU’s political institutions take the commitment to subsidiarity and
proportionality seriously. The perception is that the EU does what it can get
the relevant majorities for, with no-one taking a keen interest in
subsidiarity/proportionality concerns as a distinct set of considerations. There
is no political culture focused on subsidiarity concerns in Europe.
Furthermore, there is a widespread belief that the assessment of the relevant
normative and empirical questions that the application of the subsidiarity and
proportionality test requires is best left to political actors. The ECJ as a judicial
guardian of the EU’s constitutional order is believed to be institutionally illequipped to play a significant role in policing the jurisdictional boundaries
between the EU and MS. That should not be obvious. The proportionality
structure, triggering a highly open-ended empirical and normative assessment
of acts of public authorities is central to the Court’s fundamental rights
jurisprudence. The ECJ would not be engaging in a qualitatively different
inquiry when assessing subsidiarity and proportionality concerns. Furthermore
the ECJ could require the Commission, Parliament and Council to provide a
more substantial record that reflects their engagement with
subsidiarity/proportionality concerns. It could then assess whether that record
plausibly validates the conclusion that a piece of EU legislation fulfills
subsidiarity/proportionality requirements. There were some early signs that
35
the ECJ would go that way. Yet, on the whole, the ECJ’s jurisprudence
does not reflect serious engagements with these requirements and subsidiarity
36
is addressed by the Court only in a cavalier fashion. Given the traditional
role of the ECJ as the ‘motor’ of European integration that may not be
surprising.
35
The ECJ has held that failure to give adequate subsidiarity related reasons may constitute a
violation of an essential procedural requirement, but then interpreted that requirement so laxly
as to render it a weak tool for the enforcement of jurisdictional constraints.
36
In ECJ Case C-376/98 (Tobacco Advertising) ECJ Case C-84/94 (Working Time) the
court invalidates or partially invalidates EU directives. But one striking feature of these
decisions is that the ECJ avoids subsidiarity and proportionality analysis along the lines
suggested above and prefers to adopt a more categorical mode of analysis.
Constitutional Patriotism and the Constitutional Treaty
35
It is at this point that a CT innovation comes into play. The CT establishes
37
that national Parliaments ‘shall ensure compliance with that principle’. The
38
CT incorporates a Protocol that lays out a special procedure to enable
national Parliaments to play that role. The Protocol establishes that the
Commission should forwarded all documents of legislative planning and all
legislative proposals to national parliaments at the same time as it forwards
them to the European Parliament and the Council. All European legislative
acts have to be justified with regard to the principles of subsidiarity and
proportionality. Art. 4 of the Protocol on the application of these principles
establishes qualitative standards that these justifications must meet: They have
to ‘contain a detailed statement making it possible to appraise compliance
with the principles of subsidiarity and proportionality.’ It should ‘contain
some assessment of the proposal’s financial impact’ (these costs are generally
incurred by MS, not the European Union as the legislating institution).
Furthermore ‘the reasons for concluding that a Union objective can be better
achieved on the Union level shall be substantiated by qualitative and,
wherever possible, quantitative indicators.’
A more fully informed Parliament serves two functions. First, it can more
effectively control the executive branch of its government as it participates in
legislation on the European level. Second, the Protocol establishes a specific
role for Parliament to help police jurisdictional boundaries on the European
level. If a national Parliament concludes that it holds a proposed legislative act
to be incompatible with a commitment to subsidiarity, it can send a reasoned
opinion to the Presidents of the European Parliament, the Council and the
Commission stating why it considers that the draft in question does not
comply with the principles of subsidiarity. That reasoned opinion will ‘shall
be taken into account’. If at least one third of all national parliaments have
39
sent such a reasoned opinion, the draft must be reviewed. The draft can then
be maintained, amended or withdrawn and reasons must be given for this
decision. Given the substantial record created by the reasoned opinions that
will have been formulated by a wide range of actors by the time litigation is
37
Protocol on the Application of Subsidiarity and Proportionality.
Id.
39
See Art. 6 of the Protocol on the application of subsidiarity and proportionality. To be more
precise, a third of all votes allotted to parliaments is necessary. Each national Parliament has two
votes, leaving one for each Chamber in Bicammeral legislatures. Furthermore, the threshold is a
quarter rather than a third in cases where the EU relies on Art. III-165 of the CT concerning
the establishment of an area of freedom, security and justice.
38
36
Mattias Kumm
likely to occur, the ECJ will more plausibly be in a position to play a role in
assessing subsidiarity and proportionality concerns, if asked to do so in the
context of annulment proceedings. Finally, MS are encouraged to provide for
the possibility within their own national law for national parliaments or even
chambers of parliament to initiate annulment actions before the ECJ –
40
technically on behalf of the MS as laid down in Art. III-365 CT. Parliaments
then, as independent actors of a disaggregated state, potentially acting against
their respective executive branch, are drafted in the service to help police the
jurisdictional boundaries of the EU. By making national parliaments
participants in the European legislative process, national parliaments under the
CT help legitimize EU legislation.
The rules concerning competences, then, connect the legitimacy of European
practices to MS legitimacy in two distinct ways. First, the principle of
subsidiarity links the jurisdiction of the EU to the existence of structural
deficits of national solutions. Second, for the enforcement of these
jurisdictional boundaries the EU co-opts and empowers national parliaments
to get involved in the European legal process, thus helping to legitimate it.
Representative
Accountability
Democracy:
National
and
European
Another prong of the CT’s account of ‘the democratic life in the Union’
41
focuses on ‘the principle of representative democracy’. ‘The functioning of
42
the Union shall be founded on representative democracy’. This principle is
embodied in European institutions in two ways. First, citizens are directly
43
represented in the European Parliament. Second, Member States are
represented in the European Council and Council of Ministers by their
respective representatives of the executive branches, which are themselves
democratically accountable either to their national parliaments or to their
40
The language of Art. 7 of the Protocol on the application of the principles of subsidiarity and
proportionality reads: The ECJ has jurisdiction to hear actions on grounds of infringements of
the principle of subsidiarity, brought in accordance with the rules laid down in Art. III-365 of
the CT by MS, or notified by them in accordance with their legal order on behalf of their
national parliament or chamber of it.
41
Art. I-46 CT.
42
I-46 Sect. 1 CT.
43
Citizens are represented in a degressively proportional form with a minimum and maximum
threshold, see Art. I-20 Sect. 2 CT
Constitutional Patriotism and the Constitutional Treaty
37
citizens. The EU insists on the importance of governments being
democratically accountable as a matter of national constitutional law for good
reasons. As the executive branch of national governments are co-opted as
European institutions, the constitutional features of Member States become an
integral feature of what makes the European Union legitimate. In this sense the
European Union draws on the ‘legitimacy capital’ of national governments.
Under these circumstances it makes sense that the CT has strengthened the
provisions allowing for the suspension of rights, including voting rights, if a
Member State is in serious and persistent violation of the EU’s basic
commitments to human rights, democracy and the rule of law. If the
legitimacy of MS constitutional regimes is a prerequisite for the legitimacy of
European legislation, then some degree of European constitutional oversight
of domestic constitutional practices is a plausible consequence.
Furthermore the role of national governments in the European legislative
process is more significant than the CT’s ‘two pillar’ model of representative
democracy suggests. It is misleading to think of the European Parliament on
an equal footing with the organized executive branches of national
governments in the European Council and the Council of Ministers. Under
the CT the collective executive branches of Member States under the CT
have more firmly entrenched their dominant role. Of course, both the
European Parliament and the Council of Ministers are important players in
the legislative process. But the collectivity of national executive branches in
the European Council and the Council of Ministers will be the agendasetters. Parliament has been and will continue to be at best a junior-partner in
this enterprise.
There are three reasons for this asymmetry of power between the Parliament
and the collective national executives. First, the European Council, consisting
of the Heads of State and generally operating under a unanimity requirement,
has the task to ‘provide the impetus for the general political direction and
priorities’ for the Union. Compared to the current practice of quarterly
Intergovernmental Conferences (hereinafter: IGC’s) the role of the European
Council is strengthened by the newly introduced European Council
President. The European Council by a qualified majority elects the President
44
for two and a half years, renewable for one term. The European Council
President gives the Council more of an institutional structure, continuity and
44
Art. 1-22 CT.
38
Mattias Kumm
symbolic presence. The European Council does not legislate itself. But the
Council of Ministers does. The voting rules in the Council of Ministers,
operating under the guidelines drawn up by the European Council, provide
the second reason for the dominance of the national executive branches. The
Council of Minister decides by qualified majority, defined by 55% of the
45
members representing at least 65% of the population. It is typically
considerably more difficult to get the necessary majority in the Council of
Ministers, acting under general guidelines of the European Council, than it is
to get a necessary simple majority in the European Parliament. Third, the
Council has the central role to play in determining the make-up of the
46
Commission. With the monopoly to propose legislation generally left in tact,
the Commission remains a central player in the legislative process, by being
able to set the agenda and determine the baseline for political bargaining. But
the text of the CT is misleading when it states that ‘Parliament shall elect the
Commission President’, to the extent it suggests that Parliament chooses
freely. The Parliament, by a simple majority has the task to confirm the
candidate agreed upon by the European Council. The European Council in
choosing the President is merely required to ‘take into account the elections
47
to European Parliament’. If the Council’s candidate is rejected by
Parliament, the European Council will suggest another candidate who ‘shall
be elected’ by the Parliament. The Council then selects the individual
Commissioners together with the President. The Commission as a whole is
48
then subjected to a vote of consent by parliament. During the Commission’s
five year term parliament may vote to censure the Commission who will then
49
resign. The Parliament’s role in all of this, then, is secondary to the role of
the Council. Parliament does not take any initiatives, it reacts. It is the junior
partner of the collective executive branches of Member States. Its role more
closely resembles the role of the editor, not the author of European laws.
The rules concerning the appointment of the Commission allow for some
space of maneuver for the Parliament to flex its muscle, as recent events have
illustrated. It is not entirely unimaginable that over time Parliament would
simply reject any President of the Commission that it has not agreed upon in
45
Art. I-25 CT.
In a few areas the CT has undercut that monopoly.
47
Art. I-27 CT.
48
Art. I-27.
49
See Art. I-26 Sect.8.
46
Constitutional Patriotism and the Constitutional Treaty
39
advance, rather than leaving that choice to Member States. The same can be
imagined for determining the Commissioners: Parliament could refuse
consent if the Commissioners are not in line with parliamentary preferences.
Rather than react to specific deficiencies of candidates, as Parliament has done
in the Buttiglioni affair, it could develop a more proactive role and simply
send its own list to the Council as the basis for negotiations, with the threat
not to consent to any Council proposal not sufficiently aligned to parliament’s
preferences. The rules concerning the appointment of the Commission, then,
could ultimately allow Parliament to effectively exercise a much higher degree
of political control over the Commission. But whether or not that is desirable
or likely, it would stretch the provisions of the CT.
Seen as a whole, the rules of the CT clearly entrench Member States
executive branch as the political agenda-setter in the European Union. And
their legitimacy finds its basis in the national constitutional provisions ensuring
accountability to national parliaments and citizens.
Outcomes: Rights of the Market Citizen and Fundamental
Rights
Perhaps it is revealing that the first prong of the CTs account of the Union’s
‘democratic life’ is outcome oriented: The title on democracy begins by spelling
50
out a ‘principle of democratic equality’. It establishes that ‘the Union shall
observe the equality of all its citizens, who shall receive equal attention’ from
the EU. This provision is probably best understood as a somewhat
cumbersome formulation of what Dworkin has called the duty of public
51
institutions to treat its citizens with equal respect and concern. This is a
foundational substantive principle that guides the exercise of public authority
generally.
First it must be clarified what equal respect and concern does not mean. Equal
respect and concern in the European Union does not translate into an equal
right to vote in Europe. Even though every citizen in Europe has a right to
52
vote for European Parliament , there is no requirement for each
representative in the European Parliament to represent an equal number of
50
Art. I-45.
R. Dworkin, Freedom’s Laws (Cambridge, MA, Harvard University Press 1996).
52
See Art. I-10 Sect. 2 b.
51
40
Mattias Kumm
European citizens. In that sense not every vote in Europe will have equal
weight. Instead Art. I-20 establishes that ‘representation of citizens shall be
degressively proportional, with a minimum threshold of six members per
Member State. No Member shall be allocated more than ninety-six seats.’ To
take the extreme case, this means that Europeans citizens that are Germans
will be represented in the European Parliament by approximately one
53
representative for every 850.000 citizens , while European citizens from
Luxembourg will be represented by one representative for every 70.000
54
citizens. There is a comparative overrepresentation of Luxembourg citizens
or underrepresentation of German citizens by the factor 12. The fact that a
citizen is a member of one or another state, then, is significant for the weight
attributed to his vote for European Parliament.
Furthermore equal respect and concern does not translate into or authorize the
establishment of a European welfare state. The EU’s competencies to engage
in redistributive welfare politics are limited. On the one hand its power to tax
as an instrument for redistributive politics is limited to narrowly circumscribed
55
areas. And it it remains for the Member States to determine the scope of
health benefits, social security, pension benefits etc… Many of these concerns
56
are addressed within the informal Open Method of Coordination. Art. III210 provides a limited authorization to legislate on social security of workers,
but it is telling that in key areas the unanimity requirement has not been
57
given up. The commitment to welfare politics as a European legislative
concern lives on in the policies of the European Union in the residual form of
58
59
consumer protection and in the protection of workers for so long as they work. The
EU provides protection of its citizens in their role as producers and
consumers. This points to the heart of the EU’s agenda.
53
Germany has 82 Mio. Citizens and will be represented by the maximum number of 96
representatives.
54
Luxembourg has 420.000 Citizens and will be represented by the minimum number of 6
representatives.
55
For a discussion of Europe’s power to tax see A.J. Menéndes, Taxing Europe: Two Cases for
a European Power to Tax, 10 Columbia Journal of European law (2004), pp. 297-338.
56
See G. de Burca, The Open Method of Coordination (on file with author).
57
See Art. III-210 Sect. 3.
58
This includes in particular workers health and safety as well as working conditions. In these
areas European legislation can be enacted following the usual qualified majority co-decisionprocedure. See Art. III-210 Sect. 2b and Sect. 3.
59
See Art. III-235 ECT.
Constitutional Patriotism and the Constitutional Treaty
41
Rights as Empowerment::The Rights of the Market citizen
At the heart of the Union’s policies and achievements lies the establishment of
an internal market. The EU’s commitment to equal respect and concern finds
its most concrete expression in the task of the creation and management of a
free and undistorted internal market, to which all citizens have unfettered
access as producers and consumers. The rights of European citizens are first
and foremost the rights of market participants. The Union’s is committed to
treat European citizens with equal respect and concern as market participants.
The internal market ‘shall comprise an area without internal frontiers in
which the free movement of persons, services, goods, and capital is ensured in
60
accordance with the Constitution.’ The first and practically most important
of the rights listed under the citizenship provisions of Art. I-10 is ‘the right to
move and reside freely within the territory of the Member States’, a right
central to the idea of a mobile market citizen. Within the scope of the CT
public authorities in Member States may not discriminate between nationals
and non-national European citizens. At European airports any EU citizen can
make use of the generally faster lines at immigration check points traditionally
reserved for nationals. Furthermore the mobile citizen producer/consumer,
traveling with his European passport pays everywhere within the Euro-zone
using one currency. Fittingly, among the symbols of the Union listed in Art.
I-8 is the Euro as the Union’s currency, right beside Beethoven’s ‘Ode to Joy’
as Europe’s anthem and the European flag. Furthermore a great many of the
other competences of the European Union, from the economic and monetary
policy to the establishment of trans-European networks are in effect market
building policies. Beyond guaranteeing peace, then, the creation of a genuine
internal market and the guarantee of rights for citizens as market participants is
the core substantive accomplishment of the European Union from the
perspective of European citizens. Freedoms of citizens as market participants
in Europe can only effectively be guaranteed by the EU as an institution and
EU Law as an instrument. At the heart of the EU’s claim to legitimacy, both
under the CT and the current Treaties, are the rights and benefits connected
to the establishment of an internal market.
60
Art. III-130.
42
Mattias Kumm
Rights as Constraints: The Charter of Fundamental Rights
But what about fundamental rights? Isn’t the inclusion in the CT of the
Charter if Fundamental Rights a major factor in legitimizing the EU as an
institution? Here it is important to distinguish between two ways in which
the Charter could enhance the EU’s legitimacy. On the one hand European
fundamental rights could provide a common minimum standard that all
actions by public authorities in Europe would be held to. European citizens
everywhere in Europe could invoke European fundamental rights against
actions taken even by Member States. The EU would be the ultimate
constitutional repository of core European constitutional commitments. This
is not how the Charter generally operates. With regard to human rights the
Charter bears some resemblance to the US Constitution before the Civil War,
providing guarantees primarily against actions by the federal government, but
not state governments. Of course the EU establishes a principle of nondiscrimination on grounds of nationality that binds Member States’ actions
that fall under the scope of EU Law. And in case of a clear risk of a serious
breach of respect for human dignity, freedom, equality and democracy the
EU may suspend certain Member States’ rights under Art. I-59. But generally
the Charter applies only to acts of the European Union. It applies to acts of
61
Member States only, to the extent they are implementing EU Law or there
62
actions otherwise fall under the scope of EU Law.
This limitation ought not to be considered a defect. Citizens are generally
adequately protected against acts of nation states by their national
constitutions, as well as by the European Convention of Human Rights and
whatever redress the domestic political, administrative and judicial process
may provide. The costs of providing additional legal remedies by establishing
avenues for further judicial redress involving the ECJ may well outweigh any
potential benefits, as litigation takes longer and longer to come to a
conclusion. Furthermore there is a danger that the institutional dynamics
between national constitutional courts, the ECHR and the ECJ may provide
incentives for the competing courts to further juridify political life in the
European Union. Once it is understood that in Europe a very wide range of
political questions and a wide range of plausible political positions can be
61
62
Art. II-111 Sect. 1.
ECJ C-260/89 (ERT) [1991] ECR I-2925, ECJ C-368/95 (Familiapress) .
43
Constitutional Patriotism and the Constitutional Treaty
63
translated into a plausible constitutional rights claim , one would have to be
naif to believe that a ‘race to the top’ between courts is likely to further
64
justice rather than juristocracy in Europe. So it may not be a bad thing that
the function of the Charter is functionally more limited: To guide and
constrain the exercise of public authority on the level of the European Union
and provide for the protection of European citizens against acts and decisions
made by the European Union. It legitimates the European Union primarily in
that it provides a normative standard that guides and constrains European
Union actions.
So the function of the fundamental rights catalogue is to guide and constrain
primarily EU actors. But what can be said about the content of fundamental
rights in Europe? Here the purpose is not to provide a general overview of
the provisions, but to focus on some distinctive structural features of
European fundamental rights adjudication. Structurally European fundamental
rights openly authorize European courts to engage in reasoned policyassessment, while at the same time requiring them to connect their reasoning
to the practice of both the ECHR and Member States constitutional
traditions. The following will focus on the connection between human rights
as they are conceived on the European level and standards derived from
domestic constitutional practices.
Art. I-9 CT cites two different sources of fundamental rights in the EU. The
first states the standard traditional formula first used by the ECJ and later
incorporated in the Treaties and still good law today. Fundamental rights are
general principles of EU Law and are derived from the rights guaranteed by the
ECHR and as they result from the constitutional traditions common to the Member
States. Here the core idea is the idea of a constitutional tradition common to
Member States. The ECHR, which the ECJ in practice has tended to use as a
starting point for its inquiries, is in many respects a focal point of that
common tradition. But the ECJ tends to focus its analysis in particular cases on the
constitutional concerns that arise in the jurisdiction that it receives the reference from. In
63
See M. Kumm, Constitutional Rights as Principles: On the Structure and Domain of
Constitutional Justice, 2 Journal of International Constitutional Law (2004), p. 574.
64
Instead of excessive reliance on judicial remedies, a coherent human rights policy within
existing competencies may be a more promising approach for the EU. For the details of such
an approach see P. Allston and J. Weiler, An ‘Ever Closer Union’ in Need of a Human Rights
Policy: The European Union and Human Rights, in P. Allston (ed.) The EU and Human Rights
(Oxford: Oxford University Press 1999), pp. 3-66.
44
Mattias Kumm
effect it interprets that national provision in light of a common constitutional
65
tradition as it is reflected in the ECHR in particular.
This basic and strong connection between the ECJ’s rights jurisprudence and
national constitutional practice is not severed by the Charter of Fundamental
rights. The Charter of Fundamental rights claims not to change the law in the
European Union. The task of the Convention drawing up the Charter and
the purpose of the Charter according to its Preamble is to ‘make more visible’
the fundamental rights already guaranteed in the form of general principles of
European law. The basic idea was to translate, among other things, the basic
principles of equality, and non-trivial liberty interests that the ECJ already
claimed to be protecting, into a list of more specific protected interests. Such
a list would highlight, create more awareness for and make more visible the
particularly significant and vulnerable interests, many of which are linked to
technological development. The bottom line is that under the Charter practically
any non-trivial interest enjoys prima facie protection as a constitutional right in Europe.
That is its first distinctive feature.
Since practically any piece of legislation infringes someone’s liberty interests
and makes distinctions between persons (giving rise to equality concerns) and
such infringements and comparative disadvantages constitute a prima facie
violation of a Charter right, you can’t have much in virtue of having a right.
Not surprising an infringement of an interest protected as a right generally
merely triggers a reasoned assessment whether the infringement is justified. The
infringement is justified if it conforms to requirements laid down in a formal
and a substantive test. The formal test requires that the EU Law limiting a
66
right is enacted and applied according to proper procedure. If the proper
procedure was followed, the substantive test assessing whether the
67
infringement is justified consists of a proportionality test. The proportionality
test requires a measure to further a legitimate policy, be the least intrusive of
all equally effective measures and not impose burdens that are
disproportionate to the benefits it provides. This test provides little more than
a structure that establishes the individually necessary and collectively sufficient
65
The paradigm case illustrating this practice remains ECJ C-44/79 (Hauer) [1979] ECR 3727.
Art. II-112.
67
Art. II-112 Sect. 1 2nd sentence states ‘Subject to the principle of proportionality, limitations
may be made only if they are necessary and genuinely meet the objectives of general interest
recognized by the Union or the need to protect the rights and freedoms of others.’.
66
Constitutional Patriotism and the Constitutional Treaty
45
conditions under which the reasons that public authorities have for infringing
68
a protected interests qualify as good reasons, all things considered. Within
such a framework rights merely provide a structure for assessing the reasons that can be
invoked to justify infringements of protected interests. Practically any liberty interest
is protected as a right, but an infringement of a right merely triggers
proportionality analysis. Right reasoning structurally resembles rational policy
assessment in cases where sufficiently significant individual interests are in
play. European courts in turn are cast as guardians of political rationality or at least
of reasonableness. Their task is to ascertain whether there are good reasons,
under the circumstances, that justify an individual being burdened in a nontrivial way.
The highly open-ended policy inquiry required by proportionality analysis is
constrained in part by the Court exercising deference vis-avis the political
branches. This discretion is exercised in a highly contextual way on a case-bycase basis. The Court does not generally provide a structure for the discretion
it accords using ‘levels of scrutiny’ that characterizes much of U.S. rights
jurisprudence.
But beyond this general deference the ECJ is now required to be guided in its
proportionality analysis by both the ECHR and national constitutional
traditions: If the respected interest reflects rights that correspond to those guaranteed by
the ECHR or constitutional traditions common to Member States, rights shall be
69
interpreted in harmony with those traditions.
Both with regard to the sources of rights and with regard to their
interpretation, the common practice of Member States remains an
authoritative standard for the ECJ adjudicating fundamental rights. European
rights jurisprudence remains, to an important extent, the interpretation of
rights as they reflect a common understanding of Member States.
68
For the claim that there is an analytical connection between the concept of a constitutional
rights and the principle of proportionality see R. Alexy, A Theory of Constitutional Rights
(Oxford, Oxford University Press 2002).
69
See Art. II-112 Sect. 3 and 4 respectively.
46
Mattias Kumm
Conclusions: Supranational Legitimacy under the CT
The legitimacy of EU Law under the CT is connected to the legitimacy of
MS institutions and practices in three distinct ways. The first focuses on
jurisdiction and was referred to as legitimacy by negative implication. The principle
of subsidiarity assures that the EU acts only in circumstances where potentially
preempted MS actions are tainted by collective actions problems. In that sense, the
prima facie claim in favor of the legitimacy of the EU’s action lies in it
addressing concerns that MS are structurally incapable of addressing legitimately
or effectively. The second is procedural and involves the co-option of national
institutions. National executive branches are the political agenda-setters in the
European legislative process. These are legitimated either by being directly
elected by the citizenry or, more likely, subjected to national parliamentary
control. The CT enhances this control by providing the parliament with all
the relevant documents, assuring that there is no information asymmetry.
Furthermore national parliaments are also drafted into service to help police
the jurisdictional boundaries of the EU. The third way the legitimacy of EU
Law is connected to the legitimacy of MS practices is substantive. To some
extent EU Law borrows national human rights standards as standards used to
assess EU actions. The substantive limits of the EU’s actions, defined by
European human rights, draw from and are applied in light of national
constitutional practices. By way of negative implication, co-option and
borrowing the EU’s legitimacy is, to a significant extent, constructed with
reference to the legitimacy of national institutions and practices. Conversely
the legitimacy of national domestic practices are enhanced, as European
institutions provide safeguards against Member States following policies that
unduly burden their neighbours.
But the CT’s conception of legitimacy remains distinctively supranational,
notwithstanding these references to national institutions and practices.
Reference to national legitimacy should not be confused with the replication
of a national paradigm of legitimacy on the European level. First, the
jurisdictional argument from subsidiarity and its negative implication for
national legitimacy undermines the conventional national paradigms of
legitimacy (‘We the People’ as a collective subject governing itself within a
national constitutional framework). In this sense the claim to supranational
legitimacy involves a criticism and qualification of conventional national
Constitutional Patriotism and the Constitutional Treaty
47
70
accounts of legitimacy. Second, when national institutions are co-opted to
play a role in the European legislative process they tend to change their
character. They become distinctively European institutional actors, subject to
distinctly European institutional dynamics. In this sense national institutions
are just as much Europeanized as European practices are nationalized. Third,
borrowing in the domain of human rights protection, too, does not simply
involve reference to a specific national standard. It involves the construction
of a European standard in light of shared national commitments. Only
fundamental rights as they result from the constitutional traditions common to
the MS are binding EU Law. This involves complex exercises of construction
by the ECJ, as it interprets that common tradition to establish what European
principles, properly understood, protect. Constructing European legitimacy
by negative implication, co-option and borrowing gives rise to a distinctly
European practice that is supported by a distinctly supranational conception of
legitimacy. These linkages to national constitutional legitimacy, then, are at
the core of the CT’s conception of supranational legitimacy.
The Capture of Europe by its Member States and
the Lost European Citizen: European Identity
between ‘Bread and Circus’ and Recalcitrant
Nationalism
The picture of a European identity as it has emerged in the discussion of the
CT’s Preamble and its conception of authority and legitimacy, then, is the
following. On its most abstract level the identity of citizens, as imagined by
the CT, is a commitment to the enlightenment ideas of human dignity and
autonomy giving rise to human rights, democracy and the rule of law. More
concretely European citizens are invited to identify with a particular idea of a
transnational liberal civilization, in which the European supranational polity
has the task to address the issues that Member States are structurally unable to
address fairly or effectively themselves. Besides questions concerning peace
and security the establishment of a common market and securing the rights of
70
This is a point Miguel Maduro has rightly emphasized, see M. Maduro, Where to Look for
Legitimacy?, in: E.O. Eriksen, J.E. Fossum and A.J. Menéndez (eds), Constitution Making and
Democratic Legitimacy, Arena Report No. 5 2002, pp. 81-110. See also M. Maduro, Europe and
the Constitution: What if this is as good as it gets?, in J.H.H Weiler and M. Wind, European
Constitutionalism Beyond the State (Cambridge, Cambridge University Press 2003), pp. 74-102.
48
Mattias Kumm
producers and consumers in such a market takes center stage. On all levels the
European and the national are inextricably linked and both cooperatively
instantiate and serve the same ideals. The establishment of European
comprehensive authority is linked to a European authorization of Member
States to protect their residual sovereign rights, while the exercise of those
rights is procedurally circumscribed by European Union Law. The legitimacy
of European practices, through the mechanisms of negative inference, cooption and borrowing, is inextricably linked to the legitimacy of national
institutions and practices. Conversely the legitimacy of national practices is
enhanced, by the provision of European safeguards that preclude Member
States from imposing undue burdens on their neighbors. To be a European
citizen means to be a citizen also of a Member State. And being a citizen of a
Member State means being a European citizen. More importantly, however,
to be a European citizen means interpreting both European and national
citizenship as informed and suffused by a commitment to human rights,
democracy and the rule of law, the implications of which are worked out in
mutually engaging, referential and deferential legal and political practices.
When there is a conflict about the authority or the legitimacy of EU Law the
question is not: Is this compatible with national self-government or state
sovereignty? Nor is it adequate to ask whether one or another resolution of
the conflict is more useful to help bring about a strong federal Europe. The
foundational values of Europe are neither the idea of a European nation nor the
idea or national communities organized as states. It is the idea of
institutionalizing political and legal life to help citizens flourish in the variety
of communities they are part of (local, regional, national and transnational)
within a framework defined by human rights, democracy and the rule of law.
In contemporary Europe Member States and the European Union provide
the concrete institutional embodiment of this idea. The key point of
constitutional patriotism as a supranational identity, then, is that it focuses not
so much on the relationship between Member States and the European
Union, but emphasizes their common purpose and the mutual engagement to achieve
that purpose. Both European and national institutions serve to more perfectly
realize a political and legal order in Europe in which the political and legal
conditions for human dignity and human flourishing are assured by
institutionalizing the best understanding of rights, democracy and the rule of
law that emerges as a result of contestation, deliberation and negotiations
between Member States and European citizens. The characteristic aspiration
Constitutional Patriotism and the Constitutional Treaty
49
of supranational constitutional patriotism in Europe, then, is the replacement
of any kind of nationalism with constitutional principles as the fundamental
ethos that animates legal and political practice in Europe.
So much for the reconstructive interpretation of the CT and the identity it
invites European citizens to adopt. But is the CT likely to contribute to the
development of a European identity that embraces the commitments reflected
in its Preamble and its conception of authority and legitimacy? Do European
citizens have good reasons to embrace it? The first is an empirical, the second
a normative question. In an ideal world, where citizens actually embrace what,
on reflection, they have good reasons to embrace, the answer to these questions
would necessarily be identical. But it would by no means be clear what that
answer would be. This is not the place to address the whole range of reasons
that support or undermine the CT or even the general conception of the EU
that it reflects. Here it must suffice to point to one serious concern about
current European practice that the CT does nothing to remedy and that is
likely to preclude the development of anything like the kind of identity the
CT purports to embrace.
Democratic Life in the European Union and its Discontents
To approach this concern, it may be helpful to start with three snapshots
focusing on three distinct aspects of European constitutionalism. Then I will
put forward some conjectures about what connects them.
The first concerns the recent European Parliamentary elections In the
Parliamentary elections in June the voter turnout was 45,7%, the lowest it has
71
ever been. These bad results would not look considerably better, even if one
were to discount for the particularly low participation rate of citizens of the
72
new Member States. Since the introduction of European Parliamentary
election in 1979 voter turnout has been consistently falling in every election
from 65.9% in 1979 to the previous low of 53% in 1999. Even in the nine
countries that participated in the first direct elections to the European
Parliament turnout in 2004 was on average 9 percentage points lower than in
71
http://www.elections2004.eu.int/ep-election/sites/en/results1306/turnout_ep/index.html.
In the new Member States Slovakia and Poland, for example, voter turnout was below 20%.
Less then one third bothered to vote in the Czech republic, Estonia and Slovenia. On the other
hand voter turnout in Malta was above 80%. In Belgium and Luxemburg it was over 90%. Id.
72
50
Mattias Kumm
1979. Turnout for European elections was on average 25% below voter
73
turnout in domestic elections. Besides the low turnout the one striking
feature of these elections has been the success of a diverse group of antiEuropean movements and parties, now well represented in the European
Parliament. Polls reveal that European citizens are not aware who won the
elections or even what it would mean to win an election on the European
level. Presumably they’d be at a loss to say why it is important for them to
know who won the elections. And it would not be easy to convince them
that their time is well spent worrying about that. The elections provided a
vivid illustration of just how peripheral European electoral politics are and
they undermine simple progress narratives suggesting that things are
improving.
The second snapshot concerns the Preamble of the CT. In remarkable candor
the structure of the Preamble expresses a feature of European
constitutionalism that the rest of the CT wants to gloss over. The preamble
begin with ‘His Majesty the King of the Belgians her Majesty the Queen of
Denmark, the President of the Federal Republic of Germany’ etc. and it ends
with ‘have designated as their plenipotentiaries’. What I have failed to
highlight in the discussion of the Preamble is that it is the 17 Presidents, six
Majesties and Royal Highnesses, one government and one Parliament that
‘draw inspiration from’, ‘believe’, and are ‘convinced’ of all the things the
Preamble refers to. The invitation to identify with the particular conception
of constitutional patriotism that the substance of the Preamble reflects is issued
by the Heads of States and Governments (and in the case of Hungary, the
national Parliament). The Heads of States and Governments appear
unconcealed as the alpha and omega of European constitutionalism.
The third snapshot concerns the ratification debates. These have only just
begun and to some extent the dynamic of the ratification process are
unpredictable. Furthermore the themes and intensity of debates are likely to
vary across jurisdictions. Europe means a great many things in different
nations. But here is an educated guess about some themes that are likely to
play a central role across jurisdictions. On one level the debates will be
extremely abstract. First, National sovereignty will be invoked as a reflex
against the very idea of a European constitution. As a defense governments
73
For a helpful analysis of the elections see R. Rose, Europe Expands, Turnout falls: The
Significance of the 2004 European Parliament Election, at http://www.idea.int/elections.
Constitutional Patriotism and the Constitutional Treaty
51
will say that golf clubs, too, have constitutions, that the constitution does not
really change much and that sovereignty of States will be as or even more
effectively respected and protected under the CT than under the current
Treaties. Second, European institutions will be lambasted as undemocratic – a
bureaucratic machine run by those ‘out there’ in Brussels. Here the response
will be to point to the subsidiarity, the role of national parliaments and the
role of national executives in the EU’s legislative process, perhaps with a timid
nod to the role of the European Parliament. On a second level the debates
will be more specific and focused on the preoccupations each specific
jurisdiction: Did the British government effectively protect the red lines it
drew? Did the Polish government effectively secure the influence Poland
deserves? On a third level the debates will be about the costs and benefits of
participating in Europe in the first place. What is lost, what is gained in each
jurisdiction? Here a standard fallback for governments is that all in all the CT
is better than the Treaties it seeks to replace. These themes are clearly not
exhaustive of what debates will be about. But they are likely to be central to
most of them.
What connects these three snapshots? On the one hand the comparative lack
of interest in European elections and the nature of the ratification debates
suggest the absence of a common identity in Europe that has anything at all to
do with the conception of thick constitutional patriotism of the kind that the
CT embraces. On the other hand they point to an explanation about why it is
that things are the way they are and why they are not likely to change under
the CT. The structure of the political process inhibits the development of a
European identity. At this point the explanation is little more than a
hypothesis. Its plausibility would have to be assessed in light of a richer
account of the dynamics of European institutional practices and a deeper
investigation into the social psychology of the development of collective
identities than can be provided here. Its core point is this: The CT leaves in
tact European institutional arrangements that hinder rather than foster the
development of meaningful electoral politics on the European level. Without
meaningful electoral politics on the European level a European identity along
the lines outlined here is unlikely to develop. Instead European responses to
the European Union are likely to continue to oscillate between vague and
fickle support, coupled with disinterest in European political life on the one
hand, and shrill national recalcitrance on the other. There are two empirical
claims here. The first is that the degree of participation in European electoral
52
Mattias Kumm
politics depends to a significant extent on questions of institutional design and
the role of the European Parliament in particular. The second is that the
existence or absence of robust European electoral politics is a significant factor
for the development of a European identity focused on constitutional
patriotism. Here it must suffice to provide rich descriptive account to bolster
these claims.
European Parliamentarianism and its Discontents
What accounts for the fact that a European Parliament, that since its inception
as a consultative assembly in the original Treaties of Rome has gained
significant powers, remains as insignificant in the public eye as it does? What
accounts for the fact that, even as the Parliament’s role is strengthened in the
Single European Act, the Treaty of Amsterdam and Nice, voter turnout goes
down? Many reasons have been put forward to explain the phenomenon.
