The importance of being called a constitution: Constitutional authority and the authority of constitutionalism

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1 The importance of being called a constitution: Constitutional authority and the authority of constitutionalism Miguel Poiares Maduro* 1. Introduction The currency of constitutionalism has become the dominant one in debates on European integration. But do we really know what we mean by constitutionalism in the European Union (EU)? We have moved from talking about a process of constitutionalization to questioning whether such a process represents a European constitution (does Europe have a constitution?) to discussing whether the Union requires a formal constitution (does Europe need a constitution?). Two issues underlie both these discussions: whether constitutionalism is the best form of power 1 for the EU to wield and whether the EU has the constitutional authority (in the form of a pouvoir constituant) to adopt this form of power. Current debates on the new constitutional treaty reflect this perpetual balancing between questions of the authority of constitutionalism and constitutional authority. The question of what is in the name constitution involves, in reality, two different constitutional questions. The first concerns the extent to which the new constitutional treaty will affect the way in which constitutionalism, as a normative theory of power, regulates the EU. The second arises from the fear (or aspiration, depending on one s point of view) that the new constitutional treaty will express, in the form of a document embodying the sovereign will of a people, the assumption of constitutional authority by the EU. The way in which one answers these different questions, in the context of the European Union, is influenced by the way in which we conceive of constitutionalism in general (what purposes does it serve?) and which concept of a political community we embrace (what kind of social and political relationship must it embody?). Understood as a normative theory, 2 constitutionalism has * Advocate General at the Court of Justice of the European Communities. The views expressed are my own. I would like to thank Kieran Bradley, Carlos Closa, and Mattias Kumm for their comments on this paper. Miguel.Maduro@curia.eu.int doi: /icon/moi023 1 The definition of constitutionalism as the form of power can be found in FRANCISCO RUBIO LLORENTE, LA FORMA DEL PODER [THE FORM OF POWER] (1st ed., Centro de Estudios Constitucionales 1993). 2 I mean a notion of constitutionalism that embraces a particular form of organizing power, not a neutral label signifying any fundamental document that sets forth the organizational principles of 332

2 M. P. Maduro 333 been thought of as a set of legal and political instruments limiting power (constitutionalism as limit to power). But it has also been conceptualized as a repository of the notions of the common good prevalent in a certain community and as an instrument for organizing power in pursuit of that common good (constitutionalism as an expression of polity). In between, it is possible to stress, instead, the role of constitutionalism in creating a deliberative framework in which competing notions of the common good can be made compatible or arbitrated in a manner acceptable to all, thereby balancing democratic concerns with the control of the political process by a few with the risk of a tyranny by the many (constitutionalism as deliberation). The extent to which constitutionalism can assume these three functions in a particular political community depends on the character of that community. For these purposes, a distinction may be made between two types of social orders. The first would be a constitutional political community, where individuals are regarded as the dominant political subjects and their interests are directly aggregated, with deliberation being based on the promotion of universal rules guaranteed, ex ante, by its generality and abstraction and, ex post, by non-discrimination. The second may be described as an intergovernmental political community, where individual interests are aggregated through the states and deliberation does not aim at universal rules based on the individual status of citizens but reflects the bargaining power of states and generates accommodations among their perceived conflicts of interest. The three functions of constitutionalism and their relationship with different notions of the European polity and polities underpin the essential purpose of this essay: to identify the changing nature of European constitutionalism and its relationship with different forms of authority (normative, political, and constitutional). My thesis is that the role of constitutionalism, with regard to these different forms of authority, is changing within the EU and that its function depends on the relationship between European constitutionalism and the prevailing notions of underlying political community and constitutional authority. The extent of constitutionalism in the Union, so far, has been limited by its instrumental relation to an intergovernmental political community where the EU s constitutional authority is derived from the member states. 3 However, this relationship may have to be changed in light of changes in the legal regime resulting from the EU s current constitutional processes. Though it may be argued that the constitutional treaty still does not represent an exercise of pouvoir constituant and, as a consequence, the Union still lacks constitutional authority, it may also be the case that the treaty s changes of regime both a system or organization. In this latter sense, as one attendee at the Convention on the Future of Europe remarked, one can find constitutions in the most diverse settings, from the United Nations Charter to the statutes of a golf club. 3 As will be made clear below, this lack of constitutional authority should not be confused with the issue of constitutional primacy or supremacy of EU rules.

