The European Constitution: the Rubicon Crossed?

Transcription

1 The European Constitution: the Rubicon Crossed? Erik Oddvar Eriksen, John Erik Fossum, Mattias Kumm and Agustín José Menéndez ARENA Report No 3/05

2 The European Constitution: the Rubicon crossed? Erik Oddvar Eriksen, John Erik Fossum, Mattias Kumm and Agustín José Menéndez Copyright ARENA ISSN Printed at ARENA Centre for European Studies University of Oslo P.O.Box 1143, Blindern N-0317 Oslo, Norway Tel: Fax: arena@arena.uio.no Oslo, February 2005 Source cover picture:

3

4 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 November CIDEL - Citizenship and Democratic Legitimacy in the EU is a 3-years ( ) 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

5

6 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 Chapter 3 Still adrift in the Rubicon? The Constitutional Treaty Assessed John Erik Fossum and Agustín José Menéndez Annex Treaty establishing a Constitution for Europe Parts I and II

7

8 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 ago, when six countries first took the lead. 1 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.

9 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

10 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:

11 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

12 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-

13 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.

14 Chapter 1 To be a European Citizen: Constitutional Patriotism and the Treaty Establishing a Constitution for Europe 1 Mattias Kumm Professor, NYU School of Law L identité de l Europe sera constitutionelle ou ne sera pas. Le Monde, May 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 of the polity in the long term. 2 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,

15 8 Mattias Kumm currently missing. 3 The general question is what such an identity should be and what the conditions are under which such an identity is likely to develop. 4 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 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 , J. E. Fossum, The European Union in search of an identity, 2 European Journal of Political Theory (2003), pp ; 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 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).

16 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

17 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 that Europeans should become constitutional patriots. 5 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 the Constitutional Treaty 6 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 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 and J. Habermas supra, note 1. See also A. Ingram, Constitutional Patriotism, 22 Philosophy and Social Criticism (1996), pp 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.

18 Constitutional Patriotism and the Constitutional Treaty 11 As has been pointed out 7, 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 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 , pp

19 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 all liberal states may join the European Union. Only European states may. 8 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 Turkey, Bosnia or the Ukraine. 9 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 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

20 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 should be done. Such a consensus clearly exists in the European Union. 10 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 concepts 11, 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

21 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 presented by its best known contemporary proponent, Jürgen Habermas. 12 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.

22 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.

23 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 prerequisite. 13 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).

24 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 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 staple element of American exceptionalism. 14 Europe, too, aspires to be a model that others have reasons to emulate 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 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

25 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, [

26 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).

27 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 Instance 16. 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 Costa, 17 Comet 18 and Simmenthal 19 - are the leading court decisions by various highest Courts of Member States resisting that claim. 20 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 ECJ Case 6/44 Costa v. Enel, [1964] ECR ECJ Case 43/76, Comet BV v. Produktschap voor Siergwassen. [1976] ECR Amministrazione delle Finanze dello Stato v. Simmenthal, [1978] ECR 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

28 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 Law is the supreme law of the land. 21 As was argued extensively elsewhere 22, 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 clause. 23 The explicit constitutional endorsement of the ECJ s primacy 21 See supra, note 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 [ 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 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

29 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 constitutional conflicts. 24 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 Kompetenz- Kompetenz 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 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 , , , ) 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.

30 Constitutional Patriotism and the Constitutional Treaty 23 ratified in accordance with respective national constitutional requirements. 25 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 referendum to be held. 26 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 momentum. 27 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. 26 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 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.

31 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 constitutional courts to engage the ECJ as it interprets national constitutional law. 28 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.

32 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.

33 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 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.

34 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.

35 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 and third parties. 29 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.

36 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 jawboning, perhaps conducive to a state reconsidering its position. 30 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).

37 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

38 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

39 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 and more effectively established jurisdictional limits to European legislation. 31 The CT institutionalizes this commitment to subsidiarity not just by specifically enumerating competencies, distinguishing between different categories of competencies 32 and different legal acts 33 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 better achieved at the Union level. 34 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

40 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.

41 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 the ECJ would go that way. 35 Yet, on the whole, the ECJ s jurisprudence does not reflect serious engagements with these requirements and subsidiarity is addressed by the Court only in a cavalier fashion. 36 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.