First, the Parliaments legitimacy may be in doubt given the way that seats are
apportioned in Parliament. Yet it would be surprising if many European
74
citizens even knew how seats are apportioned. Second, citizens disinterest in
European parliamentary elections is not an expression of a general hostility
towards the very idea of a European Parliament. On the contrary, a large
majority approves of a European executive responsible to a European
75
Parliament. Third, European legislative decision, it has been suggested, are of
76
low public salience and tend to be of a pareto-optimizing coordinative
77
nature. But as the BSE crisis in the late nineties and the responses following
September 11 have illustrated, citizens are well aware that the EU does and
should play a role of the EU in the allocation and management of risks in
areas of high political salience. Furthermore the rules that are generated by the
EU effect domestic priorities and require significant domestic allocation of
resources. The Euro-sceptics in particular do not doubt that Europe matters.
They just don’t think it should. Furthermore the lack of interest in European
74
For a discussion of this issue see M. Maduro, Where to Look for Legitimacy?, in: E.O.
Eriksen, J.E. Fossum and A.J. Menéndez (eds), Constitution Making and Democratic Legitimacy,
Arena Report No. 5 2002, pp. 81-110.
75
A standard Eurobarometer survey consistently shows that a great majority of European would
prefer a Parliament with a strong supervisory function over a European government.
76
A. Moravscik, In Defense of the ‘Democratic Deficit’: Reassessing Legitimacy in the
European Union, 40 Journal of Common Market Studies (2002), pp. 603-624.
77
See Scharpf, Negative and Positive Integration in the Political Economy of European
Welfare States, in: G. Marks, F.W. Scharpf, P.C. Schmitter and W. Streeck, Governance in the
European Union (London, Sage Publications 1996), pp. 15-39.
Constitutional Patriotism and the Constitutional Treaty
53
Parliamentary elections is probably not just caused by the absence of a
common European language or the existence of an appropriately structured
public sphere that allows citizens to understand what goes on in Parliament,
78
though clearly these factors are relevant. Even in a world where everyone
spoke all European languages and was bombarded by coverage of European
affairs, citizens would have scant reasons to focus on what goes on in the
European Parliament. Why?
To put it bluntly: The European Parliament is not a place where competing visions of
Europe’s future are translated into competing programs by competing parties in a way
that is likely to significantly shape the outcomes of the European political process. In
part that has something to do with the internal structure of Parliament. The
Party structure remains underdeveloped, even though changes are taking
place. But more importantly the European Parliament, as it is conceived
under the current Treaties and the CT is not the central agenda-setter in
Europe. It is an editor and not the author of European laws. It has a veto over
most acts of legislation, but it does not have the power to set and aggressively
pursue a legislative agenda. Given the role of Member States in the European
Council as agenda-setters and the Council of Ministers as the core venue of
decision-making, as well as the relative independence of the Commission as
the institution generally responsible for drafting and proposing legislation, the
role of Parliament is not significant in a way that European citizens have a
reason to care much about. As was explained above, this does not mean that
Parliament is marginal or unimportant. It merely means that if citizens are
alienated by outcomes of the political process, they can’t with a reasonable hope for a
legislative remedy, vote for change or even express their dissent by voting for a clearly
defined alternative set of programs and persons. Yet that is the standard Parliaments are
th
generally held to. That is how Parliaments, since the early 19 century have
functioned, even when there are other domestic veto-players with the power
to curtail the will of parliamentary majorities. And that is what citizens are
made to believe Parliament functions, were they to read the CT: The
79
European Parliament is mentioned as the first institution in the CT , before
the European Council and the Council of Ministers, the CT emphasizes the
78
See D. Grimm, Does Europe need a Constitution?, 1 European law Journal (1995), pp. 282302, F. Scharpf, Democratic Policy in Europe, 2 European law Journal (1996), pp.136-155.
79
Art. I-19 CT lists the European Parliament as the first element of the EU’s institutional
framework. Art. I-20 the provides details about the Parliament. Art. I-21 to 25 CT address the
European Council, Council President and Council of Ministers and Art. I-26 CT addresses the
Commission.
54
Mattias Kumm
importance of representative democracy and the role of the European
80
Parliament as the first institution reflecting that principle , and the Treaty
81
states that the Parliament elects the Commission President. All this reads as
if the Parliament was the primary agenda-setter in the Union, flanked by
strong Member States representation in the European Council and Council of
Ministers, no doubt, but the primary agenda-setter non-the-less.
When Europeans originally voted for a Parliament, they may well believed to
have voted for an institution that plays a comparable role to Parliaments in
their respective domestic settings. But in Europe, such expectations will be
disappointed. It has puzzled public choice theorists why a great number of
citizens actually turn out to vote for elections, knowing that their vote is
practically certain not to change anything. It should not be puzzling that
citizens are considerably more apathetic about an institution that does not
even function to create and bring to public representation alternative political
programs embodied in competing personnel and is not linked to political
power in a way that one or another side winning the elections makes a
significant difference. Additionally, the frustrations with the European
Parliament - and future frustrations under the CT may be linked to the
discrepancy between the adoption of the language and traditional institutional
forms of democracy as a matter of public rhetoric and constitutional
presentation, and the reality of indirect rule more reminiscent of prerevolutionary forms of governance. It is a contested question whether or not a
European Parliament as a central European agenda setter is desirable, all things
considered. But the compromise of rhetorically appeasing those who think it
should be and the reality of leaving Member States governments in the
driving seat is likely to lead to resentment and suspicion from both sides.
National Government Accountability and its Discontents
But the problem is not just that citizens can’t focus on Parliament as an
institution to bring about legislative change and hold accountable a person or
a party for their failed politics. There are no alternative actors in the European
80
Art. I-46 CT establishes that the functioning of the Union ‘shall be founded on representative
democracy’ and immediately goes on to state that ‘citizens are directly represented at Union
level in the European Parliament’, before going on to mention the European Council and
Council of Ministers as institutions representing Member States accountable to national
Parliaments or citizens.
81
Art. I-20 Sect.1 states that the EP ‘shall elect the President of the Commission’.
Constitutional Patriotism and the Constitutional Treaty
55
Union that citizens can hold accountable as European citizens. The President of
the Commission and the Commission itself is generally determined by the
European Council, even if Parliament then goes on to formally elect him and
gives its consent to the Commission. The only hope of electoral
accountability, then, seems to be the national governments. As the framing of
the Preamble nicely illustrates, governments are in the driving seat. Of course
the governments can’t be held accountable as European actors by citizens
acting collectively as European citizens. But can they not be held accountable
nationally in national elections? Isn’t that the very point of co-opting national
institutions to serve as European actors: to ensure the legitimacy of the
European process by linking it to national accountability mechanisms?
The answer is that national accountability mechanism, where they do not
serve as a complement to other stronger accountability mechanisms, are likely
to function badly. They are responsible for creating exactly the kind of
combination of disinterest and national recalcitrance that characterizes
European citizen’s approach to political life in Europe. There are two reasons
for this.
First, when governments are held accountable for their role in Europe,
debates take place in the national context and address the actions of national
governments. It is not surprising that when these actors are held accountable
by national citizens the debates are structured primarily along the
national/European divide. They produce exactly the kind of debates that they
have in the past and that will unfold again in the ratification process. They
will be about being pro or against Europe. The sovereigntists will battle the
Europeanists. They will be about cost-benefit analysis along national lines:
What do we, as a national community gain, what do we, as a national
community lose? How much do we pay in, how much do we get back?
There is a structural bias to these debates that tend to preclude the discussion
of what kind of Europe is desirable for European citizens, a debate that
emphasizes what it is that Europeans have in common and provide competing
visions and political programs that guide what Europe should become. When
Senators in the U.S. are held accountable by their States for what they’ve
done in Washington, these debates tend to exhibit a similar structure. The
questions tend to focus on what was done for the state. In federal or quasifederal systems there are good reasons for the existence of such accountability
structures. But, unlike in the United States, where there are presidential
56
Mattias Kumm
elections that produce a debate of a very different kind, in Europe there are no
other elections of significance to complement elections that have this structure.
The peculiar and impoverished nature of debates on the future of Europe may
not primarily be due to the fact that there is no strong independent European
identity. There is no strong European identity because existing accountability
structures perpetuate debates that have the effect of reinforcing the
national/European divide and preclude the development of a European
identity.
Second, given the governments interest in defending its record, when it is
held accountable, it will have an incentive to make its own everything that is
good that happened on its watch, while blaming on Europe and the need to
compromise everything that goes badly. The problem of blame-shifting is not
just a problem for the EU gaining acceptance among European citizens and
does not just effect the legitimacy of the European Union. It also raises
questions about effective domestic accountability. If governments can
effectively blame the European Union for what in fact are the deficiencies of
domestic policies, then the lack of transparency has the effect to undermine
the effective democratic control of national institutions as domestic actors.
The dual role of governments does little to enhance the legitimacy of
European institutions and undermines effective accountability of governments
as domestic actors. The idea that national parliaments can be an effective
check on blame-shifting practices is questionable. Even though some
countries have done better job than others to strengthen mechanisms of
82
control of parliament with regard to the executive branch, at the very best
the problem can only be mitigated, but not resolved. It is simply too easy for
the executive branch to claim that complicated negotiations and bargains
struck between Member States made this or that compromise necessary.
Furthermore a perverse effect of a stronger and more effective involvement of
national parliaments is that it exacerbates the problems of structural bias,
discussed above. It tends to intensify the need of the executive branch to
justify its actions in terms of realizing a narrowly defined national interest.
82
Germany, for example, has amended its constitution (Art. 23 of its Basic Law) to enable
domestic actors to better control the actions of the executive. Denmark, too, has established
effective procedures to better control the actions of the executive branch on the European
level.
Constitutional Patriotism and the Constitutional Treaty
57
Between the ‘Cold Putsch’ and ‘Spaceship Brussels’
According to the CT the participation of the European Parliament in the codecision-procedure and the role of national governments in the European
Council and Council of Ministers complement one another to ensure that
European political practice adequately embodies the principle of
representative democracy. Unfortunately in the European Union the two
prongs of representative democracy tend to undermine rather than
complement one another. On the one hand the European parliament is at
best a junior-partner of the Council in the legislative process, whose influence
is further diminished by the relatively independent status of the Commission.
European citizens have few reasons to take great interest in such a Parliament.
On the other hand, even if the Council collectively may be in the driving seat
of the legislative process, each government is only one actor among many
others – other governments, the Commission and the European parliament to
name only the most prominent actors. A neo-Madisonian idea of dispersion of
power through inter-institutional checks and balances, complemented by
requirements of reason-giving and cooperative mutual engagement has many
attractive features. But in the concrete form that it takes in the European
Union it has two highly unattractive side-effects, both presenting potent
obstacles to the development of a European identity.
First it amounts to a massive empowerment of the collective executive
branches of Member States at the cost of national Parliaments. Though no
doubt hyperbolic, a leading German newspaper captured something of
importance when it described the European Union as it was established in the
Treaty of Maastricht the result of a ‘cold Putsch’ by the executive branches,
that legislatures and citizens then reluctantly ratified in the name of peace and
prosperity in Europe for fear that failure to do so would undermine the very
idea of European integration. In the fundamental analysis nothing much has
changed since then. The extension of the co-decision procedure from the
Treaty of Maastricht to the Treaty of Niece and the CT effectively expanded
the role of the European Parliament as a veto-player and has given it some
additional clout. But neither this, nor the cooption of national Parliaments by
the CT, granting them a weak role in the European legislative process,
changes the political dynamics significantly.
Second the requirement that national institutions, the executive branch and,
according to the CT now also national parliaments engage with and mutually
58
Mattias Kumm
deliberate with other European actors undermines their accountability to
citizens. All actors are somehow involved in and participate and deliberate in
the European legislative process. Yet no-one specifically can reasonably be
held accountable for the outcomes of the legislative process. From the
83
perspective of citizens, the European political process becomes a ‘spaceship’,
a complex self-referential process largely immunized from the influence of
electoral politics. Everyone part of the relevant inter-institutional deliberative
network talks to everyone else and a consensus is eventually formed, perhaps a
consensus accompanied by protest by this or that Member State. But these
deliberative interactions do not produce competing visions of what the
European Union should become, leading to competing programs and embodied
in competing personnel. Since there is no electoral competition between
European elites connected to competing policies, elections don’t function as a
mechanism to express support for one or another vision, program or
personnel. They don’t serve as a meaningful way to effect political change.
Citizens can no longer identity with one side against the other and express
their dissent by favoring an alternative political personnel, program and vision
of Europe’s future. If everyone is somehow involved, but no electorally
accountable actor can meaningfully be held responsible for a set of outcomes,
and no alternative political programs are presented to make a choice from,
then one would predict electoral debates to have two features, both of which
are prominent in Europe. First, instead of a debate on alternative visions,
programs and personnel it would be a debate for or against Europe. You’re
either going to support the package of rules supplied by the European political
process or reject the very idea that there should be a European package of
rules at all. You’re either a Europhile or a Eurosceptic. You either want more
Europe or less Europe. But since Europe appears as a monolithic whole that
produces a set of outcomes without institutionally producing a menu of
alternative outcomes, you can either be for the product or against it. There is
no visible institutional embodiment of an alternative Europe. There is little
opportunity to use the vote to express your support for an alternative
European political program, because such an alternative is unlikely to have
been developed and presented by European actors. Second, besides expressing
your support for or protest against Europe European elections tend to be
determined by domestic politics. Most regard it as too radical and blunt a
choice to be against Europe and ‘the whole European system’. After all
everyone signed on to it and the cost of exit and the general benefits of
83
A. Oldag and H.M. Tillag, Raumschiff Brüssel (Frankfurt, Argon Verlag, 2003).
Constitutional Patriotism and the Constitutional Treaty
59
membership are high. Not surprisingly the protest vote, though significant, in
the end remains relatively ineffectual. Instead European parliamentary
elections are not primarily about Europe and nor are national elections.
Instead European citizens vote for the party or candidate they trust for his
stance on domestic issues. Not surprisingly European parliamentary elections
are often treated as a barometer for the popularity of the domestic
government and the popularity of its domestic policies.
European Identity and Representative Democracy in Europe
under the CT: Interpretative Possibilities and Political
dynamics
The structure of the political process, then, is one central reason why it is
unlikely that European citizens will develop a European identity along the
lines envisioned by the CT. Citizen’s identities are not shaped by
constitutional preambles or constitutional texts more generally, unless these
constitutional texts are the focal point of political and legal contestation and
deliberation meaningfully connected to citizens’ collective political action. It
is difficult to know what the necessary and sufficient conditions for the
development for such an identity are. The availability of appropriate historical
narratives, public education, perhaps outside threats all have a potentially
84
important role to play. But the above analysis suggests that for the
development of an identity of constitutional patriotism in Europe today one
necessary condition for the development is the establishment of a meaningful
85
electoral process on the European level. Such a process would allow
European citizens to vote for and against competing visions of what Europe
ought to become and participate in debates about what that implies for
political programs and competing parties and leaders. Of course the barriers
that remain for the development of a robust European identity would still
remain considerable. The absence of a well-developed public sphere in
Europe and a common language in particular presents a considerable obstacle
84
For a conception of European history that supports the development of a European identity
and the role of public education see M. Kumm, The Idea of Thick Constitutional Patriotism
and Its Implications for the Role and Structure of European Legal History, 6 German Law
Journal No. 2 (2005) (forthcoming).
85
For an argument that the development of national identities was linked to the emergence of
representative institutions on the national level, replacing more indirect forms of rule see
Micheal Hechter, Containing Nationalism (Oxford, Oxford University Press 1999).
60
Mattias Kumm
86
for such an identity to develop. But such an obstacle will only be overcome,
if institutions are established that provide a sufficiently strong incentive for
such obstacles to be overcome. Current institutional structures perpetuate the very
obstacles that are invoked as a reason not to establish meaningful electoral politics at the
heart of the European political process. They perpetuate the very condition of
apathy and national recalcitrance that provides the sociological and political
background to the academic cottage industry writing on the ‘democratic
deficit’ in Europe. Additionally the argument for a more central role of a
European Parliament does not depend on either an idealized description of
87
parliamentarianism , nor does it suggest that it is necessary or desirable to
institutionalize Westminster type Parliamentarianism in Europe. The
argument is not that everything should be decided by Parliament and that the
complex administrative type procedures characteristic of the Comitology
process needs to be replaced. On the national level, too, the parliamentary
procedure is just one among many jurisgenerative procedures. But whatever
the role of other administrative type processes there are, at the very least the
formal legislative process and a strong European Parliament in particular
would serve as a “mechanism for the public control of the cumulative
88
unintended consequences of scattered forms of decision-making.” Parliament
deserves to emerge at least as an equal to Member States as an independent
and strong agenda setter as a legislator within the co-decision-procedure.
European constitutional theorists may have been too quick to think of
defenders of Parliamentarianism as intellectually complacent or naïf statists,
89
who refuse to take seriously the task of translating the basic commitments
underlying the democratic constitutional tradition to a setting beyond the
state. What may well be infatuation the ‘sui generis’ character of the European
90
Union – Europe’s constitutional Sonderweg as Joseph Weiler aptly calls it –
86
D. Grimm, Does Europe Need a Constitution, supra note 77.
This is a charge made, for example, by A. Moravcik, In Defense of the ‘Democratic Deficit’:
Reassessing Legitimacy in the European Union, 40 Journal of Common Market Studies (2002),
pp.603-24and R. Dehousse, Beyond Representative Democracy, in: J.H.H.Weiler and M.
Wind (eds.), European Constitutionalism Beyond the State (Cambridge, Cambridge University
Press 2003).
88
C. Lord and D. Beetham, Legitimizing the EU: Is there a ‘Postparliamentary Basis for its
Legitimation?, 39 Journal of Common Market Studies, pp. 443-462 (454).
89
See N. Walker, Postnational Constitutionalism and the problem of translation, in: J.H.H.
Weiler and M. Wind: European Constitutionalism Beyond the State (Cambridge, Cambridge
University Press 2003), pp. 27-54.
90
J. Weiler, In Defense of the Status Quo: Europe’s constitutional Sonderweg, id, pp.7-26.
87
Constitutional Patriotism and the Constitutional Treaty
61
has lead to the stigmatization of the idea of a robust European
parliamentarianism as a symptom of intellectual inertia among the more
sophisticated echelons of European academia. Yet the case against
parliamentarianism – indeed against representative democracy in Europe 91
may not be as strong as it seems and the costs of making do without it may
be very high. The above does not claim to be a conclusive argument for a
robust Parliamentarianism in Europe. It merely serves to deepen the
understanding of what is lost when meaningful electoral politics in Europe is
absent. Furthermore establishing electoral politics at the heart of the European
political process does not mean the establishment of a federal state. It does not
suggest that the European Union should be doing more than it is currently
doing or that the particular supranational structure of its authority should be
changed or the structure and role of the Comitology process radically altered.
But it does suggest that an important dividing line between citizens debating the future
of Europe is the dividing line between Democrats and Republicans. Democrats would
insist on establishing some form of a meaningful electoral politics on the
European level, whereas Republicans would argue that division of powers,
rights protection and the formal framework of a constitution and
administrative-type oversight for the exercise of public authority is sufficient.
If the argument presented in this last section is plausible, it suggests that those
who find a European identity focused on constitutional patriotism attractive,
need to side with Democrats.
Democrats, though critical of the CT, may still have reasons to accept it for
strategic reasons as the best option realizable under the circumstances. From a
democrat’s perspective the CT’s hypocrisy may turn out to be an advantage.
If it is true that the CT provides an account of its own legitimacy that is
undermined by a literal reading of some of its operative provisions, clearly this
provides an argument for these provisions to be read narrowly. These
provisions should not interfere with the progressive development of political
practices under the CT that are able to realize its purposes to a greater extent
and thus produce a constitutional effect utile. Practically this ought to
91
A recent version of an attack against Parliamentarianism as ‘orthodoxy’ ‘deeply anchored in
western political culture’ (136) and ‘resting on a mechanical, transmission belt vision of public
policy’ that loses their plausibility once ‘a complex constellation of preferences and interests’ are
revealed to be behind ‘convenient abstractions’ (155) is by R. Dehousse, Beyond
Representative Democracy: Constitutionalism in a Polycentric Polity, id, pp.135-156.
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Mattias Kumm
encourage the European Parliament to play a more assertive role in
relationship to the Council and fight politically for a more central role.
The CT opens promising avenues for an assertive and self-conscious
Parliament to enhance the significance of electoral politics in Europe. One
such avenue concerns the appointment of the Commission President and the
Commissioners. The parliament can argue that the provision stating that
92
‘Parliament shall elect the Commission President’ actually means that
Parliament will elect the President rather than just approve the choice made by
the Council. Elect comes from the latin ‘electio’ and means careful choice.
Such a choice is absent when Parliament’s role is just to approve or
disapprove of a candidate chosen by the Council. Of course Art. I-27 states
that the Parliament ‘shall elect’ the candidate proposed by the European
Council. But the Council in turn is required to engage in ‘appropriate
consultations’ and ‘take into account the elections to the European
parliament’. The Parliament should interpret the requirement to ‘take into
account the elections to European parliament’ as a requirement to generally
give deference to the candidate chosen by the European Parliament. The
same is true for the selection of Commissioners. Rather than reacting to
specific deficiencies of candidates put forward by Member States, as
parliament has done in the Buttiglioni affair, Parliament should present its
own list of Commissioners as a basis for negotiations with Member States and
refuse any substitutions made without specific reasons relating to legitimate
political concerns. If the analysis put forward here is plausible, this
interpretation makes better sense of the CT as a whole than an interpretation
that suggests a more limited Parliamentary role in the determination of the
President and the Commission.
More strongly aligned with the Parliamentarian majority, the Commission is
likely to interpret its impartiality and draft its proposals with a greater
sensibility to parliament’s preferences rather than to Member States. The role
of Parliament as a political agenda-setter would be significantly strengthened.
The Council would resemble more strongly a second legislative chamber,
though still incomparably more powerful then the second chamber in any
western federal system. As a whole such a development would strengthen the
role of Parliament to such a degree that European citizens might find that
they have good reasons to take European elections more seriously. Such a
92
Art. I-20 Sect.1 CT.
Constitutional Patriotism and the Constitutional Treaty
63
development would be further supported if the competing party blocks in the
European Union became more cohesive and presented their own candidates
for the presidency and the Commission before the elections, thereby
personalizing competing programs. In important respects such a development
would reflect the ideals of the CT to a greater extent, then a practice in
which the Council remains the overbearing political agenda-setter in the EU.
It would strengthen representative democracy in Europe along the lines
suggested by the CT’s Chapter on the ‘democratic life’ in the Union. Such an
interpretation of the relationship between the Parliament and the Council
would also provide the minimal institutional prerequisites for the
development of a genuine European identity grounded in constitutional
patriotism. Whether this would be enough is by no means clear. The
development of a European identity depends on more than the adequate
93
institutionalization of electoral politics on the European level. But without
some such a development the idea of a European identity will remain
constrained to the ivory tower, complementing the topic of the EU’s
democratic legitimacy as a favorite theme of EU financed conferences.
93
For a discussion of the role of European history and public education see M. Kumm, The
Idea of Thick Constitutional Patriotism and Its Implications for the Role and Structure of
European Legal History, 6 German Law Journal No. 2 2005 (forthcoming).
Chapter 2
Closing of the EU’s legitimacy gap?
Erik Oddvar Eriksen and John Erik Fossum
ARENA, University of Oslo
Introduction
The rapid growth and development of the EU, in particular throughout the
1990s, has not been matched by a corresponding consensual embrace of the
type of entity that this is. Disagreement stems from different conceptions of
the EU qua polity; different conceptions of the nature and direction of the
integration process; and different conceptions of democratic legitimacy.
However, there is increased agreement among analysts and decision-makers
alike that the EU needs a basis of legitimacy that is reflective of it qua polity,
and which cannot merely be derived from the Member States. What should
be the relevant normative assessment standard is however contested. If we
consider the treaties, policy documents, and speeches by most EU officials, it
1
is clear that the relevant standard is that of democratic legitimacy. This standard
has also become increasingly visible in the EU’s reform process. During both
the Amsterdam (1997) and Nice Treaty (2000) processes, the EU sought to
1
For instance, during the Intergovernmental Conference (IGC-96), which produced the
Amsterdam Treaty (1997) the values most frequently referred to were peace, democracy,
freedom, human rights, the rule of law and solidarity.
66
Eriksen and Fossum
locate the question of its identity and legitimacy in such principles as
democracy, the rule of law and human rights. At Nice, additional measures
were taken to prevent serious breaches of these principles (Art. 7 Para.1, Nice
Treaty), and a decision was made to launch a broad debate on the Union’s
fundamentals. At the Laeken European Council meeting in December 2001,
it was decided to establish a Convention on the Future of Europe to give this
debate a stronger institutional – and constitutional – impetus. The
Convention, albeit only instructed to prepare the agenda for the IGC, came
back with a Draft Treaty establishing a Constitution for Europe (hereafter the
Draft). This has subsequently been accepted by the European Council in June
2004, was signed on October 29 2004, and now awaits ratification in all the
Member States.
This consistent embrace of democratic legitimacy as the appropriate standard for
the EU suggests that a marked change has taken place - from the EU as a
largely economic organisation whose legitimacy was derived from the
Member States - to an entity whose legitimacy is reflected in its own
institutional and constitutional make-up. Is this really the case? And, has the
EU been able to somehow reduce the democratic deficit? If so, how has it
come about?
To address this question of reducing the democratic deficit we first need to
clarify what is meant by democratic legitimacy in a supranational context; the
precise nature of the standards that the EU appeals to; and their implications
for the EU polity. Our point of departure is that deliberative democracy
offers the most relevant set of standards for assessing the question of the EU’s
democratic legitimacy. We are here aided by the ‘deliberative turn’ in EU
2
studies, although this turn has not generated a set of uniform standards. We
2
For a selection, see C. Joerges and N. Neyer, From Intergovernmental Bargaining to
Deliberative Political Processes: The Constituionalisation of Comitology, 3 European Law
Journal (1997), pp. 273-99. See also C. Joerges and E. Vos (eds), EU Committees: Social
Regulation, Law and Politics (Oxford, Hart Publishing 1999). E.O. Eriksen and J.E. Fossum,
Democracy in the European Union. Integration through Deliberation? (London, Routledge 2000).
J.Cohen and C.F. Sabel, Directly-Deliberative Polyarchy, 3 European Law Journal (1997), pp.
313-42, O. Gerstenberg and C.F. Sabel, Directly Deliberative Polyarchy: An Institutional Ideal
for Europe?, in: C. Joerges and R. Dehousse (eds) Good Governance in Europe’s Integrated Market
(Oxford, Oxford University Press 2002). T. Risse-Kappen, Exploring the Nature of the Beast:
International Relations Theory and Comparative Policy Analysis Meet the European Union,
34 Journal of Common Market Studies (1996), pp. 53-79. But they are not all turning in the same
Closing of the EU’s legitimacy gap?
67
spell out our particular stance and the criteria of democratic legitimacy that
our approach contains.
Second, we need to know the extent to which the EU has met with these
standards, in institutional and procedural terms. The problem is that such an
assessment cannot be confined to the structure in place, as the EU is very
much an entity in motion, and is currently involved in a vital process of
constitutionalisation. Consequently, there is, thirdly, a need for analysing the
Draft, both as product and as part of the process of forging a viable Union.
We seek to establish how well the Draft – the conception of the EU that we
can discern from the Draft - meets with the standards of democratic
legitimacy. We argue that, if accepted and incorporated, the Draft will move
the EU from a polycentric (complex three-pillared) system of governance to a
bi-cephalous system of government. This will represent a certain narrowing of the
legitimacy gap. But whereas the process of forging the Draft has been more
inclusive and deliberative than earlier Treaty change processes, the end result
falls short of the requisite standards. But few participants and analysts really
see the Draft as the final product. It is better seen, as its name Draft Treaty
establishing a Constitution for Europe suggests, as a temporary resting-point.
The name holds out the promise of a subsequent full-fledged constitution for
Europe. We argue that the Draft is best seen as a working agreement which
came about because actors were willing to move their stances and views, so
that the outcome is more than a brute compromise but also less than a
rational consensus.
In the next part, Part Two, we present the deliberative perspective and its
conception of legitimacy, including the assessment criteria that we discern
from this perspective. Then we clarify the nature of the EU’s commitment to
democratic standards of legitimacy. In Part Three, we briefly apply the
standards established in Part Two, through assessing the extent to which it
complies with these in procedural and institutional terms. In Part Four, we
assess the Convention and the Draft to get a clearer sense of their projected
status and direction for the EU. The latter is seen motivated by the urge to
close the legitimacy gap. The last part holds the conclusion. But first, how to
conceive of democratic legitimacy?
direction. Most of the above focus on deliberation as a mode of interaction only, and fail to
adequately consider deliberative democracy.
68
Eriksen and Fossum
Deliberation and Democratic Legitimacy
A collective must be made up of equals, for democracy to prevail, as
citizenship implies the ability to rule over one’s equals and to be ruled in
3
turn. Democratic arrangements not only enable, but also require and
warrant, popular participation in the political process. That is, they enable
government by the people.
Democratic legitimacy
The democratic principle entrenched in modern constitutions, refers to the
manner in which citizens are involved in public deliberations, collective
decision-making, and lawmaking - through a set of rights and procedures,
that range from freedom of speech and assembly, to eligibility and voting
rights. These political rights, and their attendant institutions and procedures
may be seen as a way to secure the public autonomy of the individual. They
ensure that the addressees of the law can also participate in the making of the
law. Modern states are large and pluralistic, and their complex institutional
structure, to function, presupposes representation and delegation of power as
essential principles of government. There are good normative grounds for
doing so. This kind of institutional complexity need not deter public
deliberation, as voting, entrenched rights, division of power, representation
and expertise should not be seen as ‘merely aggregative’ or as devices of
interest protection, as they also, under certain conditions, contribute to
4
rationality and legitimacy. They contribute to qualified decision-making, as
they ensure inclusion and the hearing of different interests and their
grievances. Moreover, the fundamental democratic requirement cannot be
everybody’s participation in actual decision-making processes in large and
complex societies, but the right of all to participate in public deliberation on
5
common affairs.
Deliberationists claim that democratic legitimacy does not stem from the
predetermined wills of individuals, but from the process through which a
common will is formed on the basis of the right that all have to participate in
3
Aristotle, The Politics (London, Penguin 1962).
J. Bohman, Survey Article: The Coming of the Age of Deliberative Democracy, 6 Journal of
Political Philosophy (1998), pp. 400-25.
5
B. Manin, On Legitimacy and Political Deliberation, 15 Political Theory (1987), pp. 338-68.
4
Closing of the EU’s legitimacy gap?
69
collective deliberation. The criterion of democratic legitimacy is thus that the
decisions that are taken can be seen as the outcomes of people’s deliberation
under free and equal conditions. This grounds the assumption that unless the
laws can be justified and approved by the affected parties, there will be lack of
legitimacy; as reflected in public criticism, opposition, and resentment.
Democratic collective will formation does not require a set of shared values
and opinions from the outset, but rather that all opinions will be taken into
consideration before a decision is reached. The key idea is ‘improvability’ –
the subjection of issues to public discussion and challenge.
In this de-substantialised and proceduralised version of popular sovereignty
democracy is vitally dependent on criss-crossing communicative processes in
the public forums of civil society. Democracy should, however, be conceived
of foremost as a higher-order legitimation principle, which sets out the
conditions that are required for justification. Although often portrayed as an
organisational form, that is, as embodied in direct or representative
democracy; in presidential or in parliamentary government; democracy is not
identical with a particular organisational form. It is first and foremost a
principle or a critical standard that sets down the conditions that are necessary
for how to get things right in politics. To accomplish this, the principle has to
be given organisational shape; hence the link between principle and
organisational form. In democracies, only public deliberation can get political
results right, as it entails the act of justifying the norms to the people who are
bound by them. Justification may take different forms; the notion of
communicative rationality conceives of it in light of speech acts, which
involve actors attempting to achieve mutual understanding and consensus.
Parties try to talk themselves into agreement by mutually respecting
6
prevailing norms and validity claims. In a democratic context deliberation
serves several functions. It is a way to form common opinions and collective
wills about what to do, but also to find out what is right by justifying the
results to the ones affected. Hence deliberation:
6
J. Habermas, The theory of Communicative Action. Volume 1 (Boston, Beacon Press 1984), p.
392.
70
Eriksen and Fossum
1) is a constraint upon political power-holders, viz., the moral value
7
of deliberation;
2) leads to improvements in information and judgement, viz. the
8
epistemic value of deliberation; and
3) has the capacity to shape preferences and transform opinions that
are conducive to collective decision-making, viz. the
9
transformative value of deliberation.
A rational agreement is the result of a process through which the members
have reasoned through their disagreements to such a degree that at least one
party has altered her initial position. Rational agreement presupposes that all
have the same reasons for complying. This is a very demanding requirement. A
process might still however be considered as deliberative even though it falls
short of this ideal requirement. Deliberation may, short of fulfilling the
demanding requirements of a rational consensus, function to increase the
level of knowledge and judgement in such a way that different reasons
become understandable and mutually acceptable, hence making for a working
agreement, which denotes an agreement that need not be based on identical
10
but on reasonable reasons.
The Public Use of Reason
The application of this perspective to Europe is interesting as this continent is
far too diverse for integration to be based on primordial ties and attachments.
Given its diversity and the resilience of national identities, the type of
attachment that the EU can draw on is of the post-national kind. Postnational identity posits that citizens are bound to each other, not by those
traditional pre-political ties that nation states have appealed to, but by
7
J.Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law (Cambridge,
Mass., The MIT Press 1996).
8
D. Estlund, Beyond Fairness and Deliberation: the epistemic dimension af democratic
authority, in: J. Bohman and W. Rehg (eds), Deliberative Democracy (Cambridge, Mass.: the
MIT Press 1997).
9
L. King, Deliberation, Legitimacy, and Multilateral Democracy, 16 Governance (2003), pp.
23-50.
10
E.O. Eriksen, Integration and the Quest for Consensus – On the Micro-foundation of
Supranationalism, in: E.O. Eriksen, C. Joerges and J. Neyer (eds), European Governance,
Deliberation and the Quest for Democratisation, Arena Report 2/2003, pp. 159-225; E.O. Eriksen
and J. Weigård, Understanding Habermas: Communicative Action and Deliberative Democracy
(London, Continuum 2003), p. 222.
Closing of the EU’s legitimacy gap?
71
subscription to democratic procedures and human rights. Concomitantly, the
EU’s political identity can only be founded on the recognition of democratic
norms and human rights. Rights, laws and institutions associated with
modernity are important in the shaping and fostering of civilised identities 11
as these are embedded in a particular constitutional tradition. Post-national
identity is conducive to the respect for and the accommodation of difference
and plurality, and a form of solidarity that is founded on mutual respect. In
this perspective, it is the constitution and the continuing voluntary
recognition and appreciation of the constitution that holds people together,
12
viz. their constitutional patriotism. The underlying assumption, then, is that the
lack of pre-political identification with the emerging political community can
be recompensed through a public debate with catalytic effects on enlarged
13
citizenship, solidarity, and plural identities.
According to the deliberative perspective, actors may, by publicly arguing in
relation to inter-subjective validity-standards of truth and justice, reach
agreement and an independent base for judging the reasonableness of choices.
Rationality does, then, not solely designate consistency or preference driven
action based on the calculus of success, nor mere norm-conformity or
accordance with entrenched standards of appropriateness, but reason-giving:
when criticised plans of action can be justified by explicating the relevant
14
situation in a legitimate manner. Communicative rationality depicts the
public defence of a course of action. This is so even though appeals to
common action norms in real discussions are liable to deception: the fact that
parties at least are hypocrites – they pay homage to norms in order to reach
15
agreement – in fact testifies to the validity and importance of norms. It also
shows that strategic rationality is parasitic on communicative rationality.
11
J.G. March and J.P. Olsen, Democratic Governance (New York, The Free Press 1995); N.
Elias, The Civilizing Process (London, Blackwell 1982).
12
J.Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law (Cambridge,
Mass., The MIT Press 1996), p. 465f; A. Ingram, Constitucional Patriotism, 22 Philophy and
Social Criticism (1996), pp. 1-18
13
H. Kleger, Wie is Mehrfachidentitât levar? Deutschland Zwishen Subund Transnationalitât
in, V. Rudiger (ed): Der Neue Nationalstaat (Baden-Baden, Nomos 1998).
14
J. Habermas, The theory of Communicative Action, Volume 1 Reason and the Realization of Society
(Boston MA., Beacon Press 1984), p. 15.
15
J. Elster, The Cement of Society (Cambridge, Cambridge University Press 1989); J.Elster,
Introduction, in: J. Elster (ed) Deliberative Democracy (Cambridge, Cambridge University Press
1998).