3 334 A constitutional identity for Europe? presuppose and require an extension of the authority of constitutionalism in the EU. This raises questions regarding the tension between the lack of constitutional authority and the demands for the increased authority of constitutionalism in the Union, as well as questions regarding the extent to which European constitutionalism can assume the three core functions of constitutionalism. I will begin by recalling the process that Joseph Weiler has described as the transformation of Europe. This process included the dynamics of constitutionalization and of Europeanization, enabling Europe to lay claim to the normative and political authority expressed in the doctrines of supremacy and direct effect and leading to its emergence as a community of open and indeterminate political goals. The legitimacy of this process was founded on a functional understanding of the original Communities and was linked with a limited form of constitutionalism (that I would describe as low-intensity constitutionalism ). But this process did not affect the deliberative nature of the political process, which remained predominantly intergovernmental, since it was clear that the states were the masters of the treaties. They were the dominant political subjects of the Communities, understood as an intergovernmental polity. The constitutional form of power was strictly limited to the adoption of the instruments of constitutionalism necessary to limit and, at the same time, legitimate the normative and political authority claimed. It did not affect the nature of political deliberation (centered in the states); nor did it aim at developing the identity of a polity. The incremental nature of the normative and political authority acquired by the EU and the pressures created by the enlargement have led to a crisis over the form of European constitutionalism and an increased tension in its relation with intergovernmentalism. After describing this crisis, I will discuss how the current constitutional treaty tries to resolve that tension yet, at the same time, reinforces it. This is as much a consequence of pragmatic needs as of normative choices. I will review the constitutional nature of the constitutional treaty, paying due attention to the forms of authority mentioned above and to the relationship between constitutionalism and intergovernmentalism. My overall argument is that although the new constitutional treaty may not represent an exercise in pouvoir constituant, capable of embodying a traditional form of constitutional authority, it may, nonetheless, further extend the authority of constitutionalism in governing the EU. The secret of a successful European Union will lie in being able to extend the nature of its constitutionalism without replacing the constitutional authority of the member states with its own. 2. The Transformation of Europe revisited: The birth of political and normative authority In 1991, Joseph Weiler published what has become a most famous essay describing the evolution of the process of European integration in its legal,

4 M. P. Maduro 335 political and economic context, entitled The Transformation of Europe. 4 In it, he explains the constitutionalization undertaken by the European Communities and how it had been possible. Building on his previous thesis of the dual character of supranationality, 5 Weiler explains how the adoption of normative supranationality (the adoption of European rules with federal authority over state rules) was linked to intergovernmental decision making (state control and veto power over the decision-making process). But in that piece and subsequent work, 6 Weiler also highlighted how some of the constitutional doctrines adopted by the European Court of Justice (ECJ), notably the protection of fundamental rights, could be linked to the supremacy and direct effect acquired by European rules. In other words, Community law s claim to normative authority required the adoption of constitutional doctrines to not only legitimate but also control that authority. One can, therefore, add to Weiler s two-dimensional model (normative supranationalism with intergovernmental decision making) the dimension of constitutionalism. However, this constitutional dimension is linked exclusively to the area dominated by normative supranationalism. It is with respect to the areas subject to normative supranationalism that constitutional doctrines appear both to sustain and to control that normative supranationalism. This has limited the scope of European constitutionalism. As Weiler notes with regard to fundamental rights protection, the emergent constitutional doctrine was designed to control a gouvernement des fonctionnaires. 7 It was not directed primordially at controlling intergovernmental decision making since this was perceived to benefit from the traditional indirect democratic and constitutional legitimacy provided by the states. Where states still fully controlled the process of decision making no real question of legitimacy was raised. This was bound to determine the nature of constitutional review in the new European Community. For example, under European constitutionalism, no one thought it a priority to provide for the review of a unanimous decision of member states in the Council. 8 Constitutionalism in Europe came about, on the one hand, to support the normative supremacy of its own rules and to prevent states from disregarding 4 Joseph Weiler, The Transformation of Europe, 100 YALE L.J (1991). 5 Joseph Weiler, The Community System: the Dual Character of Supranationality, 1 Y.B. EUR. L. 267 (1981). 6 Joseph Weiler, Eurocracy and Distrust: Some Questions Concerning the Role of the European Court of Justice in the Protection of Fundamental Human Rights Within the Legal Order of the European Communities, 61 WASH. L. REV (1986). 7 Id. 8 One can find only two instances in which Council legislative acts were struck down in light of fundamental rights and even these were marginal instances. See Case C-49/88, Al-Jubail Fertilizer Company (Samad) and Saudi Arabian Fertilizer Company (Safco) v. Council, [1991] ECR I-3187 (dealing with the right to a fair hearing); Cases C-364, 365/95, T. Port GmbH & Co. v. Hauptzollamt Hamburg-Jonas, [1998] ECR I-1023 (joined cases dealing with nondiscrimination).

5 336 A constitutional identity for Europe? the interests of the broader European Community and, on the other, to control the Community s nascent bureaucracy and autonomous centers of power, which could no longer be controlled by the constitutional orders and democratic constituencies of its member states. To illustrate how this resulted in a particular form of constitutionalism, I will try to identify, in the transformation of Europe described by Weiler, the trademarks of European constitutionalism and its relation with the constitutional questions currently faced by the Union. My aim is to show how the normative foundation of the constitutionalization process derives from a claim of independent normative authority whose connection with a process of Europeanization lies at the heart of the current constitutional questions faced by the Union. Furthermore, I will try to show how the legitimacy of the process of constitutionalization was linked to a particular notion of constitutionalism as well as its relationship with intergovernmentalism. The classical literature on European integration has described how the case law of the ECJ developed a constitutional architecture for Community law founded on the principles of direct effect and supremacy. These principles were complemented by the adoption of constitutional law concepts such as fundamental rights, implied competences, state liability, enforcement mechanisms, separation of powers, and, broadly, the notion of a community of law the EU equivalent of Staatsrecht or the rule of law. 9 According to Weiler: The constitutional thesis claims that in critical aspects the Community has evolved and behaves as if its founding instrument were not a Treaty governed by international law but, to use the language of the ECJ, a constitutional charter governed by a form of constitutional law. 10 This constitutional construction was legitimated by the Court on the basis of what one could call an epistemological shift in the understanding of EC law and the source of its normative authority. When the ECJ, in its path-breaking decisions, took EC law to be an autonomous legal order, it did so on the basis of a presumed direct relation with the peoples of Europe. 11 It was this premise that accorded an independent normative authority to the European Communities (later the EU) and its legal order. It would have been possible, as 9 JOSEPH WEILER, THE CONSTITUTION OF EUROPE: DO THE NEW CLOTHES HAVE AN EMPEROR? AND OTHER ESSAYS ON EUROPEAN INTEGRATION (Cambridge Univ. Press 1999); Koen Lenaerts, Constitutionalism and the Many Faces of Federalism, 38 AM. J. COMP. L. 205 (1990); Eric Stein, Lawyers, Judges and the Making of a Transnational Constitution, 25 AM. J. INT L. L. 1 (1981); Federico Mancini, The Making of a Constitution for Europe, 26 COMMON MKT. L. REV. 595 (1989). 10 Joseph Weiler, The Reformation of European Constitutionalism, 35 J. COMMON MKT. STUD. 98 (1997). Some authors go further than talking about the constitutionalization of E.U. law. 11 See Case C-6/64, Costa v. ENEL, [1964] ECR 585; Case C-26/62, Van Gend en Loos, [1963] ECR 1.

6 M. P. Maduro 337 Bruno de Witte has powerfully explained, 12 to base the supremacy and direct effect of Community law on its recognition in national legal orders, particularly, national constitutional law. However, this vision was not the one embraced by the ECJ and by most national courts to wit, that entrusting to the European Court the resolution of conflicts of authority between national and European norms constituted an implicit recognition that such conflicts were to be decided at the European level. The European Court of Justice, supported by national courts, founded the direct effect and supremacy of Community law on a direct relation between Community norms and the peoples of Europe. The treaty is presented as much more than an agreement among states; it is an agreement among the peoples of Europe that establishes this direct relationship between EC law and those peoples. 13 That source of direct legitimacy establishes a political link authorizing a claim of independent normative authority. Legal authority was to be derived, therefore, from an autonomous conception of the European legal order. This corresponds to a claim of independent normative authority that means the European Communities are, in the words of the Court, endowed with sovereign rights. 14 And this normative authority entitles the European legal order to circumscribe the limits of national legal orders. It further grants to European rules the authority to derogate from the application of national constitutional rules corresponding to a de facto attribution of constitutional supremacy vis-à-vis those national rules. 15 The assumption of independent normative authority has required the adoption of constitutional doctrines to constrain and legitimate that authority. In the process of European integration, constitutionalism as the prevailing form of power followed the claim of normative authority and not vice versa. It was thus a constitutionalism instrumental to and limited by that claim of normative authority. The constitutional supremacy of EC rules, therefore, did not reflect therefore the assumption of a constitutional authority in the sense of a pouvoir constituant, that is, the power of a polity to define its own destiny. Nevertheless, the normative autonomy of Community law, whose legitimacy flows directly from the peoples of Europe and is, thus, not dependent on the states, has also allowed for the expansion of the political ambitions inherent in the process of European integration. This was reinforced by the functional dynamics of the process of economic integration and by the slow but increased shift of political action from the national to the European arena. As a consequence, independent normative authority has been complemented by 12 Bruno de Witte, Direct Effect, Supremacy and the Nature of the Legal Order, in THE EVOLUTION OF E.U. LAW 181, 209 (Paul Craig & Gráinne de Burca eds., Oxford Univ. Press 1999). 13 See Van Gend en Loos, supra note 11, at Id. 15 Not to be confused with constitutional authority as defined below the existence of pouvoir constituant.

7 338 A constitutional identity for Europe? increased independent political authority, that is, the autonomy to define the forms and goals of political action. This is most apparent in a series of phenomena that can be classified under the general heading of Europeanization. In itself, the process of constitutionalization would not have raised important constitutional challenges so long as the use of the normative authority assumed by Europe remained within the boundaries of clearly delimited competences, traceable to express delegations from the states or strictly controlled by these. What raised the current constitutional challenges was the association between constitutionalization a claim of independent normative authority and Europeanization the emergence of a community of open and indeterminate political goals subject to increased majoritarian decision making. The first element of Europeanization relates to the growth of Community and EU competences. In parallel to the process of constitutionalization, EU law has also seen its scope of action and EU competences extend beyond the initial limits of the treaties. This means that the European Union has taken over many traditional functions of governance and, even with regard to those still retained by the states, it exercises an increased supervisory role, limiting the self-governing powers of the states. These developments have turned the European Union into a new space for political action with regard to the framing of open and unspecified political goals. The limits of Union action are no longer defined by the express competences that the states have attributed to it and are, instead, the flexible product of political action by a broad variety of social actors. These participants in the European political space attempt to promote their interests at a new level of decision making with such political authority as will allow for the pursuit of a broad and highly indeterminate set of public goals. Inherent in this is a conception of the European Union as a political community that could take over many of the states traditional functions of governance and where many of the policies of the latter could be subject to new deliberations. But this Europeanization did not take place only with regard to the competences transferred from the states to the European Union. The way in which such competences are exercised also has been progressively Europeanized through the move from unanimous to majoritarian decision making. The evolving definition of EU policies with regard to a European majority means that they are no longer the result of a cooperative process among member states. Member states have gradually relinquished their individual control over the decisions of the European Union. This has been increasingly the product of a European political process determined not only by the will of a majority of states but also of a majority of Europeans. Moreover, states have progressively loosened their dominance in representing those Europeans. As a consequence, Europeanization reflects not only the extension of EU competences but also the Europeanization of the way in which they are exercised. The degree of control exercised over EU policies by individual states decreases in three ways as EU decision making moves from unanimous to majoritarian

8 M. P. Maduro 339 decisions: through majoritarian voting rules; through increased proportional representation; and by virtue of the appearance of new political actors beyond the states. There is a final element in the process of Europeanization that is related to the degree of EU control and the impact on those policies that continue to be pursued by the states, whether exclusively or concurrently with the Union. A key role in the Europeanization of nation states has been played by the market integration rules of the treaty and by the simple dynamics generated by economic integration itself. In the first place, the Europeanization of national policies through market integration can be seen in the way in which the exercise of national competences is constrained by the application of the rules of market integration. A good example may be found in the interpretation of the free movement rules and their use in challenging different areas of national legislation that impact on the market. 16 This meant that EU law would often second-guess the reasonableness of national policies in areas such as consumer, environmental, or health protection. Another example of this indirect Europeanization of national policies is the use by the Commission of its discretionary power in authorizing state aids in order to develop de facto the elements of an EU industrial policy. The possibility of states granting aids to companies in economic difficulties, for example, was made dependent on the national adoption of criteria regarding the economic viability and restructuring of those companies. All these examples are part of the process Sabino Casesse refers to as comunitarizazione di funzione nazionali (the communitarization of national functions). 17 Such a process is further reinforced by the mechanism of regulatory competition among states, which is generated by the internal market and the mobility it entails. The forum shopping by companies, consumers, and taxpayers allowed by economic integration and market competition challenges the autonomy of states even in the realm of policies thought to be within their exclusive domain, such as those shaping distributive justice. Even if social security, or tax policies, for example, are regulated at the EU level only to a limited extent, their national definition must now take into account the constraints arising from the mobility of companies and persons among member states. If one wants to be even more provocative, one could say that national constitutions themselves have been Europeanized. For example, European integration has affected the domestic separation of powers within states. National governments can use the legislative powers of the European Council to overcome the opposition of national parliaments or assume their reserved areas of competence. In the same way, national courts frequently have been 16 MIGUEL P. M ADURO, WE THE COURT: THE EUROPEAN COURT OF JUSTICE AND THE EUROPEAN ECONOMIC CONSTITUTION (Hart 1997). 17 Sabino Casesse, La Costituzione Europea, QUADERNI COSTITUZIONALI 487 (1991).

9 340 A constitutional identity for Europe? empowered by EU law, acquiring powers of judicial review with regard to national legislation even where that was not the case under their own constitutions. It is increasingly difficult to define an area of the member states traditional governance functions that is not, directly or indirectly, impacted by the European Union. The constitutional transformation of Europe is also a constitutional transformation of the member states. This is a natural consequence of the emergence of a common economic and political space at the European level that has gradually complemented the normative authority of the Union with a growing political authority. Given this state of affairs, the question of constitutional relevance is this: What form of constitutionalism should the European Union acquire and how should it relate to national constitutionalism? 3. Low-intensity constitutionalism The constitutionalization of the treaties created a constitutional body without discussing its soul. The constitutionalism emerging from the development of European integration was a peculiar type that was never clearly defined what I have described as low-intensity constitutionalism. It was characterized by several elements. In the first place, this was an incremental, bottom-up constitutionalism the product not of a constitutional moment 18 but, rather, of a gradual judicial and political development that was often constructed by reference to national constitutional sources. It was a product of intergovernmental developments, in the form of treaty revisions, combined with constitutional interpretation by the ECJ in cooperation with a constituency of legal and political actors, both national and supranational (in particular, national courts and litigants, and the European Commission). 19 The low intensity of this European constitutionalism is reflected in the absence of a two-track democracy. There was no substantial difference between the legislative and constitutional processes. Both were dominated by an intergovernmental legitimacy based on providing democracy to Europe through the states. This further helps to explain the extent of judicial deference toward the legislative process in the Council. 20 The authority of this emergent constitutionalism was constantly questioned by national constitutions and was subject to the veto right of national 18 On this point see generally BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (Harvard Univ. Press 1993). 19 Miguel P. Maduro, Contrapunctual Law: Europe s Constitutional Pluralism in Action, in SOVEREIGNTY IN TRANSITION (Neil Walker ed., Hart 2003). For a comprehensive analysis of the role and dynamics of those different actors, see ALEC STONE SWEET, THE JUDICIAL CONSTRUCTION OF EUROPE (Oxford Univ. Press 2004). 20 As mentioned above, it is a different story when an independent bureaucracy, without direct democratic legitimacy and without benefit of such intergovernmental legitimacy, dominates the executive.

10 M. P. Maduro 341 courts. 21 It is not surprising, therefore, that it was, in part, a defensive constitutionalism. It did not purport to reflect a social or political contract that would empower and organize the Union so as to promote a vision of the common good or to resolve conflicts between competing visions of the common good. Instead, it chiefly consisted of the adoption of a series of constitutional doctrines necessary to justify and legitimate the assumption of normative and political authority by the European Communities. Concepts such as fundamental rights, separation of powers (embodied in the notion of institutional balance), and the rule of law ( a Community of law in the words of the Court) 22 were seen as guaranteeing that the power assumed by the European Communities was subject to the same limits and constraints as that being exercised at the national level. But these constitutional concepts did not affect the way the political process operated or how it aggregated the different interests at stake. This was the domain of intergovernmental politics. While states aggregated individual interests through the mechanisms of democratic deliberation at the national level, Community policy making was dominated by the logic of intergovernmental bargaining among the national interests expressed by the states. Constitutionalism as a form of deliberation was left to the domain of national political communities. When European constitutionalism was used to promote the Communities authority to encroach on the sovereign spheres of the states, this was legitimated either by the extent to which the states had had a voice in the deliberation process or by framing that encroachment as protecting freedom and individual rights (in other words, reinforcing constitutional control over power). It is notable, with regard to the latter, that the areas where the Community began to evolve toward majoritarian decision making were those directly related to the internal market. These were easier to legitimate both by a functional construction of the Communities and by invoking a concept of constitutionalism simply as a limit to power. European constitutionalism, thus, is linked to two different visions of the legitimacy of the process of European integration. The first is represented by a functional and technocratic conception of the European Union as an efficiencyoriented, problem-solving entity to which states delegate the resolution of collective problems they can no longer address individually. 23 The second follows the tradition of limited government and conceives of the process of European integration as a new constitutional constraint on public power, protecting 21 Damian Chalmers, Judicial Preferences and the Community Legal Order, 60 MOD. L. REV. 164 (1996). 22 See Case C-50/00 P., UPA v. Council, [2002] ECR I-6677, pt. 38; Case C-294/83, Les Verts, [1986] ECR 1339, pt GIANDOMENICO MAJONE, THE EUROPEAN COMMUNITY AS A REGULATORY STATE (Academy of European Law 1995).

11 342 A constitutional identity for Europe? freedom and private autonomy. 24 In this case, and in this way, European constitutionalism is perceived as reinforcing national constitutionalism. It is not linked to the creation of a European polity but is limited to the control of European and national forms of power. Both these visions of legitimacy assume that European constitutionalism is framed by and limited by national political communities. Functional legitimacy worked well with intergovernmental deliberation. Limited goals, which were instrumental or complementary to the state and did not have redistributive effects, both justified and were justified by a form of deliberation centered on the aggregation and conciliation of state interests. Moreover, a limited form of constitutionalism provided an appropriate constitutional guarantee to the bureaucratic powers emerging from such a project. Where the Union encroached on states sovereignty, this version of legitimacy was supplemented by the appeal to the protection of freedom and private autonomy in the face of power. European constitutionalism appeared, in this light, as an external but self-imposed constitutional constraint aimed at reinforcing domestic constitutional limits on the power of the state. It was perceived, in effect, as an instrument of state constitutional values. As mentioned above, this construction of European constitutionalism and the legitimacy of European integration left the aggregation of individual interests to the states. The common good was either defined by an agreement between states or conceived of as the protection of private autonomy and freedom enshrined in the logic of market integration and efficiency-enhancing policies. This also rationalized the priorities and agenda of judicial review, which was to focus on the integration of markets, the review of state action, and the control of the European bureaucracy s executive power. A higher deference was to be accorded to the intergovernmental process, which was legitimated by consensus among states. Constitutionalism existed as a set of legal instruments to solve conflicts of power between the Communities and the states and to set limits on those powers. But such constitutionalism was not intended to be an expression of a European polity; nor was constitutionalism adopted as the form of deliberation in the European political sphere. Law was dominated by constitutional doctrines but politics and deliberation remained intergovernmental, based on the aggregation of interests through the states and on policies that expressed the bargains made among them. Individuals were not regarded as the primary political subjects and principals of the European Communities, and this was reflected in the conception of its political process. Policies were not drafted, as a consequence, to uphold the constitutional values of universality, generality, and abstraction in light of the individual conditions of European citizens. 24 See ERNST-ULRICH PETERSMANN, CONSTITUTIONAL FUNCTIONS AND CONSTITUTIONAL PROBLEMS OF INTERNATIONAL ECONOMIC LAW (Fryeburg: University Press, 1991); see also FRIEDRICH HAYEK, THE ROAD TO SERFDOM (Routledge 1944).

12 M. P. Maduro 343 Instead, European citizens were treated by European policies in accordance with the bargains struck by their respective states. Political intergovernmentalism and constitutionalism, as limits to power, dominated the arena. Meanwhile, both deliberative and polity constitutionalism were left to the states. While the European Communities were claiming normative and political authority requiring constitutionalism as the proper form of such power, those claims did not and could not extend to constitutional authority. As a consequence, European constitutionalism was limited by the underlying authority of national political communities. Political intergovernmentalism with limited constitutionalism was the way to reconcile the opposing forces. This twofold strategy for ensuring legitimacy, however, is being progressively challenged by the extent and nature of the powers assumed by the Union. The incremental nature of normative and political authority either requires some underlying constitutional authority or enters into increased conflict with national constitutional authority. Functional legitimacy is not capable of adapting itself to an emerging polity of open-ended goals whose policies have increasingly redistributive effects and in which the political dynamics increasingly evade the control of the state. Further, the growing impact of European policies on national democratic deliberations cannot continue to be justified as protecting freedom and private autonomy without transforming these goals into dominant societal goals. But such a conclusion, naturally, will be opposed by many at both the EU and national levels. 4. The polity question Slowly, the Union has become dissatisfied with its traditional low-intensity constitutionalism coupled with political intergovernmentalism. The political transformation of Europe has challenged some of the conditions for political organization in Europe at both Union and state levels. Thus the EU challenged the constitutional basis of the states without providing a clear deliberative alternative for the definition of the common good. At the same time, the processes of constitutionalization and Europeanization raised new claims for legitimacy in the European Union. The claims of political and normative authority cannot be sufficiently legitimated by the functional rationale and the low-intensity constitutionalism described above. The answers to these challenges increasingly demand an inquiry into the nature of the European polity and its relationship with national polities. As matters stand, they are not compatible, given a strict separation between constitutionalism and the question of the political community. The issue of the democratic deficit is the constitutional problem most often highlighted in EU debates. This concern was reflected in the agenda of the Convention on the Future of Europe in items dealing, for example, with the participation of national parliaments, transparency, and fundamental rights protection. It also shaped the debate on institutional reform which, contrary to

13 344 A constitutional identity for Europe? the initial plans, turned out to be one of the key issues addressed in the context of the constitutional treaty. There are different accounts of the democratic deficit. The most common of these links the democratic deficit of the EU to the secondary position of the European Parliament vis-à-vis other European institutions in the Union s decision-making processes. Despite the legal and political developments that have reinforced the position of the European Parliament in the EU s institutional framework, it is still characterized by a lesser degree of parliamentary representation and majority decision making in the European political process than its counterparts in national democracies. The expanded competences of the European Union have provoked claims of a democratic deficit because powers previously under the control of national parliaments are being transferred to the EU level where they are subject to a lower degree of parliamentary participation. The consequence is an overall decrease of parliamentary control over the legislative process that is seen as a democratic deficit undermining the legitimacy of the Union and the powers exercised therein. There are two underlying fears in connection with the democratic deficit. The first is that government officials who are not directly accountable may be captured more easily by interest groups and thus prove less responsive to the general interests of the people. Here the democratic problem is that of accountability. The second fear is that a small minority in a state could be overrepresented in the intergovernmental process and thus be able to impose its preferences even in the face of an overwhelming European majority. Here, the argument turns into another form of democratic discourse in Europe one that focuses on the nonmajoritarian character of decision making. The democratic problem, in this case, is an issue of representation linked to nonmajoritarian decision making. The nonmajoritarian label is also applied increasingly in yet another discourse, concerning the lack of appropriate proportional representation. Discussions at Nice were emblematic of the growth of a democratic rhetoric on the need to organize representation in Europe based on equal representation among citizens, not among states. From this flows the demand for greater representation in proportion to the population of each state. 25 Europeans in a small state should not have more power than other Europeans who happen to be citizens of a larger one. The argument is that representation in Europe should move closer to the principle of one person, one vote. All these accounts of the democratic deficit argue in favour of bringing the Union closer to traditional forms of democratic deliberation. However, there are profound differences of opinion on how to democratize the Union. One solution argues for adopting a democratic model such as that of the state. Another would claim that the democratic legitimacy of the Union can only be provided through the states that it is through national democracies that the EU could be brought back under democratic control. The choice of democratic 25 Whether the second statement follows from the first is very doubtful and will be discussed below.

14 M. P. Maduro 345 model would thus depend on the polity Europe or the states chosen as the locus of democracy. There are proposals that argue in favour of reinforcing the powers of the European Parliament, while others plead for enhanced control through national parliaments. Whether or not such solutions are seen as enhancing democracy in the European Union depends on one s previous conceptions of the polity and how individual interests can and ought to be aggregated in Europe, how participation should take place (through the states or the Union), and what is the appropriate political community in which to gauge the will of the majority. The question of choice of polity also arises when one attempts to define the goals of the EU and the policies that they entail. Whatever limits European integration has imposed on the performance of traditional functions at the national level, it has not envisaged the EU taking over those functions. The Union, as yet, neither fulfils the conditions nor has the capacity to perform those functions. As a consequence, the process of European integration is seen not simply as challenging the capacity of states in this area but, more broadly, as challenging those functions of governance themselves. For some, the process of European integration threatens the very conception of the welfare state that has supported the subsistence of national political communities and moulded our conception of public power. 26 Others, notably Jurgen Habermas, perceive that challenge as resulting from broader global processes and so conceive of the European Union as an opportunity to protect the values of the welfare state. 27 For that to come about, the Union would have to adopt a social contract clarifying the forms of civic solidarity on which the European polity should be based. Again, the path to be followed depends on our conception of the European polity. The polity question is also fed by the increased redistributive consequences of EU policies. Even if the Union were to continue primarily as a regulatory entity, its regulatory choices often entail profound redistributive effects at the state level. These effects occur independently of the budget constraints of the Union and even when EU policies do not directly allocate income among EU citizens. 28 Most often, they are evident in budgetary choices imposed on the states as a consequence of EU rules. 29 The redistributive impact of current European policies and the claims for a just distribution of the gains arising from economic integration have so far been addressed as state matters. 26 For a discussion of this problem see FRITZ SCHARPF, GOVERNING IN EUROPE. EFFECTIVE AND DEMOCRATIC? (Oxford Univ. Press 1999). 27 JÜRGEN HABERMAS, THE POSTNATIONAL CONSTELLATION (Polity Press 2001). 28 Obvious examples of more directly redistributive impacts are posed by agricultural and fishing quotas. 29 Compliance with EU environmental or health rules, for example, may require investing in certain public infrastructures at the expense of others. In this way, the EU affects the allocation of resources within a state and shapes its redistributive choices.

15 346 A constitutional identity for Europe? Economic integration is perceived as mainly about wealth maximization, while redistribution takes place at the level of the state. Both the limited, directly redistributive policies of the Union and the redistributive impact of other policies is legitimated through bargaining, which is seen as occurring between states and not between European citizens. However, both the expansion of the EU s scope of action and its institutional changes are producing redistributive effects that can no longer be traced back to any original agreement among the states or conceived of as part of an ad hoc political bargain that might legitimize them through the appropriate forms of compensation among states. Instead, the degree of majoritarian decision making, the scope of European policies, and the open and indeterminate character of political action, require either an overall criterion of distributive justice to legitimate those different policies and their redistributive effects or, alternatively, an agreement on constitutional forms of deliberation to develop such a criterion. At the same time, the more direct relation established between European citizens and the Union requires the development of criteria of distributive justice that are capable of justifying to those citizens the differentiated impact of EU policies upon them. In popular terms, the questions will increasingly be along the lines of: Why should poor citizens of state A be made to pay for both poor and rich citizens of state B? Why should some citizens of state A receive less than similarly situated citizens in state B, just because state A agreed to allow this in exchange for a compensation that benefits a different group of state A s citizens? Can redistribution in the form of directly redistributive policies or redistributive impacts in the Union continue to be a function of national borders rather than of the individual status of European citizens? Again, the answer to these questions is closely linked to the broader polity question. In light of the above questions, it is easy to see how the incremental nature of the normative and political authority claimed by the Union can also lead to a claim for constitutional authority. In other words, if one can legitimate a new European polity, and this polity acquires both normative authority (supremacy and direct effect) and political authority (the autonomous determination of its scope of action), a new question emerges regarding the potential conflicts of ultimate authority between national polities and the European polity. This question is reflected in the increased fears of a constitutional conflict between national legal orders, mainly national constitutions, and the EU legal order. Or, as we have come to know it in the European context, the kompetenz/kompetenz question. 30 In reality this is a problem about the authority of the EU and how such authority is to be coordinated and reconciled with the authority of national polities. 30 See also Mattias Kumm & Victor Ferreres Comella, The primacy clause of the constitutional treaty and the future of constitutional conflict in the European Union, 3 INT L J. CON. L. (I CON) 473, 475 (2005).

16 M. P. Maduro 347 It seems that clarification of the nature of EU authority would require choosing between two very different constitutional options: either a strict limitation of its competences, denying constitutional authority to the Union by limiting its political authority while accepting its normative authority, 31 or else a clear definition of its constitutional authority with regard to the member states. In the second instance, the Union should assume a form of pouvoir constituant. Only this would clarify the extent of its constitutional authority and solve the problems created by the normative and political authority it already holds. In my view, however, it is consonant with the nature of European constitutionalism itself to leave the question of final authority open. 32 From the previous analysis one can appreciate how difficult it is to establish the polity legitimacy of the European Union and also how badly such legitimacy is needed in order to respond to many of the current challenges faced by the Union. Certain majoritarian developments, for example, presuppose a form of democracy that requires a particular form of polity. There are certain policies, too, whose redistributive consequences may only be fully legitimated by a criterion of distributive justice that has been agreed to within a polity. This would require the project of European integration to secure the delicate balance between the authority of national and European polities. It is in this context that the concept of constitutional pluralism appears particularly appropriate for describing the emerging relationship among a plurality of constitutional forums. 33 But this constitutional pluralism must not be simply about regulating the question of ultimate authority between national and EU constitutions. It must be based on a particular understanding both of the normative value to be derived from this plurality of constitutional sources and of the relationship between EU and national political communities. 34 The extent and difficulty of the constitutionalism challenge faced by the Union derives from the fact that, although European constitutionalism must have polity-building capacity, it must, at the same time, preserve polity diversity. In the first place, the ideal of political pluralism inherent in European constitutionalism extends to the question of the polity itself. In the second place, the maintenance of polity diversity in the context of an emerging polity creates a tension between the constitutionalism required by the latter and the intergovernmentalism imposed by the former. So far, this tension has been solved by keeping constitutionalism outside the deliberative process. 31 In other words, the supremacy of EU norms would remain, but would operate within a limited and very clearly defined realm of competences. The most ambitious version would deny even normative authority by subordinating the EU constitution to national constitutional norms. 32 See Maduro, supra note See Neil Walker, The Idea of Constitutional Pluralism, 65 MOD. L. REV. 317 (2002). 34 See MADURO, supra note 16. See also Miguel P. Maduro, Europe and the Constitution: what if this is as good as it gets?, in EUROPEAN CONSTITUTIONALISM BEYOND THE STATE (Joseph Weiler & Marlene Wind eds., Cambridge Univ. Press 2003).