42 Constitutional Patriotism and the Constitutional Treaty 35 It is at this point that a CT innovation comes into play. The CT establishes that national Parliaments shall ensure compliance with that principle. 37 The CT incorporates a Protocol 38 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 sent such a reasoned opinion, the draft must be reviewed. 39 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. 38 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.

43 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 technically on behalf of the MS as laid down in Art. III-365 CT. 40 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 Democracy: National and European Accountability Another prong of the CT s account of the democratic life in the Union focuses on the principle of representative democracy. 41 The functioning of the Union shall be founded on representative democracy. 42 This principle is embodied in European institutions in two ways. First, citizens are directly represented in the European Parliament. 43 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

44 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 for two and a half years, renewable for one term. 44 The European Council President gives the Council more of an institutional structure, continuity and 44 Art CT.

45 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 members representing at least 65% of the population. 45 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 Commission. With the monopoly to propose legislation generally 46 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 to European Parliament. 47 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 then subjected to a vote of consent by parliament. 48 During the Commission s five year term parliament may vote to censure the Commission who will then resign. 49 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. 46 In a few areas the CT has undercut that monopoly. 47 Art. I-27 CT. 48 Art. I 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 out a principle of democratic equality. 50 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 institutions to treat its citizens with equal respect and concern. 51 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 vote for European Parliament 52, there is no requirement for each representative in the European Parliament to represent an equal number of 50 Art. I R. Dworkin, Freedom s Laws (Cambridge, MA, Harvard University Press 1996). 52 See Art. I-10 Sect. 2 b.

47 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 representative for every citizens 53, while European citizens from Luxembourg will be represented by one representative for every citizens. 54 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 areas. 55 And it it remains for the Member States to determine the scope of health benefits, social security, pension benefits etc Many of these concerns are addressed within the informal Open Method of Coordination. 56 Art. III- 210 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 given up. 57 The commitment to welfare politics as a European legislative concern lives on in the policies of the European Union in the residual form of consumer protection 58 and in the protection of workers for so long as they work. 59 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 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 See G. de Burca, The Open Method of Coordination (on file with author). 57 See Art. III-210 Sect 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 See Art. III-235 ECT.

48 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 accordance with the Constitution. 60 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.

49 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 Member States only, to the extent they are implementing EU Law 61 or there actions otherwise fall under the scope of EU Law. 62 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 Art. II-111 Sect ECJ C-260/89 (ERT) [1991] ECR I-2925, ECJ C-368/95 (Familiapress).

50 Constitutional Patriotism and the Constitutional Treaty 43 translated into a plausible constitutional rights claim 63, one would have to be naif to believe that a race to the top between courts is likely to further justice rather than juristocracy in Europe. 64 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 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

51 44 Mattias Kumm effect it interprets that national provision in light of a common constitutional tradition as it is reflected in the ECHR in particular. 65 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 right is enacted and applied according to proper procedure. 66 If the proper procedure was followed, the substantive test assessing whether the infringement is justified consists of a proportionality test. 67 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 Art. II Art. II-112 Sect. 1 2 nd 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..

52 Constitutional Patriotism and the Constitutional Treaty 45 conditions under which the reasons that public authorities have for infringing a protected interests qualify as good reasons, all things considered. 68 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 interpreted in harmony with those traditions. 69 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.

53 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

54 Constitutional Patriotism and the Constitutional Treaty 47 accounts of legitimacy. 70 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 , pp 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

55 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

56 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 ever been. 71 These bad results would not look considerably better, even if one were to discount for the particularly low participation rate of citizens of the new Member States. 72 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 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 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.

57 50 Mattias Kumm Turnout for European elections was on average 25% below voter turnout in domestic elections. 73 Besides the low turnout the one striking feature of these elections has been the success of a diverse group of anti- European 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

58 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

59 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 citizens even knew how seats are apportioned. 74 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 Parliament. 75 Third, European legislative decision, it has been suggested, are of low public salience 76 and tend to be of a pareto-optimizing coordinative nature. 77 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 , pp 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 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

60 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, though clearly these factors are relevant. 78 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 generally held to. That is how Parliaments, since the early 19 th 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 European Parliament is mentioned as the first institution in the CT 79, 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 , F. Scharpf, Democratic Policy in Europe, 2 European law Journal (1996), pp 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.