72
Eriksen and Fossum
From this follows that one cannot deem the well-known rhetoric of the
Union about democracy and human rights - the rhetoric of ‘bringing the
Union closer to the people’ – as mere window-dressing from the very outset,
as do realists who generally conceive of ideas as information reducing means
and political talk as strategic communication: cheap talk intended to seduce
the audience. It is necessary to distinguish between the genesis and the
validity of a phenomenon. That is, regardless of whether they are ‘really’
intended as window-dressing or not, they may contribute to integration
according to the civilising force of hypocrisy. Regardless of the actors’
intentions, insofar as the actors appeal to norms that are widely accepted they
in fact also confirm their validity.
Further, these norms are not only unavoidable as means of interpreting the
history of the EU and as means of defining what it is about – its identity; they
constitute the very language codes for dealing with common affairs, such as
the question of enlargement. Here democracy and human rights are
employed directly as admission criteria, which applicants must adhere to, in
order to obtain membership. These norms constitute the very basis for cooperation, and they cannot be chosen at will. Cheap talk can strike back.
The assessment criteria
In the above we have emphasised that democracy, from a deliberative
democracy perspective, is a legitimation principle, and not merely an
organisational arrangement. But its application to contemporary reality
requires the spelling out of a set of legal-institutional and procedural
prerequisites. Our conception of deliberative democratic theory rests on a
particular understanding of the basic tenets that make up the democratic
constitutional state. Deliberative democracy is not an alternative to e.g.,
representative democracy but is rather a more fundamental and encompassing
perspective that sees deliberation, and not voting, as the fundamental
principle of democracy.
The first such requirement is a democratic constitution with a set of
inalienable rights and provisions that delimit the powers and competences of
the various branches of government. The former includes rights to
participation, where the set of rights make up communicative fora for
common opinion formation and for wielding influence through voting rights.
Closing of the EU’s legitimacy gap?
73
Individual rights ensure egalitarian structures of decision-making, with
institutionalised veto positions, so as to link participation with decisionmaking and protect against undue encroachments. The latter pertains to a
division of powers and responsibilities, along both horizontal and vertical
lines. The division spells out a set of distinct functions, which are ultimately
co-dependent. A delineation of powers and responsibilities is needed to
protect integrity, to prevent misuse of power, and to ensure co-operation.
Second, the constitution is upheld by the successful operation of a set of
institutions. Such are popularly elected bodies that can translate goals and
values into laws, and bodies that reliably transform such into binding actions –
subject to popular oversight and scrutiny. They are to ensure public
deliberation and efficient collective decision-making through bargaining and
voting procedures. The legislative process also needs a legally based overseer,
a set of courts to protect the democratic process. The rights and the
institutions create the conditions for viable public spheres, i.e. state-free
‘rooms’ where citizens can deliberate on a free and equal basis.
Third, is the requirement of representativeness. Representation contributes to
refine and enlarge opinions, by passing them through the reflective concerns
of chosen members of the demos. In larger, more complex, and pluralist,
settings the representatives have to take different interests and perspectives
into consideration in order to justify particular claims and may consequently
be able to reach more reasonable and legitimate decisions. Representation is a
precondition for political rationality, as it ensures institutional fora in which
elected members of constituencies can peacefully and co-operatively seek
16
alternatives, and solve problems and resolve conflicts on a broader basis.
The representatives do not only have to justify their decisions to their own
electorate, but also to the representatives of other electorates. Representation
is important for accountability because those affected are able to dismiss
incompetent leaders through elections. Taken together, these procedures
ground the presumption that the outcomes will be of such a quality as to be
defensible in an open, free and rational debate, viz., they can be justified to
the ones affected.
16
C. Sunstein, Constitutions and democracias: An epilogue, in: J. Elster and R. Slagstad (eds)
Constitutionalism
and
Democracy
(Cambridge/Oslo,
Cambridge
University
Press/Universitetsforlaget 1988).
74
Eriksen and Fossum
What is also needed, in addition to assessing the EU according to these
standards, is to take stock of present-day developments in the EU. In other
words, to see if it is moving in the direction prescribed by deliberative
democracy. We need to assess the process of integration, as a crucial
supplement to the assessment of the present rights, institutions and forms of
representation.
The EU and Democratic Legitimacy
In relation to the first criterion, that of a democratic constitution with a set of
inalienable rights and an appropriate division of powers and competences, the
verdict on present-day EU is necessarily mixed. On the one hand, an EU
constitutional order (understood in terms of a material and not as a democratic
17
constitution ) has emerged through successive treaty changes and the
jurisprudence of the Court of Justice. This process reflects the gradually
increased self-sufficiency of the European legal order. It has achieved a
measure of legal sovereignty and supranational normativity. The ECJ, in its
18
rulings, has long asserted the principles of supremacy and direct effect.
Nationally made law has to give way to EU-law in case of conflict. The unity
and the sovereignty of the Member States are therefore not left intact in the
EU. EU law’s principle of ‘direct effect’ profoundly affects the Member
States. The European Court of Justice, within the EU’s sphere of
competence, increasingly justifies its claims to judicial competencecompetence with reference to basic human rights. The EU has thus become
focused on fundamental rights as a founding principle of Union law.
The EU has committed itself to the pursuit of a set of universal principles,
steeped in a more closely integrated and coherent Europe. At the same time,
it is also committed to the recognition of Europe’s diversity, with particular
emphasis on national difference and distinctness. The European constitutional
arrangement is neither a state-based constitution nor an international treaty. It
ensures a close-knit regulation of institutional relations, and has helped shape
17
See E.O. Eriksen, J.E. Fossum and A.J. Menéndez, Developing a Constitution for Europe
(London, Routledge 2004) for further details on this distinction.
18
Principles, which have informed the actual operations of the EU albeit their precise status in
relation to national constitutional orders remains unclear. This is evidenced for instance in rulings
on the constitutionality of the Maastricht Treaty by the German Constitutional Court and the
Danish High Court, both of which refused to grant EU law Kompetenz-Kompetenz.
Closing of the EU’s legitimacy gap?
75
an emerging division of competencies and tasks between the Union, its
Member States and its regions.
However, this arrangement does not comply with the requirements of a
democratic constitution. For one, its principled status and its practical nature
are both controversial. It is democratically deficient as it is to a large extent
judge-made law. It has been forged without a fully-fledged constitutionmaking process, partly through the rulings of the Court, and partly through
successive treaty changes forged by executive officials within the European
Council framework. Such treaty amendments have been undertaken in an
intergovernmental and closed manner. This process appears more reflective of
states’ interests than of citizens’ rights.
These processes have nevertheless provided citizens with rights, but citizens
19
have not given them to themselves through a proper constitutional process.
The EU is also deficient in terms of the rights that it offers. This applies to
the range of rights, as well as to their status. The EU has adopted European
citizenship but political citizenship in the EU is premised on status as a
national citizen, and national rules of incorporation prevail. The Charter of
Fundamental Rights of the European Union which was merely proclaimed at
Nice 2000 indicates that the EU is in the process of trying to rectify these
20
deficiencies.
The EU’s unique constitutional arrangement has given rise to the particular
mode of supranationality that marks the EU, its non-hierarchical nature,
which ensures the Member States a strong and consistent say in the Union’s
decision-making processes – in particular, but far from exclusively, through
the Council of the European Union. The Union’s character qua polity is that
of dynamism, openness and poly-centricity. This entity, which is based on a
complex tapestry of treaties, and almost entirely dependent on Member-State
compliance for the execution of its tasks, has several centres of authority,
19
H. Brunkhorst, A polity without a state? European constitutionalism between evolution and
revolution, in: E.O. Eriksen, J.E. Fossum and A.J. Menéndez, Developing a Constitution for
Europe (London, Routledge 2004) pp. 88-105 (93); A.v. Bogdandy, Gubernative Rechtsetaung
(Tübingen, Mohr 2000) p. 91.
20
See E.O. Eriksen, J.E.Fossum and A.J. Menéndez, The Chartering of Europe (Baden-Baden,
Nomos 2003). Note that we here refer to the system in place. The Charter came about
through a much more representative process but the Charter is formally speaking not yet part
of the Union’s constitutional arrangement, although the Charter consolidates existing law.
76
Eriksen and Fossum
21
which operate on largely the same territory. Its constitutional structure is
based on a complex mixture of supranational, transnational, intergovernmental, and international principles. These traits reflect the special type
of ‘sui generis’ type of structure that makes up the EU. Its uniqueness and its
type of supranationality notwithstanding, this structure is incomplete, in
principled and in substantive terms.
The EU, then, fails to comply with the first criterion - that of a democratic
constitution. It has developed a set of original arrangements that are vital to
its ability to function, the merits of which technocrats laud, but which are
deficient in relation to democratic standards.
Accountable institutions?
What about the second criterion? The Union has a set of institutions that can
translate goals and values into laws, but these suffer from democratic
legitimacy defects. They refer to representative inadequacies, i.e., inadequate
institutional mechanisms for converting the popular will into collective
decisions, and lack of openness and transparency. The defects pertain to the
ways in which laws are forged and decisions are made and the representative
quality of individual institutions, both of which are amplified by the Union’s
22
pillar structure. With regard to the procedures for law and decision making,
the Maastricht Treaty, through forging the Union, also introduced a
distinction between essentially two methods for decision-making: One which
operates within the first pillar generally referred to as the Community
method, and a second which encompasses the second and third pillars labeled
‘intergovernmental’.
21
See U.K. Preuss, Migration – A challenge to modern citizenship, 4 Constellations (1997), pp.
209-224. See also J.H.H Weiler, A Constitution for Europe? Some hard choices, Journal of
Common Market Studies 40 (2002), pp. 563-80. The EU is probably the entity in the world
with the most complex and contingent link between territoriality and functionality P.
Schmitter, Imagining the Future of the Euro-polity, in: G. Marks and F. Scharpf (eds)
Governance in the European Union (London, Sage 1996); P. Schmitter, How to Democratize the
European Union… And Why Bother? (Lanham, Md, Rowman and Littlefield 2000).
22
Pillar I is the European Community; together with Pillar II, the Common Foreign and
Security Policy; and Pillar III, Justice and Home Affairs Co-operation, they make up the
European Union
Closing of the EU’s legitimacy gap?
77
This latter intergovernmental method is based on national representation.
Nationally accountable officials meet in the Council which has the last
legislative word. The Council thus indirectly reflects the will of European
citizens. In line with this method’s logic¸ Parliament, the Commission and
the Court of Justice have very little or no say. But the method does not offer
an indirect form of representation that will satisfy democratic criteria because
of its in-transparent procedures. The secrecy of the Council’s deliberations
offers national government representatives considerable leverage to circumvent
the mandates given to them by their respective national parliaments, and
national parliaments have no adequate ways of knowing how their
representatives behaved in the Council. National parliaments also have had
limited knowledge of what is going on at the Union level.
The other method labeled the Community method has evolved over time,
23
and there is still no authoritative definition of its operation. It rests on the
core principle that underpins the Community architecture, namely that
action addressed at common problems entails the adoption of action norms
that have been decided in common, and that are to be uniformly applied to
all the Member States. This is the basic principle that has underpinned the
whole process of European integration.
Under the general heading of ‘Community method’, the Union has relied on
a wide range of different processes, through which the Community general
will is to be ascertained. The ‘classical’ version is the one in which the
Commission initiates and the Council decides. The EP’s role is consultative,
only. In the classical version, the Commission was neither popularly elected,
nor did it properly emanate from Parliament. This meant that the
Commission could exercise its monopoly of initiative in the absence of an
institutional mechanism that would ensure that this initiative would have
roots in the European citizenry. The Commission formally listed as the main
institutional articulation of the ‘Community public interest’, has combined
representative and executive-administrative principles but not in a way
consistent with democratic standards. The Commissioners have been
appointed by the Council (Commission President by the European Council)
and expected to refrain from promoting national loyalties and instead
23
Y. Devuyst, The Community-Method after Amsterdam, 37 Journal of Common Market Studies
(1999), p. 110.
78
Eriksen and Fossum
24
articulate a Community interest. The Commission has multiple roles. It is
not merely an ‘executive’, but is also at the same time an initiator, a
watchdog, a negotiator, and a deliberator. It is held to be the motor, the
driving force, of integration, but the lack of a clarified institutional role – its
in-between status – greatly undermines its claim to represent any semblance
of a common European will.
These democratic defects could not be recompensed by the most important
legislative body in the EU the Council, whose secretive mode of operations
and increased use of qualified majority voting have weakened the links to the
national constituencies, and have been the reason for depicting the Council as
a site of inter-state strategic bargaining.
Consequently, both main methods of Union decision-making suffer from
representative defects. These defects are amplified by the peculiar character of
the Union’s institutions and the lack of a full-fledged democratic constitution.
But in recent years there have been numerous developments that have
affected the representative quality of the Union’s institutional make-up. This
can be seen as an attempt to accommodate critical opposition to what has
become viewed as a top-down, technocratically driven integration process.
The cry for more openness and democracy has become more evident since
the early 1990s and the ‘end of the permissive consensus’, i.e., when people
(in particular but far from exclusively the Danes and the French) removed
their ‘tacit consent to integration’ during the process of ratifying the
25
Maastricht Treaty. This process of democratization has strengthened the EP,
opened and democratized the decision-making processes and fostered
European communicative spaces. These developments themselves have served
as vital spurs to the subsequent constitutionalization process.
Post-Maastricht: A democratizing thrust
Since Maastricht, the Community method has been modified, in response to
both efficiency and legitimacy concerns. In recent years, for instance, the
24
Cf. Art 214 TEU.
H. Abromeit, Democracy in Europe: Legitimizing politics in a non-state polity (New York,
Berghahn Books 1998), p. 26.
25
79
Closing of the EU’s legitimacy gap?
26
Commission’s monopoly of policy initiatives has been eroded. Now the
Council requests the Commission to take specific initiatives, and more
importantly, the power of the EP has increased. Further, since Maastricht, the
strict distinction between the pillars has eroded. Issues have been moved from
pillars two and three to one. It is now harder to see the Council and the
Community methods as entirely distinct models, as there is a plurality of
procedures of decision-making even within the first pillar. These
developments entail representative gains as more issues that affect Europeans
are decided by those institutions that operate on the basis of the European
citizenry.
The European Parliament is directly elected by the peoples of the Member
States, and consequently fares better in terms of representativeness. It can
claim to be an institutional expression of the will of the people – within its
remit of operations. The EP is the world’s only supranational parliament, and
has over a long period of time been effectively empowered by the Member
27
States. The EP’s endeavour to strengthen its role within the EU’s
institutional system has drawn on the well-established notion of the
parliament as the institutional embodiment of popular sovereignty. To this
end it has pursued a lengthy and drawn-out struggle for recognition, which
includes efforts to strengthen its position vis-à-vis the Commission and the
Council, and the Member State governments. It has obtained the power of
co-decision in the EU law-making process in a wide range of policy fields.
This process has clearly moved the EU in the direction of the parliamentarian
model. A limiting factor resides in the pillar structure, which continues to
uphold a polycentric structure of accountability – one line of authority
through the Council (remains of pillars II, III), and the other through the
dual legislature of EP-Council (enlarged pillar I), both of which are linked
through a complex trans-national structure – embedded in committees and
policy-networks. The latter pertains in particular to the Commission and
Comitology, which we address later. Moreover, up to and including the Nice
26
“…[A]utonomous initiatives amount to only 10 percent of all the Commission’s legislative
proposals” G. Majone, The European Commission: The Limits of Centralization and the Perils
of Parliamentarization, 15 Governance (2002) p. 377. National governments also shape agendas,
even where the Commission formally has the right of initiative C. Lord, A Democratic Audit of
the European Union (London, Palgrave 2004) p. 128.
27
B. Rittberger, The Creation and Empowerment of the European Parliament, 41 Journal of
Common Market Studies (2003), pp. 203-25.
80
Eriksen and Fossum
Treaty process, the EP’s role in treaty making has been marginal, which has
greatly limited popular inputs into this process. The present role of the EP
and the national parliaments is inadequate as a means of ensuring popular
input, and as a means of holding the executive accountable.
It is however important to underline the pace with which the EP’s role has
been strengthened during the 1990s. This strengthening notwithstanding, the
level of popular support and sanction is still low, which indicates that there
28
continues to be a legitimacy deficit. One institutional reason for this relates
to the weakly developed intermediary bodies, such as truly European parties,
which can serve to mobilise and convey public sentiments into the EU
system.
In this connection it is important to underline that whereas Parliaments are
held to be concrete embodiments of the popular will, from a desubstantionalist conception of popular sovereignty, what is equally important,
is their role as agenda setters and the communicative space that they
institutionalise. The EP, in line with our second democracy requirement,
contributes to the development of a European public sphere. It commands its
own agenda and serves as an important forum of debate. Hence it amounts to
a strong public. This term refers to institutionalised deliberations ‘whose
29
discourse encompasses both opinion formation and decision making…’. The
EP is a strong public in that it conducts hearings, sets up committees of
inquiry, receives petitions from citizens (in 1998-9 it received 1005 such),
and appoints an ombudsman, all of which contribute to heighten
accountability and transparency, and stimulate the development of a general
European public sphere. Parliaments are quintessential strong publics but
there are also others. Historically, strong publics have existed within the
nation state, but now, especially since Word War II and the establishment of
the UN, appeared trans-nationally, as policy networks, committees,
28
However, Eurobarometer surveys reveal that although there are more people in Europe who
feel they can rely on national institutions than EU institutions, the differences are not very
substantial (34-38 percent for the EU institutions and 40 percent for the national ones). For
these figures see S. Hix, The Political System of the European Union (London, Macmillan 1999) p.
137.
29
N. Fraser, Rethinking the public sphere. A contribution to the critique of actually existing
democracy, in: C. Calhoun (ed), Habermas and the Public Sphere (Cambridge, Mass., The MIT
Press 1992), p. 134.
Closing of the EU’s legitimacy gap?
81
30
conventions, etc.. There is a steadily growing sphere of strong publics in the
EU, whose actions combine with those of others to help spur a general public
sphere in Western Europe. For instance, it is difficult to think that the 1999
crisis could have come about had there not been such widespread public
criticism: The Committee of Independent Experts was set up to report on
various allegations and produced the report entitled Allegations regarding
Fraud, Mismanagement, and Nepotism in the European Commission, and
which led to its dissolution and the reappointment of members, all amidst
vociferous criticisms by the Parliament. In this sense, we see the emergence,
not of one uniform public sphere - a general public, which revolves around
autonomous opinion formation in civil society on the basis of properly
31
entrenched rights to freedom – but rather on numerous overlapping ones.
What are emerging are networks of social and political actors, epistemic
communities, and social movements, many of which emerge around
32
particular issues and topics, for example corruption, BSE, and migration.
These are deliberative issue communities, which transgress the bounds of
33
language and nation. New technologies and audio-visual spaces are also
34
emerging - often market driven. Such communicative spaces are not
restricted to economic issues, nor are they confined to the establishment of
general public sphere institutions such as Deutsche Welle, Euronews, ARTE
and BBC World. But there is a long way from this kind of critique,
discussion and information dissemination, to the kind of committed public
deliberation that is requires for collective opinion and will-formation: the
requirement of one public sphere that revolves around the same topics and
policy proposals throughout Europe, and renders collective decision-making
30
H. Brunkhorst, Solidarität. Von der Bürgerfreundschaft zur globalen Rechtagenossenschaft,
(Frankfurt, Suhrkamp 2002).
31
E.O. Eriksen, Conceptualizing European Public Spheres. General Segmented and Strong
Publics, Arena Working Paper 3/04 (Oslo, ARENA 2004).
32
H-J. Trenz, Zur Konstitution politischer Öffentlichkeit in der Europäischen Union (Baden-Baden,
Nomos 2002).
33
See e.g., K. Eder, Zur Transformation nationalstaatlicher Öffentlichkeit in Europa, 2 Berl.
Soziol. Heft (2000) pp. 167ff; H.-J. Trenz, Zur Konstitution politischer Öffentlichkeit in der
Europäischen Union (Baden-Baden, Nomos 2002). The EP also devotes much time on specific
issues – in particular human rights issues – and thus helps stimulate this development. See R.
Corbett, F. Jacobs and M. Shackleton, The European Parliament (London, John Harper 2000),
pp. 271-5.
34
P. Schlesinger and D. Kevin, Can the European union become a sphere of publics, in: E.O.
Eriksen and J.E. Fossum (eds), Democracy in the European Union. Integration through Deliberation?
(London, Routledge 2000).
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Eriksen and Fossum
possible on the background of a broad mobilization of public support
effectively sluiced into the governmental complex by associations, interestorganizations and political parties.
In sum, the EU has, in response to profound criticisms and often deeply
expressed resentments, taken steps to close its legitimacy gap through
institutional changes. This has led to improvements in accountability and
representativeness. But whereas the EU has pooled sovereignties,
compounded different modes of representation and shared competences with
35
the Member States, it has not removed the impediments to a full-blown
citizens-based democratic polity. We have however also seen that the EU
seeks to facilitate consensus through institutionalizing deliberative processes.
The question now is whether such mechanisms can help alleviate the
democratic deficit.
Non-coercive consensus and deliberative supranationalism
In co-operative settings with decisional autonomy, actors can not merely
declare a set of interests and standpoints that are to be handled in complex
rounds of bargaining and voting, but have to actively forge agreement by
giving comprehensible reasons. The question as to whether the EU has
deliberative qualities is relevant from a democratic point of view, because it
also directs us to the quality of the decision-making process. A process driven
by arguments is ceteris paribus more democratic than one driven by power or
bargaining resources. Analysts contend that the EU is conducive to nonhierarchical consensus and deliberative supranationalism, because it has established
procedures both for securing broad debates, as well as for reaching consensus
in institutional settings – in councils, committees, conventions etc. In the EU
there are clearly stated obligations to provide justifications, and dense
36
networks of communication, which help ensure such. In addition, critical
35
R. Ebbinghausen and S. Neckel (eds), Anatomie des politischen Skandals (Frankfurt, Suhrkamp
1989); C. Lord, A Democratic Audit of the European Union (London, Palgrave 2004), p. 127.
36
T. Risse-Kappen, Exploring the Nature of the Beast: International Relations Theory and
Comparative Policy Analysis Meet the European Union, 34 Journal of Common Market Studies
(1996), pp. 53-79. C. Joerges and E. Vos (ed), EU Committees: Social Regulation, Law and
Politics (Oxford: Hart Publishing 1999). G. Majone, Regulating Europe (London, Routledge
1996).
83
Closing of the EU’s legitimacy gap?
37
scrutiny, judicial review and openness, compel decision-makers to act
38
according to acceptable – publicly justifiable – criteria.
The deliberative conception of integration is underpinned by communicative
rationality and consequently by a set of micro-foundations that differ from
those of neo-functionalism and rational choice based approaches.
Deliberation designates the process of reaching collective decisions through
reason-giving. Such a process does not always result in agreement but often in
the choice of alternative decision-making procedures, such as bargaining or
voting. This is so because public deliberation does not necessarily eliminate
39
egoistic motives, but forces the actors to hide them. When short of
transformative effects, deliberation still can serve as a constraint on the
discourses and have epistemic value.
Ensuring agreement is an essential part of the nature of EU decision-making.
Non-agreement is difficult for joint-decision systems, as it leads to loss of
control and reduces the ‘...independent capabilities of action over their
40
member governments’. This requirement is apparent in the institutional
structure and in the relations among the institutions. For instance, ‘resort to
explicit majority voting is often viewed as something of a political failure’ and
what is more, the undertakings and procedures employed prior to decisionmaking indicate that the EU practises a kind of ‘extreme consensus
41
democracy’. Although unanimity decreases efficiency and sometimes also
37
However, openness and deliberation do not necessarily eliminate egoistic motives, but force
the actors to hide them and thereby actually confirm the validity of social norms see J. Elster,
Deliberation and Constitution Making, in: J. Elster (ed) Deliberative Democracy (Cambridge
University Press 1998), p. 110f.
38
Findings from other settings support the role of arguing in the settling of normative priorities
in political assemblies, see e.g. J. Elster, Deliberation and Constitution Making, in: J. Elster (ed)
Deliberative Democracy (Cambridge University Press 1998), p. 110f. For instance, close study of
congressional debate in the USA has led to the identification of a series of informal norms that
promoted deliberation see J.M. Bessette, The Mild Voice of Reason: Deliberative Democracy and
American National Government (Chicago, University of Chicago Press 1994), p. 147.
39
J. Elster, Deliberation and Constitution Making, in: J. Elster (ed.) Deliberative Democracy
(Cambridge University Press 1998), p. 110f.
40
F.W. Scharpf, The Joint-Decision Trap: Lessons from German Federalism and European
Integration, 66 Public Administration (1988), pp. 258.
41
C. Lord, Democracy in the European Union (Sheffield, Sheffield Academic Press 1998), pp. 4748; C. Lord, A Democratic Audit of the European Union (London, Palgrave 2004).
84
Eriksen and Fossum
rationality in decision-making, it may heighten legitimacy and is hence seen
as a necessary price to be paid.
Despite obvious representative deficiencies, the strength of ‘the dual character
of the EU executive [is that it] facilitates extensive deliberation and
42
compromise in the adoption and implementation of EU policies’. Further,
basically all the various decision-making procedures are based on extensive
amounts of inter-institutional deliberation. The EU applies an unusual
number and range of decision-making procedures, which makes it one of the
most complex legislative systems in the world. It is held to be a non-coercive
and consent-based system where unanimous voting procedures coincide with
more complex procedures and processes.
Increased integration and a strengthened role of the EP have contributed to
two important developments. First, there has been a strong move from vetobased unanimity to decision-making through qualified majority. This also
includes the latest changes, in the Treaty of Nice 2000. Qualified majority
decision-making requires more trust than veto-based unanimity. For such
trust to be brought about extensive deliberation is necessary, as there is no
far-reaching value-consensus from the outset amounting to something like a
collective identity, to draw on.
Second, the Amsterdam and Nice Treaties further strengthened the role of
co-decision - the most cumbersome procedure, and the one that requires the
greatest amount of arguing and reason-giving. Co-decision is also the
decision procedure that provides most scope for deliberation as it helps make
43
transparent an otherwise closed decision-making process. Co-decision
establishes the EP as a co-legislator with the Council in most aspects of the
first pillar. In most areas of the second and third pillars - i.e., in most aspects
of the Common Foreign and Security Policy and Justice and Home Affairs
Co-operation – the less arduous consultation procedure is still employed.
This brief assessment has revealed that the heightened role of the European
Parliament in the EU’s decision-making structure has helped institutionalise a
more transparent albeit cumbersome system of inter-institutional
42
S. Hix, The Political System of the European Union (London, Macmillan 1999), p. 55.
R. Corbett, F. Jacobs and M. Shackleton, The European Parliament (London, John Harper
2000), pp. 201-3, 296.
43
Closing of the EU’s legitimacy gap?
85
argumentation, among the EP, the Council and the Commission, and among
the EP and national parliaments. The latter takes place especially through the
Conference of European Affairs Committees (COSAC). This development
has three merits. It fosters trust; it helps tie together the complex parts of the
polycentric EU system; and it also renders the system more accessible to
popular inputs and criticisms. We can conclude that the strengthening of
those aspects of non-coercive deliberative supranationalism that are closely
associated with the EP has had obvious democratic merits.
Integration through deliberation?
Despite of, or perhaps because of, its incomplete character as polity - it is not
a state - there is consultation of affected interests, through lobbying and
sounding out, and there is a painstaking quest for agreement and interest
accommodation in joint decision-making processes. In addition to the
prevalence of committees of advisory and expert groups, the Commission has
an obligation to hear and give due consideration to all special interest groups.
The Commission (and the EP) have taken active measures to broaden the
range of interest groups directly involved at the EU level. Many analysts
underline that the EU can draw considerable support and legitimacy from
problem-solving and the agreement-making that emanates from the nonhierarchical networks and webs of communication among actors who address
substantive concerns and who are involved in the process of joint decision44
making. Many of these processes are outside of the purview of parliaments
(EP and national ones). This has raised the question of their democratic
45
legitimacy. The deliberative perspective offers a nuanced answer here.
Integration driven by deliberation refers to the process of reason-giving that is
required when actors from different contexts - national, organisational, and
professional - come together to reach agreement on how to solve various
types of issues. This mode of integration is, as mentioned, premised on a
44
C. Joerges and E. Vos (eds), EU Committees: Social Regulation, Law and Politics (Oxford,
Hart Publishing 1999); K. Eder, Zur Transformation nationalstaatlicher Öffentlichkeit in
Europa, 2 Berl. Soziol. Heft 2 (2000) p. 167ff; M. Zurn, Democratic Governance Beyond the
Nation State: The EU and other International Institutions, 6 European Journal of International
Relations (2000), p. 183ff.
45
J.H.H. Weiler, Epilogue: ‘Commitology’ as Revolution – Infranationalism,
Constitutionalism and Democracy in: C. Joerges and E. Vos (eds), EU Committees: Social
Regulation, Law and Politics (Oxford, Hart Publishing 1999).
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Eriksen and Fossum
search for reasonable arguments that are able to persuade and convince critical
interlocutors. ‘Comitology’ denotes a system where the Commission’s
implementation of legislative acts is assisted by hundreds of expert committees
from the Member States, and is one such example. The composition and
interaction of committees as well as their outputs bear the burden of
legitimation, not established hierarchies of one sort or the other. Comitology
46
is in fact described as a new stage in the integration process. As Joerges and
47
Everson note:
‘European committees cannot simply be classified as the agents of a
bureaucratic revolution. Rather, with all its sensitivity for the modern
complex of risk regulation and for the intricacies of internationalized
governance within non-hierarchical and multi-level structures, the
committee system may be argued to possess a normative, if
underformed, character of its own; or, more precisely, to operate
within a novel constitutional framework informed by the notion of
“deliberative supranationalism”’
Comitology does possess normative quality, as it contributes to the finding of
correct answers to questions of risk, as well as other cognitively demanding
issues. Thus, it has epistemic value - but how democratic it is remains to be
48
demonstrated. The same goes for the open method of co-ordination.
This method was formalised as a form of governance through soft law at the
Lisbon European Council (2000) and refers to how cooperation within the
field of social and economic policies may be enhanced. The open method of
co-ordination relies on a process of mutual adjustment and learning. It allows
for divergences to be spelled out, and for Member States to develop their
own responses - within a common framework of reference, but without
46
W. Wessels, Comitology: Fusion in Action. Politico-administrative Trends in the EU
system, Journal of European Public Policy 5 (1998), pp. 209-34.
47
C. Joerges and M. Everson, Challenging the Bureaucratic Challenge, in E.O. Eriksen and
J.E. Fossum (eds), Democracy in the European Union. Integration through Deliberation? (London,
Routledge 2000), p. 164.
48
For a critique see R. Schmalz-Bruns, Deliberative Supranationalismus: Demokratisches
Regieren jenseits des Nationalstaates, 6 Zeitschrift für Internationale Beziehungen (1999): p. 185,
pp. 213f; H.C. Hofmann and A.E. Töller, Zur Reform der Komitologie – Regeln und
Grundsätze für die Verwaltungskooperation im Ausschussystem der Europäischen
Gemeinschaft, 9 Staatswissenschaft und Staatspraxis (1998): pp 209-39.
Closing of the EU’s legitimacy gap?
87
formal sanctions. ‘The emphasis is on consensus-forming with three elements
found in each process: common assessment of the economic situation;
agreement on the appropriate economic policy responses; and acceptance of
peer pressure and, when necessary, adjustment of the policies being
49
pursued’. According to the Council, the open method ensures consensus
through the following four elements:
1) setting short-, medium and long-term guidelines for the EU with
specific timetables for their achievements;
2) establishing performance indicators and benchmarks tailored to
each Member State and different sectors which allow comparison
of best practice;
3) translating targets from the European to the national and regional
levels; and
4) periodic monitoring, peer review and evaluation with the
emphasis placed on the process of mutual learning.
In a study of the European Employment Strategy conducted by preparatory
committees placed between the Commission and the Council made up of
50
higher officials from the ministries, Kerstin Jacobsson and Åsa Vifell found
that the OMC includes a wider circle of actors and has allowed a functional
expansion of cooperation into new -- and sensitive – welfare areas. It has made
the social dimension more visible, and it has, although deficient in democratic
terms due to exclusion and opacity, fostered trust and a Europeanization of
outlooks. It has expanded the size of – and the scope for – deliberation within
the institutional nexus of the EU.
Many analysts put their trust in such deliberative processes of transnational
governance. The system of Comitology has managed to combine market
integration with social measures, such as protection of health and safety; has
raised the standards of environmental protection; and has fostered consent and
integration. Market-redressing and positive integration have been made
possible, as solutions have been found that are more than the politics of the
49
D. Hodson and I. Mahrer, The Open Method as a New Mode of Governance, 39 Journal of
Common Market Studies (2001), p. 723.
50
K. Jacobsson and Å. Vifell, Soft governance, employment and committee deliberation, in:
E.O. Eriksen (ed.) Making the European Polity – Reflesive integration in the EU (London,
Routledge 2005) (forthcoming).
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Eriksen and Fossum
lowest common denominator, viz., negative integration. Deliberation in
committees has not only epistemic value in that it increases the knowledge
and information basis, it has transformative value as well: It has sometimes
solved the problem of collective action and made Pareto superior solutions
51
possible. Hence, many are led to salute the positive problem-solving effects
of the comprehensive system of deliberation in the EU. It is held to be
superior to the regulatory system of the US and should be seen as a direct52
deliberative polyarchy. There is much support for such a perspective, as
developments up until recently have expanded the size of – and the scope for
- deliberation within the institutional nexus of the EU. These observations
support the notion of the EU as a non-coercive deliberative system.
However, these authors find that deliberation in policy-networks and
committees is a sufficient legitimation basis in normative terms. From the
direct-deliberative polyarchy perspective, deliberation is seen primarily as a
co-operative activity for intelligent problem-solving, in relation to a cognitive
standard, and not as an argument about what is correct in that it can be
accepted by all those potentially affected. Here it is not a question of the
representing or hearing of all. Publicity, then, is seen as needed for detecting
and solving social problems, and not as a vital political principle of democratic
legitimacy. This is the reason why deliberative polyarchy is found wanting in
democratic terms. It is governance without democracy as there is no chance
of equal access and public accountability. Without egalitarian procedures of
lawmaking there is no democracy, because only then can the citizens
effectively influence the laws that affect them, and determine whether the
reasons provided are good enough.
The discussion of the institutional structure of the EU and its decisionmaking procedures has revealed that the EU is deficient in relation to all three
sets of criteria – appropriate basic rights, institutions and representativeness.
But the EU has not only embraced democratic standards; it has also
increasingly - post-Maastricht - taken measures to rectify these. Our
assessment has revealed that some of these deficiencies are at least partly
recompensed through a decade-long process, in which the key representative
51
J. Neyer, Discourse and Order in the EU, 41 Journal of Common Market Studies (2003), 3 pp.
687-706.
52
J. Cohen and C.F. Sabel, Directly-Deliberative Polyarchy, 3 European Law Journal (1997),
pp. 313-42. J. Cohen and C.F. Sabel, Sovereignty and Solidarity: EU and US, in: J. Zeitlin
and D. Trubek (eds), Governing Work and Welfare in a New Economy: European and American
Experiments (Oxford, Oxford University Press, forthcoming).
Closing of the EU’s legitimacy gap?
89
institution, the EP, has been strengthened and together with this, more
extensive and open procedures for consultation and sounding out, with clear
deliberative qualities, have emerged. These complex procedures also serve the
important function of retaining a measure of coherence within the
polycentric EU, an entity marked by different decision-making methods,
accountability lines, and chains of representation reflecting the composite
authority structures.
At present the EU is at a crossroads because the institutional system is
undergoing the most profound and critical scrutiny ever undertaken, together
with a process to forge a constitution. Is the EU hereby further narrowing the
legitimacy gap?
From poly-centric governance to bi-cephalous
government?
In the above we have documented that the EU suffers from a clear legitimacy
gap, although there are developments that point to a certain narrowing of the
gap over time.
Closing of the EU’s legitimacy gap?
The democratic requirements set out in the above, make clear that these
defects cannot be dealt with unless something is also done to the EU’s
constitutional arrangement. Its present constitutional arrangement is akin to a
constitutional treaty and one that is not steeped in a viable democratic
constitutionalism. This constitutional arrangement oversees and entrenches an
institutional system whose distinguishing traits are a long cry from what we
associate with democratic government.
