Government and Politics

Cymraeg

Is there a need for a EU constitution?

Dr. Anwen Elias, Department of International Politics, Aberystwyth University 


Background


Efforts at writing and approving a European Constitution preoccupied the EU for the first decade of the new millennium. The Convention on the Future of Europe, established by the Laeken Declaration on the Future of Europe (15 December 2001), was not officially a constitutional convention. With the prospect of further enlargement to Central and Eastern Europe, and a general concern with the declining level of European citizens' knowledge of, and interest in, European politics, the Convention's main task was to make the EU more democratic, transparent and legitimate. However, drafting a constitution swiftly became the goal, with the Convention's President, Valerie Giscard d'Estaing, proclaiming the process as the European Philadelphia (in reference to the constitutional convention in the city that led to the drafting and ratification of the US Constitution in the late 18th century). The draft European Constitution published by the Convention was approved at an EU summit in Greece in 2003.


Key features of the draft European Constitution:

  • New policy-making competencies for the EU in areas such as justice policy (especially asylum and immigration) and foreign and security policy.

  • Extension of qualified majority voting (QMV) to new policy areas, and a revision of the number of votes assigned to each Member State for the QMV system.

  • Creation of two new posts: the President of the EU (to be elected by Member States for a period of two-and-a-half years) and a EU Foreign Minister.

  • Provisons to reduce the size of the Commission, so that Member States will no longer have a Commissioner each.

  • Enhanced role for the European Parliament, making it co-legislator with the Council of Ministers.

  • Incorporation of a Charter of Fundamental Rights, which sets out the “rights, freedoms and principles” of European citizens.

 

But the need for a European Constitution was never unanimously accepted by practitioners, observers and scholars of European politics. An examination of the arguments put forward by opponents and proponents of such a document reveals highly divergent understandings of what a constitution is, and when a constitution is necessary and achievable.


Why the EU doesn't need a constitution


For some scholars, the EU doesn't need a constitution because it already has one, not in the formal sense of a written document that contains all of the rules that govern a polity, but a 'material constitution' which contains all of the norms and principles according to which a polity functions. This constitution-in-all-but-name is to be found in the numerous treaties that have been agreed by the EU's Member States since the 1950s. These treaties have established European institutions with clearly defined roles and responsibilities, have defined the scope of supranational policy-making, and have established the basic rights of European citizens. A distinct European legal order has also developed, with the European Court of Justice playing a role akin to that played by national Constitutional Courts in ensuring that the EU's activities do not infringe on the provisions contained in the EU's treaties. In short, proponents of the 'no' argument would contend that, although “constitutional developments…have occurred…almost by stealth” (Weiler, 2002: 578), they are nevertheless sufficient to provide the EU with a clear constitutional basis.


Why the EU needs a constitution


Other scholars disagree, and argue in favour of the adoption of a formal European Constitution. Jürgen Habermas, for example, sees developments in European integration and a change in the fundamental nature of the EU as necessitating such a document. The first steps in European integration taken during the 1950s were motivated by the twin desires of ending warfare on the European continent, and promoting economic growth by making it easier for European countries to trade with each other. These goals have largely been achieved. But the EU has also adopted a much more ambitious economic, political and social agenda in order to meet the original goal set out in the EU's founding Treaty of Rome (1957) of creating an “ever closer union between the peoples of Europe”. So, for example, the EU aims to create cultural solidarity within its borders, and aspires to resolve economic and social inequalities across Member States (Habermas, 2004: 24-25).

These are highly sensitive issues, not least because they require the redistribution of wealth from richer citizens to poorer ones. In order for such policies to be legitimate, the people of Europe need to give their consent, thus accepting the new direction being taken by European integration. In the past, citizens have done this by electing national politicians who then represent their interests in Brussels. But this is no longer sufficient. Rather, European citizens should have a direct say in the future direction of European integration. For Habermas, the process of drafting and ratifying a European Constitution would provide precisely such an opportunity. Moreover, the constitutional document emerging from this pan-European debate would provide a basis of a new European patriotism, based on a shared sense of values and respect among European citizens and upon which further developments in European integration can be undertaken.


Why a European Constitution may be desirable, but is not yet achievable


For Habermas, therefore, one of the desirable features of a European Constitution is its potential role as a catalyst for a stronger sense of collective political community within the EU, characterized by solidarity and mutual trust between European citizens. The existence of such a demos - the Greek word for 'people' - is generally considered to be necessary for a well-functioning and legitimate democratic polity. However, some scholars contend that, rather than be the product of the constitutional process, a demos has to exist prior to the creation of a constitution for it to be successful. According to Grimm (1997), for example, a constitution is democratic only if it is based on a collective entity that has a common culture, common traditions and experiences. Such a European demos does not exist, it is claimed, hence any efforts at agreeing a European Constitution are, for the time being, doomed to fail.


What next for constitutionalism in the EU?


And fail the European Constitution did. In order for the European Constitution to come into force, it needed to be ratified by each Member State. However, in referendums in France and Germany in May and June 2005 respectively, voters voted 'no' to the proposed text. Protracted debates about the future of the European Constitution resulted in the adoption of the less ambitious, less 'constitutional', Treaty of Lisbon that came into force on 1 December 2009 (Church and Phinnemore, 2009).1


What does this mean for the future of constitutionalism in the EU? For advocates of 'the EU already has a constitution' position, it is a return to business as usual. The process of developing a material constitution for the EU will proceed through the work of the ECJ as 'guardian of the treaty' and incremental treaty reform. In the words of Richard Bellamy (2006), “the European Constitution is dead, long live European constitutionalism”! For others, however, whilst the Lisbon Treaty achieved the goal of institutional streamlining, concerns about the EU's legitimacy crisis remain. Surveys conducted in each Member State over the last decade reveal that on average a bare majority of European citizens support the idea of European integration, think that membership of the EU is a good thing and believe that their country has benefited from the EU. Such high levels of popular disaffection with the EU pose a major obstacle to further integration. The EU does not as yet have a constitution, and may not be ready for one. However, the fundamental problems that the European Constitution sought to address persist, and require urgent resolution if the EU is to be successful in forging an ever closer union among the peoples of Europe.


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1The Lisbon Treaty preserves the main substance of the European Constitution (such as institutional reform, the removal of national vetoes in many policy areas and new voting rules in the Council of Ministers, an enhanced policy-making role for the European Parliament, a new EU President and a High Representative responsible for foreign affairs, and provisions to reduce the size of the Commission). However, it only amends previous treaties, rather that replacing them as the Constitution would have done. It also drops all reference to the symbols of the EU - the flag, the anthem and the motto - though these will continue to exist.