61 54 Mattias Kumm importance of representative democracy and the role of the European Parliament as the first institution reflecting that principle 80, and the Treaty states that the Parliament elects the Commission President. 81 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.

62 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

63 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 control of parliament with regard to the executive branch, 82 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.

64 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

65 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 perspective of citizens, the European political process becomes a spaceship, 83 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).

66 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 important role to play. 84 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 electoral process on the European level. 85 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).

67 60 Mattias Kumm for such an identity to develop. 86 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 parliamentarianism 87, 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 unintended consequences of scattered forms of decision-making. 88 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, who refuse to take seriously the task of translating 89 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 Union Europe s constitutional Sonderweg as Joseph Weiler aptly calls it D. Grimm, Does Europe Need a Constitution, supra note 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 and 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 (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 J. Weiler, In Defense of the Status Quo: Europe s constitutional Sonderweg, id, pp.7-26.

68 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 - may not be as strong as it seems 91 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

69 62 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 Parliament shall elect the Commission President 92 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.

70 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 institutionalization of electoral politics on the European level. 93 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 (forthcoming).

71

72 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 is clear that the relevant standard is that of democratic legitimacy. 1 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.

73 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 , 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 studies, 2 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 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 , 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 But they are not all turning in the same

74 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.

75 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 turn. 3 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 rationality and legitimacy. 4 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 common affairs. 5 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). 4 J. Bohman, Survey Article: The Coming of the Age of Deliberative Democracy, 6 Journal of Political Philosophy (1998), pp B. Manin, On Legitimacy and Political Deliberation, 15 Political Theory (1987), pp

76 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 prevailing norms and validity claims. 6 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.

77 70 Eriksen and Fossum 1) is a constraint upon political power-holders, viz., the moral value of deliberation; 7 2) leads to improvements in information and judgement, viz. the epistemic value of deliberation; 8 and 3) has the capacity to shape preferences and transform opinions that are conducive to collective decision-making, viz. the transformative value of deliberation. 9 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 but on reasonable reasons. 10 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 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 ; E.O. Eriksen and J. Weigård, Understanding Habermas: Communicative Action and Deliberative Democracy (London, Continuum 2003), p. 222.

78 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 - as these are embedded in a particular constitutional tradition. 11 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, viz. their constitutional patriotism. 12 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 citizenship, solidarity, and plural identities. 13 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 situation in a legitimate manner. 14 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 agreement in fact testifies to the validity and importance of norms. 15 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 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 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).

79 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.

80 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 alternatives, and solve problems and resolve conflicts on a broader basis. 16 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).

81 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 constitution 17 ) 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 rulings, has long asserted the principles of supremacy and direct effect. 18 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.

82 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 have not given them to themselves through a proper constitutional process. 19 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 deficiencies. 20 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 (93); A.v. Bogdandy, Gubernative Rechtsetaung (Tübingen, Mohr 2000) p 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.

83 76 Eriksen and Fossum which operate on largely the same territory. 21 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 pillar structure. 22 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 See also J.H.H Weiler, A Constitution for Europe? Some hard choices, Journal of Common Market Studies 40 (2002), pp 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

84 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, and there is still no authoritative definition of its operation. 23 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.

85 78 Eriksen and Fossum articulate a Community interest. 24 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 Maastricht Treaty. 25 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. 25 H. Abromeit, Democracy in Europe: Legitimizing politics in a non-state polity (New York, Berghahn Books 1998), p. 26.

86 Closing of the EU s legitimacy gap? 79 Commission s monopoly of policy initiatives has been eroded. 26 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 States. 27 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 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 B. Rittberger, The Creation and Empowerment of the European Parliament, 41 Journal of Common Market Studies (2003), pp

87 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 continues to be a legitimacy deficit. 28 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 discourse encompasses both opinion formation and decision making. 29 The EP is a strong public in that it conducts hearings, sets up committees of inquiry, receives petitions from citizens (in 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 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.

88 Closing of the EU s legitimacy gap? 81 conventions, etc.. 30 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 entrenched rights to freedom 31 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 particular issues and topics, for example corruption, BSE, and migration. 32 These are deliberative issue communities, which transgress the bounds of language and nation. 33 New technologies and audio-visual spaces are also emerging - often market driven. 34 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 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).

89 82 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 the Member States, 35 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 networks of communication, which help ensure such. 36 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 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 C. Joerges and E. Vos (ed), EU Committees: Social Regulation, Law and Politics (Oxford: Hart Publishing 1999). G. Majone, Regulating Europe (London, Routledge 1996).