Actors within the EU, since 2000, have gradually come to recognise that
further reforms require explicit attention to the constitutional dimension. The
clearest expression of this was found in the Convention on the future of the
European Union. The Convention, after 16 months of deliberations,
succeeded in coming up with a draft text for the Treaty establishing the
Constitution for the European Union, which has subsequently – in slightly
revised form - been agreed on at the Brussels Summit in June 2004. Its future
90
Eriksen and Fossum
depends on successful ratification in all the Member States. Among the most
important changes proposed by the Draft are:
•
•
•
•
•
•
•
•
•
The incorporation of the Charter of Fundamental Rights in the
Constitution (II:61-114)
The recognition of the legal personality of the Union (I-7)
The elimination of the pillar structure (I-34, ref. III-396, I-23,
25)
The recognition of the supremacy of EU law (I-6)
Reduction and simplification of the instruments for law making
and decision-making procedures, plus the introduction of a
hierarchy of legal acts (I:33-9)
A delineation (although far from unambiguous) of the
distribution of competences (I:12-18)
The generalization of qualified majority voting in the Council
and the designating of co-decision as the standard procedure
(albeit subject to important exceptions) (I-34, ref. III-396, I-23,
I-25, with important exceptions in Part III)
Changes to the Council presidency (elected for a once renewable
term of 2.5 years) (I-22, I-28)
A popular right of initiative (I-47.4)
The Draft contains measures that are aimed at bridging the EU’s legitimacy
gap. It addresses a number of the problems listed above, including citizens’
rights, the pillar structure of the existing EU, and its inadequate democratic
procedures. If fully incorporated, the constitutional treaty will take the EU
from its present formal status of a complex polycentric system of governance
based on three pillars, to a more coherent bi-cephalous system of government.
Why is this so and what does this change mean for the closing of the EU’s
legitimacy gap?
As the Constitutional Treaty speaks to two different conceptions of the
‘masters of the treaties’: citizens and states (cf. I-1), the arrangements spelled
out in the Draft will not ensure that the citizens can see themselves as the
ultimate authors of the laws they are subject to. The Member States retain the
upper hand in the legislative process because of the power of the Council.
The Draft therefore fails to fully comply with the first democratic criterion set
out above. With regard to the second and third criteria – that of institutions
Closing of the EU’s legitimacy gap?
91
and representation - the Draft does democratize the EU because it move it
from a polycentric system of governance to a system more akin to bicephalous government. But what are the democratic implications of such a
move?
First, the Draft contains a more unified body of law; and a more unified
institutional system than is the case at present, but with one important caveat:
the structure we can discern from the Draft is not one coherent hierarchical
structure, but is rather one structure with two heads, hence bi-cephalous. Its
retention of the system of dual presidents, one in the Council and the other
in the Commission, and the strengthening of the European Council
53
presidency, are clear indications of a two-headed structure of authority. The
two-headed structure retains one basis in the Community method and the
other in the Council mode.
Second, the two heads emanate from a more uniform structure than is the
case at present. The elimination of the pillar structure and the recognition of
Union legal personality (I-7) will make the Union more institutionally
coherent. They will also strengthen the Court’s presence within the EU’s
institutional system. These changes will greatly reduce the aspect of the EU’s
polycentric system of governance. But the resulting bi-cephalous character is due
to the fact that the pillar-structure is not entirely abolished. There are
numerous provisions in Parts I and III of the Constitutional Treaty that retain
54
core traits of the pillars. Further, this is amplified by the fact that the Draft is
forged as a seamless web, so that the rules for changing the provisions in Part
III, comprising the functions and policies of the Union, are no more lax than
those for changing Part I – the basic constitutional structure. In other words,
the remains of the pillar system are well-entrenched in the core structure of
the Draft and help entrench the dualistic system of authority.
Third, these two structures contain two different sets of decision-making
procedures (co-decision combined with qualified majority vs. unanimity), and
two different lines of accountability: One European and the other
53
The greatly extended tenure of the elected president of the European Council (from the
present system of half a year to a possible total of 5 years) is likely to strengthen the European
Council.
54
Although a simplified version of Qualified majority vote (QMV) has become the norm (to
take effect from 2009), the Member States retain veto rights in critical issue areas such as social
policy, taxation and foreign and security policy.
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Eriksen and Fossum
transnational. The explicit European dimension of the former derives largely
from the fact that citizens elect the Parliament, which is a co-decider with the
Council within a more democratic Community method. The democratic
55
quality of this system has been strengthened in the Draft. The defects still
relate to the fact that the Commission is responsible to the Parliament, but
does not emanate from it. The executive is also not held properly accountable
to the legislature, as for instance the Council has executive functions whose
exercise are not subject to parliamentary accountability. There are also other
democratic defects - the Parliament cannot take initiatives, but still has to
work through the Commission. Due to the intergovernmental mode the
Council operates through the national systems but because of heightened
transparency requirements the national populations will now have a better
sense of what goes on inside the Council when it acts as a legislator.
Fourth, the two heads are based on different institutions and decision-making
procedures but there are also overlaps between the two. Consider the role of
the Foreign Minister who will be both the Vice-president of the Commission
and be part of the Council. Such two-hatted functions are seen as necessary
to reconcile the operations of the two methods. The division of responsibility
between Commission and Council as executive bodies is also unclear.
The bi-cephalous character of the EU is unique, in that there is no state-type,
federal or other, that is based on a similar arrangement. Every other system is
based on one hierarchical – mono-cephalous (a structure with one head), and
where there is one identifiable seat of authority, such set up as to comply
with the basic democratic tenet that ‘all power stems from the people’. But
whereas a federal system also contains two lines of accountability, anchored in
citizens and states’ rights, there is a clear hierarchy of authority that is
entrenched in the constitution.
55
Several of the proposals in the Draft Constitution will heighten the democratic quality of the
Union, both in terms of representation and in terms of accountability. The elevation of codecision to the standard legislative procedure (subject to important exceptions spelled out in
Part III of the Draft) will help greatly amplify the role of the European Parliament within the
EU institutional system, as it essentially places the EP on a par with the Council as a legislative
chamber. Increased transparency requirements (Article I-50, III-398, 399) will help improve
individual and inter-institutional lines of accountability.
Closing of the EU’s legitimacy gap?
93
A working agreement
This analysis documents that the EU has taken the constitutional dimension
of the democratic gap seriously in the last few years. This has led to a draft
constitution, something very few had envisioned as late as 2002 when the
Convention started its work. Albeit the Draft contains clear improvements, it
still falls well short of closing the legitimacy gap, as this was spelled out here.
If eventually adopted through ratification in all member states, the question is
whether the emerging bi-cephalous structure will provide a better platform
for subsequent efforts to narrow the gap. Clearly, what the citizens think of
this arrangement will matter a lot to subsequent developments.
There is a danger that an outcome that is clearly deficient in relation to
expectations is construed not only as the best possible result that could be
obtained now but also the best that could be had for the foreseeable future.
This could cement the structure in place and stall or even arrest the process of
further democratic progress and achievement. To address this problem at this
stage we can look at what kind of agreement the Draft reflects, and thereby
evaluate its normative viability. Clearly, if the Draft was a mere compromise
emanating from strategic bargaining, it would not only be very unstable but
we would also have few clues as to in what direction a future revision would
go. If it can be seen as a working agreement, we can more easily establish the
subsequent direction of changes.
The members of the Convention had different kinds of reasons for complying
56
with the end result. But most of the participants saw it not only as the best
possible outcome given present constraints. Many also saw it as a move
towards a more democratic Europe, such as the federalists. Others saw it as a
necessary instrument for handling cumbersome decision-making processes in
a better way, such as the ‘realists’ and the technocrats. A third group - neoliberals and ‘euro-sceptics’ - saw it as the best alternative to the status quo.
Federalists, technocrats, and Euro-sceptics, thus, had different reasons for
accepting the Draft. Conservatives, socialists, greens and liberals may all find
reasons in the Draft that help them to defend it in their respective
constituencies. But the agreement is not a simple compromise, i.e. a bargain
56
P. Magnette, Deliberation or Bargaining? Coping with Constitutional Conflicts in the
Convention on the Future of Europe, in: E.O. Eriksen, J.E. Fossum and A.J. Menéndez (eds),
Developing a Constitution for Europe (London, Routledge 2004).
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Eriksen and Fossum
that was struck between the contracting parties. This is so because the parties
‘learned’ and established a new basis for handling European affairs through the
Convention process. The process of making the constitutional Treaty was not a
simple tug of war of interstate bargaining. It serves not only as testimony to
the parties’ failure to get what they wanted and where the deal they struck
was only better than no deal at all; it also testifies to deliberation’s function of
constraining the power play of the great powers and in generating
improvements in members’ information and judgements. Deliberation not
only had epistemic merit and value as a constraining factor; in addition, it also
57
helped to shape and transform opinions. The results speak to this: most
notably among which are the incorporation of the Charter and the many
provisions in the Draft that will generate improvements in representation,
accountability and transparency.
Actors can now, in considerate regard and mutual respect for other
participants’ values and affinities, agree on this as a working agreement based on
different but reasonable reasons. Note that all Convention members
underlined the need for the Union to respect the basic values of democracy,
the rule of law and human rights. They differed in how these principles are to
be embedded in institutional practice. Here the differences were considerable,
but the Convention exercise framed this as a genuine constitutional debate.
Simply to acknowledge that the Union is involved in a constitution making
58
process is a major change from only a few years ago. The outcome reflects
also the shortcomings in the Convention process (couched as it was under the
shadow of the Council’s veto, to paraphrase Magnette 2004). Put simply, the
participants have managed to make the EU more efficient and more
democratic, without making it into a unified political order – a state.
A bi-cephalous government may fare better in democratic legitimacy and
capability terms than does the present system. The quality of the Convention
method, in terms of openness, broad participation, lengthy discussions, critical
opposition etc., was conducive to an agreement that was more than a mere
compromise but clearly less than a rational consensus. The fact that so
57
J.E. Fossum, Contemporary European Constitution-making: Constrained or Reflexive? in:
E.O. Eriksen, Making the European Polity – Reflexive integration in the EU (London, Routledge
forthcoming).
58
J. Kokott and A. Rüth, The European Convention and its Draft Treaty Establishing a
Constitution for Europe: Appropriate answers to the Laeken question?, 40 Common Market
Law Review (2003), pp. 1315-45.
Closing of the EU’s legitimacy gap?
95
different institutional solutions could be discerned from similar fundamental
59
principles also suggests that it is based on incompletely theorized arguments.
Further, even though the participants may have very different reasons for
adhering to the agreement, we should not ignore that they have also have
similar arguments to put on the table – concerning what they have achieved
and through what processes this has been obtained. It was not obtained
through closed door IGC meetings, but through a far more open process,
with the majority being parliamentarians. The process can no longer be
accused of simply being executive driven and technocratic.
Deliberative democratic theory underlines that the chosen procedure in itself
has normative force. The Convention was a clear procedural improvement
on the previous IGC method, but the fact that the Convention was also
constrained by the latter also helps explain many of the shortcomings listed
above.
Conclusion
The recent history of the EU gives credence to democratic theory’s
assumption to the effect that people will strike back when they are subjected
to unapproved decisions, or when they do not have a say in the norms that
affect them. The process of European integration which has its roots in (cross)
national problem-solving has increasingly come to be driven by initiatives to
close the legitimacy gap – in response to harsh criticisms of elitism and
technocracy. Moving away from executive-driven decision-making in closed
door settings, the EU has embarked upon a reform process of bringing the
EU closer to its citizens. This has resulted in the strengthening of the EP as a
co-legislator with the Council and a more politically accountable
Commission, within a set of more open and inclusive decision-making
processes that are conducive to the formation of communicative spaces at the
European level, but also in a constitutional process that terminated in a draft
constitution – The constitutional treaty - which consolidates the Union’s
legal personality and its democratic self-understanding.
The net upshot of this analysis is that the EU is a non-coercive, consentbased system, where unanimous voting procedures coincide with more
59
C.R. Sunstein, Incompletely Theorized Agreements, 108 Harvard Law Review (1995): 17-33.
96
Eriksen and Fossum
complex procedures and processes. The explorative and innovative nature of
the EU is very much due to deliberative processes and governance structures
of joint problem-solving. This apparently gives the process of polity
formation in Europe a more reflexive and open-ended character. The EU
subscribes to democratic norms and human rights and has established
procedures for securing broad debates, as well as for reaching consensus in
institutional settings with decisional autonomy. The EU is an emerging
constitutional structure, which has yet to find its final form, and is therefore
also a forum for learning and socialisation. As it is easier to agree on
procedures and norms for how to proceed than on common purposes and
finalité, the EU is still very much an organization in motion. It is work in
progress.
The EU now claims to be a polity in its own right. This is reflected in the
Draft, which holds stronger measures to establish the EU as a polity that is
able to achieve direct legitimacy, viz., directly from the people through their
political rights and through a plethora of inclusive opinion-forming and
decision-making procedures. The Draft will, if incorporated, equip it with a
more clearly established and institutionally entrenched dual legitimacy basis from the citizens and the Member States. Other institutional changes in the
Draft will also take it closer to a proper government: the elimination of the
pillar structure, the provision on legal personality, and the harmonization of
decision-making rules. Conversely, the strengthening of the Council
president – the dual executive notion – and retention of national veto in a
number of critical areas, will serve to retain a very strong Member State
presence. The emerging structure could thus be labelled bi-cephalous
government, and the agreement on The Draft Constitutional Treaty a
working agreement. Even though it can be supported with reasonable
arguments, there is no consensus about which ones are the decisive ones. The
Draft falls well short of complying with the demanding presuppositions of a
rational consensus, but it is more than a pure compromise – an inter-state
bargain – as the deliberative process of the Convention has brought together
representatives of the citizens of Europe, increased their information and
judgement basis, constrained them according to the rules of discourse, and
changed some of the initial standpoints to such a degree that an agreement
has been struck that does contain pareto improvements.
Chapter 3
Still adrift in the Rubicon?
The Constitutional Treaty Assessed
John Erik Fossum and Agustín José Menéndez
ARENA, University of Oslo, and University of León
‘We became convinced that, if any such body was to come into
being, we should have to call it into existence ourselves. We were
young, we were inexperienced, we were penniless, and we hadn’t
1
the slightest idea how to begin’
Introduction
The purpose of this paper is to establish which conception of a legitimate
European Union the Draft Treaty establishing a Constitution for Europe
2
(hereafter, ‘the Draft’) speaks to. Legitimacy has both a substantive and a
procedural component. In this article, we focus on the substantive contents of
3
the Draft only. More specifically, we outline the following six aspects, which
1
John MacDonald MacCormick, The Flag in the Wind (London, Wackburg 1950), p. 21
Approved 18 June 2004; formally signed 29 October 2004; published officially in Official
Journal of the European Union OJ C 310/1-474, 16.12.2004; and currently awaiting
ratification in all the Member States.
3
We have dealt with the procedural aspects of European constitution-making in the Laeken
constitution-making process in a previous piece, see J.E. Fossum and A.J. Menéndez, The
Constitution’s Gift? A deliberative democratic analysis of constitution-making in the European
2
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Fossum and Menéndez
we consider as good markers for discerning what type of entity the Draft
propounds as well as for establishing which mode of legitimacy it endorses:
•
•
•
•
•
•
the distribution of competences;
the law-making process;
fundamental rights;
the implicit and explicit socio-economic model;
the underlying conception of cultural community;
and procedural rights pertaining to the application of Union law;
Any assessment of this kind is complicated by the fact that the European
4
Union is both a contested entity and an ‘entity in motion’. In response to
this, we consider which legitimation mode or strategy (problem-solving,
value-based or rights-based) fits best with the Draft. Each such conception
yields an explicit set of principles, institutional-constitutional configurations,
policy instruments, modes of allegiance, and conceptions of how a legitimate
EU is forged. Thus, we present and evaluate the draft in relation to the three
5
legitimation strategies listed above.
The very labeling of the Draft as ‘Treaty establishing a Constitution for
Europe’ reflects the Union’s ambiguous and contested character. These traits
invariably rub off on the process and on the outcome: Is the Draft actually a
constitution; is it a treaty; or is it some kind of a mixture? In this article we
take as a guiding assumption that to characterize the Draft as a constitution is
at least within the range of current conceptual and normative possibilities.
Whether it is the most adequate one in both descriptive and normative terms,
taking into account the constitution-making process and the substance of the
Draft, must be established in light of the fact that there are different
conceptions of the European Union qua political community. This amounts
to saying that the type of political community we find the Union to be has
clear and obvious implications for which constitution it should have.
Union, in C. Closa and J.E. Fossum, Deliberative Constitutional Politics in the EU, ARENA
Report 5/2004.
4
E.O. Eriksen and J.E. Fossum (eds) Democracy in the European Union: Integration through
Deliberation? (London, Routledge 2000).
5
On the strategies, see J.E. Fossum, Constitution-making in the European Union, in: E.O.
Eriksen and J.E. Fossum (eds) Democracy in the European Union integration through deliberation?
(London, Routledge 2000); E.O. Eriksen and J.E. Fossum, Europe in Search of Legitimacy:
Strategies of Legitimation Assessed, 25 International Political Science Review (2004), pp. 435-59.
Still adrift in the Rubicon?
99
This article is structured in three parts. First, we spell out the three basic
conceptions of legitimacy and apply these to the Union. From this application
we derive more specific expectations on what concerns the substantive
contents of the European constitutional edifice that each such application
espouses. That is, we ask ourselves what a legitimate European constitution
will look like from the vantage-points of the problem-solving, the valuebased and the rights-based conceptions of the European Union. Second, we
analyze the actual contents of the Draft, with specific attention to the issues
listed above. Third, we discuss what our findings yield in terms of designating
the Union’s status in polity terms. The last part holds the conclusion.
Three conceptions of a legitimate European polity:
which substantive notion of the constitution is
associated with each?
The problem-solving conception
This strategy conceives of the EU as a functional organization that is set up to
address pragmatic problems which the member states cannot resolve when
acting independently. The Union is mandated to act only within a delimited
6
range of fields. A critical determinant for establishing which fields is the EU’s
6
This description is shared by intergovernmentalists, neo-functionalists and regulatory scholars (A.
Moravcsik, Preferences and Power in the European Community: A Liberal
Intergovernmentalist Approach, 31 Journal of Common Market Studies (1993), pp. 473-524; id.,
The Choice for Europe. Social purpose and state power from Messina to Maastricht (London, UCL
Press 1998); E.B. Haas, The Uniting of Europe (Stanford CA, Stanford University Press 1958).
P.C. Schmitter, Neo-neo-functionalism: Déjà vu all over again?, in A. Wiener and T. Diez
(eds) European Integration Theory (Oxford, Oxford University Press 2003); G. Majone, Regulating
Europe (London, Routledge 1996) albeit they differ in their analysis of the causal mechanisms
behind integration and the normative basis of the process. Thus, intergovernmentalists would
claim that Member States are the main agents of integration, and that the Union is justified
when serving the interests of its Member States. Regulatory variants would stress that the
legitimacy of EU institutions and legal norms would be based on performance – output
legitimacy (F.W. Scharpf, Governing in Europe: Effective and Democratic? (Oxford, Oxford
University Press 1999) G. Majone, Regulating Europe; id. Europe’s ‘Democratic Deficit’: The
Question of Standards, 4 European Law Journal (1998), pp. 5-28).
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Fossum and Menéndez
ability to offload and compensate for the declining problem-solving ability of
the nation-state in a globalizing context.
This conception sees the Union’s legitimacy as based on two components. In
performance terms, it claims legitimacy due to its ability to produce
7
substantive outcomes, i.e. output legitimacy. This pertains in particular to its
ability to handle cross-border issues (such as for instance environmental,
migration and cross-border crime). Thus, the problem-solving strategy is
based on a consequentialist notion of legitimacy. In democratic terms, the
Union’s legitimacy is derived from the democratic character of the Member
States, as they retain core decision-making power within the Union’s
8
institutional structure. Delegation of competencies to the Union entails selfbinding, and this comes with a powerful set of controls in the hands of the
Member States, so as to safeguard that the Member States remain the
foundation of the EU’s democratic legitimacy. The member states authorize
EU action and confine and delimit the EU’s range of operations through the
provisions set out in the treaties, as well as through a set of institutions that
permit each and one of them to exercise veto-power, either individually or
9
aggregatively.
A problem-solving conception of the Union is associated with an
instrumental, functional approach to the Union’s legal order. The problemsolving conception envisions EU law to be of a Treaty-based character,
which corresponds to intergovernmental principles. However, for the Union
to serve as an effective problem-solver, its legal order has to be grounded on a
set of legal norms of material constitutional nature, which ensure a modicum
of autonomy to its legal order. This entails that the Union has a material
constitution, which regulates the production of legal norms and sorts out
conflicts between norms within specifically delineated realms of action. This
material constitution is, however, enshrined in an international treaty, as there
is no need for a formal, procedurally approved constitution. To put it
7
H. Wallace, Deepening and Widening: Problems of Legitimacy for the EC, in: S. García (ed.)
European Identity and the Search for Legitimacy (London, Pinter 1993), p. 100; F.W. Scharpf,
Governing Europe (Oxford, Oxford University Press 1999).
8
The strategy presumes that it is possible to distinguish between input and output legitimation,
and further that the mode of legitimation that the EU itself can draw on is that of output
legitimation (F. Scharpf, Governing Europe (Oxford, Oxford University Press 1999). In input
democratic terms, the EU can not claim to be legitimate.
9
QMV as an instance of collective veto, because it is not simple majority.
Still adrift in the Rubicon?
101
differently, the proponents of this conception of the EU are not overly
concerned with the direct democratic legitimacy of the constitution-making
process; their main concern is with the material norms which frame the EU
legal order and ensure the power position of Member States. This leads
problem-solving conceptions into depicting the Laeken constitution-making
process as another instance of Treaty amendment as we know it.
First, the legal order of a problem-solving Union will be established on the
basis of a flexible and open allocation of competencies to the Union, within
10
the confined set of issues designated as relevant to Union action. Thus, the
Union has enumerated powers, but their determination is left, as much as
possible, to the Member States, and is not subject to procedural or substantive
requirements besides the requirement of agreement among Member States.
This allows Member States to increase or decrease the realm of Union action
in relation to the set of problems to be solved, or to be sorted out, at the
11
Union level.
Second, the problem-solving conception of the European Union presupposes
an efficient and expedient law- and decision-making process at the Union
level. This requires the constitution to assign decision-making roles both to
the Member States and to the Union institutions. The reason for assigning
decision-making roles to the latter is a) to increase the specialised or technical
knowledge basis of the decision (knowledge-enhancing), and/or b) to
facilitate decision-making by means of finding and proposing solutions likely
to be accepted by Member States (efficiency-enhancing). The Union has
delegated powers (as we have just seen), but the ultimate decision-making
power rests with the Member States. This is ensured in different ways,
depending on the scope and intensity of the common action. In some areas,
Member States retain national veto power, and the role of European
institutions is confined to making proposals. In other areas, Member States’
veto power can only be exercised jointly, and is matched by an equal veto
power granted to Union institutions. Finally, the institutions of the Union
12
have exclusive decision-making power in a very limited number of fields.
10
In other words, there would be explicit limits on the problem-solving entity’s ability to deal
with for instance security and defence matters, as these are considered core state tasks.
11
Such rhetoric is evident in the calls to repatriate competencies that were already transferred to
the European Union.
12
The material constitution should determine, in a rather flexible way, the requisite majority of
Member States that is needed to adopt a piece of legislation or to take a decision. However, in
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Fossum and Menéndez
Which of these is the right operationalisation depends on the will of the
Member States, and on the need for rendering their commitment to Union
action credible.
Third, the material constitution of a problem-solving Union would include
those fundamental rights whose protection at the European level is considered
as instrumental to the Union’s problem-solving ability, on efficiency or
expediency grounds. The protection of economic freedoms empowers
persons, especially legal persons, to become decentralised guardians of
13
European Union law. Moreover, the protection of certain rights may also be
considered necessary to ensure the social legitimacy of the institutional
structure or of the substantive norms that are essential to problem-solving. A
good example in that regard could be data protection norms, which facilitate
the free flow of data across borders by means of reassuring citizens that their
fundamental rights are protected at the same time. The enshrinement and
protection of political, citizenship rights, is not a functional necessity, and
these remain entrenched and exercised at the national level.
Fourth, from the material constitution of a problem-solving Union we would
be able to discern an economic constitution with a clear distinction between
questions of redistribution, which would be the competence of nation-states
(and regions), and questions of regulation, which would concern the
allocation of the costs and benefits of maintaining the Union’s institutions and
14
the common action norms among the Member States. That is, questions of
distributive justice would be dealt with at the European level from a purely
technical, regulatory, standpoint to ensure at the same time the efficiency of
national systems, without pre-determining their core political choices.
Fifth, the material constitution of a problem-solving Union could be
expected to be rather circumscribed on cultural issues. It will affirm the
respect for national and regional identities and provide safeguards for their
retention. Consistent with the characterization of the EU as a functional
line with the above, majoritarian decision-making would be explicitly mandated (through
national veto) and justified with reference to expediency. Extensions in the range of issues
handled by the Union thus reflect the Member States’ increased commitment to the common
organisation.
13
J. Coppel and A. O'Neill, The European Court of Justice: taking rights seriously?, 29
Common Market Law Review (1992), pp. 669-92.
14
This also reflects a distinction between commutative and distributive justice concerns.
Still adrift in the Rubicon?
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organization, the only necessary cement of the Union, so to say, is its
problem-solving ability. There is no need for forging and renewing a ‘wefeeling’ among European citizens, as the Union is confined to deal with
pragmatic issues.
Sixth, the procedural rights guaranteed to physical and legal persons in the
process of application of Union law should be those necessary to ensure the
ongoing commitment on the part of Member States to a common
organization and legal system. The protection of procedural guarantees turns
(natural or legal) persons into decentralised monitoring agents for national
15
compliance with Union law. This might also require granting individual
rights limited rights to contest compliance of Union legislation with basic
Treaty principles.
The Value-based conception
The value-based community notion conceives of the EU as an emulator of
the nation-state. This conceptualization portrays the Union as a political
community based on a set of ethical values, shared by European citizens on
16
the basis of pre-political factors, typically embedded in a common culture.
As such, the EU is an entity to which Europeans should demonstrate their
allegiance. It presupposes that they will shift their ultimate loyalty to the EU
when the nation-building process has been completed. A common identity,
this strategy posits, not only helps to stabilize the Union’s goals and visions,
17
but is also necessary for securing trust.
15
C. Harding, Who goes to Court in Europe?, 17 European Law Review (1992), pp. 105-95.
According to communitarians, being a citizen is not a mere act of will, but something which
is rendered possible by the pre-politically sharing of ‘something’ (i.e. a ‘culture’); turning
individuals into next of kin predisposed to make sacrifices for others (J. Benda, Discours à la
nation européenne (Paris, Gallimard 1993). cf. J.H.H. Weiler, Un’Europa Cristiana (Milano,
Rizzoli 2003).
17
Trust is an essential condition for deep and binding cooperation and for the settlement of
conflicts by neutral procedures (R. Schmalz-Bruns, On the political theory of the Euro-polity,
in: E.O. Eriksen (ed), Making the European Polity: Reflexive integration in the EU (London,
Routledge forthcoming 2005). A critical source of trust is a common cultural substrate, which
can help foster allegiance and respect for laws. Cf. C. Taylor, Human Agency and Language
(Cambridge, Cambridge University Press 1985); C. Taylor, Sources of the Self: The Making of the
Modern Identity (Cambridge MA, Harvard University Press 1989); D. Grimm, Does Europe
Need a Constitution? 1 European Law Journal (1995), pp. 282-302; D. Miller, On Nationality
16
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Fossum and Menéndez
The EU’s legitimacy basis, from this perspective, emanates from the
community of values that the EU draws upon. These common values
underpin and render possible democratic decision-making at the European
level. They are the preconditions for European democracy. Thus, value-based
conceptions tend to underpin a democratic conception of legitimacy, but one
that is grounded on that community’s particular set of common ethical values.
This entails substantive limits on the agenda and on what are seen as
acceptable outcomes of democratic decision-making. This strategy is based on
a contextual mode of rationality and depicts the EU as an emerging value
community.
The value-based conception requires the Union to have a constitution that
symbolizes and reflects the existence of a European community of values.
Thus, the constitution is a ‘rooted’ constitution, i.e., a body of fundamental
norms with deep roots in the pre-political community of values. To put it
differently, the constitution is the legal embodiment of the community of
values. As such, it is best seen as an evolutionary constitution, which is
18
distilled from such socio-cultural roots over a considerable period of time.
The constitution-making process critically contributes to the clarification of
the Union’s value basis. It is better understood as a collective process of selfinterpretation, through which it becomes clear who are Europeans and also
who they want to be. Consequently, constitution-making has to reach back
in time, and establish that there is a set of common traditions and memories
that can be seen as constitutive of Europe. These must then be revitalized and
brought to the fore to support the constitution-making process. It has to
reach into people’s hearts and passions, and reinforce their sense of selves as
compatriots, willing to embrace collective obligations essential to each other’s
(Oxford, Oxford University Press 1995); M.J. Sandel, Liberalism and the Limits of Justice
(Cambridge, Cambridge University Press 1982).
18
F.A. Hayek, The Constitution of Liberty (Chicago, University of Chicago Press 1960); B.
Leoni, Freedom and the Law, expanded 3rd edition,(Indianapolis, Liberty Fund 1991); see also H.
Brunkhorst, A polity without a state? European constitutionalism between evolution and
revolution, in: E.O. Eriksen, J.E. Fossum and A.J. Menéndez (eds), Developing a Constitution for
Europe (London, Routledge 2004); C. Möllers, Verfassung – Verfassunggebung –
Konstitutionalisierung, in: A. von Bogdandy (ed), Europäisches Verfassungsrecht (Berlin, Springer
2003).
Still adrift in the Rubicon?
105
19
well-being. Thus, the contents of the constitution have to extend beyond
institutional design.
First, the constitution of the value-community espouses the principle that the
distribution of competencies should follow core community traits. With this
is meant that all competencies which are central to the forging and
maintenance of the Union as a nation-state should be located at the central
level. In other words, because the Union as value-community can only be
sustained through a system of defense, a system of redistribution of economic
resources, and a system of cultural maintenance, these competencies should
be allocated at the Union level. Nations and regions could have auxiliary
competences on what concerns the regulatory and administrative
implementation of such policies. On other issues, competencies can be shared
among all relevant levels of government.
Second, it expects the Constitution to delineate law and decision-making
procedures in which active citizens can be socialized into Union common
values. This requires combining citizen participation at the European,
national and regional levels. Citizens’ involvement at all levels of government
is needed in order to ensure the sustenance of an active community of values,
and to ensure that citizens internalize such values. This entails majoritarian
decision-making procedures, in which representative Union institutions have
the final say. But this is to be combined with multiple veto points, which
ensure sub-communities and protect the central institutions from being
overloaded.
Third, the value-community’s Constitution will contain a catalogue of
fundamental rights placing equal emphasis on fundamental rights and on
fundamental duties, as both, and especially the latter, are reflective of the
common value basis that bonds citizens together. The constitution will also
draw a clear line between rights of citizens and of non-citizens. Similarly, it
will delineate law and decision-making procedures that ensure citizens’ active
political participation, so as to sustain the Community’s value basis and sense
19
If there is no common pre-political identity, it has to be created. Constitution making in this
perspective is not only a forward looking creative act where the main task is to establish a set of
institutions that shape the ensuing community. Constitution making is as much a backward
looking creative act, in the sense that certain aspects of the past are made explicit and attributed
normative value. History is interpreted in the light of amplifying those traits that speak to a
common sense of origin and a common sense of destiny.
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Fossum and Menéndez
of self. Given the Union’s sheer size, this requires procedures for active
participation at all key levels: European, national and regional. But given that
these are also in some sense distinct communities; there will also be a
multitude of potential veto points, so as to ensure communal allegiance, as
well as to protect against trans-communal transgressions.
Fourth, the Constitution will frame a socio-economic order which is
reflective of citizens’ mutual obligations, of what they owe to each other as
members of a value-based community. Consequently, there should be a
strong element of redistribution at the European level, which will reflect
Europeans’ allegiance to the Union. This ensures the necessary we-feeling –
required for sustaining the community - and that also has to be forged and
renewed on a continuous basis, for this to constitute a value-community.
Fifth, it expects the Constitution to contribute to the fostering of a strong
European identity. The Constitution itself should be turned into a symbol of
the political community, and for such a purpose, it should make explicit
reference to the common symbols and to the Union’s foundation as a
community of fate. The Constitution will contain provisions to ensure the
ongoing socialisation of persons into ‘Europeans’; there would be a set of
clearly delineated criteria for who are Europeans, and who are not; and these
criteria would reflect cultural aspects and a common identity. The onus
would be on positively identifying Europe, and distinguishing Europeans
from others, rather than on what Europeans have in common with others.
Sixth, the value-based Constitution is unlikely to constitutionalise procedural
rights, even less to grant the same constitutional status as the one given to
political rights. This is so to the extent that political procedures, not courts,
should play a central role in the definition of common action norms in line
with the founding values of the community. Thus, the value-based
conception is extremely skeptical of entrenching procedural guarantees which
entail the judicial review of legislation, be it European or national, as this
entails empowering courts to the detriment of political processes. Such rights
are seen as having the potential to undermine the Union’s value-basis.
The rights-based conception
The rights-based notion conceives of the European Union as a political
community based on the citizens’ mutual acknowledgment of their rights and
Still adrift in the Rubicon?
107
duties. The Union is considered as the supranational level of government in
20
Europe, and as one of the regional subsets of a larger cosmopolitan order.
21
The Union, in its internal make-up, is federally structured.
In a globalizing world, the nation-states suffer particularly pronounced
democratic deficits, in that their citizens are affected by decisions taken
outside the borders, and beyond national control. This underpins the case for
supranational government. But to re-establish democracy, the new level of
government must itself meet with the requisite standards of democratic
legitimacy. From the vantage-point of this model, such standards refer to the
rights of citizens to participate in the deliberation and decision-making
processes through which common action norms are established. Applied to
the EU, laws adopted and decisions taken at the European level deeply affect
citizens. This presupposes that the Union’s democratic legitimacy be based on
the democratic credentials of its decision-making procedures and on its
protection of fundamental rights. The rights-based strategy is founded on the
notion that the Union’s democratic legitimacy is based on citizens who see
22
themselves, not only as the addresses, but also, as the authors, of the law.
Further, the rights-based notion also presupposes a public sphere steeped in
and upheld by the essential conditions of freedom, inclusion, equality,
participation, and open agenda. Its support resides in a constitutional
23
patriotism, where a set of legally entrenched fundamental rights and
democratic procedures, are embedded within a particular socio-cultural
context, so as to make for political affect and identification. This strategy rests
20
The Union would occupy an intermediate position between the United Nations and nationstates as a regional political community. As such, the European Union should be regarded as a
political community part of a cosmopolitan order cf. E.O. Eriksen, A Cosmopolitan Europe in the
Making?, Working Paper 2/04 (Madrid, Instituto Universitario de Investigación Ortega y
Gasset 2004).
21
Note that there is no requirement for a federal entity to be a state. Cf. D.J. Elazar, Exploring
Federalism (Tuscaloosa, University of Alabama Press 1987).
22
A central tenet of discourse-theory is that only those norms that are approved in free and
open debate are valid: J. Habermas, Between Facts and Norms. Contributions to a Discourse Theory
of Law and Democracy (Cambridge MA, MIT Press 1996), p. 107.
23
J. Habermas, Struggles for Recognition in the Democratic Constitutional State, in A.
Gutmann and C. Taylor (eds) Multiculturalism (Princeton, Princeton University Press 1994); id.,
The Inclusion of the Other: Studies in Political Theory (Cambridge MA, MIT Press 1998); id., The
Postnational Constellation (Cambridge MA, MIT Press 2001); id., Constitutional Democracy: A
Paradoxical Union of Contradictory Principles, 29 Political Theory (2001), pp. 766-81.
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Fossum and Menéndez
on the moral value of deliberation; it propounds a rights-based, procedural
notion of legitimation.
The rights-based conception of the Union sees the constitution as reflecting
the fundamental legal norms of the European Union, approved by European
citizens in a process with reinforced democratic qualities (relative to ordinary
24
law-making).
As a consequence, the constitution must uphold a set of rights that enable
participation in opinion- and will- formation processes, and thus make for
public autonomy (i.e. political rights), as well as a set of rights that protect the
integrity of the individual, her private autonomy. The two sets of autonomy
presuppose each other and are mutually dependent on each other. To ensure
this, the constitution also has to contain a set of institutions that realize the
public and private autonomies of citizens.
This also presupposes a democratic constitution-making process;
‘revolutionary’ in the sense of forging and reflecting the common will of
25
citizens. The rights-based conception presupposes that the constitution is
26
forged through a ‘constitutional moment’ , a process with an explicit
democratic sanction. Constitution-making permits citizens to see themselves
as the addressees and also as the authors of the laws that affect them.
Furthermore, the legitimacy of the European constitution is critically
dependent on the EU harnessing the normative essence of the modern
democratic constitution, which essentially corresponds to the protection of
fundamental rights.
First, the rights-based Constitution is expected to lay the ground for an
allocation of competences among different levels of government that ensures
that each level retains decision-making capacity over those issues that mainly
concern its citizens; at the same time that it ensures the political influence and
24
Ackerman’s dual conception of democracy is related to the need to distinguish between the
Constitution and ordinary statutes (We the People: Foundations (Cambridge MA, Harvard
University Press 1991); and We the People: Transformation ,(Cambridge MA, Harvard University
Press 1998).
25
H. Arendt, On Revolution (London, Faber and Faber 1963); B. Ackerman, Revolution on a
Human Scale. Moments of Change: Transformation in American Constitutionalism, 8 Yale Law
Journal (1999).
26
Even though ‘moment’ is the usual term, it actually refers to a process.
Still adrift in the Rubicon?
109
relevance of each level of government, which is a basic pre-condition for
ensuring active political participation. The criteria of allocation of
competences could be flexible, but their reform should be subject to
procedural and substantive limits, i.e., the criteria need to be properly
constitutionalised.
Second, the rights-based Constitution is expected to delineate a law and
decision-making procedure that is such set up as to ensure that legal norms
and concrete decisions can be supported by the common will of European
citizens.27 This entails designing a law-making procedure that assigns a
decision-making role to institutions that are representative of the will of
European citizens, so as to ensure that decisions are responsive to social
demands. This presupposes a procedure that is sensitive to concerns in the
various European public spheres, that is, mutual interaction between strong
28
and general publics. This implies a majoritarian decision-making procedure,
in which veto power rests exclusively with citizens through their European
29
or national representative institutions.
27
This requires that law and decision making procedures will block initiatives that are
supported by sectional interests, i.e., are not representative of the common interest of
Europeans (that is, procedures that avoid false positives) at the same time as to ensure the
translation of the common will of European citizens into legal norms (that is, avoiding false
negatives). There is also the recurring issue of ensuring adequate minority protection.
28
Strong publics refer to institutionalised deliberations whose discourse encompasses both
opinion formation and decision making. In institutional terms, strong publics alludes to
parliamentary assemblies and discursive bodies in formally organised institutions imbued with
decision-making power, yet constrained by the logic of arguing and impartial justification.
Weak or general publics refer to public spheres ‘whose deliberative practice consists exclusively in
opinion formation and does not also encompass decision making’. See N. Fraser, Rethinking
the public sphere. A contribution to the critique of actually existing democracy in: C. Calhoun,
Habermas and the Public Sphere (Cambridge, MIT Press 1992), pp.109-42. E.O. Eriksen and J.E.
Fossum, Democracy through Strong Publics in the European Union?, 40 Journal of Common
Market Studies (2002), pp. 401-24. E.O. Eriksen and J.E. Fossum, Conceptualising European
Public Spheres: General, Segmented and Strong Publics, ARENA Working Paper 3/04; and
H. Brunkhorst, Globalising Democracy without a State: Weak Public, Strong Public, Global
Constitutionalism, 31 Millenium: Journal of International Studies (2002), pp. 675-90.
29
National parliaments acting collectively on European issues can supplement and support the
EU parliament, when issues overlap across levels. Note also that on issues allocated to
governments at lower-levels, the same rules apply but now within these constituencies.
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Fossum and Menéndez
Third, the rights-based Constitution will include a catalogue of fundamental
rights that is reflective of and that amplifies the commitments entrenched in
the Member States’ constitutions of the indivisibility of fundamental rights
(including civic, political, but also social and economic rights). As such, the
catalogue should reflect the rights that European citizens mutually
acknowledge each other as citizens, and which constitute the core
precondition for European democracy. Those rights should be equally
protected within the scope of Union law, something which entails that
fundamental rights should be the main constitutional yardstick of European
legislation, of the action of EU institutions, and also of national legislative and
executive organs when applying, or claiming exceptions to Union law.
Fourth, the Constitution should reflect the condition of the Union as a
community of rights and duties. This also entails the notion of the Union as a
community of risks (including economic ones). The sustenance of the EU
entails the allocation of costs and benefits among Member States or regions, as
well as among individuals. The pattern of distribution depends on the good
to be allocated or the cost to be covered. This also entails that the Union’s
market-making dimension should be complemented with a marketcorrecting one; by social policy and not only by social regulation.
Fifth, the rights-based notion does not depict the Constitution as rooted in a
set of pre-political values. The Constitution could lend symbolic support to
any given set of identities, notably a European one, but it would then also
underline the multiple identities of Europeans, for instance as regional,
national and European citizens. The Constitution however, in line with what
has been said above, would be such set up as to render cultural identifications
reflexive – and as contingent on compliance with fundamental individual
rights.
Sixth, this strategy expects the Constitution to provide European citizens
with procedural guarantees which ensure the correct implementation and
application of Union law. The concrete breadth and scope of such guarantees
will be directly related to the breadth and scope of rights to political
participation. Thus, the insufficient democratic character of law-making
procedures could be partially compensated for by the granting of individual
subject rights to contest the constitutionality of Union laws.
111
Still adrift in the Rubicon?
Table 1:
The legitimation strategies – expectations related to the draft constitution
Regulatory
problem-solving
Value-founding
of community
Polity Type
International
organization
Nation-State in the
Making
What the Draft is
Member statebased const.
treaty
Evolutionary
constitution
What is a
Constitution for?
Efficiency
Self-Interpretation
What the
constitutionmaking process
should focus on
Institutional
Design,
Simplification
Division of
powers and
competences
Fundamental
rights: status
and range of
The EU’s socioeconomic order
Cultural
community and
diversity
Member statebased principle:
delegated to the
EU
Civil and
economic rights
only
Limited taxing and
redistribution at
EU-level
No cultural identity
required
Symbolic
manifestation and
evocation of the
values of the
community
Communal
principle: lower
levels support
community
Rights-entrenching
in federal Union
Federal Union
(harbinger of a
cosmopolitan order)
Democratic
(revolutionary)
constitution
Democratic
legitimacy
Realising political
rights through selfgovernment
Federal principle:
‘democratic
congruence’
Community
protective rights
Political equality
rights
European: full
state-type ability
European: full statetype ability
European cultural
identity is vital
Rights-induced
reflexive political
culture
The Substantive Contents
Constitutional Treaty
of
the
Draft
Competences
Federal and quasi-federal polities are characterized by the division of
competences not only among different institutions, but also among different
levels of government. The international origins of the European Communities
112
Fossum and Menéndez
go a long way to explain the circumscribed character of the Treaties on this
matter. At the same time as the Communities were assigned specific tasks in
the domain of market integration, the Treaties contemplated flexible
arrangements through which Member States could transfer new competences
to the Union. It was only after the Treaty of Maastricht that Union primary
law tackled the issue, by means of affirming the principles of subsidiarity and
proportionality as substantive checks on the assignment of powers to the
Union.
The Draft Treaty breaks new ground by including a set of general provisions
concerning the allocation of competences between the Union and the
Member States. This can be considered in three steps, those being a) the
(re)affirmation of the principle of enumerated competences; b) a three-fold
classification of competences; and c) the reformulation of the flexibility
clause.
The principle of enumerated Competences
The Draft reinforces the formulation of the principle of enumerated powers
through explicitly stating its logical corollary that is that if competences have
not been conferred, they remain with the Member States (Art. I-11). Even if
this does not imply any substantive change in relation to present Community
law, it can be argued that the explicit affirmation of the tenor of this principle
contributes to reduce the flexibility which has characterised the allocation of
powers in European constitutional law.
A Three-fold characterization of competences
The third Title of the First Part of the Draft Treaty establishes a three-fold
classification of the Union’s competences:
•
•
•
exclusive,
shared and
supporting, coordinating and complementary competences.
However, ad hoc provisions are devoted to the coordination of economic
and employment policies (art. I-12.3 and I-15), to the common foreign and
security policy (art. I-12.4 and 16), and even to the conclusion of
international agreements, at least under a certain a contrario interpretation of
Still adrift in the Rubicon?
113
Art. I-13.2). These competences do not easily fit into the three-fold
classification, to the extent that one can doubt whether the Draft really
classifies competences into three types only.
In addition, certain specific competence titles established in the Third Part of
the Draft seem to put into question the three-fold distinction. This applies to
the competence to facilitate the right of European citizens to move and reside
freely (Art. III-125) a competence which goes beyond the competence title
established in Art. III-136, and which might be said to go beyond
30
Community competence, according to Article III-18.3. To this it must be
added that the enumeration of powers under each competence type does not
seem to be fully coherent, either. Thus, the label supporting competence for
‘industrial policy’ is questionable, given the close relationship that exists with
31
the internal market. Similar considerations can be made regarding the
labeling of competences on research as ‘shared competences’, given the fact
that the Union basically funds research, something which is characteristic of
the Treaty’s definition of supporting, coordinating and complementary competences.
But the most problematic feature of the classification of competences in the
Draft Treaty is that Art. I-12.6 affirms that the Draft respects the division
which stems from the present Treaties, as reflected in part III of the
Constitutional Treaty. This entails that the general classification reflects, more
than frames, the present division of powers. Thus, instead of requiring a
reinterpretation of the present implicit division of competences in their light,
the general provisions of the Draft are to be interpreted by reference to Part
III. It is difficult to escape such a conclusion, given the fact that Part III has,
at least formally speaking, the same constitutional status as the other two Parts
32
of the Treaties.
30
Cf. F. Mayer, Competences-Reloaded? The Vertical Division of Powers in the EU after the
New European Constitution in: J.H.H. Weiler and C. Eisgruber (eds), Altneuland: The EU
Constitution in a Contextual Perspective, Jean Monnet Working Paper 5/04, (New York, New
York University), p. 17.
31
D.N. Triantafyllou, Le projet constitutionnel de la Convention européenne (Bruxelles, Bruyllant
2003), p. 42
32
Ibid., p. 48.
114
Fossum and Menéndez
Flexible Transfer of Competences
Article I-18 introduces a new flexibility clause, which grounds Union
competence on the need to attain one of the objectives set out in the
33
Constitution ‘within the framework of the policies of Part III’. What is
different from present law is that the Draft introduces additional procedural
and substantive hurdles. On the procedural side, legislation adopted or
concrete decisions undertaken under the new flexibility clause are subject to a
decision-making procedure which requires both the unanimous consent of
Member States and the consent of the European Parliament. On the
substantive side, the Draft explicitly formulates that legislation adopted on the
basis of I-18 cannot lead to the harmonisation of Member States’ laws or
regulations when the Constitution excludes such harmonisation. Both
procedural and substantive limits are intended to render impossible the use of
34
the flexibility provision as an alternative to formal Treaty amendment.
Law-making
Law- and decision- making processes are the institutional and procedural
arrangements that regulate the production of common action norms, and the
transformation of political initiatives into legal and political action. The
primary law of the Union is rather complicated on this matter. As a start,
Union law has a confusing system of sources of law, which mainly results
from the lack of a nomen iuris which refers to regulatory instruments, to legal
norms which implement general and abstract norms within the framework
defined by the former. Moreover, there is a considerable number of different
law and decision-making procedures, both within and outside what is
generally referred to as the Community method. Under the general heading
of ‘Community method’, the Union has relied on a wide range of different
processes, through which the Community general will is to be ascertained.
Such methods have moved from the ‘classical’ one in which the Commission
33
Something which duly reflects the assumption by the Union of competences beyond marketmaking. As a matter of fact, this will render discourses on Union policy less centered on
‘market-making’, but it will not enlarge the scope of the flexibility clause; indeed, when action
was undertaken under Article TEC 308, with Member States agreeing unanimously, the
‘common market’ connection was also arguable.
34
Given the considerable risk of over-constitutionalisation from the lack of differentiation of
Parts I and II versus Parts III in terms of constitutional status, the opportunity for constitutional
tightening of the flexibility clause might be put into question. But our point here is a more
limited one, namely, that this points to a constitutionalisation of the division of powers.
Still adrift in the Rubicon?
115
initiates and the Council decides, to the more complex co-decision
procedure introduced in the Treaty of Maastricht, and whose breadth and
scope was increased both in Amsterdam and Nice. Moreover, the legislative
procedures of the second and third pillar are basically intergovernmental, as
no role of European institutions as such is contemplated. However, the strict
distinction between the pillars introduced in Maastricht has progressively
eroded, in that issues have been moved from pillars two and three to one, and
some issues must be addressed by several pillars at the same time.
All this results in an unclear compromise between two different strategies of
democratic legitimacy; namely (1) derivative executive legitimacy, stemming
from the key role assigned to national governments in the Council; and (2)
direct representative legitimacy, resulting from the co-legislative powers
granted to the European Parliament in some procedures. As a result, the
existing Union law and decision-making system holds traits of the first,
problem-solving, and the third, rights-based, model. This combination makes
the Union into quite a distinct polity and one that is clearly different from the
second, nation-state model cherished by value-based conceptions of the
Union.
The implications of the Draft on law-making procedures will be considered
in more detail in five steps: a) sources of law, b) increased transparency; c)
direct democratic legitimacy inputs of general publics; d) direct democratic
legitimacy through new powers granted to the European Parliament; and e)
the emergence of derivative representative legitimacy, by means of the
granting of a legislative role to national parliaments.
Sources of Law
The Draft Treaty introduces a new system of sources of Union law, at the
same time that it constitutionalises the language in which the different sources
35
of Union law are named.
First, the Draft Treaty aims at a systematic regulation of the whole set of
legislative acts into categories which correspond to those entrenched in
35
In doing this, it follows the Conclusions of the Working Group on Simplification, CONV
424/02, available at http://register.consilium.eu.int/pdf/en/02/cv00/00424en2.pdf.
116
Fossum and Menéndez
36
national constitutional systems (see Article I-32). Thus, there is a clear threefold distinction between statutes (European laws and framework laws),
statutory instruments or decrees (regulations) and administrative acts
(European decisions). This presupposes a clearer division of labour between
the legislature, the executive and the administration, which could avoid a
good deal of the difficulties stemming from the absence of a specific category
referring to statutory instruments or decrees in the system of sources of law
37
contemplated in TEC 249.
Second, the Draft Treaty translates into constitutional language the system of
sources of law of Union law. The Draft Treaty speaks of laws and framework
laws, and not of regulations and directives, the old terminology enshrined in
38
the Treaties. This renders the material legal character of Union norms more
36
Article I-32.1: ‘In exercising the competences conferred on it in the Constitution, the Union
shall use as legal instruments, in accordance with the provisions of Part III, European laws,
European framework laws, European regulations, European decisions, recommendations and
opinions’; and then I-32.2: ‘A European law shall be a legislative act of general application. It
shall be binding in its entirety and directly applicable in all Member States’; I-32.3: ‘A
European framework law shall be a legislative act binding, as to the result to be achieved, on
the Member States to which it is addressed, but leaving the national authorities entirely free to
choose the form and means of achieving that result’; I-32.4: ‘A European regulation shall be a
non-legislative act of general application for the implementation of legislative acts and of certain
specific provisions of the Constitution. It may either be binding in its entirety and directly
applicable in all Member States, or be binding, as regards the result to be achieved, on all
Member States to which it is addressed, but leaving the national authorities entirely free to
choose the form and means of achieving that result’; I-32.5: ‘A European decision shall be a
non-legislative act, binding in its entirety. A decision which specifies those to whom it is
addressed shall be binding only on them’.
37
The original design of the Community legal order presupposed a strict executive federalism,
i.e., that regulatory and implementing measures will be adopted by national administrations.
However, it was quickly realised that the effective realisation of Union policies required the
allocation of further normative powers, on what concern statutory instruments and legislation
of detail, to Community institutions. This was crystal clear on what concerned the Common
Agricultural Policy, for example, which could only be turned into reality if Union institutions,
and especially the Commission, undertook a heavy task of regulatory production. This resulted
in a blurring of the kind of act which was contained in a Regulation or a Directive, as the same
nomen iuris was applied to both general and regulatory legal norms. Union law was plagued by
the absence of a specific category referring to statutory instruments or decrees in the system of
sources of law (as contemplated in TEC 249), which became extremely problematic with the
development of customary, non-Treaty based implementing norms.
38
The legal system of the Communities was originally characterised by the delegation of
autonomous law-making power to Community institutions, an exercise that resulted in two
main types of general legal norms, i.e. regulations and directives. Both regulations and
Still adrift in the Rubicon?
117
obvious, but might at the same time result in obscuring some differences
which deserve being maintained.
Transparency of the law-making procedure
Democratic law-making is not just a matter of taking decisions and
determining what the common action norms are, but also of providing the
underlying reasons for such norms. This grounds the case for a general
obligation to obey the law even for those who did not agree with the
decision through which the legal norm in question is enacted. This is why
transparency of the deliberations leading to the enactment of a law is essential
in order to ensure the democratic character of law-making processes.
The Draft Treaty affirms the principle of the transparency of Council
deliberations with regard to the examining and adoption of legislative
proposals (Article I-49.2). This confirms and reinforces the decision taken in
39
the European Council of Seville of 2002, by which the Council was already
directives were regarded as directly and immediately effective in national legal orders, once
approved through the relevant Community law-making process. In that regard, they were
materially equivalent to national statutes (‘lois, leggi, leyes’). However, the democratic
legitimacy of Union law was purely derivative, as regulations and directives were approved
through a procedure where citizens exerted only a very indirect influence. Neither European
nor national parliaments were given much of a say, as the final legislative word was entrusted to
the Council of Ministers, where national executives were represented. To the extent that
national governments were elected by democratic parliaments, and each national representative
was granted a veto power, Union law enjoyed derivative democratic legitimacy, of a similar
kind to that acknowledged in classical international law.
This necessarily resulted in an unclear hierarchical relationship between national statutes and
their European material equivalent, i.e., regulations and directives. The primacy of Community
over national law, affirmed by the European Court of Justice, and accepted by many national
courts, has been accepted as a matter of practice, but remains on shaky grounds. It is indeed
problematic that national norms, especially constitutional norms, with a high procedural
democratic legitimacy, are to be left aside when in conflict with European norms of dubious
democratic legitimacy.
The move from individual to collective veto powers with the introduction of qualified majority
voting in the Council has come hand in hand with the infusion of some degree of procedural
democratic legitimacy to Union law-making process. Thus, there is a direct correlation
between the move towards QMV in the Council and the assignment of veto power to the
European Parliament. This results in a different, more complex and nuanced, combination of
derivative and direct democratic legitimacy.
39
See President Conclusions of the Seville European Council, June 2002, Annex 2, points 1011, ‘Opening Council meetings to the public when the Council is acting in accordance with
118
Fossum and Menéndez
expected to become more transparent. This decision was welcomed by
national parliaments, whose supervision of national executives will be
rendered easier. In that regard, it increases the strength of the derivative
democratic legitimacy of Union law. Moreover, this decision will contribute to
foster decision-making tied to reasons, and also to ease the circulation of
arguments between strong and general publics. In that sense, it might result in
increasing the direct democratic legitimacy of Union law.
Increased direct democratic legitimacy: general publics
The Draft Treaty contains an explicit acknowledgment of the central role to
be played by general publics in democratic law- and decision-making. Title
VI of the first Part of the Draft Treaty is actually entitled ‘The Democratic
Life of the Union’, while Article I-46 affirms ‘participatory democracy’ as one
of the central principles to guide Union law- and decision-making.
However, this is not accompanied by a thorough reconsideration of the
political rights acknowledged to European citizens. One novelty is the right
to exert legislative initiative through the collection of signatures. As we will
see, however, this formally results in a mere invitation to the Commission to
present a legislative initiative, and not in an autonomous power of any kind.
Moreover, some of the remaining provisions whose literal tenor is new
merely consolidate the practice of consultation of stakeholders which is
usually considered as part of the Union governance structures. Thus, articles
I-46 and I-49 require the Commission to consult ‘civil society’ when
launching legislative initiatives, but it can be doubted whether this really
corresponds to the fostering of the input of general publics.
Increased direct democratic legitimacy: strong publics
The Draft Treaty confirms the double-sided character of the democratic
legitimacy of Union law. At the same time that it aims at increasing derivative
democratic legitimacy by means of assigning a direct role to national
parliaments, it expands the breadth and scope of the powers assigned to the
European Parliament. This results in strengthening the representative
the procedure for co-decision with the European
http://www.europarl.eu.int/summits/pdf/sev2_en.pdf.
Parliament’,
available
at
Still adrift in the Rubicon?
119
democratic legitimacy pillar of Union law, both through European and
40
national representative institutions.
The Draft Treaty turns co-decision into the standard Union law-making
41
procedure (cf. Articles I-33 III-302). What was introduced as an exception
to the rule in the Treaty of Maastricht is now formally the rule.
Having said that, a systematic reading of the Draft allows us to distinguish a
number of exceptions to this rule, which correspond to three alternative lawmaking procedures, characterised as follows:
i) The European Parliament has no say on the legislative procedure, and it is
merely to be consulted. The power to enact new laws is assigned to the
Council, which is to decide unanimously. This is the case of legislation on:
• citizenship rights (art. III-10: right to vote and stand as candidate
in elections to the European Parliament and in municipal
elections; art. III-9.2: measures concerning passports, identity
cards, residence permits or any other such document, measures
concerning security or social protection; measures to secure
40
It is usually assumed that successive Treaty amendments have resulted in a progressive
democratisation of the Union law-making procedures. This perception is based on the slowly
but steadily strengthening of the European Parliament. From being a merely advisory
institution, almost on a par with the Social and Economic Committee in the founding Treaties,
the Parliament have become a central institution in the law-making process, equipped with the
right to veto any piece of legislation which has to be approved through the co-decision
procedure, now used to approve a majority of secondary Community norms. The first step was
taken in the 1970 and 1975 Treaty amendments, which granted the Parliament limited but far
from negligible powers in the budgetary process. The Single European Act turned the
Parliament into a decisive institution in the law-making process, by introducing the cooperation legislative procedure. The Maastricht Treaty increased the salience of the
Parliament’s role by granting it veto power in the new co-decision procedure that has been
further strengthened by the Treaties of Amsterdam and Nice.
41
It must also be stated that the Draft Treaty requires the consent of the European Parliament
before an international treaty is ratified by the Union in terms rather similar to the national
constitutions requiring the consent of national parliaments (Article III-227.7; it is especially
noticeable the reference to ‘agreements covering fields to which the legislative procedure
applies’, which translates the terms used in present Article TEC 300 into proper constitutional
language).
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Fossum and Menéndez
•
•
•
•
42
diplomatic and consular protection of citizens of the Union in
42
third countries: III-11.1),
some key norms defining the single market, such as a) the regime
of the free movement of persons (III-62.2 and III-65bis), b)
rights and interests of employed persons (III-64.2 and III-65bis),
c) social security and protection of workers, protection of
workers when their employment contract is terminated,
representation and collective defence of the interests of workers
and employers, including co-determination, conditions of
employment for third-country nationals legally residing in Union
43
territory (III-104.3, c,d, f and g, and art. III-104.1);
norms concerning the harmonization of tax measures (III-62 and
44
III-65.2); and constraints to the free movement of capital to
third countries (III-46.3)
linguistic regime of uniform intellectual property rights
protection and centralized Union-wide authorization (III-68)
family law norms with cross-border implications (Article III45
170.3)
Moreover, Article III-13 subjects the extension of the rights of European citizenship to (1)
unanimous consent among Council members; (2) approval by the European Parliament; (3)
ratification by each Member State in accordance with national constitutional provisions. This
amounts to specifying a rather ad hoc procedure of constitutional reform.
43
The Article subjects Community legislation to the further requirement of respecting the basic
principles of national security systems and financial equilibrium. However, the Council can
decide by unanimity to subject the approval of some of these norms to the ordinary legislative
procedure (III-104.3).
44
Cf. also Article III-46.3, concerning the enactment of measures which constitute a step back
in Union law as regards liberalization of the movement of capital to or from third countries.
The Draft put forward by the Convention included two rather modest inroads into the
principle of unanimous decision-making on tax issues. Article III-62.2 opened the way to
qualified majority voting on tax measures related to administrative cooperation or combating
tax fraud and tax evasion, while Article III-63 did the same for ‘measures on company taxation
relating to administrative cooperation or combating tax fraud and tax evasion’. In both cases, it
was necessary that the Council agreed unanimously that such measures were necessary for the
internal market and to avoid distortion of competition beforehand. Both norms have been
deleted in the IGC Draft, apparently under heavy pressure from some national delegations
(which would probably include the United Kingdom, Ireland and Latvia). But one wonders
whether such norms were not a rather modest specification of Article 96 TEC, basically
reproduced in Article III-66 of the Draft Constitution, both in its Convention and IGC
versions.
45
Although the Council could unanimously decide to subject some family law norms with
cross-border implications to the ordinary legislative procedure (III-170.3).
Still adrift in the Rubicon?
•
•
121
environmental policy; Article III-130.2 leaves in the hands of the
Council (1) measures of a primarily fiscal nature; (2) measures
affecting town and country planning, quantitative management
of water resources, or affecting, directly or indirectly, the
availability of such resources, cland use; (3) measures significantly
affecting the choice of each Member State between different
46
energy sources and the general structure of its energy supply;
police cooperation; the Council needs only consulting
Parliament on (a) Operational cooperation between police
authorities (Article III-176.3), (2) the operation of police forces
in the territory of another MS in liaison and in agreement with
the authorities of that State (Article III-178).
ii) The European Parliament has no say on the legislative procedure, and it is
not even required that it be consulted:
This is the case of legal norms dealing with:
• common foreign and security policy (Article III-201)
• common security and defence policy (Article III-210.2).
• common commercial policy negotiations, as Article III-217.3
keeps on limiting the power to establish a mandate to the
Council, as well as the ratification of agreements)
• the domains where the Union operates through the so-called
open method of coordination, that is, social policy, employment,
but also economic policy coordination through the Broad
Economic Policy Guidelines.
• monetary policy, where powers are monopolized by the
European System of Central Banks, with the European Central
Bank at its head.
iii) The budgetary procedure, which is subject to a specific procedure of great
complexity, in which the allocation of powers extends to national
parliaments. There are three main budgetary legislative acts:
• The Decision on own resources, now named as Own Resources
Law, which is required to enumerate the sources of Union
revenue and to cap the total amount at its disposal (in actual
practice, this is done by reference to a percentage of the total
46
It is also possible in this subject matter to move to the ordinary law-making procedure.
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Fossum and Menéndez
•
•
47
wealth of the Union) (art. I-53). This amounts to the full
constitutionalisation of the own resources decision, the approval
of which follows at present a procedure which is formally
considered an amendment of the Treaties, even if in an abridged
and simplified form. In the Draft Constitution, the Own
Resources Law would be approved if there is unanimous
agreement in the Council of Ministers, and if the Law is ratified
by all Member States in accordance with their national
constitutional provisions. This clearly compromises the
characterization of the Union’s resources as its own resources,
and leads, with all probability, to the granting of a veto right to
each and every national parliament (a tall decision in a European
Union with a membership of twenty five plus);
The Financial Perspectives, which originated customarily out of
the mismatch between the spirit of the Treaty reforms of 1970
and 1975 which granted budgetary powers to the European
Parliament and the literal tenor of the said Treaties which limited
the effective power of the European Parliament on the matter.
Such practical arrangements are now fully given constitutional
resilience, and redefined as ‘Multiannual Financial Frameworks’.
They ares expected to ‘determine the amounts of the annual
ceilings for commitment appropriations by category of
expenditure’ (Art. I-54 and III-308), thus framing to a
considerable extent the shape of the decisions contained in the
annual budget. The Constitution renders clear that the first
financial framework law should be approved by the Council
acting unanimously, jointly with the European Parliament acting
by a majority of its component members. Successive financial
framework laws would have to be jointly approved by the
Council and the Parliament, but the Council could act by
qualified majority;
Finally, the annual budget (I-55) determines the revenue and
47
expenditure of the Union for the fiscal year.
Given the extremely limited amount of resources in the hands of the Union at present (the
current Own Resources Decision caps Union revenue at 1.27 per cent of the Gross National
Income of the Union), and given the sheer number of national parliaments that would have to
accept the increase of such a ceiling, any policy measure which will require an increase in
Union revenue (it does not take much ingenuity to realize that redistributive measures at the
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123
Derivative legitimacy in representative terms
The Draft Treaty also confers a specific role to national parliaments in a
majority of Union law-making processes. In doing so, the Draft contributes
to the derivative democratic legitimacy of Union law, but in an innovative
way. Arguably, the provisions of the Draft on this matter ensure that Union
law obtains further democratic legitimacy stemming from the custodian role
assigned to national parliaments. Only indirectly could this be said to result in
the increase of the powers assigned to Member States.
Until now, national parliaments could play only an indirect role in European
legislative processes; more precisely, they could exert the powers
acknowledged by their national constitution to control their national
executives, also on what concerned their participation in Council meetings.
In most cases, parliaments exert a controlling role over the national executive
when acting as national representative in the European Council. Indeed, and
following the German example, all national parliaments have ended up
establishing committees specialized on following European decision- and lawmaking processes. This limits, even if not fully avoids, the risks of executive
48
empowerment.
The Draft Treaty goes beyond that. More specifically, the Protocols ‘on the
Role of National Parliaments in the European Union’ (hereafter Parliaments’
Protocol) and ‘on the application of the Principles of Subsidiarity and
Proportionality’ (hereafter, Subsidiarity Protocol) give national parliaments
the power
• to let their voice be heard individually on the question whether
each and every of the European legislative proposals complies
with the principle of subsidiarity; moreover, all the institutions
which participate in the process of European law-making ‘shall
take account of the reasoned opinions’ of national parliaments
(Subsidiarity Protocol, point 5)
European scale will fall under such a heading) will be dramatically constrained by the number
of actors with veto power. This entails that the powers of the European Parliament over
European budgetary norms are probably weakened, not strengthened by the Draft
Constitution.
48
The strengthening of such a supervisory role of national parliaments would clearly contribute
to avoid the undermining of democracy at the national, but also at the European level.
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•
•
to request the review of the legislative proposal to the
Commission, such a power being granted collectively (at least of
one third of national parliamentary chambers must join forces to
49
exert this power ); such a review might lead to maintaining,
amending or withdrawing the proposal; the Commission can
decide what to do, but should always ‘give reasons’ grounding its
decision;
to challenge before the European Court of Justice European
legislative acts on account of the infringement of the principle of
subsidiarity; however, the literal tenor of the Subsidiarity
Protocol leaves it to the constitutional order of each Member
State to determine the specific terms according to which national
governments should act on behalf of national Parliaments
(‘notified by [national governments] in accordance with their
legal order on behalf of their national Parliament or chamber of
it’).
The direct powers granted to national parliaments are, however, limited in
scope. It is also important to notice that they result in the establishment of
direct, constitutionally mandated, relationships between Union institutions,
i.e. the Commission and the European Parliament, and national parliaments.
Indeed, the Parliaments’ protocol imposes upon the Commission the
obligation to transmit directly the annual legislative program, all Commission
consultation documents, all legislative proposals, and any other documents
which it transmits to the European Parliament and the European Council to
national parliaments (see points 1 and 2 of the Parliaments’ Protocol).
Fundamental Rights
Fundamental rights constitute one of the essential components of democratic
constitutions. They do not only express the basic preconditions of a wellfunctioning democratic government, but also establish mandates to
49
Both protocols define the ‘third’ by reference to a vote system. In such a system, each
chamber of a bicameral Parliamentary system has a vote (the Bundestag and the Bundesrat have
one vote each) while single-chambered Parliaments in unicameral Parliamentary systems have
two votes (the Finnish Parliament, thus, has two votes). This assigns the same number of votes
to each Member State, but might lead to rather peculiar results.
125
Still adrift in the Rubicon?
legislatures to respect the basic ethical choices taken by the political
community at its constitutive stage. They are closely related to the basic
substantive principles affirmed by the constitution as defining of the identity
of the political community.
Once again, the international origins of the European Communities go a long
way to explain the succinctness of the original Treaties on this matter. While
there was an explicit reference to the economic freedoms which underpinned
the common market objectives, the Treaties did not contain a catalogue of
fundamental rights, but two meager articles which enshrined the principles of
non-discrimination on the basis of nationality, and a circumscribed principle
of non-discrimination on a sexual basis. This did not prevent the Court from
proclaiming that the principle of protection of fundamental rights was one of
the basic principles of Community law, even if unwritten. This opened the way
for a jurisprudential elaboration of a catalogue of fundamental rights. This was
finally consolidated by a representative Convention which produced the
Charter of Fundamental Rights of the European Union. The Charter was
solemnly proclaimed by the Union institutions in December 2000, but was
not formally incorporated into primary Union law. This has not prevented
the Commission and the Parliament from considering themselves bound by
the Charter, or the invocation of the charter by the Court of First Instance,
the Advocates General of the Court of Justice, several national constitutional
courts and, last but obviously not least, the European Court of Human
Rights.
50
The first part of the Draft further elaborates on the values (Art. I-2) and
51
objectives (Art. I-3) of the European Union, paramount among which are
the fundamental rights enshrined in Part II of the Constitution.
50
The Union is founded on the values of respect for human dignity, freedom, democracy,
equality, the rule of law and respect for human rights, including the rights of persons belonging
to minorities. These values are common to the Member States in a society in which pluralism,
non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.
51
1) The Union's aim is to promote peace, its values and the well-being of its peoples.
2) The Union shall offer its citizens an area of freedom, security and justice without internal
frontiers, and an internal market where competition is free and undistorted.
3) The Union shall work for the sustainable development of Europe based on balanced
economic growth and price stability, a highly competitive social market economy, aiming at
full employment
and social progress, and a high level of protection and improvement of the quality of the
environment. It shall promote scientific and technological advance.
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This second part of the Draft Treaty formally incorporates into the
constitution of Union law the Charter of Fundamental Rights of the
European Union. It basically reproduces the text approved by the Charter
Convention, solemnly proclaimed in December 2000 immediately before the
52
Nice European Council.
The Charter of Rights reflects the basic principle of the indivisibility of
fundamental rights. Its Preamble, also reproduced in the Constitution, renders
clear that dignity, liberty, equality and solidarity are co-original founding
principles of Union law. This is reflected in the protection afforded not only
to civic and political, but also to social and economic rights (rights to
solidarity in the Charter parlance). The extent to which this results in
mandates to the legislature, depends on the construction of the Charter
provisions, and, very specifically, on the systematic interpretation of the
Charter together with the economic freedoms, now assigned constitutional
status (Art. I-4.1), the general clause on the protection of fundamental rights
(Art I-9), and the new horizontal provisions of the Charter (especially Art II111).
The conception of cultural community
A critical issue that divides constitutional scholars is whether a constitution
should rest upon a distinctive cultural value basis, which presupposes a
common sense of identity, or whether the constitution can be steeped in
It shall combat social exclusion and discrimination, and shall promote social justice and
protection, equality between women and men, solidarity between generations and protection
of the rights of the child.
It shall promote economic, social and territorial cohesion, and solidarity among Member States.
It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe's cultural
heritage is safeguarded and enhanced.
4) In its relations with the wider world, the Union shall uphold and promote its values and
interests. It shall contribute to peace, security, the sustainable development of the Earth,
solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the
protection of human rights, in particular children’s rights, as well as to the strict observance and
the development of international law, including respect for the principles of the United Nations
Charter.
5) The Union shall pursue its objectives by appropriate means commensurate with the
competences which are conferred upon it in the Constitution.
52
As is well-known, the Charter was not formally incorporated into the Treaties, but did have
legal bite, as it is a consolidation of the constitutional traditions common to the Member States,
and as such, part and parcel of Union law.
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127
trans-cultural norms and universal principles that can be agreed-upon across
cultures. Both law and culture are communal building-blocks. The
constitution as the fount for the constitutive norms of any given community
evokes those values and principles that are designative of that particular
community.
The Draft evokes the values and principles that are designative of the Union
as a particular political community. On the one hand, the Draft refers to a set
of universal principles on which the Union is founded. Article I-2 sets out
the values that the Union is founded on, namely human dignity, freedom,
53
democracy, equality , the rule of law and respect for human rights. The
Article 2 further notes that ‘[t]hese values are common to the Member States
in a society in which pluralism, non-discrimination, tolerance, justice,
solidarity and equality between women and men prevail’. Central to the
Union’s objectives is to ‘promote peace, its values and the well-being of its
peoples’ (I-3). The list is very similar to the one already established in
Amsterdam, and since then inscribed in the TEC; however, it is slightly
dissimilar from the one contained in the Preamble to the Charter, also
contained in the Draft. This universalistic impetus fits very well with the
definition of terms according to which the Union should relate to the world
at large: ‘In its relations with the wider world, the Union shall uphold and
promote its values and interests. It shall contribute to peace, security, the
sustainable development of the Earth, solidarity and mutual respect among
peoples, free and fair trade, eradication of poverty and the protection of
human rights, in particular the rights of the child, as well as to the strict
observance and the development of international law, including respect for
the principles of the United Nations Charter.’(Article I-3.4)
On the other hand, the Union affirms certain principles which identify it visà-vis other non-European polities. In Article 1.3 we find reference to the
social market economy, a peculiar term which evokes the image of the
welfare state – perhaps the most genuine European acquis in the view of
Europe’s citizens. Having said that, the Draft’s usage of the term ‘social
market economy’ is problematic, as it is used in combination with
‘competitiveness’ and ‘price stability’, both of which as we have noted are
bolstered and – privileged - by numerous specific provisions in the draft.