90 Closing of the EU s legitimacy gap? 83 scrutiny, judicial review and openness, 37 compel decision-makers to act according to acceptable publicly justifiable criteria. 38 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 egoistic motives, but forces the actors to hide them. 39 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 member governments. 40 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 democracy. 41 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 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 C. Lord, Democracy in the European Union (Sheffield, Sheffield Academic Press 1998), pp ; C. Lord, A Democratic Audit of the European Union (London, Palgrave 2004).

91 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 compromise in the adoption and implementation of EU policies. 42 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 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 transparent an otherwise closed decision-making process. 43 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 R. Corbett, F. Jacobs and M. Shackleton, The European Parliament (London, John Harper 2000), pp , 296.

92 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 decisionmaking. 44 Many of these processes are outside of the purview of parliaments (EP and national ones). This has raised the question of their democratic legitimacy. 45 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).

93 86 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 is in fact described as a new stage in the integration process. 46 As Joerges and Everson 47 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 demonstrated. 48 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 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 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

94 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 pursued. 49 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 higher officials from the ministries, Kerstin Jacobsson and Åsa Vifell 50 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 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).

95 88 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 possible. 51 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 directdeliberative polyarchy. 52 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 J. Cohen and C.F. Sabel, Directly-Deliberative Polyarchy, 3 European Law Journal (1997), pp 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).

96 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 Its future

97 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

98 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 presidency, 53 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 core traits of the pillars. 54 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.

99 92 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 quality of this system has been strengthened in the Draft. 55 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.

100 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 with the end result. 56 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).

101 94 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 helped to shape and transform opinions. 57 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 process is a major change from only a few years ago. 58 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

102 Closing of the EU s legitimacy gap? 95 different institutional solutions could be discerned from similar fundamental principles also suggests that it is based on incompletely theorized arguments. 59 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):

103 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.

104 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 the slightest idea how to begin 1 Introduction The purpose of this paper is to establish which conception of a legitimate European Union the Draft Treaty establishing a Constitution for Europe (hereafter, the Draft ) 2 speaks to. Legitimacy has both a substantive and a procedural component. In this article, we focus on the substantive contents of the Draft only. 3 More specifically, we outline the following six aspects, which 1 John MacDonald MacCormick, The Flag in the Wind (London, Wackburg 1950), p Approved 18 June 2004; formally signed 29 October 2004; published officially in Official Journal of the European Union OJ C 310/1-474, ; 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

105 98 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 Union is both a contested entity and an entity in motion. 4 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 legitimation strategies listed above. 5 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/ 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

106 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 range of fields. 6 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 ; 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).

107 100 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 substantive outcomes, i.e. output legitimacy. 7 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 institutional structure. 8 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 aggregatively. 9 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.

108 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 the confined set of issues designated as relevant to Union action. 10 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 Union level. 11 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 have exclusive decision-making power in a very limited number of fields 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

109 102 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 European Union law. 13 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 the common action norms among the Member States. 14 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 This also reflects a distinction between commutative and distributive justice concerns.

110 Still adrift in the Rubicon? 103 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 compliance with Union law. 15 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 the basis of pre-political factors, typically embedded in a common culture. 16 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, but is also necessary for securing trust C. Harding, Who goes to Court in Europe?, 17 European Law Review (1992), pp 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 ; D. Miller, On Nationality

111 104 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 distilled from such socio-cultural roots over a considerable period of time. 18 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).

112 Still adrift in the Rubicon? 105 well-being. 19 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.

113 106 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

114 Still adrift in the Rubicon? 107 duties. The Union is considered as the supranational level of government in Europe, and as one of the regional subsets of a larger cosmopolitan order. 20 The Union, in its internal make-up, is federally structured. 21 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 themselves, not only as the addresses, but also, as the authors, of the law. 22 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 patriotism, 23 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 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

115 108 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 law-making). 24 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 citizens. 25 The rights-based conception presupposes that the constitution is forged through a constitutional moment 26, 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.

116 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 and general publics. 28 This implies a majoritarian decision-making procedure, in which veto power rests exclusively with citizens through their European or national representative institutions 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 E.O. Eriksen and J.E. Fossum, Democracy through Strong Publics in the European Union?, 40 Journal of Common Market Studies (2002), pp 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 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.

117 110 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.

118 Still adrift in the Rubicon? 111 Table 1: The legitimation strategies expectations related to the draft constitution Regulatory problem-solving Value-founding of community Rights-entrenching in federal Union Polity Type What the Draft is What is a Constitution for? International organization Member statebased const. treaty Efficiency Nation-State in the Making Evolutionary constitution Self-Interpretation Federal Union (harbinger of a cosmopolitan order) Democratic (revolutionary) constitution Democratic legitimacy What the constitutionmaking process should focus on Division of powers and competences Fundamental rights: status and range of The EU s socioeconomic order Cultural community and diversity Institutional Design, Simplification 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 Community protective rights European: full state-type ability European cultural identity is vital Realising political rights through selfgovernment Federal principle: democratic congruence Political equality rights European: full statetype ability Rights-induced reflexive political culture The Substantive Contents of the Draft Constitutional Treaty 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

119 112 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

120 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 Community competence, according to Article III 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 the internal market. 31 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 of the Treaties 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 D.N. Triantafyllou, Le projet constitutionnel de la Convention européenne (Bruxelles, Bruyllant 2003), p Ibid., p. 48.

121 114 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 Constitution within the framework of the policies of Part III. 33 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 the flexibility provision as an alternative to formal Treaty amendment. 34 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.

122 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 of Union law are named. 35 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

123 116 Fossum and Menéndez national constitutional systems (see Article I-32). 36 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 contemplated in TEC 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 the Treaties. 38 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

124 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 the European Council of Seville of 2002, 39 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 10-11, Opening Council meetings to the public when the Council is acting in accordance with

125 118 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 Parliament, available at

126 Still adrift in the Rubicon? 119 democratic legitimacy pillar of Union law, both through European and national representative institutions. 40 The Draft Treaty turns co-decision into the standard Union law-making procedure (cf. Articles I-33 III-302). 41 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).

127 120 Fossum and Menéndez diplomatic and consular protection of citizens of the Union in third countries: III-11.1), 42 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 territory (III-104.3, c,d, f and g, and art. III-104.1); 43 norms concerning the harmonization of tax measures (III-62 and III-65.2); 44 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 III ) 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).

128 Still adrift in the Rubicon? 121 environmental policy; Article III 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 energy sources and the general structure of its energy supply; 46 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 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.

129 122 Fossum and Menéndez 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 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

130 Still adrift in the Rubicon? 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 empowerment. 48 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.

131 124 Fossum and Menéndez 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 exert this power 49 ); 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.

132 Still adrift in the Rubicon? 125 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. The first part of the Draft further elaborates on the values (Art. I-2) 50 and objectives (Art. I-3) of the European Union, 51 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.

133 126 Fossum and Menéndez 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 Nice European Council. 52 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 II- 111). 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.

134 Still adrift in the Rubicon? 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, democracy, equality 53, 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.

135 128 Fossum and Menéndez 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

136 Still adrift in the Rubicon? 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 systematic interpretation of the provisions of the Draft. 54 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.

137 130 Fossum and Menéndez 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

138 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 develops a greatly strengthened institutional support structure, 55 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, III- 399), 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 to the Draft s retention of the existing system of Commission initiative. 56 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 of Commission EP interaction. 57 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.

139 132 Fossum and Menéndez expected in a fully-fledged parliamentary system. 58 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 suitable with such an initiative. 59 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.

140 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.

141 134 Fossum and Menéndez 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 national positions, which has not taken place. 60 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 primary law of the Union, 61 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).

142 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 increased abstract weighting of fundamental rights 62 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 seventies, 63 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 , especially p More specifically, since the judgment in Cassis de Dijon, Judgment in Case 120/78, Rewe v. Bundesmonopolverwaltung für Branntwein, 1979 [ECR] 649.

143 136 Fossum and Menéndez of Community law as a whole. 64 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 of exceptions). 65 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 judgment and the Opinion in Schmidberger 66, and might lead to a similar result in Omega 67 and Grøngaard. 68 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 See Case C-112/00, Opinion of the AG Jacobs delivered on 11 July, 2002, judgment of the court was delivered on 12 June 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

144 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 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 autonomy 71 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 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.

145 138 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) While the Preamble of the Charter 72 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, justice, and equality between men and women 73 ; (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.