53
Equality was added in the final draft, after great pressure by numerous members of the
Convention.
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Moreover, the Union defines the parameters within which European identity
is to be forged, while also respecting the peculiar features of national
identities. The Union, through the pursuit of its objectives, is instructed to
foster unity and community and a sense of European attachment through
common European symbols, such as a European flag, a European anthem, a
common currency and a Europe-day (I-8). But it is also instructed to ‘respect
[Europe’s] rich cultural and linguistic diversity’, and further in a more active
sense it ‘shall ensure that Europe's cultural heritage is safeguarded and
enhanced.’(I-3.3) Presumably this also includes national identities, as Article
1-5 states that: ‘The Union shall respect … the national identities of its
Member States…’.
This particular mixture of universalistic and ethical values is reflected in the
definition of the conditions of accession to the Union. ‘The Union shall be
open to all European states which respect its values and are committed to
promoting them together’ (Article I-1).
Assessment
Competences
The Draft Treaty introduces a degree of formalisation of the division of
competences which, while not meeting all the requirements of the rightsbased conception, clearly goes beyond what could be expected from the
problem-solving conception of the Union.
As already noticed, much of the actual bite of the new provisions contained
in Part I of the Constitution will depend on how the different parts of the
Constitution will relate to each other, and more specifically, whether this will
entail a hierarchical ranking between Parts I, II and perhaps IV (deemed
constitutional parts proper), and Part III (detailed provisions on policies and
the functioning of the Union). But even if Part III is granted equal
constitutional status, which entails that the framing value of the general
competence provisions is relativised, it is quite clear that the new
constitutional ordering will curtail the Member States’ ability to serve as
Masters of the Treaties, and consequently, to direct the process of integration.
This becomes clear when contrasting the present Article TEC 308 with
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129
Article I-18 of the Draft. Competences can be Europeanised or renationalised
within the framework established by the Draft, but only in accordance with
specific procedures, and subject to the material limits stemming from a
54
systematic interpretation of the provisions of the Draft.
In itself, this indicates a clear move away from the problem-solving
conception. The general trend is for the principles of allocation of
competences in Union law to increasingly come to correspond with those
required by a rights-based conception of the Union’s constitution. First, the
Draft entrenches the principle of enumerated powers by means of explicitly
stating that if competences have not been conferred on the Union, they
remain with the Member States (Art. I-11). This introduces a first element of
formalisation of the division of powers among different levels of government,
and provides a first element to determine the condition (European, national
or regional citizenship) through which citizens will take decisions. This
constrains the flexibility of the arrangements cherished by the problemsolving conception, at the same time as it precludes the Union from
developing into a nation-state, as the value-based conception requires. This
indeed would have necessitated the existence of a residual powers clause.
Such a clause would have affirmed the opposite principle, namely that the
Union will be assigned all competences not expressly left in the hands of
Member States. Second, the Draft reinforces the judicial monitoring of the
division of powers between levels of government. Indeed, one of the main
54
As is well-known, Article TEC 308 establishes a last-resort competence basis for Community
acts based on the need to attain one of the objectives of the Community ‘in the course of the
operation of the common market’. Legislation is then subject to unanimous consent in the
Council, with the Parliament being consulted. Article I-18 introduces a new flexibility clause,
which grounds Union competence on the necessity to attain one of the objectives set in the
Constitution ‘within the framework of the policies of Part III’. What is different from present
law is that the Draft introduces additional procedural and substantive hurdles. On the
procedural hand, legislation adopted or concrete decisions undertaken under the new flexibility
clause are subject to a decision-making procedure which requires both the unanimous consent
of Member States and the consent of the European Parliament. On the substantive hand, the
Draft explicitly formulates that legislation adopted on the basis of I-18 cannot lead to the
harmonisation of Member States’ laws or regulations when the Constitution excludes such
harmonisation. Both procedural and substantive limits render it almost unfeasible to make use
of the flexibility provision as an alternative to Treaty amendment. Given the considerable risk
of overconstitutionalisation stemming from the lack of differentiation of Parts I and II and Parts
III in terms of constitutional status, the opportunity of the constitutional tightening of the
flexibility clause might be put into question. But our point here is a more limited one, namely,
that this points to a constitutionalisation of the division of powers.
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implications of the assignment of a direct role to national parliaments in the
Union law-making procedure is to increase the number of potential cases in
which the Court will be required to check compliance with the principle of
subsidiarity. As was indicated in Part II, national parliaments are granted a
right both to object to the proposal on subsidiarity and proportionality
grounds within a six-week time limit, and, if the proposal is turned into law
without changes which render it compliant with proportionality, to request
their national governments to contest the Euro-constitutionality of the law
before the European Court of Justice. While the judicialisation of conflicts on
competences is something which might be explained by problem-solving
conceptions as required on credibility grounds, it openly contradicts a valuebased conception of the Constitution of the Union.
Law-Making Procedures
Here we also find some elements which speak to the problem-solving
conception, while there are others that imply that this model has been
transcended, and further that the Draft moves the Union in a rights-based
direction.
The four main elements of the design of law-making procedures in the Draft
Treaty which speak to the problem-solving conception of the Union are: (1)
the numerous exceptions to the co-decision procedure, which ensure that
Member States keep on playing the sole decisive role in a large number of
areas; (2) the retention of purely intergovernmental procedures in much of
what used to be pillars two and three; (3) the development of institutional
structures associated with the Union’s intergovernmental dimension, which is
more likely after the changes to the Presidency of the European Council
First, there are many weighty exemptions to the co- decision procedure, so
many as to qualify the very notion of co-decision as the standard law-making
procedure (as this was set out in article I-33). This entails that there is a hard
core of subjects in which Member States retain sole legislative power, which
harmonizes with the problem-solving conception of the Union.
Second, the Draft retains, and perhaps even strengthens, aspects of the
Council-led (former pillars two and three) decision-making method. Such a
potential strengthening would derive from the increased use of QMV in the
Still adrift in the Rubicon?
131
Council, which is indeed elevated to the status of general voting principle
(Article I-23.3), while keeping Union institutions at bay in what remains of
the pillar procedures.
Third, the greatly extended tenure of the elected president of the European
Council (from the present system of half a year to a possible total of 5 years)
could also strengthen the Council. If this also means that the Council
55
develops a greatly strengthened institutional support structure, the net effect
could be a weakening of the Community method, which would indirectly
result in weakening the direct democratic legitimacy basis of Union law. This
would take the Union closer to the first model set out above. The problem
here is that increased use of qualified majority in the Council would
exacerbate the problem of retaining national democracy. Some of this would
be alleviated by another set of provisions in the Draft, namely the much
stricter and more encompassing transparency requirements (Article I-50, III399), which include provisions for the Council to conduct its deliberations in
public when serving in a legislative capacity.
A further point which might sustain traits of the problem-solving model refers
56
to the Draft’s retention of the existing system of Commission initiative. Such a
notion is however premised on the assumption that the Commission would
serve as an expert body, and would merely deal with pragmatic issues. Given
the Union’s consistently increased realm of action, such an assumption is
increasingly unrealistic. It also contravenes the increasingly democratic terms
57
of Commission – EP interaction. Nevertheless, Commission monopoly on
initiative is problematic from a democratic standpoint (ref. models two and
three), as it deprives the European strong public par excellence, the European
Parliament, of such a right. True, this is somehow alleviated by the fact that
the Commission is responsible to the European Parliament (Article I-26.8,
with reference to Article III-340). But the Commission is merely approved,
not designated, by the European Parliament, contrary to what could be
55
This was frequently referred to as a concern among Convention members. See Convention
plenary debates.
56
The Parliament can request the Commission to submit a proposal on any topic (III-332) but
the Commission decides as to whether it wants to do so. It is only obligated to inform the
Parliament of its decision.
57
As the recent Buttiglione imbroglio further testifies to.
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58
expected in a fully-fledged parliamentary system. Since the Commission
does not emanate from the Parliament and is not popularly elected, the
institutional mechanism that produces a legislative initiative is not explicitly
rooted in the European citizenry. In other words, one core component
required to ensure the notion of citizens as self-legislating is inadequately
developed. This conclusion is not greatly weakened by the right to popular
initiative (Article I-47.4). As already noticed, what this kind of popular
initiative boils down to is an invitation to the Commission to submit a
legislative proposal. The Commission remains free to do whatever it finds
59
suitable with such an initiative.
The important point to note here is that the relevant standard for assessing
inter-institutional relations has become the third model, even if it is far from
perfectly reflected in the positive provisions of the Draft.
This is also consistent with the general thrust of the Draft, which can be said
to push the Union further in the direction of the third model. This can be
argued on the basis of four decisions contained in the Draft Treaty, namely
(1) the affirmation of the principle of transparency of institutional lawmaking, which is extended to the Council of Ministers; (2) the affirmation of
co-decision as the standard legislative procedure; (3) improved national
executive control; and (4) increased derivative democratic legitimacy through
the assignment of a legislative role to national parliaments.
First, transparency: this weakens Member States control of the integration
process, and opens up for its politicization. Given that this is likely to bring in
non-pragmatic issues or redefine issues (bio-technology not only as an
efficient means of producing food but also as a profoundly important ethical
issue), the problem-solving system will fall short.
Second, despite the exceptions listed above, it is noteworthy that the Draft
presents co-decision as the standard law-making procedure in Union law (cf.
Articles I-33, III-302), for two reasons. First, this provision places the notion
58
The European Council proposes a candidate for President of the Commission to the
Parliament, who is adopted or rejected by the EP. Again consider the recent imbroglio
between the Parliament and the newly appointed Commission President Barroso.
59
Thus, this measure falls short of serving as an institutional vehicle to foster self-legislating
citizens.
Still adrift in the Rubicon?
133
of Union direct democratic legitimacy at the forefront and as a critical
standard. Second, the provision will likely increase the number of legal acts
approved by co-decision and will further empower the European Parliament.
These provisions in the Draft thus move the Union closer to the third model,
although it is also clear that they fall short of the criteria in the third model.
Third, when considered in relation to the three models, (and when viewed in
isolation from the issue of the division of powers), improved executive
accountability at the national level would increase the Union’s legitimacy in
relation to all the three models listed above. But the models differ in terms of
to whom such accountability foremost applies. The first model highlights the
parliamentary dimension, whereas the two latter models see parliaments (as
strong publics) and the general public as equally important.
Fourth, the Draft contains transparency provisions that will heighten
accountability to parliaments and to general publics. The public nature of the
Council’s legislative meetings will clearly enhance effective control on the
part of national parliaments, as national governments will not be able to hide
beneath vague appeals to consensus in order to depart from the mandate
established by national parliaments. The protocol on National Parliaments
compels the Commission to transmit to each national parliament the annual
legislative program, all Commission consultation documents, all legislative
proposals, and any other documents which it transmits to the European
Parliament and the European Council (see points 1 and 2 of the Parliaments’
Protocol). Presumably, then, each parliament would decide whether to make
these public.
Fifth, among the most publicized innovations of the Draft is the conferral of
certain powers to national parliaments within the European law-making
process. At present, the role of national parliaments in the European lawmaking process is wholly determined by national constitutional provisions. In
most cases, parliaments exert a controlling role over the national executive
when acting as national representative in the European Council, albeit one
that has generally not been seen as adequate to avoid executive dominance.
The strengthening of such a supervisory role of national parliaments will help
stall the undermining of democracy at the national, but presumably also at the
European level.
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Note that a strengthened role of national parliaments within the Union's lawmaking process is not necessarily compatible with the third model. Such
strengthening is actually foremost a case of the first model: to alleviate the
democratic deficit through executive dominance that this model almost
inevitably produces. With regard to the third model, including national
parliaments in the Union law-making process leads to confusion in the notion
of citizens as self-legislators: why should European citizens defer to national
citizens in such matters? Much of this boils down to the division of powers
and competences: when there is a system of clearly delineated competences at
each level, there is no real need for national parliamentary involvement in
Union law-making. But when such lines are hazy and greatly overlap, such as
is still the case with the Union, it might be necessary to supplement Union
law-making with national inputs. But for such a supplementing at all to be
compatible with the third model, it presupposes a way of harmonizing
60
national positions, which has not taken place.
Fundamental Rights
The formal inclusion of the Charter of Fundamental Rights is, indeed, one of
the potentially most transcendental decisions in the Draft. It is also the one
that most explicitly moves the Union in symbolic and substantive terms
beyond the problem-solving conception of the Union and its attendant
constitutional architecture.
By making the Charter of Fundamental Rights in the EU an explicit part of the
61
primary law of the Union, the Draft greatly raises the symbolic role and
visibility of fundamental rights. As we saw in Part II, Community law has
long been said to be founded on the principle of protection of fundamental
60
The almost unanimous embrace of the principle that the relation between national executives
and parliaments should be fully determined by national constitutional provisions confuses
formal and effective democratic sovereignty. The effective democratic sovereignty of national
parliaments, one could claim, depends on the existence of common norms established at the
European level. Such norms can be seen as formally impinging upon national sovereignty, but
in substantive terms they render it possible to establish the preconditions for the exercise of
national democratic sovereignty. The Draft in this respect falls short of the requirements in
models two and three.
61
See I-7: ‘Fundamental Rights’, which states that ‘The Union shall recognize the rights,
freedoms and principles set out in the Charter of Fundamental Rights which constitutes Part II
of the Constitution’ (CONV 850/03: 8).
Still adrift in the Rubicon?
135
rights, but the Charter signals that they are an intrinsic and outstanding part
of the EU constitutional edifice. Indeed, a resolve on the part of the EU to
make a Charter could be seen as an important stepping stone towards a
rights-based democratic constitution for Europe. The very notion of a
Charter of Rights can be said to be laden with constitutional symbolism. But
that of course presupposes that the Charter contains the requisite range of
rights and also that these operate – and are made to operate – in accordance
with the requirements of the third rights-based model.
The Charter is not different from, neither more constrained in its scope than,
conventional state-based Charters or Bills of Rights. If it has an outstanding
characteristic it is that of enshrining rights of the so-called fourth generation,
which deal with social problems which only the most recent constitutions
have had the chance to deal with, such as bioethics. Further, the strong onus
on solidarity and social rights in the Charter could – if pursued to the full –
provide the EU with a more explicit ethical foundation. The reformulation
of the substantive values at the foundation of Union law does not lead in
itself, quite obviously, to the establishment of different economic and social
policies, neither at the European nor at the national level. But it can in
fairness be said to open up political space. The Charter opens up the way to an
62
increased abstract weighting of fundamental rights in cases of conflict with
the basic economic freedoms enshrined in the Treaties (the so-called four
economic freedoms, and the principle of free competition laid down in
Articles 81 and 82 TEC). This is based on the fact that the Charter grants
fundamental status to what are usually labelled as civic, political and social
rights, while denying such status to the four basic economic freedoms, which
are to be seen as concretizations of wider and more abstract rights, such as the
right to private property. This has the consequence of shifting the scope of
what can be said to be constitutionally mandated by Union law. Since the late
63
seventies, the European Court of Justice has tended to argue that, next to
the explicit exceptions enumerated in the Treaties, the canon of exceptions to
economic freedoms should be determined through a systematic interpretation
62
R. Alexy, On Balancing and Subsumption. A Structural Comparison, 16 Ratio Juris (2003),
pp. 433-49, especially p. 440.
63
More specifically, since the judgment in Cassis de Dijon, Judgment in Case 120/78, Rewe v.
Bundesmonopolverwaltung für Branntwein, 1979 [ECR] 649.
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Fossum and Menéndez
64
of Community law as a whole. The Charter seems to reinforce such an
approach, by means of providing simultaneously normative guidance and
certainty (as fundamental rights provisions could be read as a numerus clausus
65
of exceptions). This approach can already be seen at work in the opinions of
Advocates General and in the judgments of the Court published after the
solemn proclamation of the Charter. This is clearly the case with the
66
judgment and the Opinion in Schmidberger , and might lead to a similar result
67
68
in Omega and Grøngaard. Moreover, the different abstract weighting of
64
K. Lenaerts and P. Van Nuffel, Constitutional Law of the European Union (London, Sweet and
Maxwell 1999), pp. 135ff. They label as the rule of reason the set of exceptions which the
Court has referred as ‘reasonable’ national measures in restraint of economic freedoms.
65
A.J. Menéndez, Three conceptions of the European constitution in: Eriksen et al., supra, fn 9.
66
See Case C-112/00, Opinion of the AG Jacobs delivered on 11 July, 2002, judgment of the
court was delivered on 12 June 2003. See 2003 [ECR] I-5659, par. 89: ‘This appears to be the
first case in which a Member State has invoked the necessity to protect fundamental rights to
justify a restriction of one of the fundamental freedoms of the Treaty. Such cases have perhaps
been rare because restrictions of the fundamental freedoms of the Treaty are normally imposed
not to protect the fundamental rights of individuals but on the ground of broader general
interest objectives such as public health or consumer protection. It is however conceivable that
such cases may become more frequent in the future: many of the grounds of justification
currently recognised by the Court could also be formulated as being based on fundamental
rights considerations’; and par. 95: ‘In such a case the Court in my view should follow the same
two-step approach as the analysis of the traditional grounds of justification such as public policy
or public security which are also based on the specific situation in the Member State
concerned. It must therefore be established (a) whether in relying on the particular fundamental
rights recognised in Austrian law in issue, Austria is, as a matter of Community law, pursuing a
legitimate objective in the public interest capable of justifying a restriction on a fundamental
Treaty freedom; and (b) if so, whether the restriction in issue is proportionate to the objective
pursued’.
67
Affaire C-36/02, Omega Spielhallen- und Automatenaufstellungsgesellschaft mbH contre
Oberbürgermeisterin der Bundesstadt Bonn, opinion of AG Stix-Hackl, delivered on 18 March
2004, not yet reported. The case concerned the conflict between the right to provide services
(more specifically, the service of playing a game in a ‘laserdrome’ where players obtained points
when ‘killing’ human targets) and the right to dignity, as interpreted within the German
constitutional tradition. In general, theoretical terms, paragraph 50 of the Opinion is of special
interest, as the AG here hints at the question of the higher abstract value of fundamental rights:
‘Cependant, il vaudrait la peine de se demander si, eu égard aux valeurs protégées par les droits
de l'homme et les droits fondamentaux, à l'image de la Communauté en tant que Communauté
fondée sur le respect de ces droits et, surtout, à la référence - imposée par l'opinion
actuellement prévalente - à la protection des droits de l'homme en tant que condition de la
légitimité de toute forme d'organisation de l'État, il ne serait pas possible de reconnaître aux
droits fondamentaux et aux droits de l'homme une certaine primauté sur le droit originaire
«général». Toutefois, les libertés fondamentales peuvent, au moins dans une certaine mesure,
parfaitement être considérées sur un plan matériel comme des droits fondamentaux: en tant
Still adrift in the Rubicon?
137
fundamental rights versus economic freedoms propitiated by the Charter
might lead to a different structuring of the weighing and balancing of them in
case of conflict, and more specifically, to the shifting of the burden of
argumentation in favour of fundamental rights, and against economic
freedom. Advocate General Geehoeld seems to be pointing in this direction
6970
in her Opinion in American Tobacco.
Having said that, there are aspects of its drafting and its perceived role in the
EU that affect the salience of the Fundamental Rights provisions of the
Treaty to serve as vehicles for the rights-based conception of the Union.
First, the Charter does not abrogate the aspect of differentiated citizenship
that inheres from the fact that access to EU citizenship is conditioned on
national citizenship and subject to national rules of incorporation, but it
might narrow it considerably. Second, provisions on citizens’ public
71
autonomy in the Charter are rather weak, and in themselves do not allow to
claim that the citizen has been placed at the core of the process of European
integration. This is further confirmed by provisions on citizens’ rights
contained in the first part, as already noticed when considering Union lawmaking processes. Third, rights to solidarity are granted a weaker status and
qu'elles énoncent des interdictions de discrimination par exemple, elles doivent être considérées
comme des expressions particulières du principe général d'égalité . Ainsi, un conflit de normes
entre les libertés fondamentales consacrées par le traité et les droits fondamentaux et droits de
l'homme peut, dans certains cas au moins, également être un conflit opposant des droits
fondamentaux.’
68
Case C-384/02, Anklagemyndigheden v Knud Grøngaard Allan Bang, Opinion of Advocate
General Poiares Maduro, of 25 May 2004, not yet reported.
69
Case C-491/01, The Queen v. Secretary of State for Health ex parte: American Tobacco
(Investments) Ltd and Imperial Tobacco Ltd, supported by: Japan Tobacco Inc. and JT International SA.
Opinion delivered on 10 September 2002, [ECR] I-11453. Cf. paragraph 106: ‘In other words,
the realisation of the internal market may mean that a particular public interest – such as here
public health – is dealt with at the level of the European Union. In this, the interest of the
internal market is not yet the principal objective of a Community measure. The realisation of
the internal market simply determines the level at which another public interest is safeguarded’
(our emphasis).
70
A clear example in that regard would be provided if Finland, after having been forced under
the principle of free movement of goods to reduce the duties on alcoholic beverages, would
increase them again in the name of public health, a national policy objective now sheltered by
Article 35 of the Charter.
71
Some of the more than 30 constitutional proposals that have been submitted to the
Convention contain citizenship provisions that could rectify this. See for instance MEP Jo
Leinen’s draft proposal entitled Draft Constitution of the European Union, Brussels: European
Parliament, October 2002.
138
Fossum and Menéndez
protection than civic rights, and very especially, the right to private property.
This has the implication that the former should be considered as setting
exceptions to the breadth and scope of economic freedoms, and as such, be
more ‘valuable’ in the protection of fundamental collective goods, over that
of serving as fundamental subjective rights. In other words, there is a risk of
civic rights becoming instrumentalised. Fourth, the horizontal clauses (and to
some extent the onus on interpreting it in line with the explanations provided
by the Charter Convention) clearly restrict its scope of application. This is
especially so after the actual drafting changes introduced in the Charter as
solemnly proclaimed in 2000 by the Laeken Convention, and later endorsed
by the IGC.
Moreover, some of the potentialities of the Charter are limited by some of
the general provisions in the first part of the Draft. It could be argued that
certain provisions curtail the opening of political space envisioned by the very
presence of the Charter. Indeed, the Draft grants constitutional status to
values that undermine the actual legal force of socio-economic fundamental
rights and principles. Two main observations are due in this respect: (a)
72
While the Preamble of the Charter enshrined dignity, freedom, equality and
solidarity as the grounding principles of Union law, Article 2 of the Draft
Constitution offers a longer, more prolix and at the same time narrower
definition of such principles (‘respect of human dignity, liberty, democracy,
equality, the rule of law and respect of human rights, including the rights of
persons belonging to minorities’). We already noticed this discrepancy in Part
II. It is now proper to highlight that in Article I-2 solidarity is relegated to
the condition of a second-rank principle, together with pluralism, tolerance,
73
justice, and equality between men and women ; (b) Article I-3 tilts the
balance in favour of economic freedoms when determining the objectives to
be aimed at by the Union. Such a market bias was already present in the
Convention draft, although not so much in this Article, but in the assignment
72
It goes without saying that the Charter, preamble included, is part and parcel of the Draft
Treaty. However, the Convention rejected the suggestion made by some members of the
Charter Convention of making use of the preamble to the Charter as preamble to the Draft
Constitution and, obviously enough, the Charter is Part II of the Draft Treaty, as there was no
agreement, but open opposition, to its inclusion within the text of Part I.
73
The IGC substituted ‘non-discrimination’ by ‘equality between men and women’, something
which, in our view, has the positive effect of highlighting the importance of sex equality, while
constraining the scope of the inequalities which should be fought within the legal order of the
Union.
Still adrift in the Rubicon?
139
of constitutional status to Part III. It must be granted that the formula ‘social
market economy’ was rather bland and a trifle ambivalent (as it was qualified
74
by the reference to the simultaneous aim of high competitiveness). The IGC
Draft has further decaffeinated the Article, by means of requesting the Union
to strive at ‘a highly competitive social market economy’, and by means of
inserting a specific reference to the objective of ‘price stability’. It is difficult
not to come to the conclusion that this indicates a further entrenching of the
present Union’ definition of its socio-economic model, a process that helps
further shift the balance in favour of the market dimension, to the detriment
of the political and social dimensions.
Cultural community
The Draft speaks to the Union as something more and distinctly different
from that of a mere problem-solving entity. It nevertheless does also, as the
problem-solving model presupposes, affirm respect for national and regional
identities, as well as provide safeguards for their retention.
But the literal tenor of the Draft is not a mere subtle front or veil for
something less impressive and less unique, and which will serve as a mere
functional vehicle for and appendix to, a Europe of nation-states. It goes
much further and explicitly depicts the Union as a community of values. The
preamble speaks to the ‘cultural, religious and humanist inheritance of
Europe’, which the Union draws on. This gives a foundation not only for
Europe as idea, but also for a European identity. This sense of identity takes
credence from and is to be rooted in a set of common symbols (Article I-8).
Together these can serve to evoke a sense of Europeanness.
But the Draft cannot be construed as a vehicle for the forging of a European
value community on a par with that of a nation-state. As was shown above,
the Union is set up as a value community based on a set of provisions that
speak to the Union as a community steeped in a set of universal values and
principles. The preamble tellingly speaks of how the European traditions have
given rise to and have helped propound ‘the universal values of the inviolable
and inalienable rights of the human person, freedom, democracy, equality,
and the rule of law’. The preamble speaks as much to what Europe has
74
See C. Joerges, Social Market Economy as Europe’s Social Model?, EUI Working Paper
LAW 8/04, (Florence, European University Institute 2004).
140
Fossum and Menéndez
contributed to the world, Europe’s outward projection, and to Europe’s
responsibilities to the world, as it speaks to the affirmation of Europe’s
identity. Indeed, this combination of inward assertion and outward projection
of moral values is far more reminiscent of a cosmopolitan than of a national
sense of community. There is no reference to an explicit European value basis,
75
neither in the articles nor in the preamble. The common values that the
Union evokes are the ones we generally associate with the spirit of
constitutional patriotism.
To get a better sense of its rights-based cosmopolitan vs. value-communal
imprint, we should consider first the inward assertion of values espoused by
the Union. Here it is natural to start with clarifying the relation between the
values espoused by the Union and the notion of constitutional patriotism
because this is so central to the rights-based model. Constitutional patriotism
as mode of allegiance is such framed as to elicit support and emotional
attachment, precisely because the universalistic principles that form its core
are embedded within a particular context. People’s attachments are derived from
the manner in which a set of universal principles are interpreted and
entrenched within a particular institutional setting. The Draft does not spell
out a common European context in a cultural sense. There is no reference to
a common language, ethnicity or distinctly European history that these
principles are steeped within.
The type of community we can discern from the Draft is thus not
monolithic, but is better thought of as a complex, composite community. It
could be conceived of as a ‘community of communities’, as is well expressed
in the Union’s motto of ‘united in diversity’.
75
The underlying philosophical orientation of the Charter is that of constitutional patriotism
(J.E. Fossum, The European Charter – Between Deep Diversity and Constitutional Patriotism
in: E.O. Eriksen, J.E. Fossum and A.J. Menéndez (eds), The Chartering of Europe: The Charter of
Fundamental Rights and its Constitutional Implications (Baden-Baden, Nomos 2003). The values
listed in the preamble of the Charter (which was retained in the Draft, hence leaving the Draft
with two preambles, one for the whole Constitution and one for the Charter) refer to a
conception of the EU as based on a set of universal principles. Its commitment is to the
principles and values of democracy and the rule of law, and not to a set of specific and uniquely
European values. BUT NOTE: The German language version of the Charter deviates from the
rest with its reference to Europe’s religious rather than spiritual heritage cf. J. Schönlau, New
Values for Europe? Deliberation, Compromise, and Coercion in Drafting the Preamble to the
EU Charter of Fundamental Rights, in: Eriksen et al., ibid, p. 130.
Still adrift in the Rubicon?
141
Consistent with this motto the Draft seeks to fuse the universalist value
orientation that has marked the EU from its inception with a set of statements
and concrete provisions that speak to the need for the Union to ‘respect its
rich cultural and linguistic diversity…’ (I-3.3). The question is whether this
also entails that the Union is foremost about propounding difference and
diversity, in other words, that it is united only in its salutation of difference.
Article 1-5 stated that: ‘The Union shall respect the equality of Member
States before the Constitution and the national identities of its Member
States’. This article underlined that the Union has a strong nation-state
presence, and further that its retention is valuable. However, it is also
noteworthy and entirely consistent with the above that it is the institutional
over the cultural dimension of national identity that is emphasized.
In one reading this can be construed as the Draft propounding constitutional
patriotism at the national level, whilst it actually propounds national diversity
at the European level. But it could also be argued that the result might serve
as a restriction on the pursuit of diversity and serve as a de facto further
vehicle of ensuring the inclusiveness necessary to sustain European cooperation. In sum, the inward assertion of values is consistent with
constitutional patriotism but in a ‘thin’ rights-reflexive trapping. In a sense
this is the most genuine reflection of how the rights-based democratic spirit
of the common constitutional traditions has come to permeate European
thinking.
Furthermore, the Union reinforces the rights-based orientation in its outward
projection of values. Whereas the nation-state is janus-faced, the Union’s two
faces are far better combined, although in a contextualised manner. Consider
the provisions for membership. Article I-1 states that: ‘The Union shall be
open to all European states which respect its values and are committed to
promoting them together’. The referral to European states serves as a clear
restriction, whereas the values otherwise referred to are universal. This
provision is also an explication of Union practice, a practice where the Union
has strengthened the onus on basic rights, the rule of law and democracy,
76
over time.
76
H.Sjursen and K. Smith, Justifying EU Foreign Policy: The Logics Underpinning EU
Enlargement, ARENA Working Paper 01/1 (Oslo, ARENA 2001).
142
Fossum and Menéndez
To sum up, in cultural community terms the draft ended up appealing to the
same complex of universality and difference as is found in the most recent
treaties. The text of the Draft and its provisions come closest to the third,
rights-based, model.
Conclusions
This paper had three main aims, which correspond to its three main parts.
First, we developed three main conceptions of a legitimate European Union
and presented the implications that the application of each such would have
on the substantive contents of the Union’s constitution. This allowed us to
establish a set of six constitutional markers, based on the reconstruction and
systematisation of the constitutional claims associated with each of the three
77
conceptions of the Union. Second, we offered a description of the
78
substantive contents of the Draft on four out of these six topics. This
assumed knowledge of the actual contents of Treaty law, although at some
points it was found convenient to render that explicit, especially as our
reconstruction also has to be innovative, and as it is pursued from a
perspective which is not necessarily part of the mainstream (as on what
concerns the analysis of law-making processes in Union law). This allowed us
to get a sense of the main innovations that would result from the entry into
force of the Draft. Third, we sought to establish to which conception of the
Union that the contents of the Draft speak. We did so both in static terms
(that is, by considering which conception of the Union is better captured by
the present contents of the Draft) and in dynamic terms (trying to determine
what is the pattern of evolution).
One caveat is particularly called for here, and which pertains in particular to
the second model. The strong evolutionary component embedded in this
value-based conception of constitution means that it is particularly hard to
establish whether the constitutional draft properly embodies the core tenets of
this conception of the legitimacy of the EU. To do so properly we would
have needed also to focus on what may be labeled the constitutional support
structure, i.e. the strength of European identification and underlying sense of
77
We are very conscious of the tentative character of the exercise, and also of the need to show
the empirical salience of such markers (for example, by documenting their use in the Laeken
Convention).
78
The limitation is due to the usual time constraints.
Still adrift in the Rubicon?
143
European community. Our analysis did speak to how this document
conceives of the Union as community, and how it projects its relations to the
citizens, but our analysis of the Draft did not yield much in terms of whether
this projection will converge with or diverge from the identifications and
communities that make up Europe.
With this necessary proviso, we have reached the following conclusions. First,
the Union has clearly transcended beyond the problem-solving conception,
and the Draft underlines this in both symbolic and substantive terms. It has
become practice to substantiate such a claim on the open constitutional
character of the Laeken process, which implies a level of politicisation and
procedural democracy that far exceeds the assumptions of the
intergovernmental, neo-functional and regulatory conceptions of the Union.
But by means of considering the different markers that we established in this
paper, we are able to set forth a more grounded and detailed challenge to
these conceptions of the Union. The Draft entails a formalisation of the
norms which allocate competences among the Union and the Member States,
the affirmation of direct legitimacy and parliamentary democratic legitimacy
as the pillars of the democratic legitimacy of Union law, the formal
incorporation of a catalogue of fundamental rights binding all institutions
acting within the scope of Union law, and the constitutionalisation of key
elements of European identity. This conclusion does not deny the fact that
there are many features of the substantive constitutional order to be
established by the Draft that will still reflect the Union’s roots in an
international organisation. We have also demonstrated that the Union still
retains some elements of a problem-solving organisation. The key issue is
whether the Draft can be taken in such a direction as to ostracise these.
Second, and related to this, we have tried to give some sense of the direction
of change. Our main finding is that the Draft does not merely simplify or
solidify the Union in its present status but is evocative of an entity that is still
very much in motion. We have established that the most appropriate
direction is from problem-solving to either value-based or rights-based polity.
In that regard, we found that the substantive contents of the Draft speak more
clearly to the rights-based conception of the Union than to the value-based
one. This is reflected in the combined willingness to formalise and further
enrich the common institutional structures and foundational values of the
Union, while retaining a complex, federal-type political structure, and which
144
Fossum and Menéndez
is also still quite different from what would be the case in a nation-state
building process.
Our finding to the effect that the Draft foremost embraces the rights-based
model should not be construed as a statement to the effect that values do not
count or that the Union is not overly concerned with values. Rather, as we
have tried to show, it underlines the forward-looking and still
experimentative character of the Union, as a particularly apt test case of how
institutional development can foster a sense of community where the
requisite ingredients that communitarians always stress are patently not
present. The findings on this process that is unfolding in Europe will have
deep implications for the world. What is also manifestly clear is that current
European developments, in their non-state and hence more fragile nature,
also are critically dependent on global developments. Perhaps this fact itself is
testimony to the underlying cosmopolitan urge that is so deeply entrenched
in this European project.
ANNEX
TREATY ESTABLISHING A
CONSTITUTION FOR EUROPE1
(Parts I and II)
1
As published in Official Journal of the European Union: OJ C 310/1-474,
16.12.2004.
146
Constitutional Treaty Part I and II
PREAMBLE
HIS MAJESTY THE KING OF THE BELGIANS, THE PRESIDENT OF
THE CZECH REPUBLIC, HER MAJESTY THE QUEEN OF
DENMARK, THE PRESIDENT OF THE FEDERAL REPUBLIC OF
GERMANY, THE PRESIDENT OF THE REPUBLIC OF ESTONIA,
THE PRESIDENT OF THE HELLENIC REPUBLIC, HIS MAJESTY
THE KING OF SPAIN, THE PRESIDENT OF THE FRENCH
REPUBLIC, THE PRESIDENT OF IRELAND, THE PRESIDENT OF
THE ITALIAN REPUBLIC, THE PRESIDENT OF THE REPUBLIC OF
CYPRUS, THE PRESIDENT OF THE REPUBLIC OF LATVIA, THE
PRESIDENT OF THE REPUBLIC OF LITHUANIA, HIS ROYAL
HIGHNESS THE GRAND DUKE OF LUXEMBOURG, THE
PRESIDENT OF THE REPUBLIC OF HUNGARY, THE PRESIDENT
OF MALTA, HER MAJESTY THE QUEEN OF THE NETHERLANDS,
THE FEDERAL PRESIDENT OF THE REPUBLIC OF AUSTRIA, THE
PRESIDENT OF THE REPUBLIC OF POLAND, THE PRESIDENT
OF THE PORTUGUESE REPUBLIC, THE PRESIDENT OF THE
REPUBLIC OF SLOVENIA, THE PRESIDENT OF THE SLOVAK
REPUBLIC, THE PRESIDENT OF THE REPUBLIC OF FINLAND,
THE GOVERNMENT OF THE KINGDOM OF SWEDEN, HER
MAJESTY THE QUEEN OF THE UNITED KINGDOM OF GREAT
BRITAIN AND NORTHERN IRELAND,
Annex
147
DRAWING INSPIRATION from the cultural, religious and humanist
inheritance of Europe, from which have developed the universal values of the
inviolable and inalienable rights of the human person, freedom, democracy,
equality and the rule of law,
BELIEVING that Europe, reunited after bitter experiences, intends to
continue along the path of civilisation, progress and prosperity, for the good
of all its inhabitants, including the weakest and most deprived; that it wishes
to remain a continent open to culture, learning and social progress; and that it
wishes to deepen the democratic and transparent nature of its public life, and
to strive for peace, justice and solidarity throughout the world,
CONVINCED that, while remaining proud of their own national identities
and history, the peoples of Europe are determined to transcend their former
divisions and, united ever more closely, to forge a common destiny,
CONVINCED that, thus "United in diversity", Europe offers them the best
chance of pursuing, with due regard for the rights of each individual and in
awareness of their responsibilities towards future generations and the Earth,
the great venture which makes of it a special area of human hope,
DETERMINED to continue the work accomplished within the framework
of the Treaties establishing the European Communities and the Treaty on
European Union, by ensuring the continuity of the Community acquis,
GRATEFUL to the members of the European Convention for having
prepared the draft of this Constitution on behalf of the citizens and States of
Europe,
148
Constitutional Treaty Part I and II
HAVE DESIGNATED AS THEIR PLENIPOTENTIARIES:
HIS MAJESTY THE KING OF THE BELGIANS,
Guy VERHOFSTADT
Prime Minister
Karel DE GUCHT
Minister for Foreign Affairs
THE PRESIDENT OF THE CZECH REPUBLIC,
Stanislav GROSS
Prime Minister
Cyril SVOBODA
Minister for Foreign Affairs
HER MAJESTY THE QUEEN OF DENMARK,
Anders Fogh RASMUSSEN
Prime Minister
Per Stig MØLLER
Minister for Foreign Affairs
THE PRESIDENT OF THE FEDERAL REPUBLIC OF GERMANY,
Gerhard SCHRÖDER
Federal Chancellor
Joseph FISCHER
Federal Minister for Foreign Affairs and Deputy Federal Chancellor
Annex
THE PRESIDENT OF THE REPUBLIC OF ESTONIA,
Juhan PARTS
Prime Minister
Kristiina OJULAND
Minister for Foreign Affairs
THE PRESIDENT OF THE HELLENIC REPUBLIC,
Kostas KARAMANLIS
Prime Minister
Petros G. MOLYVIATIS
Minister of Foreign Affairs
HIS MAJESTY THE KING OF SPAIN,
José Luis RODRÍGUEZ ZAPATERO
President of the Government
Miguel Angel MORATINOS CUYAUBÉ
Minister for External Affairs and Cooperation
THE PRESIDENT OF THE FRENCH REPUBLIC,
Jacques CHIRAC
President
Jean-Pierre RAFFARIN
Prime Minister
Michel BARNIER
Minister for Foreign Affairs
149
150
Constitutional Treaty Part I and II
THE PRESIDENT OF IRELAND,
Bertie AHERN
Taoiseach
Dermot AHERN
Minister for Foreign Affairs
THE PRESIDENT OF THE ITALIAN REPUBLIC,
Silvio BERLUSCONI
Prime Minister
Franco FRATTINI
Minister for Foreign Affairs
THE PRESIDENT OF THE REPUBLIC OF CYPRUS,
Tassos PAPADOPOULOS
President
George IACOVOU
Minister for Foreign Affairs
THE PRESIDENT OF THE REPUBLIC OF LATVIA,
Vaira VIKE FREIBERGA
President
Indulis EMSIS
Prime Minister
Artis PABRIKS
Minister for Foreign Affairs
Annex
151
THE PRESIDENT OF THE REPUBLIC OF LITHUANIA,
Valdas ADAMKUS
President
Algirdas Mykolas BRAZAUSKAS
Prime Minister
Antanas VALIONIS
Minister of Foreign Affairs
HIS ROYAL HIGHNESS THE GRAND DUKE OF LUXEMBOURG,
Jean-Claude JUNCKER
Prime Minister, Ministre d'Etat
Jean ASSELBORN
Deputy Prime Minister, Minister for Foreign Affairs and Immigration
THE PRESIDENT OF THE REPUBLIC OF HUNGARY,
Ferenc GYURCSÁNY
Prime Minister
László KOVÁCS
Minister for Foreign Affairs
THE PRESIDENT OF MALTA,
The Hon Lawrence GONZI
Prime Minister
The Hon Michael FRENDO
Minister for Foreign Affairs
152
Constitutional Treaty Part I and II
HER MAJESTY THE QUEEN OF THE NETHERLANDS,
Dr. J. P. BALKENENDE
Prime Minister
Dr. B. R. BOT
Minister for Foreign Affairs
THE FEDERAL PRESIDENT OF THE REPUBLIC OF AUSTRIA,
Dr. Wolfgang SCHÜSSEL
Federal Chancellor
Dr. Ursula PLASSNIK
Federal Minister for Foreign Affairs
THE PRESIDENT OF THE REPUBLIC OF POLAND,
Marek BELKA
Prime Minister
Włodzimierz CIMOSZEWICZ
Minister for Foreign Affairs
THE PRESIDENT OF THE PORTUGUESE REPUBLIC,
Pedro Miguel DE SANTANA LOPES
Prime Minister
António Victor MARTINS MONTEIRO
Minister for Foreign Affairs and the Portuguese Communities
Annex
THE PRESIDENT OF THE REPUBLIC OF SLOVENIA,
Anton ROP
President of the Government
Ivo VAJGL
Minister for Foreign Affairs
THE PRESIDENT OF THE SLOVAK REPUBLIC,
Mikuláš DZURINDA
Prime Minister
Eduard KUKAN
Minister for Foreign Affairs
THE PRESIDENT OF THE REPUBLIC OF FINLAND,
Matti VANHANEN
Prime Minister
Erkki TUOMIOJA
Minister for Foreign Affairs
THE GOVERNMENT OF THE KINGDOM OF SWEDEN,
Göran PERSSON
Prime Minister
Laila FREIVALDS
Minister for Foreign Affairs
153
154
Constitutional Treaty Part I and II
HER MAJESTY THE QUEEN OF THE UNITED KINGDOM OF
GREAT BRITAIN AND NORTHERN IRELAND,
The Rt. Hon Tony BLAIR
Prime Minister
The Rt. Hon Jack STRAW
Secretary of State for Foreign and Commonwealth Affairs
WHO, having exchanged their full powers, found in good and due form,
have agreed as follows:
155
Annex
PART I
TITLE I
DEFINITION AND OBJECTIVES OF THE UNION
Article I-1
Establishment of the Union
1. Reflecting the will of the citizens and States of Europe to build a common
future, this Constitution establishes the European Union, on which the
Member States confer competences to attain objectives they have in common.
The Union shall coordinate the policies by which the Member States aim to
achieve these objectives, and shall exercise on a Community basis the
competences they confer on it.
2. The Union shall be open to all European States which respect its values and
are committed to promoting them together.
Article I-2
The Union's values
The Union is founded on the values of respect for human dignity, freedom,
democracy, equality, the rule of law and respect for human rights, including
the rights of persons belonging to minorities. These values are common to the
Member States in a society in which pluralism, non-discrimination, tolerance,
justice, solidarity and equality between women and men prevail.
Article I-3
The Union's objectives
1. The Union's aim is to promote peace, its values and the well-being of its
peoples.
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Constitutional Treaty Part I and II
2. The Union shall offer its citizens an area of freedom, security and justice
without internal frontiers, and an internal market where competition is free
and undistorted.
3. The Union shall work for the sustainable development of Europe based on
balanced economic growth and price stability, a highly competitive social
market economy, aiming at full employment and social progress, and a high
level of protection and improvement of the quality of the environment. It
shall promote scientific and technological advance.
It shall combat social exclusion and discrimination, and shall promote social
justice and protection, equality between women and men, solidarity between
generations and protection of the rights of the child.
It shall promote economic, social and territorial cohesion, and solidarity
among Member States.
It shall respect its rich cultural and linguistic diversity, and shall ensure that
Europe's cultural heritage is safeguarded and enhanced.
4. In its relations with the wider world, the Union shall uphold and promote
its values and interests. It shall contribute to peace, security, the sustainable
development of the Earth, solidarity and mutual respect among peoples, free
and fair trade, eradication of poverty and the protection of human rights, in
particular the rights of the child, as well as to the strict observance and the
development of international law, including respect for the principles of the
United Nations Charter.
5. The Union shall pursue its objectives by appropriate means commensurate
with the competences which are conferred upon it in the Constitution.
Article I-4
Fundamental freedoms and non-discrimination
1. The free movement of persons, services, goods and capital, and freedom of
establishment shall be guaranteed within and by the Union, in accordance
with the Constitution.
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2. Within the scope of the Constitution, and without prejudice to any of its
specific provisions, any discrimination on grounds of nationality shall be
prohibited.
Article I-5
Relations between the Union and the Member States
1. The Union shall respect the equality of Member States before the
Constitution as well as their national identities, inherent in their fundamental
structures, political and constitutional, inclusive of regional and local selfgovernment. It shall respect their essential State functions, including ensuring
the territorial integrity of the State, maintaining law and order and
safeguarding national security.
2. Pursuant to the principle of sincere cooperation, the Union and the
Member States shall, in full mutual respect, assist each other in carrying out
tasks which flow from the Constitution.
The Member States shall take any appropriate measure, general or particular,
to ensure fulfilment of the obligations arising out of the Constitution or
resulting from the acts of the institutions of the Union.
The Member States shall facilitate the achievement of the Union's tasks and
refrain from any measure which could jeopardise the attainment of the
Union's objectives.
Article I-6
Union law
The Constitution and law adopted by the institutions of the Union in
exercising competences conferred on it shall have primacy over the law of the
Member States.
Article I-7
Legal personality
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The Union shall have legal personality.
Article I-8
The symbols of the Union
The flag of the Union shall be a circle of twelve golden stars on a blue
background.
The anthem of the Union shall be based on the "Ode to Joy" from the Ninth
Symphony by Ludwig van Beethoven.
The motto of the Union shall be: "United in diversity".
The currency of the Union shall be the euro.
Europe day shall be celebrated on 9 May throughout the Union.
TITLE II
FUNDAMENTAL RIGHTS AND CITIZENSHIP OF THE UNION
Article I-9
Fundamental rights
1. The Union shall recognise the rights, freedoms and principles set out in the
Charter of Fundamental Rights which constitutes Part II.
2. The Union shall accede to the European Convention for the Protection of
Human Rights and Fundamental Freedoms. Such accession shall not affect the
Union's competences as defined in the Constitution.
3. Fundamental rights, as guaranteed by the European Convention for the
Protection of Human Rights and Fundamental Freedoms and as they result
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from the constitutional traditions common to the Member States, shall
constitute general principles of the Union's law.
Article I-10
Citizenship of the Union
1. Every national of a Member State shall be a citizen of the Union.
Citizenship of the Union shall be additional to national citizenship and shall
not replace it.
2. Citizens of the Union shall enjoy the rights and be subject to the duties
provided for in the Constitution. They shall have:
(a) the right to move and reside freely within the territory of the Member
States;
(b) the right to vote and to stand as candidates in elections to the European
Parliament and in municipal elections in their Member State of residence,
under the same conditions as nationals of that State;
(c) the right to enjoy, in the territory of a third country in which the
Member State of which they are nationals is not represented, the
protection of the diplomatic and consular authorities of any Member State
on the same conditions as the nationals of that State;
(d) the right to petition the European Parliament, to apply to the European
Ombudsman, and to address the institutions and advisory bodies of the
Union in any of the Constitution's languages and to obtain a reply in the
same language.
These rights shall be exercised in accordance with the conditions and limits
defined by the Constitution and by the measures adopted thereunder.
TITLE III
UNION COMPETENCES
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Article I-11
Fundamental principles
1. The limits of Union competences are governed by the principle of
conferral. The use of Union competences is governed by the principles of
subsidiarity and proportionality.
2. Under the principle of conferral, the Union shall act within the limits of
the competences conferred upon it by the Member States in the Constitution
to attain the objectives set out in the Constitution. Competences not
conferred upon the Union in the Constitution remain with the Member
States.
3. Under the principle of subsidiarity, in areas which do not fall within its
exclusive competence, the Union shall act only if and insofar as the objectives
of the proposed action cannot be sufficiently achieved by the Member States,
either at central level or at regional and local level, but can rather, by reason
of the scale or effects of the proposed action, be better achieved at Union
level.
The institutions of the Union shall apply the principle of subsidiarity as laid
down in the Protocol on the application of the principles of subsidiarity and
proportionality. National Parliaments shall ensure compliance with that
principle in accordance with the procedure set out in that Protocol.
4. Under the principle of proportionality, the content and form of Union
action shall not exceed what is necessary to achieve the objectives of the
Constitution.
The institutions of the Union shall apply the principle of proportionality as
laid down in the Protocol on the application of the principles of subsidiarity
and proportionality.
Article I-12
Categories of competence
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1. When the Constitution confers on the Union exclusive competence in a
specific area, only the Union may legislate and adopt legally binding acts, the
Member States being able to do so themselves only if so empowered by the
Union or for the implementation of Union acts.
2. When the Constitution confers on the Union a competence shared with
the Member States in a specific area, the Union and the Member States may
legislate and adopt legally binding acts in that area. The Member States shall
exercise their competence to the extent that the Union has not exercised, or
has decided to cease exercising, its competence.
3. The Member States shall coordinate their economic and employment
policies within arrangements as determined by Part III, which the Union shall
have competence to provide.
4. The Union shall have competence to define and implement a common
foreign and security policy, including the progressive framing of a common
defence policy.
5. In certain areas and under the conditions laid down in the Constitution,
the Union shall have competence to carry out actions to support, coordinate
or supplement the actions of the Member States, without thereby superseding
their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions in
Part III relating to these areas shall not entail harmonisation of Member States'
laws or regulations.
6. The scope of and arrangements for exercising the Union's competences
shall be determined by the provisions relating to each area in Part III.
Article I-13
Areas of exclusive competence
1. The Union shall have exclusive competence in the following areas:
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(a) customs union;
(b) the establishing of the competition rules necessary for the functioning of
the internal market;
(c) monetary policy for the Member States whose currency is the euro;
(d) the conservation of marine biological resources under the common
fisheries policy;
(e) common commercial policy.
2. The Union shall also have exclusive competence for the conclusion of an
international agreement when its conclusion is provided for in a legislative act
of the Union or is necessary to enable the Union to exercise its internal
competence, or insofar as its conclusion may affect common rules or alter
their scope.
Article I-14
Areas of shared competence
1. The Union shall share competence with the Member States where the
Constitution confers on it a competence which does not relate to the areas
referred to in Articles I-13 and I-17.
2. Shared competence between the Union and the Member States applies in
the following principal areas:
(a) internal market;
(b) social policy, for the aspects defined in Part III;
(c) economic, social and territorial cohesion;
(d) agriculture and fisheries, excluding the conservation of marine biological
resources;
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(e) environment;
(f) consumer protection;
(g) transport;
(h) trans-European networks;
(i) energy;
(j) area of freedom, security and justice;
(k) common safety concerns in public health matters, for the aspects defined
in Part III.
3. In the areas of research, technological development and space, the Union
shall have competence to carry out activities, in particular to define and
implement programmes; however, the exercise of that competence shall not
result in Member States being prevented from exercising theirs.
4. In the areas of development cooperation and humanitarian aid, the Union
shall have competence to carry out activities and conduct a common policy;
however, the exercise of that competence shall not result in Member States
being prevented from exercising theirs.
Article I-15
The coordination of economic and employment policies
1. The Member States shall coordinate their economic policies within the
Union. To this end, the Council of Ministers shall adopt measures, in
particular broad guidelines for these policies.
Specific provisions shall apply to those Member States whose currency is the
euro.
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2. The Union shall take measures to ensure coordination of the employment
policies of the Member States, in particular by defining guidelines for these
policies.
3. The Union may take initiatives to ensure coordination of Member States'
social policies.
Article I-16
The common foreign and security policy
1. The Union's competence in matters of common foreign and security policy
shall cover all areas of foreign policy and all questions relating to the Union's
security, including the progressive framing of a common defence policy that
might lead to a common defence.
2. Member States shall actively and unreservedly support the Union's
common foreign and security policy in a spirit of loyalty and mutual solidarity
and shall comply with the Union's action in this area. They shall refrain from
action contrary to the Union's interests or likely to impair its effectiveness.
Article I-17
Areas of supporting, coordinating or complementary action
The Union shall have competence to carry out supporting, coordinating or
complementary action. The areas of such action shall, at European level, be:
(a) protection and improvement of human health;
(b) industry;
(c) culture;
(d) tourism;
(e) education, youth, sport and vocational training;
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(f) civil protection;
(g) administrative cooperation.
Article I-18
Flexibility clause
1. If action by the Union should prove necessary, within the framework of
the policies defined in Part III, to attain one of the objectives set out in the
Constitution, and the Constitution has not provided the necessary powers, the
Council of Ministers, acting unanimously on a proposal from the European
Commission and after obtaining the consent of the European Parliament, shall
adopt the appropriate measures.
2. Using the procedure for monitoring the subsidiarity principle referred to in
Article I-11(3), the European Commission shall draw national Parliaments'
attention to proposals based on this Article.
3. Measures based on this Article shall not entail harmonisation of Member
States' laws or regulations in cases where the Constitution excludes such
harmonisation.
TITLE IV
THE UNION'S INSTITUTIONS AND BODIES
CHAPTER I
THE INSTITUTIONAL FRAMEWORK
Article I-19
The Union's institutions
1. The Union shall have an institutional framework which shall aim to:
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–
promote its values,
–
advance its objectives,
–
serve its interests, those of its citizens and those of the Member States,
–
ensure the consistency, effectiveness and continuity of its policies and
actions.
This institutional framework comprises:
–
The European Parliament,
–
The European Council,
–
The Council of Ministers (hereinafter referred to as the "Council"),
–
The European Commission (hereinafter referred to as the "Commission"),
–
The Court of Justice of the European Union.
2. Each institution shall act within the limits of the powers conferred on it in
the Constitution, and in conformity with the procedures and conditions set
out in it. The institutions shall practice mutual sincere cooperation.
Article I-20
The European Parliament
1. The European Parliament shall, jointly with the Council, exercise
legislative and budgetary functions. It shall exercise functions of political
control and consultation as laid down in the Constitution. It shall elect the
President of the Commission.
2. The European Parliament shall be composed of representatives of the
Union's citizens. They shall not exceed seven hundred and fifty in number.
Representation of citizens shall be degressively proportional, with a minimum
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threshold of six members per Member State. No Member State shall be
allocated more than ninety-six seats.
The European Council shall adopt by unanimity, on the initiative of the
European Parliament and with its consent, a European decision establishing
the composition of the European Parliament, respecting the principles
referred to in the first subparagraph.
3. The members of the European Parliament shall be elected for a term of five
years by direct universal suffrage in a free and secret ballot.
4. The European Parliament shall elect its President and its officers from
among its members.
Article I-21
The European Council
1. The European Council shall provide the Union with the necessary impetus
for its development and shall define the general political directions and
priorities thereof. It shall not exercise legislative functions.
2. The European Council shall consist of the Heads of State or Government
of the Member States, together with its President and the President of the
Commission. The Union Minister for Foreign Affairs shall take part in its
work.
3. The European Council shall meet quarterly, convened by its President.
When the agenda so requires, the members of the European Council may
decide each to be assisted by a minister and, in the case of the President of the
Commission, by a member of the Commission. When the situation so
requires, the President shall convene a special meeting of the European
Council.
4. Except where the Constitution provides otherwise, decisions of the
European Council shall be taken by consensus.
Article I-22
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The European Council President
1. The European Council shall elect its President, by a qualified majority, for
a term of two and a half years, renewable once. In the event of an
impediment or serious misconduct, the European Council can end his or her
term of office in accordance with the same procedure.
2. The President of the European Council:
(a) shall chair it and drive forward its work;
(b) shall ensure the preparation and continuity of the work of the European
Council in cooperation with the President of the Commission, and on
the basis of the work of the General Affairs Council;
(c) shall endeavour to facilitate cohesion and consensus within the European
Council;
(d) shall present a report to the European Parliament after each of the
meetings of the European Council.
The President of the European Council shall, at his or her level and in that
capacity, ensure the external representation of the Union on issues concerning
its common foreign and security policy, without prejudice to the powers of
the Union Minister for Foreign Affairs.
3. The President of the European Council shall not hold a national office.
Article I-23
The Council of Ministers
1. The Council shall, jointly with the European Parliament, exercise
legislative and budgetary functions. It shall carry out policy-making and
coordinating functions as laid down in the Constitution.
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2. The Council shall consist of a representative of each Member State at
ministerial level, who may commit the government of the Member State in
question and cast its vote.
3. The Council shall act by a qualified majority except where the
Constitution provides otherwise.
Article I-24
Configurations of the Council of Ministers
1. The Council shall meet in different configurations.
2. The General Affairs Council shall ensure consistency in the work of the
different Council configurations.
It shall prepare and ensure the follow-up to meetings of the European
Council, in liaison with the President of the European Council and the
Commission.
3. The Foreign Affairs Council shall elaborate the Union's external action on
the basis of strategic guidelines laid down by the European Council and
ensure that the Union's action is consistent.
4. The European Council shall adopt by a qualified majority a European
decision establishing the list of other Council configurations.
5. A Committee of Permanent Representatives of the Governments of the
Member States shall be responsible for preparing the work of the Council.
6. The Council shall meet in public when it deliberates and votes on a draft
legislative act. To this end, each Council meeting shall be divided into two
parts, dealing respectively with deliberations on Union legislative acts and
non-legislative activities.
7. The Presidency of Council configurations, other than that of Foreign
Affairs, shall be held by Member State representatives in the Council on the
basis of equal rotation, in accordance with the conditions established by a
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European decision of the European Council. The European Council shall act
by a qualified majority.
Article I-25
Definition of qualified majority within the European Council and the
Council
1. A qualified majority shall be defined as at least 55% of the members of the
Council, comprising at least fifteen of them and representing Member States
comprising at least 65% of the population of the Union.
A blocking minority must include at least four Council members, failing
which the qualified majority shall be deemed attained.
2. By way of derogation from paragraph 1, when the Council does not act on
a proposal from the Commission or from the Union Minister for Foreign
Affairs, the qualified majority shall be defined as at least 72% of the members
of the Council, representing Member States comprising at least 65% of the
population of the Union.
3. Paragraphs 1 and 2 shall apply to the European Council when it is acting
by a qualified majority.
4. Within the European Council, its President and the President of the
Commission shall not take part in the vote.
Article I-26
The European Commission
1. The Commission shall promote the general interest of the Union and take
appropriate initiatives to that end. It shall ensure the application of the
Constitution, and measures adopted by the institutions pursuant to the
Constitution. It shall oversee the application of Union law under the control
of the Court of Justice of the European Union. It shall execute the budget
and manage programmes. It shall exercise coordinating, executive and
management functions, as laid down in the Constitution. With the exception
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of the common foreign and security policy, and other cases provided for in
the Constitution, it shall ensure the Union's external representation. It shall
initiate the Union's annual and multiannual programming with a view to
achieving interinstitutional agreements.
2. Union legislative acts may be adopted only on the basis of a Commission
proposal, except where the Constitution provides otherwise. Other acts shall
be adopted on the basis of a Commission proposal where the Constitution so
provides.
3. The Commission's term of office shall be five years.
4. The members of the Commission shall be chosen on the ground of their
general competence and European commitment from persons whose
independence is beyond doubt.
5. The first Commission appointed under the provisions of the Constitution
shall consist of one national of each Member State, including its President and
the Union Minister for Foreign Affairs who shall be one of its VicePresidents.
6. As from the end of the term of office of the Commission referred to in
paragraph 5, the Commission shall consist of a number of members, including
its President and the Union Minister for Foreign Affairs, corresponding to
two thirds of the number of Member States, unless the European Council,
acting unanimously, decides to alter this number.
The members of the Commission shall be selected from among the nationals
of the Member States on the basis of a system of equal rotation between the
Member States. This system shall be established by a European decision
adopted unanimously by the European Council and on the basis of the
following principles:
(a) Member States shall be treated on a strictly equal footing as regards
determination of the sequence of, and the time spent by, their nationals as
members of the Commission; consequently, the difference between the
total number of terms of office held by nationals of any given pair of
Member States may never be more than one;
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(b) subject to point (a), each successive Commission shall be so composed as
to reflect satisfactorily the demographic and geographical range of all the
Member States.
7. In carrying out its responsibilities, the Commission shall be completely
independent. Without prejudice to Article I-28(2), the members of the
Commission shall neither seek nor take instructions from any government or
other institution, body, office or entity. They shall refrain from any action
incompatible with their duties or the performance of their tasks.
8. The Commission, as a body, shall be responsible to the European
Parliament. In accordance with Article III-340, the European Parliament may
vote on a censure motion on the Commission. If such a motion is carried, the
members of the Commission shall resign as a body and the Union Minister for
Foreign Affairs shall resign from the duties that he or she carries out in the
Commission.
Article I-27
The President of the European Commission
1. Taking into account the elections to the European Parliament and after
having held the appropriate consultations, the European Council, acting by a
qualified majority, shall propose to the European Parliament a candidate for
President of the Commission. This candidate shall be elected by the European
Parliament by a majority of its component members. If he or she does not
obtain the required majority, the European Council, acting by a qualified
majority, shall within one month propose a new candidate who shall be
elected by the European Parliament following the same procedure.
2. The Council, by common accord with the President-elect, shall adopt the
list of the other persons whom it proposes for appointment as members of the
Commission. They shall be selected, on the basis of the suggestions made by
Member States, in accordance with the criteria set out in Article I-26(4) and
(6), second subparagraph.
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The President, the Union Minister for Foreign Affairs and the other members
of the Commission shall be subject as a body to a vote of consent by the
European Parliament. On the basis of this consent the Commission shall be
appointed by the European Council, acting by a qualified majority.
3. The President of the Commission shall:
(a) lay down guidelines within which the Commission is to work;
(b) decide on the internal organisation of the Commission, ensuring that it
acts consistently, efficiently and as a collegiate body;
(c) appoint Vice-Presidents, other than the Union Minister for Foreign
Affairs, from among the members of the Commission.
A member of the Commission shall resign if the President so requests. The
Union Minister for Foreign Affairs shall resign, in accordance with the
procedure set out in Article I-28(1), if the President so requests.
Article I-28
The Union Minister for Foreign Affairs
1. The European Council, acting by a qualified majority, with the agreement
of the President of the Commission, shall appoint the Union Minister for
Foreign Affairs. The European Council may end his or her term of office by
the same procedure.
2. The Union Minister for Foreign Affairs shall conduct the Union's common
foreign and security policy. He or she shall contribute by his or her proposals
to the development of that policy, which he or she shall carry out as
mandated by the Council. The same shall apply to the common security and
defence policy.
3. The Union Minister for Foreign Affairs shall preside over the Foreign
Affairs Council.
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4. The Union Minister for Foreign Affairs shall be one of the Vice-Presidents
of the Commission. He or she shall ensure the consistency of the Union's
external action. He or she shall be responsible within the Commission for
responsibilities incumbent on it in external relations and for coordinating
other aspects of the Union's external action. In exercising these responsibilities
within the Commission, and only for these responsibilities, the Union
Minister for Foreign Affairs shall be bound by Commission procedures to the
extent that this is consistent with paragraphs 2 and 3.
Article I-29
The Court of Justice of the European Union
1. The Court of Justice of the European Union shall include the Court of
Justice, the General Court and specialised courts. It shall ensure that in the
interpretation and application of the Constitution the law is observed.
Member States shall provide remedies sufficient to ensure effective legal
protection in the fields covered by Union law.
2. The Court of Justice shall consist of one judge from each Member State. It
shall be assisted by Advocates-General.
The General Court shall include at least one judge per Member State.
The judges and the Advocates-General of the Court of Justice and the judges
of the General Court shall be chosen from persons whose independence is
beyond doubt and who satisfy the conditions set out in Articles III-355 and
III-356. They shall be appointed by common accord of the governments of
the Member States for six years. Retiring judges and Advocates-General may
be reappointed.
3. The Court of Justice of the European Union shall in accordance with Part
III:
(a) rule on actions brought by a Member State, an institution or a natural or
legal person;
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(b) give preliminary rulings, at the request of courts or tribunals of the
Member States, on the interpretation of Union law or the validity of acts
adopted by the institutions;
(c) rule in other cases provided for in the Constitution.
CHAPTER II
THE OTHER UNION INSTITUTIONS AND ADVISORY BODIES
Article I-30
The European Central Bank
1. The European Central Bank, together with the national central banks, shall
constitute the European System of Central Banks. The European Central
Bank, together with the national central banks of the Member States whose
currency is the euro, which constitute the Eurosystem, shall conduct the
monetary policy of the Union.
2. The European System of Central Banks shall be governed by the decisionmaking bodies of the European Central Bank. The primary objective of the
European System of Central Banks shall be to maintain price stability.
Without prejudice to that objective, it shall support the general economic
policies in the Union in order to contribute to the achievement of the latter's
objectives. It shall conduct other Central Bank tasks in accordance with Part
III and the Statute of the European System of Central Banks and of the
European Central Bank.
3. The European Central Bank is an institution. It shall have legal personality.
It alone may authorise the issue of the euro. It shall be independent in the
exercise of its powers and in the management of its finances. Union
institutions, bodies, offices and agencies and the governments of the Member
States shall respect that independence.
4. The European Central Bank shall adopt such measures as are necessary to
carry out its tasks in accordance with Articles III-185 to III-191 and Article
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III-196, and with the conditions laid down in the Statute of the European
System of Central Banks and of the European Central Bank. In accordance
with these same Articles, those Member States whose currency is not the
euro, and their central banks, shall retain their powers in monetary matters.
5. Within the areas falling within its responsibilities, the European Central
Bank shall be consulted on all proposed Union acts, and all proposals for
regulation at national level, and may give an opinion.
6. The decision-making organs of the European Central Bank, their
composition and operating methods are set out in Articles III-382 and III383, as well as in the Statute of the European System of Central Banks and of
the European Central Bank.
Article I-31
The Court of Auditors
1. The Court of Auditors is an institution. It shall carry out the Union's audit.
2. It shall examine the accounts of all Union revenue and expenditure, and
shall ensure good financial management.
3. It shall consist of one national of each Member State. Its members shall be
completely independent in the performance of their duties, in the Union's
general interest.
Article I-32
The Union's advisory bodies
1. The European Parliament, the Council and the Commission shall be
assisted by a Committee of the Regions and an Economic and Social
Committee, exercising advisory functions.
2. The Committee of the Regions shall consist of representatives of regional
and local bodies who either hold a regional or local authority electoral
mandate or are politically accountable to an elected assembly.
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3. The Economic and Social Committee shall consist of representatives of
organisations of employers, of the employed, and of other parties
representative of civil society, notably in socio-economic, civic, professional
and cultural areas.
4. The members of the Committee of the Regions and the Economic and
Social Committee shall not be bound by any mandatory instructions. They
shall be completely independent in the performance of their duties, in the
Union's general interest.
5. Rules governing the composition of these Committees, the designation of
their members, their powers and their operations are set out in Articles III386 to III-392.
The rules referred to in paragraphs 2 and 3 governing the nature of their
composition shall be reviewed at regular intervals by the Council to take
account of economic, social and demographic developments within the
Union. The Council, on a proposal from the Commission, shall adopt
European decisions to that end.
TITLE V
EXERCISE OF UNION COMPETENCE
CHAPTER I
COMMON PROVISIONS
Article I-33
The legal acts of the Union
1. To exercise the Union's competences the institutions shall use as legal
instruments, in accordance with Part III, European laws, European framework
laws, European regulations, European decisions, recommendations and
opinions.
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A European law shall be a legislative act of general application. It shall be
binding in its entirety and directly applicable in all Member States.
A European framework law shall be a legislative act binding, as to the result to
be achieved, upon each Member State to which it is addressed, but shall leave
to the national authorities the choice of form and methods.
A European regulation shall be a non-legislative act of general application for
the implementation of legislative acts and of certain provisions of the
Constitution. It may either be binding in its entirety and directly applicable in
all Member States, or be binding, as to the result to be achieved, upon each
Member State to which it is addressed, but shall leave to the national
authorities the choice of form and methods.
A European decision shall be a non-legislative act, binding in its entirety. A
decision which specifies those to whom it is addressed shall be binding only
on them.
Recommendations and opinions shall have no binding force.
2. When considering draft legislative acts, the European Parliament and the
Council shall refrain from adopting acts not provided for by the relevant
legislative procedure in the area in question.
Article I-34
Legislative acts
1. European laws and framework laws shall be adopted, on the basis of
proposals from the Commission, jointly by the European Parliament and the
Council under the ordinary legislative procedure as set out in Article III-396.
If the two institutions cannot reach agreement on an act, it shall not be
adopted.
2. In the specific cases provided for in the Constitution, European laws and
framework laws shall be adopted by the European Parliament with the
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participation of the Council, or by the latter with the participation of the
European Parliament, in accordance with special legislative procedures.
3. In the specific cases provided for in the Constitution, European laws and
framework laws may be adopted at the initiative of a group of Member States
or of the European Parliament, on a recommendation from the European
Central Bank or at the request of the Court of Justice or the European
Investment Bank.
Article I-35
Non-legislative acts
1. The European Council shall adopt European decisions in the cases
provided for in the Constitution.
2. The Council and the Commission, in particular in the cases referred to in
Articles I–36 and I-37, and the European Central Bank in the specific cases
provided for in the Constitution, shall adopt European regulations and
decisions.
3. The Council shall adopt recommendations. It shall act on a proposal from
the Commission in all cases where the Constitution provides that it shall
adopt acts on a proposal from the Commission. It shall act unanimously in
those areas in which unanimity is required for the adoption of a Union act.
The Commission, and the European Central Bank in the specific cases
provided for in the Constitution, shall adopt recommendations.
Article I-36
Delegated European regulations
1. European laws and framework laws may delegate to the Commission the
power to adopt delegated European regulations to supplement or amend
certain non-essential elements of the law or framework law.
The objectives, content, scope and duration of the delegation of power shall
be explicitly defined in the European laws and framework laws. The essential
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elements of an area shall be reserved for the European law or framework law
and accordingly shall not be the subject of a delegation of power.
2. European laws and framework laws shall explicitly lay down the conditions
to which the delegation is subject; these conditions may be as follows:
(a) the European Parliament or the Council may decide to revoke the
delegation;
(b) the delegated European regulation may enter into force only if no
objection has been expressed by the European Parliament or the Council
within a period set by the European law or framework law.
For the purposes of (a) and (b), the European Parliament shall act by a
majority of its component members, and the Council by a qualified majority.
Article I-37
Implementing acts
1. Member States shall adopt all measures of national law necessary to
implement legally binding Union acts.
2. Where uniform conditions for implementing legally binding Union acts are
needed, those acts shall confer implementing powers on the Commission, or,
in duly justified specific cases and in the cases provided for in Article I-40, on
the Council.
3. For the purposes of paragraph 2, European laws shall lay down in advance
the rules and general principles concerning mechanisms for control by
Member States of the Commission's exercise of implementing powers.
4. Union implementing acts shall take the form of European implementing
regulations or European implementing decisions.
Article I-38
Principles common to the Union's legal acts
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1. Where the Constitution does not specify the type of act to be adopted, the
institutions shall select it on a case-by-case basis, in compliance with the
applicable procedures and with the principle of proportionality referred to in
Article I-11.
2. Legal acts shall state the reasons on which they are based and shall refer to
any proposals, initiatives, recommendations, requests or opinions required by
the Constitution.
Article I-39
Publication and entry into force
1. European laws and framework laws adopted under the ordinary legislative
procedure shall be signed by the President of the European Parliament and by
the President of the Council.
In other cases they shall be signed by the President of the institution which
adopted them.
European laws and framework laws shall be published in the Official Journal
of the European Union and shall enter into force on the date specified in
them or, in the absence thereof, on the twentieth day following their
publication.
2. European regulations, and European decisions which do not specify to
whom they are addressed, shall be signed by the President of the institution
which adopted them.
European regulations, and European decisions when the latter do not specify
to whom they are addressed, shall be published in the Official Journal of the
European Union and shall enter into force on the date specified in them or, in
the absence thereof, on the twentieth day following that of their publication.
3. European decisions other than those referred to in paragraph 2 shall be
notified to those to whom they are addressed and shall take effect upon such
notification.
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CHAPTER II
SPECIFIC PROVISIONS
Article I-40
Specific provisions relating to the common foreign and security policy
1. The European Union shall conduct a common foreign and security policy,
based on the development of mutual political solidarity among Member
States, the identification of questions of general interest and the achievement
of an ever-increasing degree of convergence of Member States' actions.
2. The European Council shall identify the Union's strategic interests and
determine the objectives of its common foreign and security policy. The
Council shall frame this policy within the framework of the strategic
guidelines established by the European Council and in accordance with Part
III.
3. The European Council and the Council shall adopt the necessary European
decisions.
4. The common foreign and security policy shall be put into effect by the
Union Minister for Foreign Affairs and by the Member States, using national
and Union resources.
5. Member States shall consult one another within the European Council and
the Council on any foreign and security policy issue which is of general
interest in order to determine a common approach. Before undertaking any
action on the international scene or any commitment which could affect the
Union's interests, each Member State shall consult the others within the
European Council or the Council. Member States shall ensure, through the
convergence of their actions, that the Union is able to assert its interests and
values on the international scene. Member States shall show mutual solidarity.
6. European decisions relating to the common foreign and security policy
shall be adopted by the European Council and the Council unanimously,
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except in the cases referred to in Part III. The European Council and the
Council shall act on an initiative from a Member State, on a proposal from
the Union Minister for Foreign Affairs or on a proposal from that Minister
with the Commission's support. European laws and framework laws shall be
excluded.
7. The European Council may, unanimously, adopt a European decision
authorising the Council to act by a qualified majority in cases other than those
referred to in Part III.
8. The European Parliament shall be regularly consulted on the main aspects
and basic choices of the common foreign and security policy. It shall be kept
informed of how it evolves.
Article I-41
Specific provisions relating to the common security and defence policy
1. The common security and defence policy shall be an integral part of the
common foreign and security policy. It shall provide the Union with an
operational capacity drawing on civil and military assets. The Union may use
them on missions outside the Union for peace-keeping, conflict prevention
and strengthening international security in accordance with the principles of
the United Nations Charter. The performance of these tasks shall be
undertaken using capabilities provided by the Member States.
2. The common security and defence policy shall include the progressive
framing of a common Union defence policy. This will lead to a common
defence, when the European Council, acting unanimously, so decides. It shall
in that case recommend to the Member States the adoption of such a decision
in accordance with their respective constitutional requirements.
The policy of the Union in accordance with this Article shall not prejudice
the specific character of the security and defence policy of certain Member
States, it shall respect the obligations of certain Member States, which see
their common defence realised in the North Atlantic Treaty Organisation,
under the North Atlantic Treaty, and be compatible with the common
security and defence policy
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established within that framework.
3. Member States shall make civilian and military capabilities available to the
Union for the implementation of the common security and defence policy, to
contribute to the objectives defined by the Council. Those Member States
which together establish multinational forces may also make them available to
the common security and defence policy.
Member States shall undertake progressively to improve their military
capabilities. An Agency in the field of defence capabilities development,
research, acquisition and armaments (European Defence Agency) shall be
established to identify operational requirements, to promote measures to
satisfy those requirements, to contribute to identifying and, where
appropriate, implementing any measure needed to strengthen the industrial
and technological base of the defence sector, to participate in defining a
European capabilities and armaments policy, and to assist the Council in
evaluating the improvement of military capabilities.
4. European decisions relating to the common security and defence policy,
including those initiating a mission as referred to in this Article, shall be
adopted by the Council acting unanimously on a proposal from the Union
Minister for Foreign Affairs or an initiative from a Member State. The Union
Minister for Foreign Affairs may propose the use of both national resources
and Union instruments, together with the Commission where appropriate.
5. The Council may entrust the execution of a task, within the Union
framework, to a group of Member States in order to protect the Union's
values and serve its interests. The execution of such a task shall be governed
by Article III-310.
6. Those Member States whose military capabilities fulfil higher criteria and
which have made more binding commitments to one another in this area
with a view to the most demanding missions shall establish permanent
structured cooperation within the Union framework. Such cooperation shall
be governed by Article III-312. It shall not affect the provisions of Article III309.
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7. If a Member State is the victim of armed aggression on its territory, the
other Member States shall have towards it an obligation of aid and assistance
by all the means in their power, in accordance with Article 51 of the United
Nations Charter. This shall not prejudice the specific character of the security
and defence policy of certain Member States.
Commitments and cooperation in this area shall be consistent with
commitments under the North Atlantic Treaty Organisation, which, for those
States which are members of it, remains the foundation of their collective
defence and the forum for its implementation.
8. The European Parliament shall be regularly consulted on the main aspects
and basic choices of the common security and defence policy. It shall be kept
informed of how it evolves.
Article I-42
Specific provisions relating to the area of freedom, security and justice
1. The Union shall constitute an area of freedom, security and justice:
(a) by adopting European laws and framework laws intended, where
necessary, to approximate laws and regulations of the Member States in
the areas referred to in Part III;
(b) by promoting mutual confidence between the competent authorities of
the Member States, in particular on the basis of mutual recognition of
judicial and extrajudicial decisions;
(c) by operational cooperation between the competent authorities of the
Member States, including the police, customs and other services
specialising in the prevention and detection of criminal offences.
2. National Parliaments may, within the framework of the area of freedom,
security and justice, participate in the evaluation mechanisms provided for in
Article III-260. They shall be involved in the political monitoring of Europol
and the evaluation of Eurojust's activities in accordance with Articles III-276
and III-273.
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3. Member States shall have a right of initiative in the field of police and
judicial cooperation in criminal matters, in accordance with Article III-264.
Article I-43
Solidarity clause
1. The Union and its Member States shall act jointly in a spirit of solidarity if
a Member State is the object of a terrorist attack or the victim of a natural or
man-made disaster. The Union shall mobilise all the instruments at its
disposal, including the military resources made available by the Member
States, to:
(a) –
prevent the terrorist threat in the territory of the Member States;
–
protect democratic institutions and the civilian population from any
terrorist attack;
–
assist a Member State in its territory, at the request of its political
authorities, in the event of a terrorist attack;
(b) assist a Member State in its territory, at the request of its political
authorities, in the event of a natural or man-made disaster.
2. The detailed arrangements for implementing this Article are set out in
Article III-329.
CHAPTER III
ENHANCED COOPERATION
Article I-44
Enhanced cooperation
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1. Member States which wish to establish enhanced cooperation between
themselves within the framework of the Union's non-exclusive competences
may make use of its institutions and exercise those competences by applying
the relevant provisions of the Constitution, subject to the limits and in
accordance with the procedures laid down in this Article and in Articles III416 to III-423.
Enhanced cooperation shall aim to further the objectives of the Union,
protect its interests and reinforce its integration process. Such cooperation
shall be open at any time to all Member States, in accordance with Article III418.
2. The European decision authorising enhanced cooperation shall be adopted
by the Council as a last resort, when it has established that the objectives of
such cooperation cannot be attained within a reasonable period by the Union
as a whole, and provided that at least one third of the Member States
participate in it. The Council shall act in accordance with the procedure laid
down in Article III-419.
3. All members of the Council may participate in its deliberations, but only
members of the Council representing the Member States participating in
enhanced cooperation shall take part in the vote.
Unanimity shall be constituted by the votes of the representatives of the
participating Member States only.
A qualified majority shall be defined as at least 55% of the members of the
Council representing the participating Member States, comprising at least 65%
of the population of these States.
A blocking minority must include at least the minimum number of Council
members representing more than 35% of the population of the participating
Member States, plus one member, failing which the qualified majority shall be
deemed attained.
By way of derogation from the third and fourth subparagraphs, where the
Council does not act on a proposal from the Commission or from the Union
Minister for Foreign Affairs, the required qualified majority shall be defined as
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at least 72% of the members of the Council representing the participating
Member States, comprising at least 65% of the population of these States.
4. Acts adopted in the framework of enhanced cooperation shall bind only
participating Member States. They shall not be regarded as part of the acquis
which has to be accepted by candidate States for accession to the Union.
TITLE VI
THE DEMOCRATIC LIFE OF THE UNION
Article I-45
The principle of democratic equality
In all its activities, the Union shall observe the principle of the equality of its
citizens, who shall receive equal attention from its institutions, bodies, offices
and agencies.
Article I-46
The principle of representative democracy
1. The functioning of the Union shall be founded on representative
democracy.
2. Citizens are directly represented at Union level in the European
Parliament.
Member States are represented in the European Council by their Heads of
State or Government and in the Council by their governments, themselves
democratically accountable either to their national Parliaments, or to their
citizens.
3. Every citizen shall have the right to participate in the democratic life of the
Union. Decisions shall be taken as openly and as closely as possible to the
citizen.
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4. Political parties at European level contribute to forming European political
awareness and to expressing the will of citizens of the Union.
Article I-47
The principle of participatory democracy
1. The institutions shall, by appropriate means, give citizens and representative
associations the opportunity to make known and publicly exchange their
views in all areas of Union action.
2. The institutions shall maintain an open, transparent and regular dialogue
with representative associations and civil society.
3. The Commission shall carry out broad consultations with parties concerned
in order to ensure that the Union's actions are coherent and transparent.
4. Not less than one million citizens who are nationals of a significant number
of Member States may take the initiative of inviting the Commission, within
the framework of its powers, to submit any appropriate proposal on matters
where citizens consider that a legal act of the Union is required for the
purpose of implementing the Constitution. European laws shall determine the
provisions for
the procedures and conditions required for such a citizens' initiative, including
the minimum number of Member States from which such citizens must
come.
Article I-48
The social partners and autonomous social dialogue
The Union recognises and promotes the role of the social partners at its level,
taking into account the diversity of national systems. It shall facilitate dialogue
between the social partners, respecting their autonomy.
The Tripartite Social Summit for Growth and Employment shall contribute
to social dialogue.
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Article I-49
The European Ombudsman
A European Ombudsman elected by the European Parliament shall receive,
examine and report on complaints about maladministration in the activities of
the Union institutions, bodies, offices or agencies, under the conditions laid
down in the Constitution. The European Ombudsman shall be completely
independent in the performance of his or her duties.
Article I-50
Transparency of the proceedings of Union institutions,
bodies, offices and agencies
1. In order to promote good governance and ensure the participation of civil
society, the Union institutions, bodies, offices and agencies shall conduct their
work as openly as possible.
2. The European Parliament shall meet in public, as shall the Council when
considering and voting on a draft legislative act.
3. Any citizen of the Union, and any natural or legal person residing or
having its registered office in a Member State shall have, under the conditions
laid down in Part III, a right of access to documents of the Union institutions,
bodies, offices and agencies, whatever their medium.
European laws shall lay down the general principles and limits which, on
grounds of public or private interest, govern the right of access to such
documents.
4. Each institution, body, office or agency shall determine in its own rules of
procedure specific provisions regarding access to its documents, in accordance
with the European laws referred to in paragraph 3.
Article I-51
Protection of personal data
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1. Everyone has the right to the protection of personal data concerning him
or her.
2. European laws or framework laws shall lay down the rules relating to the
protection of individuals with regard to the processing of personal data by
Union institutions, bodies, offices and agencies, and by the Member States
when carrying out activities which fall within the scope of Union law, and
the rules relating to the free movement of such data. Compliance with these
rules shall be subject to the control of independent authorities.
Article I-52
Status of churches and non-confessional organisations
1. The Union respects and does not prejudice the status under national law of
churches and religious associations or communities in the Member States.
2. The Union equally respects the status under national law of philosophical
andnon-confessional organisations.
3. Recognising their identity and their specific contribution, the Union shall
maintain an open, transparent and regular dialogue with these churches and
organisations.
TITLE VII
THE UNION'S FINANCES
Article I-53
Budgetary and financial principles
1. All items of Union revenue and expenditure shall be included in estimates
drawn up for each financial year and shall be shown in the Union's budget, in
accordance with Part III.
2. The revenue and expenditure shown in the budget shall be in balance.
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3. The expenditure shown in the budget shall be authorised for the annual
budgetary period in accordance with the European law referred to in Article
III-412.
4. The implementation of expenditure shown in the budget shall require the
prior adoption of a legally binding Union act providing a legal basis for its
action and for the implementation of the corresponding expenditure in
accordance with the European law referred to in Article III-412, except in
cases for which that law provides.
5. With a view to maintaining budgetary discipline, the Union shall not adopt
any act which is likely to have appreciable implications for the budget
without providing an assurance that the expenditure arising from such an act
is capable of being financed within the limit of the Union's own resources and
in compliance with the multiannual financial framework referred to in Article
I-55.
6. The budget shall be implemented in accordance with the principle of
sound financial management. Member States shall cooperate with the Union
to ensure that the appropriations entered in the budget are used in accordance
with this principle.
7. The Union and the Member States, in accordance with Article III–415,
shall counter fraud and any other illegal activities affecting the financial
interests of the Union.
Article I-54
The Union's own resources
1. The Union shall provide itself with the means necessary to attain its
objectives and carry through its policies.
2. Without prejudice to other revenue, the Union's budget shall be financed
wholly from its own resources.
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3. A European law of the Council shall lay down the provisions relating to
the system of own resources of the Union. In this context it may establish
new categories of own resources or abolish an existing category. The Council
shall act unanimously after consulting the European Parliament. That law shall
not enter into force until it is approved by the Member States in accordance
with their respective constitutional requirements.
4. A European law of the Council shall lay down implementing measures of
the Union's own resources system insofar as this is provided for in the
European law adopted on the basis of paragraph 3. The Council shall act after
obtaining the consent of the European Parliament.
Article I-55
The multiannual financial framework
1. The multiannual financial framework shall ensure that Union expenditure
develops in an orderly manner and within the limits of its own resources. It
shall determine the amounts of the annual ceilings of appropriations for
commitments by category of expenditure in accordance with Article III-402.
2. A European law of the Council shall lay down the multiannual financial
framework. The Council shall act unanimously after obtaining the consent of
the European Parliament, which shall be given by a majority of its component
members.
3. The annual budget of the Union shall comply with the multiannual
financial framework.
4. The European Council may, unanimously, adopt a European decision
authorising the Council to act by a qualified majority when adopting the
European law of the Council referred to in paragraph 2.
Article I-56
The Union's budget
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A European law shall establish the Union's annual budget in accordance with
Article III-404.
TITLE VIII
THE UNION AND ITS NEIGHBOURS
Article I-57
The Union and its neighbours
1. The Union shall develop a special relationship with neighbouring
countries, aiming to establish an area of prosperity and good neighbourliness,
founded on the values of the Union and characterised by close and peaceful
relations based on cooperation.
2. For the purposes of paragraph 1, the Union may conclude specific
agreements with the countries concerned. These agreements may contain
reciprocal rights and obligations as well as the possibility of undertaking
activities jointly. Their implementation shall be the subject of periodic
consultation.
TITLE IX
UNION MEMBERSHIP
Article I-58
Conditions of eligibility and procedure for accession to the Union
1. The Union shall be open to all European States which respect the values
referred to in Article I–2, and are committed to promoting them together.
2. Any European State which wishes to become a member of the Union shall
address its application to the Council. The European Parliament and national
Parliaments shall be notified of this application. The Council shall act
unanimously after consulting the Commission and after obtaining the consent
of the European Parliament, which shall act by a majority of its component
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members. The conditions and arrangements for admission shall be the subject
of an agreement between the Member States and the candidate State. That
agreement shall be subject to ratification by each contracting State, in
accordance with its respective constitutional requirements.
Article I-59
Suspension of certain rights resulting from Union membership
1. On the reasoned initiative of one third of the Member States or the
reasoned initiative of the European Parliament or on a proposal from the
Commission, the Council may adopt a European decision determining that
there is a clear risk of a serious breach by a Member State of the values
referred to in Article I-2. The Council shall act by a majority of four fifths of
its members after obtaining the consent of the European Parliament.
Before making such a determination, the Council shall hear the Member State
in question and, acting in accordance with the same procedure, may address
recommendations to that State.
The Council shall regularly verify that the grounds on which such a
determination was made continue to apply.
2. The European Council, on the initiative of one third of the Member States
or on a proposal from the Commission, may adopt a European decision
determining the existence of a serious and persistent breach by a Member
State of the values mentioned in Article I-2, after inviting the Member State
in question to submit its observations. The European Council shall act
unanimously after obtaining the consent of the European Parliament.
3. Where a determination under paragraph 2 has been made, the Council,
acting by a qualified majority, may adopt a European decision suspending
certain of the rights deriving from the application of the Constitution to the
Member State in question, including the voting rights of the member of the
Council representing that State. The Council shall take into account the
possible consequences of such a suspension for the rights and obligations of
natural and legal persons.
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In any case, that State shall continue to be bound by its obligations under the
Constitution.
4. The Council, acting by a qualified majority, may adopt a European
decision varying or revoking measures adopted under paragraph 3 in response
to changes in the situation which led to their being imposed.
5. For the purposes of this Article, the member of the European Council or of
the Council representing the Member State in question shall not take part in
the vote and the Member State in question shall not be counted in the
calculation of the one third or four fifths of Member States referred to in
paragraphs 1 and 2. Abstentions by members present in person or represented
shall not prevent the adoption of European decisions referred to in paragraph
2.
For the adoption of the European decisions referred to in paragraphs 3 and 4,
a qualified majority shall be defined as at least 72% of the members of the
Council, representing the participating Member States, comprising at least
65% of the population of these States.
Where, following a decision to suspend voting rights adopted pursuant to
paragraph 3, the Council acts by a qualified majority on the basis of a
provision of the Constitution, that qualified majority shall be defined as in the
second subparagraph, or, where the Council acts on a proposal from the
Commission or from the Union Minister for Foreign Affairs, as at least 55% of
the members of the Council representing the participating Member States,
comprising at least 65% of the population of these States. In the latter case, a
blocking minority must include at least the minimum number of Council
members representing more than 35% of the population of the participating
Member States, plus one member, failing which the qualified majority shall be
deemed attained.
6. For the purposes of this Article, the European Parliament shall act by a
two-thirds majority of
the votes cast, representing the majority of its component members.
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Article I-60
Voluntary withdrawal from the Union
1. Any Member State may decide to withdraw from the Union in accordance
with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European
Council of its intention. In the light of the guidelines provided by the
European Council, the Union shall negotiate and conclude an agreement
with that State, setting out the arrangements for its withdrawal, taking
account of the framework for its future relationship with the Union. That
agreement shall be negotiated in accordance with Article III-325(3). It shall be
concluded by the Council, acting by a qualified majority, after obtaining the
consent of the European Parliament.
3. The Constitution shall cease to apply to the State in question from the date
of entry into force of the withdrawal agreement or, failing that, two years
after the notification referred to in paragraph 2, unless the European Council,
in agreement with the Member State concerned, unanimously decides to
extend this period.
4. For the purposes of paragraphs 2 and 3, the member of the European
Council or of the Council representing the withdrawing Member State shall
not participate in the discussions of the European Council or Council or in
European decisions concerning it.
A qualified majority shall be defined as at least 72% of the members of the
Council, representing the participating Member States, comprising at least
65% of the population of these States.
5. If a State which has withdrawn from the Union asks to rejoin, its request
shall be subject to the procedure referred to in Article I-58.
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PART II
THE CHARTER OF FUNDAMENTAL RIGHTS OF THE UNION
PREAMBLE
The peoples of Europe, in creating an ever closer union among them, are
resolved to share a peaceful future based on common values.
Conscious of its spiritual and moral heritage, the Union is founded on the
indivisible, universal values of human dignity, freedom, equality and
solidarity; it is based on the principles of democracy and the rule of law. It
places the individual at the heart of its activities, by establishing the citizenship
of the Union and by creating an area of freedom, security and justice.
The Union contributes to the preservation and to the development of these
common values while respecting the diversity of the cultures and traditions of
the peoples of Europe as well as the national identities of the Member States
and the organisation of their public authorities at national, regional and local
levels; it seeks to promote balanced and sustainable development and ensures
free movement of persons, services, goods and capital, and the freedom of
establishment.
To this end, it is necessary to strengthen the protection of fundamental rights
in the light of changes in society, social progress and scientific and
technological developments by making those rights more visible in a Charter.
This Charter reaffirms, with due regard for the powers and tasks of the Union
and the principle of subsidiarity, the rights as they result, in particular, from
the constitutional traditions and international obligations common to the
Member States, the European Convention for the Protection of Human
Rights and Fundamental Freedoms, the Social Charters adopted by the Union
and by the Council of Europe and the case law of the Court of Justice of the
European Union and of the European Court of Human Rights. In this
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context the Charter will be interpreted by the courts of the Union and the
Member States with due regard to the explanations prepared under the
authority of the Praesidium of the Convention which drafted the Charter and
updated under the responsibility of the Praesidium of the European
Convention.
Enjoyment of these rights entails responsibilities and duties with regard to
other persons, to the human community and to future generations.
The Union therefore recognises the rights, freedoms and principles set out
hereafter.
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TITLE I
DIGNITY
Article II-61
Human dignity
Human dignity is inviolable. It must be respected and protected.
Article II-62
Right to life
1. Everyone has the right to life.
2. No one shall be condemned to the death penalty, or executed.
Article II-63
Right to the integrity of the person
1. Everyone has the right to respect for his or her physical and mental
integrity.
2. In the fields of medicine and biology, the following must be respected in
particular:
(a) the free and informed consent of the person concerned, according to the
procedures laid down by law;
(b) the prohibition of eugenic practices, in particular those aiming at the
selection of persons;
(c) the prohibition on making the human body and its parts as such a source
of financial gain;
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(d) the prohibition of the reproductive cloning of human beings.
Article II-64
Prohibition of torture and inhuman or degrading treatment or
punishment
No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.
Article II-65
Prohibition of slavery and forced labour
1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
3. Trafficking in human beings is prohibited.
TITLE II
FREEDOMS
Article II-66
Right to liberty and security
Everyone has the right to liberty and security of person.
Article II-67
Respect for private and family life
Everyone has the right to respect for his or her private and family life, home
and communications.
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Article II-68
Protection of personal data
1. Everyone has the right to the protection of personal data concerning him
or her.
2. Such data must be processed fairly for specified purposes and on the basis of
the consent of the person concerned or some other legitimate basis laid down
by law. Everyone has the right of access to data which has been collected
concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent
authority.
Article II-69
Right to marry and right to found a family
The right to marry and the right to found a family shall be guaranteed in
accordance with the national laws governing the exercise of these rights.
Article II-70
Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion.
This right includes freedom to change religion or belief and freedom, either
alone or in community with others and in public or in private, to manifest
religion or belief, in worship, teaching, practice and observance.
2. The right to conscientious objection is recognised, in accordance with the
national laws governing the exercise of this right.
Article II-71
Freedom of expression and information
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1. Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers.
2. The freedom and pluralism of the media shall be respected.
Article II-72
Freedom of assembly and of association
1. Everyone has the right to freedom of peaceful assembly and to freedom of
association at all levels, in particular in political, trade union and civic matters,
which implies the right of everyone to form and to join trade unions for the
protection of his or her interests.
2. Political parties at Union level contribute to expressing the political will of
the citizens of the Union.
Article II-73
Freedom of the arts and sciences
The arts and scientific research shall be free of constraint. Academic freedom
shall be respected.
Article II-74
Right to education
1. Everyone has the right to education and to have access to vocational and
continuing training.
2. This right includes the possibility to receive free compulsory education.
3. The freedom to found educational establishments with due respect for
democratic principles and the right of parents to ensure the education and
teaching of their children in conformity with their religious, philosophical and
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pedagogical convictions shall be respected, in accordance with the national
laws governing the exercise of such freedom and right.
Article II-75
Freedom to choose an occupation and right to engage in work
1. Everyone has the right to engage in work and to pursue a freely chosen or
accepted occupation.
2. Every citizen of the Union has the freedom to seek employment, to work,
to exercise the right of establishment and to provide services in any Member
State.
3. Nationals of third countries who are authorised to work in the territories of
the Member States are entitled to working conditions equivalent to those of
citizens of the Union.
Article II-76
Freedom to conduct a business
The freedom to conduct a business in accordance with Union law and
national laws and practices is recognised.
Article II-77
Right to property
1. Everyone has the right to own, use, dispose of and bequeath his or her
lawfully acquired possessions. No one may be deprived of his or her
possessions, except in the public interest and in the cases and under the
conditions provided for by law, subject to fair compensation being paid in
good time for their loss. The use of property may be regulated by law insofar
as is necessary for the general interest.
2. Intellectual property shall be protected.
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Article II-78
Right to asylum
The right to asylum shall be guaranteed with due respect for the rules of the
Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967
relating to the status of refugees and in accordance with the Constitution.
Article II-79
Protection in the event of removal, expulsion or extradition
1. Collective expulsions are prohibited.
2. No one may be removed, expelled or extradited to a State where there is a
serious risk that he or she would be subjected to the death penalty, torture or
other inhuman or degrading treatment or punishment.
TITLE III
EQUALITY
Article II-80
Equality before the law
Everyone is equal before the law.
Article II-81
Non-discrimination
1. Any discrimination based on any ground such as sex, race, colour, ethnic or
social origin, genetic features, language, religion or belief, political or any
other opinion, membership of a national minority, property, birth, disability,
age or sexual orientation shall be prohibited.
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2. Within the scope of application of the Constitution and without prejudice
to any of its specific provisions, any discrimination on grounds of nationality
shall be prohibited.
Article II-82
Cultural, religious and linguistic diversity
The Union shall respect cultural, religious and linguistic diversity.
Article II-83
Equality between women and men
Equality between women and men must be ensured in all areas, including
employment, work and pay.
The principle of equality shall not prevent the maintenance or adoption of
measures providing for specific advantages in favour of the under-represented
sex.
Article II-84
The rights of the child
1. Children shall have the right to such protection and care as is necessary for
their well-being. They may express their views freely. Such views shall be
taken into consideration on matters which concern them in accordance with
their age and maturity.
2. In all actions relating to children, whether taken by public authorities or
private institutions, the child's best interests must be a primary consideration.
3. Every child shall have the right to maintain on a regular basis a personal
relationship and direct contact with both his or her parents, unless that is
contrary to his or her interests.
Article II-85
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Annex
The rights of the elderly
The Union recognises and respects the rights of the elderly to lead a life of
dignity and independence and to participate in social and cultural life.
Article II-86
Integration of persons with disabilities
The Union recognises and respects the right of persons with disabilities to
benefit from measures designed to ensure their independence, social and
occupational integration and participation in the life of the community.
TITLE IV
SOLIDARITY
Article II-87
Workers' right to information and consultation within the undertaking
Workers or their representatives must, at the appropriate levels, be guaranteed
information and consultation in good time in the cases and under the
conditions provided for by Union law and national laws and practices.
Article II-88
Right of collective bargaining and action
Workers and employers, or their respective organisations, have, in accordance
with Union law and national laws and practices, the right to negotiate and
conclude collective agreements at the appropriate levels and, in cases of
conflicts of interest, to take collective action to defend their interests,
including strike action.
Article II-89
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Right of access to placement services
Everyone has the right of access to a free placement service.
Article II-90
Protection in the event of unjustified dismissal
Every worker has the right to protection against unjustified dismissal, in
accordance with Union law and national laws and practices.
Article II-91
Fair and just working conditions
1. Every worker has the right to working conditions which respect his or her
health, safety and dignity.
2. Every worker has the right to limitation of maximum working hours, to
daily and weekly rest periods and to an annual period of paid leave.
Article II-92
Prohibition of child labour and protection of young people at work
The employment of children is prohibited. The minimum age of admission to
employment may not be lower than the minimum school-leaving age,
without prejudice to such rules as may be more favourable to young people
and except for limited derogations.
Young people admitted to work must have working conditions appropriate to
their age and be protected against economic exploitation and any work likely
to harm their safety, health or physical, mental, moral or social development
or to interfere with their education.
Article II-93
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Family and professional life
1. The family shall enjoy legal, economic and social protection.
2. To reconcile family and professional life, everyone shall have the right to
protection from dismissal for a reason connected with maternity and the right
to paid maternity leave and to parental leave following the birth or adoption
of a child.
Article II-94
Social security and social assistance
1. The Union recognises and respects the entitlement to social security
benefits and social services providing protection in cases such as maternity,
illness, industrial accidents, dependency or old age, and in the case of loss of
employment, in accordance with the rules laid down by Union law and
national laws and practices.
2. Everyone residing and moving legally within the European Union is
entitled to social security benefits and social advantages in accordance with
Union law and national laws and practices.
3. In order to combat social exclusion and poverty, the Union recognises and
respects the right to social and housing assistance so as to ensure a decent
existence for all those who lack sufficient resources, in accordance with the
rules laid down by Union law and national laws and practices.
Article II-95
Health care
Everyone has the right of access to preventive health care and the right to
benefit from medical treatment under the conditions established by national
laws and practices. A high level of human health protection shall be ensured
in the definition and implementation of all Union policies and activities.
Article II-96
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Access to services of general economic interest
The Union recognises and respects access to services of general economic
interest as provided for in national laws and practices, in accordance with the
Constitution, in order to promote the social and territorial cohesion of the
Union.
Article II-97
Environmental protection
A high level of environmental protection and the improvement of the quality
of the environment must be integrated into the policies of the Union and
ensured in accordance with the principle of sustainable development.
Article II-98
Consumer protection
Union policies shall ensure a high level of consumer protection.
TITLE V
CITIZENS' RIGHTS
Article II-99
Right to vote and to stand as a candidate at elections to
the European Parliament
1. Every citizen of the Union has the right to vote and to stand as a candidate
at elections to the European Parliament in the Member State in which he or
she resides, under the same conditions as nationals of that State.
2. Members of the European Parliament shall be elected by direct universal
suffrage in a free and secret ballot.
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Article II-100
Right to vote and to stand as a candidate at municipal elections
Every citizen of the Union has the right to vote and to stand as a candidate at
municipal elections in the Member State in which he or she resides under the
same conditions as nationals of that State.
Article II-101
Right to good administration
1. Every person has the right to have his or her affairs handled impartially,
fairly and within a reasonable time by the institutions, bodies, offices and
agencies of the Union.
2. This right includes:
(a) the right of every person to be heard, before any individual measure
which would affect him or her adversely is taken;
(b) the right of every person to have access to his or her file, while respecting
the legitimate interests of confidentiality and of professional and business
secrecy;
(c) the obligation of the administration to give reasons for its decisions.
3. Every person has the right to have the Union make good any damage
caused by its institutions or by its servants in the performance of their duties,
in accordance with the general principles common to the laws of the Member
States.
4. Every person may write to the institutions of the Union in one of the
languages of the Constitution and must have an answer in the same language.
Article II-102
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Right of access to documents
Any citizen of the Union, and any natural or legal person residing or having
its registered office in a Member State, has a right of access to documents of
the institutions, bodies, offices and agencies of the Union, whatever their
medium.
Article II-103
European Ombudsman
Any citizen of the Union and any natural or legal person residing or having its
registered office in a Member State has the right to refer to the European
Ombudsman cases of maladministration in the activities of the institutions,
bodies, offices or agencies of the Union, with the exception of the Court of
Justice of the European Union acting in its judicial role.
Article II-104
Right to petition
Any citizen of the Union and any natural or legal person residing or having its
registered office in a Member State has the right to petition the European
Parliament.
Article II-105
Freedom of movement and of residence
1. Every citizen of the Union has the right to move and reside freely within
the territory of the Member States.
2. Freedom of movement and residence may be granted, in accordance with
the Constitution, to nationals of third countries legally resident in the territory
of a Member State.
Article II-106
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Diplomatic and consular protection
Every citizen of the Union shall, in the territory of a third country in which
the Member State of which he or she is a national is not represented, be
entitled to protection by the diplomatic or consular authorities of any
Member State, on the same conditions as the nationals of that Member State.
TITLE VI
JUSTICE
Article II-107
Right to an effective remedy and to a fair trial
Everyone whose rights and freedoms guaranteed by the law of the Union are
violated has the right to an effective remedy before a tribunal in compliance
with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by
an independent and impartial tribunal previously established by law. Everyone
shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources insofar
as such aid is necessary to ensure effective access to justice.
Article II-108
Presumption of innocence and right of defence
1. Everyone who has been charged shall be presumed innocent until proved
guilty according to law.
2. Respect for the rights of the defence of anyone who has been charged shall
be guaranteed.
Article II-109
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Principles of legality and proportionality of criminal offences and
penalties
1. No one shall be held guilty of any criminal offence on account of any act
or omission which did not constitute a criminal offence under national law or
international law at the time when it was committed. Nor shall a heavier
penalty be imposed than that which was applicable at the time the criminal
offence was committed. If, subsequent to the commission of a criminal
offence, the law provides for a lighter penalty, that penalty shall be applicable.
2. This Article shall not prejudice the trial and punishment of any person for
any act or omission which, at the time when it was committed, was criminal
according to the general principles recognised by the community of nations.
3. The severity of penalties must not be disproportionate to the criminal
offence.
Article II-110
Right not to be tried or punished twice in criminal proceedings for the
same criminal offence
No one shall be liable to be tried or punished again in criminal proceedings
for an offence for which he or she has already been finally acquitted or
convicted within the Union in accordance with the law.
TITLE VII
GENERAL PROVISIONS GOVERNING THE
INTERPRETATIONAND APPLICATION OF THE CHARTER
Article II-111
Field of application
1. The provisions of this Charter are addressed to the institutions, bodies,
offices and agencies of the Union with due regard for the principle of
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Annex
subsidiarity and to the Member States only when they are implementing
Union law. They shall therefore respect the rights, observe the principles and
promote the application thereof in accordance with their respective powers
and respecting the limits of the powers of the Union as conferred on it in the
other Parts of the Constitution.
2. This Charter does not extend the field of application of Union law beyond
the powers of the Union or establish any new power or task for the Union, or
modify powers and tasks defined in the other Parts of the Constitution.
Article II-112
Scope and interpretation of rights and principles
1. Any limitation on the exercise of the rights and freedoms recognised by this
Charter must be provided for by law and respect the essence of those rights
and freedoms. Subject to the principle of proportionality, limitations may be
made only if they are necessary and genuinely meet objectives of general
interest recognised by the Union or the need to protect the rights and
freedoms of others.
2. Rights recognised by this Charter for which provision is made in other
Parts of the Constitution shall be exercised under the conditions and within
the limits defined by these relevant Parts.
3. Insofar as this Charter contains rights which correspond to rights
guaranteed by the Convention for the Protection of Human Rights and
Fundamental Freedoms, the meaning and scope of those rights shall be the
same as those laid down by the said Convention. This provision shall not
prevent Union law providing more extensive protection.
4. Insofar as this Charter recognises fundamental rights as they result from the
constitutional traditions common to the Member States, those rights shall be
interpreted in harmony with those traditions.
5. The provisions of this Charter which contain principles may be
implemented by legislative and executive acts taken by institutions, bodies,
offices and agencies of the Union, and by acts of Member States when they
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Constitutional Treaty Part I and II
are implementing Union law, in the exercise of their respective powers. They
shall be judicially cognisable only in the interpretation of such acts and in the
ruling on their legality.
6. Full account shall be taken of national laws and practices as specified in this
Charter.
7. The explanations drawn up as a way of providing guidance in the
interpretation of the Charter of Fundamental Rights shall be given due regard
by the courts of the Union and of the Member States.
Article II-113
Level of protection
Nothing in this Charter shall be interpreted as restricting or adversely affecting
human rights and fundamental freedoms as recognised, in their respective
fields of application, by Union law and international law and by international
agreements to which the Union or all the Member States are party, including
the European Convention for the Protection of Human Rights and
Fundamental Freedoms, and by the Member States' constitutions.
Article II-114
Prohibition of abuse of rights
Nothing in this Charter shall be interpreted as implying any right to engage in
any activity or to perform any act aimed at the destruction of any of the rights
and freedoms recognised in this Charter or at their limitation to a greater
extent than is provided for herein.
TheTreaty establishing a Constitution for Europe was initially
drafted by the Convention and was subsequently adopted by
the European Council on 29 October 2004.The next step is
its ratiication by the peoples of Europe.Although we have the
textofaConstitution,thishasnotlaidtorestthedeepquestions
pertaining to the nature and status of the European Union as a
polity. Can the text be seen as a further step in the forging of
a European democratic constitution, or is it a mere exercise in
consolidatingthestructureinplace?
CIDEL,whichstandsforCitizenshipandDemocraticLegitimacyin
theEU,isa3-years(2003-2005)jointresearchprojectwithten
partnersinsixEuropeancountries.Theprojectiscoordinatedby
ARENA,theUniversityofOslo,andissupportedbytheEuropean
Commission’s Fifth Framework Programme for Research, Key
Action‘ImprovingtheSocio-economicKnowledgeBase’.
P.O.Box1143,Blindern
N-0317Oslo,Norway
Tel.(+47)22857677
arena@arena.uio.no
http://www.arena.uio.no
CIDEL:http://www.arena.uio.no/cidel