146 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 by the reference to the simultaneous aim of high competitiveness). 74 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).

147 140 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, neither in the articles nor in the preamble. 75 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.

148 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, over time H.Sjursen and K. Smith, Justifying EU Foreign Policy: The Logics Underpinning EU Enlargement, ARENA Working Paper 01/1 (Oslo, ARENA 2001).

149 142 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 conceptions of the Union. 77 Second, we offered a description of the substantive contents of the Draft on four out of these six topics. 78 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.

150 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

151 144 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.

152 ANNEX TREATY ESTABLISHING A CONSTITUTION FOR EUROPE 1 (Parts I and II) 1 As published in Official Journal of the European Union: OJ C 310/1-474,

153 146 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,

154 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,

155 148 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

156 Annex 149 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

157 150 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

158 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

159 152 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

160 Annex 153 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

161 154 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:

162 Annex 155 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.

163 156 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.

164 Annex 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

165 158 Constitutional Treaty Part I and II 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

166 Annex 159 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

167 160 Constitutional Treaty Part I and II 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

168 Annex 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:

169 162 Constitutional Treaty Part I and II (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 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;

170 Annex 163 (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.

171 164 Constitutional Treaty Part I and II 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;

172 Annex 165 (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:

173 166 Constitutional Treaty Part I and II 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

174 Annex 167 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

175 168 Constitutional Treaty Part I and II 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.

176 Annex 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

177 170 Constitutional Treaty Part I and II 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

178 Annex 171 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 Vice- Presidents. 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;

179 172 Constitutional Treaty Part I and II (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.

180 Annex 173 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.

181 174 Constitutional Treaty Part I and II 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;

182 Annex 175 (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

183 176 Constitutional Treaty Part I and II 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 III- 383, 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.

184 Annex 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 III- 386 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.

185 178 Constitutional Treaty Part I and II 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

186 Annex 179 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

187 180 Constitutional Treaty Part I and II 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

188 Annex 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 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.

189 182 Constitutional Treaty Part I and II 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,

190 Annex 183 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

191 184 Constitutional Treaty Part I and II 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 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 III- 309.

192 Annex 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.

193 186 Constitutional Treaty Part I and II 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

194 Annex 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 III- 416 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 III 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 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

195 188 Constitutional Treaty Part I and II 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.

196 Annex 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.

197 190 Constitutional Treaty Part I and II 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

198 Annex 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.

199 192 Constitutional Treaty Part I and II 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 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 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.

200 Annex 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 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

201 194 Constitutional Treaty Part I and II 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

202 Annex 195 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.

203 196 Constitutional Treaty Part I and II 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.

204 Annex 197 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.

205 198 Constitutional Treaty Part I and II 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

206 Annex 199 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.

207 200 Constitutional Treaty Part I and II TITLE I DIGNITY Article II-61 Human dignity Human dignity is inviolable. It must be respected and protected. 1. Everyone has the right to life. Article II-62 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;

208 Annex 201 (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.

209 202 Constitutional Treaty Part I and II 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

210 Annex 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

211 204 Constitutional Treaty Part I and II 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.

212 Annex 205 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. Everyone is equal before the law. TITLE III EQUALITY Article II-80 Equality 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.

213 206 Constitutional Treaty Part I and II 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

214 Annex 207 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

215 208 Constitutional Treaty Part I and II 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

216 Annex 209 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

217 210 Constitutional Treaty Part I and II 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.

218 Annex 211 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

219 212 Constitutional Treaty Part I and II 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

220 Annex 213 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

221 214 Constitutional Treaty Part I and II 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

222 Annex 215 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

223 216 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.

224 The Treaty establishing a Constitution for Europe was initially drafted by the Convention and was subsequently adopted by the European Council on 29 October The next step is its ratification by the peoples of Europe. Although we have the text of a Constitution, this has not laid to rest the deep questions 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 consolidating the structure in place? CIDEL, which stands for Citizenship and Democratic Legitimacy in the EU, is a 3-years ( ) joint research project with ten partners in six European countries. The project is coordinated by ARENA, the University of Oslo, and is supported by the European Commission s Fifth Framework Programme for Research, Key Action Improving the Socio-economic Knowledge Base. P.O.Box 1143, Blindern N-0317 Oslo, Norway Tel. (+47) arena@arena.uio.no CIDEL: