Unresolved Issues of The Constitution For Europe M Rethinking The Crisis

Unresolved Issues of the Constitution for Europe
Rethinking the Crisis

Edited by
Nanette Neuwahl and
Stefan Haack

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Les ditions Thmis
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Unresolved issues of the Constitution for Europe: rethinking the crisis
Includes bibliographical references.
Includes some text in French.
ISBN 978-2-89400-234-6
1. European Union - Constitution. 2. Constitutional law - European Union countries.
3. European federation. 4. Treaty Establishing a Constitution for Europe (2004).
I. Neuwahl, Nanette, 1959-. II. Haack, Stefan, 1975-.
KJE4445.U67 2007 342.402 C2007-940680-7
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Law is perpetually in the
process of becoming.
Rudolf von Jhering, Der Kampf ums Recht, Vienna 1874.
(Free translation.)
ACKNOWLEDGEMENTS
The editors would like to thank Mr Louis Sanfaon, former co-ordinator of
the Chaire Jean Monnet en integration europenne de lUniversit de Montral
for his professional administrative support and Mrs Anka Pascievici for valuable
assistance during the onset of this project. Back in 2004, these two people were
the heart of an ECSA-Canada Conference organised by the Chaire, entitled A
Constitution for Europe? Governance and Policy in the Making, where the idea of
publishing a number of volumes on the Constitution for Europe was tabled. The
proceedings of that conference were edited by Francesca Astengo and Nanette
Neuwahl under the title A Constitution for Europe? Governance and Policy-
Making in the European Union and published by the Chaire in 2004.
Obviously, many things have changed since that time, and after the appar-
ent crisis caused by the French and Dutch rejection of the Treaty establishing
a Constitution for Europe the editors have decided that, conceptually, they
had to return to the books; the subtitle of the book, Rethinking the Crisis,
implicitly refers to that. Whereas the chapter by Alberta Sbragia and one other
chapter are reworked versions of conference publications, all the other chapters
are new contributions to the debate on the basis of a new, targeted call for
proposals and a purposeful selection of contributions by the editors.
Yet it is due to the European Commission, the Department of For-
eign Affairs of Canada and the Ministre des Relations internationales du
Quebec, who, together with the Law Faculty of the University of Montreal
sponsored the Chair Jean Monnet en intgration europenne de lUniversit
de Montral that publications such as these can be realised.
The editors are also indebted to Albert Bohmier, emeritus professor,
Jacques Frmont and Ejan Mackaay, colleagues, for their continuous sup-
port throughout this venture, and M
e
Christian Saint-Georges of publications
Thmis, for his patience and famous good care.
The Editors, January 2007.
CONTRIBUTORS
Matej Avbelj graduated from the Faculty of Law of the University of
Ljubljana, Slovenia. He received an LLM (with distinction) from New York
University School of Law, where he spent a year as Hauser Research Scholar.
He clerked at the Court of Appeals in Ljubljana, and after having worked as
a Robert Schuman trainee for constitutional affairs in the European Parlia-
ment (Brussels), he enrolled in a PhD Programme of the European Univer-
sity Institute in Florence, Italy, where he is currently conducting research
into the coherence of the EU legal order. Matej is founding member of the
Law Institute of Ljubljana. His publications are on EU integration, consti-
tutional law and legal theory.
Pamela M. Barnes is Jean Monnet Chair in European Political Integra-
tion at the University of Lincoln, UK, where she is a principal lecturer. She
has co-authored several books, including (with Ian G. Barnes) The Enlarged
European Union, published 1995 by Longman, and Environmental Policy in
the EU, published 2000 by Edward Elgar Publishing. She is the author of
articles and book chapters on enlargement and EU environmental policy,
EU environmental management and audit legislation, the environmental
impact of CAP reforms, the development of an EU nuclear energy strategy,
EU institutional developments and the decision making process, and EU
citizenship. Her latest publication is Europeanization of Environmental
Policy, in Fergus Carr and Andrew Massey (eds.), Public Policy and the New
European Agenda, Edward Elgar Publishing, 2006.
Stphane Beaulac is Associate Professor at the Faculty of Law of the
University of Montreal, where he teaches public international law and statu-
tory interpretation. He started his career at Dalhousie Law School in Halifax.
He has a Ph.D. in international law from the University of Cambridge,
England, and was a law clerk at the Supreme Court of Canada with Jus-
tice LHeureux-Dub. In the 2006-2007 academic year he is Max Weber
UNRESOLVED ISSUES OF THE CONSTITUTION FOR EUROPE
Fellow at the Law Department of the European University Institute in
Florence, Italy. His works include The Power of Language in the Making of
International LawThe Word Sovereignty in Bodin and Vattel and the Myth
of Westphalia (Martinus Nijhoff, 2004) and International Human Rights and
Canadian LawLegal Commitment, Implementation and the Charter (Car-
swell, 2006)this one co-authored with William A. Schabas.
Agnieszka K. Cianciara is Academic Assistant in the College of Europe
in Natolin, Warsaw. She also follows a Ph.D. programme in political sociol-
ogy in the Institute for Political Studies of the Polish Academy of Science.
She graduated from the College of Europe in Bruges (Master in European
Political and Administrative Studies) in 2006 and from Warsaw University
(Faculty of Journalism and Political Science) in 2005. Her main interests are
the formation of the political elites, interest representation and lobbying on
national and EU level, as well as EU institutional reforms.
Nico Groenendijk is Jean Monnet Professor of European Economic
Governance in the Department of Legal and Economic Governance Studies
of the University of Twente, in The Netherlands. He holds a Masters degree
in Public Administration (specialisation: public sector economics). His
Ph.D. thesis dealt with the political economy of raising public revenues. He
is currently Co-Director of the Centre for European Studies and Research
Fellow of the Institute for Governance Studies of the University of Twente
as well as Senior Member of the Netherlands Institute of Government. He
works on the budgetary and institutional development of the EU, on the
coordination of European scal policies, and on the Lisbon agenda, and
he has published on the EU budget, EU budgetary control and nancial
management, scal surveillance within the EU, the stability and growth
pact, tax coordination and competition, the open method of coordination
and benchmarking, multi-level governance, (regional) innovation and smart
nancing techniques for urban regeneration. His approach typically includes
neo-institutional economics, institutionalist approaches to European inte-
gration, and classic public nance theories.
Stefan Haack is senior lecturer in Public Law. He is a graduate of law
from the University of Leipzig (1999). His Ph.D., obtained 2001, was pub-
lished under the title Widersprchliche Regelungskonzeptionen im Bundesstaat
(Berlin: Duncker & Humblot, 2002). In 2006, he completed his Habilita-
tion thesis: Verlust der Staatlichkeit (publication forthcoming). He has, in
addition, published a number of articles on European Constitution-making
in leading legal journals in Germany and abroad. Dr Haack is an expert for
VIII
CONTRIBUTORS
Constitutional Law in parliament hearings in Saxonia. His current research
is focused as much on the process of constitution making in the European
Union as it is on the philosophy of law and the State and on German admin-
istrative law.
Dorothee Heisenberg is Associate Professor of European Studies at
Johns Hopkins University, School for Advanced International Studies (SAIS)
in Washington DC. She teaches on the European Union; new public policy
for the information revolution; business, government and the international
economy; international rms and national governments, European political
economy, trade and investment in the European Union, Europe and the euro,
and on contemporary international political economy. She has published a
wide range of books and articles about the development of the European
Union. The latest refereed publication is Merkels EU Policy: Kohls Md-
chen or Interest-driven Politics?, 24 German Politics and Society (2006).
Eve C. Landau is Professor of Law at the Webster University Geneva.
She holds a LL.B. degree (London) as well as a Docteur en droit (Paris) and
a Diploma of the Hague Academy of International Law. Before working
at Webster Univeirsity, Professor Landau was Fellow of the Alexander von
Humboldt Stiftung (Frankfurt am Main), Professor of Public International
Law and European Law at the Hebrew University Jerusalem and Professor
of Law at the Faculty of Law at the Tel-Aviv University (1980 to 2006).
Professor Landau has published numerous legal books and articles on Euro-
pean subjects, such as The Rights of Working Women in the European Com-
munity, published by the European Commission in the Series European
Perspectives.
Olaf Leisse is Assistant at the Chair of International Relations of the
University of Erfurt, Germany. He holds degrees in philosophy (Berlin) and
administrative science (Speyer), as well as a Ph.D. in political science (Ber-
lin). He has published widely on the constitution-making process in the
EU and on the 2004 enlargement. In particular, he deals with Europeaniza-
tion processes in South East European countries and ethno-federalism as a
political solution for heterogenic States. He just nished his Habilitation
about nationalization and denationalization processes in Europe, and he is
co-author (with P. Becker) of The Future of Europe. The Convention for the
Future of Europe 2002-2003. (Die Zukunft Europas. Der Konvent zur Zukunft
der Europischen Union 2002-2003, Verlag fr Sozialwissenschaften Wies-
baden 2005).
IX
Michel Lelart is research director at the Centre National de la Recherche
Scientique (CNRS). He works at the Laboratoire dconomie dOrlans.
He has published extensively on the international monetary system and on
the European currency and edited the work of others in the eld of micro-
nance. He is also a regular contributor to French and foreign journals.
Among his publication are De la nance informelle la micronance. (Savoirs
francophones Paris 2006), and Le systme montaire international (Editions
La Dcouverte. Paris, 6th edition 2003).
Aharon Yair MacClanahan Sophet is Lecturer at the International
Relations Department of the Hebrew University in Jerusalem. He has a
Masters degree in Industrial Relations at the London School of Economics
with a thesis on The Dynamics of Migration according to Disparities in
Wealth and a Ph.D. in Political and Social Science at the Pompeu Fabra
University (Barcelona) with a thesis on Supranational Integration: Explaining
the Distinct Levels of Sovereignty Transferral between the Different Integrated
Areas. In his post-doctoral research projects and lectures, he focuses on the
theoretical aspects of integration.
Neva Maher is vice dean for research and development at the High
School for Business and Administration in Slovenia, where she lectures on
accountancy and EU market policies. She represents Slovenia in Brussels in
the European Social Fund. During the past two years she has focused her
research and analysis on competences, values and tasks within European
integration and quality control.
Jrg Monar, who currently holds the Marie Curie Chair of Excellence
on EU internal security governance of the Robert Schuman University of
Strasbourg, is Professor of Contemporary European Studies, Jean Monnet
Professor, and Co-Director of the Sussex European Institute at the Univer-
sity of Sussex, United Kingdom. He is also a Professor and Member of the
Academic Council of the College of Europe, Bruges, Belgium, and serves
as a specialist advisor on EU Justice and Home Affairs to the British House
of Lords. His main research interests are in European political and institu-
tional integration, Justice and Home Affairs and the EUs Common Foreign
and Security Policy. He has authored, coauthored, and edited more than
150 books, book chapters and articles.
Joakim Nergelius is Professor of Law at rebro University. He was also
Associate Professor of Constitutional Law and EU Law at the Faculty of Law
in Lund, and docent in European and Comparative Law at Abo Akademi
(Turku) and at the Swedish chair of Public Law at the University of Helsinki.
X
CONTRIBUTORS
Professor Nergelius has previously worked as Swedish legal administrator at
the European Court of Justice (Division of Research and Documentation),
and as Administrator at the EU Committee of Regions, where he was closely
involved with the EU Convention. From May 2000 to April 2004 he was
President of the Swedish Section of International Commission of Jurists.
Professor Nergelius has published numerous books and articles on different
elds of Public Law.
Nanette Neuwahl is professor of Law at the University of Montreal,
Canada. She is a twofold graduate (kandiaat, doctorandus) from the Uni-
versity of Leiden, The Netherlands, with a PhD in Law of the European
University Institute (Florence, Italy). She has authored or edited 11 books,
and more than 70 articles in the eld of European integration. Most of these
were on constitutional issues of the European Union and on external rela-
tions. In 2004, ditions Thmis published her European Union Enlargement:
Law and Socio-Economic Changes.
Karsten Nowrot is senior lecturer and researcher at the Transnational
Economic Law Research Center (TELC) of the Faculty of Law, Economics,
and Business at Martin Luther University of Halle-Wittenberg, Germany.
His primary research interests lay in the areas of European Union Law, Pub-
lic International Law, International Economic Law as well as German Con-
stitutional Law. Mr. Nowrot received his legal education at the Universities
of Kiel, Surrey, Halle-Wittenberg and Indiana University. He holds two Ger-
man law degrees with distinction from 1997/2001, was awarded the degree
of Master of Laws with distinction in 1998, and received his Dr iur. (Ph.D.)
with distinction in 2005. He is a frequent lecturer, legal advisor and author
on issues involving the above mentioned research areas.
Alberta Sbragia is Mark A. Nordenberg University Chair and Jean
Monnet Chair ad personam, and director of the European Union Center of
Excellence at the University of Pittsburgh. She serves on the editorial board
of numerous scholarly journals published in Canada, the United States and
Europe. Her research emphasis is on US/EU comparisons. She is the author
of several books, including Euro-Politics: Institutions and Policymaking in the
New Community. Brookings Institution, 1992, Debt Wish: Entrepreneurial
Cities, US Federalism and Economic Development (University of Pittsburgh
Press, 1996). She co-edited a special issue of Governance: An International
Journal of Policy, Administration and Institutions, on The Institutional Bal-
ance and the Future of European Union Governance, July 2002. Other
important publications include Shaping a Polity in an Economic and
XI
Monetary Union: the EU in Comparative Perspective, in: A. Martin and
G. Ross (eds.), Euros and Europeans: Monetary Issues and the European Model
of Society (Cambridge University Press 2004) and Territory, Representa-
tion and Policy Outcome: The United States and the European Union
Compared, in: C.K. Ansell and G. Di Palma (eds.), Restructuring Territo-
riality: Europe and the United States Compared (Cambridge University Press
2004).
Jan-Peter Trnka, Assessor iur., LL.M. (Prague), is Ph.D. Candidate at
the University of Helsinki. Mr Trnka is graduated in law from the University
of Heidelberg and has completed a European law focused master programme
at Charles University in Prague. He has worked as a trainee for the Represen-
tation of the European Commission in Prague and the Max-Planck-Institute
for Comparative Public Law and International Law in Heidelberg before
joining the latter institute as a research associate. Currently he is a member
of the graduate school Foundations of European Law of the University
of Helsinki.
Samo Zupancic is Assistant Professor at the Faculty of Economics in
Ljubljana. He holds a Bachelors and a doctoral degree from Ljubljana as well
as a masters degree from Belgrade. His doctoral thesis (in economics) was
on transport services liberalization. Until 2003 Dr Zupancic was Undersec-
retary of State and chief of the Services Sector at the Slovenian Ministry of
the Economy. He has worked mainly on the liberalization of services in a
framework of WTO (GATS), European Union and CEFTA.
XII
ABBREVIATIONS
AFSJ Area of freedom, security and justice
Art. Article
BE British Energy
CCCTB Common Consolidated Corporate Tax Base
CEFTA Central European Free Trade Association
CFI Court of First Instance
DG Directorate General
EAEC European Atomic Energy Community
ECSC European Coal and Steel Community
EC European Community
ECHR European Convention on Human Rights
ECT European Community Treaty
ECUCT Enhanced Cooperation Union for Corporate Taxation
ESC Economic and Social Committee
EEC European Economic Community
ECJ European Court of Justice
EP European Parliament
EPR European Pressurized Water Reactor
EREF European Renewable Energies Federation
ESA Euratom Supplies Agency
ESO Euratom Safeguards Ofce
EU European Union
FP7 Seventh Framework Programme
GDP Gross Domestic Product
IAEA International Atomic Energy Agency
IGC Inter-governmental Conference
ITER International Thermonuclear Reactor
JHA Justice and Home Affairs
NATO North Atlantic Treaty Organization
OECD Organization for Economic Co-operation and
Development
Para Paragraph
Pp Pages
PWR Pressurized Water Reactor
QMV Qualied Majority Voting
RBMK Graphite Moderated Light Water Reactor
RTD Research and Technology Development Programmes
STC Scientic and Technical Committee
TCE Treaty establishing a Constitution for Europe
XIV
TABLE OF CONTENTS
ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
LIST OF CONTRIBUTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
ABBREVIATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. THE FALL AND RISE OF THE EUROPEAN CONSTITUTION
Olaf Leisse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2. STATUTES AND STATUS, OR: THE REAL NATURE
OF THE EUROPEAN CONSTITUTION
Stefan Haack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3. THE EU CONSTITUTIONAL CRISIS
AS VIEWED FROM NORTH AMERICA
Dorothee Heisenberg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
4. PROCEDURAL DEVICES FOR MAINTAINING
THE CONSTITUTIONAL MOMENTUM
Joakim Nergelius . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
5. WHAT EUROPEANS WANT
Aharon Yair MacClanahan Shophet . . . . . . . . . . . . . . . . . . . . . . . 83
6. ON THE UNIFYING SELF-CONCEPTION OF
A REPUBLICAN EUROPEAN UNION
Karsten Nowrot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
7. THE FUTURE OF FEDERALISM IN THE EUROPEAN UNION
Alberta Sbragia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
8. EUROPEAN CONSTITUTION-BUILDING THROUGH
A BASIC LAW AND DIFFERENTIATION
Matej Avbelj . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
9. THE CONSTITUTION IS DEAD, LONG LIVE
THE EUROPEAN COMMISSION
Agnieszka K. Cianciara . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
10. FROM A CONSTITUTIONAL BLUEPRINT TO AN ECONOMY
OF SOCIAL AND INDIVIDUAL WELLBEING
Neva Maher . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
11. THE IMPORTANCE OF THE LISBON STRATEGY, PARTICULARLY
AS APPLIED TO THE SERVICE SECTOR
Samo Zupancic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
12. LE SCEPTICISME DES FRANAIS QUELLES RAISONS,
QUELLES SOLUTIONS ?
Michel Lelart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
13. SUBSIDIARITY: COMPETENCE CONTROL
OR POLITICAL MASQUERADE?
Jan-Peter Trnka . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
14. ENHANCED COOPERATION: THE WAY OUT
OR A NON-STARTER?
Nico Groenendijk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
15. THE COMMUNITY AS A COMMERCIAL ACTOR
AFTER THE CONSTITUTIONAL DEBACLE
Nanette Neuwahl . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291
XVI
TABLE OF CONTENTS
16. THE EUS CONSTITUTIONAL CRISIS AND THE AREA
OF FREEDOM, SECURITY AND JUSTICE: IMPLEMENTATION
OF THE CONSTITUTION THROUGH THE BACK-DOOR?
Jrg Monar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309
17. THE FUTURE OF THE EU CHARTER
OF FUNDAMENTAL RIGHTS
Eve C. Landau . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333
18. THE FUTURE OF EURATOM
Pamela M. Barnes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 357
19. HOW FAR BEYOND PAX WESTPHALICA
Stphane Beaulac . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399
SELECT BIBLIOGRAPHY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409
XVII
INTRODUCTION
As people speak more and more often of a crisis in the development
of the European unication project, it is useful to consider the meaning of
this expression. Its Greek origins denote a situation of decision and aggra-
vationwhich is not unhelpful with regards to the context of European
constitutional efforts, as it recalls the connection between constellations of
problems and progress, stagnation and innovation. Aggravation and the
absence of decisions mark the current state of European integration. Ques-
tions regarding its legitimacy, scope, and goals have become more pointed
after the vote against the Treaty establishing a Constitution for Europe by
the Dutch and the French in May and June 2005. This event called in ques-
tion the most important proposed decisions with regard to the institutional
architecture, the deepening of integration beyond the process of economic
policy, a better delineation of responsibilities among the EU and its Member
States, and the conversion of the charter of fundamental rights into primary
law. In view of this aggravated situation of rejection, the need for decisions
is becoming ever more acute.
It is the aim of this volume, which records the views of 19 authors on
the subject, to contribute to this process. Its central quest is to ponder the
crisis, viewed both as a risk and as a chance, its causes and consequences,
and to spot aspects that may provide a way out of the impasse. The authors
were encouraged to use various levels of theory, including reections on the
nature of the process of European unication and supranational constitu-
tion that uses the draft Treaty establishing a Constitution for Europe as a
tool. Contemplation was invited on the consequences of entry into force or
the failure of the Treaty establishing a Constitution for Europe for central
sectors of the Unions activity, for the Single Market, for social politics and
the so-called second and third pillars. On a more general level, authors
have also examined the potential consequences of the rejection for the
2
Unions capacity to act with a view to its responsibilities, its institutional
structure, and the legal position of stakeholders in it.
The question of what is at stake when putting the Treaty establishing a
Constitution for Europe into force for the process of European unication (or
what its failure would mean) also evokes central aspects of the European consti-
tution, and the formation of a political unity in state and constitutional theory.
It revolves around the question: which ideas carry the European unication
project, and whatin the consciousness of the individualEurope stands for.
The question what the citizens of Europe think and want requires an empiri-
cal sociological analysis of the existing expectations and prejudices, which in
turn implies the types of European integration that are feasible. The chapter
What Europeans want by Aharon Yair MacClanahan Shophet addresses this
issue, with a view to extrapolating modest guidelines for action. The same is
done, in another context, by Michel Lelart in his chapter Le scepticisme des
Franais quelles raisons, quelles solutions ? , who explains the negative vote
of the French in terms of their views on the euro. Furthermore, it is both inter-
esting and important to see how the path towards the European constitution,
in its hybrid status between an international association and a pan-European
state, is perceived from outside the sphere of European integration. Dorothee
Heisenberg in her chapter The Constitutional crisis as viewed from North
America, adds valuable insights by analysing perspectives of Canada and the
United States.
These studies lead us to several reections about constitutional theory
issues, such as the way in which perceptions can inuence constitutionalisa-
tion, or, vice versa, what impact potential decits may have. The goal is to
capture a respective normative principle, if there is one, in terms of consti-
tutional theory and to put it in its proper place. For American scholars this
comes more naturally than for most Europeans to use the keyword Republi-
canism when thinking creatively about integration processes, in the context,
or even independently of the TCE. This is what Karsten Nowrot explains in
his chapter On the Unifying Self-Conception of a Republican European
Union, which outlines the importance of a respective unity-constituting
idea of order and the nature of constitutional structures. Just how central
this is, is being argued by Stefan Haack in his chapter on Statutes or status,
or: the Real nature of the European Constitution.
It is only against the background of these insights that another state
theory approach can be explored that appears necessary to explain the nature
of the constitutional contract (and the loss, if it should fail), in terms of legal
3
INTRODUCTION
theory: the positioning of the project of European integration in relation to
the context of federalism, to distinguish federal states from international
organizations, a topic which experts in constitutional and state theory have
been dealing with for some time. The chapter by Alberta Sbragia, titled The
Future of Federalism addresses this aspect. In an equally comparative vein,
Stphane Beaulac attempts to assess the constitutional project by drawing a
historical parallel and probing the existence of a rupture with regard to the
post-Westphalian political system (How Far Beyond Pax Westphalica). All
these approaches lead up to the question of whether the age of Nation States
in Europe really did end with the establishment of the supranational integra-
tive orderor whether the failure of the Treaty establishing a Constitution
for Europe must be viewed as an indication of the fact that the nation State
continues to exist as a basic political unit despite supranational integration
or membership in a relatively weak confederation.
An evaluation, in terms of constitutional theory, of the process of inte-
gration has a number of practical consequences with regards to the potential
political reactions to a failure of the Treaty establishing a Constitution for
Europe. The chapter by Olaf Leisse, The Fall and Rise of the European
Constitution, asks that question in a clear and general way. But it is also
more: in particular, the issue of which alternatives are legally and politically
conceivable in the stalled ratication process; for instance, a pan-European
referenduma question Joakim Nergelius addresses in his chapter on Pro-
cedural Devices for Maintaining the Constitutional Momentum. The same
may be said of the proposal to put a portion of the Treaty establishing a
Constitution for Europe into force as a kind of fundamental statute and to
make better use of the existing forms of differentiated integration. In his
chapter on European Constitution-Building through Basic Laws and Dif-
ferentiation, Matej Avbelj discusses such proposals. In this context, special
emphasis has to be placed on the tool of enhanced cooperation which is
already provided in the applicable primary law and which could be seen
as a constitutional organising principle used for deepening the integration
process, even if the Treaty establishing a Constitution for Europe does not
enter into force. This is discussed in the chapter Enhanced Cooperation:
The Way Out or a Non-Starter? by Nico Groenendijk.
The reections on risks and the opportunities associated with a non or
partiallyratied constitutional treaty need to include current Community
law. For example, the Treaty establishing a Constitution for Europe fosters
the respect for the division of competences and responsibilities by strength-
ening the subsidiarity principle, and proposing an early warning system.
4
To see to what extent the implementation of these goals would be called into
question by the non-ratication of the draft is particularly investigated by
Jan-Peter Trnka in the chapter Subsidiarity: Competence Control or Politi-
cal Masquerade?
Limitations of supranational sovereignty may have to be enshrined in
EU law in favour of the Member States (by virtue of the principles of sub-
sidiarity and necessity in the system of competence distribution) but also in
favour of the individual. Thus, the question may be asked whether putting
into practice of the Constitution is possible and useful in this respect. The
chapter on The Future of the EU Charter of Fundamental Rights by Eve
C. Landau discusses this.
Another central aspect of any constitutional system, in addition to the
responsibilities of whatever entity there is to be established and the denition
of individual rights and duties, is the establishment of institutions dened
under constitutional law to execute the constitutional system itself. As the
driving force of the process of integration has always been the European
Commission, the reform of this institution by the Treaty establishing a Con-
stitution for Europe appears central to the analysis of expected constitutional
changes in the institutional structures. The role of the Commission is there-
fore discussed from a political science approach by Agnieszka K. Cianciara
in her chapter titled The Constitution is Dead, Long Live the European
Commission.
To be able to track the effects of the Treaty establishing a Constitution
for Europe and its potential failure comprehensively, one must also review
the impact on distinct community-specic political elds. If we start from
the existing integration process and its primarily economic orientation, the
concept of the Single Market and its core, the market freedoms, are at the
centre of concern. For understanding the constitutionalisation, it is impor-
tant to review how and to what extent, if at all, the success or failure of the
Treaty establishing a Constitution for Europe may transform the nature of
such an economically orientated integration concept. For the service sector,
this issue is studied by Samo Zupancic in his chapter titled The Importance
of the Lisbon Strategy, Particularly as Applied to the Service Sector. Moreo-
ver, since the Treaty of Maastricht, if not before, the economically focused
concept of integration was enriched with aspects of foreign and security
policy, and the effects of unrestrained economic trafc necessitated political
steps towards convergence. The step-by-step extension of the unied eco-
nomic area into an area of freedom, security and justice is a key question
5
INTRODUCTION
for the further direction of integration after the preliminary failure of the
Treaty establishing a Constitution for Europe. To what extent is it permissible
and required, one could ask, to put individual parts of the Treaty establishing
a Constitution for Europe into practice, either formally or by utilising existing
forms of enhanced cooperation, in order to ensure a relatively comprehensive
program of integration? These issues are addressed by Jrg Monar in his chap-
ter The EUs Constitutional Crisis and the Area of Freedom, Security and
Justice: Implementation of the Constitution Through the Back-Door?
Economic freedoms and pan-European law and security strategies corre-
spond so closely with each other at this point, that in order to be established
jointly, they are in need of a an all-round concept or strategy of integration. It
is probably fair to say that the Treaty establishing a Constitution for Europe
takes some important steps in this direction. The connection between the
scope and the depth of the process of integration on the one hand and the
constitution issue on the other becomes particularly clear here. One can
conceive comprehensive integrative strategies as constitutions by denition,
just as (according to Smend) constitutions must be dened as concepts of
integration.
1
Similar considerations can guide the understanding of the effects of the
single European market integration on social politics. Also in this context,
the question arises as to what risks and what chances are linked with a failure
of the Treaty establishing a Constitution for Europe, and how this affects the
nature of the Union itself. These problems are discussed by Neva Maher in
her chapter titled From a Constitutional Blueprint to an Economy of Social
and Individual Wellbeing.
Further insights into the effect of the Treaty establishing a Constitution
for Europe on individual political areas can also be found in the nuclear
policy area, on the basis of the Euratom Treaty that would continue to be in
force, regardless of whether the new Treaty enters into force. As there were
reasons to keep atomic policy out of the Constitutional reforms, there must
be advantages as perceived by the Member States. This is investigated by
Pamela M. Barnes in her chapter on The Future of Euratom.
Is the matter fundamentally different in the eld of foreign policy? In
this eld (as in many others) one can either take the view that integration
should reect internal achievements and needs, or that external events or
1
Rudolf Smend, Verfassung und Verfassungsrecht (Munich, Leipzig: Duncker & Humblot,
1928).
6
necessities should dictate common or diversied responses. Promoting the
political integration of the Union includes strengthening the capacity of
the institutions to act in the eld of foreign policy; they should, under the
Constitutional Treaty, be able to outline a uniform European foreign policy
to a greater extent than before. Arguably, decisions on the uniform appear-
ance of the Union impact on the nature of the Union and its Constitution.
This matter is explored by Nanette Neuwahl in her chapter The European
Community as a Commercial Actor after the Constitutional Debacle.
All these essays have in common that they draw a picture of what is at
stake regardless of the question whether the Treaty establishing a Constitu-
tion for Europe enters into force or fails to do so: the denition of directions
for advanced integration that take their cue from the nature of the Union
in its hybrid state between international organisation and federal state. To
ponder the crisis does not just mean to report a loss; it means most of all to
ask for causes, draw conclusions, and learn to distinguish objectives from
utopian ideas, the feasible from the impossible.
The editors,
January 2007.
THE FALL AND RISE OF
THE EUROPEAN CONSTITUTION
Olaf Leisse
I. INTRODUCTION
Arguably, the origins of the process of European integration that has
been going on for the last one and a half decades lie in that famous night of
November 9, 1989, which will engage historical research for a long time to
come. When the citizens of East Berlin, for the rst time in many years, were
able to pass the once lethal border unharmed, this was not only the end of a
monstrous Cold-War symbol, not just the death-spell for a small communist
regime or the fatal blow to the integrity of the Soviet empire. It was also the
end of the process of European integration as we knew it. A development
that had so far been taking place only within the Western sphere now had to
be adapted to new parameters, new political constellations, new agents and
interests. November 9 was the trigger and catalyst of two processes which
were sometimes opposite and sometimes parallel, yet always interdependent:
the expansion and the intensication of the European Union.
1
The question of expansion was brought onto the political agenda
directly after the political change of 1989. With the downfall of the Soviet
empire, there was an ideological und political vacuum in Middle and East-
ern Europe as well as in the former Soviet Union which was soon being
lled in a relatively peaceful manner. The core of the political establish-
ment was now made up of trade unionists (Poland), writers and intel-
lectuals (Czech Republic), civil activists (Hungary), or post-communist
1
J. Gillingham, European Integration 19502003, Superstate or New Market Economy?
(Cambridge: Cambridge University Press, 2003).
8
technocrats (Romania, Bulgaria).
2
However, while the new political and
economical systems were installed at a rather quick pace in spite of all trans-
formational problems, the lack of ideologies turned out to be an obstacle
for modernization. Political leaders in Middle, Eastern, and South-Eastern
Europe proved unable to substitute the former communist ideology by any
convincing alternative. In some countries, like Serbia, Croatia, Romania,
and Hungary, nationalism came to serve as a new ideology but was always
detrimental to the progress of the respective country. In contrast, the strive
for a swift accession to the two major alliances of Western Europe, NATO
and EU, which was propagated under the new catchword of Europe-
anization, seemed a much more promising approach.
3
It is therefore not
surprising that almost all governments in Middle and Eastern Europe have
made Europeanization their chief political goal andin some waytheir
new ideology. The outstanding success that the idea of a united Europe had
in the countries of the former Eastern bloc may also have more practical
reasons: Wealth and security, from the perspective of the newly democra-
tized societies, were linked to a closer association with Western Europe.
The political desire for a comprehensive and immediate involvement in
the organizational framework of the West was a natural consequence. Thus
each and every country in Europe which had formerly been incorporated
into the Soviet empire applied for accession to the EU, which resulted in
a number of association treaties in the mid 1990s as well as in the start of
accession talks with several countries towards the end of the decade.
Nevertheless, the existing EU members reacted only very reluctantly to
these manifold demands for accession. One reason for that was the Greek
experience, where an admission to the EU had been agreed upon without
the use of any formal criteria simply through a process of political deci-
sion-making. By this example, EU ofcials had been warned that a quick
accession without the prior implementation of in-depth structural reforms
would benet neither the country in question nor the rest of EU members
but rather threaten political and economic stability within the new Mem-
ber State as well as in the Union as a whole. Existing Member States feared
the importation of stability problems and the suspension or termination of
the transformation initiated in the former communist states. On the other
hand, the conicts in former Yugoslavia had shown that it was possible for
2
F.W. Rb, Schach dem Parlament! Regierungssysteme und Staatsprsidenten in den Demo-
kratisierungsprozessen Osteuropas (Opladen: Westdeutscher Verlag 2001).
3
H. Grabbe, The EUs Transformative Power: Europeanization through Conditionality in
Central and Eastern Europe (Basingstoke, Hampshire: Palgrave Macmillan, 2006).
9
THE FALL AND RISE OF THE EUROPEAN CONSTITUTION
nationalist societies to wage wars in Central Europe that could be difcult to
deal with. The European Union had been marginalized politically as it had
had no adequate access to the classical instruments of military peace-making
and had thus been unable to end the Yugoslavian conict by itself. In this
situation, the exportation of stability through expansion of the EU came to
be seen as a realistic strategy for ensuring long-term peace on the continent.
Thus, the accession of all Middle and Eastern European countries became
the main objective of EU politics. However, the organisational structure of
the Union, which had been developed during the 1950s for a small group
of six states, was clearly inadequate to cater for the needs of a Union that
comprised almost the whole continent. The impending enlargement talks
merely increased the urge for reform.
The following essay will rst deal with the question why it was nec-
essary to call a constitutional Convention. Secondly, it will examine why
the Convention was actually successful in bringing about a new European
constitution. Thirdly, I will address the problem why, in spite of the Con-
ventions achievements, the process of constitution-making has not yet been
completed but is still trapped within a period of reection.
II. WHY WAS THE CONVENTION CALLED?
In the wake of November 9, 1989, the Union was not only presented
with a number of potential new Member States, but the EU in its existing
form was elevated to a new level of integration with the Maastricht Treaty of
February 7, 1992. At their Summit of December 9 to 10, 1991, EU leaders
agreed upon a new model that transformed a hitherto economic integration
organisation into a political union. According to the Maastricht ideal, the
Union would be more transparent and more in touch with its citizens, as well
as more democratic in its decision-making processes. Its authority would be
extended to an increasing number of political areas. Thus, the Union would
be the peg for a common foreign policy and a domestic policy on a European
level. If metaphorically speaking, the EU was associated with the roof of an
Ancient temple whose columns were represented by different branches
of political action, Member States would be given an intergovernmental
foreign policy instrument so as to cope more effectively with international
problems. The European Parliament was enhanced by involving it in the
election (and possible dismissal) of the European Commission. The founda-
tion of the Committee of the Regions responded to the growing importance
of European regions, and the introduction of EU citizenship turned people
10
from mere actors on the European market into political subjects. In addi-
tion, there were profound changes with respect to the original pillar of
European integration, i.e. economic policy. The foundation of the Economic
and Monetary Union,
4
which was based on the Delors Report of 1989, was
arguably the most dramatic measure of reform for EU citizens as well as
politicians, even though it was hardly taken seriously in the beginning.
The Maastricht Treaty was, without any doubt, a milestone in the his-
tory of European integration and has at the same time sparked hopes of an
accelerated process of integration. The treaty also set a timetable for further
integration by arranging for an intergovernmental conference, which was to
be opened in Turin in 1995 and concluded in Amsterdam on June 16, 1997.
The Amsterdam Treaty, however, far from being a landmark agreement like
Maastricht, made only minor amendments to the existing treaties, the most
creative being the creation of a High Representative for EU foreign policy
and the introduction of closer cooperation between some of the EU Member
States, at least with the approval by the other members.
On February 15, 2000, another amendment conference began in Brus-
sels under Portuguese chairmanship. Negotiations nally resulted in the Nice
Treaty which was signed on February 26, 2001. The main task during that
conference had been to maintain the Unions ability to act as a political
body also after its impending Eastern enlargement. Against this background,
mainly institutional questions were brought to the fore, for instance the ref-
ormation of the European Commission, the new balancing of votes in the
Council of the European Union, and the extension of decision-making areas
that required only a qualied majority, which amounted to a partial aban-
donment of national veto rights. In Nice, national political leaders agreed
that after the Union had been expanded to at least 28 Member States, each
country should from then on designate only one commissioner and, in addi-
tion, the distribution of seats in the European Parliament should changed
according to political balance of power in the new Member States. In the
European Council, too, votes were re-distributed, and it was convened that
decisions should be based upon a threefold majority of votes, states, and
population.
The Nice Treaty became the most controversial of EU treaties.
5
While
its advocates stressed that the agreement represented the maximum possible
4
See the chapter by Michel Lelart in this volume.
5
H.J. Blanke and S. Mangiameli, Governing Europe under a Constitution: the Hard Road
from the European Treaties to a European Constitutional Treaty (Berlin: Springer, 2006).
11
standard of integration to date, others contended that the treaty did not
bring any palpable improvement in the conditions for European integra-
tion and that the Nice Summit had therefore been a failure. It is clear that
the history of European integration is a history of compromise. From that
perspective, Nice has neither been a step back nor a sign of stagnation of the
process. However, the immense political expenditures of the Nice Summit
as well as of the intergovernmental conference that had been taking place
before bear no relation to the results. In fact, the discrepancy between input
and output of intergovernmental negotiations had become so obvious as
to spark a search for alternative ways of achieving agreements. The heads
of state and government themselves were concerned about the ineffective-
ness of their decision-making process, as can be gathered from their nal
declaration: On the one hand, it was proclaimed that, with ratication of
the Treaty of Nice, the European Union will have completed the institu-
tional changes necessary for the accession of new Member States but, on
the other hand, they called for a deeper and wider debate about the future
of the European Union.
6
As key topics of this debate, they mentioned the
division of competences between the EU and the national level, the status
of the Charter of Fundamental Rights, the simplication of treaties and the
role of national parliaments.
A wide-ranging debate involving representatives from politics, economy,
educational institutions, and civil society was to be the starting point for yet
another intergovernmental conference in the year 2004. However, it soon
became clear that the EU was in no way equipped to deal with the challenges
of the decade to come. As the method of intergovernmental conferences
had denitely worn out, national representatives needed to look for new,
creative solutions outside the Unions organizational framework in order
to break the deadlock attained. The Convention on Fundamental Rights,
which had recently nished its work with considerable success, served as a
source of inspiration. The practice seemed more apt to the aim of fostering
European integration than mere intergovernmental negotiations, which had
proved insufcient during the Nice process. The Convention had, as it was
perceived, been founded on the premises of transparency, public control, and
democratic legitimization and, at the same time, guaranteed efciency and
expertise with respect to the participants. The Convention on Fundamental
Rights had thus become a catalyst for a broader, all-European debate on the
6
Conference of the representatives of the governments of the Member States, Final Act, 2001.
Internet resource at europa.eu.int/eur-lex/en/treaties/dat/C_2001080EN.007001.html.
12
role of fundamental values within the Union and regarding alternative forms
of the revision of treaties.
There is a sharp contrast between the classical strategy of intergovern-
mental conferences (by virtue of Article 48 EU), and the more consensus-
based, efcient, and transparent practice of a convention. The point that
has often been made against intergovernmental negotiations is their lack of
democratic legitimization since it is almost impossible for the general public
to control how decisions taken by representatives of a group of national
governments. By contrast, the Convention on Fundamental Rights was, at
least in part, constituted of elected members of the European Parliament and
its national counterparts and therefore it could boast legitimization by the
electorate. What is more, the Convention was characterized by transparency
(both virtually on the Internet and within the plenum), and by an integra-
tion of representatives of the civil society through extensive hearings on the
national and European levels.
The discontent with the treaties of the post-Maastricht era, the dismissal
of the Mthode Monnet, named after the French economist Jean Monnet
(18881979), according to which integration should achieved primarily in
the eld of the economy while other, more politically precarious areas should
be left aside, and, consequently, the challenge to democratize the EU,
7
the
impending re-unication with the Eastern part of the continent
8
as well
as the positive outcome of the Convention on Fundamental Rights made
the practice of conventions a new rst choice for the further development
of the Union.
9
Belgian Prime Minister Guy Verhofstadt, shortly after having taken
ofce as chairman of the European Council, during the rst half of 2001,
was the rst to make material propositions on that subject. He called on ve
well-known politicians for counsel: former Italian Prime Minister Giuliano
Amato, former Belgian Prime Minister Jean-Luc Dehaene, former president
of the European Commission Jacques Delors, former Polish foreign Secre-
tary Bronislaw Geremek, and David Milliband, who had been counsellor of
the British prime minister. Based on the suggestions of this so-called Laeken
7
J.M. Magone, The New World Architecture: the Role of the European Union in the Making
of Global Governance, (New Brunswick, NJ: Transaction Publishers, 2006).
8
F. Schimmelfennig, The EU, NATO and the Integration of Europe: Rules and Rhetoric
9
C.H. Church and D. Phinnemore, Understanding the European Constitution: an Intro-
duction to the EU Constitutional Treaty (London: Routledge, 2006).
13
Group, M. Verhofstadt was able to present a rst outline of a future Con-
vention as soon as September 2001. Barely a month later, in early October
2001, all of Member States agreed to the initiative of calling a Convention,
like the one on fundamental rights, consisting of representatives of national
governments, the European Parliament, the European Commission, and
national parliaments. At its meeting in the Brussels district of Laeken on
December 14 and 15, 2001, the European Council called a Convention on
the Future of Europe which would address all problems regarding the future
development of the Union. The Conventions mandate was specied within
the second part of the Laeken Declaration under the title of Challenges and
Reforms in a Renewed Union in the form a sixty key questions. With that,
a debate was opened on the future values and structure of European politics
without giving preference to one particular model. What was remarkable in
this set of questions was that it both suggested the possibility of strengthen-
ing the role of the nation states and thus the intergovernmental dimension
of European politics and, at the same time, advocated the implementation
of supranational or federal solutions. The aim was to achieve a synthesis
between both strategies. In any case, the Convention, as it was projected,
seemed exible enough to initiate an open debate.
10
III. WHY WAS THE CONVENTION SUCCESSFUL?
The success of the Convention lies in the fact that, rst, its members
arrived at a consensus at all. Second, it presented a coherent resolution which
went beyond the mere making of alternative suggestions, and third, that this
resolution was meant to be the rst EU constitution and not just a non-bind-
ing charter. This tremendous achievement had, in addition, been reached
within the scheduled period of time.
For several reasons, internal and external to the Convention, its work
was all along in danger of not being so much of a success. From the view-
point of its procedures, the Convention was composed of delegates with dis-
parate national backgrounds: Northern and Southern, Western and Eastern,
representatives of the old members of the Union as well as of the candidate
countries, wealthier and poorer societies, very large and very small countries,
10
A. Dauvergne, LEurope en otage? Histoire secrte de la Convention (Paris: Edition Saint-
Simon 2004); G. Milton and J. Keller-Nollet, The European Constitution: its Origins,
Negotiation and Meaning (London: John Harper Publishing, 2005); P. Norman, The
Accidental Constitution. The Story of the European Convention, 2nd edition (Brussels:
EuroComment, 2005).
14
nation states that were present in European history for centuries and young
nations constituted only in the wake of the peaceful revolution of 1989.
What is more, the Convention comprised the whole spectrum of European
political parties from left-wing to right-wing hardliners, from pro-Europe-
ans to Euro-sceptics, federalists and intergovernmentalists, men and (very
few) women, representatives of national governments as well as members of
parliament. Ultimately, the success of the Convention was compromised by
this. It was also hampered by external factors: Convention meetings were
held between March 2002 and July 2003, against the backdrop of the con-
troversial war in Iraq which produced tensions within transatlantic as well
as intra-European relations which still have an effect on the political climate
today. The nal phase of the Convention coincided with the beginning of
military action on March 20, 2003 and the takeover of Baghdad on April 9
of that year.
It must therefore be asked how, in spite of all that, the Convention could
emerge as successful in the dened sense. An explanation will be provided on
the basis of both intergovernmentalism and deliberation theory, the latter of
which will be complemented by some aspects of the concept of leadership.
1. INTERGOVERNMENTALISM
The basic assumption of this theory is that nation states play a central
role within the process of European integration, i.e., that a common Euro-
pean policy is determined primarily by national governments. According to
the intergovernmentalist approach, the emphasis is on the existing social,
cultural, and politically normative differences between individual Member
States. The catalysts, dynamics, and perspectives of European integration are
then to be found chiey within the nation states. The progress of European
integration and the design of the respective treaties are in other words, not
to be attributed to the efforts of trans-national elites or other supra-national
agents but to national interests and the politics of national governments.
From an intergovernmentalist point of view, the EU is only a mechanism for
interstate cooperation.
11
The institutions of the Union are fully dependent
upon the sovereignty and (biased) rationality of national governments. Lib-
eral intergovernmentalism sees national political goals as consequences of an
interaction between the state and society: National interests [ . . . ] emerge
through domestic political conict as societal groups compete for political
11
J.M. Grieco, The Maastricht Treaty, Economic and Monetary Union, and the Neoreal-
ist Research Programme, 21 Review of International Studies (1995), 2140.
15
inuence, national and transnational coalitions form and new policy alterna-
tives are recognized by governments. An understanding of domestic politics
is a precondition for, not a supplement to, the analysis of strategic interaction
among States.
12
If these basic assumptions are transformed into a heuristic pattern and
applied to the actual work of the Convention, one must afrm that negotia-
tions were in fact dominated by the Member States. The representatives of
the fteen Member States were in direct control of the discussion process,
often degrading all other participants (members of the European Parlia-
ments and the national legislative bodies alike) to mere spectators who had
to be glad they were actually allowed to be there at all. This means that the
Convention was nothing more than the continuation of former intergovern-
mental negotiations in front of a larger audience.
As to the political and social contexts, Franco-German cooperation has
played an important role in making the Convention a success story. In the
beginning, there had been a great deal of dissension, both personal and
material, between French and German representatives. There was a lack of
creative ideas on the one hand, and of mutual trust on the other. The disa-
greement was centred mainly on the problem of the nancing of a com-
mon agricultural policy within an enlarged Union. In the second half of
2002, after intensive debates, Germany and France eventually reached a
compromise, much to the relief of the rest of European political leaders,
who in turn largely conrmed the resolution. With the settlement of the
agricultural dispute, France and Germany proved they could work together
to further European integration. At the same time, it had become clear that
a common Franco-German initiative could be of substantial political weight
within the EU. This combined inuence was also exerted in the Convention
where the two countries, in November 2002, presented common reports
on the development of the areas of freedom, security, and law, and on the
issue of a European security and defence policy. On January 15, 2003, these
were followed by a motion which for the rst time suggested the creation
of the ofce of a European Union Foreign Affairs minister, which in spite
of a counter-motion by Spain and Britain found its way into the nal draft
of the constitution. On January 22, 2003, the 40
th
anniversary of the Elyse
Treaty gave an opportunity to the governments and parliaments of France
and Germany to celebrate the achievements of Franco-German cooperation
12
A. Moravcsik, Preferences and Power in the European Community: A Liberal Intergov-
ernmentalist Approach, 31 Journal of Common Market Studies (1993), 473524, at 481.
16
in the Palace of Versailles. When US foreign secretary Donald Rumsfeld
commented on this day that the two countries represented old Europe,
this even strengthened bilateral bonds.
This account of Franco-German relations also shows that the position
of the Member States was in fact fairly strong within the Convention at
that time. Negotiations were governed for the most part by the designs and
proposals of the old Member States. Without the assent of national gov-
ernments, there would have been no result of the Convention and, in turn,
no Constitution. With respect to the Constitution itself, it is obvious that
integration has been intensied above all in the eld of low politics, while
in the eld of high politics, the sovereignty of the Member States remained
untouched. The political structure of a future Union is not spelled out at all
within the draft. The Convention has thus managed to write up a constitu-
tion for a non-existent state and even left out the question of nality. All
these aspects indicate an intergovernmentalist reading of the Conventions
outcome.
However, it may be asked whether the Convention was really just
another form of an intergovernmental conference. Did Member States, as
suggested by the intergovernmentalist approach, really enter debates with
a xed set of political preferences? Is it true that negotiations were nothing
more than a process of bargaining? What about the contributions from other
participants, e.g. the members of the European Parliament? And what about
the involvement of the public? In order to adequately respond to these ques-
tions, another theory must be taken into account.
2. DELIBERATION THEORY
Deliberation theory has a different focus. Deliberation stands for all
types of interaction and communication concerning public decision-mak-
ing on questions of general interest in democratic societies. Democracy, as
Seyla Benhabib stated, refers to an organizational form that allows for the
collective and public exertion of power within the key institutions of society
in a way that makes it possible to consider all decisions regarding common
welfare as the result of free and rational balancing of opinions among indi-
viduals that are looked upon as being politically and morally equal.
13
Moral
and political equality, a shared basis of values and fundamental beliefs as well
as the recognition of collective rules and practices which apply to the game
13
S. Benhabib Ein deliberatives Modell demokratischer Legitimitt, 43 Deutsche Zeit-
schrift fr Philosophie (1995), 339, at 9.
17
of public discourse are therefore preconditions for deliberation. Without
this structural framework, there can be no deliberation: The legitimacy
and rationality of the decision-making process can, according to delibera-
tive model, be warranted only if the institutions of a community and their
mutual relations are compatible with the goal of making the common good
the result of a rational and fair process of collective deliberation among free
and equal individuals.
14
The outcome of deliberation, as it should be, is a generally accepted idea
of common welfare as well as a universal appreciation of democratic institu-
tions. According to Jrgen Habermas, the theory of discourse addresses the
processes of interaction which are taking place on a higher level of intersub-
jectivity through democratic practices or within the communicational web of
the political public sphere. These subject-less forms of communication within
and without the parliamentarian world and its decision-making bodies make
up arenas where a more or less rational balancing of opinions on matters of
general interest may take place.
15
It is thus not the task of specially educated
elites to reach and hierarchically enforce a consensus, but the rationality of the
outcome is inherent in the communicative process itself. This model of deci-
sion-making seems particularly relevant within the EU.
16
It has been supposed that deliberation, as outlined above, had also taken
place among the participants of the Convention.
17
In fact, decisions were
made according to generally accepted, plausible, and rational criteria; argu-
ments were largely based on expert knowledge and materially coherent, too.
The course of debates was, above all, affected by the persuasive power of
arguments and less by the speakers reputation or position. Participants were
14
Ibid.
15
J. Habermas, Faktizitt und Geltung. Beitrge zur Diskurstheorie des Rechts und des demo-
kratischen Rechtsstaats (Frankfurt/M.: Suhrkamp, 1998) at p. 362.
16
E.O. Eriksen, Deliberation and the Problem of Democratic Legitimacy in the EU: Are
Working Agreements the Most that Can be Expected? ARENA Working Paper Series,
08/2006. J.E. Fossum and A.J. Menndez, The Constitutions Gift? A Deliberative
Democratic Analysis of Constitution-Making in the European Union, ARENA Work-
ing Paper Series, 13/2005,
17
D. Gler, DeliberationEin Zukunftsmodell europischer Entscheidungsndung? Analyse
der Beratungen des Verfassungskonvents 20022003 (Baden-Baden: Nomos, 2006); J.E.
Fossum and A.J. Menndez, Democratic Constitution-MakingReections on the
European Experiment, ARENA Working Paper Series, 18/2005; B. Crum, Towards
Finality? A Preliminary Assessment of the Achievements of the European Convention,
ARENA Working Paper Series, 04/2003.
18
striving to arrive at a true consensus that was actively endorsed, not just
passively tolerated by all members of the Convention. From this diagnosis,
one might conclude that there has been a free, fair, and rational exchange of
opinions within the Convention that matches the necessary criteria of the
ideal typical concept of deliberation.
In order to examine whether the work of the Conventionas an arena
of decision-makingdoes really correspond to the premises of the theory of
discourse, I shall now review two aspects: rst, the Conventions relations to
EU citizens, and second, the interaction between the delegates themselves.
1) With respect to the external relationswith the Citizen, the Con-
vention developed several instruments of communication with the general
public, which is remarkable in that it contrasts sharply with the secretiveness
of the Maastricht negotiations. One of its very rst measures was its deliber-
ate option in favour of full transparency. Meetings were broadcast live on
the Internet, and all documents used within the Convention, even including
agendas, minutes, and attendance lists, were immediately published there.
The draft articles of the constitution as well as all motions for amendment
were immediately accessible on the Internet, right after the plenary sessions.
In addition, the Convention decided to inaugurate a youth convention and
to incorporate representatives of civil society by means of hearings.
Through these means, not only were members of the Convention
inspired in their work, also, the organisations accredited to the civil soci-
ety forum were able to directly inuence the debate. A dedicated website
had been set up at the behest of the European Commission where all con-
tributions that had been made during the hearings were published. With
the help of the website, the forum developed into a non-hierarchical and
open network with more than 160 organisations and interest groups from
all across Europe as registered members. Above that, several members of the
Convention were involved in the European Spring campaign aiming at
teachers and students to make them join in the discussion on the future of
the continent. More than 5,000 schools subscribed to the campaign.
The deliberative character of the Convention was, however, checked by
some other factors. First of all, a genuinely European deliberation did not
take place as many initiatives were limited to national frameworks. Even
prominent members of national civil society networks did not coordinate
across national borders. Media coverage of the Conventions work, even in
19
Brussels local newspapers, was reluctant.
18
Only for a few weeks after the
completion of the constitutional draft, did media interest somewhat increase.
A survey conducted in June 2003 showed that, during the nal stage of the
constitutional debate, around 55 per cent of EU citizens and 57 per cent of
people from the candidate countries had never even heard of the Conven-
tion.
19
This casts doubts on the description of the Convention as a process
of deliberation since, according to the deliberative model, a broader public
awareness than the one attained is required for ensuring the legitimacy of
decisions.
2) In a second step, the processes of deliberation within the Convention
will now be examined. Overall, it should be observed that the self-imposed
obligation of delegates to succeed, combined with the deliberative, all-Euro-
pean atmosphere of the meetings and the conscience of the historical conse-
quence of their work encouraged a highly cooperative behaviour among all
participants. The great diversity of interests and opinions within the Con-
vention, where even avowed Euro-sceptics were given a chance to make their
points, did not at all undermine the will to succeed. It increased it. Cooper-
ation was also fostered by the regularity of sessions, which gave delegates the
impression of a step-by-step progress and which helped build condence
through mutual acquaintance of the delegates. The Conventions work, in
general, was characterized by concentrated, matter-of-fact discussions and
helpful contributions both within the workgroups and in the plenum as a
whole. All this produced a climate that made conventioneers forego (mostly)
the use of their right of veto.
However, two factors contradict this unconditionally positive account.
Materially, deliberation is supposed to generate a broadly accepted policy
that serves the aim of common welfare. However, the constitutional draft
is not backed by a vast majority. It was not coincidence that the plenum
declined to hold a nal vote on the draft. It was because the constitu-
tion, even in its nal version, continued to be opposed by several politi-
cal groups, i.e. the Bruges Group and other euro-sceptics. Controversy
persisted even after the Convention had completed its work. The resumed
negotiations in the following intergovernmental conference show that the
process of negotiation had merely been interrupted so as to be able to
18
A. Maurer, Mass Media Publicized Discourses on the Post-Nice Process, Forschungs-
stelle fr institutionellen Wandel und Europische Integration, Vienna, IWE-Working
Paper No. 40, June 2003.
19
Flash Eurobarometer 142, Convention on the Future of Europe, Brussels, July 2003.
20
present the result within the scheduled period of time. The draft in fact
constitutes a snapshot of what was politically feasible at the time in Europe
and therefore, of what did have a chance of ratication by the Member
States. The circuitous, diffuse, and longish draft is a compromise, and as
such it was guided less by what was rational or practicable in Europe but
by the political premises of nation states.
This leads us to a second objection against a deliberationist view of the
Convention: it can be argued that consensus was not or not primarily reached
through processes of arguing. The debates within the Convention did not
wholly correspond to the formal standards of deliberation theory. There
was no real equality of the delegates, as the representatives of the candidate
countries did not have the right to vote and, in the beginning, did not even
have access to the inuential presidium of the Convention. Speakers were
more or less inuential depending on their position rather than the merit
of their argument: those who were backed by powerful political bodies had
a greater chance of getting across their arguments than their less powerful
colleagues. It was therefore mainly the big players in the Union, backed by
some smaller Member States, who determined the path of negotiations. The
Franco-German coalition, in particular, had a tremendous impact upon the
Convention, closely followed by the United Kingdom. The delegates from
countries hopeful of becoming members of the Union, unable to make a
substantial contribution had to limit themselves to thank to the plenum.
What is more is that quite a few participants would not have been free in
their statements anyway, because they were bound by the directives of their
respective national governments, by party politics, or by the concerns of a
certain interest group. Many of the delegates in the plenum, accordingly,
commenced their speeches with a sentence like: The position of my Gov-
ernment is that . . . This is a sign not just of how much free deliberation
was undermined by national politics, but also of how some representatives,
e.g. those of Poland and Spain, could vacillate between their allegiance to the
Convention and their loyalty to their own governments.
These objections against an outright deliberationist view do not prevent
a discursive interpretation of the Convention. They just go to prove that the
principles of deliberation theory cannot be applied integrally to the Conven-
tions work. Nor can the Conventions success be explained by the delibera-
tion model alone. There is another factor that must be taken into account.
21
3. LEADERSHIP
The Convention therefore, in one crucial respect, did not enjoy the right
of self-determination. Its presidium, chaired by former French president
Valry Giscard dEstaing, had been nominated by agreement of the national
political leaders. Mr Giscard dEstaing certainly possessed the self-con-
dence, motivation, and standing to act as leader of the Convention. Deter-
mined to stick to a somewhat rigorous style of leadership, Giscard became
the representative of the Convention to the public and, at the same time, its
supervisor inside. What is more, as chairman, he had the power to imple-
ment the resolutions of the presidium and even to sanction the behaviour of
other members of the convention. Consequently, he was able to dominate
the Conventions work through normative guidelines which gave him the
role of a primus inter pares. Much of the Conventions effectiveness is owed
to this style of leadership. Without any valid historical model to guide him,
supplied only with a heterogeneous bunch of questions to be solved and with
a vaguely dened mandate to adhere to, M. Giscard dEstaing managed to
forge the Convention into an interactive and deliberative decision-making
body. This was achieved through clearly determining the structure of meet-
ings and through a constant appeal to the members community spirit, to
their esprit de corps and their will to succeed.
The negative implication of this was, however, that the strong position
of the presidium made free deliberation almost impossible. Reports from
inside the presidium show that its members did not at all see themselves
as mere administrators or mediators on behalf of the plenum but rather as
independent agents standing between the Convention and the European
Council. This explains why sometimes, the presidium rejected the demands
or motions of the plenum although they had been agreed upon by a majority
of all delegates. The outcome of individual working groups as well as of spe-
cic plenary sessions was continuously scrutinized for acceptance or refusal
by the presidium. Because discussions within the plenum were often, say,
less than inspiring due to an exceedingly long list of speakers, important and
controversial issues within the Convention were debated in smaller circles,
the presidium in particular. The ambivalent function of the latter came out
most saliently during the nal phase of the Convention. As the time available
to attain a nal result was limited, decisions within the Convention had to be
taken under pressure, which further enhanced the status of the presidium as
a smaller and more exible decision-making body. Literally at the last minute
before the Convention nished its work, the presidium incorporated several
articles and formulations into the constitutional draft that had never been
22
discussed during plenary sessions. In order to arrive at a coherent result,
many elements found their way into the constitution that nobody had spo-
ken about before. The time pressure is almost unfathomable in comparison
to the usual slow pace of European integration, but it allowed the Conven-
tion to ofcially complete its task within the scheduled period of time. In
this process, many controversial issues were of course only postponed to
the following intergovernmental conference, where differences of opinion
resurfaced again. The paramount position of the presidium was commented
on by prime minister Jean-Claude Juncker of Luxembourg, a personality not
exactly known for being Euro-sceptic, who remarked that he had never seen
such an intransparency, such an assembly of total obscurity where all demo-
cratic competition of ideas was eschewed prior to the formulation of resolu-
tions.
20
Now, what had been advertised as a great show of democracy had
in fact been the darkest darkroom ever invented. Mr Juncker professed he
was deeply disappointed with the working method of the Convention and
with the conduct of the presidium. Mr Giscard dEstaing as chairman had,
instead of striving for consensus, provoked controversy and was therefore
not to be celebrated for his great statesmanship.
4. EVALUATION
In spite of these objections, it has to be recognised that the Conven-
tion, for the rst time in the history of European integration, has given rise
to an all-European debate on the future of the Union as an integral part of
the decision-making process. As opposed to the Maastricht negotiations,
the Conventions work has been transparent and open to the public. A
great variety of topics were discussed, and information policy, which was
characterized by an extensive use of the new media, was exemplary. No
other revision of a European treaty had ever been so closely observed by
national politicians, economic interest groups, and by the general public.
Never before had public opinion been regarded to such a high degree.
The Convention really was an arena where different attitudes were con-
fronted, positions were reassessed, and national borders were swept away.
Heterogeneous in composition, the Convention had become a mirror
of European diversity, of the vitality of the old continent and a living
expression of what M. Giscard dEstaing had proclaimed as the motto
for a Constitution for Europe: United in diversity. Within the Con-
vention, a European political avant-garde evolved which formed a new
20
J.-C. Juncker, Interview, 25 Der Spiegel (2003), 4648.
23
elite aloof both of the established EU institutions and national political
concerns. The comparatively smooth cooperation within the Convention
and the growing esprit de corps of its members gave rise to the demand
that this assembly be transformed into a permanent institution of the EU.
Although this was not directly incorporated in the draft, it was agreed that
a Convention had to be called each time that an amendment to the con-
stitution was to be made.
21
It goes to show that delegates, on the whole,
had a favourable opinion of their work. This may have been due partly to
internal dynamics: In the course of the Conventions meetings, the urge
for consensus became increasingly pressing, and hardly any member clung
to their original scepticism. Even British representatives emerged con-
vinced that Europe was in need of a fundamental statute and not merely
a vague compilation of legal documents. The result was a coherent draft
which could serve as a basis for the reorganisation of the Union in the
twenty-rst century, which made further enlargement possible and helped
European institutions adapt to future challenges.
22
The Convention, as
it were, nished what former German foreign secretary Joschka Fischer
had called for in his famous speech at the Humboldt University of Berlin
in the year 2000, namely, to make real the project of a European con-
stitution.
23
The Conventions outcome was founded upon a mixture of
bargaining according to the intergovernmentalist model and arguing as
proclaimed by deliberation theory. It was thus both internal dynamics and
feedback from the Member States that guaranteed the eventual success of
the Convention. Each of the respective theories emphasizes only one of
these aspects while it is in fact their very combination which was at the
heart of the Conventions efciency. In addition, the role of the presidium
was important since the rather authoritative style of leadership that this
body adhered to channelled the pressure to reach a consensus, with respect
to both the plenum and the Member States.
21
Cf. Article IV7.
22
J.-C Piris, The Constitution for Europe: a Legal Analysis (Cambridge: Cambridge Uni-
versity Press, 2006); O. Duhamel, Pour lEurope: la constitution europenne explique et
commente (Paris: dition du Seuil, 2005); K.H. Fischer, Der Europische Verfassungsver-
trag: Texte und Kommentar (Baden-Baden: Nomos, 2005).
23
L. Burgorgue-Larsen, A. Levade and F. Picod, La Constitution europenne explique au
citoyen Paris: Hachette Littrature, 2005); V. Constantinesco, Le trait tablissant une
constitution pour lEurope: analyses & commentaires, sous la direction de Centre dtudes
Internationales et Europennes, Universit Robert Schuman de Strasbourg (Strasbourg: Pres-
ses Universitaires de Strasbourg, 2005).
24
Within the European Council or at intergovernmental summits, there is
no equivalent to this function of the Conventions presidium as primus inter
pares. The president of the European Council is appointed for a half-year
interval only, and does not normally have the power to control the political
behaviour of the Member States, which are formally regarded as being totally
equal. A leadership role is onlynow and thengranted to smaller mem-
bers for a limited period of time, like in the case of Ireland during the second
phase of the post-Convention conference in 2003. The method of intergov-
ernmental negotiations has proven to be costly in relation to its outcome.
Among states which regarded as equal, there are no incentives for consensus
if the problem reviewed is not critical. Besides, a merely intergovernmental
conference that is composed of national ofcials, ministers, and political
leaders would have difculty in mustering an atmosphere where national
prerogatives and the vital interests of the individual Member States are
subsumed by a pervasive community spirit. Therefore, it is probably fair to
say that the European Council took the right decision in establishing the
convention.
IV. WHY HAS THE CONSTITUTION-MAKING PROCESS
NOT ENDED?
Despite the Conventions success, which has made the EU the rst
supra-national organisation ever to possess a real Constitution, the constitu-
tion-making process has got into a severe crisis. Since its rejection by Euro-
pean citizens in the French and Dutch referenda, the constitutional treaty is
detained in a stage of stagnation which is only barely disguised as a period
of reection. The reasons for stagnation can be claried by reference to the
theories already discussed.
1. THE INTERGOVERNMENTALIST APPROACH
Seen from the perspective of the intergovernmentalist approach, the
argument may be made that the so-called conventional method still has its
faults. Decision-making, rather than being restricted to the Convention, was
extended to a series of negotiations of national political leaders within the
European Council. The European Council, besides drawing up the mandate
for the Convention, also determined its composition and working scheme,
appointed the presidium and kept the right to amend the draft treaty pre-
sented by the Convention in the course of a subsequent intergovernmental
summit. From a strictly intergovernmentalist perspective, the Convention
25
had two major aws: the allocation of responsibilities between the Conven-
tion and the European Council, and the participation of EU citizens by
means of a referendum.
If the work within the Convention is to be interpreted chiey as a
process of bargaining between (Western) Member States, then there was
no reason why in the aftermath, there should be additional negotiations
between national governments. What is more, the failure of the rst chapter
of the intergovernmental conference in December 2003 and the ensuing
amendments to the constitutional draft in June 2004 may be regarded as an
affront to the Convention and its work. These events show that it calling
an independent convention with a denite mandate would have made more
sense than combining the instrument of the convention with an intergovern-
mental conference, with the responsibility for the constitution being shared
between the two bodies. At the very least, the European Council should have
agreed beforehand to unconditionally endorse the draft to be presented by
the Convention and make its ratication by the summit a mere formality,
even if existing treaties permitted only Member States to ratify a Consti-
tution (Article 48 EU). This would have prevented the intergovernmental
conference from becoming,without good reason, the key decision-
making body.
From an intergovernmentalist point of view, the continuation of the
constitution-making process would not have required a referendum among
the population of the Union. If the treaty is to be seen as the outcome of an
intergovernmental package deal, an explicit vote of individual citizens is, as
with other international treaties, wholly unnecessary. The only exceptions
would have been Denmark and Ireland where a referendum is mandatory
by national law. In the other Member States a permissive consensus, i.e.
the passive support of the treaty by EU citizens, would have been sufcient.
According to a survey conducted in the middle of 2003, as many as 68 per
cent of Europeans were generally in favour of a constitution, while only 19
per cent opted against it.
24
Within the established Member States, support
for the constitution was even at 70 per cent, while in the countries with the
status of candidates for accession, 58 per cent approved of the constitutional
project. However, only 11 per cent of the participants in the survey were
willing to read the draft treaty in detail; 38 per cent would be content with
a summary, and 40 per cent were not planning to look at the constitution
at all. In France (support at 85 per cent) and in the Netherlands (support
24
Flash Eurobarometer 142, supra.
26
at 72 per cent), a vast majority of the populations seemed to be on the pro
side.
25
According to this empirical evidence, there was enough backing for
the constitution within the population to make people accept a ratication
of the treaty by national parliaments, where majorities would have been
guaranteed. However, by allowing for the referendum, national political
leaders curtailed their powers, and they were penalized for doing so.
2. THE DELIBERATIONIST APPROACH
With respect to deliberation theory, one might argue that the consti-
tution, in its nal version, has not been thoroughly discussed. Under the
pretext of limited time for debate, a draft was put together that was defective
in many ways. By purposely defying the principles of deliberation, especially
in the presidium during the nal phase, the Convention achieved less than
it could have had. The resulting draft was too long, lacking structure, and
full of inconsistencies. Even a clear statement on the future status of the
Union, which had been announced as part of the constitution by political
leaders around Europe, was avoided in the nal draft. The deal offered to
the European population was therefore tainted from the beginning, and it
was further diminished in value by the elaborate re-negotiations during the
Italian and Irish presidencies, where the impression was created that the draft
was no good or inherently incomplete.
From a deliberationist perspective, two aws of the post-Convention
process have to be stressed: the way the draft was communicated within
European societies, and the organization of the referenda. It is clear that any
political body in Europe seeking to communicate its policy to the popula-
tion is facing several obstacles. Although EU citizens are generally known
to be in favour of further European integration, they are little enthusiastic
about the political and technical details of this process. European politics,
within the media, has to compete with many other topics, among them
employment issues, social politics, economic development, price trends and
matters of popular interest, which are often closer to peoples daily concerns
and therefore easier to convey than European political debates. Even though
the Convention always underlined its citizen-friendliness and transparency,
which were heralded as assets of a future European information policy, its
25
Flash Eurobarometer 159, The Future European Constitution, Brussels, February 2004;
Flash Eurobarometer 159/2, The Future European ConstitutionWave 2, Brussels,
July 2004; J. Gnreux, Sens et consquences du non franais: manuel critique du parfait
europen, la suite! (Paris: Edition du Seuil, 2005).
27
chances to get its fundamental message across to the population were fairly
limited.More than 80 per cent of EU citizens thought a referendum on
the future constitution of the Union was indispensable or helpful but
only a minority were willing to read the actual text. What is remarkable in
this context is that the knowledge on the Conventions work was in fact
decreasing between June and October 2003. While in June 2003, when the
draft was completed, about 46 per cent of Europeans were up to date on
the issue of the constitution, another survey in October that year revealed
that, by the time when the intergovernmental conference opened, only 38
per cent of the participants were informed to the same degree. The decline
in the level of information was especially dramatic in Greece, although, at
that time, Greek foreign secretary Georgios Papandreou was holding the
ofce of president of the European Council, and the Greek government
was also hosting the European Summit in the city of Thessaloniki in June
2003. In Greece, acquaintance with the Convention dropped from 81 to a
mere 49 per cent. This massive decrease indicates that collective memory is
often restricted to short-term periods once media coverage on a certain event
stops.
26
It therefore would have seemed appropriate to start the referendum
process immediately after the end of the Convention in order not to inter-
rupt public discourse on the matter of the constitution. This would probably
have been a precondition for subjecting the constitution to an all-European
process of deliberation.
Apart from that, on the basis of national political systems, it was only
in ten out of twenty-ve Member States that governments decided to carry
out a referendum on the constitution. Besides, referenda were limited to
the national scale, which meant that European governments had missed the
chance of making the constitution a genuinely European issue. The initia-
tion of a widespread as well as simultaneous European debate could have
subjected the constitution to a somewhat ideal process of deliberation, which
would have helped to bring out the European potential of the treaty. A com-
mon vote in all countries that were involved with the constitution could have
marked the beginning of a European community in the true sense of the
word. However, it is equally true that since there is not a European nation,
no sovereign European demos as counterpart to the national populations,
a universal vote as described above would have been inappropriate at this
point in the history of European integration. Another problem of a universal
referendum is the fact that, in that case, a country where a majority of the
26
Flash Eurobarometer 142, supra; Flash Eurobarometer 142/2, Convention on the Future
of EuropeWave 2, Brussels, November 2003.
28
people have rejected the constitution might have to ratify it all the same
due to an opposite result on the European scale. Yet such a political move
against the will of a national majority would not be acceptable in Europe.
The most that could have been achieved would be a synchronized ballot in
the whole of Europe but with a national counting of votes. This then could
have sparked an all-European process of deliberation while preserving the
primarily national character of sovereignty in Europe. In contrast to that, the
decision to carry out referenda in only some of the Member States has rein-
forced national segregation of European societies for a long time to come.
Through the referenda, awed as they were, Europe thus relinquished all that
could have been gained from the European momentum of the Convention:
supranationalism and deliberation.
Due to the shortcomings just described, the constitution-making process
had to be suspended in favour of a period of reectionor should one say
a period of neglect. It may be doubted whether the European Commission,
who has initiated an extensive communications campaign consisting of an
Action Plan to Improve Communicating Europe, the so-called Plan D for
Democracy, Dialogue and Debate, and the White Paper on an European
Communication Policy,
27
will be able to overcome this state of stagnation.
It is quite probable that opportunities to stimulate large-scale deliberation
in Europe, which had best be done during the time of the Convention, have
now passed. Trying to improve communications after the end of the Con-
vention might even be perceived as an attempt at selling an inferior product
at the highest possible price.
With respect to the theories of intergovernmentalism and delibera-
tion, it can be said that, on the one hand, the Conventions success was
guaranteed by an appropriate mixture of these two concepts while, on the
other, the eventual paralysis of the constitution-making process was due
to an improper blend of these ideals. But what can we learn from that
for the continuation of the constitutional project?The European Parlia-
ment has proposed to use the current period of reection to re-launch
the constitutional project on the basis of a broad public debate about
27
European Commission, Action Plan to Improve Communicating Europe by the Com-
mission, SEC (2005) 985 nal, 20 July 2005; European Commission, Communication
from the Commission to the Council, the European Parliament, the European Eco-
nomic and Social Committee and the Committee of the Regions. The Commissions
contribution to the period of reection and beyond: Plan-D for Democracy, Dialogue
and Debate, COM (2005) 494 nal, 13 Oct. 2005; European Commission, White
Paper on a European Communication Policy, COM (2006) 35 nal, 1 Feb. 2006.
29
the future of European integration. [The Parliament resolved] that this
European dialoguewhose results should not be prejudgedshould aim
to clarify, deepen and democratise the consensus around the Constitution
and address criticisms and nd solutions where expectations have not been
met.
28
Furthermore, the European Parliament suggested concentrating on
important questions like the role of Europe in the world, the future of the
European social and economic model, and the denition of the borders of
the European Union. However, the focus of the debate should be placed
on the goal of European integration. Europe, as it is generally believed, is
in need of a debate on the nality of integration. It is still unclear whether
the Union is to become a federal state or just a confederation of individual
states, if it should be merely a free trade area or a wide-ranging political
community, whether at all Europe can and should be anything more than
a Staatenverbund/combination of states (German Federal Constitutional
Court),
29
a concordance system (Donald J. Puchala), a post-modern
national state (James A. Caporaso), a quasi-state (William Wallace), an
amalgamated federal state (Wolfgang Wessels), a regulative state (Gian-
domenico Majone), a state-like entity (Hermann Lbbe), or a condo-
minium (Philippe Schmitter).
30
It still remains undecided whether the EU
really is an emerging superpower
31
or whether, in fact, the United States
of Europe is just a phantasm that will never exist.
32
What is needed for the
future of the Union is certainly a clarication of terminology.
In the long run, the label of a European Republic as introduced in
some of the more recent publications written from a pro-European perspec-
tive,
33
might gain acceptance as an adequate term. Immanuel Kants idea of
28
European Parliament, Report on the Period of Reection: the Structure, Subjects and
Context for an Assessment of the Debate on the European Union. Committee on Con-
stitutional Affairs, A60414/2005 nal, 16 Dec. 2005.
29
BVerfGE 89, 155.
30
W. Wessels, An Ever Closer Fusion? A Dynamic Macropolitical View in Integration
Processes, 35 Journal of Common Market Studies (1997), 266299.
31
R.J. Guttman (ed.), Europe in the New Century. Visions of an Emerging Superpower (Boul-
der: Rienner, 2001).
32
H. Lbbe, Abschied vom Superstaat. Vereinigte Staaten von Europa wird es nicht geben
(Berlin: Siedler, 1994).
33
A. von Bogdandy Die Europische Republik, 36 Politik und Zeitgeschichte (2005),
2127; S. Collignon, The European RepublicReections on the Political Economy of a
Future European Constitution (London: The Federal Trust for Education and Research
in association with the Bertelsmann Foundation, 2003).
30
republicanism, developed in his essay on eternal peace, links politics, law,
and rationality. The anarchy of states causes distrust, permanent conicts,
and disastrous wars and should therefore be replaced by an international
community of law and peace. The states still remain but cooperate under
the ruling principle of law, which expresses human rationality. That means,
regarding to the situation in the European Union, the European level has
to accept the form of government and the autonomy of the Member States.
A European republicanism is not in opposition to the monarchic principle
in some Member Stateseven Kant preferred a monarchic republicanism.
In fact, European republicanism as a specic form of democracy means to
constitute and to strengthen a European public, European deliberation, and
the participation of different political and social actors. It refers to self-gov-
ernment, human rights, and citizenship. Hence, the community of states
should be amended in the long run by a community of citizens.
The aim of a self-adjusting and peaceful community seems to be
uncontroversial. The European Union now needs a decision about the road
map. Both strategiesmore intergovernmentalism or more deliberation
are possible and can be justied by substantial reasons. What is crucial is
the development of a practicable as well as generally accepted method of
constitution-making. The constitutional project has not failed yet. Instead,
the existing draft may serve as a starting point for a future debate. The con-
stitution-making process, therefore, will certainly continue but it will remain
on the agenda of European politics much longer than expected.
STATUTES AND STATUS, OR: THE TRUE NATURE
OF THE EUROPEAN CONSTITUTION
Stefan Haack
I. STATUTE AND STATUS AS POINTS OF REFERENCE IN
CONSTITUTIONAL THINKING
When the development of a European Constitution was discussed
in the mid1990s in the aftermath of Maastricht and following the draft
constitutions of the European Parliament, this triggered a wide controversy
among the experts in constitutional law.
1
The controversy circled around the
question if the European Union, as a supranational association, could have a
genuine constitution or if a constitution is linked to statehood. This dispute
has mixed factual and conceptual issues, and part of the confusion that still
exists today arises from the fact that the term constitution can be used in
different ways. Leading authorities in European Community law, and also
the German Federal Constitutional Court (Bundesverfassungsgericht) have
been calling the foundation agreements of the EC the European constitu-
tion for quite some time.
2
This language only met with resistance when the
1
E.g., R. Bieber, Steigerungsform der europischen Union: Eine europische Verfas-
sung, in: Ipsen et al. (eds.), Verfassungsrecht im Wandel, Cologne 1995, pp. 291 and,
in the same volume, M. Schrder, Grundsatzfrage einer europischen Verfassung,
pp. 509; furthermore, Chr. Koenig, Ist die europische Union verfassungsfhig?,
Die ffentliche Verwaltung (1998), 268; Th. Lufer, Zum Stand der Verfassungsdis-
kussion in der Europischen Union, in: A. Randelzhofer, R. Scholz and D. Wilke
(eds.),Gedchtnisschrift fr Eberhard Grabitz, Munich 1995, pp. 355.
2
E.g., T.C. Hartley, Federalism, Courts and Legal Systems: The Emerging Constitu-
tion of the European Community, 34 American Journal of Comparative Law (1986),
229; E. Stein, Lawyers, Judges, and the Making of a Transnational Constitution,
32
Maastricht Treaty was concluded and issues regarding the goal of the future
integration ared up. The choice of the word constitution was interpreted
as an indication of a state-like character of the European Union, by which
the integration process challenges the sovereignty of the Member States (to
the extent this sovereignty was still deemed existent).
3
The sections below
show the extent to which terminological misunderstandings are responsible
for the disputes over Europes Constitution. What does it mean when the
ECJ, ever since les Verts, views the Treaty of Rome as a European con-
stitution
4
and when a document is to replace the former agreements by a
Treaty establishing a Constitution for Europe (TCE)?
As we show in the next section, two principal meaning patterns of the
word constitution must be distinguished. One meaning of constitution,
both in colloquial language and in legal usage
5
, is a set of fundamental rules,
and the statutes in which these rules are laid down. The starting point of any
endeavour to pinpoint the concept of constitution within the discourse on the
European integration process is therefore the reference to a statute that directs
the focus to special rules and their position in the structures of law (section II
below). Another understanding of the term constitution, also found in gen-
eral and legal usage, can be distinguished from this statute-related use of the
term. Here, just like in the colloquial sense, constitution means the condition
or status a person or matter is in. One could say, for example, that the state is
well constituted. The meaning of constitution here is state or condition
and appears to be status-related (section III below).
The hypothesis to be discussed here is that the dichotomy between stat-
uteand status-related concepts of constitution also exists in the discourse
about a Constitution for Europe. These (and other) divergent concepts have
given rise to misunderstandings. What we should therefore clarify here is the
extent to which it is justied to treat the TCE as a statute that has the qual-
ity of a constitution, and, on the other hand, the role that a status-related
75 American Journal of International Law (1981), 1; H.P. Ipsen, Europische Verfas-
sungNationale Verfassung, Europarecht (1987), 195. The German Federal Con-
stitutional Court has called the EEC Treaty a constitution of this community in its
ruling of Oct. 18, 1967 (1 BvR 248/63 and 216/67; E 22, 293, 296).
3
An example of this is D. Grimm, Braucht Europa eine Verfassung?, Juristenzeitung
(1995), 581.
4
ECJ, Case 294/83, Les Verts, 1986, 1357.
5
The difference between the general and legal concepts of constitution will also have to
be discussed.
33
STATUTES AND STATUS
concept of constitution has today and in the future process of European
integration (sections IV and V below).
II. FUNDAMENTALS OF STATUTE-RELATED CONSTITUTIONAL
THINKING
1. CONSTITUTIONS AS BASIC SETS OF RULES FOR ASSOCIATIONS:
THE ORGANIZATIONAL CONCEPT OF CONSTITUTION
A concept of constitution that relates the term to specic statutes can take
a generally organizational or dogmatic, legalized form. In an organizational
sense, constitution just means a set of basic rules, and the term is linked
to the existence of an association of interested parties that is organized in a
particular way. It thus designates the basic document or statute that rules the
interaction of participating members, installing executive bodies of the asso-
ciation and generally enabling the association to act in a permanent or semi-
permanent way. Functioning, purpose, and appearance of the association are
usually dened in these statutes. It can be suggested that the constitution in its
organizational meaning moulds an association into a corporation.
The term constitution can be applied likewise to public and private
associations in this sense. Associations of private law have a constitution
in the form of their standing rules, so that one can use the word consti-
tution for the basic rules of a company, cooperative society, or indeed
any other private association. We can nd constitutions in this organi-
zational sense also in relation to associations under public law, as there
are basic rules of local government of rural districts and municipalities to
specic public institutions. The term constitution is commonly used in
this way even in publications on international law, every time foundation
agreements and basic statutes are referred to
6
: Most notably, the Charter
of the United Nations is considered the constitution of the UN, and it
transforms the world organisation into an association under international
law that is able to act.
Such an organization-orientated concept of constitution may, of course,
also be used with reference to states. Every State has its organizational rules as
described above, including those governing the interaction with and among
6
Cf. M. Srensen, Autonomous Legal Orders: Some Considerations Relating to a Sys-
tems Analysis of International Organizations in the World Legal Order, 32 Interna-
tional and Comparative Law Quarterly (1983), 559, at 562.
34
of its citizens and other individuals; these rules constitute the State as an
association.
7
Despite all their peculiarities, States appear in this view to be
just one of many forms of human association or collectivities that have basic
statutes. One should observe moreover that there is no apparent reason to
limit the meaning of constitution in its functional and organizational sense
to the basic sets of rules in the State only; the common denominator is an
organized association.
2. CONSTITUTIONS AS THE SUPREME LAW: THE LEGAL CONCEPT
OF CONSTITUTION
a) Supremacy and legal quality of the constitution
The standard vocabulary of law includes a meaning of constitution that
exceeds the general notion of an association-related basic set of rules. Consti-
tution in this legal sense is synonymous with supreme law. It describes the
sum total of supreme rules in a system of law, its rst and highest standards.
Constitutions in this legal sense are sources of law; their provisions must be
applied as legal norms. The prerequisite for this notion of constitution there-
fore is their legal quality: lawyers deduct legal consequences from its norms;
constitutions would determine the outcome of a legal case. This use of the term
typically also involves the existence of a special statute in which the constituent
power would codify these rules. However, this statute is more than the charter
of any association: the set of rules that is legally understood as the constitution
contains the fundamental stipulations of an autonomous system of law.
b) The content of a constitution
As regards their content, constitutions are characterized as supreme laws
8

in that they :
Fix fundamental patterns and major concerns of an autonomous system
of law in binding norms. They provide a legal form to the fundamentals
of law and order.
7
German-language legal publications call this Staatsorganisationsrecht, literally the law of
state organization. Cf. Chr. Degenhart, Staatsrecht IStaatsorganisationsrecht, 21
th
ed.,
Heidelberg 2005.
8
For more information on the content characteristics of a constitution, see J. Isensee, Staat
und Verfassung, in: Isensee and Kirchhof (eds.), Handbuch des Staatsrechts, vol. II, 3
rd

edition, Heidelberg 2004, sect. 15 note 187; J.-P. Jacqu, La Constitution de la Com-
munaut europenne, Revue universelle des droits de lhomme (1995), 397; J.-C. Piris, Hat
die Europische Union eine Verfassung? Braucht sie eine?, Europarecht (2000), 311.
35
STATUTES AND STATUS
Regulate the responsibilities, position and interaction of the supreme
bodies of the systems of law constituting them. The supreme institu-
tions of the system of law are based on constitutional stipulations and
are thus, as legislative power, executive branch and legal authorities, used
for dening, applying and supervising law. These norms also take the
form and have the power of binding law.
Contain rules dening how secondary legal norms should be created in
order to be effective.
9
All laws of a system derive their applicability from
the constitution in that they are created as determined by the constitution.
Constitutional norms also decide who can invalidate provisions of sub-
ordinate law or declare them void. Constitutions in the legal meaning of
the term regulate the genesis of norms and dene what is considered law.
Entrench the position of the individual within a system of law. The
fundamental rights they contain dene the scope of individual freedoms
and delimit the extent to which the state may lay claim to its citizens.
In democratic societies, the constitution also states in what way the
individual can participate in the development of the state as a whole.
The constitution creates the quality of law in these rules, too. It gives an
individual the chance to invoke the provisions of the law.
The characteristics listed above are the required content of a constitution
in the legal meaning of the term; institutions, norms, and the position of the
individual mark the essentials of each system under public law. If a consti-
tutional document fails to make a statement on one of these characteristics,
this means that the act of constitution, in legal terms, is not exhaustive; it
is fragmentary and may be supplemented by other (constitutional) rules.
The form of these norms is yet another issue and leads us to the question of
constitutional form.
c) The form of the constitution
The appearance of a constitution in the legal meaning of the term is
typically the act of constitution: it codies the norms of a constitution in
a single body of text. Constitutional statutes have special characteristics as
compared to other laws: amendments to it are typically bound to increased
majority requirements and special rules of procedure. Rules for this are
inevitably found in constitutional law itselfa circumstance that proves
9
See for example, A. Stone, What is a Supranational Constitution?An Essay in Inter-
national Relations Theory, 56 The Review of Politics (1994), 441, at 444 et seq.
36
beyond doubt the constitutional quality of any given overall set of rules, as
it demonstrates and originates in the supremacy of the constitutional norm:
it does not derive the rules of its amendability from another, superior legal
structure.
The form of the constitution always depends on the particulars govern-
ing the validity of norms and the rules regarding its formation. In a legal
system that generally lacks statutory laws or where such laws make up only
a portion of the entire system, the constitution as the supreme law may be
applied in a different way, notably by case law or through customary law.
The sole criterion for a regulation to have constitutional quality is that it is
supreme and applies without being derived from a foreign source. Codica-
tion of these supreme rules in an act called Constitution is an indication
of a constitution in the legal meaning of the term, not an indispensable
prerequisite.
10
d) The autonomous system of law as a reference point
In its legal use, the term constitution describes an aspect of law. It is
linked to the existence of a non-derived system of law that does not depend
on the existence of super-ordinate ties and possesses appropriate instru-
ments of law-making, law enforcement, and supervision of the law for its
realization.
The term constitution denotes legal rules of a special quality and is a
gure of legal thinking, inasmuch as it relates to the terms law and legal
norm. The legal meaning of the word constitution must be drafted from
this world of legal thought and it is restricted to the legal aspect as a term of
legal thinking. The value of the term arises also from this limitation: it aids
in the systematic interpretation of hierarchies of norms. Questions on the
relationship of this system and the state do not contribute anything substan-
tial to the formation of this legal term, meaning that law is a self-sufcient
category.
11
The degree to which there are autonomous systems of law sepa-
rate from the state is a question that goes beyond the purely legal horizon;
the reference point of the constitution in the legal meaning of the term is a
system of law that applies out of itself with the statute at its top.
10
For more information, see F. Snyder, General Course on Constitutional Law of the Euro-
pean Union, in: IV/1 Collected Courses of the Academy of European Law (1995), 41, 54.
11
So much we owe of course to H. Kelsen, Reine Rechtslehre.
37
STATUTES AND STATUS
III. FUNDAMENTALS OF STATUS-RELATED CONSTITUTIONAL
THINKING
1. ORGANIZATION OF PUBLIC AFFAIRS AS A STATUS ISSUE
We have discussed statutes and the norms embedded in them, and now
we will focus on an interpretation of the term constitution as related to
the status of a specic community. The status in question can be that of
the community with regard to the public order system it has established.
The latter is detailed by sovereign acts that cover communities and dis-
tricts, counties and the entire state; federations such as the United States,
Canada and Germany would have an additional sovereignty of their Mem-
ber States. Public affairs are thus organized at different levels of sovereign
acting. Such a tiered decision-making structure can only have an organ-
izing effect if the ranking and interaction of the individual sovereigns are
dened. Organizing public affairs in a multi-tiered community implies
denition of the status of each tier involved. This denition necessitates
the existence of a superordinate instance. The decision on the ranking of
the sovereigns at work in the community comes from a level that is not
just superordinate but appears not derived from its own status alone. Each
assigned status necessarily goes back to some underived act of status assign-
ment. There necessarily is a carrier of supreme sovereignty at the top of
human decision-making structures who is appointed to organize the public
sphere in principle without being derived from other levels. The associated
claim to fundamental organization cannot be conceived as a derived right:
it carries its justication in itself.
2. THE STATUS OF THE COMMUNITY AS AN INDEPENDENT
POLITICAL UNIT
Taking a slightly different point of view, what has been said above
means that each particular community must be forged into an internally
and externally independent unit at a specic level of its political bond.
Constitution in this sense refers to a denable space (and the status of the
powers therein) on the one hand and an aspect of belonging together that
separates this space from the outside, gives it its inner shape and moulds
it into a self-constituting unit on the other. The order of public affairs is
determined in its nature, and its range by a sense of belonging: The ques-
tion why this space, of all spaces, should be constituted as an independent
unit in the specic boundaries it has is at the core of this order-constituting
38
idea. The answer is found in the self-consciousness of the political unit that
coins a specic notion of the reason for its bond.
12
It follows from the fact
that this is a fundamental political bond of a community constituted by
independence that not every motive of belonging together is sufcient to
establish such an order: the unity-constituting idea must convey a context
that lets the individuals of the space to be included stick to the common
bond in inner and external conicts; the system-constituting element in
their consciousness conveys the persistent cohesion of the subjects that are
included in the system.
A community that is delimited in this way can exist as an independent
unit when challenged from inside or outside. The idea of belonging together
curbs the centrifugal forces of internal political conict so that none of the
parties to the dispute breaks away from the unit, however severe their differ-
ences may be. They prefer their own defeat to the disintegration of the bond.
Joseph H. H. Weiler has shown how an outvoted minority in a democratic
state accepts the decisions of the majority due to their awareness of shared
identity.
13
While he is referring to the mode of operation of democracy, such
behavior goes back to a general characteristic of a bond in a constitutional
community: awareness of the bond has to keep the members of the commu-
nity together and overcome the communitys internal tensions. That same
connection is evident in the system of public nances when it comes to com-
pensating economic imbalances among various sub-areas that are included
in the unit. The regions that are obliged to pay compensation accept such
burden shifts easily enough when their awareness of a shared political bond
is sufciently strong.
14
In external conicts, the shared identity gives the
community its appearance of unity towards the outside. Given the respective
commitment of this geographic area to autonomy, its parts will not appear
independently in foreign policy matters.
Uniting a geographic area to become an independent political unit excludes
the continued existence of ties of a similar nature. Internal and external con-
icts are viewed as one and the same phenomenon for the purposes of this
paper: Whether the bond is challenged from inside or from outside depends
12
For more information, S. Haack, Europas doppelte Finalitt, in: 45. Assistententa-
gung ffentliches Recht, Die Europische VerfassungVerfassungen in Europa, Baden
Baden 2005, pp. 95.
13
J.H.H. Weiler, The Transformation of Europe, 100 Yale Law Journal (1991), 2403,
at 2471.
14
I. Harden, The Constitution of the European Union, Public Law (1994), 609.
39
STATUTES AND STATUS
ultimately on the delimiting concept of unity that denes the community of
a specic geographic area. The idea of belonging together therefore also causes
the distinction between domestic and foreign policy. This makes it clear that
the political concept of constitution is linked to the question of demarcating
a geographic area, too. Such a bond for political autonomy can be transferred
from greater to smaller and from smaller to greater units. The underived deci-
sion-making option it conveys can be hidden in the background in this transi-
tional phase and hard to locate for a while. Political and legal battles are fought
for its location. There is one thing it cannot do. It can never vanish for very
long because every human society is based on decision-making structures that
require a status denition regarding the holders of sovereign powers. The status
denition can be tracked back to a holder of supreme decision-making power
who executes this power from its independent position.
3. POUVOIR CONSTITUANT AND POUVOIR CONSTITU IN THE
STATUS-RELATED CONCEPT OF CONSTITUTION
A constitution in a status-related meaning therefore is the ability of a
specic level of sovereign power to decide about the status of all other sov-
ereign players to organize the community based on its own autonomy. The
process of constitution-making is accordingly dened as the subordination
of the community in a specic area to a binding idea. This characterizes
the role of the pouvoir constituant, the holder of constituent power. From
the status aspect, constituent power means the installation of an underived,
status-dening supreme power that is able and competent to organize the
public sphere by itself. The pouvoir constitu as the constituted power is
incapable of constituting underived decision-making powers.
15
Constituted
powers do not produce nal and supreme bonds; their existence is related to
the established society. Their shape and nature are determined by the content
of the unity-constituting idea of order: that element from which the freedom
and boundaries of the community result is at the same time the basis of its
inner political form.
16
The specic bond that is rooted in the consciousness
includes a model of order and determines the constituted power: a nation
that unies based on a specic national consciousness and denes its free-
dom as the basis of its society organizes by forming an adequate democratic
structure of sovereignty based on the notion of the peoples sovereignty.
15
Cf. J. Gerkrath, Lemergence dun droit constitutionnel pour lEurope, Paris 1997, p. 261.
16
Cf. S. Haack, supra, op. cit. (n. 12), at p. 90 and 98.
40
4. THE STATE AS THE POINT OF REFERENCE OF STATUS-RELATED
CONSTITUTIONAL IDEAS
Once again, status-related constitutional ideas do not refer to just any
political bond, but to the most fundamental political basis that allows one and
the same geographic area to be constituted, once, as an independent entity
in this concept; they are linked to the basic organization of the public sphere
in a specic territory. Their point of reference thus is the form of political
bond that originates from the sense of solidarity of a community and causes
its existence as a unit. In modern times, this bond is xed in the form of the
state. Its dissolution marks the loss and conversion of statehood.
The world of states has produced several, tighter or looser forms of asso-
ciation of individual communities. They range from a centralized national
state via various models of federal states and consociative systems of asso-
ciation
17
to associations under international law. However, let us not be
deceived by this multifaceted array of national and supranational integration
models. Each community, despite its manifold integration into the various
levels of political structures, is fundamentally bound in a unique way. This
special bond constitutes it as an independent political unit both internally
and externally. Any other association in which it may be included cannot
be aimed at achieving this same level of independence. Thus the polity of
a specic community as part of a federal state and of the nation is doubly
involved in the system of political decision-making structures; in addition,
the nation may join a higher supranational association. However, a funda-
mental communal bond that leads up to an independent political unit and
ultimately faces the individual is found at only one level: here, in the form
of the federation. It is impossible from the start to be included in two differ-
ent independent units at the same time. The unity-constituting self-image
of a specic community can only be based on a single concept of order from
which it derives the grounds for its independence as a political entity. The
extent and shape of an autonomous geographic unit can be formed only
once, i.e. based on one idea. Each new association of an ultimately respon-
sible political unit erases the previous ties.
Unless we completely reject the feasibility of basic political autonomy
in an increasingly globalized world, we must admit that such a communal
bond that constitutes independence at the respective determined level exists.
17
D.N. Chryssochoou, Democracy and Symbiosis in the European Union: Towards a
Confederal Consociation?, 17/4 West European Politics (1994), 1.
41
STATUTES AND STATUS
The theory of multilevel constitutionalism
18
neglects this connection. Our
assuming of such a bond does not prevent us from accepting transitional
states and states of uncertainty in which scholars and politicians must strug-
gle for locating this autonomy. The situation in the United States before the
Civil War and the situation in Germany after Bismarck managed to unify
the Reich illustrate this.
19
As mentioned above, this exclusiveness applies without any restriction
to federal states: the communities associated in it are constituted as inde-
pendent units at one level only. It is impossible to see the federation and
the federal states similarly as internally and externally independent political
associations.
20
The legal form in which this special type of political consti-
tution is converted into norms of constitutional law corresponds to that
structure. To this extent, the autonomy of the constituent states is derived
from the constitutional structure of the federation. Whoever disregards it is
in violation of federal law. The question of the extent to which this federal-
ist structure is protected against change or abolition has to be answered as
a legal problem based on the constitution. In legal terms, it is the source of
this autonomy. In political terms, the independence of constituent states is
subordinate to the fundamental association of the entire geographic area into
an independent unity.
18
I. Pernice, Multilevel Constitutionalism and the Treaty of Amsterdam: European Con-
stitution-Making Revisited?, 36 Common Market Law Review (1999),703.
19
For information on the latter, see S. Oeter, Souvernitt und Demokratie als Probleme
in der Verfassungsentwicklung der Europischen Union, 55 Zeitschrift fr auslndi-
sches ffentliches Recht und Vlkerrecht (1995), 659, 664 et seq. His theoretical approach,
however, is different from ours. The importance of the secession of the southern states
for constitutional law is discussed, a.o., by C. Schmitt, Verfassungslehre, Munich, Leipzig
1928, pp. 373, whose views are based on John C. Calhoun.
20
K. Doehring, Die nationale Identitt der Mitgliedstaaten der Europischen Union,
in: Due/Lutter/Schwarze (ed.), Festschrift fr Ulrich Everling, Band I. Baden-Baden,
1995, pp. 263.
42
IV. THE TREATY ESTABLISHING A CONSTITUTION FOR EUROPE
AS REFLECTED BY CONCEPTS OF CONSTITUTION
1. THE TREATY ESTABLISHING A CONSTITUTION FOR EUROPE AS
A CONSTITUTIONAL STATUTE
Against the background of differentiating statuteand status-related con-
cepts of constitution, we can now re-assess the constitutional quality of the
treaty that is being submitted for ratication by the EU Member States. If we
apply the term constitution in the functional and organizational sense we
considered rst, we can classify the current Treaty establishing a Constitution
for Europesuch as EU and ECas a constitution. It constitutes the organi-
zational structure of a community. Its provisions on European bodies in Articles
I19 and further make the Union an association capable of acting. Article I3
TCE denes the objectives and Article I5 TCE sets out fundamental rules on
the interaction of the members to name just a few of the relevant norms.
In what respect can the regulatory framework drafted by the Convention
be viewed as constitutional law in the legal meaning of the term? For this, we
saw, the treaty would have to be the set of supreme laws of an autonomous legal
entity. The problem here is not its legal quality but the question whether the
legal substance of the Union (its primary and secondary law) can be qualied
as an autonomous legal system whose claim to be valid cannot be derived from
other provisions. There has been a controversy about this up until the present
day. Some commentators, starting from the substantiation of communities
under international law, deny provisions of EU law the quality of the law of
an autonomous organization that is legitimate on its own.
21
Most authors
do not support this view and are therefore more in line with the view of the
European institutions
22
. They see Community Law as an autonomous system
fully detached from its origins in international law by virtue of the ECJs rul-
ings on supremacy and direct effect. It can be traced back to its origins from an
21
See inter alia, Trybunal Konstytucyny, Ruling of May 11
th
, 2005 (LK 18/04); T.C. Hart-
ley, Constitutional Problems of the European Union, Oxford, Portland 1999, pp. 140;
Th. Schilling, The Autonomy of the Community Legal Order: An Analysis of Possible
Foundation, 37 Harvard International Law Journal (1996), 389.
22
See a.o., M. Herdegen, Europarecht, 8
th
edition, Munich 2006, 76; J.H. H.Weiler and
U.R. Haltern, The Autonomy of the Community Legal OrderThrough the Looking
Glass, 37 Harvard International Law Journal (1996), 411.
43
STATUTES AND STATUS
historical but not from a legal point of view.
23
If we admit to these approaches
of independence of the European system of law and accept the premise of
autonomous application of EC Law, the next step leads us to the question, to
what extent the content of the provisions of the TCE could be the supreme
law of the communities.
Articles I1 to I9 TCE stipulate a number of constitutional principles
of the EU system of law. Other principles, such as the commitment to
the rule of law, can be derived from the preambles (to the constitution
and to the Charter of Fundamental Rights) and from the provisions of
Parts Two and Three (e.g., Articles II107 to II110, III257 TCE).
24
Articles I19 to I29 TCE dene the responsibilities and rank of the
supreme community institutions, while Articles III330III385 regu-
late their legally binding interaction.
The subordinate legal acts of secondary law derive their own validity
from the stipulations of the TCE as from the time of its enactment.
The provisions of the treaty dene the conditions for the emergence,
continued effectiveness, and termination of subordinate law (cf. Articles
I33I39, III366, III396, IV438 TCE).
Fundamental rights and market freedoms of the individual and the
chance of the individuals inuencing the overall political process of
shaping society can also be derived from the TCE (cf. Articles I9, I10,
I47, II61 to II110, III133, III137, III144, etc. TCE). Thus, the
Treaty lays down specic laws of individual participation and freedom
that the individual can invoke in court.
These are all indications that the substantive criteria of a constitution
in the legal meaning of the term apply to the negotiated draft constitutional
treaty. These criteria are codied for the rst time in a single document but
even if they applied as a legal constitution of the Union also in their previous
23
Cf. the ECJ rulings in Case 26/62Van Gend & Loos, 1963, 1, and Case 6/64
Costa vs. ENEL, 1964, 125. This development has been commented on in a detailed
(and controversial) manner, cf. L. Hancher, Constitutionalism, the Community Court
and International Law, 25 Netherlands Yearbook of International Law (1994), 259;
Stein, supra, loc. cit. (n. 2); Weiler, supra, loc. cit. (n. 13), 2403; B. de Witte, Direct
Effect, Supremacy, and the Nature of the Legal Order, in: Craig and de Brca (eds.),
The Evolution of EU Law, Oxford 1999, pp. 177.
24
On the evolution of European constitutional principles, see J. Abr. Frowein, Die Her-
ausbildung europischer Verfassungsprinzipien, in: Festschrift fr Werner Maihofer,
Frankfurt/Main 1988, pp. 149.
44
form, the Treaty of Rome and its amendments, supplemented by a number
of constitution-relevant ECJ rulings.
2. EUROPES POLITICAL STATUS: BASIC BONDING STRUCTURES
IN TRANSITION
From the point of view of status-related constitutional thinking, what is
the constitutional situation of the EU? If we apply it to the structure of the
European Union, the approach described above reveals that the Member States
of the EU are manifestations of the basic political bond of their communities
even today. The status of the Union (before as well as after the Treaty estab-
lishing a Constitution for Europe) proves that the Union as a supranational
European association remains linked to the constitutional structures of the
Member States. This is unmistakably expressed in the treaty itself:
Article I11 TCE retains the principle of limited powers, which is com-
plemented by the principles of subsidiarity and proportionality that
have the same function. Just like today, the EU will not be able to
extend its competences on its own in the future; it has to make do with
the competences granted to it.
Article I60 TCE allows Member States to withdraw from the Union.
25

This right in the text of the Constitution makes it clear that not only a
states accession to the EU but its ongoing involvement is voluntary.
Article I59 TCE provides for sanctions against a Member State that is
in violation of the treaty without making them enforceable by use of
force. The obligations of Member States are based on their willingness
to contribute.
Article IV443 TCE grants the Member States the role of main players
in a future amendment; they continue to be the masters of the treat-
ies. Participation by European institutions, except for the European
Council, is restricted to a mere proposing and passive consultation. This
exclusion from decision-making proves that the Member States still do
not tolerate a form of commitment that touches on their own status as
masters of treaties.
Unlike, for example, the German Grundgesetz, the Treaty establishing
a Constitution for Europe does not contain any modication-resistant
25
On this subject and the previously existing legal situation, see J. Zeh, Recht auf Aus-
tritt, Zeitschrift fr Europische Studien (2004), 173.
45
STATUTES AND STATUS
constitutional core, or any guarantee in perpetuity (Ewigkeitsklausel).
The EU Member States can collectively decree each provision of the
treaty, and ultimately decide over the existence of the treaty itself.
26
The
status of the EU thus depends on the will of its Member States, just as
it used to be the case.
The Treaty establishing a Constitution for Europe leaves the status-
determining essentials of national sovereignty untouched. The treaty in its
current wording does not bind the communities involved in any way that
could be interpreted as a transfer or surrender of statehood.
V. STATUTE AND STATUS IN THE FUTURE INTEGRATION PROCESS
What connection is there between statuteand status-related constitu-
tionalization elements in the process of future integration? What does the
establishment of a system autonomously dening itself mean in terms of
political status?
The development of the European Communities since 1992 has shown
that the will of political shaping is not strictly connected to the legal aspect of
an unfolding independence. The Treaty of Maastricht, in particular, has pooled
responsibilities of states that are linked to the status of independence of a com-
munity.
27
This primarily applies to issues of nancial politics in the Euro zone
and includes core aspects of economic control and basic stipulations of the law
concerning aliens. Other central areas of responsibility of national sovereignty
such as immigration, defence, and criminal investigation politics have also been
taken up by the primary European law and become a subject of European poli-
tics as far as inter-state relations are concerned. An integration process related to
the Single Market that leads to an unlimited economic union and joint mon-
etary affairs triggers automatic mechanisms that communalize other regula-
tory spheres such as consumer protection, crime ghting, and social affairs.
28

26
Hartley, supra, op. cit. (n. 21), p. 147 (on the legal situation to present).
27
Some felt Maastricht had sealed the fate of the Member States claim to sovereignty:
F. Ossenbhl, Maastricht und das Grundgesetzeine verfassungsrechtliche Wende?,
Deutsches Verwaltungsblatt (1993), 629, 631; H.H. Rupp, Mu das Volk ber den
Vertrag von Maastricht entscheiden?, Neue Juristische Wochenschrift (1993), 38, 40.
28
Cf. the provisions in the TCE on Immigration: Art. III267 TCE; defence: Arts. III
309 to III312 TCE; crime ghting: Arts. III271 to III274 TCE (justice) and Arts.
III275 to III277 TCE (police). Some of these responsibilities were drawn towards the
EU by the Maastricht Treaty (Title V, VI EU). On labour market policy, cf. Arts. III203
et seq. TCE, on social policy, Arts. III203ff. TCE.
46
The development that has been started necessitates the progress of integration,
which in turn speeds up the trend of the European level towards autonomy.
It thus appears that that the European Union has entered a status-chang-
ing transitional stage. The roads to unity that Europe treads are linked to
the question of whether a unity-constituting idea of order will become more
prominent and turn the all-European area of integration into an independ-
ent unit.
29
The discussions about the accession of Turkey to the EU have
brought to light the difculties of this development as well as the start of the
quest for the design and boundaries of European unity.
The establishment of a self-supporting system has been at the heart of
European integration endeavours for quite some time. Europe has reached
a point where this alone is no longer sufcient. As the EU embarks upon
forming a political unit, it requires, in addition to its own autonomous
system of law, a unity-constituting idea of order that supports this system.
Constitutional statutes such as the Treaty establishing a Constitution for
Europe are steps towards integration; however, their true meaning remains
linked to the status issue. It is this issue which has remained and remains
unsolved politically even after the treaty was adopted, and it is unresolved
even if the constitutional treaty would enter into force.
29
See S. Haack, supra, op. cit. (n. 12). An interesting discussion of the history of ideas can
be found in the small book titled Falls Europa erwacht by the philosopher Peter Sloterdijk
(Frankfurt am Main 2002) who bases his statements on approaches by Jean-Christoph
Run and Rmi Brague.
THE EU CONSTITUTIONAL CRISIS
AS VIEWED FROM NORTH AMERICA
Dorothee Heisenberg
Just over two years ago, I came to Washington to brief and to
hear the views of Congressmen and ofcials and even a member
of President Bushs cabinet, about the Convention and about the
emerging Constitution; and what struck me was that there was
frankly a complete ignorance of many of the details.
1
I. INTRODUCTION
While most Europeans believe the Constitutional Treaty is in intensive
care and may still be revived, most Americans believe the EU Constitution
is dead and buried. On both sides of the Atlantic, there is a sense that the
Constitution matters a great deal,
2
but for different reasons. This chapter will
1
The Rt. Hon. David Heathcoat-Amory MP House of Commons, June 28, 2005.
2
See e.g., L. Cohen-Tanugi, L., The End of Europe?, 84 Foreign Affairs, (Nov/Dec
2005), E.O. Eriksen, J.E. Fossum and A.J. Menendez, (eds.) Developing a Constitution
for Europe (London: Routledge, 2004), R.J. Friel, The Draft Constitution: Issues and
Analyses: Secession from the European Union: Checking Out of the Proverbial Cock-
roach Motel, Fordham International Law Journal (Jan 2004), 590641, R.J. Goebel,
R. J., European Union Law: Overview: The European Union In Transition: The Treaty
of Nice In Effect; Enlargement In Sight; A Constitution In Doubt, Fordham Interna-
tional Law Journal (Jan 2004), 455502, D. Grimm, Does Europe Need a Constitu-
tion?, European Law Journal 1/3 (Nov 1995), 282302, J. Habermas, Remarks on
Dieter Grimms Does Europe Need a Constitution?, European Law Journal 1/3 (Nov
1995), 303307, T. Judt, Postwar: A History of Europe Since 1945 (New York: Penguin
Press, 2005), C.A. Kupchan, The End of the American Era (New York: Alfred A. Knopf,
48
explore the US andto the extent that they differedCanadian responses
to the EUs Constitutional project (the Convention, the Intergovernmental
Conference and the ratications).
One may legitimately ask why the North American views are relevant at
all in an intra-EU matter in which the US and Canadaindeed all extra-EU
partiesshould not normally have a say or vote. This chapter will show that
the EUs strategy of introducing the Constitution as not simply another treaty
revision but as a more fundamental change of the EUs persona, raised the
prole of the process, created expectations abroad, and ultimately negatively
affected the reputation of the EU in the two American capitals as two original
Member States failed to ratify the New EU. Given that there is less infor-
mation about the EU abroad (see Appendix 1 for public opinion surveys),
it is important to correct that impression. Americans are inclined to view the
EUs role in the world positively (see Appendix 2), and thus any perception
of a wholesale failure of the EU needs to be taken seriously and addressed
by Europes leaders. It should be noted that American or Canadian opinions
used in this chapter are those of the statesmen or other elites, rather than
the populations. As the polls cited in appendices I and 2 reinforce, the
American public has relatively little interest in, or knowledge about, the EU
or its Constitution.
On a more abstract level, the chapter examines why the word Consti-
tution meant such a different thing to Americans than to the Europeans,
and why the choice of that word essentially raised the expectations beyond
what could otherwise have been expected from the EU. That choice was
made deliberately by EU leaders because they wished to be taken more seri-
ously on the international scene, but it had the unintended consequence
of weakening the EU abroad, since the ratication failed in two founding
Member States.
2003), A. Moravcsik, The Choice for Europe (Ithaca: Cornell University Press, 1998),
K. Nicoladis, K We, the Peoples of Europe . . . , 83 Foreign Affairs (Nov/Dec 2004),
97110. J. Rakove, Europes Floundering Fathers, Foreign Policy (Sep/Oct. 2003), 28
38, J. Rifkin, The European Dream: How Europes Vision of the Future is Quietly Eclipsing
the American Dream (New York: Penguin, 2004), L.S. Rossi, What If the Constitutional
Treaty Is Not Ratied?, available at europa.eu.int/Constitution/futurum/analyse/con-
trib/acad/0048_c13_en.pdf (2004), S. Serfaty, (ed.), The European Finality Debate and
its National Dimensions (Washington, DC: The CSIS Press, 2003). L. Siedentop, Democ-
racy in Europe (New York: Columbia University Press, 2001), M. Wallstrm ,Europa in
der Midlife-Crisis?, Politik und Kommunikation (June 2006), 4445.
49
THE EU CONSTITUTIONAL CRISIS AS VIEWED FROM NORTH AMERICA
This chapter begins by examining the appearance of the process from
abroad, with less attention therefore to the actual events in the Convention
or the IGC. Obviously, there is a strong correlation between the two, but
when they differ, it is the perceptions rather than the actual events that are
studied here. The chapter then reviews how the Convention was presented
to the world. The Commissions choice of the word Constitution, as well as
its method of consulting civil society, especially over the Internet was novel,
and it appealed to Americans as marking a new, more democratic EU.
The subsequent section examines the Draft Proposal which was negotiated
in the IGC, highlighting which sections were particularly interesting for the
North Americans, and why they were attractive. A further section looks at
the ratication process, and specically, the implications of disregarding the
no-votes in France and the Netherlands, which many Americans viewed as
inherently undemocratic. Finally, the chapter ends with a discussion of how
the EU linked the Constitution to the idea of the EU as a legitimate world
actor, which was perhaps unnecessary.
II. THE CONVENTION: FEBRUARY 28, 2002JULY 18, 2003
In the 1990s, the EU had fallen into a pattern of renegotiating the
founding Treaties without ever reaching a satisfactory institutional frame-
work that would accommodate efcient and legitimate decision-making in
an ever-expanding union. With each Summits failure on the institutional
issues, a new IGC would be announced to deal with the leftovers from the
previous negotiations. Thus it was at the Nice Summit in December, 2000
that another IGC was announced to take place in 2004.
French President Jacques Chirac and German Foreign Minister Joschka
Fischer had both already used the word Constitution in speeches in May
and June of 2000 in which they called upon the Member States to settle the
institutional debates. As Norman (2003:1213) makes clear, the French
and German views on these issues were not identical, nor did a Constitu-
tion mean the same thing to everyone, but as usual in the history of the
EU, a Franco-German agenda had to be taken seriously. The success of
the rst EU Convention on the Charter on Fundamental Rights showed
that this type of drafting process could be democratic and efcient, and
by year-end, the leaders of Europe had reached consensus on holding a
Convention on the Future of Europe. The convention would create a text
which would then be handed over to the IGC as a negotiating document.
In this way, the old agenda-setting method of the EUMember State
50
governments preparing drafts and text to be negotiatedwould be more
inclusive and less elite-driven.
Codifying their consensus at the Laeken Summit in December 2001,
the Member States chose 75 year old former French President Valry Giscard
dEstaing to head the Convention. The Europeans took the idea of a Con-
vention on the Future of Europe seriously from the outset, and newspapers
editorials in Europe began debating the proposals and formulations that
would appeal to the respective Member States. Several Canadian papers,
including the Calgary Herald, St. Johns Telegram (Newfoundland) and The
Ottawa Citizen also covered the Laeken summit conclusions, as well as the
decision to appoint M. Giscard dEstaing and to hold a convention. US
citizens, by contrast, could be excused from not knowing that the EU had
decided to hold a quasi-Constitutional Convention, since not a single US
newspaperincluding The New York Times and The Washington Postcov-
ered the summit or its conclusions. The International Herald Tribune, a col-
laboration between the New York Times and Washington Post for its readers
abroad, covered the summit and the selection of leaders for the convention,
but did so in such a disparaging way that M. Giscard himself wrote a letter
to the editor complaining:
I read with surprise the disobliging commentaries you published
about my designation as president of the European Convention,
and that of the two vice presidents, Giuliano Amato and Jean-Luc
Dehaene. Unlike the European press, which welcomed with sym-
pathy this designation, acknowledged unanimously by the 15 heads
of state and heads of government of the European Union, the Inter-
national Herald Tribune presented us in offensive, even insulting,
terms to your American and European readers. At a time when the
United States wishes to develop the warmth of its relations with its
European partners, I am not convinced that it is a positive action
to disparage the responsible persons of a convention that recalls, in
some respects, the famous convention of Philadelphia of 1787.
3
Giscards rhetorical use of the Philadelphia Convention which created
the US Constitution in his letter to the editor may have been the rst refer-
ence to the US Convention, but it would certainly not be the last.
By the time the Convention opened in March 2002, M. Giscard had
made many allusions to Philadelphia and the US Constitution. This served
3
The International Herald Tribune, December 27, 2001.
51
two purposes: rst and foremost, it conveyed to the Europeans as well as to
the United States how serious this moment and the Convention were for
the EU. Second, it gave M. Giscard, who was dogged by sniping that he
represented Europes past more than its future, a chance to argue that Ben
Franklin, who had played an important role in the USs Constitutional con-
vention, had been 81 years old at the time.
The repeated allusions to Philadelphia also brought out the historians
of American and Canadian history. In several articles
4
, most of them critical,
the analogy to the founding of other federations was explored. M. Giscard
later compared himself with Thomas Jefferson, who did not even attend the
Philadelphia convention.
5
Since he had spent the summer of 2002 reading
David McCulloughs biography of John Adams, presumably he was modestly
disavowing the paternity of what was viewed by then as a less federal Euro-
pean Constitution draft than the United States Constitution had been, and
certainly less federal than what had been expected ex ante, given the makeup
of the convention.
The opening of the Convention was covered by the Washington Post
and the New York Times (as well as the Washington Times andsomewhat
oddlythe Salt Lake City Deseret News). In Canada, four papers picked up
on the Canadian Press Newswire report on the opening, and took verbatim
its balanced report. The Washington Post article by T.R. Reid who would
later publish a attering book on Europe
6
, was extremely positive about the
Conventions prospects, and explicitly cited those EU politicians who called
for the creation of a new superpower to contain the US:
7
In recent years, European leaders have grown impatient with the pol-
itical, cultural, nancial and military dominance of the United States.
Senior politicians in several nations have criticized Washington for
4
See for example, P. Robinson, A Dodgy Constitution, The Spectator, February 8, 2003,
comparing the European Convention to the Philadelphia Convention and the confer-
ences which created the Dominion of Canada; J. Clarks Europe and the Myth of
Americas Constitution, The Times, May 29, 2003 is another explicit comparison. For a
more thorough analysis of EU and US federalism and governance, see K. Nicolaidis and
R. Howse, The Federal Vision: Legitimacy and Levels of Governance in the United States
and the European Union (Oxford: Oxford University Press, 2001).
5
The New York Times, June 15, 2003.
6
T.R. Reid, T.R., The United States of Europe: The New Superpower and the End of Ameri-
can Supremacy (New York: Penguin, 2004).
7
The Washington Post, March 1, 2002.
52
taking unilateral positions on global warming, terrorism and other
important issues . . . This convention, said Vice Chairman Giuliano
Amato, a former Italian prime minister, is about Europe making its
voice heard in the world. Very often we hear the observation that the
world is now run by one superpower. A unipolar world is a dangerous
one. But a single Europe could give us a voice.
The New York Times report took a more skeptical approach to the EUs
aims and prospects. It noted that many Europeans felt removed from Brus-
sels decision-making and applauded the choice of a convention, saying:
8
It will be the leaders of the member nations who will receive the
recommendations of this convention and decide what to do. But it
will be harder for the leaders to ignore the recommendations that
emerge from this open process, and harder for them to maintain
the European Union as a top-down affair, with little power given
to the European Parliament. . . . For all the talk of Philadelphia in
1787, the dream of a United States of Europe, which animated
one of the European Unions founders, Jean Monnet, the French
economist, has been dead for years.
Thus, at the beginning of the Convention, one of the main themes of
the importance of the Constitution to the US was addressed: the EU could
become a potential counterweight to the US in the world system for good
or bad.
As regards the Conventions methods, although the Commission had
set up a website to solicit comments on the Convention, which would have
allowed contributions from anywhere abroad, no parties, organizations, or
groups in the US or Canada contributed a position paper or opinion about
the future of Europe.
9
There was only an academic paper by two American
law school professors. In retrospect it is astonishing that the US Chamber of
Commerce or a US foreign policy think-tank did not use the opportunity of
making proposals
10
. Arguably, Americans were cynical about the prospects
8
The New York Times, March 1, 2002.
9
This statement is based on the authors review of the Commissions archived civil society
dialogue documents 20012003, available at europa.eu/Constitution/futurum/cono-
thother_2001_en.htm#2001. To the extent that the Commission removed some con-
tributions it may not be true.
10
Indeed, Norman (2005) notes in general that there was little sign of business interests
hovering around the plenary hall, P. Norman, The Accidental Constitution. The Story of
the European Convention, 2nd ed. (Brussels: EuroComment, 2005), at p. 328.
53
that any proposal would be read by someone of note inside the Convention.
Indeed, as Norman
11
and Jarlebring
12
highlight, although the Convention
seemed to be open and inclusive and a big step in the direction of more
bottom-up democracy in the EU, in practice, the overwhelming number
of proposals and ideas were culled by M. Giscard in back room deals and
shrewd compromises with key players in the Convention. Thus, the EU elite
again essentially made the proposal which M. Giscard presented to the EU
Heads of State and Government in July of 2003.
The method of drafting the convention proposal ensured that the new
draft mirrored the existing status quo, preventing the EU from moving into
a decisively more federal direction.
13
If one looks only at the Convention,
this outcome was something of a surprise, given that the majority of the 105
participants espoused relatively more federalist ideas. However, when one
considers that the heads of state had essentially veto power over the ideas of
the Convention, M. Giscards interventions in the drafting of the document
may have reected simply a pragmatic response to the institutional features
of the process.
Although most of the nal draft was a codication of the existing trea-
ties, some of the departures from the status quo were exactly the issues that
would affect third countries, and the IGC ultimately accepted them because
of the changing international context during the negotiations. These issues
are explored in greater detail below.
Before looking at the IGC and the specic issue areas that concerned
North Americans, however, it is important to see why the choice of the
word Constitution for the EU was so important. In an insightful chapter,
Mllers
14
discusses two types of Constitutions found in Europe. The rst
is an American-French type which creates a specic democratic stock of
traditions. Its great theme is the democratic politicization of law-making
11
Cf. P. Norman, The Accidental Constitution. The Story of the European Convention,
2nd ed. (Brussels: EuroComment, 2005).
12
Cf. J. Jarlebring, Taking Stock of the European Convention. What Added Value Does
the Convention Bring to the Process of Treaty Revision?, 4 German Law Journal (2003),
785799.
13
Cf. P. Magnette and K. Nicoladis, The European Convention: Bargaining In the
Shadow of Rhetoric, 27 West European Politics (2004), 381404.
14
C. Mllers, The Politics of Law and the Law of Politics: Two Constitutional Tradi-
tions in Europe, in E.O. Eriksen, J.E. Fossum and A.J. Menendez (eds.), Developing a
Constitution for Europe (London: Routledge, 2004), at p. 130.
54
through the foundation of a new system of government. The second, found
in Germany and the United Kingdom, for example, stresses the juridica-
tion of an already existing governmental system. Mllers goes on to elabo-
rate some of the normative differences in these two forms of Constitutions.
In an American type of Constitution:
15
the Constitutional revolution eliminates the recognition of the
status quo as a legitimate point. As a result, traditions lose their jus-
tifying value and must be replaced by new democratic traditions
that are specic to the Constitution. This disengagement from the
past is, at the same time, a disengagement from previously existing
political practice . . .
The implications of a constitutional revolution are that the previous status
quo no longer exists and a fundamentally new order is created. When Ameri-
cans heard the word Constitution, they thought primarily in those terms.
By contrast, a powershaping (what Mllers terms the British or German
variant) constitution is concerned with the juridication of existing public
institutions. Put at the European level, Mllers typology implies that the
European interpretation of the word Constitution implies much greater
continuity to the past than the American interpretation. Indeed, when one
looks at the outcome of the EU Constitutional process, one notes primarily
the codication of the status quo.
16
The revolutionary character implicit in the American usage of the word
Constitution was perhaps a device to signal to the Americans that they
should pay attention to this treaty revision process because it promised to
create a radically new partner. Perhaps some Europeans even believed it them-
selves. The creation of institutional gureheads certainly gave the impression
of unifying a diverse bureaucracy, and creating a more state-like entity.
In this context, the geopolitical situation during the Fall of 2002 and
Spring of 2003 was certainly important. As the US prepared to preemptively
attack Iraq, the divisions between the soon-to-be 25 European states were
acute and obvious. To some extent, this also motivated greater federalism on
the part of reluctant EU States in the issue area of foreign and defense policy.
The impact of the Iraq war on the IGC is explored in the next section.
15
Mllers, loc. cit.., at p. 131.
16
A. Arnull, The Draft Constitution: Issues and Analyses: The Member States of the
European Union and Giscards Blueprint for Its Future, Fordham International Law
Journal (Jan. 2004), 503543.
55
III. THE INTERGOVERNMENTAL CONFERENCE: OCTOBER 4,
2003JUNE 19, 2004
The EU had included representatives of ten candidate Member States in
the Convention, and this practice of including them continued in the IGC,
even though legally this was not required. The IGC did not fundamentally
change the text of the Constitution as drafted by the Convention, but it did
reach agreement on some of the more controversial institutional questions,
such as a denition of qualied majority voting, the new organization of the
Presidency of the Council, and policies on defense and the use of qualied
majority voting in some justice and home affairs issues.
The US had an interest in some of the institutional reshufing, especially
the Union Foreign Minister and the Eurogroup president. Because many ter-
rorism-related issues were integrated in the Justice and Home Affairs pillar
of the Treaties, the application of qualied majority voting to this issue area
was also attractive to the Americans.
It would be a mistake, however, to assume that Americans or Cana-
dians lobbied European governments for one position or another in the
Constitutional IGC. The issues which were most divisive in the IGC were
primarily issues of institutional representationhow many votes Poland or
Spain would get in a new voting system, how to cut down the number of
Commissioners and whether to create the post of President of the Council
for 30 months. The transatlantic agenda was far more defense-oriented,
with EU ministers increasingly calling on greater EU defense capabilities
and Washington warning against any undermining of NATO. Most of the
US-EU dialogue involved the Iraq war and more short-term considerations
of how to deal with the post-war reconstruction and security concerns
which had become paramount by the beginning of the IGC. With respect
to the Constitution, the biggest question was about whether subgroups
could work together in defense issues, and how that cooperation would
integrate with NATO. The Constitution was ultimately mute on the spe-
cic institutions and policies of ESDP, but laid the foundation of struc-
tured cooperation--the ability to form core groups of more integrated
countries in defense issues.
The divisions in Europe about the Iraq war became something of a ral-
lying point about EU defense policy generally, with Germany and France
pushing for greater EU defense cooperation capabilities through structured
cooperation. British foreign minister Jack Straw did not immediately exclude
56
the possibility, saying only
17
We are intending to make sure that nothing
undermines the pre-eminence of NATO as the guarantor of the territorial
defence of Europe. In return, Germany and France would drop their insis-
tence on mutual security guarantees in the Constitution.
The US became concerned about the developments, because several
NATO allies cut off communication with Washington before the EU meet-
ings, and the US feared being presented with a done deal between the Euro-
peans. In response, it called a special informal NATO meeting to discuss
the direction of EU-NATO relations, and to set clear limits on what kind
of EU defense policy would be compatible with the NATO obligations of
Member States.
Canada also voiced its concerns of the direction of the EUs military
project in the Constitutional revisions of the European Security and Defense
Policy (ESDP). There was concern that increasingly the EU was making
defense decisions with NATO implications and keeping Canada out of the
loop. James Wright, Assistant Deputy Minister for Global and Security
Policy in the Department of Foreign Affairs indicated that parts of the EU
Constitution and several aspects of its plan for a military rapid reaction force
would weaken the solidarity of the transatlantic alliance. There is enough
work for NATO and the EU. Resources are too scarce to squander and the
security stakes are too high for all of us, on both sides of the Atlantic, to allow
unnecessary political considerations to become a factor in the management
of our collective security interests.
18
On November 28, Germany, France and the UK reportedly nalized
a deal on ESDP which included a new EU institution headquartered in
Brussels to organize planning and monitoring EU defense and peacekeeping
missions as well as augmenting the EUs existing military strategic planning
unit in Brussels to included operational activities.
19
At the IGC ministers
lunch on the 29th, a new paper explaining the proposal was not forthcoming
because the US was examining the plan. By dinner that day, however, the
plan had received Washingtons blessing, and was agreed upon by the other
EU foreign ministers. Formally, the changes to ESDP were not in the Con-
stitution, but were linked through the use of structured cooperation which
was elaborated in the Constitution. The link was necessary since the neutral
17
The Independent, Oct. 17, 2003.
18
St. Johns Telegram (Newfoundland), Nov. 26, 2003.
19
Deutsche Presse-Agentur, Nov. 28, 2003.
57
countries were not able to formally commit to any defense cooperation, and
the Constitution would have bound all Member States.
Washington and Ottawas input on the Constitution after the ESDP
deal had been nalized at the Rome summit in December 2003 was mini-
mal. With the IGCs negotiations foundering on the more parochial con-
cerns of Member State voting power and national representation in Brussels,
the US and Canada began to think more long term about the implications
of changes to the ESDP. The new ESDP policies made Americans aware of
signicant changes in the EU, and more articles began to appear in foreign
policy journals and magazines. The central question preoccupying Washing-
ton think tanks and Congress was whether a more coherent EU was a good
thing for Americas interests.
IV. RATIFICATION AND REFLECTION PERIOD
The debates in North America revolved around what the US and Cana-
dian interests with respect to the EU were, and whether the Constitution
made the realization of those interests easier. This question became more
acute after the Constitution had nally been signed in June of 2004 and
began to be ratied in the 25 Member States.
Already in June 2003, the US Congress had been interested in the ways
in which the Europeans viewed the future of transatlantic relations and how
the Constitution might change that trajectory. Speaking at the hearing on
June 13, 2003, German analyst Dieter Dettke expressed the European view
that a strong and unied Europe was a good thing for the US:
The United States should recognize the enormous potential for
stability and economic progress embodied in the work of the Euro-
pean Convention and the process of enlargement and should take
the advice not only from Europe, but also from many Americans:
let Europe be Europe . . . For the stability of an international sys-
tem . . . multilateralism is the more important principle. Without
multilateralism, NATO and the UN cannot function and a Euro-
pean Confederation would not work either. Rules are essential
for stability and so are permanent allies. This is what the US as a
superpower should be interested in, too.
20
20
United States House of Representatives, The Future of Transatlantic Relations: A View
From Europe, Hearing before the Subcommittee on Europe of the Committee on
58
In February 2005, the German Marshall Fund brought together
European and US analysts to discuss what the interests of the US are
in Europe.
21
The group came up with four basic interests of the US in
the EU:
Need for a clear framework to structure the domestic side of US-EU
working relations
Peace on the Continent
Powerful economic relations
New structures to enable the US and the EU to deal commonly with
the rest of the world and to tackle common problems (European
neighbourhood, proliferation, Middle East, relations to Russia and
China and so forth.)
The group was divided about how the Constitution helped or hurt
those interests, with Europeans expressing surprise that other Europe-
ans openly lobby in Washington against the European Constitution,
and stressing that there is nothing anti-American in the Constitutional
Treaty. At the same time, some Americans argu[ed] strongly that the EU
Constitution is potentially in conict with the institution that ties the US
to Europe, i.e. NATO.
22
The main discussions in the US were about the defense implications,
and whether the creation of a stronger EU would necessarily weaken the
USs international role. In many ways, the Europeans and Americans were
talking past each other with respect to the Constitution. The Europeans
had primed the Americans to think of the Constitutional Treaty as revo-
lutionary, and thus many if not most US analysts believed a post-Consti-
tution EU would be much more radically empowered than in the status
quo. In this vein, several articles in Foreign Affairs deserve to be mentioned,
particularly since the journal reaches opinion leaders in the US.
International Relations, House of Representatives, 108th Congress, 1st session, June 17,
2003, serial number 10834, at 20.
21
German Marshall Fund of the United States, The EU Constitution and its Impact on the
US and Transatlantic Relations, conference held April 28, 2005 in Washington, DC.
22
Ibid.
59
The most extreme version of the argument was presented by Jeffrey
Cimbalo,
23
who argued that, [B]y structure and inclination, the new Europe
[created by the Constitution] would focus on aggrandizing EU power at the
expense of NATO, the foundation of the transatlantic security relationship
for more than half a century. In other words, it would seek to balance rather
than complement US poweran outcome for which the United States is
wholly unprepared.
The article went on to argue that the US should no longer passively
support the EUs integration efforts but should systematically oppose those
initiatives which would strengthen the EU internationally.
In their rebuttal of Cimbalo, Asmus, Blinken and Gordon
24
suggest that
a strong Europe is in the USs interest, because combating the dangers to the
US requires strong allies: the United States needs a strong, self-condent
European partner that can bring its political, economic, and military weight
to bear in addressing threats to common interests in Europe and beyond.
Similarly, the conservative think tank, The Heritage Foundation, held
a conference in June 2005 devoted to the issue, Is the European Union in
the Interests of the United States? Here again, panelists all held the central
question to be whether this new, efcient EU would rival the US. As David
Heathcoat-Amory, Eurosceptic MP, House of Commons lectured:
[the EU Constitution] is dangerous for the United States as well,
because this Constitution doesnt just seek to order the relationship
between the countries, the Member States, of the European Union,
but also between Europe and the outside world. [ . . . ] This Consti-
tution is not a vehicle for an alliance with the United States, it is to
be a rival to the United States. Its not for standing with the United
States; its for standing up to the United States. And that is why
the most enthusiastic members of the Convention and the most
enthusiastic countries from which they came for this new foreign
policy were precisely those countries with the most differences with
the United States . . . And therefore when one reads in it phrases
like Those Member States whose military capabilities fulll higher
criteria shall establish permanent structured cooperation within
23
Cf. J.-L. Cimbalo, Saving NATO From Europe, 83 Foreign Affairs (Nov/Dec 2004),
4677.
24
Cf. R.D. Asmus, A.J. Blinken and P.H. Gordon, Nothing to Fear, 84 Foreign Affairs
(Jan/Feb 2005),111115.
60
the Union framework, that is a rival to NATO. It is completely
explicit. And the only thing that surprised me as I sat there during
the long, long sessions was why the other non-European members
of NATO were apparently silent. I cant quite make that allegation
against the American government, because there were some muted,
off-stage complaints, but from CanadaI dont know if there are
any Canadians herecomplete silence. But this is a rival to NATO.
And it was just reducing the other members of NATO to spectators,
and I think that was not just terribly sad, but terribly dangerous.
For the purposes of this chapter, it is essential to note that the dialogue
in the United States revolved around whether a strong Europe militarily
would be benecial to the US or not, whether it would supplant NATO
eventually or not, whether it would become a competitor to the US or not.
Few articles looked critically at the outcome of the Constitution relative to
the status quo, and opined (as some Europeans did), that the Constitution
was mainly a bookkeeping exercise which codied the status quo but did
little to radically federalize the EU.
25
Indeed, many of the aspects which
the Americans worried about in ESDP (e.g. the European Defense Agency)
were independent of the Constitution and were quietly implemented in the
course of 20056 as the Constitutional Treaty ratication stalled and was
replaced by the reection period. The EU created the impression of a new
era in transatlantic relations by using the word Constitution, thereby conjur-
ing up a vision that many in the US believed (and some in Europe hoped)
would greatly enhance the EUs state-like qualities.
Whichever view the Americans heldstrong EU good or bad for the
USthe EU ratication problems added to the divisions between the US
and the EU. After the French and Dutch referendum failures in May and
June of 2005, most US analysts believed the Constitution was dead. Only
a few veteran observers of the EU dared to make the case that these votes
would not necessarily force the EU elites to abandon the existing Treaty
draft. In the US, any suggestion that the Constitution might be revived
was seen as highly undemocratic and served to underscore the inherently
undemocratic nature of EU decision-making generally.
A second area of division was the implied halt to further EU enlarge-
ment that the French non implied. One of the articles of faith that had
always been apparent in both parties of the US Congress was that European
25
Arnull, loc. cit.
61
Union enlargement was a good thing, and that the EU must continue to
allow further enlargement, especially to include its NATO ally, Turkey. With
the failure of the Constitution being attributed in many European media
to enlargement fatigue on the part of the population, the US pressed the
EU not to close the doors to further enlargements. In this respect, the US
attitude was somewhat hypocritical, since many analysts had accused the
EU of not taking seriously resistance of the EU citizens to the Constitution.
With Eurobarometer polls
26
showing that only 45% of EU25 citizens were
in favour of further enlargement (41% in the EU15) and 42% of EU25
citizens actively opposed further enlargement, the USs position essentially
amounted to ignoring public opinion.
These aspects of the US-EU relationship during the ratication and
reection period in Europe were hardly the most important ones. As the
Europeans began to think about the future of the Constitution in 2006,
prodded by German Chancellor Angela Merkels decision to make it a pri-
ority in the German Presidency to begin in 2007, the USs relations with
the EU revolved mainly around foreign policy problems in Iran and North
Korea. Since there were few intra-EU divisions about these issues and the
G3 was the main transmission belt between the US and the EU in these
negotiations, the diplomatic relations between the US and the EU were
friendlier than they had been in years. In part, however, this reected a
reduced fear on the part of the US that the EU would become a rival, since
the French (ironically, in this perspective) and Dutch had prevented this
outcome by killing the Constitution.
IV. CONCLUSIONS
The view from Washington and Ottawa (and indeed from other non-EU
states capitals) on the EU Constitutional debate may not be an important
input into the EUs decision-making about the future of the Constitution.
But perhaps it should be one consideration among others when the leaders
of Europe decide what to do about the Constitution in the beginning of
2007. The reaction of the world to EU leadership is generally positive, and
to the extent that the Constitution signals a greater ability to work together
as one entity, the Constitutional discussion is relevant to the EUs role in
the world.
26
Eurobarometer, Standard Eurobarometer 65 (Spring 2006). Available at http://ec.europa.
eu/public_opinion/archives/eb/eb65/eb65_rst_en.pdf.
62
The argument of this chapter has been that foreign perceptions about
the EU Constitution matter at least as much as the substantive changes from
the status quo. In practice, those changes were not as great as the Americans
and Canadians believed. The changes which were the focus abroad were the
largely cosmetic changes of a Union foreign minister, a President and greater
defense policy coordination. Arguably, the biggest changes were abolish-
ing the pillar structure and making the JHA policies subject to qualied
majority voting and judicial review (especially given the motor of integra-
tion function of the ECJ). However, most legal scholars conclude that the
most important or useful characteristic of the Constitution was the general
cleanup of the different treaties.
27
One of the most important factors that all Europeans must keep in mind
is that the rest of the world does not understand the intricacies of the EU
at present. Because of that ignorance, EU leaders understandably wanted to
create a general awareness of the magnitude of what the EU was intending to
do, and how different an undertaking it was going to be. The introduction
of the Convention as the new Philadelphia, with founding fathers cited right
and left, certainly created the impression that the EU was doing something
innovative. Introducing the Treaty as a Constitution created expectations of
a radically new order which, in the absence of detailed information, came to
be accepted for a fact.
The twin defeats of the Constitution in original Member States cre-
ated a cottage industry in Schadenfreude among Euroskeptic journalists and
commentators. If the Constitution was portrayed by the media as a revolu-
tionary, federal project, its defeat was depicted as the unraveling of nothing
less than the entire European project. There had been many commenta-
tors who expected a defeat in the British referendum on the Constitution,
and some analysts openly planned for that eventuality.
28
Most of Grants
analysis, however, centered on either the UK withdrawing, or France and
Germany forging a new hard core outside the EU to be joined by other
countries to create a new political union. These contingency plans for a UK
defeat of the Constitution seemed eminently possible, given that France
and Germany had earlier discussed a draft during the Convention which
27
Cf. J.-C. Piris, The Constitution for Europe (Cambridge: Cambridge University Press,
2006) and Arnull, loc. cit.
28
C. Grant, What Happens If Britain Votes No? Ten Ways Out Of a European Constitu-
tional Crisis, Centre for European Reform, Press Release, Feb. 23, 2005, and by the same
author What If the British Vote No?, 84 Foreign Affairs (May/June 2005), 3456.
63
proposed expelling States from the EU which did not ratify the Constitu-
tion.
29
Obviously, a French and Dutch No was unlikely to create the
same type of logical consequence.
Many in the media also interpreted the defeat of the Constitution as
leading to a rethink of the entire project. Europes leaders should draw two
broader lessons from the French and Dutch noes. The rst is that rejection
of the Constitution signals that the dream of deeper political integration
and, in the 1957 Treaty of Romes famous phrase, ever closer union, is
over. Instead the EU should move in the direction of being a looser, less
federalist and more decentralized club, opined The Economist. The Guelph
Mercury (Ontario) worried that The EU Constitution, rejected last year by
France and the Netherlands, is dead in the water. Economic nationalism and
protectionism are surging. The French, Italian, Spanish and Polish govern-
ments recently have taken steps to protect national industries from foreign
takeover . . . In short, political life across Europe is being renationalized,
plunging the enterprise of European integration into its most serious crisis
since the Second World War.
30
Little wonder, then, that John Bruton, head of the delegation of the
European Commission was at pains to reassure the US Congress of the
continuity of the EU as a functioning organization:
I cannot stress strongly enough, M. Chairman, the fact that the
No-votes to the Constitution in France and the Netherlands do
not mean any reduction whatsoever in the powers of the European
Union or the rights that citizens of European Union countries now
enjoy. The Union still retains all its powers in trade, in the environ-
ment, in antitrust, in consumer protection and the rest. Its two
foreign policy chiefs . . . remain in place. European Union citizens
still enjoy the rights given to them in already ratied existing EU
treaties to live, to work, and to do business in other European coun-
tries. To the extent that any EU country or part of an EU country
attempts to deny them those rights, that country could nd itself
hauled before the European Court of Justice.
31
29
The Economist, December 12, 2002.
30
June 12, 2006.
31
United States House of Representatives, The EU Constitution and U.S.-EU Relations:
The Recent Referenda In France and the Netherlands and the U.S.-EU Summit, Hear-
ing before the Subcommittee on Europe and Emerging Threats of the Committee on
64
It was clear that the EU Constitution ratication defeats gave the impres-
sion in the US that the EU was no longer working as it had in the past.
Indeed, Foreign Policy magazine of December 17, 2005 cited the story of
how Europe kept integrating and creating new agencies such as the European
Defense Agency, a European Space Program, and an EU diplomatic corps as
one of its top ten stories that the media missed in 2005.
The fact that Europe did not seem to suffer from any particular new
problems following the defeat of the Constitution lent credibility to argu-
ments that encouraged the Commission to follow the democratic will of the
people of France and the Netherlands and let the Constitution draft die its
unnatural death. For many in the Commission and some Member States,
however, the work involved in obtaining the consensus embodied in the
Constitution was worth looking trying to nd a plan D.
From the perspective of non-EU States, the Commission was in a public
relations and logical dilemma: it could either admit that the Constitution
was not a signicant step forward and did not represent a major benet to
the tness of the EU to act as a major partner, in which case it was difcult
to explain the continued efforts to revive it politically. Conversely, it had to
show that the EU was functioning suboptimally during the ratication and
reection period, which was a counterfactual argument in any case, and
certainly not empirically visible.
In the US, although the Bush Administration certainly kept their opin-
ions about the Constitutional dilemma to themselves, there was a certain
status quo bias, which was augmented by democratic concerns. The ability
to nd a coalition of the willing during the Iraq war was still fresh in the
memory of President Bush, and the future benet of dealing with one actor
receded somewhat in attractiveness. The preference to deal bilaterally with
Angela Merkel or Tony Blair whenever possible remained strong, and in the
signicant negotiations over Irans nuclear weapons material processing, the
G3 was the primary partner.
Yet even in the US one could nd analysts and academics that continued
to believe an EU consolidated in the Constitution would be a benet to the
US and world stability. Moreover, among the more historically versed, the
rejection of the Constitution was hardly the end of the story, and most real-
ized that some sort of Constitution-like treaty was going to be made in the
International Relations, House of Representatives, 109th Congress, 1st Session, June 22,
2005, serial number 10968, at 9.
65
next 5 years in any case. Thus, arguing for a known entity was more attractive
than the thought of a new treaty negotiation.
It was this latter ideathat the world is collectively waiting for the
EU to decide what to do nextthat created the unease with the status quo.
Moreover, until the EU acts to move in one direction or another, there is
a sense that the EU is not fully there. Thus the crisis in European Union
decision-making is mostly independent of the actual status quo or the EU
institutions, but rather a function of EU navel gazing, and self-absorption.
For that reason alone, the Constitutions status needs to be resolved.
66
APPENDIX 1
WHAT DO AMERICANS KNOW ABOUT THE EU?
QUESTION: Which, if any, of the following global institutions have you
heard of? (Question named each of the institutions below).
RESULTS:
United Nations 73%
United Nations Children Fund 63%
International Committee of the Red Cross 65%
World Bank 58%
Amnesty International 50%
World Food Programme 44%
International Monetary Fund 43%
European Union 41%
CARE International 41%
World Vision 37%
International Criminal Court 35%
UN High Commission for Refugees 32%
Medicins Sans Frontires 13%
None (Volunteered) 3%
Dont know 1%
Source: Gallup International Poll of US Adults, September 19, 2005
QUESTION: Now, I will read a list of some stories covered by news organiza-
tions this past month. As I read each item, tell me if you happened to follow this
news story very closely, fairly closely, not too closely, or not at all closely...The rejec-
tion by French and Dutch voters of the European Union Constitution . . .
RESULTS:
Very closely 10%
Fairly closely 16%
67
Not too closely 21%
Not at all closely 52%
Dont know/Refused 1%
Source: Princeton Survey Research Associates International poll of US Adults, June 13, 2005
QUESTION: How much would you say you know about the organization
called the European Union or the EU?
RESULTS:
Great deal 3%
Fair amount 19%
Very little 37%
Nothing at all 40%
No opinion 1%
Source: Gallup poll of US Adults, June 16, 2004
QUESTION: The countries of the European Union have introduced a
common currency. To the best of your knowledge, what is this currency
called?
RESULTS:
Euro 46%
Other 3%
Not sure/Decline 51%
Source: Harris Interactive Poll of US Adults, October 2, 2002
QUESTION: As you may know, Western European countries have orga-
nized themselves into something called the European Union. As a result
they have removed all internal trade barriers between themselves and try to
coordinate their economies and foreign policies. How much have you heard
about this--a great deal, some, not very much, or nothing at all?
68
RESULTS:
A great deal 11%
Some 24%
Not very much 39%
Nothing at all 26%
Source: Program on International Policy Attitudes poll of US Adults, June 1998
QUESTION: Just your impression, is the combined population of the
EU (European Union) member nations larger, smaller, or about the same
as the population of the United States?
RESULTS:
Larger 20%
Smaller 29%
About the same 29%
No opinion 22%
Source: Gallup Poll of US Adults, June 16, 2004
69
APPENDIX 2
AMERICANS POSITIVE IMPRESSIONS OF THE EU
QUESTION: How desirable is it that the European Union exert strong
leadership in world affairs? Very desirable, somewhat desirable, somewhat
undesirable, or very undesirable?
RESULTS:
Very or Somewhat desirable 76%
Very or Somewhat undesirable 17%
Neither or both equally (Volunteered) 1%
Dont know/Refused 6%
Source: TNS Opinion and Social Institutes survey of US Adults, September 6, 2006
QUESTION: Now, thinking about some groups and organizations . . .
Is your overall opinion of the European Union very favorable, mostly
favorable, mostly unfavorable, or very unfavorable?
RESULTS:
Very or mostly favorable 33%
Very or Mostly unfavorable 27%
Never heard of or Cant rate 40%
Source: Princeton Survey Research Associates International, November 17, 2005
PROCEDURAL DEVICES FOR MAINTAINING
THE CONSTITUTIONAL MOMENTUM
Joakim Nergelius
I. INTRODUCTION
What would be the possibility to use Article IV443 paragraph 4 and
Declaration No 30 to the Treaty establishing a Constitution for Europe
(TCE) in the event that 20 Member States will in fact have ratied the
Constitution at a date later than October 31, 2006? Given that no less than
18 Member States, i.e. two thirds of the total number, have now ratied the
text
1
, this development will be quite possible and it therefore seems to merit
serious legal and political analysis. The abovementioned part of Article 443
indicates that the European Council shall discuss not only future constitu-
tional changes, after the entry into force of the TCE, but shall also, in the
situation where four fths of them (i.e., 20), should have ratied them by the
31 October 2006, discuss the situation, while Declaration No 30though
legally not bindingsimply takes note of that.
2
This could be read as a sign
that some special procedure for letting the TCE enter into force is after all
applicable (with October 31 as the crucial date when the European Council
shall have to deal with the issue).
1
For an overview of the ratication process and the status of ratications, see euractiv.com/
en/constitution/referenda-eu-constitution-state-play-member-states/article130616, as
well as the ofcial EU website europa.eu.int/constitution/ratication_en.htm.
2
However, it may also be noted that Art. IV447 makes possible an entry into force of
TCE at a later date, in fact at any time in the future, but always on the rst day in the
rst month after all ratications have been made.
72
Interestingly, the TCE in a way foresees its own ratication problems and
tries to envisage a way forward, out of that possible dilemma. The nature,
subject, importance and implications of Declaration No 30 may in fact be
subject to a discussion on its own, but that will not be the main focus of
this Article. Instead, I would like to analyse the possibility of an alternative,
situation-adapted reading or interpretation of this Article and declaration
as one possible procedure for obtaining an entering into force of the TCE.
But since such a political and legal analysis may well in the end lead to the
conclusion that this option is simply not possible, one should also analyse
an alternative way to proceed.
That would entail, then, analysing the political and legal expediency
of re-negotiating the TCE, followed by nothing less than a pan-European
referendum. This is something which I have analysed and advocated before
3
,
but the discussion needs to be brought up to date. It is perhaps politically
unrealistic, but in my view it is the most interesting way to proceed. How-
ever, the constitutional consequences of the other options, including a situ-
ation where the TCE is eventually ratied by 24 Member States, will be
discussed below. Finally, the relation between enlargement and TCE should
be touched upon, given that enlargement with Bulgaria and Romania takes
place before the TCE enters into force. One notes that those two coun-
tries have accepted in their accession agreements to ratify TCE, should it
enter into force. Further enlargement before the future fate of TCE has been
solved seems unrealistic.
This emphasis on certain topics inevitably means that some other,
interesting issues are left aside. Except for the frequently discussed but
highly technical issue of closer co-operation, this is also the case concern-
ing the possibility to let certain parts of the TCE enter into force through
international or inter-institutional agreements
4
or even the current, inter-
esting French and German discussion on a the conclusion of a mini-version
of the TCE. For the time being, I shall leave it to other writers will deal
with those issues.
3
Most recently, J. Nergelius Mind the Gap: The European and National Constitutional
Debatesthe Truly Missing Link, in J. Nergelius (ed.) Nordic and Other Constitutional
Traditions, Leiden/Boston (Brill) 2006, pp. 139172.
4
Here, I may refer to my article And Now for Something Completely Different: Its the
EU ConstitutionAnd its formal Stuff , in Europarttslig tidskrift (2005), 421432.
73
PROCEDURAL DEVICES
II. ENTRY INTO FORCE OF THE CONSTITUTION FOR LESS THAN
25 STATES
At the time of writing, in October 2006, 16 Member States have ratied
the TCE.
5
One kind of analysis of the current situation, that could of course
be interesting and straight to the point, so to speak, would be to simply
analyse the situation and the conditions for ratication in the remaining
nine states, both France and Netherlands who have as we know voted no
to the TCE in a referendum, as well as other states like Denmark, Ireland
and UK, who had announced that a referendum was going to take place but
who then cancelled those plans after France and The Netherlands voted No
and states like Sweden, Poland, Czech Republic and Portugal, where there
simply seems to prevail a certain reluctance, ambiguity and indecisiveness
about the future development. Undoubtedly, such a political and compara-
tive analysis could be of a great interest (and has so far, to my knowledge,
not yet been thoroughly conducted anywhere in the doctrine).
6
Still, I prefer
to concentrate here on a more traditional, legal approach when confronting
the issues mentioned above.
As we know, Article 48 EU stipulates that treaty amendments will enter
into force only when they have been ratied by all the Member States in
accordance with their respective constitutional requirements. The question
what should happen with a Treaty amendment in case one single Member
State fails to ratify it, has occurred at least twice before, namely, after the
Danish no-vote to the Maastricht Treaty in 1992 and after the negative
result in the Irish referendum on the Nice Treaty in 2001. However, for
many reasonsone of course being that in the current situation not just
one small Member State seems unable to ratify, but at least two founding
Member States, with nine uncertain states left to gothe Danish and
Irish solutions from 1992 and 2001, when some formal exceptions were
found and the Treaty approved in a new referendum, seems unlikely to occur
this time.
For various reasons, the possibility that the ratication by all Member
States and consequent entry into force of TCE could be more difcult
than before, was recognized already when the new text was drafted by the
5
They are, in alphabetical order, Austria, Belgium, Cyprus, Estonia, Finland, Germany, Greece,
Hungary, Italy, Latvia, Lithuania, Luxemburg, Malta, Slovakia, Slovenia and Spain.
6
The most ambitious attempt so far seems to be the anthology European Constitution and
National Constitutions: Ratication and Beyond, edited by A. Albi and J. Ziller in 2006
(The Hague, Kluwer).
74
Constitutional Convention in 200203.
7
This may also explain the exist-
ence of Article IV443 and Declaration No 30. The drafters were rightly
suspicious, as this time round the treaty would have to be ratied by no
less than 25 Member States and a number of those had indicated that they
would have recourse to a referendum. In addition, the new Constitution
might correctly or wrongly be perceived as more far-reaching or federal in
character than previous Treaty changes.
8
The most radical solution to such
fears would of course be to suggest an amendment of Article 48 itself, if
possible already for the TCE (which would however be unrealistic). But
even for future treaty changes nothing of the kind was proposed (cf. Article
IV443 paragraph 3).
9
The existence of Article IV443 paragraph 4
10
and the above-mentioned
declaration could be seen as ways to bring about a swifter ratication process
in the future. Still the question arises whether those rules could be applied
in the present moment of crisis, at least indirectly and/or as a tool of inter-
pretation, in order to nd a way out of a standstill. It should in my view be
discussed alongside issues like a new mini-treaty or a continued ratication
process in which France and The Netherlands (as well as e.g. Denmark,
Poland and UK) may eventually have to join, issues that are both on the
7
Among the suggestions for a new ratication procedure, the one launched by the Com-
missions Penelope project was probably the most daunting europa.eu.int/futurum/
documents/offtext/const051202_sv-pdf; it suggested that ratication of the TCE should
take place through two different documents, the rst one being an agreement on how to
proceed, with a simplied ratication procedure. However, the problem, as the Com-
mission admitted, was that the rst document needed to be ratied by all 25 Member
States.
8
Contra, J. Nergelius, The European ConstitutionIntergovernmental Dominance
Replacing Institutional Balance? A Few Critical Remarks on Some Institutional Aspects
of the new EU Constitution, available at cels.law.cam.ac.uk/publications/articles_on_
the_european_constitution.php. However, it may still have played a role in the discus-
sions both before the drafting of TCE and in the referendum campaigns in France and
The Netherlands, notably through the use in it of the term Constitution. Though only
symbolic, the terminology may create a false impression of the changes that the TCE
would actually bring about.
9
The main change proposed by the TCE in this respect is that also future proposals
for treaty changes shall normally be prepared by a convention, as stated in Art. 443
paras. 12.
10
If, two years after the signature of the treaty amending this Treaty, four fths of the
Member States have ratied it and one or more Member States have encountered dif-
culties in proceeding with ratication, the matter shall be referred to the European
Council.
75
PROCEDURAL DEVICES
current political agenda. And even if that discussion should never be turned
into political reality, the crisis that we have witnessed in 200506 shows that
there is, for the future, a need for simplied ratication rules concerning
Treaty changes within the EU (regardless, therefore of what will happen to
the TCE next).
That is the case not least because so many of the other possible ways to
bring about ratication and entry into force of TCE at this time seem to be
so very problematic. Ideas that have been launched, like the possibility for
the 16 or more Member States who have ratied the Treaty to form a new
Union of their own, while remaining members of the current EU, or even
without staying in the existing EU, are legally very complex and may even be
unrealistic.
11
The same is true for the idea of so-called closer cooperation, a
possibility that exists already today, but which has hardly if ever been used, or
the idea to let he TCE enter into force provisionally.
12
To talk about an infor-
mal use of the TCE through international or inter-institutional agreements is
easier from a legal viewpoint, but any attempts of that kind and moving the
EU in that direction will mean a lack of transparency and democracy; they
are thus likely to make the EU less popular and fail to bring it as close to its
citizens as EU politicians have now for many years been advocating.
13
Still, the idea to let the TCE enter into force on a provisional basis or
to allow certain states that have ratied it the right to leave the EU in order
to move into something else, though perhaps politically far-fetched, are in
a way related to the idea put forward here, namely to nd a way to make
the TCE applicable even though it has not been ratied by all 25 Member
States. Of course, if the problem is, or will sometime simply be that only
one or two Member States have not ratied TCE, then the latter ones may
solve the problem by leaving the Union. However, those states cannot
be forced to do so if they do not want, and if they would be for instance
Denmark and the UK (possibly joined by France), their withdrawal might
not be in the interest of the EU at all. Nevertheless, it must be observed
that this will be a legally possible alternative in future discussions. It must
also be assumed, given the experiences not least of the British referendum
11
For an analysis of this issue, with references to a number of voices in the constitutional
doctrine, see B. De Witte, Raticeringen av EU:s nya frdragvad hnder om den
misslyckas?, Swedish Institute for European Policy Studies (SIEPS), 2004:8, Stockholm
2004. Also from SIEPS, Vad hnder med den konstitutionella krisen i EU)? 2006:6.
12
A possibility that is actually seriously discussed by de Witte, loc. cit. at 24.
13
Cf. Nergelius in ERT 2005, loc. cit.
76
on continued EC membership in 1975i.e. not on whether to join but to
stay, once in
14
that such an issue is something for each Member State to
decide. Though this may raise some important legal issues, the EU may,
as far as we know, not interfere with or stop a Member State that actually
wants to leave the Union.
However, as we can see, all the main solutions and suggestions that
have so far been proposed in the doctrine and the political debate are
likely to lead to legal or political problems, or both. Thus, it is logical in
the current situation to ask the question if Article IV443 paragraph 4
and Declaration no 30 may be invoked and applied, say, in 2007, should
20 Member States have joined by then and, in that case, how and with
which effects.
The idea to initiate a discussion on the ratication crisis in the European
Council at a date after October 31, 2006 would of course require a political
decision to adapt some of the rules of TCE prematurely, in a more informal
way. This could be a controversial step, but also the fashionable idea of adapt-
ing a mini-constitution (which would require a new ratication process)
and similar proposals are in fact problematic from the legal viewpoint, in
particular for those sixteen (and soon maybe more) states who have already
ratied the TCE. Such a bold move could be seen as a move towards de-
legalisation, i.e. a less formal application of some crucial EU rules, a trend
we saw previously for instance in 2000, with the sanctions against Austria.
15

It would thus probably not be too controversial.
A more difcult question is what such a procedure could actually lead
to. There is a risk that such discussions at this late stage, aimed at letting the
TCE enter into force in spite of some lacking formal requirements, would
only lead to a situation like the one already discussed in connection with
other scenarios, namely, that a large majority of Member States would want
to let the TCE enter into force while the other one(s), who have not been
able to ratify it, want to prevent it from happening. This time round, how-
ever, the political pressure for entry into force may be somewhat stronger and
objections against this may be weaker once the discussion has become more
political and less legal. At that stage, the TCE may be awarded an indirect
legal, soft law effect. From a legal point of view, such a development should
14
This is still the only general referendum that has ever taken place in the UK. As opposed
to what seems likely to happen today, the yes-vote won a comfortable victory.
15
I have dealt with this issue in the article De-legalize itOn Current Tendencies in EC
Constitutional Law, Yearbook of European Law (2002), 443470.
77
PROCEDURAL DEVICES
perhaps not be welcomed, but the political potential of this option, especially
when compared to many other alternatives, must not be underrated. Already
the adoption of Article IV443 and Declaration No 30 points in that direc-
tion. The idea should thus not be kept away from the discussion on future
options on how to proceed, in particular when we consider that also other
ideas are either legally or politically problematic.
III. A PAN-EUROPEAN REFERENDUM?
Thus, as we have seen, almost all the suggestions that have hitherto
been presented for discussion in the debate are, albeit to different degrees,
problematic. But if we are allowed to think outside the box and be slightly
idealistic, there is room also for a more radical idea, should the political
leaders in Europe want to do something new and radical about the cur-
rent dead-end situation. As we know, for a number of years they have been
talking at nearly every European Council summit about the need to bring
Europe closer to its citizens. Also the Commission and the Parliament fre-
quently talk a lot about that. The referendums in France and Netherlands
have shown, just like previous ones in e.g. Denmark, Ireland and Sweden,
how difcult it is to separate European from national affairs in national ref-
erendum campaigns, where voters tend to express protest against national
politicians they dislike. Yet to let parts of the Constitution enter into force
through intergovernmental decisions may prove tricky and may even lead
to protests for lack of transparency and democracy. In such a situation, a
bolder move from the politicians may actually be an attractive solution,
also to themselves.
It is then that the idea to organise one single European referendum, held
at the same time in all 25 Member States, may prove to be the way out of the
current trap.
16
The Duff/Voggenhuber report from the European Parliament
from September 2005 actually proposes such a thing, but only in relation
to future, amended versions of the TCE, not the current one.
17
Apart from
that, the draft opinion on this report of the Committee on Foreign Affairs
proposes a European Citizens First-initiative, aimed at giving the views of
the citizens priority in all prospective matters of legislation, as well as in other
political debates and also proposes regular European-wide debates on certain
16
See also J. Nergelius, Mind the Gap, 165 et seq.
17
PE 362870v 0100, Committee on Constitutional Affairs.
78
themes.
18
And the Commission in its so-called Plan D for Democracy and
Dialogue
19
(also from 2005) is indeed very focused on communication, both
in the way of talking to the citizens and of listening to them and in terms
of improving the way in which the Commission and other EU institutions
communicate with the EU citizens. But as we can see, none of those propos-
als address the current crisis and the way to deal with the TCE.
For obvious reasons, due not least to constitutional provisions in a
number of Member States, such a European-wide referendum as suggested
here can not be legally binding, but should instead be seen as a kind of giant
opinion poll. (It could perhaps serve as a happening too, with votes coming
in from 27 different capitals, almost in the manner of the Eurovision song
contest.) Nor would it preclude subsequent national referenda in countries
where this may be necessary for constitutional or other reasons, such as Den-
mark. However this may be, the result in such a big European referendum
may in a way be decisive. If a majority of Europeans would vote against it, it
would of course be dead and there would be no need to continue the ratica-
tion process. But should a clear majority of the European citizens, say 55%
or more support it, the pressure for the EU as a whole to let it enter into
force would be huge.
20
This would then also create some room for solving
problems of individual countries who would still reject it, in the same way
as previously been obtained for Denmark and Ireland (an alternative that, as
stated above, does not currently seem to exist for France and Netherlands).
Furthermore, if campaigns for and against the Constitution were held
simultaneously in all the different countries, it is unlikely that national issues
of different kinds would inuence the outcome of the result in individual
states, except perhaps on the fringe of the debates. Undoubtedly, it would
bring EU issues closer to the citizens than has ever been the case and it would
certainly make the citizens more interested in EU issues.
18
See the EP report (Committee on Foreign Affairs) <Titre>on the period of reection:
the structure, subjects and context for an assessment of the debate on the European
Union</Titre> <DocRef>(COM2005/2146(INI)), written by Elmar Brok.
19
Communication Strategy of 20 July 2005, IP/05/595, Listen, Communicate, Go
localNew Commission Approach to dialogue and communication with European
citizens.
20
In the Brok report (supra, n. 18), the suggestion is that it may only enter into force if
it is approved by a double majority, of the citizens and the Member States. This is of
course a possible minimum requirement, but it seems totally unrealistic to propose such
a ratication rule as a substitute for the current rules of ratication in the constitutions
of the different Member States.
79
PROCEDURAL DEVICES
However even in this somewhat idealised situation, a further question
remains to be answered. Should it be the current constitutional text, which
the voters of two crucial Member States have already rejected, that is subject
to a pan-European vote, or should it be a modied version? That remains
to be seen and arguing either way is premature. Regardless of whether a
modication of some kind will take place or not, no option will be totally
satisfying for the 16 Member States who have ratied the Constitution, who
seem to be in a no-win situation here. This is however true also for some of
the other suggestions, as mentioned above. Their position is therefore not
an argument as such against a re-negotiation.
21
Renegotiation could make
it easier to justify the decision to hold one single referendum in all Member
States. It seems confusing to organise this on a text that has already been sub-
ject to referendum in four Member States (with at least four others waiting)
and rejected by two of them. On the other hand, renegotiation may prove
too cumbersome, and may have to involve all the Member States including
those acceding in 2007.
And if those assumptions are taken for granted, the next question is of
course which questions or parts of the TCE that ought to be renegotiated
before a possible second referendum might take place. This topic is however
not dealt with here.
22
Instead, I would just like to invoke an interesting idea
on how a pan-European referendum could be formally and legally organised,
which has recently been presented by Neil MacCormick, MEP and member
of the Convention preparing the Convention.
23
His in my view quite bril-
liant idea is to change, presumably through a traditional inter-governmental
agreement
24
, one single rule of the TCE, namely Article IV447 paragraph
2 into the following:
After all the instruments of ratication have been deposited, a refer-
endum shall be held in each Member State during a single four day period
21
De Witte, loc. cit., even suggests that in such a situation, they would not have to ratify
the new, re-negotiated Treaty at all. This would in my view depend of how big the
changes suggested therein would be. I am not entirely convinced of his line of reasoning
on this point (which is otherwise normally the case).
22
See instead e.g. Nergelius, Mind the Gap, 150 et seq.
23
In a paper called The Convention and its ConstitutionAll a Great Mistake, pre-
sented at a conference on Law and European Integration: Towards a Common European
Legal Thinking, organised by the University of Copenhagen Oct. 2628,2006.
24
In fact, he does not address how the change should be brought about, but rather suggests
that this should have been the proper text of the article on entry into force of TCE, given
hat so many of the members of the Convention were actually in favour of that idea.
80
starting on a date to be xed by resolution of the European Parliament and
the Council on a proposal by the Commission. The question to be posed is
the following: Shall the European Union adopt and put into effect the Con-
stitution contained in the Treaty establishing a Constitution for Europe?,
and the answer must be either Yes or No.
25
He then goes on to propose two further provisions of Article IV447,
which should in his view read as follows:
3. This Treaty shall enter into force on the rst day of the second month
following the referendum provided that, taking account of the aggregate
votes cast in the referendum, a majority of voters throughout the Union
has voted Yes, and provided that in each of at least four fths of all the
Member States the majority has been for Yes.
4. Special provision may be made for establishing a relationship between
the Union and any state a majority of whose voters has registered a no
vote, if subsequently to that vote the state by its own constitutional pro-
cess resolves to exercise the power of withdrawal from the Union under
Article I60 of this treaty. Such provisions shall be no less favourable
than the relationship obtaining between that state and the other states
of the Union under the Treaty on European Union and the European
Community Treaty as these were in force on the day prior to entry into
force of the present Treaty.
Needless to say, also this proposal, though extremely interesting and
constructive, may be questioned. For instance, the proposed section IV does
not really solve the problem for states where a majority of the voters have
voted no, but who would still not want to leave the Union. It is also arguable
if only the votes of all the EU citizens should count in such a referendum,
or if a requirement for a kind of double majority like the one suggested by
MacCormick is actually a good idea. Probably, such a solution would soothe
some Member States who would be worried at the idea from the outset. Still,
the suggestion of a binding referendum, in this way, may pose certain prob-
lems compared with the more loosely drafted opinion poll that I suggested
25
Cf. the content of Art. IV447 para. 1: This Treaty shall be ratied by the High
Contracting Parties in accordance with their respective constitutional requirements.
The instruments of ratication shall be deposited with the Government of the Italian
Republic.
81
PROCEDURAL DEVICES
above.
26
But nevertheless, also this inside proposal merits serious attention
in any future discussion on what shall actually happen with the TCE.
IV. CONCLUSIONS
The existing treaties do not allow the degree of political cooperation and
accelerated integration that is required within the EU today. At the same
time, a swift entry into force of the TCE seems unlikely as long as the current
ratication rule in Article 48 in the EU Treaty is being used. This situation
causes a need to discuss other solutions. The whole question of whether TCE
is good or not is an entirely different matter, as pointed out not least by the
editors of this book.
In a situation such as this, it is very likely then that there does in fact
exist a kind of grey zone, where the Member States and the EU institu-
tions could, through different kinds of international or inter-institutional
agreements, let different parts of the TCE enter into force gradually, without
caring about the TCE as such. This is true for instance concerning the new
role of national parliaments and maybe even the weighing of votes within
the Council(s), though that is a controversial issue too.
Such a solution is far from perfect, both from legal and political points
of view. Such agreements cannot amend EU law and should respect deci-
sion-making procedures and competence especially where the EU has an
exclusive power. It is also likely that the increased media attention, the calls
for transparency and the expectation of citizens as regards lasting, viable
constitutional arrangements could cast doubt on the legitimacy of such
arrangements, especially should they be used too frequently. This is why it
is important to discuss different kinds of alternatives, including the need to
adapt the TCE and maybe let it enter into force without applying the strict
formal requirements in Article 48.
To conclude, entry into force of the TCE could be for less than 25
Member States, if need be after amendment, and/or a pan-European
referendum.
26
A further problem with this idea is that it could lead to big legal and constitutional
problems for Germany, where a national referendum is actually not allowed by the
Constitution (Das Grundgesetz).
WHAT EUROPEANS WANT
Aharon Yair MacClanahan Shophet
I. INTRODUCTION
As compared with the inception of the integrative process, the role of
European public opinion has gradually increased in dening the outcome of
sovereignty-supranationalisation. Although the earlier years of this process
hardly yielded referenda, by the mid 1980s
1
certain national governments
had started relying on plebiscites to endorse the agreements negotiated and
approved of by its national leaders on the supranational level.
These referenda have rendered several diverse outcomes, most prom-
inently a trend towards growing scepticism about European unication.
Thus, a comfortable majority of Danes and nearly three-quarters of the Irish
approved the Single Act (the Danish in 1986, the Irish in 1987). Maastricht
was again legitimised by nearly 70% of the Irish voters, but only barely
passed in France (1992). Conversely, Maastricht was initially rejected by
the Danes (1992). After receiving four opt-outs, Denmark voted in favour
of the renegotiated treaty, with nearly three-fths (1993). Amsterdam
2
, a
much less comprehensive deal, was approved by three-fths of the Irish and
by over half of the Danes during the rst round (1998). Nice was at rst
sent back by the Irish electorate, which however accepted a revised text
1
France had earlier carried out a referendum to sanction the 1972expansion (involv-
ing the United Kingdom, Ireland and Denmark). In the same way, Ireland, Denmark
and Norway relied on plebiscites to legitimise entry, in the latter case in vain. The UK
acceded without direct consultation.
2
Meanwhile, ve accession referenda took place in Austria, Norway, Sweden, Finland,
and the land Islands, all of them except Norway with positive results.
84
by three-fths, with two signicant qualications. Finally
3
, the European
Constitution was overwhelmingly backed by almost four-fths of the Span-
ish and by approximately three-fths of the Luxembourgers, but rejected by
55% of the French and nearly two fths of the Dutch. The Czech Republic
cancelled its plebiscite altogether and instead chose for parliamentary rati-
cation. Poland, Denmark, Portugal, Ireland and the United Kingdom have
called off their respective referenda for the time being. The previous statis-
tics illustrate two important trends in European integration: the growing
strength of public opinion in terms of dening the progression of European
integration, coupled with a movement towards greater scepticism.
The emergent role of public opinion necessitates a meticulous scrutiny not
only of its make-up, but also of the mechanisms that underlie opinion forma-
tion, as well as the way public opinion is currently evolving. For European
institutions that want to positively persuade public opinion towards greater
acceptance of supranational integration, such an analysis is imperative.
The rst part of this chapter seeks to examine the function and importance
of public opinion within integration on a theoretical level. The second and
latter part looks at several practical elements, internally unrelated, that have
inuenced public opinion during the time span European integration covers.
II. PUBLIC OPINION IN THEORY
It is by their votes that citizens will continue to exercise the prepon-
derant inuence in dening the national interest.
4
Clearly, any democratic
system limits the governments leeway in achieving certain integrative object-
ives due to the added factor of the electorate. However, (most) intergovern-
mentalists and neofunctionalists agree that popular mobilisation (if existent
at all) has had practically no effect on integrative advance. To the contrary,
national integrative strategies have traditionally been determined by lobbies,
interest groups and general economic considerations, which were then either
endorsed or annulled by the people (directly by a referendum, or indirectly
via general elections). Further specication of these postulates reveals:
The inuence of the electorate is evident in Elazars federalisation model,
which accentuates the necessity for a certain overlap between government goals
3
Nine accession referenda were held in relation to the 2004 enlargement (all candidates
except Cyprus), with unanimous approval of accession.
4
A.S. Milward, F.M.B. Lynch, F. Romero, R. Ranieri and V. Srensen, The Frontier of
National Sovereignty (London: Routledge, 1994), at p. 221.
85
WHAT EUROPEANS WANT
and public opinion for federalisation to be effective. His paradigm
5
shows that
countries come about by virtue of three distinct processes: conquest, organic
growth, and choice (a pact). For Elazar, conquest is typied by the unwill-
ing annexation of a smaller/weaker entity into a larger one, organic growth is
the willing absorption of a smaller unit without resistance (i.e. cases of royal
marriages between two countries), while choice indicates the involvement of
the people in initiating federalisation. Conquest yields hierarchical regimes
and autocratic governments, organic growth creates democratic but central-
ized states, while the outcome of choice is federalisation. True federalisation
is thus impossible without votersapproval. This highlights the vitality of the
will to federalise between nations engaged in federalisation.
6
The undeniable
lack of success plaguing forced federations is excellently exemplied by the
post-dictatorship periods of the Soviet Union and Yugoslavia. Elazars model
is backed by John Meisel
7
who places popular approval of federalisation at the
top of his list of conditions propitious to effective federalism.
However, the general populations involvement within the integrative
process has been passive, as indicated by the research carried out by scholars
like Haas
8
and Moravcsik.
9
Instead, those who actively rally and assemble
to inuence integration tend to be groups with strong, clearly dened and
typically economic interests. Similarly, according to Kymlicka:
10
[e]ven in the EU, where the idea of constructing a transnational dem-
ocracy is on the radar screen, there is little popular mobilisation behind
it. The mass of citizens in EU countries is apathetic or indifferent
to the EU Parliament, with low rates of voting in EU elections. The
idea of a popularly-elected EU parliament was supposed to promote
5
D. Elazar, Exploring Federalism (Tuscaloosa: University of Alabama Press, 1987).
6
Clearly, federalisation and supranational integration are two different processes. The
former aims to convert several previously autonomous units into a new, federal, state.
The latter is less specic: it can result in any additional, supranational, institutional layer
being added to the political system, creating political hybrids, such as the EU. The logic
regarding both processes in terms of public opinion, however, is the same.
7
In K. Knop et al. (eds.), Rethinking Federalism (Vancouver: University of British Colum-
bia, 1995).
8
E. Haas, The Uniting of Europe: Political, Social and Economical Forces, 19501957
(London: Stevens, 1958).
9
E.g., A. Moravcsik, The Choice for EuropeSocial Purpose and State Power from Messina
to Maastricht (London: UCL Press, 1999).
10
W. Kymlicka, Nationalism, Transnationalism and Postnationalism (2003), manuscript,
at p. 22.
86
the democratisation of the EU, but it is unlike any other form of
democratisation in the past century. In other cases of democratisation,
disenfranchised groups have fought long battles to gain democratic
rights, which ruling elites grudgingly conceded. In the case of the EU
parliament, by contrast, there was no popular mobilisation. It was an
attempt by ruling elites to generate legitimacy for the EU by granting
democratic rights that were not requested.
Kymlicka shows that the electorate serves more as an endorser than
as the driving force behind integration, whose power comes from the abil-
ity to hinder the integrative process. Voters have occasionally exercised this
strength by supporting or rejecting a proposed treaty (whether directly
through a referendum or indirectly via elections), which exhibits a limited
amount of veto power. However, the will of the electorate alone cannot cause
the process of integration to progress.
Politicians are more apt to consider integrative action, however, where
overwhelming support for integration exists, in hopes of boosting popularity
(e.g. Italy and Germany, the latter at least in the past). But these instances in
which the electorate functions as the indirect motor behind integration are
rare, having only occurred in a few countries. In fact, the elites generally tend
to support integration much more than the general population because, as
written in Le Monde: the elites have their heads in the global world [ . . . ].
The population keeps theirs in the national territory.
11
Wallaces discussion on various levels of European government asserts
that:
European elites move easily between such levels, beneting from
the cosmopolitan patterns of their work while holding on to national
and regional rootswhere they wish to do soin their private lives.
European publics are much less convinced of the benets which inte-
gration has brought and conscious of its psychological costs: national
identities shaken, [and] the link between citizens and accountable
governments weakened by the displacement of policy-making into
the transgouvernmental maze of the Community process.
12
One sees that European elites tend to favour further integration, whereas
the average citizen tends to be fearful of integration and more nationalistically
11
Le Monde, December 7, 1995 (Paris: 1995).
12
In P. Gowan and P. Anderson (eds.), The Question of Europe (London: Verso, 1997),
p. 44.
87
WHAT EUROPEANS WANT
inclined. In a democracy, the peoples veto-right can thus restrict and counter
unwanted proposals coming from the elite.
III. EUROPEAN PUBLIC OPINION IN PRACTICE
With the function of public opinion within integration established, one
can now examine a few elements that have congured European attitudes
towards integration in an underlying way, namely: integrative advance,
asymmetry, the existence of cultural areas and the psychological effects of
the Second World War.
1. INTEGRATIVE ADVANCE
Ironically, European integration becomes less popular as its force increases.
The fear of losing ones national identity with the progressive materialisation
of the supranational layer serves as one of the most prominent explanations
for reluctance toward integration. Various authors,
13
numerous surveys and
opinion polls illustrate the strength of this phenomenon, and its positive
correlation with integrative advance. This fear becomes particularly intense
when integration starts to embrace signicant political aspects, as opposed
to issues pertaining to economics alone. Laursen uses Hoffmanns division
between high politics and low politics (1966), to claim that even with
broad support for economic integration [ . . . ] doubt begins to emerge
when the integration process starts moving into areas of high politics,
where the hard core of national sovereignty starts to be touched.
14
Opinion polls also demonstrate that support for integration dwindles
with the advance of integration, as explained above, especially when it
stands to affect politically sensitive areas. For example, the European
Commission effected an opinion poll regarding popular backup for sev-
eral somewhat drastic integrative goalsfour years before the start of the
Eurobarometer surveys (1970). The author selected the following three
questions:
13
E.g. D.M. Rankin, Borderline Interest or IdentityAmerican and Canadian Opin-
ion on the North American Free Trade Agreement, 36 Comparative Politics (2004),
331335.
14
F. Laursen, in F. Laursen and S. Vanhoonacker (eds.), The Ratication of the Maastricht Treaty:
Issues, Debates and Future Implications (Dordrecht: Martinus Nijhoff Publishers, 1994).
p. 301. Cf. S. Hoffman, Obstinate or Obsolete? The Fate of the Nation State and the
Case of Western Europe, 95 Daedalus (1966), 862915.
88
I. Would you be for or against the evolution of the Common Market
towards the political formation of a United States of Europe?
II. Would you be in favour of or against the election of a European
Parliament by direct universal suffragethat is, a parliament elected by all
the voters in the Member States?
III. Would you be willing to accept, over and above your own govern-
ment, a European Government responsible for a common policy in foreign
affairs, defence and the economy?
The results were as follows:
Table 1
Question I
D.M.
In favour 60 67 60 75 64 69 65
Against 10 11 7 5 17 9 9
DK/NR 30 22 33 20 19 22 26
Question II
In favour 56 59 55 71 59 66 59
Against 11 15 6 10 21 9 11
DK/NR 33 26 39 19 20 25 30
Question III
In favour 51 49 51 47 50 57 53
Against 19 28 10 35 32 i 19 20
DK/NR 30 23 39 18 18 24 27
B
e
l
g
i
u
m
F
r
a
n
c
e
I
t
a
l
y
L
u
x
e
m
b
o
u
r
g
N
e
t
h
e
r
l
a
n
d
s
W
.

G
e
r
m
a
n
y
E
E
C
Laursens speculations appear validated by the distinct decline in general
support for European integration since the early 1970s, as indicated by
Eurobarometer data.
15
15
Note that these percentages are somewhat inuenced by the various enlargements. The
UK, Denmark and Ireland were members already before the rst report came out; Portugal
and Greece are small members with traditionally mixed feelings about Europe (later they
became more positive); Spain is large but has always been fairly pro-European; Austria
was small and quite pro-European; Finland and Sweden are rather euro-sceptic, but small.
Eurobarometer used to give the different percentages for e.g., the EU12 and the EU15,
89
WHAT EUROPEANS WANT
Graph 1
100%
80%
60%
40%
20%
0%
Support for Unication
1
9
7
0
1
9
7
4
1
9
7
8
1
9
8
2
1
9
8
6
1
9
9
0
1
9
9
4
1
9
9
8
2
0
0
2
From the early 1970s until 1990, support for European unication
oscillated between 70 and 80%. After the ratication of the predominantly
economic Single European Act, a brief period of euro-optimism developed
and was further enhanced by the enthusiasm over the completion of the
(economic) single market (1992). One sees a dramatic drop in support for
integration after the ratication of the Maastricht Treaty (1993), which
entailed several distinctly political elements. This downward trend continues
after the mainly political Amsterdam and Nice Treaties. While a broad-
spectrum examination is unable to account in a precise manner for all of the
elements that affect public opinion, it demonstrates the existence of a some-
what paradoxical phenomenon hinted at by several authors: a large propor-
tion of citizens seem to favour political integration before its implementation
but such favour seems to dissipate during the actual process itself.
Interestingly, initially pro-integrationist Europeans develop reserva-
tions as political unication becomes imminent. The effect is enhanced
which indicates that the differences are considered insignicant. Furthermore, the data for
some years were missing: gaps were lled with a straight line connecting the last available to
the rst new available number. If the data from two Eurobarometers were available for one
year, an average was used; if only one was available, that one was considered representative
for the whole year.
90
when one takes into account that young Europeans are typically more
pro-European than older Europeans
16
, so that a disproportionate number
of eurosceptics passed away between 1970 and 2005. This phenomenon
has ramications that strongly inhibit further federalisation, particularly
because the ongoing evolution towards European unity is now at the behest
of advances in the political arena, since economic integration approaches
its completion.
Any future developments are difcult to predict. A comfortable multi-
identity situation could come about if the fear of losing ones national iden-
tity slackens and/or the perceived contradiction between the national and
the overall European identity subsides. Although not likely at the present
time, a European identity could eventually even become the main source
of national identication for Europeans, which would revert us to the trad-
itional predominantly one-layer identity system (just with a much larger
nation-state). Finally the status-quo might be maintained, which would spell
great difculties for further achievements.
2. ASYMMETRY
The deep-rooted psychological fear of losing ones national identity,
exacerbated by the advancement of integration, is related toyet separ-
ate fromasymmetry. Here, asymmetry is dened as an unequal distribu-
tion of power within a given union. Consequently, the issue of perceived
asymmetry can stem from sentiments similar to those underlying the last
phenomenon, i.e. identity-based tension, but not necessarily so. In the asym-
metrical scenario, citizens might just be afraid that integration entails a rela-
tive loss of sovereignty to another more powerful Member State within the
union, which will vote according to its own interests. Thus the citizens of
the smaller state feel asymmetry means harmful policies, in a purely rational,
non-sentimental way. In the larger country, conversely, people might feel
they have to compromise too much to smaller nations, as in federations
smaller entities are generally overrepresented. Here too policies might then
seem suboptimal.
In the example above, the citizens concerns are not nationalistic. They are
concerned about a regional hegemony inuencing supranational policy-making
in a way that is unfavourable to their country (or locality), which is particularly
likely where the countries vary greatly in their economic conguration.
16
See Eurobarometer.
91
WHAT EUROPEANS WANT
The interrelation between the issue of structural asymmetry and iden-
tity-issues based on integrative advance is shown in the following chart:
Chart 1
The Interrelationship between Asymmetry
and the Fear of Losing ones National Identity
Fear
of
Asymmetry
Fear of Losing ones
National Identity
Opposition to
Integration in General
Opposition to Political
Integration once this
Process Takes Off
Signicantly
and
and
Rational
Calculation of
Power Structure
Structural
Asymmetry
Strong National
Identities
Resistance (in the smaller entity) to being incorporated into a larger
entity is explicitly proportionate to the perceived size and wealth of the larger
entity, which largely determines the latters power. As such, Riker regards a
union made up of a dominant Member State and a few units of little weight,
to be a defective structure.
17
The examples of Yugoslavia and the Soviet Union can again be adduced
as such a defective structure, and dissolution quickly followed when pub-
lic opinion started becoming a major political factor (i.e. with democratisa-
tion). However, the dictatorial nature of the process that created those
federations makes it difcult to extract the effects of asymmetry from it
(as democracy is crucial to successful federalisation; see above). Having
said that, one could turn the argument around, and claim that asymmetry
would not have permitted democratic federalisation in the rst place, by
virtue of which these two separate issues are combined into one coherent
explanation.
17
In J.-J. Hesse and V. Wright (eds.), Federalizing Europe? The Costs, Benets, and Precon-
ditions of Federal Political Systems (Oxford: Oxford University Press, 1995), p. 13.
92
The Eurobarometer
18
offers interesting illustrative information regarding
the effects of asymmetry in Europe.
Graph 2
80%
70%
60%
50%
40%
30%
20%
10%
0%
Fear of the Bigger Member Countries Imposing their Decisions
G
e
r
m
a
n
y
S
p
a
i
n
I
t
a
l
y
A
u
s
t
r
i
a
B
e
l
g
i
u
m
F
r
a
n
c
e
I
r
e
l
a
n
d
U
n
i
t
e
d

K
i
n
g
d
o
m
L
u
x
e
m
b
o
u
r
g
P
o
r
t
u
g
a
l
G
r
e
e
c
e
D
e
n
m
a
r
k
N
e
t
h
e
r
l
a
n
d
s
F
i
n
l
a
n
d
S
w
e
d
e
n
Quite astonishingly, more than 50% of all the respondents from all of
the larger countries save Germanythe largestassociate European integra-
tion with fear of domination by a larger unit. Even in France, Italy and the
United Kingdomthe biggest European countries after Germany with simi-
lar population sizes of around 60 millionthe interviewees expressed this
concern, which can only be taken to signify deep-rooted wariness of German
hegemony. Of course the Germans displayed by far the least concern about
hegemony by the larger states.
In fact, the Eurobarometer results shown above are relatively moder-
ate: the graph down below displays the percentual difference between the
responses in Germany and in the rest of Europe to the above-mentioned
question during the last decade, which generally oscillates between 2530%.
The data is obviously limited to those surveys in which the pertinent ques-
tion was asked.
19
18
Eurobarometer, Spring 2002.
19
Averages were calculated if both semestral surveys asked the relevant question; if a whole
year was missing in the middle a straight line was drawn from the last year with until the
next year.
93
WHAT EUROPEANS WANT
Graph 3
Difference between Germany and the Rest
(Fear of a Loss of Power for Smaller Member States)
40%
35%
30%
25%
20%
15%
10%
5%
0%
1
9
9
7
1
9
9
8
1
9
9
9
2
0
0
0
2
0
0
3
2
0
0
1
2
0
0
2
2
0
0
4
2
0
0
5
One regularly nds references to potential or imagined German supremacy:
German economic hegemony in Europe is now a fact of life, to which the rest of
us Europeans must adjust as best as we can. And it is clear that this brings with it
a degree of political inuence not far short of political hegemony. In discussing
the results of German reunication, McAllister
20
claims that a barely credible
equality was about to be replaced by a perceived near-hegemony.
21
Table 2
GNP per Capita
21
Luxembourg 69,423
Denmark 44,593
Ireland 44,521
Sweden 38,457
Netherlands 35,683
Austria 35,777
Finland 35,515
20
R. McAllister, From EC to EU, An Historical and Political Survey (London: Routledge,
1997), at p. 213.
21
From: United Nations Trade-Statistics; year 2000; in American dollars at year2004
value, after Purchasing Power Parities have been taken into account.
94
Table 2 (cont)
GNP per Capita
Belgium 33,879
Germany 33,162
France
22
32,984
However, Europes
22
state of disequilibrium is quite moderate in com-
parison with (for example) NAFTA or Australia-New Zealand. Admittedly,
Germany is the largest country in the Union, and in spite of the current
problems, its prosperous economy grants it signicant economic power.
Nonetheless, the EU-population totals just under 457 million,
23
with a com-
parable (or even better) standard of living in most other Northern European
countries (see Table 1). The vast majority of the EUs GDP and population
is based outside of the Federal Republic. When compared to [for example]
the post-war United States and Japan in the Far East, Germany in Europe is
small vis--vis its neighbours;
24
the EC was established without a hegem-
ony, for there was a balance of imbalances among its bigger members;
25

the EC has never had a dominant Member Stateor hegemony. [ . . . In
its stead,] the Franco-German alliance has been of vital importance.
26
Whether rooted in nationalism or in rational calculation of the power
structure, the statistics and quotes cited earlier reveal deep apprehension
about the Federal Republics political clout, against a background of relative
symmetry, which shows how strong the effects of asymmetry are.
While further integrative advance should have a negative impact on
public opinion, theoretically, asymmetry is likely to become less of a problem
over time, as the European Union takes on further enlargements and thus
the number of German residents over the total EU-population goes down,
a process which has been in movement since the early 70s. Turkeys popula-
tion, for example, is signicantly larger than Germanys. Even with all of
22
This number includes French Guyana, Runion, Martinique and Guadaloupe, which
lowers the results.
23
With several countries not too far removed from Germanys position: cf. France, the
United Kingdom, Italy.
24
Moravcsik, supra, note 9, at p. 49.
25
R.O. Keohane and S. Hoffmann (eds.), The New European Community: Decision-Making
and Institutional Change (Oxford: Westview, 1991), at p. 31.
26
Laursen, supra, note 14, at p. 312).
95
WHAT EUROPEANS WANT
the current candidate states (as was the case with the recent round of expan-
sion) substantially poorer than the Federal Republic, the Union is becoming
an increasingly diverse arena with many different voices that decrease the
amount of space available for a regional hegemon. This effect strengthens as
more recent members manage to close the economic gap with varying rates
of success, as was seen with Ireland, Spain, Portugal and Greece. Thus, con-
cern about asymmetry should abate in relevancy in the future, which will,
ceteris paribus, lead to a public opinion more favourable to integration.
3. THE CULTURAL FOCUS
The cultural focus is yet another phenomenon affecting public opin-
ion towards integration. This concept involves the preference shown by
any population to undertake political and economic arrangements with
the countries it perceives the closest cultural connection with. As Redwood
writes, it it eas[ier] to unite peoples where they speak the same language
and worship the same gods.
27
This perceived connection between a set of countries can be most clearly
detected in activities such as cinematographic interchange, tourism, student
exchanges and the like. Such a focus tends to have its base in a shared (often
colonial) history, and is subsequently encouraged by a common language
and/or religion; by similar juridical, educational, economic and political
systems; by broadly analogous cultural and social norms; by a preference for
the same sports etc. Put differently, cultural, linguistic and institutional links
create a feeling of common origins among certain countries. As such, there
is a negative correlation between the strength of the cultural focus and the
perceived psychological distance between any given two countries.
Table 3
Americans (USA) 59%
Europeans 16%
Commonwealth 15%
One case of a troublesome cultural focus in Europe is the United King-
dom, which still shares a focus with the US and at least part of the Com-
monwealth countries, more so than with the European continent. That is
27
J. Redwood, The Death of Britain (Basingstoke: The MacMillan Press, 1999), p. 47.
96
to say, the Commonwealth countries share a mixed legacy of British insti-
tutions, language and culture, they often retained the British monarch as
symbolic head of state, and were governed by elites that had ties with Brit-
ain
28
. A 1999MORI pollwhose results are indicated in the box on the
sideasked people who they thought Britains most reliable political ally
would be in a crisis?. Moreover, when asked: And which of these ags, if
any, do you identify with?, 83% identied with the ags of the British Isles,
23% with the American ag, and only 21% with the European one. The
relative popularity of the American ag as opposed to the European one is
astounding given that the United Kingdom is an EU Member State, that its
citizens are European citizens, and that the European ag represents Great
Britains population whereas the American ag does not. Remarkably, the
British prefer the ag of an entity with which they share no formalised links:
no union-citizenship, no mutual voting rights, no supranational institutions.
Conversely, other European Member States show a much stronger European
identity.
29
Conrad Black further exemplies this notion by claiming that: none of
the continental European countries has a particular afnity with the United
States and Canada or anything slightly comparable to Britains dramatic
modern historic intimacy with North America
30
. In another source we read
that Britain has had a very different history to Europe. Because we are not
physically joined to the continent, we have not had the same intercourse
with them, and so our culture and economy have developed very differently
since the Norman Conquest in 1066. Our systems of politics, economics
and law are all much closer to those of the United States and the Com-
monwealthsince theirs are based on ours, whereas said systems in Europe
all owe a great deal to Napoleonic-era legislation
31
. John Hulsman,
32
who
advocates Britains entry into NAFTA using the ex-colonial link, argues that
28
R. Wester, in F. Laursen and S. Vanhoonacker (eds.), The Intergovernmental Conference
on Political UnionInstitutional Reform, New Policies and International Identity of the
European Community (Heerlen: Van Hooren Drukkerij, 1992).
29
See Eurobarometer survey(s).
30
Quoted in D. Butler, Fog over the Atlantic: Britain and the NAFTA Option (London:
Action Centre for Europe, 2000), p. 6.
31
From the internet-based political forum of the organisation Maldenhill Freeserve:
maldenhill.freeserve.co.uk.
32
J.C. Hulsman, The World Turned Right-Side Up: a New Trading Agenda for the Age of
Globalization, (Occasional Paper 114, London: Institute for Economic Affairs, 2001),
at p. 1.
97
WHAT EUROPEANS WANT
history has underscored the commonalities of the relationship with ties
built on common language, common history, and common culture. De la
Serre
33
mentions another obstacle, namely Britains different constitutional
traditions, which create yet another gap between it and the continent: as
the United Kingdom has an unwritten Constitution and an evolutionary
concept of law, it has a hard time tting into practices and juridical ways that
are very alien to it [ . . . ], even if the incorporation into a [continental style]
treaty is more a question of politics than a problem involving constitutional
or juridical theories. Of course, the practical problems these differences cre-
ate are relative, bearing in mind that the United Kingdom itself encompasses
two separate legal traditions.
34
Sure enough, the quoted points illustrate only one of the problematic
issues in UK-Europe relations
35
, but Milward
36
hits the nail on the head
when pointing out that a great deal of the public justication of British
euroscepticism is founded on cultural arguments related to very subjective
historical differences, which shows how the cultural focus works in practice.
This subjectivity can easily be detected in the supposed Anglo-Saxon cultural
proximity: rst of all Scotland employs Roman law (in contrast to the rest),
while the United States and Australia both have a written constitution, as
against the UK. While obscuring these discrepancies, one emphasises that
the Anglo-Saxon world uses case-law.
Indeed, the Eurobarometer shows that British respondents have both
similar and about the same degree of negative associations with the EU as
continental Europeans. The difference is that the benets of integration are
far less attractive to them. For example, while approximately half of the total
European population mentions the free movement of persons as one of the
main advantages of European unication, this is felt to be a benet by only
about a third of all Britons.
37
Additionally, the Brits to a much lesser extent
33
F. De la Serre, La Grande Bretagne et la Communaut europenne (Paris: Presse Universi-
taire de France, 1987), at p. 190.
34
Scotland has a Roman law system; the UK common law.
35
For a range of other factors responsible for British Euroscepticism, see A.Y. MacClana-
han, Supranational Integration: Explaining the Distinct Levels of Sovereignty Transferral
between the Different Integrated Areas (Ph.D. dissertation, Barcelona: Universidad Pom-
peu Fabra, 2004), Chapter Eleven.
36
A.S. Milward, The European Rescue of the Nation State (London: Routledge, 1992).
37
In a few surveys the amount of Britons associating the EU with freedom of movement sur-
passes the 40% mark, remaining however at a far lower level than the union-wide average.
98
appreciate the cultural diversity created by integration in comparison with
their European counterparts. Both Eurobarometer questions are important as
they quite accurately reect cultural preferences and tastes.
38
As such, Harold Wilson defends his demand for relaxing British entry
requirements for imports from New Zealand and Australia, by stating: that
he had more relatives in New Zealand than he had in Hudderseld (his
home town) [which] struck exactly the right note with the British working
classes: protecting the interests of our people. Large-scale emigration in
the 1950s and 1960s from Britain to the white Commonwealth, mainly
from working-class families, had reinforced this sense of kinship
39
. Albeit
the Eurobarometer indicates that British respondents do not have a stronger
negative perceptions of the EU, it is clear that Britains cultural focus reduces
the perceived benets of integration.
A similar, albeit less radical phenomenon is found in Scandinavia
where the Nordic languages and cultures areexcept Finnishmutually
accessible with relative ease.
40
These countries share large parts of their
history, which includes periods of Scandinavian political unity and a few
unions between its parts, in addition to the great overlap between the
regions political, economic and judicial systems. As such, a certain degree
of intra-Scandinavian focus is an obvious fact.
41
This statement is backed
up by the surveys carried out by the league of Danish embassies
42
, which
show that a hypothetical Scandinavian union is far less controversial than
integration on a European level.
43
38
And the only two positive cultural associations the Eurobarometer offers as standard
answers; the others are negative, or related to pragmatic advantages or disadvantages.
39
S. George and D. Haythorne, in J. Gaffney (ed.), Political Parties and the European
Union (London: Routledge, 1996), p. 113.
40
And most Finns speak Swedish, as the latter is recognised as an ofcial language in the
country.
41
For analogous conclusions, more specically about pan-Scandinavian nationalism, see
O. Wver, in E. Adler and M. Barnett (eds.), Security Communities (Cambridge: Cam-
bridge University Press, 1998).
42
www.denmark.org.
43
A pan-Scandinavian alternative was unfeasible, however, owing to certain economic
considerations. See for instance, V. Srensen, in A.S. Milward, F.M.B. Lynch,
F. Romero, R. Ranieri and V. Srensen, The Frontier of National Sovereignty (London:
Routledge, 1994).
99
WHAT EUROPEANS WANT
In the same way, a shared religion
44
eases integration by creating the feel-
ing of connectedness experienced in a shared cultural focus. An interesting
example is the fact that Catholic German politicians in the 1950s structurally
favoured a politically integrated Europe over a free-trade link with the US,
while Protestant politicians exhibited the opposite preference.
45
It is import-
ant to note that save the Netherlands, the six original EEC member-states
were all marked by Catholic majorities. Even Hollands main political party
at the time, the CDA, was governed predominantly by Catholics, which lent
them an important power position. Magnsson investigates the differences
between Catholics and Protestants regarding their attitudes toward Euro-
pean integration via a statistical analysis, and nds that a high percentage
of Protestants is consistent with Euroscepticism. Although a high propor-
tion of Catholics does not guarantee Europhilia, a strong Catholic presence
enhances the probability.
46
Perceived distance should also be inuenced by physical distance and
geographical features, tempered by ethnic, linguistic and historic differences.
One would thus assume the cultural focus to generally be negatively correl-
ated with physical distance. However, distance is more often than not subject
to ones own interpretation. For instance, a German speaking Italian from
Sdtirol can be reasonably expected to perceive Austrian Tirol as closer in
distance than the regions surrounding him.
A feeling of national unity appears to be negatively affected by territorial
discontinuity, as physical separation typically enhances a sentiment of dif-
ferentiation between the entities. The physical separation between East and
West Pakistan thus resulted in the independence of Bangladesh. The Syrians
(and Yemenites) chose to leave the United Arab Republic, due to fears of
Egyptian domination. No doubt the disconnection between the constitu-
ent states obstructed a unication of identities. Although certain economic
interests factor into the affairs between Kabinda and the Angola, their rela-
tions are complicated by Kabindas detachment from the main block. Greece
quite exceptionally seems not to suffer from its being cut off from the EU,
44
Perhaps specically with religions governed by powerful supranational institutions. Thus
L. Hooghe and G. Marks, Multi-Level Governance and European Integration (Lanham:
Rowman and Littleeld Publishers, 2001).
45
J. Gaffney, in J. Gaffney (ed.), Political Parties and the European Union (London:
Routledge, 1996), p. 113.
46
M.A. Magnsson, Nordic and British Reluctance towards European Integration (Thesis,
Cambridge: University of Cambridge, 2000).
100
although the low level of integration here could explain a great deal of this
idiosyncratic case.
Furthermore, island states are often characterised by an auto-focus
when compared to continental countries, which has been speculated to be
one of the causes of the UKs euroscepticism.
47
Further examples are the clout
of Corsican nationalism next to the Occitan, Breton and Alsatian varieties;
the electoral impact of Coalicin Canaria on the Canary Islands (exceptional
amongst the Spanish-speaking autonomous regions); and the success of the
Irish independence-movement in relation to the Welsh and the Scottish.
48
However, sharing a cultural focus by no means guarantees integration.
In fact, a range of examples validate the idea that the cultural focus is always
restricted by economic and political considerations.
49
For example, a pol-
itical union between Portugal and Mozambique or Angola is out of the
question, in the light of Portugals economic interests. It is for this reason
that Spain favoured the European road in the late 1970s and early 1980s,
instead of attempting integration with its former colonies. It seems that the
economic and political reality overrules cultural afnity. By the same token,
France would never reunite with Algeria, at least not in an equal union with
shared citizenship and free movement of persons.
Interestingly, the UK is the only European country with a feasible
non-European alternative. All of the colonies formerly ruled by Belgium,
Germany, Italy, Portugal and the Netherlands, as well as the tiny former
overseas possessions of Denmark and Sweden (i.e. the Virgin Islands and
Saint Barts), are all developing countries. France boasts one industrialised
ex-colony, Qubec, which is however subjected to the integrative decisions
taken by the overwhelming English-speaking majority. Britain is allowed
47
W. Nicoll and T.C. Salmon, Understanding the European Union (Savage: Barnes and
Noble Books, 1990). P. Stirk and D. Weigall, The Origins and Development of Euro-
pean Integration (Leicester: Leicester University Press, 1999). M.A. Magnsson, op. cit.
J.W. Young, Britain and European Unity, 19451992, (Basingstoke: The MacMillan
Press, 1993).
48
Without a doubt, however, many other factors determine a regions focus, which can
potentially cancel the effect of insularity or geography. For example, nationalistic feelings
on the Catalan-speaking Balearic islands in Spain are weaker than in Catalonia itself. In
the same way, Sardinian nationalism has traditionally always been rather feeble.
49
For similar conclusions, see Magnsson, supra. He postulates (and veries, in part sta-
tistically) that economic prosperity allows for a greater set of credible alternatives, such
as non-integration or integration with a less than economically optimal alternative.
101
WHAT EUROPEANS WANT
more opportunities for mutually advantageous collaboration, due to much
of its cultural focus lying within the developed world.
This cancellation-effect can also be perceived in the Irish attitude
towards European integration, if we analyse the Eurobarometer results. A part
of the Anglo-Saxon world, with close linguistic and historical ties to Eng-
land, it is similar to its big neighbour in many aspects of the cultural focus.
The Eurobarometer surveys show that Irelands Europhilia does not stem
from a close emotional or cultural connection to the continent. For example,
the Irish are historically
50
amongst those Europeans that least appreciate
integration for the freedom of movement and cultural diversity it offers.
In the same way, the Irish systematically reveal greater worries than most
other respondents about losing their national identity as a result of European
integration. However, the Irish are very clear about whether membership has
been advantageous or not, continuously amongst the most positive nations.
The reasons for this optimism is reected by the results to the questions on
associations with the EU, where the Irish nearly always lead in rst position
in associating the European Union with economic prosperity.
51
To virtu-
ally all the other non-economic questions, the Irish reply in as eurosceptic a
way as most other Europeans.
52
What is still a mystery is how these cultural foci will evolve in the future.
Normal processes of unication include a new federal government that
intensively attempts to promote a new national culture, often accompanied
by a new national language. The European case, however, is unique in that
the new overarching level has no competences in the areas most needed to
embark on such a project. As Riker
53
shows, voluntary unication usually
comes about owing to a military or diplomatic opportunity or threat, and
therefore crystallises quickly and in a complete way. Absent these incentives,
50
E.g. Spring 2002. However, the Spring 2003, Autumn 2003, Spring 2004, Autumn
2004, Spring 2005 and Autumn 2005 reports show that the Irish increasingly value the
freedom of movement offered by the EU. Nevertheless, the appreciation of European
integration for the cultural diversity it affords remains at its traditionally low level. Ear-
lier surveys hardly ever ask such specic questions.
51
For similar conclusions, see: van Wijnbergen, in Laursen and Vanhoonacker (eds.),
1992, op. cit.
52
For example, the Irish show relatively weak associations of European integration with
peace, democracy, a stronger say in the world, freedom to live and travel within the
union, social protection and cultural diversity.
53
E.g., W.H. Riker, Federalism: Origin, Operation, Signicance (Boston: Little, Brown &
Co., 1964).
102
the European process is much more gradual without a central government
able to strongly encourage a new pan-European cultural focus. That is to say,
Europe is marked by a Catch 22: nationalism (amongst others) obstructs
an easy-going process of political integration, while the lack of these polit-
ical competences at the federal centre obstructs the promotion of a more
European type of nationalism.
Having said that, the growing intra-continental contact encouraged by
European unication will probably create a more European cultural focus.
As young Europeans increasingly learn foreign languages, travel greater dis-
tances, are better informed about the situation in neighbouring countries,
and engage in ever more cross-border contact via an ever greater choice
of media, it seems likely that the cultural focus will become more Euro-
pean as well as more global. The EU can bolster such a development by,
for example, subsidising several types of exchanges particularly for young
people (which become more comfortable for everybody involved thanks to
improvements in infrastructure and media-links), building a European-wide
television network, sponsoring language courses across the continent, pro-
moting cinematographic interchange and so forth. Summing up, there are
opportunities to steer the cultural focus somewhat, although the relatively
stable essence of the concept implies that any changes will take the shape of
a gradual evolution.
4. THE SECOND WORLD WAR
A last factor often mentioned as having shaped European public opinion is
the Second World War. The underlying assumption is that the excessive nation-
alism adopted by European nation-states over the course of the nineteenth cen-
tury led to such great human suffering in the two world wars, that nationalism
became discredited. This would have created goodwill towards supranational
alternatives, both amongst politicians and the population at large. The negative
impact of nationalism on public opinion, as discussed in the rst part of this
chapter, is not negated by such a notion: rather than postulating that the Second
World War cancelled nationalist feelings, the claim is that such feelings would
have been even more vehement had the tragic event not taken place.
The force of this factor has been underscored by many academics. As
such, Truyol y Serra
54
mentions that in order to explain the renewed zeal
in European integration that manifested itself at the end of the Second
54
A. Truyol y Serra, A., La Integracin Europea, Anlisis Histrico-Institucionl con textos y
documentos (Madrid: Editoril Tecnos, 1999), at p. 37.
103
WHAT EUROPEANS WANT
World War, and this time it would achieve tangible results, one has accen-
tuated, as a decisive factor, Europes catastrophic situation at the end of the
conict. McCormick
55
similarly writes that if Europeans had not learned
of the barbarism and futility of war in the trenches of northern France
and Belgium in 19141918, the horrors of the period 19391945 nally
brought home the need to cooperate and to build the kind of society that
would eliminate the seeds of conict. Following two devastating wars in
just thirty-ve years some political leaders, especially on the Continent of
Europe, were convinced that the only way to ensure peace was to cement
the countries of Western Europe together in [a] federal system of govern-
ment.
56
More generally, while referring to the 1870 Franco-Prussian war,
the First, and the Second Word War conjunctly, Thody writes that the
best way to avoid a fourth conict, it was argued, was to tie the economies
[ . . . of France and Germany] so closely together that it would become
physically impossible for them to ght each other again.
57
The Schuman
Declaration also points out that one of the principal aims of the ECSC was
to prevent another conict between France and Germany (May 9, 1950).
Keohane and Hoffmann, following the same line of thinking, state that
the rst attempts at [European] unity were inspired by a desire to prevent
a repetition of World War II.
58
Milward emphasises the effect of Nazism
and Fascism, which is essentially a similar argument.
59
Via the Eurobarometer we can verify these postulates statistically: one
of the standard answers to the question requiring respondents to voice their
associations with European integration, is peace. If the hypothesis (i.e. that
the Second World Was has had an impact on public opinion) is correct, there
should be a clear difference between respondents in countries that suffered
Nazi/Fascist rule directly and those that did not.
Bearing in mind that the low number of cases (fteen) until the last enlarge-
ment makes any denitive statistical conclusions quite difcult, the results
are surprisingly unambiguous: having labelled all Member States with 0 or 1
55
J. McCormick, The European Union, Politics and Policies (Boulder: Westview Press,
1996), at p. 1.
56
D. McKay, Federalism and European Union (Oxford: Oxford University Press, 1999),
at p. 22.
57
P. Thody, An Historical Introduction to the European Union (London: Routledge, 1997),
at p. 1.
58
See also, O. Wver, in Adler and Barnett, op. cit. (1998), at p. 4.
59
A.S. Milward, The European Rescue of the Nation State (London: Routledge, 1992).
104
according to whether they were under Axis rule or not, a regression was run
with this data-set as the independent variable, and the percentage of respond-
ents associating European integration with peace as the dependent variable. All
Eurobarometer surveys that included this question were examined.
Starting with the period until the last enlargement, the Spring 2002
and Spring 2003 surveys rendered correlations accepted with a 0.01 con-
dence interval. The Autumn 2003 delivered a valid correlation with a 0.05
condence interval, as did the Spring 2001
60
survey (although the latter
approaches the 0.01 condence interval). No correlation was rebuffed for
any of the results until 2004, despite the low N.
Enlargement causes the correlation to become insignicant owing to
the very strong association perceived by the Cypriot respondents between
Europe and peace. While never having been subjected to Axis rule, the
Cypriots associate Europe with peace due to the pressure on the Turkish
Cypriots to seek reunication upon membership.
Table 4
An Example of the Regressions Run (Spring, 2002)
Correlations
Under
axis-power rule
Associations
With peace
Under axis-power rule
Pearson
Correlation
1 .639
Sig. (Bilateral) . .010
N 15 15
Associations
with peace
Pearson
Correlation
.639 1
Sig. (Bilateral) .010 .
N 15 15
* The correlation is signicant on a 0.01 level (bilateral).
It is thus clear that the Second World War did indeed mould European
public opinion in a way favourable to integration by discrediting national-
ism and legitimising certain supranational moves. Nonetheless, it is probable
that the impact of the Second World War wears off with time. This is not
60
Only young people were interviewed, aged 1524.
105
WHAT EUROPEANS WANT
yet the case as the survey results are valid both for young and for old people.
There will, though, likely be a limit to the number of generations that will
remember the lessons from the past: three have passed already, and soon no
eyewitnesses will be left.
IV. CONCLUSIONS
The rst section of this chapter was dedicated to a theoretical discussion
illustrating the crucial character of public opinion in the later, more mature
phases of supranational integration. We showed that political elites have
some leeway to force certain limited integrative steps on the electorate, but
that the latter enjoys a veto in the essential processes of federalisation, at least
within a democratic setting. The ever stronger tendency to use referenda to
legitimise integrative treaties in Europe demonstrates this.
Four specic phenomena were studied as to their subliminal impact
on European public opinion. We demonstrated that integrative progress is
accompanied by increasing popular resistance, especially when core polit-
ical areas are touched (instead of economic issues). We looked at the effect
of power asymmetry amongst the Member States, and particularly at the
apprehension about integration in smaller countries. We examined the cul-
tural focus and showed that cultural, linguistic and historic characteristics
create more or less public acceptability regarding a proposed combination of
countries. Lastly, we statistically demonstrated that the Second World War
created a more favourable public opinion in those countries that experienced
Axis rule.
Turning to the future, we attempted to offer a rst prognosis of how
these phenomena will develop. On the one hand, the cultural focus might
become more pan-European, while asymmetry will quite certainly be miti-
gated by further EU expansion. However, nationalist-inspired resistance will
heighten as integration obtains increasingly political features. Furthermore,
the memory of the Second World War is doomed to lose some force with
inevitable generational turnover.
Of course, the European Union cannot annul these processes, but it
need not be a helpless bystander either: for instance, by dint of the pro-
posals offered in the section in question, it can promote a pan-European
cultural focus. Similarly it can prolong the memory of the Second World
War, while emphasising the impact of excessive nationalism. Something
more complicated would be to create some type of European nationalism,
106
thus adding a complementary layer to existing national identities (which
in theory could eventually even take over). It is clear, however, that the EU
does not at present have the necessary competences for the more ambi-
tious of these ideas. For example, a substantial and independent budget,
competences in education and mass means of communication are valuable
assets in the attempt to mould a European identity. Yet both nationalism as
well as certain dened vested interests render it difcult for the European
institutions to acquire these competences.
That is to say, Europe is faced with a task much more complicated than
that of the nineteenth-century nation-state: pre-existing national identities
are deeply anchored, national institutions are well established (and keen on
preserving their competences), which leaves it without the basic means to
shape public opinion independently. The medium term aim should thus be,
in terms of public opinion, to encourage transnational contact, to invest in
cross-culture/foreign language education and transnational media networks,
and to reiterate the lessons of the Second World War. Absent the means to
fully create a European identity or cultural focus, the EU should focus on
employing the resources towards these ends, while trying to acquire the
competences that would reinforce its capabilities in these areas.
ON THE UNIFYING SELF-CONCEPTION OF
A REPUBLICAN EUROPEAN UNION
Karsten Nowrot
I. INTRODUCTION: FACING THE CHALLENGE
Already the preamble of the Treaty establishing the European Commu-
nity signed in Rome on 25 March 1957 stipulates prominently in its rst
paragraph the determination of the Member States to lay the foundations
for an ever closer union among the peoples of Europe, a purpose subse-
quently reiterated in the preamble to the 1992 Treaty on European Union to
create rm bases for the construction of the future Europe. More recently
still, the 2004 Treaty establishing a Constitution for Europe emphasizes in
its preamble, describing the Unions heritage and objectives, the conviction
that Europe offers them [the peoples] the best chance of pursuing [ . . . ],
the great venture which makes of it a special area of human hope.
While the future fate of the Constitution itself continues to be difcult
to predict and remains outside the focus of the present analysis, already the
above quotes from the treaties in force indicate the importance attached to a
peoples- and citizen-oriented perspective in the political and legal self-con-
ception of the European Union. And indeed, while the European Economic
Community in accordance with Jean Monnets vision started off as a rather
apolitical and technocratic organisation primarily to be administered by an
enlightened bureaucracy,
1
there is by now almost general agreement that
the citizen-oriented dimension gained increasing momentum in the course
of European integration, particularly since the beginning of the 1990s. Thus,
1
F.C. Mayer and J. Palmowski, European Identities and the EUThe Ties that Bind the
Peoples of Europe, 42 Journal of Common Market Studies (2004), 573598, at 580.
108
the European Union can no longer be regarded as a mere association/union
of states
2
as frequently pointed out in the legal literaturebut should
rather more appropriately be characterized, rst and foremost, also as a citi-
zens union, an association of citizens or a civitas Europea.
3
Furthermore,
such a dual-based or polycentric understanding of Europe as a union of
states and citizens
4
nds itself in conformity with the famous assertion made
by the European Court of Justice in its Van Gend & Loos judgment of 5
February 1963 that the Community constitutes a new legal order [ . . . ] the
subjects of which comprise not only Member States but also their nationals,
thereby explicitly taking recourse also to the preamble of the EC Treaty.
5
This peoples- and citizen-oriented dimension of the process of European
integration is increasingly being valued in light of the European Unions
ongoing transformation from an economic-oriented technocratic organisa-
tion into a genuine political community.
However, as recognized, inter alia, in May 2006 by the Commission in
its recent overall assessment of its 2005 Plan D for Democracy, Dialogue
and Debate
6
and the conclusion of the rst so-called period of reection
initiated by the European Council,
7
the necessary attempts to create a citi-
zens ownership of EU policies, to make them understandable and relevant,
2
For such a qualication see in particular the so-called Maastricht decision of the Fed-
eral Constitutional Court of Germany, Judgment of the Court of October 12, 1993,
BVerfGE 89, 155 (184 et seq.) (Staatenverbund); as well as P. Kirchhof, The Legal
Structure of the European Union as a Union of States, in: A. von Bogdandy and J. Bast
(eds), Principles of European Constitutional Law (Oxford/Portland: Hart Publishing,
2006), pp. 765802.
3
On these perceptions see e.g., C. Calliess, in: C. Calliess and M. Ruffert (eds), Verfassung
der Europischen UnionKommentar der Grundlagenbestimmungen (Mnchen/Wien:
C.H. Beck/Manzsche Verlags- und Universittsbuchhandlung, 2006), Art. I1, para.
29; E. Grabitz, Das Europische Parlament vor der Direktwahl, 2 Integration (1979),
4758, at 51 et seq.
4
R. Streinz, European Integration through Constitutional Law, in: H.-J. Blanke and
S. Mangiameli (eds), Governing Europe under a Constitution (Berlin et al.: Springer,
2006), pp. 122, at p. 17.
5
Case 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen [1963]
ECR 1, 12.
6
The Commissions contribution to the period of reection and beyond: Plan D for
Democracy, Dialogue and Debate, COM(2005) 494 nal of Oct.13, 2005.
7
See Declaration by the Heads of State or Government of the Member States of the
European Union on the Ratication of the Treaty establishing a Constitution for
Europe, European Council, SN 117/05 of June 18, 2005.
109
UNIFYING SELF-CONCEPTION OF A REPUBLICAN EUROPEAN UNION
and to make EU Institutions accountable and reliable to those they serve
have so far not resulted in an increasing enthusiasm among the peoples of
Europe for the project of European integration in general and the Con-
stitution in particular. Leaving aside the general lack of interest displayed
by many Europeans with regard to the activities of the European Union,
the Commissions assessment actually reveals even a decreasing support in
a majority of Member States with many citizens becoming more critical
towards what they perceive as a remote EU needlessly interfering without
sufcient involvement by the people in Community decision-making. Fur-
thermore, it is important to note that citizens are more critical on the way
in which the European Union acts than on the policies followed.
8
In the following, it is argued that the importance of the peoples- and
citizen-oriented dimension in and for the process of European integration is
by now generally recognized. However, the EU is currently still lacking, as
well as in need of, an appropriate normative basis and guiding principle for
creating a European polity which would also stimulate citizens to become
more interested and actively involved in European public affairs. Against
this background, this contribution is intended to present some conceptual
ideas on this issue by exploring the possible application of republicanism
to the EU and the value of this principle for European integration, thereby
contributing to a necessarily open-minded and innovative
9
re-evaluation of
the current crisis. In this connection, it will become apparent in the course
of the contribution that the underlying ideas of the concept of republicanism
provide a political and normative guiding principle with considerableand
regrettably so far largely neglectedpotential to improve the necessary
acceptance by the peoples of Europe for the project of European integration
and thereby to strengthen the foundations for a special area of human hope
in the true sense of the meaning.
II. FRAMING THE CREATION OF A EUROPEAN POLITICAL
COMMUNITY: NECESSARY PREREQUISITES AND APPROACHES
The European Union is often considered as being more of a process than
an organisation, more of a provisional outline than an established order, and
more of unication than unity. This somewhat elusive characterwhich is
8
The Period of reection and Plan D, COM(2006) 212 nal of May 10, 2006, 3 et seq.
9
Cf. P. Hberle, Europische Verfassungslehre (4th ed., Baden-Baden: Nomos, 2006), at
p. 676.
110
closely related to the hitherto undetermined nality of the process of integra-
tionhas somehow beneted the European project and it still does, especially
from a political perspective. It provides, for example, for the Unions exibility
as well as openness and gives it the dynamism necessary for it to be able to
adapt to changing circumstances. However, the downside of this charm of
incompleteness
10
is apparent in the Communitys unsuccessful attempts at
reconnecting the European citizens with the Union and so as to build the
necessary basis for the creation of a European political community.
One of the main reasons for the limited success of current initiatives
such as the ones undertaken by the Commission, rightly highlighted by the
European Parliaments resolution of January 19, 2006, is that the strategy of
an imposed dialogue without political goals from which they emanate is in
danger of becoming nebulous, even vacuous, thereby giving rise to increased
disaffection on the part of European citizens. According to the Parliament
the European Council has failed to give a clear focus to the period of reec-
tion and is lacking both the political will and the capacity to stimulate
and manage the European dialogue, while the Commission is called upon
not only to deliver its communications strategy, but also to show decisive
political commitment to help the Union emerge from its current [ . . . ] dif-
culties.
11
The goal of [r]ebuildung a climate of condence and trust, and
reconnecting citizens with the Union pursued by the Commission on the
basis of its recently adopted Citizens Agenda for Europe
12
is considered
unconvincing on the basis of top-down-projects.
13

This reinforces the ever-increasing remoteness, opaqueness, and inac-
cessibility of European governance,
14
which is unfortunate since there is
more at stake than mere public relations-efforts to make the Union and its
10
J. Isensee, Nachwort: EuropaDie politische Erndung eines Erdteils, in: J. Isensee
(ed), Europa als politische Idee und als rechtliche Form (2nd ed., Berlin: Duncker &
Humblot, 1994), pp. 103138, at p. 127.
11
EP Resolution on the Structure, subjects and context for an assessment of the debate on
the European Union, P6_TA(2006)0027 of Jan. 19, 2006, paras. 13, M, and 32.
12
See A Citizens AgendaDelivering Results for Europe, COM(2006) 211 nal of
May 10, 2006, 9.
13
See thereto, already prior to the current constitutional crises of the EU M. Nettesheim,
Die politische Gemeinschaft der Unionsbrger, in: A. Blankenagel et al. (eds), Verfas-
sung im Diskurs der WeltLiber Amicorum fr Peter Hberle zum siebzigsten Geburtstag
(Tbingen: Mohr Siebeck, 2004), pp. 193206, at p. 197.
14
J.H.H. Weiler, The Constitution of Europe (Cambridge: Cambridge University Press,
1999), at p. 349.
111
organs more popular among the citizens of Europe, a circumstance which
in itself may only have a minor effect on the fate of the process of European
integration. Today, improving acceptance by the peoples of the European
Union and strengthening the citizen-oriented dimension is increasingly seen
as an essential component of the move away from an economic, special
purpose organization to a genuine political community or a full-blown
polity.
15
In other words, it is generally recognized that, rst, the present state of
European integrationin order to be successful and legitimaterequires
and is indeed in the process of creating a political community, and, second,
that the present strategies of Community organs and Member States have
in this regard proven to be to a large extent ineffective. At the same time,
substantial disagreement still exists as to the essential prerequisites of such
a European politythe notion of which being no less uneasy than the
notion of European peoplehood
16
and as to the particular approaches to
be adopted to attain them. It is neither possible nor necessary here to evaluate
the growing body of literature on this issue, but the discussion, which often
focussed on the Unions democratic legitimacy or lack thereof, has revealed
a number of fundamental propositions also worth taking into account in
exploring the application of republicanism to the European Union.
1. PREREQUISITES OF A EUROPEAN POLITY
The rst aspect of the current debate on the possible democratic capacity
of European governance that merits closer attention concerns the necessary
prerequisites for the creation of a political community.
In this connection, it is worth highlighting that, contrary to what in par-
ticular some German legal scholars say,
17
it is almost common ground that
the absence of a European people in the sense of a Staatsvolk is no obstacle
to the forming of a European polity. Building a living political community
15
J.P. Olsen, What is a Legitimate Role for Euro-citizens?, 1 Comparative European
Politics (2003), 91110, at 92.
16
J.H.H. Weiler ,U.R. Haltern and F.C. Mayer, European Democracy and Its Critique,
in: J. Hayward (ed), The Crisis of Representation in Europe, (London: Frank Cass, 1995),
pp. 439, at p. 5.
17
See e.g., P. Kirchhof, Der deutsche Staat im Proze der europischen Integration, in:
J. Isensee & P. Kirchhof (eds), Handbuch des Staatsrechts der Bundesrepublik Deutsch-
land, Vol. VII, (Heidelberg: C.F. Mller Juristischer Verlag, 1992), pp. 855887,
183, paras. 33, 53.
112
can be achieved just as well on the citizens common will to observe certain
basic political ideals and normative principles than on pre-existing or xed
conditions such as ethnic origin or common culture, and they are elements
which can grow and which can be acquired.
18
Of course this depends on
the development of a participatory infrastructureon the European level
hitherto rudimentary and fragmentedwhich goes beyond the organiza-
tion of periodic elections and takes the form of a common public sphere,
in which political discourse over the common good can take place through
political parties, interest groups, NGOs, media and other forums.
19
Also,
the absence of a common language complicates the creation of an open and
public discourse and the formation of a European public opinion. However,
the overwhelming majority of legal scholars is for valid reasons convinced
that it is not so much a common language but rather a uniform space of com-
munication, which forms the basis of a European marketplace of ideas.
20
A closely related issue worth mentioning concerns the possible necessity
of establishing a common European identity among its citizens in order to
expand the European Union into a viable political community. The argu-
ment that the creation of a European collective identity is indispensable for
the success of European integration itself is as old as the European Com-
munities. It found expression in numerous attempts by Community organs
and Member Statesstarting in the beginning of the 1970sto initiate an
identity policy aimed at this objective.
21
Indeed, the project of creating a
Constitution for Europe has been perceived as motivated by the aspiration
18
A. Peters, European Democracy after the 2003 Convention, 41 Common Market
Law Review (2004), 3785, at 71; see also, e.g., J.H.H. Weiler, The Reformation of
European Constitutionalism, 35 Journal of Common Market Studies (1997), 97131,
at 115 et seq.
19
Peters, supra, note 18, at 73; see also G. Palombella, Whose Europe? After the Consti-
tution: A Goal-Based Citizenship, 3 International Journal of Constitutional Law (2005),
357382, at 363.
20
On this perception see e.g., Peters, supra, note 18, at 75; W. van Gerven, The European
UnionA Polity of States and Peoples (Stanford: Stanford University Press, 2005), at
pp. 230, and pp. 240; see however, also already J.-S. Mill, Considerations on Representative
Government (2nd ed., London: Parker, Son & Bourn, 1861), at p. 296: Free institutions
are next to impossible in a country made up of different nationalities. Among a people
without fellow-feeling, especially if they read and speak different languages, the united
public opinion, necessary to the working of representative government, cannot exist.
21
See e.g., A. von Bogdandy, The European Constitution and European Identity: Text
and Subtext of the Treaty Establishing a Constitution for Europe, 3 International Jour-
nal of Constitutional Law (2005), 295315, at 295.
113
of laying the foundations for a common identity and thereby of counteract-
ing the alleged problem that nonlegal integrative factors within [the EUs]
borders are poorly developed or lacking altogether.
22
Most commentators agree that the development of a collective identity
can be helpful for the viability of a political community,
23
and that the
fostering of a European identity need not entail a deterioration of existing
national and other identities. However, there is no evidence that a common
identity is a conditio sine qua non for the creation of European polity. Not
only are [a]ssertions that such an identity is necessary for a communitys
viability [ . . . ] generally not well-proven conclusions of empirical research
and thus devoid of a factual basis.
24
Also, the at times rigidly advocated
prerequisite of cultural, linguistic and social homogeneity, which is often
associated with the emergence of a collective identity, carries the risk of
homogenization through unacceptable means, such as assimilation or exclu-
sion.
25
In addition, the establishment of any kind of normative requirement
of developing elements of a common identity has to be compatible with the
idea of a European integration which respects the integrity and autonomy of
the citizens. Taking into account its possible effect on basic individual rights,
the respective legal stipulation would thus be in itself subject to normative
limitations.
26
It can be concluded from this that the barely existing collective Euro-
pean identity is hardly material for the creation of a European polity. Con-
sequently, one can nd the argumentation that the project of European
integration should adopt an individual-oriented perspective and focus on
ensuring that the European decision-making processes adequately serve the
22
D. Grimm, Integration by Constitution, 3 International Journal of Constitutional Law
(2005), 193208, at 196; see also, e.g., D. Chalmers, Reguring the European Unions
Historical Dimension, 5 European Journal of Political Theory (2006), 437454; M.R.
Lepsius, The Ability of a European Constitution to Forge a European Identity, in:
H.-J. Blanke and S. Mangiameli (eds), Governing Europe under a Constitution, (Berlin:
Springer, 2006), pp. 2335; J.-C. Piris, The Constitution for Europe (Cambridge: Cam-
bridge University Press, 2006), pp. 190 et seq.
23
von Bogdandy, supra, note 21, at 296 (emphasis in the original).
24
Id., at 296.
25
Peters, supra, note 18, at 73; see also M. Zuleeg, Der rechtliche Zusammenhalt der Euro-
pischen Union (Baden-Baden: Nomos, 2004), at p. 18.
26
See e.g. Nettesheim, supra, note 13, at pp. 200, and the more far reaching conclusion
by von Bogdandy, supra, note 21, at 296 et seq.
114
long-term interests and expectations of the Unions citizens,
27
so as to ensure
the discursive forming and realization of a European common good.
28
On
the other side, by taking a closer look at the postulated idea of a European
identity, one would have to conclude that it is not the common identica-
tion itself, but the fundamental virtues ostensibly ow[ing] from it, namely
responsibility, solidarity, a willingness to compromise, trust and tolerance
that have to be regarded as essential components of a European polity and
that their formation and growth does not necessarily depend on a collective
identity.
29
To summarize, the creation of a European political communitynec-
essary for the process of European integrationessentially depends on the
facilitation of the formation and growth of underlying fundamental virtues
such as responsibility, solidarity and tolerance, and on the creation of a com-
mon public sphere in the form of a marketplace of ideas for the discursive
forming of the European common good. Furthermore, an orientation of the
European decision-making and implementation processes towards the long-
term interests of the Unions citizens is equally important.
2. THE NEED FOR A NORMATIVE GUIDING PRINCIPLE
Apart from the prerequisites of a European political community, another
important issue in need of clarication concerns the appropriate approach to
be adopted for realizing this goal. In order to succeed, the polity policy of
Community organs and Member States requires an appropriate normative
guiding principle and thus a theoretical basis.
As stated above, the current initiatives based on what has been rightly
characterized as an imposed dialogue without political goals failed to foster
a political community and have even been counterproductive. However,
this does not warrant the conclusion that it is impossible for Community
institutions and Member States to contribute effectively to the creation of
a European polity. While it has been argued that a political community
only becomes a reality through the actions of citizens themselves,
30
this
27
von Bogdandy, supra, note 21, at 315.
28
This is an additional conclusion not explicitly drawn by von Bogdandy, but which seems
a necessary qualication; see thereto Nettesheim, supra, note 13, at pp. 198.
29
Peters, supra, note 18, at 77; see also Weiler et al., supra, note 16, at p. 19.
30
H. van Gunsteren, The Birth of the European Citizen Out of the Dutch No Vote, 1
European Constitutional Law Review (2005), 406411, at 411.
115
is only partly true. One should not overlook the integrative function of
law and notably normative principles in the process of European integra-
tion. Although a politically active citizenry is central in the formation of a
European polity, it is rst and foremost also for the Community organs and
Member States to create and sustain the conditions under which a European
political community can emerge. To achieve this goal, something fundamen-
tal needs to be added to the EUs approach, namely, a sufcient theoretical
foundation which can serve as a guideline for the building of a European
polity.
31
Against this background, dogmatic recourse can be taken to the dis-
tinction between rules and principles.
32
Rules are characterized in that they
stipulate rights or obligations directly governing a given factual situation.
Principles require that the realization of the respective values is optimized
in the sense of being attained in the most appropriate way given the legal
and factual circumstances. Although principles, unlike rules, tend not to
be directly applicable, due to their character as optimizing imperatives they
allow for the resolution of many legal disputes involving conicts between
public goods, as well as for the conceptualization and management of the
factual and normative reality by providing a theoretical foundation for
the common understanding of a community and normative guidelines for
this communitys future development.
33
Consequently, the relevance of
these optimization imperatives for domestic legal systems and for example
international economic law, but also for the EUs supranational legal order
is well noted.
34
31
See e.g., Nettesheim, supra, note 13, at p. 197; and Ph. Allott, The Crisis of European
Constitutionalism: Reections on the Revolution in Europe, 34 Common Market Law
Review (1997), 439490, at 488: The European Union, in its present form, is an
anarche. It lacks an arche, an ultimate principle of its ordering. It lacks a coherent idea
of its actuality, an idea of its potentiality.
32
On this discussion see R. Dworkin, Taking Rights Seriously (Cambridge: Harvard Uni-
versity Press, 1977), at pp. 22.; R. Alexy, A Theory of Constitutional Rights (Oxford/New
York: Oxford University Press, 2002).
33
See e.g., R. Alexy Balancing, Constitutional Review, and Representation, 3 Interna-
tional Journal of Constitutional Law (2005), 572581, at 572 et seq.; T.M.J. Mllers,
The Role of Law in European Integration, 48 American Journal of Comparative Law
(2000), 679711, at 709.
34
See in particular A. von Bogdandy, Europische Prinzipienlehre, in: A. von
Bogdandy (ed), Europisches Verfassungsrecht (Berlin et al.: Springer-Verlag, 2003),
pp. 149203; as well as, e.g., E. Schmidt-Amann, Verfassungsprinzipien fr
den Europischen Verwaltungsverbund, in: W. Hoffmann-Riem et al. (eds).
116
Arguably, the not just political but rather more normative approach to
the creation of a European political community corresponds to the integra-
tive and stabilizing function of law that is so essential for the process of Euro-
pean integration as observed by Walter Hallstein in his vivid characterization
of the European Communities as a legal community.
35
Furthermore, it
also reects the normatively relevant content of the preambles of the Treaties
of Rome and Maastricht quoted above, which emphasize the importance
attached to a peoples- and citizen-oriented perspective of European integra-
tion. These appear to prescribe the creation of a political community as a
main goal to be pursued by the European Union.
A systematic recourse to normative principles and their conceptualiza-
tion function would therefore not only give credit to the perception that it
is one of the primary tasks of academic (legal) scholarship to systemize the
complex reality and its steering challenges.
36
Rather, it is part of the very role
played by normative principles and concepts in forming and sustaining a
unifying self-conception of the European citizenry and thus in the required
creation of a European political community.
37
III. APPLYING THE REPUBLICAN PRINCIPLE TO THE EU:
WORTH THE WHILE?
In light of the potential signicance of a normative guiding principle for
the specic polity policy to be initiated by Community institutions and
Member States, the disputed question arises as to whether an appropriate con-
ception exists that could form the foundation for building and sustaining a
European polity. If it proves impossible to apply a suitable normative princi-
ple to the EU, the necessary creation of a European political community can
hardly be achieved in the foreseeable future. This is particulary obvious given
the current difculty in adopting essential amendments to the Treaties.
Against this background, the following part of the contribution will
explore the possible application of one of the potentially suitable normative
Grundlagen des Verwaltungsrechts, Vol. I (Mnchen: C.H. Beck, 2006), pp. 241305, 5,
para. 11.
35
W. Hallstein, Die Europische Gemeinschaft (5th ed., Dsseldorf/Wien: Econ, 1979),
at pp. 51.
36
See already I. Kant, Metaphysische Anfangsgrnde der Naturwissenschaft (Riga: Hart-
knoch, 1786), at p. IV.
37
See von Bogdandy, supra, note 34, at p. 154; Nettesheim, supra, note 13, at pp. 200.
117
conceptsthe principle of republicanismto the EU supranational legal
order.
1. REPUBLICANISM: A MULTI-FACETED CONCEPT
However, before turning to the merits and feasibility of applying the
principle of republicanism to the EU, an outline of the basic content of this
normative concept needs to be given.
It is a truism that every scientic approach that goes beyond mere descrip-
tion requires as its starting point a clarication with regard to the underly-
ing research object. As regards republicanism, political and historical science
are experiencing a republican revival ever since the publication of Pococks
groundbreaking work The Machiavellian Moment (1975),
38
to the effect
that there are now two distinct school of thoughts, respectively, of neo-Athe-
nian and neo-Roman republicanism.
39
In legal science, by contrast, Adam
Tomkins observes, republicanism makes only infrequent appearances even
on the level of domestic constitutional law.
40
In the rare cases in which it
becomes subject to discussion, most contributions on republicanism proceed
[ . . . ] on the basis that there is nothing more to it than the rather narrow ques-
tion of who should be the head of state
41
a perception that, if proven to be
accurate, would render it rather fruitless to analyse the potential contribution
of this normative concept to the creation of a European political community.
Unless one shares the formalistic perception prevailing particularly in
German and British legal literature that republicanism is exclusively or pri-
marily concerned with the issue of whether the head of state is elected or
inherits ofce,
42
the conceptual content of this principle needs to be made
38
J.G.A. Pocock, The Machiavellian MomentFlorentine Political Thought and the Atlantic
Republican Tradition (Princeton: Princeton University Press, 1975).
39
See e.g., J.W. Maynor, Republicanism in the Modern World (Cambridge et al.: Polity Press,
2003), at pp. 10.
40
A. Tomkins, Our Republican Constitution (Oxford/Portland: Hart Publishing, 2005), at
p. 40; see also, e.g., J. Isensee, RepublikSinnpotential eines Begriffs, 36 Juristenzei-
tung (1981), 18, at 1.
41
Tomkins, supra, note 40, at p. 41; see also, e.g., R. Grschner, Die Republik, in:
J. Isensee and P. Kirchhof (eds), Handbuch des Staatsrechts der Bundesrepublik Deutsch-
land, Vol. II (3rd ed., Heidelberg: C.F. Mller Juristischer Verlag, 2004), pp. 369428,
23, para. 12.
42
On this formalistic and narrow understanding see e.g., R. Brazier, A British Republic, 61
Cambridge Law Journal (2002), 351385, at 363 et seq.; E.-W. Bckenfrde, Demokratie
118
clear. Taking into account the variety of different meanings that have been
associated with the principle, republicanism seems to be a multi-faceted
concept the content of which is not universally agreed upon. In the words
of John Adams, [t]here is not a more unintelligible word in the English
language than republicanism.
43
As a result it is easy to dismiss any attempt
to apply this normative concept to the EU.
44
Despite the apparent difculty in determining the character and con-
ceptual content of the republican principle, it is however possible to identify
within this complex historical phenomenon three major themes that both
the so-called neo-Athenian and the neo-Roman republicans can sub-
scribe to and that are historically well-founded.
Concerning its character, republicanism takes as a source of inspira-
tion the Aristotelian philosophy of the politeia, conceived as the doctrine of
the best possible constitutional order, which illustrates the understanding
of republicanism as a principle in the sense of an optimizing imperative as
discussed above.
45
In order to identify the conceptual content of the republican principle,
it is necessary to recall that the issue of how to constitute, organise and chan-
nel the necessary unilateral public power exercised within a community with
the aim of preserving the freedom of its members, the citizen, and thus the
question of how to create a stable and acceptable form of political ordering
for a society within which there are different interests and constituencies
lies at the heart of republicanism.
46
Thereby, the linguistic origin of the term
republic, the Latin phrase res publica, can serve as a starting point for a
descriptive evaluation of the approach adopted by republicans, namely, to
cope with the phenomenon of public power in a community. The rst key
als Verfassungsprinzip, in: , in: J. Isensee and P. Kirchhof (eds), Handbuch des Staatsrechts
der Bundesrepublik Deutschland, Vol. II (3rd ed., Heidelberg: C.F. Mller Juristischer Ver-
lag, 2004), pp. 429496, 24, para. 95.
43
See the letter by John Adams to Mercy O. Warren of August 8, 1807, reprinted in: Cor-
respondence between John Adams and Mercy Warren, ed. C.F. Adams (New York: Arno
Press, 1972), pp. 425, at p. 432.
44
See H. Dreier, in: H. Dreier (ed) Grundgesetz-Kommentar, Vol. II (2nd ed., Tbingen:
Mohr Siebeck, 2006), Art. 20 (Republik), para. 12.
45
See e.g., R. Grschner, Republik in: W. Heun et al. (eds), Evangelisches Staatslexikon
(Stuttgart: Kohlhammer, 2006), pp. 20412045, at p. 2044.
46
P. Craig, Democracy and Rule-Making Within the EC: An Empirical and Normative
Assessment, 3 European Law Journal (1997), 105130, at 116.
119
theme of republicanism is constituted by its focus on the need of realizing the
public good, the common weal. The exercise of public power by the govern-
ing is only considered legitimate if all decision-making and implementation
processes are oriented towards the common interest of the citizen rather than
the realization of narrow sectional interests of specic groups or persons, the
res privata.
47
Ifas being emphasized by Philip Pettit, albeit from an etatis-
tic perspectivethe state does not satisfy this tracking requirement, then
it must count itself as a dominus of the people whom it taxes and coerces
and will consequently interfere in their lives [ . . . ] on an arbitrary basis.
48

While the common interest could theoretically also be realized by a kind of
benign despot, republicans have always stressed the need for a number of
safeguards that ensure the optimal orientation towards the public good in
practice. Thus, this rst major scheme of republicanism also serves as the
basis of certain sub-features, which can be deduced from the optimal orienta-
tion towards the common good. Among them are the importance generally
attached to the rule of law, the need for establishing an institutional balance
and thus a dispersion of the exercise of public power, limitations on tenure
in ofce
49
as well as the requirements that the holders of public ofces, the
civil servants, have a strong sense of responsibility for the common good and
are accountable to the public.
50
This anti-despotic or anti-authoritarian character of republicanism,
which accounts for its rather loose relation to the issue of monarchy, is con-
rmed by the second central theme of this principle that is still most viv-
idly expressed by Marcus Tullius Cicero in his work De re publica: Est
47
See J. Isensee, Gemeinwohl im Verfassungsstaat, in: J. Isensee and P. Kirchhof (eds),
Handbuch des Staatsrechts der Bundesrepublik Deutschland, Vol. IV (3rd ed., Heidelberg:
C.F. Mller Juristischer Verlag, 2006), 379, 71, paras. 22 et seq.; M.N.S. Sellers,
Republican Legal Theory (Houndsmills/New York: Palgrave Macmilan, 2003), at p. 1.
48
P. Pettit, RepublicanismA Theory of Freedom and Government (Oxford/New York:
Oxford University Press, 1997), at p. 290 (emphasis in the original).
49
See J. Delbrck, Global Migration-Immigration-Multiethnicity: Challenges to the
Concept of the Nation-State, 2 Indiana Journal of Global Legal Studies (1994), 4564,
at 60; Craig, supra, note 46, at 113 et seq.; Pettit, supra, note 48, at 284.
50
See e.g., O. Depenheuer, Das ffentliche Amt, in: J. Isensee and P. Kirchhof (eds),
Handbuch des Staatsrechts der Bundesrepublik Deutschland, Vol. III (3rd ed., Heidel-
berg: C.F. Mller Juristischer Verlag, 2005), 87129, 36, para. 47; specically on the
European Unions current decits in this regard see e,g, van Gerven, supra, note 20, at
217 et seq.; U. Fastenrath, The EU as a Federal Commonwealth, in: H.-J. Blanke
& S. Mangiameli (eds), Governing Europe under a Constitution (Berlin et al.: Springer,
2006), pp. 411414, at p. 414.
120
igitur [ . . . ] res publica res populi.
51
The perception that the community
and thus the public good is the common concern of the citizen contains at
least four important implications for the concept of republicanism. First, it
illustrates the integrative character and function of the republican principle,
by stressing the unifying self-conception of all members of the community
who not only benet from the common weal, but are also individually and
collectively responsible for the formation and realization of the public good.
This understandingpointedly captured in Friedrich Naumanns saying we
are the state
52
coined to outwit Louis XIVs mottoreveals that republi-
canism does not share the still prevailing perception of state and society as
two principally separated spheres. It is important to note, however, that the
integrative function of the republican principle does not presuppose the
existence of an already established (national) identity resulting from, inter
alia, a common culture, language or even ethnic origin.
53
Second, the understanding of the community as the common concern
of all its members is based on and aimed at the freedom of the citizen.
Although the exact meanings of freedom and liberty in the republican
context can probably be regarded as the most controversial issues related to
this concept, it seems to be common ground that citizens are only able to
develop the necessary self-conception of being the state and thus being
individually and collectively responsible for the forming and realization of
the public good if they are not subject to domination by the state or non-
governmental forces by way of arbitrary interference in their lives. Therefore,
republicanism presupposes and is centrally aimed at preserving the condi-
tions for a free political order.
54
51
M.T. Cicero, De re publica, ed. by K. Bchner (Stuttgart: Philipp Reclam jun., 1979),
at p. 130.
52
Cited after: R. Thoma, Das Reich als Demokratie, in: G. Anschtz and R. Thoma
(eds), Handbuch des Deutschen Staatsrechts, Vol. I (Tbingen: Mohr Siebeck, 1930),
pp. 186200, at p. 187; see also for example the equally capturing saying les Citoy-
ens font la Cit by J.-J. Rousseau, Du Contrat Social; ou Principes du Droit Politique
(Amsterdam: Marc Michel Rey, 1762), at p. 19.
53
L. Andronache, A National Identity Republicanism?, 5 European Journal of Political
Theory (2006), 399414, at 400 et seq.; I. Honohan, Civic Republicanism (London/New
York: Routledge, 2002), at p. 276.; F. Harbo, Towards a European Federation? (Baden-
Baden: Nomos, 2005), at p. 81.
54
See e.g., J.-P. Geise, Republican Ideals and Contemporary Realities, 46 Review of Poli-
tics (1984), 2344, at 29 et seq.; generally on the meanings of freedom and liberty in
the republican context see Q. Skinner, Liberty before Liberalism (Cambridge: Cambridge
University Press, 1998), at pp. 17.
121
Third, in order to prevent domination by others and for the purpose of
assuming their responsibility for the public good, republicanism has a strong
participatory dimension, as it encourages citizens to actively participate in
public affairs. This aspect underlines not onlyas for example being pointed
out by Georg Jellinek and Rudolf Smendthe predominantly cooperative
nature of all constitutional legal relations envisioned by the republican prin-
ciple.
55
Also, the idea of involvement based on the notion of concern, by
politically interested and informed citizens, which directly ows from the
understanding of res publica as res populi, requires the existence of a com-
mon public sphere in the sense of a marketplace of ideas. The creation
and preservation thereof is a central concern of republicanism, which aims
at providing a forum for the free and open, discursive formation and expres-
sion of the public good.
56
It is obvious that this participatory dimension provides a link between the
republican and the democratic principle. However, although both concepts are
based on the notion of participation, as Immanuel Kant observes this formal
similarity does not imply that they can be equated.
57
Legal literature may well
deal with some elements of republicanism under the heading of democratic
form of government, but there is a clear distinction between these two con-
cepts. As pointed out by Karl Doehring, democracy is a rather more technical
and formal concept centering on the procedural aspects and means by which
peoples can exercise their popular sovereignty.
58
Above all concerned with deci-
sion-making by majority, it is instrumental in character and does not primarily
address the purposes of the exercise of public power or the allocation of respon-
sibility for the political community as a whole. By contrast, the republican
principle is rst and foremost goal-oriented, as it focuses on the realization of
the public good and seeks to allocate responsibilities to holders of public ofces
55
R. Smend, Die politische Gewalt im Verfassungsstaat und das Problem der Staatsform,
in: Festgabe der Berliner Juristischen Fakultt fr Wilhelm Kahl zum Doktorjubilum,
ed. Berliner Wissenschaftliche Fakultt (Tbingen: Mohr Siebeck, 1923), pp. 125, at
p. 23; G. Jellinek, Allgemeine Staatslehre (3rd ed., Berlin: Verlag O. Hring, 1914), at
p. 667.
56
See Delbrck, supra, note 49, at 62; M. Kotzur, Die Demokratiedebatte in der deut-
schen Verfassungsrechtslehre, in: H. Bauer et al. (eds), Demokratie in Europa (Tbingen:
Mohr Siebeck, 2005), pp. 351388, at p. 386.
57
Cf. I. Kant, Zum ewigen Frieden, ed. by R. Malter (Stuttgart: Philipp Reclam Jun.,
1984), at p. 13.
58
K. Doehring, Allgemeine Staatslehre (3rd ed., Heidelberg: C.F. Mller Verlag, 2004),
para. 321.
122
and to the citizen. It thus differs from the democratic principle by not being
chiey concerned with the question of who governs but rather with the way
public power is exercised, the limits to this exercise entailed in the principle of
non-domination and the purposes pursued by it.
59
Therefore, the participatory
dimension of republicanism is not necessarily related to the exercise of popular
sovereignty but ows from the responsibility of all members of the community
for the optimal formation and implementation of the common good. In addi-
tion, the purpose-orientation of republicanism results in a different approach
towards legitimacy. Whereas the democratic concept of legitimacy is in prin-
ciple input-oriented by requiring the exercise of public power to be founded
on the expressed will of the people, the republican understanding of legitimacy
is primarily output-oriented, in that it considers the exercise of public power
legitimate only if all governance processes are serving the effective realization
of the common interest.
60
It follows from these ndings that the republican and the democratic
principle are neither identical nor intrinsically tied to each other. Although
all republican states today have a democratic form of government and are
thus based on what Werner Maihofer has called republicanism accom-
plished by democracy and democracy restrained by republicanism,
61
it
is possible to envision a pure democracy devoid of republican elements
or a republican form of government in absence of a democratic exercise of
popular sovereignty. Furthermore, it is now possible to clarify the potential
contribution of the republican principle to the debate concerning the EU
legitimacy. The republican understanding of legitimacy set out above reveals
that the question whether the exercise of public authority by the EU is suf-
ciently legitimised in democratic terms remains largely outside of its focus.
Rather, the republican conception of legitimacy is more closely related to
that of the advocates of applying output-oriented legitimacy strategies to
the international governance structures as well as the EU supranational legal
order.
62
59
W. Maihofer, Prinzipien freiheitlicher Demokratie, in: E. Benda et al. (eds), Handbuch
des Verfassungsrechts (2nd ed., Berlin/New York: Walter de Gruyter, 1994), 427536,
12, paras. 44 et seq.; on the considerably more complex understanding of republicanism
see also, e.g., F. Michelman, Laws Republic, 97 Yale Law Journal (1988), 14931537,
at 1537.
60
See e.g., Grschner, supra, note 41, para. 74; Isensee, supra, note 40, at 3.
61
Maihofer, supra, note 59, para. 81.
62
See e.g., A. Peters, Elemente einer Theorie der Verfassung Europas (Berlin: Duncker &
Humblot, 2001), at pp. 580; G. Majone, Europes Democratic Decit: the Question
123
Fourth, and closely related to the last mentioned dimension, in order for
the citizens to develop the necessary understanding of the res publica being
their own responsibility and to encourage them to take part in public affairs,
it is of utmost importance that the respective decision-making processes on
the governmental level are not secretive but subject to public control. Thus,
although publicity and in particular the more recent issue of transparency
are often exclusively associated with the principle of the rule of law, they also
form a central component of republicanism because transparency is a neces-
sary precondition for the type of involvement of the citizenry in the business
of government desired by a republican model of democracy.
63
Finally, a major theme of republicanism, which can equally be traced
back to eminent thinkers like Cicero and Montesquieu, is its virtue-ori-
entation.
64
In fact, the promotion of virtues forms the indispensable basis
for the realization of the common good as well as the protection of liberty
and thus for the political community as a whole. Without virtues such
as responsibility, solidarity, trust and tolerance, the danger arises that the
members of a community will orientate their activities exclusively on
the realization of their respective and necessarily sectoral res privata which
would not only result in the common public interest being neglected but
ultimately in the destruction of the community and the loss of freedom
caused by the rise of domination. In light of these possible and undesir-
able consequences, republicanism thus strongly emphasizes the importance
attached to the facilitation of practices of virtue by the holders of public
ofces as well as individual citizens.
In sum, republicanism is a normative principle whose conceptual con-
tent is determined by the focus on the realization of the public good, by the
perception that this public good is the common concern of the citizen and
by the conviction that the promotion of virtues forms an indispensable basis
for the creation and sustainment of a political community.
of Standards, 4 European Law Journal (1998), 528; J. Delbrck, Exercising Public
Authority Beyond the State: Transnational Democracy and/or Alternative Legitimation
Strategies?, 10 Indiana Journal of Global Legal Studies (2003), 2943.
63
Craig, supra, note 46, at 120; see also W. Maihofer, The Ethos of the Republic and the
Reality of Politics, in: G. Bock et al. (eds), Machiavelli and Republicanism (Cambridge:
Cambridge University Press, 1990), pp. 283292, at pp. 290.
64
Cf. C.L. de Montesquieu, De lEsprit des lois, ed. by R. Derath, Vol. I (Paris: ditions
Garnier, 1987), at p. 41; D. Earl, The Moral and Political Tradition of Rome (London:
Thames and Hudson, 1967), at pp. 47.
124
2. EU REPUBLICANISM AND THE DILEMMAS OF SUI GENERIS- AND
TRANSFER-APPROACHES
Since the conceptual content of republicanism and its character as a nor-
mative principle clearly indicate the potential of this concept for European
integration, the issue arises whether it is possible or even expedient to apply
this concept to the EU.
In order to position this undertaking within the current discussion in
the legal literature, one rst has to note that with regard to the conceptualiza-
tion of the EUs normative orderas well as the normative structure of the
international system as a wholeit is possible to identify two main lines of
argumentation in the literature, the sui generis-approach and the transfer-
approach. The sui-generis-approach is not just based on the assumption
that a new legal order was created in the sense of Van Gend & Loos, but
that this supranational organisation and its normative structure are of such
a novel and unique character that their conceptual systemization cannot
borrow from categories developed for application to states; it requires the
development of entirely new and unprecedented concepts and terminolo-
gies. This approach found its expression in the characterization of the EU as
an organization or legal order sui generis, an unprecedented phenomenon
or an empire on its own.
65
By contrast, the legal scholars supporting the transfer-approach empha-
size the emerging functional unity, interconnectedness and structural simi-
larities of domestic, supranational as well as international law and the now
almost generally shared perception that the term and concept of constitution
or constitutionalization can be applied to normative developments on the
supra- and international level.
66
In light of the nding that the question how to
control the phenomenon of unilateral public power lies at the heart of every
constitutional order, the transfer approach revolves around an evaluation of
65
See e.g., J. Shaw and A. Wiener, The Paradox of the European Polity, Harvard Jean
Monnet Working Paper 10/99 (Cambridge: Harvard Law School, 1999), at pp. 2;
G.F. Schuppert, Anforderungen an eine Europische VerfassungGrnde und Gren-
zen europischer Verfassungserwartungen, in: H.-D. Klingemann and F. Neidhardt
(eds), Zur Zukunft der Demokratie (Berlin: Ed. Sigma, 2000), pp. 237262, at pp. 249;
U. Beck and E. Grande, Das kosmopolitische Europa (Frankfurt am Main: Suhrkamp,
2004), at pp. 81.
66
See I. Pernice, The Global Dimension of Multilevel Constitutionalism: A Legal
Response to the Challenges of Globalisation, in: P.-M. Dupuy et al. (eds), Common
Values in International LawEssays in Honour of Christian Tomuschat (Kehl: N.P. Engel,
2006), pp. 9731005.
125
the applicabilitywith or without modicationsof state-centered concepts
to the EU or the international legal order. Its goal is thus to reformulate these
concepts while preserving their essential normative content in view of the new
form of political union.
67
As from the 1960s, there start to emerge indepth
analyses of the respective dogmatic challenges and merits of transferring to the
EUs supranational legal system the principle of democracy, the concept of the
rule of law, the principle of the social state, the theory of legitimacy, the idea
of federalism and so forth.
While the applicability and necessary modications of originally state-
centered concepts to the European Union have thus been discussed for
quite some time by Community institutions and scholars, republicanism
is only recently starting to receive some attention in the legal literature. In
this connection, attention should be drawn to the analyses by Walter van
Gerven, who emphasized the signicance of the republican understanding
of responsibility for the common good among the European Unions civil
servants, as well as by Paul Craig, who identied the republican legacy of
the importance attached to the ideas of institutional balance, transparency
and participation within the EC.
68
Furthermore, the concept of a European
republican order or republican unication of Europe advocated by Dieter
Oberndrfer, the closely related model of a republican multiculturalism
on the European level by Jonathan Bowman, Neil MacCormicks idea of a
European Commonwealth, the concept of a European Republic of States
proposed by Hans Buchheim, Rolf Grschner and Karl Schachtschneider,
as well as Maurizio Virolis and Emanuel Richters plea for the creation of a
European Republicanism serve as indications that the approach of apply-
ing the republican principle to the European Union receives growing recog-
nition in the literature.
69
Finally, the studies by Armin von Bogdandy should
67
A. von Bogdandy, The Prospect of a European Republic: What European Citizens are
Voting on, 42 Common Market Law Review (2005), 913941, at 927 et seq.
68
van Gerven, supra, note 20, at pp. 213; Craig, supra, note 46, at 113 et seq.; P. Craig,
The Nature of the Community: Integration, Democracy, and Legitimacy in: P. Craig
and G. de Brca (eds), The Evolution of EU Law , (Oxford/New York: Oxford University
Press, 1999), pp. 154, at pp. 36.
69
See D. Oberndrfer, Zurck zur deutschen Nation oder hin zur Republik?, in: T. Fues
and J. Hippler (eds), Globale PolitikEntwicklung und Frieden in der Weltgesellschaft
Festschrift fr Franz Nuscheler (Bonn, Dietz Verlag, 2003), pp. 306317, at p. 317;
J. Bowman, The European Union Democratic Decit, 5 European Journal of Political
Theory 5 (2006), 191212, at 204; N. MacCormick, Questioning SovereigntyLaw,
State, and Nation in the European Commonwealth (Oxford/New York: Oxford University
Press, 1999), at pp. 137; on this concept see also V. Breda, A European Constitution
126
be mentioned because they show how the realization of the European Con-
stitutional Treaty should lead to a political entity that plausibly qualies not
as a federal State, but as a federal republic.
70
Since these recent analyses are quantitatively speaking modest as com-
pared to the heated debates concerning such other concepts as democracy
and federalism, the potential of republicanism as a normative guiding
principle has so far been largely neglected in the debate on how to cre-
ate a citizens ownership of EU policies
71
. The disregard of this concept
could well be a consequence of the fact that republicanism is not a distinct
legal principle recognised by the existing Treaties or the Constitution for
Europedespite at least one respective suggestion made in the course of
the deliberations in the Convention
72
. Yet this omission could also merely
be a further indication that in the perception of the EU the republican
principle is seemingly not present in the concert of principles indispen-
sable to the organization of governmental power.
73
Moreover, theso far
equally neglectedprinciple of liberty enshrined in Article 6 (1) EU and
the respect for freedom stipulated in Article I2 of the Constitution might
very well be considered as a possible normative basis for the republican
in a Multinational Europe or a Multinational Constitution for Europe?, 12 European
Law Journal (2006), 330344, at 336 et seq.; for a related perception see R. Bellamy
and D. Castiglione, Legitimizing the Euro-Polity and its RegimeThe Norma-
tive Turn in EU Studies, 2 European Journal of Political Theory (2003), 734, at 27 et
seq. See also H. Buchheim, Von der Fderation zur Republik souverner Staaten, in:
H. Buchheim (ed), Beitrge zur Ontologie der Politik, (Mnchen: R. Oldenbourg Verlag,
1993), pp. 5160, at p. 60; Grschner, supra, note 41, para. 75; K.A. Schachtschneider,
Die Republik der Vlker Europas, in: R. Grschner & M. Morlok (eds), Rechtsphiloso-
phie und Rechtsdogmatik in Zeiten des Umbruchs, (Stuttgart: Franz Steiner Verlag, 1997),
pp. 153193; M. Viroli, Die Idee der republikanischen Freiheit (Zrich/Mnchen: Pendo
Verlag, 2002), at pp. 132.; E. Richter, Das republikanische Europa (Opladen: Leske +
Budrich, 1999), at pp. 11.
70
von Bogdandy, supra, note 67, at 940. Cf. e.g., A. von Bogdandy, Konstitutionalisie-
rung des europischen ffentlichen Rechts in der europischen Republik, 60 Juristen-
zeitung (2005), 529540; for a related perception see also T. Knig, Die Europische
Republikso nah und wohl doch so fern?, 12 Zeitschrift fr Internationale Beziehungen
(2005), 361367.
71
The Period of reection and Plan D, COM(2006) 212 nal of May 10, 2006, 3.
72
See the contribution titled The unity of Europe by the member of the European
Convention, Mr. Johannes Voggenhuber, CONV 499/03 of January 21, 2003, 6 (The
Constitution shall establish a European Democracy and shall provide the Union with a
republican system of institutions and procedures.).
73
127
principle.
74
In addition, it should be recalled that both the Treaties and the
Constitution display a number of features, such as the ideas of institutional
balance, transparency and participation, whose basis can be found in the
republican principle.
Furthermore, the fact that hardly any attention has so far been paid to
the republican principle in the context of European integration can also be
attributed to the well-known circumstance that a considerable number of
Member States have a constitutional monarchy. Against this background,
one could understand the hesitation of Community institutions and of legal
scholars to even evaluate the potential of republicanism for the EU. How-
ever, the idea that the application of the concept to the Unions supranational
legal order might alienate some Member States is in itself the result of a
narrow and formalistic understanding of the republican principle. A closer
look at the conceptual content of republicanism reveals that the relationship
between this principle and monarchism is considerably more complex than
the currently still predominant view suggests.
As indicated above, only the anti-despotic character of the republican
principle has provided any link to the issue of monarchy. A monarchic
form of government is thusbased on a substantive understanding of
the republican conceptnot in principle irreconcilable with republican-
ism.
75
It is merely the despotic type of monarchy such as the one practiced
in the early times of absolutism, the ancient-rgime monarchism or any
form of tyranny, that the republican principle is opposed to. Aside from
this extreme form of monarchy, it is therefore possible that republican
notions of constitutionalism can be found in monarchies just as in states
that have a republican form of government in the formalistic sense of
the term. This substantive connotation of republicanism can be found
for example in the writings of Immanuel Kant, who differentiates only
between republican and despotic forms of government, and who uses the
term republic also to characterise political communities with monarchic
elements.
76
Furthermore, this general compatibility and possible inter-
wovenness of substantive republican and monarchic elements has been,
albeit with varying nuances, reiterated by scholars and politicians as diverse as
74
Generally on the understanding of a free political order as a synonym for the republican
principle see for example Grschner, supra, note 41, paras. 45 et seq.
75
See e.g., Tomkins, supra, note 40, at pp. 60 et seq.; Jellinek, supra, note 55, at pp. 712.
76
See in particular Kant, supra, note 57, at pp. 10.
128
Otto von Bismarck,
77
Friedrich Julius Stahl, Georg Jellinek, Rudolf Smend
and Adolf Merkl as well as, more recently, Adam Tomkins, Armin von
Bogdandy and Rolf Grschner.
78
Consequently, just like some monarchies
were able to form a republican uniona perception argued for in the case
of the German Empire of 1871,
79
a monarchic entity can become a part
of a republican state, as is happening in the Republic of South Africa.
80

In addition, it has to be emphasised that, in the same way as a monar-
chy is not the antithesis of a democracy, the substantive understanding of
republicanism and the monarchic form of government do not necessarily
exclude each other. Therefore, taking into account that EU members, by
virtue of Article 49 in conjunction with Article 6 of the EU, respectively
Article I58 in conjunction with Article I2 of the Constitution, have to
be democratic and free constitutional monarchies if at all, an application
of the republican principle to the Unions supranational legal order is not
hindered by the (thus not so fundamentally) different forms of government
of its Member States.
Apart from these aspects, it has to be emphasised that the apparent dis-
regard for the republican principle in the European context is astonishing
for at least three reasons.
First, it has to be recalled that the idea of having recourse to republican-
ism as a unifying principle for Europe predates the European Communi-
ties. There was a general tendency on a cosmopolitan level, in particular in
the eighteenth century, of viewing and systemizing the world as a whole in
republican terms, as in the writings of Immanuel Kant and Christian Wolff
and other Enlightenment republicans. Furthermore, one can recall Voltaires
characterization of Europe as une grande Rpublique partage en plusieurs
77
See the speech given by O. von Bismarck on March 28, 1867 during the deliberations
on the Northern-German Federal Constitution, cited after: Jellinek, supra, note 55, at
p. 713, footnote 1.
78
See F.J. Stahl, Das Monarchische Princip (Heidelberg: Mohr, 1845), at p. IV; Jellinek,
supra, note 55, at pp. 712; R. Smend, Verfassung und Verfassungsrecht (Mnchen/Leip-
zig: Duncker & Humblot, 1928), at p. 113; A. Merkl, Das Kriterium von Republik
und Monarchie, 56 Zeitschrift fr Verwaltung (1923), 6382, at 64 et seq.; Tomkins,
supra, note 40, at 60 et seq.; von Bogdandy, supra, note 67, at 928 et seq.; Grschner,
supra, note 41, para. 75.
79
On this perception see e.g., Jellinek, supra, note 55, at pp. 712; F. Stier-Somlo, Republik
oder Monarchie im neuen Deutschland (Bonn: A. Marcus & E. Webers Verlag, 1919),
at p. 23.
80
See thereto von Bogdandy, supra, note 67, at 929.
129
Etats as well as the proposition made by Edward Gibbon that a philosopher
may be permitted to enlarge his views, and to consider Europe as one great
republic, whose various inhabitants have attained almost the same level of
politeness and cultivation.
81
Second and of even greater importance, the conceptual content of the
republican principle as outlined above clearly indicates the potential of this
concept to signicantly contribute to a European polity, the creation and sus-
tainment of which require precisely a normative guiding principle aimed at
the promotion of civic virtues, the establishment of a common public sphere
for the discursive forming of the European public good as well as at the
orientation of the European decision-making and implementation processes
on the long-term interests of the Unions citizens. Resorting to republican-
ism could thus remedy what Philip Allott has called one of the fundamental
technocratic fallacies of the EU, namely that there is something called the
economy which is autonomous in relation to the rest of social phenomena,
that res economica is systematically separable from res publica.
82
Third, the benets of applying the principle of republicanism to the EU
become even more apparent when viewed in light of the above-mentioned
two main approaches with regard to the conceptualization of this suprana-
tional legal order. Although the undertaking argued for here is closely related
to the transfer-approach, it largely avoids the well-known dogmatic prob-
lems connected with both the sui generis- and the transfer-approach.
On the one hand the republican principle is among the oldest and most
established political and normative principles which, coined during the
early period of political thinking, [ . . . ] has accompanied continental devel-
opment, in politics and in law, for over 2500 years.
83
Thus, due to the term
and concept being rmly established in the history of ideas, the approach
of having recourse to republicanism is not exposed to the criticism voiced
81
See Voltaire, Le Sicle de Louis XIV, Vol. 1 (2nd ed., Francfort: Knoch & Eslinger, 1753),
at p. 12; E. Gibbon, The History of the Decline and Fall of the Roman Empire, Vol. 6
(Basil: Tourneisen, 1787), at p. 326; as well as generally H.A.L. Fisher, The Republican
Tradition in Europe (London: Methuen & Co., 1911), at p. 283: The idea of a com-
monwealth or republic, [ . . . ], has been a constant factor in the political consciousness
of Europe.
82
Allott, supra, note 31, at 477 (emphasis in the original); as well as, e.g., C.F. Ophls,
Juristische Grundgedanken des Schumanplans, 4 Neue Juristische Wochenschrift (1951),
289292, at 292.
83
130
against the sui generis-approach which is said to reect classication incom-
petence, to y in the face of an academics duty of systemisation or simply
mirroring awkwardness.
84
On the other hand the longstanding republican principle has not expe-
rienced a predominantly etatistic determination either. This characteristic,
which distinguishes it from other principles whose application to the EU is
being debated, is not just due to the fact that the idea predates the epoch
of statehood itself. Rather, its signicantly less state-centric shaping is very
much the result of the aforementioned neglect or narrow understanding of
the republican principle at the domestic level and thus its now quite dor-
mant position in many constitutional legal orders. While other normative
concepts such as democracy or federalismwhose origins in principle also
predate the nation statehave been well adapted in the last centuries to
the specic structural conditions of statehood, the republican principle has
received considerably less attention and etatistic forming. Although it has
to be acknowledged that as a general rule, the term republic, in modern
constitutional law as in public discourse, serves to qualify a political entity
whose statehood is beyond doubt
85
and that such an understanding can
even occasionally be found in the European context,
86
this state-centric
perception is notably less present with regard to the conceptual content
of the republican principle which concerns, as outlined above, the general
issue of how to organize and channel the exercise of public power within
a community and thus an issue the EU is also confronted with. Against
this background, it can be concluded that republicanism is far from being
intrinsically tied to the nation state and, quite to the contrary, appears to
84
See e.g., A. von Bogdandy, Zur bertragbarkeit staatsrechtlicher Figuren auf die Euro-
pische UnionVom Nutzen der Gestaltidee supranationaler Fderalismus anhand des
Demokratieprinzips, in: M. Brenner et al. (eds), Der Staat des GrundgesetzesKonti-
nuitt und Wandel: Festschrift fr Peter Badura zum siebzigsten Geburtstag (Tbingen:
Mohr Siebeck, 2004), pp. 10331052, at p. 1034; R. Wahl, Erklren staatstheoretische
Leitbegriffe die Europische Union?, in: H. Dreier (ed), Rechtsund staatstheoretische
Schlsselbegriffe: Legitimitt-Reprsentation-Freiheit. Symposium fr Hasso Hofmann zum
70. Geburtstag (Berlin: Duncker & Humblot, 2005), pp. 113149, at p. 125; MacCor-
mick, supra, note 69, at p. 142.
85
von Bogdandy, supra, note 67, at 927 (emphasis in the original).
86
See e.g., S. Collignon, The European RepublicReections on the Political Economy of a
Future Constitution (London: Federal Trust for Education and Research, 2003), at pp. 15
et seq., who envisions the creation of a European federal state, see thereto von Bogdandy,
supra, note 67, at 927.
131
be particularly well-suited for such dissociation from the etatist grasp.
87

Therefore, the approach of transferring the republican principle to the EU
is rather less than other principles subject to the criticism brought forward
against the transfer-approach in general, namely the persevering touch
of stateness connected with it and the resulting inherent riskevidenced
for example by the trap of decit talkof foreclosing appropriate solu-
tions for the EU by applying anachronistic, etatistic categories to the dif-
ferent structural circumstances at the supranational level.
88
By largely avoiding the dogmatic dilemmas connected with the exist-
ing sui generisand transfer-approaches, the particular undertaking of
applying republicanism as a normative guiding principle to the EU can con-
sequently be regarded as advantageous and worthwhile.
IV. TOWARDS THE REPUBLICANISATION OF THE EU
The characterization of Europe as a special area of human hope in
the preamble to the 2004 Treaty Establishing a Constitution for Europe has
already been interpreted in the legal literature as a pretentious understanding
of the EU as a chosen community. Yet, prior to and in order to seriously
envisage itself as the best chance for realization of the hopes of not merely
Europeans but of humankind as a whole,
89
the EU is currently rst and
foremost in need of adopting a coherent and promising strategy for the
creation of a European polity. Against this background, it is argued that
resort should be had to one of the oldest political and normative principles
developed on this continent: republicanism. In view of its conceptual con-
tent far from referring only to the cessation of dynastic and monarchic forms
of government, the republican principle has always stood for a free political
order in which civil servants feel responsible for the common goodthe res
publica Europeaand citizens are encouraged to actively take part in public
87
88
Shaw and Wiener, supra, note 65, at 2 and 6; see also, e.g., Schuppert, supra, note 65,
at p. 250; A. Hurrelmann, Integration und europische Verfassung: Zur Eignung der
Integrationslehre als Theorie eines supranationalen Konstitutionalismus, in: R. Lhotta
(ed), Die Integration des modernen Staates, (Baden-Baden: Nomos, 2005), pp. 163189,
at p. 163.
89
von Bogdandy, supra, note 21, at 306; see also S. Puntscher Riekmann and W. Wessels,
European Constitutionalism at the Crossroad, in: S. Puntscher Riekmann &
W. Wessels (eds), The Making of a European Constitution (Wiesbaden: VS Verlag fr
Sozialwissenschaften, 2006), pp. 731, at p. 13: ambitious, if pathetic missions.
132
affairs. A republicanisation of the EU would rightly convey the notion of a
community in which public power is exercised under participation of, as well
as with due regard for the legal subjects and thus worthy of being accepted
and actively supported by the peoples of Europe.
Thereby, the suggested approach of republicanising the project of Euro-
pean integration is not intrinsically tied to the future fate of the Constitu-
tion. Taking into account the above made observations that republicanism
can nd its normative basis in the principle of liberty enshrined in Article 6
(1) EU as well as in the fact that the Unions supranational legal order dis-
plays a number of republican characteristics already, an application of the
republican principle to the EU is equally possible on the basis of the existing
treaties. Nevertheless, there undeniably exists a close connection between
a republicanisation of the present EU and the future Constitution. Since
republicanism is not an end in itself, but is intended to serve as a normative
guiding principle and thus a means for the overarching purpose of creating
a European polity, the realization of this goal could very well give rise to
the European constitutional moment as it regains new strength and more
sustainable momentum, and ultimately lead to the entry into force of the
Constitution.
It might be appropriate to recall that the Chinese character for cri-
sis comprises of the words for danger and opportunity. Although the
EUs ability to rebound from crisis is part of its history,
90
the danger of
a setback in the process of European integration can only be offset by an
open-minded and innovative re-evaluation of the current situation. In this
context, the present contribution was intended to suggest and give reasons
why the republican principle is a possible and plausible new answer to the
old question which is once again topical: Quo vadis, Europe?
90
Weiler, supra, note 14, at p. 262.
THE FUTURE OF FEDERALISM IN THE
EUROPEAN UNION
Alberta Sbragia
There is no need to emphasize that the European Union is in many
ways sui generis. It is clearly unlike any of the national systems which social
scientists study. Similarly, it is well known that the EU is unlike any other
international or regional organization with which we are familiar. The EU
is made up of 1) very distinctive institutions and 2) Member States which
are simultaneously members of the Union and of other organizations.
It governs without having its own government, but the governments of
its Member States cannot govern at home independently of the European
Union.
The Union is complex and institutionalized enough that within politi-
cal science it is studied by both students of international relations and stu-
dents of comparative politics. It is also analyzed by historians, organization
theorists, sociologists, economists, policy analysts, lawyers, political econ-
omists, and increasingly by anthropologists. Given that Europe invented
the nation-state, its current experiment with regional governance without
regional government is of worldwide importance to both the scholarly and
policy communities.
Although the last fteen years or so have seen the emergence of new
regional economic organizationsNAFTA being the most prominent and
the most importantnone are like the EU. Scholars have thus debated the
best way to approach understanding the process of European integration and
especially its distinctive decision-making and institutional arrangements.
Federalism is one of the oldest lenses through which to view the process
of European integration. The federal visionto use the expression coined
134
by Kalypso Nicolaidis and Robert Howsehas been used by activists in
the movement toward European integration as well as by scholars who have
analyzed the process of integration.
1
Both groups have seen the federal type
characteristics of the EU as manifested in the European Parliaments ever
expanding powers, the key role played by the European Court of Justice,
the importance of the European Commission as a policy entrepreneur and
policy initiator, and the extraordinary existence of a single central bank and a
common currency. The policy areas falling under Pillar One were the bread
and butter of many scholars working within this tradition. What scholars
of the EU term supranational is viewed as federal like by scholars of
federalism.
The federal vision has been viewed as in opposition to the intergov-
ernmental perspective, which is institutionally represented in the European
Council and also the Council of Ministers. Those working within that inter-
governmental tradition have focused their attention on the intergovernmen-
tal conferences which lead to treaty revision, the institutions representing the
Member States, the role of the Member States in the decision making process
and the policy areas falling under Justice and Home Affairs and the Com-
mon Foreign and Security policy. Intergovernmentalists view the Member
States as holding the keys to European integration, whereas those in the fed-
eral tradition tend to view the existence and power of multiple supranational
institutions as evidence that the international organization born in 1958 has
left its intergovernmentalist anchor.
Scholars interested in examining the federal like characteristics of the
Union, therefore, focus their attention on the policy areas and policymaking
institutions which are central to Pillar One. Using that optic, they tend to
see the EU as a semi polity. The existence of a common trade policy and a
common currency alongside the implementation of the Single Market and a
common monetary policy underpins the argument that the evolution of the
EU can be compared to the evolution of existing federations. David McKay,
for example, argues that the post-Maastricht EU has developed into a spe-
cies of federal state.
2
1
K. Nicolaidis and R. Howse (eds.), The Federal Vision: Legitimacy and Levels of Gover-
nance in the United States and the European Union (Oxford: Oxford University Press
2001).
2
D. McKay. 2001. Designing Europe: Comparative Lessons from the Federal Experience
(Oxford: Oxford University Press 2001), at p. 6.
135
THE FUTURE OF FEDERALISM IN THE EUROPEAN UNION
The EU of course does not always make it easy for those wishing to
argue that the EU is some kind of federal entity. The reality that, for exam-
ple, the EU has been unable to agree on a EU-wide patent is a problem.
Viewed in a comparative perspective, the refusal by the Council of Ministers
to approve the EU patent, prposed by the Commission in 2000 as part of
the Lisbon process, is striking. If we compare that to the USs experience, the
rejection is particularly noteworthy. The Philadelphia Convention explicitly
authorized the federal government to protect new inventions, and the rst
US patent statute became law in 1790, even before the US had a 13
th
state.
In fact, the rst patent was approved by the Secretary of State, the Secretary
of War, and the Attorney General who sat in dignity to approve it. During
the American Civil War, the Confederate government authorized the setting
up of a patent ofce even before the states of Virginia and Tennessee seceded
from the Union.
What kind of organization is it that cannot agree to such an important
instrument in the economic eld, precisely that area in which the EUs pow-
ers and therefore its federal-like characteristics are strongest? And of course
the fact that no one is even discussing a European stamp has to give one
pause to reectapparently, one can have a common currency but not a
common stamp or a common patent. There are problems on another level as
wella lack of legitimacy adds to the much-discussed democratic decit.
For analysts interested in emphasizing the federal-like characteristics of
the Union, however, all such problems are indications that the Union is
a semi-polity, an entity which has not yet transformed itself into a com-
plete polity. Viewed from the federalists perspective, the EU is still evolving
toward a more extensively supranational institutional structure. In spite of
its decits, the current state of the EU can be viewed as exhibiting signicant
federal-type arrangements.
Although the focus of federalist scholarship is on the supranational char-
acter of the Union, the fact that the Member States play a key role in the
Union is not surprising. Federalism can easily incorporate subcentral gov-
ernments as important actors at the center. Thus, the importance of inter-
governmentalism and the acknowledgement that the Member States play a
key role in the decision-making process is not a problem from the federalist
perspective because the Member States are constrained by an independent
European Commission, an independent European Parliament, and an inde-
pendent European Court of Justice. For federalist scholarship, the co-exis-
tence of supranationalism and intergovernmentalism is to be expected and
136
in fact provides a marker which identies the EU as a subject suitable for
study through the lens of federalism.
Nonetheless, just as activists in the federal tradition wanted to diminish
to the extent possible the role of the Member States, it is the existence of the
supranational feature of the Union that attracts scholars working in this tra-
dition. That supranational character means that institutions exist which are
independent from the control of the Member States. The existence of such
independent institutions-which interact with the Member States-leads
to a balancing act between the representation of the national or territorial
interest and the representation of the European or functional interest. It is
that balancing act which makes federalism such a useful analytic lens by
which to study the Union.
3
One of the key reasons why scholars interested in federalism pay so
much attention to the autonomy of institutions from the Member States
is the traditional distinction between confederations and federations. Con-
federations have traditionally been viewed as institutional arrangements in
which Member States retain a great deal of control over the demarcation of
competences between the Member States and the institutions of the confed-
eracy as well as over the content of policy decisions.
Although confederations differ in important ways from traditional mul-
tilateral institutions, they are typically compared to federations rather than
to traditional international organizations. EU scholars have tended to equate
confederal with intergovernmental. In fact, although the difference
between a confederal model of governance and a strictly intergovernmental
one as recognized in the world of international relations is an important one,
it has been under-studied.
4
The dynamics of inter-state bargaining among
the EU Member States when they negotiated conventions such as the Schen-
gen Agreement and the Dublin Convention on the Country of First Asylum
would be interesting to study, for example.
Federations, for their part, have been viewed as arrangements in which the
important decision-making role of constituent units is offset by important pol-
icy-making institutions which are not under the control of those constituent
units. Such institutions include the judiciary and those legislative institutions
3
A. Sbragia. Summer 1993. The European Community: A Balancing Act, 23 Publius:
The Journal of Federalism, 2338.
4
F. K. Lister, The European Union, the United Nations, and the Revival of Confederal Gov-
ernance (Westport, Conn: Greenwood 1996).
137
representing the electorate rather than representing territory. Furthermore,
constitutional amendments in a federation do not usually require unanimous
acceptance by the constituent states. In the legal realm, confederations as tra-
ditionally conceptualized differ from federations in that laws adopted by the
confederation do not have direct effect. Direct effect applies to federations but
not confederations.
The distinction between a federation, a confederation, and a strictly
international/multilateral grouping has in fact not played an important role
in recent analyses of the EU. Generally, scholars of federalism have paid
surprisingly little attention to the non-supranational but federalisti.e. con-
federal-aspects of the Union. That is probably due to the fact that most
confederations historically were primarily security rather than economic con-
federations. Furthermore, they often did not last very long, as was the case in
the United States. The example of the American Confederation which was
replaced by the American federation, and the replacement of the Articles
of Confederation by the US Constitution suggested that confederation is
something essentially unsustainable, an arrangement that cannot work over
long periods of time.
Yet one may ask whether this traditional lack of interest in confedera-
tions may prevent us from understanding the structural impact of the Treaty
establishing a Constitution for Europe. It may be that it leads us to misin-
terpret the direction in which the Union is actually evolving. The argument
I would like to make is that we begin to include a serious consideration of
confederalism whenever we discuss federalism in the EU.
Daniel Elazar is the scholar who probably did more than anyone else to
put federalism as a topic of inquiry on the map of the Anglophone world.
He viewed federalism as belonging to both confederations and federations.
Federalism in Elazars view is different from the institutionalized state struc-
ture found in a traditional federal state such as Canada or the United States.
It is an institutionalized combination of self rule and shared rule,
5
the
essential component being the very co-existence of self rule and shared
rule. That conceptualization, in turn, would include both confederations
and federations.
If applied to the EU, such a denition would not necessarily make
a major distinction between shared rule arrived at via the Community
methodinvolving the Commission, the Parliament, and the European
5
D. J. Elazar. 1995. Federalism: An Overview (Pretoria: HSRC Publishers 1995), p. 2.
138
Court of Justiceand the intergovernmental methodinvolving the Coun-
cil of Ministers and the European Council. Shared rule is shared ruleit can
be achieved either through a supranational arrangement such as that found
in Pillar One or through a much more confederal arrangement. In this con-
federal model, governments would collectively rule each otherproducing
shared ruleby accepting as binding the decisions of a supermajority of the
governments comprising the collectivity. No supranational element would
be involved at all, and yet we would nd shared rule with self rule.
THE CONSTITUTIONAL TREATY
The Constitution for Europe is designed to expand the range of
shared rule. I would argue that the Constitutional Treaty, if ratied and
put into place, would be a turning point in the history of the Union because
it changes the nature of the balancing act I spoke of earlier. The Constitu-
tion, to put it simply, institutionalizes two models of shared rule, recong-
ures the balance among the institutions within both models, and tries to
establish a bridge between the two models. Thus, it institutionalizes both the
supranational and the confederal models and in so doing changes the balance
between the two, reshapes the inter-institutional relationships within each
model, and tries to provide some kind of over-all coherence and the capacity
to act strategically in the international system.
The supranational and confederal models created by the Constitution
for Europe would both be somewhat different from those which have been
traditionally conceptualized. The EU would be a double hybrida strong
federal-type arrangement which lacks a federal government, on the one hand,
and, on the other, a confederal type arrangement with a comparatively strong
political center but a relatively small institutional apparatus. The federal
type arrangement, la Pillar One, would have strong institutions but no
real political center, whereas the confederal model would have a relatively
strong center but undeveloped institutions.
The Constitutional Treaty clearly retains supranationality within what
is customarily called Pillar One and extends at least some elements of supra-
nationality to the area of Justice and Home Affairs. It institutionalizes a
confederal model in the area of the Common Foreign and Security Policy
and keeps some elements of Justice and Home Affairs in that model. The
area of Justice and Home Affairs is rendered complex precisely because it is
affected by both models.
139
The institutionalization of the confederal model is indicated by the
Constitutions acknowledgement of what has been clear for some time. As
Youri Devuyst has recently argued, since the 1990s, the Commissions role
as the engine of the European integration process has been gradually over-
taken by the European Council.
6
That fact is reected in the Constitution,
which recognizes the European Council as an EU institution and gives it
a strategic role in the area of Justice and Home Affairs even though the
Commissions role in that area is enhanced. In fact, the Constitution, by
recognizing the key role of the European Council vis--vis all other institu-
tions, acknowledges that the supranational dimension of the Union actually
incorporates a strong dose of confederalism. That same confederalism is also
evident in the tiny budget granted to the Union.
The decision to give the Union as a whole a legal personality also insti-
tutionalizes the confederal model and moves the Member States away from
a strictly intergovernmental model. For example, the role of Member States
in international organizations is to be much more coordinated and the EU
Foreign Minister is to be kept informed about relevant activities.
7
In general,
the Constitution for Europe moves the whole area of Foreign and Security
Policy toward a more confederal model.
The same holds true for the proposal that the European Council elect
a President by qualied majority. If this happens, the President of the Euro-
pean Council may become the key political gure within the Union. Simi-
larly, the appointment of the Union Minister for Foreign Affairs by the
European Council, again by qualied majority, strengthens the confederal
nature of the European Council and institutionalizes the European Councils
role in Pillar One as well as in the confederal model.
Within the supranational model, the Constitution for Europe entails a
rebalancing of the power of the European institutions. The European Parlia-
ment, is the main winner, for the use of the co-decision procedure is expanded
and the Parliament would have the nal say on the budget. The role of the
Commission shifts as the Parliament becomes a key decision-maker across a
broad range of areas, including the common commercial policy.
6
Y. Devuyst, EU Decision-Making after the Treaty Establishing a Constitution for Europe
(unpublished manuscript, May 2004), p. 8
7
S. Duke, The Convention, the draft Constitution and External Relations: Effects and
Implications for the EU and its International Role. European Institute of Public Admin-
istration, Working Paper No. 2003/W/2, 7.
140
In general, the territorial dimension of the Commission is re-empha-
sized, because the small Member States wanted to be able to appoint a
Commissioner. Although formally Commissioners take no mandate from
any government and represent the European interest, for many national
governments their Commissioner has been at least a source of informa-
tion and, in extreme cases, a lobbyist. The debate over Commissioners has
reafrmed both how important the Commission remains to the suprana-
tional enterprise and how intertwined it is with the representation of ter-
ritorial interest. Given the increased powers of the Commission President
vis--vis the rest of the College of Commissioners, the nationality of the
Commission President is likely to be seen as even more salient in the future
than it has been in the past.
Finally, a rebalancing is also occurring within the Council of Minis-
ters. First of all, the small states have a less advantageous position than they
had previously, pre-Nice or even post-Nice.
8
The traditional afrmative
action for small states, which made the EU so unique, will be signicantly
diluted. Along the same lines, the Foreign Affairs Council will be exception-
ally important, as it will be chaired by the Union Minister for Foreign Affairs
rather than the rotating Presidency chairing the other sectoral Councils. It is
likely to become the preeminent Council.
One of the most interesting aspects of the Constitution as it goes about
rebalancing both the federal and confederal models and the relationships
within each model is that it tries to construct links between the two models.
A key gure in that linkage attempt will be the Union Minister for Foreign
Affairs. Although a representative of the Commission has always been present
at Council meetings, the Council has never been institutionally represented
within the Commission. That changes under the Constitutional Treaty, as
the Union Minister for Foreign Affairs, to be appointed by the European
Council, will simultaneously chair the Foreign Affairs Council and serve
as Vice-President of the Commission. The European Council, deciding by
qualied majority, will act in its most confederal mode when it appoints the
Foreign Affairs Minister. The Minister, for his part, will straddle both sides
of the federal/confederal divide.
The European External Action Service provides a second link between
the federal and confederal models. Although the Constitutional Treaty does
not contain much detail on this matter, it is clear that the members of the
8
A. Sbragia. July 2000. The Treaty of Nice, Institutional Balance, and Uncertainty, 15
Governance, No. 3.
141
Service will come from both the Commission and the Council as well as
incorporate national ofcials. The formation of the Service is bound to give
rise to a great many turf battles.
9
It is also true, however, that creating an
EU diplomatic service would link the two modelsat least outside of the
European Union itself.
The Constitution thus seems to deepen and extend the reach of federal-
ism within the Union. The supranational model is enhanced, while insti-
tutional relationships are rebalanced within it. Simultaneously, the various
intergovernmental types of relationships which the Member States pursued
outside of Pillar One and outside the Union are being pulled together in
what would be a recognizable confederal model. Federalismunderstood
as shared ruleis evident in both Pillar One and Pillar Two.
Does the Constitution for Europe represent a step toward a federation as
traditionally dened? No. Is it a step toward a deeper and more sophisticated
form of shared rule? Yes. Is it a step toward a government as traditionally
dened in a federal state? No. Is it a step toward more governance under-
stood as more shared rule? Yes. It is precisely because the degree of shared
rule is going to be deepened and made more intrusive that the issue of
representation is so critical. It is precisely because of the expanded range of
shared rule that the issues of voting weights in the Council of Ministers and
national representation in the Commission are so critical. Andrew Moravc-
sik
10
has been arguing that the EU has come to a plateau. I do not agree. I
would argue that shared rule is going to deepen, which is why the conict
over representation is so visceral and so very difcult.
I would expect the confederal model to emerge even if the Constitu-
tional Treaty is not ratied or is substantially changed. The model will be
patchier and perhaps develop less slowly than it otherwise would have, but
the chances are quite high that the Member States will begin to act in a con-
federal manner in the area of Foreign and Security Policy. The supranational
model within the Union would remain largely as it is, but the confederal
model would keep evolving.
9
S. Duke, The Convention, the draft Constitution and External Relations: Effects and
Implications for the EU and its International Role. European Institute of Public Admin-
istration, Working Paper No. 2003/W/2, 7 and 9.
10
A. Moravcik, The European Constitutional Compromise and the Neofunctionalist
Legacy, 12 Journal of European Public Policy (April 2005), 349386.
142
External events will force that. The new enlarged Union now lives in a
different geopolitical world than it did before May 2004. The Caucasuses
and Central Asia rather than Eastern Europe are now its neighbourhood. Its
regional system is now a different kind of place.
In conclusion, I am arguing that discussions of federalism in the Euro-
pean Union need to incorporate serious analyses of the confederal form
of governance. The process of writing a constitutional treaty has, perhaps
ironically, served as a catalyst for a signicant movement on the part of the
EUs Member States toward a greater degree of shared rule outside the
supranational model. I believe that a deeper form of shared rule will develop,
even if the Constitution for Europe itself is not ratied. The EU therefore
would become a more balanced entitythe balance being between a federal
type or supranational arrangement, on the one hand, and a confederal or
shared rule arrangement on the other. Federalism, dened as the combina-
tion of shared rule and self rule, is thus alive and well in Europe and will
continue to shape the future of Europes citizens.
EUROPEAN CONSTITUTION-BUILDING
THROUGH A BASIC LAW AND
DIFFERENTIATION
Matej Avbelj
I. BY WAY OF INTRODUCTION: THE FOUR CLICHS OF THE
CONSTITUTIONAL DEBATE
A chapter on the underpinnings and the fate of the Treaty establishing
a Constitution for Europe (hereinafter TCE) does not easily escape the well-
established clichs that have determined the academic debate accompanying
this very latest grand projet
1
of the European Union. It is quite natural that in
this ongoing constitutional discussion one ends up adopting either the posi-
tion of an apologist and a prophet, or the stand of a critic and a pragmatist.
Whereas the former, still captive of their constitutional enthusiasm, are already
and again looking for new ways of promoting the same idea of the TCE when
the time is ripe,
2
the latter are just standing aside proudly claiming that they
have always and in advance known that TCE would never work.
3
1
Europeans, apparently, cannot be mobilized unless a big idea or ideals are at stake:
S. Weatherill, Safeguarding the Acquis Communautaire, in T. Heukels, N. Blokker and
M. Brusweiler , The European Union after Amsterdam, (Kluwer Law International, 1998),
153178 and J.H.H. Weiler, Fin-de-Sicle Europe, in R. Dehousse (ed), Europe After
Maastricht, An ever closer Union?, (Munchen, 1994), pp. 203216.
2
German Chancellor Angela Merkel seems to be the most rm proponent of the TCE:
Europe needs the constitution . . . [we] should not give up the constitutional treaty, www.
theparliament.com, last visited 24.09.2006.
3
A. Moravcsik, Europe Without Illusions; Prospect Issue 112 (July 2005), On-line at
prospectmagazine.co.uk/landing_page.php.
144
However, keeping with the clichs of any colour can not provide a solu-
tion, especially when the documentary constitutionalism has set its foot so
deeply in the EU realm. Despite the negative outcomes of the referenda in
France and in The Netherlands, which assisted the TCE slipping into the
quick sands, the latter is nevertheless a legal reality. It was signed by all the
Member States and it was (at the time of writing) ratied by fteen of them.
While the TCE, naturally, can not be saved by pulling itself up by its own
bootstraps and whilst it neither will disappear as a bad dream, something
will need to be undertaken in order to crack this constitutional stalemate.
The question is what, how and why.
To adequately answer this question, the Rubicon of the aforementioned
clichs will need to be crossed, not for the purpose of avoiding them, but
rather to take them all seriously. This is indispensable since emphasizing
just one side of the coin inevitably distorts the full understanding of EU
constitutional debate. In the development of our argument throughout this
chapter we will therefore need to wear a multi-layered hat of the constitu-
tional apologist, prophet, critic and pragmatist in the following way.
We will rst adopt the apologists approach when arguing that the adop-
tion of the legal document of the constitutional nature in the EU is nor-
matively desirable. However, it will be then claimed, in a critical vein, that
not any legal document of the (putative) constitutional nature passes the
threshold of normative desirability and that consequently, perhaps, even the
TCE is not the optimal solution. As a result a better solution, potentially
replacing the present TCE, will be contemplated and in a slightly prophetic
manner a sketch of differentiated constitutional solution will be offered as a
potential key for breaking the present deadlock. Finally, all these arguments
will be synthesised in a broader theoretical groundingtheory of substantive
constitutionalismthat will weaken the fears of those who see differentia-
tion not solely as a pragmatic move par excellence, but in the light of the
prevailing unity dogma even as a heresy.
4
II. IN DEFENCE OF THE EUROPEAN CONSTITUTION
The nature of the present TCE has been rmly disputed since its very
conception. The stakes among the academics were ostensibly high when they
were arguing that TCE is either a constitution or merely another international
4
Ph. Allot, Epilogue: Europe and the dream of reason, in J.H.H. Weiler and M. Wind
eds), European Constitutionalism beyond the State, (Cambridge 2003), at p. 202.
145
BASIC LAW AND DIFFERENTIATION
treaty.
5
This skewed debate shows that the majority of legal academia was
caught in the vicious circle of a bipolar thinking following which the legal
realm is split between the states and the international organizations derived
from the states.
6
Pursuant to this logic affected by an invisible touch of state-
ness,
7
there is no third possibility and, for that reason the EU should be treated
either as a state or as an international organization. However, with the emer-
gence of numerous entities beyond the state, on the supranational and interna-
tional level, this either/or thinking proved to be fundamentally inadequate and
a pressing need for a more nuanced multi-dimensional approach emerged.
8

The latter escapes the bipolar vicious circle and permits the comprehension
that states are not the sole entities with a constitution and that consequently
not all constitutions have to have statist characteristics. In short, wearing the
multi-dimensional lenses, constitutionalism does not appear to be solely or
intrinsically a state-based phenomenon.
Therefore there should, in principle, be no conceptual problem for
the EU to adopt a document of the constitutional nature. However, not
everybody would be sharing this view. Even among the pro-constitutional
EU legal academia the process of creating a constitutional document prop-
erly so called was, by and large, received with a greater or lesser degree of
reluctance. The roots of this reluctance are, however, hardly justiable.
It was namely precisely this legal academia that has been most fervently
defending the constitutionalisation of the EU legal order by the European
Court of Justice.
9
The latter has in the shade of at least tacit acquiescence
5
The literature is vast, inter alia, J.H.H. Weiler, A Constitution for Europe?: Some Hard
Choices, in J.H.H. Weiler (ed), Integration in an Expanding European Union: Reassessing
the Fundamentals (Blackwell Publishing, 2002); D. Grimm, Integration by Consti-
tution, 3 International Journal of Constitutional Law (2005), 193210; J. Habermas,
Why Europe Needs a Constitution, 11 New Left Review (2001), pp. 526.
6
T. Cristiansen, Towards Statehood? The EUs move towards Constitutionalisation and
Territorialisation, ARENA Working Paper 21, August 2005, arena.uio.no.
7
J. Shaw and A. Wiener, The Paradox of the European Polity, in M. Green Cowles
and M. Smith (eds), State of the European Union 5: Risks, Reforms, Resistance and Revival
(Oxford OUP, 2000).
8
N. Walker, Sovereignty and Differentiated Integration in the European Union, in
Bankowski, Scott (eds), The European Union and its Order, (Blackwell publishers 2000),
at p. 3233.
9
The literature is vast and with some exceptions the constitutionalisation by the Court and
consequent consideration of EU legal order as a self-contained or autonomous legal order is
taken almost for granted. B. Simma,, Self-Contained Regimes, 16 Netherlands Yearbook of
146
on the side of the Member States
10
rst declared the European Communi-
ties as constituting a special, autonomous legal order, created not solely
for the benets of the Member States but also of their citizens,
11
and it has
a few years later even proclaimed the founding treaties as a constitutional
charter of the Communities.
12
This constitutional language of the Court
was applauded by the majority of the EU legal scholars who pursued it
even further and soon spoke of EU as of a self-evident constitutional legal
order.
13
And yet when the EU constitutional ball was rolled far enough
and when the constitutional idea started taking roots also among the poli-
ticians, in other words, when the constitutional parlance was about to
take a real shape and a genuine EU constitutional charter bearing this
name was to be adopted, the old proponents started to hesitate or even
pulled back. As if they were astonished by the development, they found
the Constitution unexpected
14
and feared that the constitutional toler-
ance allegedly pervading the present non-documented EU constitutional
structure would be railroaded by a new document explicitly carrying the
name Constitution.
15
Nevertheless, the fears of documentary constitutionalism are in our
view unfounded as long as we are aware that the EU is not a state and
that it is not destined to become one and that consequently the kind of a
constitutional document to be adopted is not going to be a constitution
of a state. Sharing this awareness and paying attention to the pitfalls of the
problem of constitutional translation between the statist and supranational
International Law (1985), 123; J.H.H. Weiler, The Transformation of Europe, Yale Law
Journal (1991), at p. 2405.
10
Id.
11
Case C26/62, NV Algemene Transporten Expeditie Onderneming van Gend & Loos v
Netherlands Inland Revenue Administration, [1963] ECR 1.
12
Case C294/83, Les Verts, [19864] ECR at 1365 and Opinion 1/91 [1991] ECR
I6079.
13
Deirdre Curtin, hence, claimed in 1995 that virtually right across the ideological spec-
trum there is agreement on the fact that further amendments to the EU must take the
format of a Constitution. See D. Curtin, The Shaping of a European Constitution and
the 1996 IGC: Flexibility as a Key Paradigm?, 50 Aussenwirtschaft (1995), 237251.
14
G. de Burca, The European Constitution Project after the Referenda, 13 Constellations
(2006), 205217.
15
J.H.H. Weiler, In Defence of the Status Quo: Europes Constitutional Sonderweg, in
J.H.H. Weiler and M. Wind (eds), European Constitutionalism beyond the State, (Cam-
bridge 2003), pp. 723, at p. 13.
147
environment,
16
the adoption of a document of the constitutional nature
in the EU should be seen as an advantage to the presently existing murky
constitutional structure.
17
There is, therefore, no reason not to replace the existing founding trea-
ties by a veritable document of the constitutional nature. On the contrary,
there are pressing needs from the perspective of legitimacy and transparency
of the EU legal order to adopt a kind of document that would replace the
presently existing instruments of international law that gure as a constitu-
tional charter solely within a quite narrow professional legal and political
community. The argument of democracy speaks in favour of recognizing
the transformation of the nature of the EU legal order in the constitutional
legal order, in a more representative, documented and less academic and
Court-driven manner.
Beside these arguments stemming from democracy and legitimacy there
are three other compelling reasons, namely sociological, legal and conceptual,
that speak in favour of adopting a document of the constitutional nature on
the EU level. In sociological terms the constitution plays a very important
role in society, thanks to its dual nature. It is, in a formal sense, the supreme
legal act, whereas substantively it embodies the most fundamental values
of a particular, constitutionally regulated society. These values, which are
usually an expression of a degree of consensus in the society, are awarded a
special status when they are enshrined in a written constitution. In that way
they are not just elevated on a higher scale of importance, but they are also
provided with constitutional protection. This offers them stability as they are
remote from every-day political turf wars. Through the process of socializa-
tion the citizens in the constitutionally regulated society implicitly, nolens
volens, internalize these values and ascribe to them a special importance, even
without knowing the precise text of the constitution. Hence the key con-
stitutional elements such as the state, the separation of powers, democracy,
principle of equality, protection of fundamental human rights etc., become
part of the shared common sense of the society.
16
N. Walker, Postnational Constitutionalism and the Problem of Translation, in
J.H.H. Weiler and M. Wind (eds), European Constitutionalism beyond the State,
pp. 2754, at p. 27.
17
The word murky is sometimes used for designating a non-transparent nature of
EU constitutionalism and it is not meant as an appeal towards greater homogeneity
or constitutional monism of the state type. Similarly, N. Krisch, Europes Constitu-
tional Monstrosity, Review of Weiler, Wind: CBS, 25 Oxford Journal of Legal Studies
(2005), 321334.
148
Additionally and thanks to the abstract nature of the constitutional
provisions every member of the society can nd at least a part of his or her
own-political-self in the constitution, which makes the latter a unique legal
instrument that provides for the foundation, for the starting point of the
more specic politics implementing therein set constitutional values. From
this perspective the constitution plays an important cohesive role in the
society, at least in states. But, even beyond the state, in the EU, a document
of constitutional nature can instigate a far stronger effect of cohesion than
any international treaty on which the EU is presently based.
18
This is so due
to the prevailing understanding of international law as foreign law, which
as such generates much less a habit of obedience
19
than domestic (especially
constitutional) law.
The latter argument already feeds into the legal and conceptual rea-
sons in favour of adopting a legal act of the constitutional nature. A writ-
ten document of this kind has, of course, an advantage of legal certainty
and transparency, but its distinctio specica is certainly the requirement of
interpretation. One might oppose that already the existing EU founding
treaties require interpretation and that the European Court of Justice has
invested a lot of effort in that regard. Yet precisely here lies the biggest
drawback of the judicially constitutionalised treaties as opposed to a
genuine document of constitutional nature. First of all, this constitution-
alisation by the Court has been an easy target of critics that have pointed
to the Courts epistemic limits
20
and to the, from this viewpoint, over-
zealous character of its jurisprudence.
21
Secondly, this led to a specic
judicial character of the constitutional discourse limited to the relation-
ship between the ECJ and national courts
22
with a consequent exclusion
of the general public, which prevented a development of the inclusive
18
M. Avbelj, Constitution for Europe: Remedy or Exacerbation of European Democratic De-
cit. Heinrich-Bll Stiftung, Zagreb, forthcoming.
19
M.L. Jones, The Legal Nature of the European Community: A Jurisprudential Analysis
Using H.L.A. Harts Model of Law and a Legal System, 17 Cornell International Law
Journal (1984), 160.
20
M. Avbelj, European Court of Justice and the Question of Value Choices: Fundamental
Human Rights as an Exception to the Freedom of Movements of Goods. Jean Monnet
Working Paper No.06/04, jeanmonnetprogram.org/papers/04/040601.html.
21
H. Rasmussen, The European Court of Justice (Copenhagen, GadJura, 1998).
22
A. Slaughter, A. Stone Sweet and J.H.H. Weiler, The European Court of Justice and
National CourtsDoctrine and Jurisprudence, (Oxford, Hart Publishing, 2000).
149
nature of constitutionalism.
23
Ultimately, the absence of a written docu-
ment of constitutional nature also prevented the Court from developing
genuine constitutional arguments; therefore, its jurisprudence has often
been only of a half-hearted constitutional nature.
24
Adoption of the writ-
ten constitutional document as a remedy to all these drawbacks should
be therefore seen as a normatively appealing solution.
Last but not least, providing the EU as a non-state entity with a con-
stitution is normatively appealing also from the conceptual perspective,
since it would practically conrm that also non-state entities can have
constitutions. This would nally disprove all those that are still trapped
in bipolar thinking and who try to square the constitutional circle by
arguing either in an EU-sceptic way that constitutions are reserved just
for the states
25
or in a pro-EU manner that with the adoption of the con-
stitution EU necessarily turns into a federal state.
26
With the adoption
of a constitutional charter by the EU none of the bipolar variants would
actually take place, rather we would be simply faced with a phenomenon
of constitutionalism beyond the state, even one materialized in form of
a written document, that would unite people across frontiers without
requiring the demise of the existing Member States and without estab-
lishing a new one. Of course, it goes without saying that the emergence
of constitutionalism beyond the state presents a formidable intellectual
challenge and demands especially from the legal academia to provide a
sound and comprehensive legal theory for its development and imple-
mentation. This is, indeed, a hard task from which we should not shy
away unless we are ready to perpetuate the current state of constitutional
under-theorisation, which might endanger the entire foundations of the
nascent EU constitutional structure beyond the state.
23
Individuals in the constitutionally regulated society have an inherent interest to articu-
late their demands and interests in constitutional terms since they are aware that in case
of success they will be protected by a supreme legal act. This practice of framing political
demands and interests into constitutional arguments in turn results in the legitimation
of the constitution as a supreme value-based document within whose ambit constitu-
tional discourse takes place.
24
Case C36/02 Omega, OJ 2004/C 300/05). For a critique of this case, see M. Avbelj,
Vrednostni in ekonomski diskurz v pravu EU, 42 Javna uprava (2006), pp. 161169.
25
Grimm supra, note 5.
26
Habermas supra, note 5.
150
III. AGAINST THE CONSTITUTIONAL TREATY
However, before we embark on the foundations of the legal theory per-
mitting a viable EU constitutional structure, we should in the light of the
foregoing discussion pass at least a provisional judgment on the normative
desirability of the TCE. In other words, we have to decide whether the TCE
is a kind of document of a constitutional nature that would provide the EU
with a necessary impetus for the future and which should consequently be
adopted as it is, without any amendments, even in the light of the presently
existing ratication crisis. Our answer to this question should be guided both
by principled reasoning and strategically pragmatic considerations.
As a matter of principled reasoning, i.e. reasoning that requires the assess-
ment of the TCE from the perspective of the optimization of advantageous
principles
27
potentially stemming from the adoption of the constitutional
document on the EU level, i.e. the aforementioned argument derived from
democracy as well as sociological, legal and conceptual reasons, the TCE
can be judged as an inadequate document of constitutional nature for the
EU. The main shortcoming of the TCE contributing to this unfavourable
judgment is its hybrid nature. Despite the wisely chosen, rather deliberative
and democratic method of the Convention complementing the bargaining
features of the traditional Intergovernmental conference (hereinafter IGC),
28

and hence responding to the lack of democracy critique, the TCE-making
debate was from its very origins contaminated by a bipolar state-constitu-
tion v. international-treaty dilemma that drove the drafters in pursuit of the
compromise between the two poles into adoption of a legal document that
is neither a treaty nor a constitution. Despite their good intention of want-
ing to satisfy everyone, the drafters mission ultimately failed. Not only did
the TCE face a collapse in two Member States, the very nature of the TCE,
even if it had come into effect without a ratication turmoil, would prevent
the realization of advantages otherwise expected to ow from a document
of constitutional nature.
First of all and most importantly, a document which is torn between
the treaty and the constitution apparently could not generate social inclu-
siveness. To the contrary, it even deepened the cleavage between those who
see the EU as a state and those who see it as an international organization,
27
R. Alexy, A Theory of Constitutional Rights (Oxford University Press, 2002).
28
P. Magnette, Deliberation or Bargaining? Coping with constitutional conicts in the
Convention on the future for Europe, in Eriksen, Fossum & Menendez (eds), Develop-
ing a Constitution for Europe, (Routledge, 2004), pp. 207225.
151
and it enabled the populists from all political extremes to monopolize the
national debate and guide the people into their short-term, politically gainful
direction by seeding the irrational fears of an alleged decline of national sov-
ereignty and of the barbarians ante portas (read: citizens of the new Member
States). Consequently, in the absence of a constitutional cohesive force, and
without the adoption of the document as such, obviously neither the legal
nor the conceptual advantages were realized by the TCE.
Secondly, it was from the very beginning at least a nave expectation
that the word Constitution alone could conceptually change the terms of
the debate and the quality of integration. It was therefore quite right to
argue that the TCE is a Constitution only in its amboyant name, while
it is in fact containing only the revised version of the Treaty of Nice.
29
Not
only can some concepts easily backreespecially the term constitution
with such a statist pedigree, merely dressing the old contents into new
over-zealously chosen words can not change anything. Much more than
wordsand the latter should be anyhow more carefully chosenwould be
needed to achieve the aspired goals of bringing the EU integration closer
to the people, of making it more transparent, democratic and internally
and externally efcient.
IV. BREAKING THE CONSTITUTIONAL STALEMATE
Much more than words, indeed theoretical thinking and strategic action,
is needed now to resolve the ratication crisis in which the EU has plunged.
As we have briey indicated at the outset of this chapter, legally and politi-
cally the current situation is quite complicated, since all the Member States
have signed the TCE and the majority has ratied it. While the minority
of the Member States is still waiting, the TCE is nevertheless a fact and the
question arises whether sufciently compelling reasons could be offered to
any of the sides either to proceed with and complete the ratication proc-
ess or, instead, to abandon the document. No decision is worse than the
other. Whereas asking the French and the Dutch voters to decide again on
the same document that they have already refused is widely thought to be
inappropriate, indecent if not even undemocratic,
30
the same holds true, and
this is often forgottenif not simply disregardedin relation to the voters
29
J.H.H. Weiler, On the Power of the Word: Europes constitutional iconography,
3 International Journal of Constitutional Law (2005), 173190, at 182.
30
de Burca, supra, note 14.
152
from the other Member States who would need to accept that a document
that they have endorsed with a strong majority will actually never come into
effect.
It again turns out that a bipolar choice, i.e. proceeding with the rati-
cation of the same TCE or abandoning its text entirely without offering
a persuasive alternative, can not produce a solution acceptable for all sides,
since their claims and expectations are clearly irreconcilable. There can, logi-
cally, never be a consensus between three sides when all have agreed on the
text, but now one side has endorsed it, the other not and the third is still
waiting. Reaching a consensus amongst a three-side disagreement is simply
inconceivable, since it is impossible to have a legal text in effect and not to
have it in effect at the same time for all the addressees. What is therefore
apparently needed is to think outside of the box.
If it is impossible to reach a consensus on the present content of the TCE
by all the Member States due to their obviously irreconcilable positions,
then we are left with two options. Aiming at reaching consensus between
the Member States, the current content of the TCE could be amended and
by reconciling what presently looks irreconcilable a new compromise might
be found between the Member States. Alternatively, it is possible to move
away from the consensual method and consequently from the TCE and to
adopt a novel document of constitutional nature, one that will recognize the
irreconcilability of the differing positions of the Member States and respond
to it by offering a differentiated constitutional agreement. While both alter-
natives share the vision that the TCE is dead and that it can not be revived as
it presently stands, there is a fundamental difference between the two options
as far as the maintenance of the consensual method is considered.
Whereas the rst option, according to which the content of the TCE
would be renegotiated to strike a new balance acceptable to all the Mem-
ber States, would preserve the consensual method by all means, the second
would present a rupture since it would insist on reaching the consent only on
the fundamental issues of the integration, whereas beyond the fundamentals
the Member States would be allowed or even encouraged to create differ-
entiated legal regimes. In other words, following the second alternative the
existing social, economic, legal and political differences among the Member
States that underlie their different, even irreconcilable, positions on the EU
integration would be given voiceinstead of being swept under the carpet
in the shadow of consensusand would translate into different legal regimes
within a common constitutional structure of the EU legal order.
153
In the next parts of this chapter we are therefore going rst to assess
the viability of the two alternatives from a theoretical perspective and then
sketch in some more details the alternative that will appear to t better
the most compelling theoretical understanding of the EUs constitutional
structure. This alternative will be nally endorsed not only as solution for
the present constitutional stalemate, but also as a viable long-term solution
for the future challenges to be faced by the European Union.
V. FROM PRACTICE TO THEORY
1. THE TCE AND THE SHORTCOMINGS OF PROCEDURAL
CONSTITUTIONALISM
Assessing both alternatives for the resolution of the European constitu-
tional crisis, especially when deciding whether to push for a new compromise
on a somewhat revised text and idea of the TCE, or to break up with the
traditionally consensual practice and replace the TCE with something com-
pletely different, rst brings back to mind the critique of the TCE outlined
in the preceding parts of this paper. At this point, however, that critique of
constitutional inadequacy of the TCE has to be reinforced by the critique of
the political practice out of which the TCE was born and whose consequent
symbol it is. Despite the fact that the adoption of the TCE was envisaged
as an endorsement of a path-breaking document, as a moment of rupture
in the history of the European integration that was supposed to bring its
indecisive past to an end and to provide the Union with a new impetus,
31

the TCE did not manage to overcome the hurdles of what we should call the
politics of incrementalism.
The latter stands for a consensual method of political bargaining char-
acterised by the practice of postponing the most sensitive and burning issues
of the EU integration underlined by hopes and commitments that once in
the future new energy and motives will be found to tackle what could not
be achieved at present. This politics of incrementalism based on a consen-
sual method was historically not just a method of ordinary day-to-day EU
politics, but it has also remained a prevalent mode of solving the constantly
reoccurring EU stalemates. The present timetable-setting-agreements by the
31
These were, inter alia, the proclaimed objectives of the Convention: Report from the Presi-
dency of the Convention to the President of the European Council, CONV 851/03.
154
European stakeholders
32
according to which the EU constitutional limbo
should be resolved by the means of further political negotiations only reaf-
rms the continuing validity and the inuence of this method.
One should certainly not overlook the fundamental role of the consen-
sual method for the development of the European Union in legal, political
and economic terms. Being characterised by an independent supranational
monopolist of legislative initiative, i.e. the Commission, accompanied with
the Member States gathered in the Council and assisted by COREPER,
whose task it is to resolve all the disputed issues beforehand so that the
wide-majority of them is later endorsed consensually, has contributed to the
construction of an entity that has managed to integrate European states by
incrementally bridging the differences that have historically torn them apart
and led them into dreadful wars.
Nevertheless, there is also a darker side of the consensual politics.
Possessing integrative capacity, since it is forcing all the participants to
audiatur at altera pars, consensus has an equally strong destructive capacity.
It is namely a mode of decision-making where either all agree, or there is
no decision. This all-or-nothing effect of consensus, which enables every
single participant to block the game for whatsoever marginal reasons, is all
the more present and destructive the more players there are
33
and in the
EU there are many, and increasingly more. The price to be paid for this
consensus-based integration is therefore getting higher and even its rm-
est advocates recognize that the consensual method was the rootcause of
an opaque system, barely legible, in which it is difcult to identify those
responsible for a decision.
34
However, this lack of transparency giving birth to various versions of
European democratic decit
35
is only one of the negative externalities. In
practice the EU has been continuously faced with reoccurring political stale-
mates and blockades due to its incapacity to reach an agreement between all
the Member States, the current constitutional asco being just one example
32
EUobserver, Merkel and Chirac set timetable for EU constitution, June 7, 2006, avail-
able at: euobserver.com/9/21782/?rk=1.
33
Weiler, supra, note 9.
34
R. Dehousse, The Unmaking of the Constitution: Lessons from the European Refer-
enda, 13 Constellations (2006), pp. 152164.
35
M. Avbelj, Can the New European Constitution Remedy the EU Democratic De-
cit?, EUMAP On-line Journal, eumap.org/journal/features/2005/demodef/avbelj/.
155
among many.
36
The EU has more generally ended up with a stagnating legal,
political and economic agenda. Already a brief look at its history reveals
almost shockingly that the entire EU debate has had a cyclical character
37

with a clear lack of a signicant progress. Hence, in the economic terms the
agship of EU integration, i.e. the common market, is still not achieved; and
all the attempts to provide the EU with new impetus through the succes-
sive intergovernmental conferences resulted only in remedying decade-old
or even older leftovers of the past.
38
Paradoxically, this unfortunate situation has not attracted much criti-
cism on the part of legal scholars and the consensual method has never been
truly questioned. On the contrary. With the sole exception of the proponents
of differentiated integration, who have gured only at the margins of the EU
debate, the consensual method has pervaded the entire theory and practice of
the EU integration. It has been portrayed as the indispensable, consensual
essence of the system.
39
This approach has thus won the support of many
scholars of EU integration and was conceptualized under the theoretical
label of procedural constitutionalism. Following von Bogdandy, procedural
constitutionalism has three main elements: (1) it aims at consensus as a result
of procedure; (2) and not at the consensus on basic values (i.e. substantive
consensus); (3) consequently, the EU has to remain a procedural system of
negotiation.
40
In this vein, the core of the EU constitutionalism is composed
of a duty to negotiate in a good fate and of a duty to listen to the arguments
of the others, which requires, as Shaw has nicely put it, tolerance of partial,
36
The most notorious example from the EC/EU history is certainly the French empty
seat policy, but the Danish refusal of the Maastricht Treaty and Irish refusal of the Nice
Treaty complement this macro-level picture.
37
W. Wallace and H. Wallace, Flying together in a larger and more diverse European
Union. Working document of the Scientic Council for Government Policy, (The
Hague, 1995), at p. 23.
38
W. Weidenfeld and J. Janning, Strategy Paper for the International Bertelsmann
Forum, in The New EuropeStrategies for Differentiated Integration (Bertelsmann
Foundation Publishers, Gtersloh 1997).
39
See Dehousse, supra, note 34. The entire consociation theory is built on the convic-
tion that EU is working just because of the consensual mode of doing politics, see
D. Chrysschocchoou, Democracy and Symbiosis in the European Union: Towards a
Confederal Consociation?, 17 West European Politics, pp. 114.
40
A. von Bogdandy, The European Union as a Supranational Federation: a Conceptual
Attempt in the Light of the Amsterdam Treaty, 27 Columbia Journal of European Law,
at p. 9: the Unions political system can only be successful if it aims at consensus as a
result of procedure (not as a premise in the sense of a basic consensus on values!).
156
fragmented and interim outcomes, formulated in the knowledge that the
dialogue will continue.
41
However, the proponents of procedural constitutionalism, based on the
discursive practice,
42
overestimate the practical viability of their approach,
if they have not committed a category error. Omitting the substantive basis
of their procedural enterprise by explicitly excluding the consensus on basic
values from their focus, procedural constitutionalism is overlooking that
even in the case when the practice of negotiation seems to be the only viable
means for policy-making in such a polity as diverse as the EU, the negotia-
tors have to have a more or less rm value laden oor under their feet. There
can be no negotiation without a broad initial consensus on the basic values,
and procedural constitutionalists themselves even operate on a value basis,
namely, the belief in the sufciency of the mere procedure for the success of
the EU project.
At this point the miscalculations and the shortcoming of the procedur-
alist approach become most visible. It turns out that a merely procedural
imperative to negotiate in a good faith and to decide by consensus can not
sustain a viable EU legal, economic and political integration.
It so happens that the political practice increasingly appropriates the
mode of package-deals containing what we could call quid pro quo incom-
pletely theorized agreements.
43
This means that the actors manage to strike
an agreement on a particular outcome yet without agreeing about the theo-
ries and reasons underlying this outcome, since the latter is (usually) only
possible after short-term trade-off for some benets in another domain of
EU activities. The best example of this is the rst of the two solutions to the
current constitutional crisis presented earlier, according to which the current
text of the TCE would be slightly renegotiated so as to achieve consensus
and in order to satisfy the interests of all the Member States. Following this
scenario the Member States that are unhappy with a given aspect of the
41
J. Shaw, Relating Constitutionalism and Flexibility in the European Union, in de
Burca and Scott, Constitutional Change in the EU, From Uniformity to Flexibility, (Hart
2000), at p. 338.
42
J. Habermas, Between Facts and Norms, (Cambridge, MIT Press, 1996).
43
The expression incompletely theorized agreement was coined by C.R. Sunstein,
Constitutional Agreements without Constitutional Theories, 13 Ratio Iuris, (2000),
117130. For the application of this approach within the EU law see M. P. Maduro,
Contrapunctual Law: Europes Constitutional Pluralism in Action, in N. Walker (ed),
Sovereignty in Transition, at p. 502.
157
TCE will in the course of the negotiations try to dilute it as much as pos-
sible before asking for concessions in another eld of EU competences, in
exchange for their positive vote. After this bartering, the consensus will even-
tually be reached and the decision taken, but the substantive questions will
remain unanswered. The consensual method with its all-or-nothing charac-
ter will never work in favour of genuine agreements on substantive questions
of integration, since its main preoccupation is not to reach an agreement but
to avoid disagreement. The consensual method and its deeper theoretical
foundation called procedural constitutionalism are therefore preoccupied
with disagreement-avoiding strategies, which typically results in the preser-
vation of the status quo.
44
2. THE THEORY OF SUBSTANTIVE CONSTITUTIONALISM
In as far as the present status quo is not really worth preserving, the the-
ory of procedural constitutionalism with all its consequences for the Union,
including the TCE, which is based on its rationale, should be departed from.
The EU is in need of a stir away from the procedural shallowness of politics
of incrementalism. It is for this reason that this chapter defends the abandon-
ment of the TCE in favour of another kind of document of constitutional
nature based on an alternative theoretical grounding, called the theory of
substantive constitutionalism.
The theory of substantive constitutionalism, as opposed to its proce-
dural counterpart, argues that there can be no EU integration without an
agreement on certain fundamental values shared by all the Member States.
45

Therefore, the main underpinnings of EU integration should be unveiled
and the overall EU discourse should be conducted in a generally transparent
and open manner. Proceduralization of the debate through the value-empty
negotiations, ad innitum, even for the sake of avoiding conicts and disa-
greement can not provide a longstanding solution. A lack of agreement will
remain a disagreement if it is hidden under the consensual carpet of nego-
tiations or not. Covering up the problems, as it happens under the politics
of incrementalism, has a tendency of aggravating the divergences instead of
44
F. Scharpf, Legitimate Diversity: The New Challenge of European Integration,
Zeitschrift fr Staats-und Europawissenschaften (2003), 3260.
45
Similar also D. Curtin, The Shaping of the European Constitution and the 1996 IGC:
Flexibility as a Key Paradigm?. Vaclav Havel in his speech to the EP, quoted in Curtin,
saying that the EU must address the issue of values in order to ll the emptiness at its
heart with a spiritual or moral or emotional dimension.
158
managing them. The mounting political problems inherent in the EU since
Maastricht conrm this trend. The theory of substantive constitutionalism
therefore argues in favour of an open debate where the main purpose would
not be to escape the veto, but rather to strike an agreement on the funda-
mentals shared by all.
Pursuant to the theory of substantive constitutionalism, the consensual
method across all the sectors of EU competences should cease to be consid-
ered an indispensable tool for integration. At the outset of European integra-
tion, when the painful memory of the belligerent past was still alive and the
overall constellation was fragile but much more homogeneous, the pursuit
of consensus was indeed the best approach since emphasising the differences
might have imperilled the entire process. Fifty years later, though, the EU
has transformed greatly in geography, size, number of Member States, and
also in quality and content of the integration.
46
Above all, the Union has
become more diverse, not just vertically along the prism of the Member
States, but also horizontally across different sectors of economic and political
activity. This diversity, which objectively exists, has to be taken into account
and has to be given voice in the overall EU constitutional construction.
The consensual method based on the theory of procedural constitutional-
ism and expressed in the form of politics of incrementalism characterised by
the bargaining practice of quid pro quo incompletely theorised agreements
is, however, doing exactly the opposite. It is trying to tame the diversities by
clothing them into the shallow consensus of all the Member States all over
the spectre of the Unions activities. This is not just politically counterpro-
ductive, since the reaching of consensus is becoming more and more dif-
cult; it is also dangerous, since by disregarding the actually existing diversity
among the Member States, which is the main reason for the internal tensions
within the EU system, the consensual method risks leading the Union on
the path of internal implosion or external explosion. If diversity is not given
its proper space, the EU might increasingly face erosion of its activities,
with more and more pressure towards differentiation, which if not properly
addressed might spill over into areas of co-operation beyond the Unions
framework, unwittingly resulting in a creeping, incremental disintegration
from the outside.
47
46
See Weiler, supra, note 9.
47
J. Shaw, The Treaty of Amsterdam: Challenges of Flexibility and Legitimacy, 4 Euro-
pean Law Journal (1998), 6386.
159
On the other hand, the theory of substantive constitutionalism does not
reject the consensual method out of hand, as it is still an important device
for the preservation of the non-hierarchical, pluralist nature of the Euro-
pean integration. Substantive constitutionalism merely seeks to moderate
the excessively procedural nature of the consensual method so as to ensure
a veritable consensus among the Member States on certain values, which
might not even be immutable or nal,
48
to tie a pluralist, diverse Europe into
some coherent whole. The theory of substantive constitutionalism proposes
a deliberative mechanism whose purpose it is to strike a fundamental consen-
sus on core issues of the integration by all the Member States, while allowing
differentiated legal regimes that could address the underlying diversities and
permit a more efcient operation of the EU legal, economic and political
structure. The aim is then to generate a two-level consensus: a general one
on the fundamental issues and a compartmentalized consensus between dif-
ferent Member States where the former would be strong enough to provide
a rm framework for the coherence of the differentiated legal systems as a
whole.
VI. FROM THEORY TO PRACTICEA CASE FOR THE BASIC LAW
OF THE EU
In the preceding paragraphs we have argued in favour of a theory of sub-
stantive constitutionalism which requires the end of the politics of incremen-
talism and the stoppage of the practice of so-called incompletely theorized
agreements. The EU under colour of procedural constitutionalism has been
avoiding the disagreement long enough. Now, the time has come to clearly
expose what on one side constitutes an agreement and what on the other side
the disagreement is all about.
49
For these reasons, this chapter also militates
against the renegotiation of the same text of the TCE with just minor correc-
tions in favour of the discontent and less content Member States. We would
therefore propose to abandon the TCE all together and to start a brand new
48
It has to be emphasised that we are not calling for a rigid separation of the core from the
periphery or for some permanent and nal denition of the Unions values and objec-
tives (a kind of Fischer type nalit). On the contrary, since this is at present as much
impossible as it is unappealing we are only stressing that some substantive consensus on
the basic values of the Union and on its vision should exist for its long-term viability.
49
Similar Weatherill, supra, note 1, at p. 177: The process of elaborating a constitutional
document which would stand apart from tinkering process of revision [ . . . ] could
serve to identify what is really central to the achievements and objectives of 50 years of
European integration.
160
constitutional process within the framework of the theory of substantive
constitutionalism. This process could be shaped in the following way.
The main purpose of this process should immediately be made clear.
The organizational form of The Convention, used in the case of the TCE
should be maintained, and the latter should clearly set out that the nal aim
of the process is to adopt a document of constitutional nature that would
replace the existing international treaties on which the Union is presently
based. It should be emphasised that the document to be adopted, while
being of constitutional nature due to the will of its founding fathers, would
not be a constitution of the state, but a constitution of the supranational
entity, different from the state and not destined to become one. Simultane-
ously, it should be stressed why the adoption of such a document is at all
necessary. Thereby, referral could be made to the democratic, sociological
and legal justications sketched in the second part of this chapter.
In order to make the argument even stronger, the document to be
adopted should not be carrying the name Constitution, due to its overly-
statist connotation, rather it should be called, the Basic Law of the European
Union borrowing those terms from the German constitutional tradition.
50

While this prudent terminological change reects the substance of the docu-
ment itself, the fears of those standing on the national side of the constitu-
tional debate would be assuaged and the over-zealous attempts of the EU
constitutional enthusiasts tamed. The vicious circle of state/international
organization bipolarity would be broken. Additionally, the proposed solu-
tion would allow harvesting the benets of having a constitution beyond
the state, as well as the integrative function of the constitution in legal and
sociological terms.
The content of the Basic Law, as already suggested by its name, would
consist of the most fundamental principles and rules of EU integration that
would be endorsed by all the Member States. This noyau communautaire,
being endorsed after a truly open, controversial and frank discourse among
the Member States, their peoples and the EU institutions bringing to the
light all the major points of agreement and disagreement, should be broad
enough to ensure long term viability, and above all the coherence of the EU
integration. The strength of the EU constitutional core, endorsed by all the
Member States, would already forecast the real nature of the EU integration
and its future development. The fundamental contours of the integration
50
D.P. Kommers, The Constitutional Jurisprudence of the Federal Republic of German,
(Duke University Press, Durham and London, 1997).
161
would then become known. They could be appreciated from the perspective
of democracy as well as from the politically-strategic perspective, since it
would immediately be clear, for instance, how much the EU is expected to
act with the consent of all the Member States, how much under the common
EU framework and how much of the action should be left to the Member
States prerogatives only.
Beyond the Basic Law of the EU the door should be opened to an
enhanced co-operation between the Member States, more widely than under
the Treaty of Nice,
51
within the common EU framework. This should take
place outside the general consensual method that would demand the partici-
pation of all the Member States. This differentiation, whose precise delinea-
tion goes beyond the scope of this chapter, would need to be seen, not as an
assault on the uniformity of the EU legal order,
52
but as a wise and timely
reaction to the real nature of the EU which is characterised by diversity and
fragmentation.
This differentiated constitution for Europe composed of the Basic Law
and the Acts providing for differentiation could present a workable solution
for the current constitutional standstill. The people in the more pro-integra-
tionist Member States, who have so far endorsed the TCE would be satised
with the adoption of the Basic Law, standing for a veritable constitutional
document of the Union, which would allow them to pursue the desired inte-
gration even further, whereas the more EU-sceptical Member States would
be also content. The Basic Law of the EU, not being a constitution of the
state, would be adopted with their consent, ensuring that their values and
interests would be heard. At the same time, this solution of a multi-tiered
EU integration would (need to) ensure that less-EU keen Member States
will not be coerced into a type of integration that they do not want and
that they equally will not stay out, or become second-class members of the
overall EU project.
VII. CONCLUSION
To help the Union to escape the present constitutional limbo, the adop-
tion of the Basic Law of the European Union as a veritable constitutional
51
For an overview see Flexibility and the Future of the European Union. A Federal Trust
Report on exible integration in the European Union, (London, 2005).
52
D. Curtin, The Constitutional Structure of the Union: A Europe of Bits and Pieces,
30 Common Market Law Review (1993), at 46.
162
document is proposed here, allowing for the subsequent adoption of the Acts
of differentiation. How realistic or how persuasive this solution actually is
and what its short-term political chances of success are,
53
is something that
only time can tell. However, it is becoming increasingly clear that the dif-
ferentiated constitutional future is something that European Union should
and probably also will inevitably face.
54
While some differences among the Member States are temporary, others
may well be permanent and insurmountable. The biggest challenge therefore
is how exactly these substantive differences underlying the Member States
should be given voice so that the entire EU structure would remain coherent
while enabling the Union to pursue its tasks more efciently. This chapter
has demonstrated that the theory of procedural constitutionalism, due to is
preoccupation with the disagreement-avoiding strategies, can not provide
the answer to this challenge. The key to the current constitutional stalemate
in the Union lies precisely in these disagreements, which should be unveiled
rst in order to understand what they are actually about. Only after having
understood the disagreements, which are to a great extent the consequence
of the legal, social, political, cultural and economic differences among the
Member States, the EU will be able to construct a proper constitutional
framework. It should be no surprise if the latter takes the form of a differen-
tiated constitution for Europe.
53
However, it seems that a similar idea of a mini-Treaty (by Sarkozy) or a slimmed-
down constitution (by Prodi) is taking roots among the national and EU political
stakeholders. EUobserver, Sep. 8 and 14, 2006.
54
In the similar vein: A.C.-G. Stubb, Categorization of Differentiated Integration, 34
Journal of Common Market Studies (1996), at 294.
THE CONSTITUTION IS DEAD,
LONG LIVE THE EUROPEAN COMMISSION
Agnieszka K. Cianciara
I. INTRODUCTION
Ever since the mid1990s, the European Commission has been relegat-
ed . . . to a tertiary role in the policymaking process
1
. De manire gnrale,
depuis la n de la Commission Delors, linuence de la Commission semble
avoir dclin rgulirement
2
. These opinions reect the conclusion of most of
the legal and political scholars, not to mention decision-makers. The diagnosis
seems to be very clear: in todays law State and politics, Commission nds
itself on a constant path of institutional and political decline. At the same
time, the institutional features of the Commission have been among the core
issues of the Convention and during the intergovernmental negotiations that
followed. The ratication process being frozen and its future uncertain, one
should perhaps cheer at least on this one point. Maybe the Constitution does
not provide an adequate response to the challenges European Union faces with
the Commission in crisis. Maybe a purely institutional and legal change could
never address the numerous deciencies that can be observed.
This chapter analyses the problem in three stages. Firstly, a status quo
analysis is being conducted in order to determine the main institutional and
political crisis factors. Among the former, the issues of the Commissions
composition, the powers of the President, the co-decision procedure and
1
D. Dinan, Ever Closer Union: an Introduction to European Integration, 3
rd
Edition,
(Palgrave Macmillan, 2005), p. 188.
2
J.-P. Jacqu, Droit institutionnel de lUnion Europenne, (Editions Dalloz, Paris, 2004),
p. 362.
164
alternatives to the Community method are discussed. As to political factors,
the 1999 resignation, the failure of the Lisbon agenda, the lack of strategic
vision and communication difculties will be dealt with. Secondly, aspects
of constitutional reform are critically examined as to their signicance and
novelty. The main hypothesis is to be developed, enhancing the weight of
political challenges, especially the value of leadership, public opinion or
intergovernmentalization of European politics. The analysis is carried out
on the basis of a comparative analysis of the treaties and other original docu-
ments, supplemented by a critical look at recent accounts by legal and politi-
cal scholars, both European and American (particularly: Dinan, Hix, Jacqu,
Magnette, Nugent, Peterson, Phinnemore and Soldatos).
II. EUROPEAN COMMISSION IN CRISIS: A STATUS QUO ANALYSIS
1. THE INSTITUTIONAL PATH OF DECLINE
One of the most important issues throughout the treaties reform process
since the mid1990s has been the composition of the college, notably the
number of Commissioners. With 15 Member States the number of commis-
sioners already amounted to 20, which was considered excessive and hinder-
ing the efciency and consistency of the Commissions policymaking. The
problem was put on the agenda of the Intergovernmental Conference (IGC)
taking place in 199697. A Presidency Note of 10 September 1996 summaris-
ing various possible structures kickstarted and dened the negotiations in the
eight following years. The principal alternatives were: 1. one commissioner
for each of the large Member States, with the smaller Member States sharing
a commissioner; 2. one commissioner per Member State, with an increased
number of vice-presidents; 3. a restricted college of commissioners with special
responsibilities, supported by deputy commissioners and/or commissioners
without portfolio
3
. None of these proposals was implemented, or even seri-
ously examined, neither in Amsterdam nor in Nice. The Nice Treaty estab-
lishes a principle of one commissioner per Member State (the biggest Member
States sacricing their second commissioner) and the attached Protocol on the
enlargement of the European Union in its Article 4 paragraph 2 states that :
when the Union consists of 27 Member States (...) the number
of Members of the Commission shall be less than the number of
3
V. Miller, Institutional Reform in the European Union, Research Paper 99/54, (Interna-
tional Affairs and Defence Section, House of Commons Section, May 20, 1999), p. 13.
165
THE CONSTITUTION IS DEAD, LONG LIVE THE EUROPEAN COMMISSION
Member States. The Members of the Commission shall be chosen
according to a rotation system based on the principle of equality,
the implementing arrangements for which shall be adopted by the
Council, acting unanimously. The number of Members of the Com-
mission shall be set by the Council, acting unanimously.
Currently therefore, the college consists of 25 members, each coming
from one Member State. Some commentators take the view that, such a
conguration constitutes a serious weakness as it weakens the position of the
Commission in the decision making process as well as its mission of driv-
ing force of the integration process. The arguments are of both a quantita-
tive and a qualitative nature. There seems to exist a consensus that effective
coordination and cooperation can be guaranteed with no more than 1520
members
4
. If the number is higher, the importance of their competences var-
ies, as it is impossible to provide 25 (or more) commissioners with equally
plentiful portfolios. Moreover, a number of commissioners lower than the
number of States would contribute to a truly supranational character of
the institution
5
. Indeed, the Commission has gained in intergovernmental
character since the 2004 enlargement and this process can only weaken an
institution that is supposed to be dedicated to the community interest
6
. In
turn, this may undermine the core principle governing the Commission,
which is collegiality
7
.
Strengthening the powers of the Commissions President has been
another major subject for the reform debate of the recent years. This process
is clearly complementary to the growing size of the college, as the lack-
ing consistency and effectiveness should be counterbalanced somewhat by
a strong leadership. In fact, prior to the implementation of the Amsterdam
Treaty the distribution of portfolios among the commissioners was largely
a matter of intergovernmental negotiation and denitely not a matter of
political choice of the President
8
. Consequently, it was hardly possible for
him to control the college. The problem was partly addressed in the Declara-
tion 32 attached to the Amsterdam Treaty, whose contents were upgraded to
4
E. Piontek, W drodze do zreformowanej Unii Europejskiej, Zeszyt Naukowy Podyplo-
mowego Studium Prawa Europejskiego, no. 5/2002, (Warszawa, 2002), p. 17.
5
Ibid.
6
Jacqu, op. cit., p. 347.

7
More on this subject: Dinan, op. cit, pp. 19596; Jacqu, op. cit., pp. 349352.
8
N. Nugent, The Government and Politics of the European Union, 5
th
edition, (Palgrave
Macmillan, 2003), p. 117
.
166
Article 217 EC by the Nice Treaty. The latter afrms that the Commission
works under the political guidance of its President, who decides on its inter-
nal organization and ensures consistency, efciency and collegiality. Most
importantly, the responsibilities of commissioners are structured and allo-
cated by the President who can also reshufe this allocation during the term
in ofce. The colleges members carry out duties under Presidents authority
and resign at his request (although collegiate approval is necessary).
However, the abovementioned reform seems to be ambiguous. Nei-
ther Mr Prodi nor Mr Barroso have succeeded in translating this particular
institutional advantage into political strength. In fact, a paradox of weak-
ness is to be observed: the more powers the President gets, the less impact
he really exerts. Although Mr Barroso made an attempt to use his pow-
ers and declare independence from Member States, especially by giving
important economic portfolios to commissioners from smaller Member
States and relegating the French and German nominees to lesser portfolios
9

(though appointing them vice-presidents), he has not persisted in estab-
lishing himself as a political heavyweight. It appears that Article 217 was
introduced in order to avoid a repetition of the circumstances leading to
the resignation of the Santer Commission. It does not however contribute
to the Presidents authority within the college and with Member States in
the day-to-day policymaking.
The Commissions crisis results not only from the internal organiza-
tion, but also from the change of balance in relations with other insti-
tutions. This is clearly demonstrated in the increasing powers of the
European Parliament, particularly since the Maastricht Treaty, most vis-
ible in the co-decision procedure (Article 251 in the version of Amsterdam
Treaty), growing powers in budgetary procedure (Article 272), as well as in
appointing (Article 214) and dismissing the Commission (Article 201)
10
.
Recently, the Parliament has acquired the right to block Commissions
implementing measures developed under the comitology procedure, that
is, where these measures derive from the co-decision legislation
11
. This
means that the Commission will not only have to take into account the
views of national ofcials committees or the Council of Ministers, but also
9
Dinan, op. cit., p. 201.
10
A. Topan, The resignation of the Santer-Commission: the impact of trust and reputa-
tion, (European Integration online Papers (EIoP) Vol. 6 (2002) N 14), p. 1
.
11
euractiv.com/en/governance/parliament-strenghtens-control-commission/article156620,
published July 6, 2006.
167
of the Parliament, which denitely restricts the Commissions room for
manoeuvre. However, in the following analysis the focus is on co-decision,
as this procedure, although reinforcing the Parliament and the democratic
legitimacy of the Union, has also profoundly changed the balance of pow-
ers between the institutions, to the detriment both of the Commission and
the community interest.
It is widely recognized by authors that co-decision has put the Commis-
sion in a situation of structural disadvantage compared to previous legislative
procedures. Some legal scholars even claim that the Amsterdam version of
co-decision renders the Commission irrelevant
12
. Although it is evident
that Commissions room for manoeuvre is considerably reduced, one has
to take into consideration not only the treaty rules, but also how they are
applied, interpreted and moderated by the institutions behaviour
13
. In the
case of co-decision the Commission certainly loses its gate-keeping power in
the third conciliation phase. It is the Council and the Parliament who agree
on a compromise interacting closely together, while the Commission does
not formally intervene at this stage. Gone are the times when Parliament was
treated as the Commissions junior partner, having few direct contacts with
the Council and relying on the Commission to introduce its amendments
due to its own lack of powers. Also, during the second reading, Commission
does not provide a modied proposal, but only reacts to the Councils com-
mon position. Consequently, the Council only needs qualied majority to
reject any of the Commissions proposals
14
.
Nevertheless, the Commission is still able to exert inuence in the leg-
islative process. As one of its ofcials claims: Sometimes the positions of
the Council and the Parliament are so far apart that only the Commission
can nd common ground
15
. Therefore, the role of an honest broker is still
there and not to be underestimated. The inter-institutional agreements or
informal practices complete the picture of the Commissions position. For
example, they reveal that the Commission participates in the formal and
12
A. Rasmussen, The Role of the European Commission in Co-decisionA strategic
facilitator operating in a situation of structural disadvantage, 7 European Integration
online Papers (2003) N 10, p. 1.
13
Ibid.
14
Details on the co-decision procedure: Nugent, op. cit., pp. 34752; Jacqu, op. cit.,
pp. 40412; P. Magnette, Le rgime politique de lUnion Europenne, (Paris : Presses de
Sciences Po, 2003), pp. 16574.
15
Rasmussen, op. cit., p. 4.
168
informal negotiations between the Council and the Parliament, so that it
still has an opportunity to affect these meetings
16
. However, the main con-
clusion to be drawn is that the Commission has been weakened steadily
by the expansion of the co-decision procedure as a consequence of a more
democratic and legitimate decision-making. On the other hand, the Com-
mission has succeeded in preserving much of its earlier inuence, it just has
to operate in a less favourable institutional environment, requiring more
effort than ever.
The co-decision procedure may become mainstreamed, replacing other
procedures, but la mthode communautaire, llment essentiel pour le bon
fonctionnement de lUnion
17
seems to be running out of steam. In addi-
tion to the intergovernmental pillars of Judicial and Police Cooperation in
criminal matters, as well as Common Foreign and Security Policy, different
provisions apply to the Economic and Monetary Union or to employment
policies. The latter are the examples of the early modalities of the so-called
open method of coordination, currently widely used to implement the Lis-
bon Agenda. Policies covered by the open method also include research,
information society, education, youth, enterprise or pension reform
18
.
The widely-discussed and described subject of the (in) effectiveness of this
method or its participative advantages for the civil society are not to be
developed here
19
. On the other hand, it is essential to underline the conse-
quences of this new mode of governance for the European Commission. In
short, the open method of coordination is about the collective monitoring
of Member States domestic policies. Decision-making is centralized in the
European Council, and the role of the Commission is reduced to monitor-
ing, drafting benchmarking reports based on data delivered by the relevant
administration of the Member States. Although the Councils guidelines are
16
Ibid., p. 9.

17
La mthode communautaire, contribution prsente par MM. Barnier et Vitorino,
membres de la Convention, (CONV 231/02, Secretariat de la Convention Europenne,
Bruxelles, sep. 3, 2002), p. 2.
18
S. Hix, The Political System of the European Union, 2
nd
Edition, (Palgrave Macmillan,
2005), p. 37.
19
The open method of coordination is thoroughly discussed in: Economic and Social
Research Council, Implementing the Lisbon Strategy: Policy Coordination through
Open Methods, laws.qmul.ac.uk/lisbon/papers/papers.html; C.M. Radaelli, The
Open Method of Coordination: a New Governance Architecture for the European
Union?, (SIEPS, Stockholm, 2003); Open Method of Coordination in the European
Union, 11 Journal of European Public Policy (2004), 185207.
169
based on Commissions report, the latter cannot use sanctions against States
that do not follow the guidelines closely enough. In fact, the Commission is
deprived of its agenda-setting powers and practically acts as a secretariat of
the European Council. However, it is important to underline that in all the
areas covered by the open method, European Community has only comple-
mentary competence aimed at supporting actions carried out by the Member
States. Consequently, the Commission cannot have as much impact as in
the case of the competition policy or even single market policies. Neverthe-
less, the prospects are that it is precisely the areas where the Community is
complementing activities of the Member States, that are put at the forefront
of the current European agenda. Therefore, the Commissions role can only
be gradually declining.
2. THE POLITICAL PATH OF DECLINE
As mentioned above, the institutional balance between the Commission
and the Parliament has altered over the 1990s due to the changes in the insti-
tutional provisions of the treaties. It seems that contrary to the Commission,
the Parliament managed to draw political conclusions from this revolution-
ary shift of power. This process is fully reected in the events that led to the
collective resignation of the Commission in 1999 and to a weakened status
of the Commission as an institution. Contrary to what has been commonly
asserted by a substantial number of authors, the Commissions troubles have
not begun with the publication of the report of the Court of Auditors, sug-
gesting fraud and nancial mismanagement
20
. In fact, numerous events and
scandals have paved the way to the violation of the Commissions reputa-
tion and Parliaments trust put in it
21
. The rst serious breach came with the
infamous BSE scandal in 1996, when the Commission presented the Parlia-
ment with manipulated documents as to the causes and size of the problem.
A year later it became clear that DG Agriculture had practiced a policy of
disinformation from the very beginning, mostly in order to protect the beef
sector from the crisis, while misleading and endangering consumers
22
. In
short, the Commission deliberately failed to inform the Parliament, which
was particularly dangerous at the time of the political battle for access to EU
20
Cf. Nugent, op. cit., p. 114; J. Peterson and M. Shackleton, The Institutions of the
European Union, (Oxford University Press, 2002), p. 78.
21
Topan, op. cit., pp. 39.
22
Ibid., p. 8.

170
documents. In this respect, the nancial charges of 1998 constituted only
the tip of an iceberg.
The Commission itself handled the crisis extremely badly. The college
could not and would not persist in unity as the French commissioner for
research Edith Cresson, particularly criticized for nepotism, refused to step
down and dismissed the accusations as an Anglo-German conspiracy. On
the other hand, the Commissions President announced in advance that the
college would implement all the recommendations of the special Committee
of Independent Experts, regardless of what they were. This was received as
a clear sign of the Commissions political weakness
23
. Moreover, the Com-
mission seemed not be aware of or underestimated the emergence of a new
governance discourse in the EU, the replacement of the old technocracy
discourse by such notions as accountability, participation or subsidiarity
24
.
Quite naturally, the new Prodi Commission was thirsty for political
success. It seemed apparent that in order to provide a genuine political lead,
a new successful economic project, resembling the one of the single market
in Jacques Delors time, was necessary. Together with the booming informa-
tion technologies, particularly in the United States, the goal of accelerating
the transformation to the so-called knowledge-based economy was inserted
into the Lisbon Strategy in the year 2000
25
. After the establishment of the
single market, the EU set itself the new strategic goal of becoming the most
competitive and dynamic knowledge-based economy in the world by the
year 2010. The main focus was on creating a European Research Area and an
information society for all, the modernisation of the European social model
and sustaining economic growth.
Unfortunately, the strategy that was supposed to rebuild the Unions and
Commissions grandeur ended in failure, both in assumptions and in policy
design. Firstly, it was widely believed that the unprecedented economic growth
observed in the United States since the mid-90s should and could be rivaled
in the European economic reality by means of a revolution in information
technologies. Secondly, statistics showed that until the year 2000, the real
23
Peterson and Shackleton, op. cit.
24
M. Cini, Reforming the European Commission: Discourse, Culture and Planned
Change, in: M.O. Hosli, A. van Deemen and M. Wridgien (eds.), Institutional Chal-
lenges in the EU, (Routledge, London/ New York, 2002), p. 14.
25
The paragraphs on Lisbon Strategy are based on: A. Cianciara, Broadband Availability
within eEurope 2005 Action Plan. Ex post Impact Assessment Analysis, (Master Thesis
in the College of Europe, supervisor: Eric Philippart, June 2006, unpublished).
171
GDP growth rate in the EU had risen steadily. Therefore, it was argued, it
would be enough to accelerate the ICT investment, particularly with regard
to the Internet, to bring about an increase productivity and thus achieve sus-
tainable growth, as well as to boost employment. Unfortunately, the results
produced by the new economy have fallen short of the economists expecta-
tions. This also holds true for the United States, but even more so for the EU
with its hardly liberalized telecommunications sector, poor ICT investment
and research base, various obstacles for small and medium enterprises, lack
of venture capital and no common regime for intellectual property. Another
problem is the unemployment rates, persistently high because of the rigidity of
the labour market on the one hand, and a lack of IT specialists on the other. In
short, the Union and the Commission itself were hoping for an easy success by
means of new technologies, leaving the unresolved macroeconomic difculties
of the Member States intact.
The Commission not only dedicated itself fully to the project that was
doomed from the very beginning, but also accepted full responsibility in
an area where it had almost no inuence and powers. As mentioned in the
previous section, the position of the Commission within the open method
of coordination is clearly weaker than under the Community method. How-
ever, there exist variations of the method and it appears that the Commission
has more impact on the policymaking within the employment than within
the information society eld. Moreover, even in the case of the ICT policy
the Commission is left with considerable room for manoeuvre in the process
of reviewing the progress made by Member States. However, as consulta-
tions with non-governmental partners revealed, the Commission has hith-
erto been reluctant to adopt a tough stance vis--vis the laggards. Therefore,
a more proactive approach is strongly recommended, so that the Member
States feel constrained to deliver results
26
.
Another major problem of the Commission is the manifestly weak support
it receives among the citizens. The situation was of course aggravated by the
Commissions own misguided initiatives and communication blunders. The
perfect example is the so-called Better Regulation initiative that was aimed
at improving the quality of the European legislation. The improvement was to
be done essentially through three measures: 1. elaborating impact assessments
26
Tavistock Institute, Net Effect Ltd., Instituto per la Ricerca Sociale, How the eEurope
OMC worked: the Analysis of Impacts of Benchmarking and the eEurope Actions in the
Open Method of Coordination, report for DG Information Society, (London, Helsinki,
Milan, March 2005), p. 36.
172
of legislative proposals, 2. screening of all the pending legislative proposals for
their impact on competitiveness and for general relevance, 3. programming
for simplication of the existing EU legal acts. This project was designed as
a response to the growing public criticism of the Commission for producing
over-complex and unwieldy legislation
27
. Important and useful as this initiative
might have been, it was again problematic in its underlying assumptions, as
well as in the goals set. Firstly, it is a proposal of a purely administrative nature
and as such it cannot appeal to the wider public. Secondly, the slogan imme-
diately coined in the media was that the Commission intended to do less but
better, which soon turned into less and not better. The whole process has
quickly become symbolic for those, who had been accusing the Commission
of being too passive and leaving the initiative to the Council. Moreover, in the
eyes of the citizens the whole process may well have produced adverse effects.
In fact, instead of focusing on a project vital to the economy and social needs
of the Europeans, the Commission is again involved in a bureaucratic process
of reviewing, assessing and monitoring its legislation.
III. DOES THE CONSTITUTION PROVIDE FOR AN
ADEQUATE SOLUTION?
After the analysis of the status quo under the Nice Treaty, a reection on
the Constitutions provisions will be carried out, while examining whether
the latter constitute an important step forward in reference to the Commis-
sion, as well as whether they address the challenges mentioned. The role of
the Foreign Affairs Minister within the Commission, the end of the one
State/one commissioner principle, the powers of the President and the co-
decision are discussed below.
1. THE ROLE OF THE FOREIGN AFFAIRS MINISTER WITHIN
THE COMMISSION
The creation of the post of the Union Minister for Foreign Affairs is
denitely one of the main innovations of the Constitutional Treaty, but also
a fundamental change in the functioning of the European Commission. The
aim was to introduce and promote greater coherence and consistency in the
27
J. M. Barroso, Uniting in Peace: the Role of Law in the European Union, Jean Monnet
lecture, EUI Florence, 31 March 2006, SPEECH/06/213, europa.eu/rapid/pressReleas-
esAction.do?reference=SPEECH/06/213 & format=HTML & aged=0&language=EN
& guiLanguage=en
173
external actions of the European Union
28
. Since the Maastricht Treaty the
responsibilities in the area of external relations had been carried out both by
the Council of Ministers (CFSP) and the Commission, where three commis-
sioners are dealing, respectively, with development, enlargement and external
relations in general. In 1999 the post of High Representative for CFSP was
established, which added to the complexity of the EU external representation
and could easily cause institutional frictions between the Council and the
Commissioners. However, as commentators claim, there has been a particu-
larly good working relationship between Javier Solana and Chris Patten, as
well as Benita Ferrero-Waldner, Chris Pattens successor
29
.
The Minister for Foreign Affairs is supposed to coordinate all the aspects
of the Unions external action. He will be the Commissions Vice-president
and Chairman of the Foreign Affairs Council, which means he will have a
foothold in both institutions. This institutional structure raises a number
of questions, particularly when it comes to the preservation of the collegi-
ality principle, as well as the Commissions institutional independence. It
seems important to express concerns as to the possible shift of balance in
the EU external policymaking and representation away from the Commis-
sion and towards the Council
30
. In fact, the EU policy coordination on the
international scene might be reinforced, but the Commission itself may be
deprived of inuence in the domains of its current activity. Meanwhile, it is
worth remembering that the Minister of Foreign Affairs will have to share
his activities with the President of the European Council, which only partly
resolves the problem of double representation in external relations
31
. Finally,
the Constitution creates room for antagonism between the President of the
European Council and the President of the Commission. As Jean-Claude
Juncker put it: un prsident du Conseil risque de crer une Commission
bis et de faire du prsident de la Commission un secrtaire ou un assistant
du prsident du Conseil
32
.
28
D. Phinnemore, The Treaty Establishing a Constitution for Europe: an Overview, (EP
BN 0401v2, The Royal Institute of International Affairs, June 2004), p. 23.
29

30
Ibid., p. 219.
31
Cf. art. I21 and I27, Constitution de lUnion Europenne, Que sais-je?, Presses Univer-
sitaires de France, Paris, 2003), pp. 1215.
32
Quoted by P. Soldatos , LErosion structurelle et fonctionelle de la Commission euro-
penne : une ssure dans la mthode communautaire, in: C. Philip and P. Soldatos (eds),
La Convention sur lavenir de lEurope (Bruylant, Bruxelles, 2004), p. 86.
174
2. THE END OF THE ONE STATE/ONE COMMISSIONER PRINCIPLE
The Constitution has undoubtedly responded to the fervently debated
issue of the size and composition of the Commission, which, as previously
discussed, is often claimed to be one of the main reasons for the Commis-
sions weakness. It is important to underline that the nal provisions on this
subject signicantly differed from the proposal of the Convention on the
Future of Europe. In fact, the Convention proposed a college of fteen com-
missioners with the remaining Member States allowed to have non-voting
European commissioners. According to the Article I26, paragraph 6 of
the nal version of the Constitutional Treaty, 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. The commissioners shall be selected on the basis of a system of equal
rotation, reecting the demographic and geographic range of all the Member
States
33
.
It is worth underlining that the nal provisions constitute a true victory
for the Commission, especially in comparison with the compromise elabo-
rated by the Convention, as the idea of the commissioners with no voting
right seems to be inappropriate. This would have certainly created second-
category members, not to mention the fact that the deliberations would still
have taken place in plenary. Moreover, evidence suggests that within the
college voting takes place relatively rarely
34
, which would make the reform
largely negligible. Finally, two categories of commissioners would not have
prevented the further intergovermentalisation of the Commission. However,
even if the Constitutions reform goes in the right direction, it has to be
stressed that the new composition of the college would only become a real-
ity in the year 2014 and this only under the condition that the treaty enters
into force in 2009. Thus, even speedy ratication would not have prevented
the current Commissions crisis from developing and therefore, could not
constitute the answer to the problem we are confronted with.
3. THE POWERS OF THE PRESIDENT
The other Constitutions provisions regarding the Commission are far
less revolutionary; in fact, they simply consolidate or slightly enhance the
legal status quo after the Nice Treaty. Article I27 practically repeats the
33
Treaty Establishing a Constitution for Europe, Ofcial Journal of the European Union:
2004/C 310/22.
34
Magnette, op. cit., p. 115.
175
provisions of Article 217, as with regard to the powers of the Commissions
president. The only difference concerns the procedure of the election of the
President. The Constitution states that before proposing a candidate the
European Council shall take into account the result of the elections to the
European Parliament, whereas the Parliament elects the President by the
majority of its components members. Under the Nice Treaty the President
is not elected but approved and the Parliament expresses its approval by
a simple majority of the votes expressed. These changes are aimed at rein-
forcing the democratic legitimacy of the President, but also strengthen the
institutional position of the Parliament against the Commission.
4. CO-DECISION
Moreover, the co-decision procedure is renamed an ordinary legislative
procedure (Article III396 par. 15). This constitutes a consolidation of pre-
vious treaty reforms, in which the co-decision procedure has gradually been
extended to new policy areas. The underlining of the ordinary character of
the procedure petries the balance between the institutions, which, as stated
previously, puts the Commission at a structural disadvantage. However, it is
worth mentioning that this procedure does not apply to the external poli-
cies, including trade policy, or to the economic and monetary policies and
common agriculture policy. Again, the Constitution is more than cautious
in introducing any changes in the repartition of competences compared to
the previous legal situation.
5. EVALUATION
Therefore, it appears justied to conclude that the answers the Constitu-
tion brings are at best patchy. The most important innovation, the change
in size and composition of the Commission, could have entered into force
in the year 2014, provided the document was ratied by 2009. The post
of Minister for Foreign Affairs raises important questions as to the cohe-
sion of the college. Other provisions do not add much to the ones already
existing. However, what does make a difference in this treaty is the con-
stitutionalisation of the European Council
35
, which further strengthens its
political dominance over the Commission. Consequently, it appears that the
application of the Constitutional Treaty would not address the challenges
the Commission has to face and it seems necessary to look for solutions of
a different nature.
35
Soldatos, op. cit., p. 77.
176
IV. AN INSTITUTIONAL OR RATHER A POLITICAL CHALLENGE?
As previously stated, the authors of the Constitution were very careful
not to change the institutional balance. However, as the above sections have
shown, the power equilibrium between the triangle of the institutions has
signicantly altered by means of incremental steps effectuated in previous
treaty changes. One may be forgiven for thinking that an act of constitutional
weight would aim to restore the balance in the interest of the European inte-
gration, thus breaking the period of institutional and political impotence.
Several of the weaknesses of the Commissions institutional position result
from the growing role of the Parliament in legislative, budgetary and control
procedures. The relation here is simple: the more the Parliament is strength-
ened, the more the Commission is weakened. Therefore, the only rational
solution of institutional nature has to aim at reinforcing the Commission,
and thus altering signicantly the whole system of interactions between the
European institutions. A decision has to be made as to the choice of political
system for the European Union. Two possibilities are offered: a parliamen-
tary system or a system of ultimate separation of powers close to the one
developed in the United States. The former requires the competence for the
Commission to dissuade the Parliament (under clearly dened circumstances
contained in the treaty). The latter means that none of the institutions can
intervene in one anothers functioning, thus it is necessary to suppress the
motion of censure of the Commission by the Parliament
36
.
The institutional reform applying this proposal does not guarantee to
end the Commissions crisis. It does however give the Commission the tools
to reestablish its strength and to interact with other institutions on an equal
footing. Why was there no attempt to undertake such a reform in the process
of elaboration of the Constitution? It is indeed difcult to imagine a bet-
ter moment for such a signicant reform than the constitutional moment.
However, it has to be mentioned that the expressed aim of the Constitu-
tional Treaty has been completely different from the one expected, namely
the establishment of the new institutional and political order. In fact, this
Constitution was designed more to consolidate the existing system and bring
necessary changes to make the institutions more effective but intact in their
core relational structure. For the Commission to be restored in its glory,
this was manifestly insufcient. Moreover, the current omnipresent political
discourse of democratic legitimacy and accountability only facilitates the
realization of Parliaments ambitions to the detriment of the Commission.
36
Jacqu, op. cit., p. 363.
177
The latter remains the main target of criticism, no matter how hard it tries
to become transparent, accountable and Parliament-friendly.
With no major institutional reforms possible and only minor under-
taken, though suspended by the failed referendums in France and the Neth-
erlands, it is crucial to focus on the political side of the problem. Three main
issues to be dealt with are identied here: the shifts of political balance from
the supranational towards intergovernmental, the leadership challenge and
the conict between scarce Commissions resources and the growing expecta-
tions due to the formally expanding responsibilities. No easy solutions are
available here, but it is of fundamental importance to ask the questions that
derive from a wider and more complete diagnosis of the situation.
In the rst part of this article a diversity of policy methods has been
mentioned. This diversity, encompassing particularly variables of the open
method of coordination, implies more involvement of the Council of Min-
isters and the European Council. Meanwhile, the Commission loses powers,
thus becoming a mere scrutinizer of national policies, rather than proposer
of common EU policies
37
. In fact, the Council expands its powers at the
expense of the Commission, which has much less inuence over the poli-
cymaking process than in a classical principal-agent model. On the other
hand, it can be argued that the Commission may have little impact in cer-
tain domains, but it is not deprived of its competences in the core elds of
the European integration such as competition, trade, or common agricul-
ture policies. In fact, together with the expansion of EU actions (industry,
research, information technologies, social issues), the Commission also gains
certain inuence over the policies previously reserved for the Member States.
Therefore, the open method of coordination should not be perceived as a
threat to the Commissions position, as long as it is introduced to pursue
new policies, where the use of community method is difcult to imagine.
However, the open method of coordination should never be considered a
new mode of governance capable of supplementing the existing ones. The
so-called soft law might have certain advantages under clearly dened cir-
cumstances, but such a loose form of cooperation could never supplement
the Community lawmaking, if European integration is to be sustained and
developed effectively.
However, the open method of coordination is not the only eld of inter-
vention by the European Council. The real problem lies in its progressive
37
Peterson, Shackleton, op. cit., p. 91.
178
usurpation of the roles of other Community institutions, particularly of the
Commission, in its function of legislative initiator
38
. The European Council
is not an institution of the European Community. It operates on the basis of
Article 4 (1) of the Treaty on European Union, where the competences are
dened as follows: the European Council shall provide the Union with the
necessary impetus for its development and shall dene the general political
guidelines thereof . In reality, the European Council has deprived the Com-
mission of its role of a moteur dintgration. In practical terms, this means
for instance that the legislative programme of the Commission is merely a
contribution to the annual programme of the Council
39
.
Another danger is the relatively new temptation to establish regulatory
agencies taking over the Commissions competences. Surely, the proliferation
of agencies could not directly empower Member States, as the agencies are
just another form of independent supranational authority. It is however very
probable that giving the core Commissions competences to the agencies (as
in the much discussed case of the competition policy) would considerably
weaken the Commissions position vis--vis the Council and the Parliament
due to the dispersal of functions and responsibilities. The other two insti-
tutions will undoubtedly nd it very convenient to dialogue directly with
the agencies while neglecting the Commission. In this respect, arguments
presented by the most famous proponent of regulatory agencies, Giando-
menico Majone, cannot successfully be mainstreamed at the EU level. The
rst central assumption behind his reasoning is that EU policy-making is
essentially of a regulatory nature. The second one, which is more dubious,
is that European Commission, while becoming increasingly politicized, is
structurally unable to exert its highly specialized functions
40
. Therefore,
only independent agencies with the elaborated scientic knowledge at their
disposal are capable of adapting to technical progress quickly enough and
respond with adequate administrative instruments
41
.
The above argumentation seems to be defective for a couple of reasons.
Firstly, the Commission is not and has no prospects of being politicized in
a way the majority of national governments in parliamentary systems is.
In terms of political colours the Commission is largely independent from
38
Soldatos, op. cit., pp. 6775.
39
Ibid., p. 74.
40
G. Majone, Functional Interests: European Agencies, in: Peterson and Shackleton,
op. cit., at p. 318.
41
Ibid., p. 300.

179
the majority in the European Parliament. Secondly, even if regulation is
the Commissions primary activity, it is not of a purely technical nature.
The already mentioned competition policy requires decisions that are emi-
nently political as in the case of state aid. Finally, the Commission cannot
be reduced to regulative and administrative functions, as it has to provide
strong political leadership, if the European integration is to progress. At the
same time, the Commission cannot be expected to provide leadership when
it is gradually deprived of political and institutional weight. The crucial
point, however, is that the European Commission is the only institution
that can act as a driver of European integration, for the common interest it
personies. The European Council could never full this role effectively, as
it is overwhelmed by Member States particular interests and too often forced
to rely on the lowest common denominator.
The leadership provided by the European Commission is therefore a
fundamental issue; it is also eminently political and hardly an institutional
one. It has become common knowledge that the Commission has been
lacking effective leadership, practically since Jacques Delors term in ofce,
which is often depicted as the institutions golden era. Mr Delors is usually
presented as a powerful and visionary leader who managed to grant the
Commission the predominant status at the European scene and to push
forward the integration process. His own perception of the Commissions
role was a high-prole one, where the latter had a strategic authority to
guarantee the continuity of the integration project despite the political and
geopolitical hazards
42
. However, it has to be noted that not only personal
political weight and skills empowered the President. In fact, as John Peterson
claims, the most important factor was Mr Delorss ability to take advantage
of the national receptivity to European solutions, international changes, such
as Germanys reunication, and especially, a favourable business cycle in the
late 1980s
43
.
Consequently, the current leadership problem could be attributed not
only to the shortcomings of the presidents and their administration, but also
to the external conditions, such as economic slowdown and prevailing cli-
mate of euroscepticism
44
. This would bring us closely to an intergovernmen-
talist position, advocated notably by Andrew Moravcsik and summarised
in his famous argument that the Commission is only empowered when the
42
43
Peterson, op. cit., p. 83.
44

180
preferences of the Member States converge
45
. On the other hand, the Com-
missions role should be also in the process of shaping those preferences and
interests. Again, Jacques Delors was right, when he explained that the Com-
mission itself cannot achieve much, but it can generate ideas, and its main
weapon is its conviction
46
. Unfortunately, it seems that the subsequent col-
leges were lacking grand visionary ideas, while excessively focusing on details
of the daily policymaking. President Prodi declared at the beginning of his
term that he would increase the Commissions capacity to provide political
direction and redene the institutional relations with the Council and the
Parliament. As for now, it seems that the only result has been the empower-
ment of the European Council to the Commissions own detriment. For
instance, the project of the European Area of Freedom, Justice and Security
could have been far more enhanced, developed and better communicated by
the Commission, particularly in the face of the terrorist attacks hitting the
territory of the European Union. The Barroso Commission tabled a project
on the energy policy, which is denitely of utmost importance for all Europe,
but it is still to be observed whether the president would take the opportu-
nity to strengthen his own position and that of his institution, or whether he
would allow the European Council to take over the initiative.
Finally, the Commission has to deal with a fundamental dilemma, which
assumes a choice between scarce resources and growing responsibilities. It
is greatly understaffed, with only 0.8 EU ofcials per 10 000 inhabitants,
where EU Member State average equals 300 ofcials
47
. It has also to be
taken into account that a considerable number of Commissions employees
are translators and that policy administrators are in a clear minority. This
is contrary to a politically damaging myth of a huge army of superuous
Eurocrats that prevails among the public opinion in the Member States.
The Commission is also heavily constrained in its actions by the Community
budget that is totally dependent on the negotiations within the European
Council. Finally, it is restrained by the treaty provisions that very often set
far-reaching goals, but provide few tools to achieve them (as in the case of
social policy or education and culture).
On the other hand, the Commissions responsibilities are growing, and
the expectations as to what the Commission should do are growing even
faster. It seems that the Commission is involved, by means of producing
45
Peterson, op. cit., p. 90.
46
47
Nugent, op. cit., p. 118.
181
legislative acts, in practically every single sphere of Europeans lives. How-
ever, the results of this omnipresent intervention are not always visible.
This is the case for the free movement of capital, announced at the begin-
ning of the 1990s, where a truly common market for banking services is
still looming far ahead. But the Commission itself too often assumes the
responsibility for the actions that are later paralysed by the insufcient
cooperation of the Member States. The most eminent example of this proc-
ess, fatal for the Commissions public relations, is the Lisbon Strategy. In
fact, it is the Commission or its President that announces the launch of the
subsequent initiatives. Meanwhile, the Commission has very little impact
on whether the States adequately implement the national plans or not. And
later on, it is the Commission who is accused of inefciency, incompetence
and inability to keep its own promise. Therefore, the Commissions presi-
dent made a strategic mistake when he declared the re-launched Lisbon
Agenda Growth and Jobs to be the agship of his term in ofce. Under
the current macroeconomic situation the Commission has little chances to
have a remarkable impact on growth rates and even less chances to affect
the unemployment rates. In the Delors times the appropriate instrument
to create a common market was legislation, for the growth and jobs it is
about macroeconomic tools that the Commission does not possess. At the
same time, public expectations have been inated and deceived very soon,
which does not facilitate trust and legitimacy, further contributing to the
Commissions weakness.
V. CONCLUSION
The European Commission nds itself in a deep crisis, both institu-
tional and political, which affects the functioning of the whole European
Union. The response brought by the Constitutional Treaty can only be
described as largely insufcient, even if the Treaty would have been rati-
ed in due time. Therefore, with the constitutional reform frozen, it is
absolutely fundamental to turn towards political challenges and to search
for political solutions. Firstly, the Commission needs to defend its insti-
tutional position in relations with the European Parliament, Council of
Ministers and the European Council. It should not allow the latter to
completely take over the real legislative initiative. Serious communication
efforts have to be made to change public opinion in the Member States: the
Commission may not be democratic in the popular understanding of the
term, but its strength is nevertheless indispensable for the maintenance and
development of the European project. Secondly, the issues of leadership
182
and priorities choice are of utmost importance. The Commissions Presi-
dent and his college should not only adjust to the economic and political
circumstances, but also actively create them and develop new ideas that
will put the Union on the brand new integration track. However, for the
time being, the Commission seems to prefer a rather careful administrative
approach, which can only result in the gradual weakening of the institution
and the progressive failure of the European Union.
FROM CONSTITUTIONAL BLUEPRINT
TO AN ECONOMY OF SOCIAL
AND ECONOMIC WELLBEING
Neva Maher
I. INTRODUCTION
In this chapter we will discuss which institutions, where and when sup-
port the pursuit of the social and economic well-being of their people.
As will be seen, the approach of the EU is based on three elements: the
acquis communautaire, nancial instruments such as the structural funds,
the cohesion fund and the open method of coordination, the latter being of
special importance for the objective of the social well-being of the people.
All three elements need to be investigated in order to arrive at an informed
evaluation.
The social and economic well-being of people impacts on social and
individual capital. Social and individual capital are important productive
factors whose importance is only beginning to be recognized. While tra-
ditional growth theories explain differences in growth by the expansion in
inputs, such as capital and labour, and by the catching-up of countries with
lower productivity, modern theories emphasise inputs in human capital as
the key drivers for long-run growth.
1
Making better use of human resources (and linking to them labour mar-
ket reforms) is now a top priority in the European Union; leaders of EU
Member States agreed as much in the year 2000, when they signed up to the
1
Para. 5 of the Council Conclusions, 2005. 20072013, Council of the European Union,
Brussels, Feb. 12, 2004, COM (2004) 101 nal.
184
Lisbon Agenda
2
which is at the base of the Lisbon strategy, and they renewed
their pledge in 2005 in the context of the seven year programming for the
period 20072013.
3
A knowledge-based economy is one based on the diffusion of knowledge
(lifelong learning), the addition of new knowledge to the existing stock (R &
D, education) and its application to everyday life (use of technology, product
and process innovation). Key driver for long-run growth are investments in
education and training, because any loss in production due to people staying
longer at school rather than working is offset by an increase in human capital
which raises future productive potential.
4
Increasing investment in knowledge is thus crucial for the EU. It is part
of the plan to aim at raising the quality of EU jobs and living standards. The
new strategy aims to benchmark governments, social partners and NGOs on
the basis of quality indicators for individual jobs, labour markets and social
policies, as well as to better access to jobs and to increase social provision. To
characterise the new thinking it has been observed The link runs the other
way: more growth will bring job creation.
5
Social policies are by far the biggest item of expenditure in the budgets of
the Member States and as such they have a major impact on living conditions
in the EU. However, Europes relatively poor economic and employment
performance, as well as the rapid ageing of its societies, pose a serious threat
to the sustainability of social policies. So much was agreed at the Lisbon sum-
mit and in the Social Policy Agenda endorsed at Nice in the same year 2000.
For governments, this will mean shifting the balance of public resources
from passive social transfers to investment. Following best practices means
rstly, not to hinder, but also, to be positively aware of social inclusion of
people. Each time an investment is being contemplated there arises a conict
of interests, where the question is, whether to invest in people (or human
2
Presidency ConclusionsLisbon European Council of March 2324, 2000, Brussels.
3
Implementing the Community Lisbon Programme: Communication from the Commis-
sion to the Council, the European Parliament, the European Economic and Social Com-
mittee, and the Committee of the Regions: More Research and InnovationInvesting
for Growth and Employment: A Common Approach ECOFIN 319, 2005.
4
Commission staff working document: The economic costs of non-Lisbon. A survey of
the literature on the economic impact of Lisbon-type reforms, Brussels, March 3, 2005,
SEC (2005) 385, at 5.
5
A.C. Pissarides, Lisbon ve years later: What future for European employment and
growth?, London School of Economics, London, 2005, at 3.
185
resources) or in capital. The social and economic well-being of people can be
at risk and it is the role of a States to protect societal values.
II. THE LISBON AGENDA
The Lisbon European Council of March 2000 set out its strategic goal
for the next decade as follows: to become the most competitive and dynamic
knowledge-based economy in the world. The initial objectives were sustain-
able economic growth, more and better jobs, and greater social cohesion.
These objectives, and the policies and measures accompanying them,
have become known as the Lisbon strategy. The Gothenburg European
Council of June 2001 added an environmental dimension to the originally
economic and social dimensions of the Lisbon strategy.
6
The Lisbon Euro-
pean Council conclusions set out a broad range of objectives and policy
tools; it is also a continuing process to monitor and evaluate the quality of
activities and indicators towards the common Lisbon targets. Values change
in time and there could be also a conict of interests between public, busi-
ness sector and civil society values. The EU is seeking to position itself as
follows:
The OECD has shown that the total net social protection expendi-
ture, covering both public and obligatory private expenditure, is of similar
order throughout the industrialised world. The EU does have a real social
advantage [however], with the benets and costs of our social systems being
more evenly shared across our populations, and with fewer social problems
in consequence.
7

The Lisbon Agenda is about strategy and contains directions for macro
and micro processes: among the most important being the so-called Luxem-
bourg, Lisbon and Copenhagen processes, so that the ultimate objective of
structural reforms is a sustainable improvement in welfare.
The Lisbon reforms are classied in ve categories: product and capital
market reforms; investments in the knowledge-based economy; labour mar-
ket reforms; social policy reforms; and environmental reforms. They contrib-
ute to increased productivity and more job creation, whichtogether with
a cleaner environmentshould ultimately bring about a higher standard of
6
Presidency conclusions: Gteborg European Council, 2001.
7
Commission of the European Communities, communication from the commission:
The Social Agenda, Brussels, Feb. 9, 2005, COM (2005) 33 nal, at 51.
186
living for EU citizens, especially when based on the so-called open method
of coordination to achieve certain quantied objectives.
The realisation of a knowledge society, based upon human capital, edu-
cation, research and innovation policies, is the key to boost our growth
potential and prepare the future. The EU and the individual Member States
should put the emphasis on safeguarding the economic dynamism and vig-
our of the whole European economy.
Raising Europes growth potential requires making progress in both job
creation and productivity growth. Since the mid1990s, productivity growth
in the EU has slowed down markedly. Reversing this trend is the major
competitiveness challenge facing the Union, especially in the light of its
ageing population. Population ageing alone is estimated to slow down the
rate of potential growth by nearly fty percent. An acceleration of productiv-
ity growth is thus indispensable if one should wish to maintain or increase
future living standards. Productivity gains are fuelled by investment and
innovation. Making Europe a more attractive investment location and spur-
ring investment in knowledge and innovation are key elements of the Lisbon
Action Programme agreed at the European Council in Spring of 2005. This
is why national and regional programmes supported by the Structural Funds
and the Cohesion Fund will be increasingly targeted on investments in these
elds in accordance with the Lisbon objectives (Some of Regulations on
Structural Funds and Cohesion Fund 1083/2006
8
are furthermore based
on Article 158 ECeconomic and social cohesion). In order to promote
growth and employment and to strengthen competitiveness, the internal
market of services has to be fully operational, while preserving the European
social model.
9
Apart from fostering a knowledge based economy, the EU as an econ-
omy has to nurture participative democracy. To increase its global competi-
tiveness, it even has to develop instruments for the further development of
democracy. As the European Commission observed:
Sustainable development means that the needs of the present genera-
tion should be met without compromising the ability of future generations
to meet their own needs. It is an overarching objective of the European
Union set out in the Treaty, governing all the Unions policies and activities.
It is about safeguarding the earths capacity to support life in all its diversity
8
Regulation on Structural Funds and Cohesion Fund 1083, Brussels, 2006.
9
See the chapter by Samo Zupancic in this volume.
187
and is based on principles of democracy, gender equality, the rule of law
and respect for fundamental rights, including freedom and equal opportu-
nities for all. It aims at the continuous improvement of the quality of life
of European citizens and their well-being in a dynamic economy with full
employment and a high level of education, health protection, social and
territorial cohesion and environmental protection in a peaceful and secure
world, respecting cultural diversity.
10
1. THE ROLE OF HUMAN CAPITAL AS PER THE LISBON GOALS
Every individual represents human and social capital, but human capital
involves also a social relation. Social and other skills enable individuals to get
involved in the labour market and to interact with others. These interactions
bring out a synergy effect. On the state level, employed, educated and trained
people are valuable social capital that can contribute to a nations competi-
tiveness. Because human capital, intellectual capital, social capital, business
intelligence and corporate strategy generate added value, human capital is
to be treated systematically. Individual human capital is social capital and it
relates to competitiveness. All this goes of course far beyond Article 128 and
150 of the EC Treaty.
The social and human capital aspects need to intervene in a systematic
way and be subject to a systematic approach on all levels (EU, state, policy
level, action). The interventions and the use of its resources are to be veri-
ed, not only to check the use of nancial resources used but also to assess
the quality of the actionsin particular, whether they bring added value
in terms of human resources. Structural funds should be seen as a tool for
making structural performance more dynamic economically, and also for
maintaining the high growth rates that facilitate reductions in disparities and
improve social and economic cohesion in EU as a whole.
11
It was a response to the acknowledgement by European leaders of the
need for far-reaching reforms in the EU to meet the challenges of ageing,
enlargement and globalisation. The EU Heads of State and Government
were well aware that this could only be effectively undertaken by an approach
involving all Member States and reforms: product and capital market reforms,
10
Council of the European Union, Review of the EU Sustainable Development Strat-
egyRenewed Strategy, Brussels, June 2006, at 2.
11
Communication from the Commission. The growth and Jobs Strategy and the Reform
of European cohesion policy, Fourth progress report on cohesion, SEC (2006), at 19.
188
investments in the knowledge-based economy, labour market reforms, social
policy reforms and environmental reforms.
The Commission Communication, titled Promoting decent work in
the world
12
, aims to strengthen EU policies and programmes in helping
spread decent work both inside and outside the EU.
2. HUMAN CAPITAL, INTELLECTUAL CAPITAL, SOCIAL CAPITAL
Lifelong learning is the recognition of the importance of human resources
in the global competition for knowledge, innovation, and creative use and
management of information. In this connection, lifelong learning turned from
a theoretical way of thinking to an approach or a concept. Lifelong learning
does not only improve human capital, but also facilitates the acquisition of
social capital and cultural development both of which are becoming impor-
tant ingredients of the human developmental factor, including intellectual
knowledge. Promoting a culture of lifelong learning is both attractive and
relevant for working life and society. It involves, engages and builds on the
diversity of actors, bodies and resources at national, local and regional levels.
Social partners have to pay particular attention to setting conditions
favouring equal opportunities in access to training, such as family-friendly
practical arrangements; to follow up and implement their agreement on
lifelong learning. Local education and training policies cannot be formu-
lated in isolation from developments regarding the wider workplace and
business. Enterprises should foster innovation and competitiveness, social
capital, at the local level through co-operation with social partners, universi-
ties, research centres, NGOs and local administrations.
13
The EU concept of lifelong learning has positive effects in relation to
individuals (as target groups of investment), who not benet from the inter-
vention in terms of employability or of integration but it also contributes
towards competitiveness. That is why the well-being of people becomes more
and more important. The interrelation among the well-being of people and
competitiveness is well recognised.
12
Commission of the European Communities, COM (2006) 249, Communication from
the Commission to the Council, The European Parliament and the Committee of the
Regions: Promoting decent work for all, The EU contribution to the implementation
of the decent work agenda in the world, SEC (2006) 643, Brussels, May 24, 2006.
13
Council Resolution on Social and Human CapitalBuilding social and human capital
in the knowledge society: learning, work, social cohesion and gender, Brussels, May 9,
2003, at 4.
189
Competitiveness means not only the capacity of a rm, but of all subjects
in a sector or region in a competitive socio-economic environment, to defend
or increase its market share over the medium and longer term, and to generate
wealth. It is directly related to the notion of competitive advantage, an advan-
tage which an enterprise, region or sector must possess or develop if it is to be
competitive. It generates wealth. It is therefore important to mobilise actors
and resources by means of diverse learning partnerships.
14

III. AN EUROPEAN EMPLOYMENT STRATEGY
The European Employment Strategy works in fact as a EU model for a
global strategy. It is a framework that should serve the purpose of job creation
in the whole of the EU. The Employment Mainstreaming provision, Arti-
cle 127(2) EC stipulates that the objective of a high level of employment
shall be taken into consideration in the formulation and implementation of
Community policies and activities.
15
Employability is dened as being related to the probability of nding
employment. This probability varies according to the context of the interven-
tions; when ghting against unemployment; it depends also on the availability
of jobs. The results of the public consultation conrmed that the emphasis on
competitiveness and innovation should take account of the social agenda and
that future cohesion policy should continue the balanced approach to reach
objectives of higher economic growth and more and better jobs.
16
14
Commission of the European Communities: Communication from the Commission to
the European Parliament, the Council, the European economic and social committee
and the committee of the regions: The Social Dimension of Globalisationthe EUs
policy contribution on extending the benets to all, at 11.
15
The European Union has made considerable progress in strengthening its economic fun-
damentals and fostering job creation. However, the current employment rate is unsat-
isfactory and unemployment remains high (around 9% of the European workforce).
Hence the objective is to work towards raising the employment rate to as close as possible
to 70 % by 2010. Commission of the European Communities, Integrated Guidelines for
Growth and jobs (20052008), including a Commission recommendation on the broad
guidelines for the economic policies of the Member States and the Community (under
Article 99 of the EC Treaty) and a Proposal for a Council decision on guidelines for the
employment policies of the Member States (under Article 128 of the EC Treaty), Brus-
sels, April 12, 2005, at 2.
16
European Commission, DG Regional policy, Working document of DG summarising
the results of the public consultation on the Community Strategic Guidelines for Cohe-
sion, 20072013, 2005, at 2.
190
The improvement in employability is not systematically measured by
the placement rates; it is dened in a specic way for a number of policy
elds, as follows
17
:
Development of an active labour market policy: employability is meas-
ured by the net placement rates in sustainable jobs for different cat-
egories of unemployed.
Access to the labour market for persons threatened with exclusion: at a
given level of employment, improvement of employability is measured
in terms of the individual capacity to integrate (qualications, know-
how, adaptability, and sociability). Impact assessment can include sub-
stitution effects in favour of target groups threatened with exclusion
from the labour market.
Life-long learning: adaptability in terms of matching professional activ-
ities with vocational training, as measured by the net impact on worker
mobility, the nature of employment contracts and incomes.
Adaptability and entrepreneurial spirit: improving the employability of
persons whose qualications are obsolete with respect to the develop-
ments of methods of production. The effects are connected with worker
satisfaction, with the impact on the level of responsibility taken, with
income level, etc.
Equal opportunities for men and women: equality in employment as
measured by the impact on equality of womens position in the labour
market, for example, the level of responsibility, equal treatment.
After the reform of the Lisbon goals, the 2003 reformed European
Employment Strategy remains the framework of action for the pursuit of
competitiveness of the EU and its Member States
18
. The European Employ-
ment Strategy has become an important management tool at national level
and within the system of shared management. For the next nancial per-
spective 20072013, the European Employment Strategy forms part of
integrated guidelines, the so-called national strategic reference framework
17
European Commission, Eurostat: LMP Methodology Appendix 1, rev. May 2004
18
Lisbon action plan incorporating EU Lisbon programme and recommendations for
actions to member states for inclusion in their national Lisbon programmes companion
document to the communication to the spring European council 2005 COM (2005)
24 nal.
191
(NSFR). NSFR is the basic document connecting the EU and Member
States in the implementation of the Lisbon strategy.
The integrated guidelines for growth and jobs (20052008 and a base
for NSFR 20072013) are a framework of macroeconomic guidelines,
microeconomic guidelines and employment guidelines. The presentation
of an integrated package of Employment Guidelines and Broad Economic
Policy Guidelines helps to refocusing the Lisbon Strategy on growth and
employment. The European Employment Strategy has the leading role in
the implementation of the employment objectives of the Lisbon strategy.
The strengthening of social cohesion also constitutes a key element for the
success of the Lisbon Strategy. Conversely, as set out in the Social Agenda,
the success of the European Employment Strategy will contribute towards
the achievement of greater social cohesion.
In line with the conclusions of the European Council of March 22 and
23, 2005, the Union must mobilise all appropriate national and Commu-
nity resourcesincluding the cohesion policyin regards to the Lisbon
Strategys three dimensions (economic, social and environmental) so as
better to create synergy in a general context of sustainable development.
The objectives of full employment, job quality, labour productivity and
social cohesion must be reected in clear priorities: to attract and retain
more people in employment, to increase labour supply and modernise
social protection systems; to improve adaptability of workers and enter-
prises; and to increase investment in human capital through better educa-
tion and skills. We can say that social and economic well-being are after
all quite transparent
19
.
Macroeconomic guidelines are:
20
To secure economic stability.
To safeguard economic sustainability.
To promote an efcient allocation of resources.
19
European trade Union Confederation, Union of Industrial and Employers Confedera-
tions of Europe-UNICE/UEAPME European Centre of Entreprises with public Par-
ticipation and of Entreprises of General Economic Interest: Framework of actions for
lifelong development of competencies and qualications, 20040829 Report from
the Commission to the spring European Council: Delivering Lisbon, Reforms for the
enlarged Union, COM (2004) 29 nal/2, 2004.
20
Cf. The Integrated Guidelines for Growth and Jobs 20052008.
192
To promote greater coherence between macroeconomic and structural
policies.
To ensure that wage developments contribute to macroeconomic stability
and growth.
To contribute to a dynamic and well-functioning EMU.
Microeconomic guidelines are:
To extend and deepen the internal market.
To ensure open and competitive markets.
To create a more attractive business environment.
To promote entrepreneurial culture and create a supportive environ-
ment for SMEs.
To expand and improve European infrastructure and complete agreed
priority crossborder projects.
To increase and improve investment in R & D.
To facilitate innovation and the take up of ICT.
To encourage the sustainable use of resources and strengthen the synergies
between
environmental protection and growth.
To contribute to a strong industrial base.
Employment guidelines are:
To implement employment policies aimed at achieving full employment,
improving the quality and productivity at work, and strengthening social
and territorial cohesion.
To promote a lifecycle approach to work.
To ensure inclusive labour markets for job-seekers and disadvantaged
people.
To improve matching of labour market needs.
To promote exibility combined with employment security and reduce
labour market segmentation.
To ensure employment-friendly wage and other labour cost developments.
193
To expand and improve investment in human capital.
To adapt education and training systems in response to new competence
requirements.
All these factors are interrelated: [ . . . ] the EU and the individual Mem-
ber States should put the emphasis on investment in knowledge to ensure
the economic dynamism and the vigour of the whole European economy.
The realisation of a knowledge society, based upon human capital, education,
research and innovation policies, is key to boost growth potential and prepare
future [ . . . ] Together with the completion of the internal market and the
promotion of fair competition the establishment of a favourable climate to
business and enterprise, the development of infrastructure, building an adapt-
able and inclusive labour market, knowledge driven reforms are sources of
economic growth and higher productivity. And all are more likely to take place
against a background of growth supporting macroeconomic policies.
21
A knowledge-based society and a knowledge-based economy can con-
tribute to sustainable economic growth, an increase in employment and
more social cohesion. Despite the European initiatives in the eld of research
and the e-Europe initiatives, Europe lags behind the US in taking up new
technologies. Hence the Commissions main objective is to accelerate the
development of the knowledge-based economy in such a way as to create
more jobs in Europe. This will involve pursuing the objectives of the knowl-
edge-based society in the framework of the European Employment Strategy
(EES)
22
, ensuring life-long learning and closing the skills and gender gaps,
and promoting cooperation at the European level between research establish-
ments, scientic centres, the universities and schools
23
.
21
Commission of the European Communities, Integrated Guidelines for Growth and jobs
(20052008) including a Commission recommendation on the broad guidelines for
the economic policies of the Member States and the Community (under Article 99 of
the EC Treaty) and a Proposal for a Council decision on guidelines for the employment
policies of the Member States (under Article 128 of the EC Treaty), Brussels, April 12,
2005, at 4.
22
Council decision of 22 July 2003 on guidelines for the employment policies of the
Member states (2003/578/EC. OJ L 197/13, Aug. 5, 2003).
23
European Commission. Annex to the Communication: Modernising education and
training: a vital contribution to prosperity and social cohesion in Europe: draft 2006
joint progress report of the Council and the Commission on the implementation of the
Education & Training 2010 work programme. Brussels, Nov. 2005 (SEC [2005] 415);
europa.eu.int/comm/education/policies/2010/doc/report06staff.pdf.
194
There is also increasing empirical evidence showing that integrated
product market reforms have a positive impact overall on productivity and
employment output.
24
IV. AN EU MODEL FOR A GLOBAL STRATEGY AND
A SOCIAL EU
The Commission has launched its new Social Agenda
25
for modernis-
ing Europes social model under the Lisbon Strategy for growth and jobs.
By modernising labour markets and social protection systems, it will help
seize the opportunities created by international competition, technologi-
cal advances and changing population patterns while protecting the most
vulnerable in society.
The Commissions new agenda aims at providing a comprehensive and
coherent approach for the European Union to confront the new challenges to
social policy. This new agenda stresses the essential linkage between Europes
economic strength and its social model, and is also designed to permit posi-
tive and dynamic interaction of economic, employment and social policy.
The new agenda focuses on providing jobs and equal opportunities for all
and ensures that the benets of the EUs growth and jobs drive reach every-
one in society. It is based on a series of measures designed to reinforce social
policy as a productive factor: employment and quality of work, the knowl-
edge-based economy, the social situation in the Member States, enlargement
and internationalisation.
The Lisbon Agenda goal was to be achieved through modernising the
European social model and not just by applying a macroeconomic policy
mix that would favour growth. As far as policy tools can achieve an appropri-
ate macroeconomic policy mix at all, they need to include modernising the
European social model, investing in people and combating social exclusion
24
Commission of the European Communities, Integrated Guidelines for Growth and
jobs (20052008) including a Commission recommendation on the broad guidelines
for the economic policies of the Member States and the Community (under Article 99
of the EC Treaty) and a Proposal for a Council decision on guidelines for the employ-
ment policies of the Member States (under Art. 128 of the EC Treaty), Brussels April
12, 2005 at 16.
25
Communication from the Commission on the Social Agenda, COM/2005/0033 nal.
195
as well as improving R & D and ICT policies
26
, stimulating competitiveness
and innovation, and to completing the single market.
The social systems of the Member States face a series of common chal-
lenges such as the need to adapt to the changing world of work, new family
structures, gender inequality, demographic changes. Failure to adapt and
modernise social protection systems increases unemployment, poverty and
social exclusion. With a view to preventing and eradicating poverty and
exclusion and to promoting the integration and participation of all into eco-
nomic and social life, the Commission proposes a series of actions designed
to promote more and better job opportunities for vulnerable groups, includ-
ing people with disabilities, ethnic groups and new immigrants. It is a recog-
nition of the fact that sustainable improvement in welfare depends on three
factors: income or wealth creation; the distribution of that wealth among
individuals; and the quality of the environment.
It can easily be seen that efcient social policies and increased social
cohesion can contribute to better economic performance. In the social
domain, the Lisbon strategy therefore focuses on the need to modernise
social protection systems, in order to ensure that work pays off, that both
nancial and social sustainability is enhanced, that working conditions are
improved and skill levels increased. In the longer term, such social policies,
particularly if based on efcient investments in human capital, should be
conducive to higher economic growth as they tend to improve productivity
and increase participation of the labour force.
The Commission has realised that it is necessary to start using resources
in ways that are more relevant to decisions that need to be taken
27
. In this
connection, two important functions of social policy should be highlighted:
Not only does it help reduce social exclusion and the human cost thereof.
(Social policies provide income support to the unemployed and alleviate
poverty.) So too, it increases social adaptability and responsiveness to eco-
nomic, social and industrial change through an effective combination of job
exibility and security.
26
Implementing the Community Lisbon Programme: Communication from the Com-
mission to the Council, the European Parliament, the European Economic and Social
Committee, and the Committee of the RegionsMore Research and Innovation
Investing for Growth and Employment: A Common Approach ECOFIN 319, Brus-
sels, 2005.
27
Communication from the Commission to the spring European Council: Time to move
up a gear, The new partnership for growth and jobs, Part 1, COM, Brussels, 2006.
196
All this is about reacting in time without waste of limited resources
resources being not only money, but also human resources and potential. Just
as Lisbon deals with a knowledge based society, the EU as economy has to
support participative democracy to increase its global competitiveness, and
to even to develop instruments for the further development of democracy.
V. SOCIAL INCLUSION AND THE OPEN METHOD OF
CO-ORDINATION
The Nice European Council
28
also agreed in 2000 to harness social inclu-
sion policies with an open method of co-ordination, which was to combine
national action plans and a Commission initiative for co-operation.
The Open Method of Coordination has ve main elements:
1. Agreeing on common objectives for the Union
2. Establishing common indicators as a tool for comparing best practices and
measuring progress
3. Translating the EU objectives into national/regional policies on the basis
of National Reports on Strategies for Social Protection and Social Inclusion
4. Publishing other reports, analysing and evaluating the National
Reports
5. Adoption of a Community Action Programme to promote policy cooper-
ation and transnational exchange of learning and good practice.
The Open Method of Coordination (OMC) is set to make a decisive
impact on the eradication of poverty and social exclusion by 2010
29
. Key
elements in the Open Method include agreement by the Member States
on common objectives, but also the development of common indicators to
measure progress, the development of National Action Plans and regular
monitoring and analysis.
OMC is a continuous process, in which results obtained will feed into
follow-up reports, e.g. National Reports on Strategies for Social Protection
and Social Inclusion aimed at broadening the horizons of policy makers
28
Presidency conclusions: Nice European Council meeting, Dec. 7.9., 2000, Brussels.
29
Lisbon programme and recommendations for actions to member states for inclusion in
their national Lisbon programmes (Companion document to the communication to the
Spring European Council 2005, COM (2005) 24 nal.
197
and promoting the cross-fertilisation and exchange of ideas and experiences
in a long term perspective, aided by meetings with counterparts to high-
light common challenges and opportunities again with the aim of further
developing exchange and dialogue, policy analysis and recommendations
30
.
In order to prevent OMC from losing focus and spiralling out of control,
outside, independent evaluation is crucial.
Meeting the key policy priorities identied for Social Protection and
Social Inclusion requires:
policies and actions promoting social inclusion in deprived urban areas
and neighbourhoods
active inclusion policies for the people furthest from the labour market
policies and actions preventing and alleviating child poverty
strategies to prevent and tackle homelessness
policies and actions addressing inequities in access to care
policies concerning minimum income for pensioners.
The Commission proposed to streamline the co-ordination of policies
on social inclusion with that on pensions and with the planned work on
health and long-term care, to form an integrated process. Separate reporting
under the OMC on social protection and social inclusion continues, with
social protection issues relevant to the new Integrated Guidelines also being
reected in National Reform Programmes. Thus, in accordance with the
European Councils vision of growth and employment making for social
cohesion, policies within the revised Lisbon agenda contribute to social
cohesion and inclusion. The Commissions Communication on the pro-
motion of active inclusion of the people furthest from the labour market
is both to foster labour market access for those who are excluded from the
labour market and to launch a public consultation on possible orientations
for action at the EU-level, based on Article 138 EC. This consultation is
furthermore to be widened to include national authorities and civil society. It
is to reinforce the feedback between the Broad Economic Policy Guidelines
30
Communication from the Commission to the Council, the European Parliament, The
European Economic and Social Committee and the Committee of the Regions, Joint
Report on Social Inclusion, summarising the results of the examination of the National
Action Plans of Social Inclusion (20032005), SEC (2003) 1425, COM (2003) nal,
Brussels, Dec. 12, 2003.
198
(BEPGs), Employment Guidelines and the national Lisbon Programmes as
well as the OMC in the social eld.
Good governance favours social inclusion and well-being and there are
many ways, national and sub-national, to mobilize and to use resources to this
effect; the trick is, how to take the relevant decisions. Aiming at more effective
policies is consistent with promoting good governance for social inclusion
provided we capitalise on lessons learned. The social inclusion process has
been showing a strong commitment to involve civil society in policy making
to the extent that all actors and all levels of government work together. Good
governance for social inclusion also encompasses the aim of mainstreaming
social inclusion into public policy making (including budget setting).
1. VALUES AND STAKEHOLDERS OF THE XXIST CENTURY
Building a more inclusive European Union is an essential element in
achieving the Unions ten-year strategic goal of sustained economic growth,
more and better jobs and greater social cohesion. Each society has the right to
decide the institutionalisation of functions to programme the development
and prosperity of their economy, people and human resources. Therefore,
tradeoffs are required as regards such key values as: employment, mobility,
competitiveness, social inclusion, knowledge, and equality.
Programming development in the context of values takes place against
the backdrop of conicts of interests between the public, the business sector
and civil society. The social inclusion process has been showing a strong com-
mitment to involve civil society so that all actors and all levels of government
work together.
But in a changing environment a constant testing of public interests
and values is needed. Public decisions need to be rethought and evaluated
in independent manner. Apart from private interests there are social values,
some values of such importance as to require institutionalised attention, and
institutionalised control. Ideally, the institutional base for this should be
enshrined in the constitution, not only in form of rights of individuals but
also in form of responsibilities. What is required are new, innovative.
2. INDEPENDENT, INSTITUTIONALIZED CONTROL
Institution building is important as a platform for the public interest.
Only independent experts can provide an unbiased opinion about the qual-
ity of resources used and their relation to the right values.
199
The right to information should go hand in hand with a duty of account-
ability. It is important that individuals take up their responsibility and are
accountable. Individuals need to be able to understand consequences and
institutions must help in this process. They need to help them to preview and
predict outcomes; increasingly, crucial and long-term decisions are required
with impact of a kind requiring not just disclosure of information but also
disclosure of consequences and a guaranteed quality of decisions.
Continuous audit of public interests and values is needed by an inde-
pendent institution. Choosing the right policies and taking the right meas-
ures therefore requires reinventing the evaluation function for EU citizens
and the overcoming of conicts of interests between labour market, capital
market, service and market of goods, exactly because the EU internal market
is a part of global market.
The right of society to control their own economies is closely related
to the right of the access to information and consequences. It is no longer
sufces to abide laws and ethics, but to provide and manage resources
with quality in a context where resources are increasingly becoming scarce.
Economy of costs is a must, meaning not just the efcient and effective use
of money, but also an efcient and effective use of all imaginable resources.
In order to achieve this, boundaries and conicts of interests need to be
overcome.
That is why an institutionalised approach is imperative. A systematic
approach and control is a must when resources are limited and programmes,
needs and wishes very concrete. But it is important to note that there are
ways of awareness-raising at the national and sub-national level other than
involving just independent evaluation and a concentration of efforts on cen-
tral decisions. An audit trail for nances is certainly good, but it needs to be
complemented by a socalled an evaluation trail so as to really guarantee
the required quality.
3. QUALITY EVALUATION AS AN AID TO INSTITUTIONALISATION
31
As time presses and as there is a lack of resources in terms of capital,
nances and knowledge, a systematic approach is required. As stated before,
advance programming requires monitoring not only in the sense of an audit,
but also an evaluation trail.
31
Employment strategy and European Social Fund policy development and coordination stock-
taking of evaluations on the European Employment Strategy EMCO/06/090206/EN.
200
Evaluation is a judgement on the value of a public intervention with
reference to criteria and explicit standards, e.g. its relevance, its efciency.
32

This judgement concerns most of all the needs which have to be met by the
intervention, and the effects produced by it. The evaluation is to be based on
information, which is specically collected and interpreted to produce the
judgement. For example: the evaluation of the effectiveness of a programme,
a cost-benet evaluation of a project, an evaluation of the validity of a policy,
or an evaluation of the quality of a service delivered to the public. Evaluation
is in the interest of well-being, efciency and effectiveness, and it should be
available as a matter of course.
The object of evaluation may be a policy, programme, a measure or a
project. The term public intervention is applied, generically, to any evalua-
tion object. The scope of the evaluation (precise denition of the evalua-
tion object, of what is evaluated) must be dened in at least four respects:
operational (all or part of the domains of intervention, one or several related
policies), institutional (all or part of the authorities), temporal (period taken
into consideration) and geographical (one or more territories or parts of ter-
ritories, a particular region, town, nature reserve, etc.).
Evaluation as an economic impact assessment is about tracking the cause
and effect of an intervention. It can be undertaken before, during or after
activities to assess the amount of value added by a given intervention and
whether it is justied. Effects include results and impacts of an intervention,
whether positive or negative, expected or not.
Retrospective evaluation or effectiveness evaluation is about what results
have been attained and whether objectives have been achieved. Efciency
evaluation is about whether the effects were obtained at a reasonable cost.
Efciency may be assessed by answering questions, such as: Could more
effects have been obtained with the same budget? or Have other interven-
tions obtained the same effects at a lower cost? These criteria remind of the
notion of subsidiarity and proportionality
33
32
Regulation 438/2001: Management and control systems for Structural Funds, The New
Programming period 20002006: methodological working papers, Working paper No.
3, Indicators for Monitoring and Evaluation. An indicative methodology, European
Commission, Directorate General XVI, Regional Policy and Cohesion, Co-ordination
and Evaluation of Operations, at 3.
33
See the chapter by Jan-Peter Trnka in this volume.
201
Besides efciency and effectiveness, relevance, reliability and sustain-
ability are also very important values for well-being
34
. They have no basis in
primary law.
By denition, relevance is the appropriateness of the explicit objectives
of an intervention, with regard to the socio-economic problems the inter-
vention is meant to solve. Questions of relevance are particularly impor-
tant in ex ante evaluation, because the focus is on the strategy chosen or its
justication. Within the framework of mid-term evaluation, it is advisable
to check whether the socio-economic context has evolved as expected and
whether this evolution calls into question the relevance of a particular initial
objective.
Reliability is a quality of the collection of evaluation data, their objectiv-
ity, soundness, and representativeness during repeated observations in identi-
cal conditions.
Sustainability is the ability of effects to last in the middle or long term.
Effects are sustainable (durable in French) if they last after the funding granted
by the intervention has ceased. E.g. human resources are not sustainable if
an activity is unable to generate its own resources, or if it is accompanied by
negative effects, particularly on the environment, and if that leads to block-
ages or rejection.
When analysing, say, the relevance of human resources, evaluation traces
the suitability of the objectives, given the priorities and measures that were
decided, as well as the types of operations implemented, in light if two
aspects, namely:
the socio-economic context of the operationsthe needs of direct and
indirect beneciaries.
There of curse are many ways of awareness-raising, national and sub-
national, in addition to independent evaluation, but to overcome the current
mismatch between resources and decisions, it is of overriding importance
right now that objectives be clear and explicit and that this be achieved by
public intervention.
Institution built evaluation moreover could be of great use and help to
build up norms and laws about well-being.
34
European Commission, DG regional policy, The new programming period 20072013
Methodological working documents, Working paper. Indicators for monitoring and
evaluation: A practical guide, Jan. 23, 2006.
202
VI. GOOD GOVERNANCE AND WELL-BEING
Good governance for social inclusion also embraces the aim of main-
streaming social inclusion into public policy making (including budget
setting). Stakeholders, including civil society and social partners, in the
elaboration, implementation and monitoring of social inclusion policies are
to contribute in the mainstreaming of social inclusion. Goods and services
may be provided economically and efciently but if they do not achieve their
intended objectives, the resources used will be wasted.
Accountability is a government policy or management concept which
requires (i) that politicians and public ofcials have to respond periodically
to questions concerning their activities (answerability) and (ii) that they can
be held responsible for the exercise of the authority provided to them. For
effective accountability, clear lines of responsibility must be established and
consistently maintained. Performance measurement can be used as an instru-
ment of managerial accountability.
There are several groups of stakeholders: Parliaments, Governments,
ministries (for culture, for education . . . ), ombudsmen, mass media, tax-
payers and the public. Stakeholders have to be clear about their interests and
available services. These differ from stakeholder to stakeholder. But there
is a convergence of values and it can be measured if adequate standards
are being used. Standards are norms for measuring the attainment of the
objectives and guidelines for control. Effectiveness is one such norm and
the most important element of value for money in the public sector. Thus,
performance is often measured against what other comparable programmes
or organisations are achieving, or national/international standards in the
eld. Ideally, the value of well-being is to become a standard guaranteed by
the constitution. In absence of that the Lisbon targets are set, and the budget
and policy statements of governments adapted accordingly. A sound system
of public expenditure management needs to take into account the wider
values and requirements of society and corporate responsibility. Those are
norms or standards about accountability, transparency, predictability and
participation/partnership.
The process of globalisation ought not to be accompanied by unjusti-
ed fears of loss of social, national, cultural or economic identity. It should
be regarded as a challenge for everyone who is participating in this process
in which they can [communicate] their own identity to others.
35
35
F. Fidler, Public Auditing and Globalisation, EUROSAI, 2000, at 3.
203
VII. CONCLUSION
The social and economic well-being of people should be an essen-
tial State function as it mobilises a societys social and individual capital.
Increasingly, investment in knowledge is crucial for the EU, because inputs
in human capital is the key drive to growth. Making better use of human
resources raises the quality of EU jobs and living standards.
As agreed at the Lisbon summit and in the Social Policy Agenda endorsed
at Nice, these goals are imperative; all management instruments are part of
the acquis comunautaire, but this is not binding. Well-beingas a value is
relative, but it is important when measured against the very sound Lisbon
targets.
The Commissions new agenda aims to provide a comprehensive and
coherent approach for the European Union to confront the new challenges
to social policy. It stresses the essential linkage between Europes economic
strength and its social model, and is also designed to permit positive and
dynamic interaction of economic, employment and social policy. It is based on
a series of measures designed to reinforce social policy as a productive factor:
employment and quality of work, the knowledge-based economy, the social
situation in the Member States, enlargement and internationalisation.
The social systems of the Member States now face a series of signi-
cant common challenges, such as the need to adapt to the changing world
of work, new family structures, persistent gender inequalities, and demo-
graphic changes. Failure to adapt and modernise social protection systems
would only increase the risk of more unemployment, poverty and social
exclusion. Ideally, elements of wellbeing should be worked into a European
constitution. Failing that, the Charter of the European Union on fundamen-
tal rights could be revamped.
36
Also, the Lisbon strategy should continue to
promote these issues with vigour.
36
See the chapter by Eve Landau in this volume.
THE IMPORTANCE OF THE LISBON
STRATEGY, PARTICULARLY AS APPLIED
TO THE SERVICE SECTOR
Samo Zupancic
I. INTRODUCTION
Growth in the economy is, today, essentially driven by services. They
account for 70% of GDP and employment in the European Union.
1
The
most important aspect of services in economic terms is business related ser-
vices (business services, distributive trade, network services and nancial
services).
2
These constitute the largest and the most dynamic sector of the
economy, which accounts for more than two-thirds in terms of the estab-
lishment of new enterprises and for nearly 55% of the total employment in
the EU.
Services are to be found in all areas of modern economies. They attract
a remarkable part of foreign direct investment (FDI). The EU is the worlds
greatest services exporter, but it is losing ground as compared to the develop-
ment of the sector in the globalized world market, especially the USA. Efcient
provision of services has become a major factor driving competition.
3
It is not
surprising that services are among the main targets of the Lisbon strategy, also
1
European Commission (2002), The State of the Internal Market for Services. Brussels,
COM (2002) 441 nal.
2
European Commission (2003), The Competitiveness of Business-Related Services and their
Contribution to the Performance of European Enterprises, Brussels, COM (2003) 747.
3
European Commission (2000), An Internal Market Strategy for Services. Brussels,
COM (2000) 888 nal.
206
after a rst revision of that strategy.
4
Openness as well as a more liberal market
regulation in services not only fosters productivity growth; indirectly, it affects
innovation as well.
5
Nevertheless, the overall Internal Market for services is not working as
efciently as it should. There are many obstacles in every stage of the business
process, including establishment, the use of foreign inputs, sales promotion,
distribution, and after-sales of services.
6
All these barriers have a serious nega-
tive effect on the cost and the quality of the service that is ultimately provided
to the consumer. Barriers to trade in services especially penalize small and
medium sized enterprises (SMES), who are disproportionately affected by the
increasingly complex administrative and legal requirements they may entail.
Goods and services are both part of the internal market, but, in compari-
son to goods, there are marked differences in the denition, legal approach
and also practical application of the freedom to provide services. Whereas
the free movement of goods is densely regulated, there are only few legislative
acts or regulatory decisions regarding services. Also the caselaw is patchy. The
Commissions brochures entitled Freedom to provide Services and Freedom of
Establishment clearly illustrate this.
7
Arguably, the differences can be explained at the example of the history
of international trade in goods, which has followed a similar course in the
framework of the WTO. Whereas the GATT (General Agreement on Tariffs
and Trade) became effective in 1947, GATS (General Agreement on Trade
in Services) is of a much more recent date, i.e., 1994 (GATS 1994). It is part
of the Marrakech Agreements establishing the WTO. Until this Agreement,
there had not been any international act about services. GATS, in its Article
V does not prevent any member from entering into a separate agreement
about the liberalization of services, but it subjects it to certain conditions.
The EU is a regional integration organization actively engaged in the
liberalization of trade in services. The basic principles of the EU freedom
4
European Commission (2005), A New Start for the Lisbon Strategy. Brussels, COM
(2005).
5
Austrian Federal Ministry of Economics and Labour (2005), Deepening the Lisbon
Agenda. Studies on Productivity, Services and Technologies, Vienna.
6
H. Kox, A. Lejour and R. Montizoon, The Free Movement of Services within the EU.
CPB Document N 69, The Hague, Oct. 2004.
7
European Commission (Jan 1, 2001), Guide to the Case Law: Freedom to provide
Services, Brussels and European Commission, Guide to the Case Law: Freedom of
Establishment, Brussels.
207
THE IMPORTANCE OF THE LISBON STRATEGY
to provide services were created at the time of the Rome Treaty. Unlike in
the manufacturing industry, where the Single Market appears to be working
quite well, in the service industry there is a large gap between the vision of
an integrated European economy and the reality.
Some commentators hold the view
8
that bilateral trade and investment
in services is hampered not so much by the degree of regulation but by the
heterogeneity of national services provided. Maybe that was why the coun-
try of origin principle was proposed in the rst place.
Also in the WTO the liberalization in goods is much more advanced
than the liberalization of services, where the question of movement of natu-
ral persons is the most sensitive issue. Many types of services (transport, air
transport services for example) have not been liberalized in the framework
of the WTO at all. Finally, GATS Schedules of particular countries include
additional restrictions.
In the opinion of this author, changes in the text of the Treaty estab-
lishing a Constitution for Europe are recommended to relieve the services
market and to increase the accessibility of services in the EU internal market.
Changes in legislation are at most second best.
II. THE FREE MOVEMENT OF SERVICES IN THE EU
There is considerable difference in implementation of the EC Treatys
free movement of goods and the free movement of services provisions. It is
easily understandable that the same approach cannot be applied in the eld
of the free movement of services as is applied in the eld of the free move-
ment of goods. The nature of goods and services is totally different.
The Directive of the European Parliament and of the Council on Ser-
vices in the Internal Market
9
was proposed only after many years of studying
trade in services in the European Union. The Directive was based on the
nding that services in the European Union account for about 70% of the
GDP and employment of the Union, and that the growth in the economy is
essentially driven by services. In 2004, the rst proposal of the Directive was
prepared. After much discussion and controversial proposals, the last draft
was scheduled for approval end 2006.
8
Kox et al, op. cit..
9
Cf. European Commission (2006), Directive of the EP and of the Council on services
in the internal Market, Brussels, COM (2006) 160 nal.
208
The Directive is an important part of the Lisbon strategy of the Euro-
pean Union. It should lead to the removal of obstacles to the free movement
of services inside European Union, harmonize the different Member States
practices on services and help to create a real Internal Market in services. The
latest version of the directive is more liberal than the rst one, but it will
nevertheless eliminate many barriers in services. However the new Directive
will not solve all problems facing the internal market in services.
In the latest version of the Directive, the principle of free movement of
services was substituted for the rule originally proposed according to which
service providers, when temporarily providing services in another Member
State, would be subject to the law of the country in which they are estab-
lished. The Parliament has reduced the number of areas to which the direc-
tive applies, notably excluding health and social services. Services of general
interest also remain excluded, as do nancial services, transport and port
services, audiovisual services, services provided by temporary work agencies,
gambling and security services.
It is evident that the approach for services should be changed. The analysis
of the effect of more than two hundred legal cases on the freedom of establish-
ment and the freedom to provide services could probably help understand the
current acquis in the eld of servicesFor reasons of space and time constraints
that cannot be undertaken here. However, it would show that the connection
between goods and services should be improved in the Constitution.
1. THE FREE MOVEMENT OF SERVICES
EU law denes free movement of services in Article III145 of the
Constitution
10
(Cf. Article 50 in the Nice
11
and Amsterdam Treaties
12
) as
follows:
Services shall be considered to be services for the purposes of the Con-
stitution where they are normally provided for remuneration, insofar as they
are not governed by the provisions relating to freedom of movement for
persons, goods and capital.
Services shall in particular include:
(a) activities of an industrial character;
10
Treaty on European Union, OJ C224 of Aug. 31, 1992.
11
Treaty of Nice, OJ C 80 of March 10, 2001.
12
Treaty of Amsterdam, OJ, C340 of Nov. 10, 1997.
209
(b) activities of a commercial character;
(c) activities of craftsmen;
(d) activities of the professions.
Without prejudice to Subsection 2 of the Constitution, relating to free-
dom of establishment, the person providing a service may, in order to do so,
temporarily pursue his or her activity in the Member State where the service
is provided, under the same conditions as are imposed by that State on its
own nationals.
The basis of the free movement of services is the prohibition of discrimi-
nation, in particular on grounds of nationality and residence. The prohibi-
tion of restrictions to the free movement of services is further dened in the
General Program for the abolition of restrictions for provision of services
13

as well as in the many rulings of the Court of Justice. Article II81 of the
proposed Constitution about non-discrimination should also be mentioned,
as it states:
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.
2. Within the scope of application of the Constitution and without preju-
dice to any of its specic provisions, any discrimination on grounds of
nationality shall be prohibited.
The essential characteristic of remuneration lies in the fact that it con-
stitutes consideration for the service on question, and it is normally agreed
upon between the provider and the recipient of the service
14
.
The ECJs rulings together with the Treaty provisions form a sophisti-
cated services regulatory system, which, however, is not sufciently taken
into consideration by some Members States.
According to the Court of Justice, services are performed in a limited
period
15
. For longer periods, the principles governing the right of establishment
13
General Programme for the abolition of restrictions on freedom to provide services,
OJ L, 323, Jan 3.1994, 401402
14
Case 263/86, Humber, [1988] ECR 5365, para 17.
15
C62 and 63/81, Seco, [1982) ECR 223 and Case C55/94, para 8, and Gebhard [1995]
ECR I4165, para 35.
210
should be applied. The Court of Justice has held that Member States may not
make the provision of services conditional upon prior establishment.
16
Accord-
ing to its well-established case-law
17
. . . the temporary nature of the provision
of services . . . is to be determined in the light of its duration, regularity, peri-
odicity and continuity.
In practice, services include activities of an industrial character, of a com-
mercial character, of craftsmen and of the professions, but there is no support
for this statement in the case law. There is no evidence that the NACE classi-
cation applies, nor indeed that the denition of services follows the technical
evolution which has taken place over the last decennia (network services etc.).
Consequently, the concept of services in EU law is unclear.
In Gebhard it was held that: The provisions of the chapter on services are
subordinate to those of the chapter on the right of establishment in so far, rst,
as the wording of the rst paragraph of Article 59 assumes that the provider and
the recipient of the service concerned are established in two different Member
States and, second, as the rst paragraph of Article 60 species, that the provi-
sions relating to services apply only if those relating to the right of establishment
do not apply . . . The implications of this hierarchy are not fully clear.
The elimination of transport services from Chapter of Services (Arti-
cle 51 EC and Article III145 of the Constitution) is still doubtful, especially
as regards land transport, inland water transport and supporting and auxil-
iary transport activities. A separate regime for transports was understandable
decades ago, but not nowadays.
Finally, it remains a mystery as to why different treatment is given to
the free movement of persons and the free movement of workers within the
same title of the Treaty.
2. THE RIGHT OF ESTABLISHMENT
The limitations to the right of establishment in the Constitution are not
as obvious as for the freedom to provide services. The EU legislation denes
the right of establishment in Article III137 of the Constitution as follows
(Cf. Article 43 in the Nice and Amsterdam Treaties):
Within the framework of this Subsection, restrictions on the free-
dom of establishment of nationals of a Member State in the territory
16
Case C58/98, Corsten, [2000] ECR I7919, para 43.
17
Case C55/94, Gebhard, [1995] ECR I4165, para 39.
211
of another Member State shall be prohibited. Such prohibition shall
also apply to restrictions on the setting-up of agencies, branches or
subsidiaries by nationals of any Member State established in the
territory of any Member State.
Nationals of any Member State shall have the right, in the terri-
tory of another Member State, to take up and pursue activities as
self-employed persons and to set up and manage undertakings,
in particular companies or rms within the meaning of the sec-
ond paragraph of Article III142, under the conditions laid down
for its own nationals by the law of the Member State where such
establishment is effected, subject to section IV relating to capital
and payments.
The prohibition of restrictions to the freedom of establishment is
detailed in the General Program for the abolition of restrictions on free-
dom of establishment.
18
The right of establishment is granted both to
natural persons who are nationals of a Member State of the Community
and to legal persons within the meaning of Article 58 EC. Subject to the
exceptions and conditions laid down, it allows all types of self-employed
activity to be taken up and pursued on the territory of any other Member
State, undertakings to be formed and operated by agencies, branches or
subsidiaries to be set up.
19
The rule of equal treatment of nationals of other Member States is
one of the fundamental legal provisions of the Community
20
: Rights given
to citizens of other Member States are enforceable by the domestic ten-
derer.
21
In addition, Article 52 of the EC Treaty prohibits Member States
from imposing conditions on the pursuit of activities by persons exercising
their right of establishment which differ from those laid down for its own
nationals.
22
18
S. Zupancic, Freedom to Provide Services and the Right of Establishment in the case of Slo-
venia. Third International Conference on the Economic System of the European Union
and the Accession of the Republic of Croatia. Lovran, University of Rijeka, University
of Trieste and University of Antwerpen, 2001, 391397.
19
Case C70/95, Sodemare,, [1997] ECR I3395, para 26.
20
Case C2/74, Reyners, [1974] ECR 631, para 24.
21
Case C58/98, Corsten, [2000] ECR I7919.
22
Case C270/83, Commission v. France, [1986] ECR 273, para 24.
212
III. THE RULES IN THE CONSTITUTION CONCERNING SERVICES
According to Article III145 of the Treaty establishing a Constitution
for Europe, services are subordinate to the freedom of movement for goods,
persons and capital. This subordination of services is questionable and should
be examined more closely.
1. THE SUBORDINATION OF FREE MOVEMENT OF SERVICES TO FREE-
DOM OF MOVEMENT OF GOODS
The subordination of free movement of services to free movement of
goods is understandable in exceptional cases. The conclusion of a contract,
say, for the assembly of composite goods for customers in other Member
States can be more complicated than a purely domestic transaction; and
oftentimes it can prove impossible. The equipment may be available but
useless without being in full operation and without guarantee. By restrict-
ing the services part of the equipment (installing equipment, for instance)
the business is not complete.
Directive 96/71/EC
23
excludes from its scope the right to eld workers
to install prefabricated (wooden) houses and other installations in indus-
trial and residential buildings.
Yet specic problems affect production services between Member States.
Few products can exist or be traded without trade in related services. This
may or not be so for so-called turnkey projects, such as the assembly of
prefabricated installations, equipment and housing. But sometimes a tender
for such a project is hopeless just because of restrictions in the movement
of services or the delay necessary for obtaining work permits of whatever
kind. Before he can tender, the supplier of the equipment must be able to
hire specic service providers capable of completing the installation of the
equipment on time as well as to a promised standard of quality. Oftentimes
the contractor may want to use specialists from his own country, as they
know best what is required of them.
The subordination of the free movement of services to the free move-
ment of goods works as an obstacle and should be remedied.
23
Directive 96/71/EC of the EP and of the Council of Dec. 16, 1996 concerning the post-
ing of workers in the framework of the provision of services. OJ L 018, Jan. 21, 1997.
213
2. THE SUBORDINATION OF SERVICES TO MOVEMENT OF PERSONS
The subordination of services to the movement of persons is even
less understandable. As restrictions for workers from new Member States
continue to be in place, why should there be also restrictions to the free
movement of services? Any restriction to the free movement of persons,
especially for self-employed persons, is a restriction of the free movement
of services and therefore, to international competition.
The placement of workers in the context of the provision of services is
not regulated by the Directive on services in the internal market. This is due
to a compromise when adopting the Directive. As Commissioner Spidla has
stated,
24
the removal of Article 24 and 25 of the Directive should not be taken
to mean that Member States are entitled to retain major administrative obstacles
in the way of employers posting workers across borders to provide services.
This is an important observation, because the provisions concerned deter-
mine the feasibility of performing goods oriented servicesdistribution and
production services according to Browning and Singelmann)
25
which are
commonly regarded as the most important form of services.
The posting of workers is regulated in the Directive 96/71/EC. The
mentioned Directive is inadequate, because workers performing services
are subordinate to the liberalisation of workers mobility, which, as we
know, is much more restrictive in the EU than the movement of goods,
for which the posting of workers caters.
Many problems related to the movement of persons and the posting of
workers are connected with the fast development of outsourcing in the world.
26

The process of externalization of services has been an important source of
growth in the services sector. Outsourcing decisions are not solely driven by the
labour costs aspect, but more frequently by the need to gain specialized skills in
order to increase exibility. Outsourcing allows concentration on core business.
The impact of outsourcing should be closely examined in the framework of the
services as well as in the framework of the European migration policy.
24
European Commission, Services Directive: The End of the Deadlock. Press release, Brus-
sels, April 19-,2006.
25
H. L. Browning and J. Singelmann, The Emergence of a Service Society: Demographic
and Sociological Aspects of the Sectoral Transformation of the Labor Force in the USA
(Springeld, VA, National Technical Information Service, 1975).
26
Business Week (March 1, 2004): Will Outsourcing Hurt American Supremacy ?
214
Consequently, the subordination of free movement of services to the free
movement of persons should be revisited.
3. THE SUBORDINATION OF THE FREE MOVEMENT OF SERVICES TO
FREE MOVEMENT OF CAPITAL
Also the subordination of free movement of services to the free move-
ment of capital is questionable. The freedom to provide services should not
be hampered by capital restrictions of any individual Member State.
The Constitutional treaty does not entirely follow the text of the old
Treaties on this point. The second subsection of part III of the Constitution
deals merely with the free movement of workers and services (Article III133).
Movement of capital is moved to section IV, in the subsection Capital and Pay-
ment (Article III156). Movement of capital is de facto treated separately. The
reasons for the severance between the movement of capital and the movement
of workers, services and establishment are obscure.
Nevertheless, nancial services (banking, insurance, and securities
market and investment funds) are an important part of Chapter 06: the
right of establishment and the freedom to provide services in the Directory
of Community legislation. The same is true for public contracts. Con-
versely, the Chapter 10 in the Directory makes clear that Economic and
monetary policy or the free movement of capital do not include provisions
about nancial services and establishment.
It should be noted that during the last rounds of negotiations for
membership in the EU it was agreed that nancial services would consti-
tute a substantial part of the meat of the Chapter on Freedom to provide
services. Could it be that this position will this change in case the Constitu-
tion enters into force?
The incorporation of section IV: Capital and Payment into section II:
Free movement of persons and services needs to be reconsidered.
4. SERVICES AND TAXATION
In some Member States, the freedom to provide services is limited by
other restrictions, notably those of a scal nature. In its relevant Commu-
nication,
27
the Commission stated its belief that income tax may have to
27
European Commission (2001), Tax policy in the European UnionPriorities for the
years ahead. Brussels, COM(2001) 260.
215
be left to Member States even when the European Union achieves a higher
level of integration than at present.
The European Court of Justice for its part has consistently held that,
although in the absence of harmonization, taxes on personal income fall within
the competence of the Member States, they must respect the fundamental
Treaty principles on the free movement of workers, services and capital and
the freedom of establishment. In other words, although Member States retain
their power in direct taxation matters, they nevertheless have to exercise their
direct taxation powers in a way that is consistent with Community law.
28
The inuence of taxation on the freedom to provide services should
be investigated and adjusted to take account of the need for the ordinary
provision of services.
IV. THE LIBERALIZATION OF SERVICES IN THE
NEW MEMBER STATES
1. IMPLEMENTATION OF THE ACQUIS COMMUNAUTAIRE IN
THE NEW MEMBER STATES
The development of services in the former socialist countries was
marked.
29
Yet, in the entire period 19932004 the growth of service exports
was slower than the growth of service imports.
30
The changes came from a number of reforms, including those geared
towards establishing a market economy (privatization, price liberalization,
28
Case C264/96, ICI v. Colmer, [1998] ECR I4695, para 19..
29
M. Stare and S. Zupancic, Liberalisation of Trade in Services: Slovenia`s Experience:
Round Table on Ten Years of Trade liberalisation in Transition Economies (July 1011,
2000), Working Party of the Trade Committee. Paris: OECD. CCNM/TD/(2000)52,
M. Stare and M. Svetlicic, Internalisation of the Service Sector in the Czech Republic, Hun-
gary and Slovenia. Phare ACE Project No. P978073-R, Ljubljana 2001. S. Zupancic,
(1997), Pogajanja Slovenije o liberalizaciji trgovine s storitvami v okviru WTO, EU, Cefte
in Efte = Slovenian Negotiations on Liberalizing Trade in Services in the Frame of WTO,
EU, Cefta and Efta, (Working Papers, no. 48). Ljubljana : Faculty of Economics, Univer-
sity of Ljubljana, Ljubljana, 1997. Zupancic, S., Vpliv liberalizacije trgovine s prevoznimi
storitvami na vklju evanje Slovenije v Evropske gospodarske tokove = The Impact of Trade
in Transport Services Liberalization on the Integration of Slovenia into European Economic
Associations. Faculty of Economics, University of Ljubljana, Ljubljana, 1998.
30
M. Stare, A. Jaklic, Transition, Regulation and Trade in Services. Faculty of Social Sci-
ences, University of Ljubljana, Ljubljana, 2006.
216
trade and foreign-exchange liberalization, competition enforcement) and
those aimed at a better regulation of individual sectors (such as banking and
insurance, transport, telecommunications). Consequently, the supply and
demand for services increased, and new services that were not available prior
to 1990s, were introduced both by local and foreign suppliers.
31
Foreign
direct investment into the service sector was particularly instrumental in
improving the scale and diversity of service supply, given the modest capa-
bilities of transition economies and the low level of services specialization.
As they merged into the EU, the new Member States aligned their regu-
lations related to services with the acquis communautaire, however, efcient
implementation is still a problem given the wanting institutional back-up
and professional administrative capacity. There are also other obstacles in the
new Member States (such as unnecessary administrative burdens, differences
in local regulation) which unduly hinder the functioning of service markets
and constrain local and foreign services providers.
Market oriented reforms have contributed to the improved supply of
services in these transition economies. They facilitated the integration of
these economies in the global service trade, from which they have so long
been isolated. The effect of the opening of markets was initially felt only
in the area of service imports, because of the shortage of so many types of
services, in particular the business-related ones.
The Commission would have to closely survey the outcome of the
internal screening as proposed by the Directive on Services in the Internal
Market, so as to be able to assess whether the legal system of individual
Member States is really compatible with the acquis of the EU. This may lead
to further amendments in the Constitution.
2. RESTRICTIONS VALID ONLY FOR DOMESTIC CITIZENS
According to the jurisprudence, the provisions of the Treaty on freedom
of establishment and freedom to provide services do not apply in situations
that are purely internal to a Member State.
32
In Reyners,
33
it is said about the
fundamental rule of equal treatment with nationals of the host Member State
that: [a]s a reference to a set of legislative provisions effectively applied by
31
Zupancic, 2001. op. cit..
32
Case C17/94, Gervais, [1995] ECR I4353, para 24.
33
Case C2/74, Reyners, [1974] ECR 631, para 25.
217
the country of establishment to its own nationals, this rule is, by essence,
capable of being directly invoked by nationals of all the other States.
Some of the new Member States still impose restrictions only for its own
nationals (for instance in connection with the intellectual work of retired
persons). These restrictions are remnants of the old socialist system. The
reason for this duality was simple: the State wanted to survey intellectual
work, therefore this work was restricted. International exchange was regu-
lated by specic arrangements, which were available only to foreigners. As a
result, equal treatment is not a right of everyone. Such restrictions inherited
from the old system are forbidden under the proposed Constitution and
the Charter of fundamental rights of the European Union which, each in
their own context, boast the 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 authorized to work in the territories
of the Member States are entitled to working conditions equivalent to
those of citizens of the Union.
In ERT the ECJ stated
34
: It follows from Article 56 (Treaty of Rome),
which must be interpreted strictly, that discriminatory rules may be justied
[only] on grounds of public policy, public security or public health.
At least one new Member State is setting maximum limits on work of
some categories of citizens (pensioners and unemployed persons may not
perform research or pedagogical services) and applying prohibitive income
taxes on periodic (cross-border) services. Mentioned restrictions and high
taxes are in force practically only for highly skilled specialists such as academ-
ics in a variety of sciences whose income is coming from public funds and
known to the tax ofce. It would appear that such difference in treatment
of taxpayers is contrary to Article 52 of the Treaty (Article III137 in the
Constitution).
The Commission should scrutinize any such restrictions concerning ser-
vices applied only to domestic citizens in new Member States and if possible
34
Case C260/89, ERT, [1991] ECR I2925, para 24.
218
initiate a dialogue about them with the Member State concerned, as they are
contrary to the spirit of the EU Treaty even today.
V. THE RELEVANCE OF GATS PROVISIONS FOR THE EU
CONSTITUTION
It was already mentioned that the GATS postdates the services regula-
tion in the EU. The EU should seriously consider adopting GATS deni-
tions as these may have distinct advantages when used in intra-Community
trade.
The Marrakech Agreement distinguishes between trade in goods (GATT)
and trade in services (GATS). The GATS covers market access and national
treatment; in accordance with Article I(2) they are divided into four modes
of supply: cross-border supply, consumption abroad, commercial presence
and presence of natural persons. This division does not correspond to one
operated in the EU, where some modes of supply come under the common
commercial policy.
35
GATS covers the movement of natural persons and nancial services as
well as specic sectoral services (telecommunications services, air transport
services and maritime transport services, latterly trade in energy). Capital
transactions are not part of GATS.
It is clear that GATS includes rules on the free movement of persons. In
the EC Treaty the movement of persons comes under title III, Free Movement
of Persons, Services and Capital. The article on qualications is included in
the Chapter on Services (Article 47).
Both GATS and the EU allow for derogations to free movement of
persons. This is understandable in case of the GATS (and the pressure of
less developed nations) but much less so in the EU, even if there are marked
differences among the EU25.
The EU, as all the Member States, being members of the WTO, they
took active part in the negotiation of the GATS. The analysis of different
GATS denitions and rules could help to nd better solutions, which could
eventually be included in a Constitution of the European Union.
35
Opinion 1/94, [1994] ECR I5267, para 47.
219
VI. WHAT TO DO IF THE CONSTITUTION FAILED
There is an interesting question arising: what to do if the amendment
of the Constitution failed. It is difcult to assess the impact of unchanged
legislation on the eld of free movement of services and the right of estab-
lishment. The new Directive within the framework of the Lisbon Strategy
cannot achieve a unied internal market of services. Existing differences
between the old and most of the new Members might not be reduced
either. These Member States are namely still in the process of enacting mar-
ket rules that were without precedent in the socialist system.
The denition of services in the Treaties and in the new Constitution
is unhelpful. The various existing instruments regulating services (including
the proposed Directive on Services in the Internal Market, the legislation
on services of general interest, on nancial services, on transport services,
energy, water and gas, or that on medical, pharmaceutical and social services)
do not improve market conditions in the eld of services. As a matter of fact
the compartmentalized treatment of various services in the past sits in the
way of a unied treatment of services.
The question of establishment is in no way as imminent as that of the
free movement of services. As the Charter of Fundamental Rights of the
Union is not included in the body of the Treaty, it is difcult to assimilate
the status of private persons (self-employed persons) to that of companies,
which, especially in former socialist countries enjoy more privileges.
The posting of workers is not regulated satisfactorily in the Services
Directive either. It was excluded as part of an overall compromise making
possible the adoption of the Directive. There are still far too many obstacles
for workers to allow the normal execution of cross-border business. The
situation can be only remedied partially by implementing some changes in
Directive 96/71/EC.
In some Member States the freedom to provide services is subject to spe-
cic restrictions, notably taxation rules. In this way, some of the new Member
States de facto prohibit freedom to provide services, which is unacceptable.
The Commission should thoroughly review the restrictions concerning
services, especially those that are valid only for domestic citizens in new
Member States.
220
VI. CONCLUSIONS
The best way to revise the freedom of establishment and the freedom to
provide services subsections in the Title III of the Part III of the Constitution
is to really liberate the free movement of services throughout the Commu-
nity, taking into account some solutions contained in the GATS.
By way of anticipating the coming into force of the Constitution, it may
be possible to improve and modify the content of the Directive on Services
in the Internal Market as well as other acts concerning services, but this is
really second best.
LE SCEPTICISME DES FRANAIS
QUELLES RAISONS, QUELLES SOLUTIONS* ?
Michel Lelart
I. INTRODUCTION
Les Franais ont t appels approuver par rfrendum, le 29 mai
2005, le trait tablissant une Constitution pour lEurope. 69 % des lecteurs
ont vot, ce qui nest pas mal pour un vote europen . 54,7 % dentre eux
ont dit non. Le Trait de Maastricht en 1992 avait t galement soumis
rfrendum, il avait t approuv par 51,4 % des voix. Les opposants taient
donc 48,6 %. En treize ans, leur pourcentage na que faiblement augment,
mais cette fois il dpasse 50 % et cela change tout. La Constitution ne sera
pas adopte puisquelle doit ltre par lensemble des Etats. LEurope est en
panne, et cause dun pays qui ntait pas seulement lun des pays fonda-
teurs, comme les Pays-Bas qui ont vot non quelques jours plus tard une
majorit plus forte encore : 61,6 % des voix. La France a t lorigine de
la CECA et du March Commun et elle a jou longtemps le rle moteur
dans la mise en place et lvolution de la Communaut europenne. Elle est
le pays qui sest le plus impliqu dans cette aventure dont elle reste toujours
un acteur essentiel.
Que sest-il donc pass ? Les Franais ne se sont pas prononcs sur le texte
mme de la Constitution. Bien peu lont lu et moins encore in extenso. Quel-
ques-uns (10,5 % des rponses) lont trouv trs compliqu ils navaient
*

Jai beaucoup discut avec Emmanuel Apel, professeur lUniversit dOttawa, pendant
la rdaction de cet article. Je le remercie de ses commentaires. Je reste seul responsable
des ides exprimes et des erreurs qui pourraient subsister.
222
malheureusement pas tort !
1
ou ont manqu dinformations. Quelques
autres (prs de 7 % des rponses) sont de toute faon opposs la construction
europenne et la perte de souverainet nationale quelle entrane ncessaire-
ment. Dautres enn (un peu moins de 6 %) nont rien trouv de positif dans le
texte qui leur est apparu pas assez dmocratique ou trop technocratique. Mais
les autres, tous les autres (plus de 77 %) se sont prononcs pour dautres raisons
qui, a priori, nont rien voir avec le projet de Constitution
2
. Cest notamment
le cas de ceux (plus de 11 %) qui ont saisi loccasion du rfrendum pour expri-
mer leur opposition au gouvernement et au Prsident Chirac. Ce dernier avait
t rlu en avril 2002 une majorit crasante de 80 % parce que les lecteurs
de gauche avaient t obligs de voter pour lui sils ne voulaient pas voter pour
le candidat de lextrme droite arriv second au premier tour. Loccasion tait
trop belle de sexprimer cette fois librement et deffacer le mauvais souvenir de
2002, dautant plus que le Prsident Chirac stait personnellement et forte-
ment engag en faveur du oui durant les mois prcdant ce rfrendum
3
.
Trois autres raisons ont t rvles par les sondages : le non franais
a t un non au chmage et linscurit sociale, un non lultralibralisme
conomique, un non lUnion europenne largie
4
. Ces trois raisons ont en
commun dtre lies lexistence de la monnaie unique. Il est bien vident que
ce nest pas leuro que les Franais ont rejet. Ils lont accept en ratiant le Trait
de Maastricht. Il a remplac quelques annes plus tard la monnaie nationale
dans onze autres pays. Certes les Franais calculent encore assez souvent en
francs, probablement comme les Espagnols ou les Autrichiens en leur ancienne
monnaie, chaque fois quil sagit de sommes peu habituelles, cest--dire de
montants importants. Mais leuro est devenu la monnaie de tous les jours, et il
ne soulve plus gure, en tant que tel, dobjection. Aucun dbat chez nous sur
un ventuel retour au franc.
1
Dans la prsentation que lui a consacre V. Giscard dEstaing, publie par Albin Michel,
le texte du trait fait 275 pages. Le Trait de Maastricht en faisait la moiti. Louvrage de
F.X. Priollaud et de D. Siritzky publi par la Documentation franaise, qui ajoute fr-
quemment des commentaires au texte, atteint 420 pages. Et il faudrait ajouter chacun
de ces ouvrages une bonne trentaine de protocoles
2
Cf. en annexe les rsultats des sondages effectus aprs le rfrendum en France ainsi
quaux Pays-Bas.
3
Des sondages effectus en France la sortie des urnes ont montr que le non tait
clairement de gauche . R. Dehousse, La n de lEurope, Flammarion, Paris, 2005,
page 108.
4
E. Fougier, Le non franais la Constitution europenne Rfrendum du 29 mai
2005 : radiographie dun rejet, 318 Futuribles, avril 2006, pp. 31-45.
223
LE SCEPTICISME DES FRANAIS QUELLES RAISONS, QUELLES SOLUTIONS ?
Et cependant nous pensons que leuro est derrire le non franais. Il est
responsable, au moins dans une certaine mesure, du rejet de la Constitution
par le pays fondateur le plus engag dans la construction europenne. Il est der-
rire la peur du chmage et la mance face au libralisme (II). Il est galement
derrire llargissement (III). Mais cela ne veut pas dire quil faille rejeter leuro
les Franais ne limaginent pas dautres solutions sont en effet possibles
pour consolider lUnion europenne partir de leuro (IV).
II. LEURO DERRIRE LE CHMAGE ET LE TAUX DE CROISSANCE
Les rponses aux sondages Eurobaromtre effectus pour le compte
de la Commission aprs le rfrendum sont loquentes : 31 % des Franais
interrogs ont vot non parce que cela aura des effets ngatifs sur la situa-
tion de lemploi en France et 26 % parce que la situation conomique
en France est trop mauvaise, il y a trop de chmage . Cela fait donc 57 %
des personnes interroges, et cela fait plus de 35 % de lensemble de leurs
rponses
5
. Effectivement la situation conomique ntait pas trs brillante
au printemps 2005 : le chmage atteignait 9,6 % de la population active et
le taux de croissance de lconomie ntait que de 1,5 %. On avait pourtant
annonc au moment du rfrendum sur le Trait de Maastricht que lUnion
europenne deviendrait une zone de forte croissance. Et les initiatives dci-
des au Sommet de Lisbonne permettaient desprer que cet objectif nirait
par tre atteint. Ds lors les Franais sont devenus de plus en plus rservs
face au projet europen. Depuis quelque temps dj leur attitude positive
suivait une volution inverse de celle du chmage
6
. Ds lors, ils ont craint
que ce nouveau trait nait des effets ngatifs sur lemploi. Les sondages sont
sans quivoque et les observateurs sont unanimes : le facteur conomique et
social a t crucial dans la victoire du non franais
7
. Langoisse sociale
a constitu la vritable cl du scrutin
8
.
5
Les pourcentages des personnes interroges et des rponses sont diffrents parce que les
personnes ont pu donner plusieurs rponses.
6
B. Cautres, Les logiques du non au rfrendum du 29 mai 2005 , in :La France face
la mondialisation, Problmes Politiques et Sociaux, 920, La Documentation franaise,
janvier 2006, 30-33.
7
E. Fougier, loc. cit.
8
B. Cautres, loc. cit. Il nen a pas t de mme aux Pays-Bas o cette raison na t invo-
que que par 12% des personnes interroges, au lieu de 57% en France. Cf. lannexe.
224
Et leuro dans tout cela ? On peut lui attribuer une part de responsabilit
pour trois raisons qui sont toutes bien connues et qui font souvent lobjet
de critiques.
La premire raison tient la politique montaire, qui est mene au niveau
de la zone euro par la Banque Centrale Europenne. Un pays membre ne
peut plus agir sur sa monnaie en contrlant les taux dintrt court terme,
comme autrefois, et il ne peut pas davantage contrler leuro. Dune part, la
Banque Centrale Europenne a pour mission dassurer la stabilit des prix.
Cela est inscrit, et plusieurs fois, dans le Trait de Maastricht. Elle na donc
pas se proccuper de la situation de lemploi, comme peut et mme doit le
faire la Banque centrale amricaine, ni dans lensemble de la zone, ni dans
tel ou tel pays. Dautre part, la BCE est indpendante et trs jalouse de
son indpendance. Elle ne peut recevoir aucune instruction des autorits
politiques. Faut-il ajouter que chaque pays est reprsent au Conseil des
Gouverneurs, mais cela ne lui donne quune voix. Il peut parfois avoir
aussi un membre du Directoire, cela fait deux voix sur dix-huit actuelle-
ment, et ce nombre va augmenter mesure de llargissement. Dans la zone
euro la politique montaire chappe totalement au pouvoir politique, elle ne
peut pas tre ajuste la situation de lemploi.
La deuxime raison tient la politique conomique. Elle est reste natio-
nale, chaque pays conserve la matrise de son budget. Celle-ci nest cepen-
dant pas totale. Une certaine harmonisation simpose naturellement entre les
pays qui ont une mme monnaie, cest la surveillance multilatrale . Mais
surtout les pays doivent viter les dcits excessifs, correspondant 3 % de
leur Produit Intrieur Brut. Et le Pacte de stabilit et de croissance, adopt
aprs le Trait de Maastricht, a renforc ces dispositions dont les modalits
sont devenues contraignantes tel point quelles suscitent des critiques par-
fois violentes et quelles ne sont plus respectes, depuis 2002, par certains
pays, et mme par ceux qui ont voulu linstituer ! Le pacte empche en effet
un pays de mener une politique de relance pour soutenir lactivit conomi-
que et essayer de rduire le chmage. Il est bien prvu que les pays doivent
dgager des excdents durant les priodes fastes pour pouvoir en disposer en
cas de besoin, mais comme ils ne sont pas sanctionns, ils ne le font pas
La troisime raison tient la politique de change qui est devenue com-
munautaire, comme la politique montaire. Un pays ne peut donc plus
sajuster par le taux de change, il ne peut plus soutenir son conomie en
dvaluant sa monnaie. Cest au niveau de la zone que la valeur de leuro est
dtermine. Cette responsabilit est minemment politique. Dans chaque
225
pays la banque centrale intervient au jour le jour sur le march des changes
pour attnuer les uctuations, mais cest lEtat qui xe la valeur de sa mon-
naie et qui dcide de la changer. Dans la zone euro il ny a pas vraiment de
politique de change. La BCE conduit les oprations de change, le Conseil des
Ministres peut seulement formuler les orientations gnrales de politique
de change vis--vis de monnaies non communautaires . Mais il ne peut le
faire que sur recommandation ou aprs consultation de la BCE ; ces orien-
tations ne doivent pas affecter lobjectif principal quest la stabilit des prix ;
enn le Conseil europen de Luxembourg en dcembre 1997 a limit ces
orientations au cas de circonstances exceptionnelles, par exemple en cas de
dsalignement manifeste du cours de leuro . Cette disposition na jamais
t utilise. Comme la BCE nest intresse que par la stabilit des prix, on
peut dire quil ny a pas de politique de change de leuro
9
.
Leuro est certes au cur des politiques que nous venons dvoquer,
mais ces politiques ne sont pas toujours critiques comme nous venons de le
faire. On peut considrer quune politique montaire rigoureuse, garante de
la stabilit des prix, est toujours prfrable long terme. On peut considrer
que les Etats doivent toujours simposer une certaine rigueur budgtaire.
On peut prfrer que le taux de change dpende uniquement des forces du
march. Peu importe ici. Ce qui compte cest que le public coute ces dbats
et quil entend les reproches qui sont faits ces politiques. Il constate aussi
que la situation est meilleure dans des pays extrieurs la zone, notamment
au Royaume-Uni. Et il a conscience que le systme de leuro, et plus gnra-
lement lUnion europenne, y sont pour quelque chose. Un rfrendum est
alors une occasion, qui se prsente rarement, de ragir.
Les Franais ont ragi, comme lon sait, pour une autre raison. 19 % des
personnes interroges ont rpondu non parce que le projet est trop libral
sur le plan conomique , 16 % parce que il ny a pas assez dEurope sociale
et 2 % parce quils sont contre la directive Bolkestein
10
. Cela fait donc 37 %
9
Cette observation est conforte par la difcult souvent dnonce de savoir qui
reprsente la zone euro lextrieur, et qui parle en son nom dans les instances inter-
nationales La Constitution qui introduisait de nouvelles dispositions cet gard
(art. III196) ne dit pas clairement qui est Monsieur Euro
10
Cette directive prvoit de lever tous les obstacles la libre circulation des services dans
lUnion europenne en permettant la fois aux entreprises de stablir dans un autre
Etat membre et aux consommateurs dacheter des services des fournisseurs trangers.
Bien que cette directive sinscrive dans la logique du grand march intrieur, elle a
t considre en France comme favorisant les changes et allant dans le sens de la
mondialisation.
226
des personnes interroges et 23 % des rponses fournies
11
. Cest que lEurope
apparat dabord comme un grand march ouvert la concurrence. La libre
circulation des personnes est de mieux en mieux perue avec limmigration.
La libre circulation des capitaux lest aussi avec les dlocalisations. Trop peu
de place a sembl tre accorde lEurope sociale dans la Constitution. Si
la France apparat parfois frileuse face la mondialisation, cest quelle est
attache, sans doute plus que dautres pays, mettre en place une certaine
rgulation et dnir un minimum de rgles qui soient respectes par tous
12
.
Leuro ne saurait tre mis en cause cette fois, ce nest pas cause de la mon-
naie unique que lEurope apparat librale. Mais sil ny a pas de causalit, il
y a concidence. La monnaie unique accompagne naturellement le march
unique. Lusage de leuro facilite les rglements lis au commerce et aux
changes au sein de la zone. Il facilite aussi les rglements lis la nance et
en particulier aux investissements qui ne supportent plus le risque de change.
A long terme, lavantage est considrable. En dautres termes, sans la mon-
naie unique, lEurope aurait sans doute t, et serait certainement apparue,
moins librale
13
.
Ces deux raisons, crainte du chmage et refus du libralisme qui repr-
sentent prs de 60 % des rponses des Franais, mettent en cause leuro. Il
en est de mme de llargissement.
III. LEURO DERRIRE LLARGISSEMENT
Aux sondages organiss aprs le rfrendum, 12 % des lecteurs qui
avaient vot non lont fait par raction contre llargissement, et en particu-
lier contre ladhsion de la Turquie, ce qui a reprsent 7,5 % des rponses.
Cest peu quand on sait le scepticisme afch par les Franais cet gard.
Mais un autre sondage effectu en juin 2005 a rvl que lopposition
11
Dun autre sondage ralis au niveau national, il ressort que 40% des partisans du
non jugeaient la constitution trop librale sur le plan conomique . R. Dehousse,
op. cit., page 114. Il en est tout autrement aux Pays-Bas o cette raison nest invoque
que par 7% des personnes interroges, au lieu de 37% en France. Cf. lannexe.
12
E. Fougier, loc. Cit.,. R. Dehousse, op. cit., pp. 111-114.Cf. aussi E. Fougier, Des
inquitudes plus vives quailleurs , in La France face la mondialisation, op. cit.,
pp. 37-39.
13
La coexistence dune politique montaire centralise et autonome avec des politiques
conomiques dcentralises, mais en partie brides, constitue une solution originale et
indite, inspire par le courant de la nouvelle macro-conomie qui est lui-mme inspir
de la doctrine librale. Cf. M.A. Barthe, Economie de lUnion europenne, Economica,
Paris, 2
me
dition, 2003, pp. 300-306.
227
ladhsion de la Turquie avait constitu une motivation dterminante
pour 35 % des partisans du non
14
. Dautres sondages effectus au dbut
de 2006 sur lattitude gnrale des Franais lgard de llargissement
ont fait apparatre des rticences beaucoup plus vives : 49 % des personnes
interroges considrent llargissement comme une mauvaise chose, 47 %
portent au contraire un regard positif. Et cest encore 47 % des personnes
interroges qui jugent quil faut se mettre daccord sur les frontires d-
nitives de lUnion avant tout nouvel largissement. Enn les Franais se
prononcent majoritairement contre lentre de la Turquie
15
.
Il nest pas difcile dimaginer pourquoi les Franais sont rticents.
Llargissement qui est normal en soi va la fois trop vite et trop loin. Il sagit
chaque fois dune dcision politique, mais son application est rendue difcile
parce quil ne sagit pas simplement de dvelopper les changes avec les nou-
veaux pays ou dorganiser une coopration avec eux. Il sagit de les faire entrer
dans une union montaire maintenant constitue, il sagit dlargir lusage
de leuro comme monnaie nationale bien au-del de ses frontires initiales.
Cest surtout cause de cela que chaque nouvel largissement soulve plus
de difcults que les prcdents
16
. Et il nest pas ncessaire davoir fait des
tudes dconomie pour en avoir au moins lintuition.
Les pays concerns cette fois nont en commun, si lon excepte
Chypre et Malte, que davoir t des conomies planies faisant toutes par-
tie du Conseil dAide conomique mutuelle (le CAEM ou COMECON)
gr par Moscou. Cela veut dire que chaque pays stait spcialis dans telle
ou telle production. Il tait bien difcile dans ces conditions de trouver
quelques facteurs caractristiques dune certaine homognit.
Les carts entre ces pays se sont certes rduits depuis quils ont entam
leur transition vers lconomie de march, il y a quinze ans, mais ils restent
importants, surtout par rapport aux pays dj membres de la zone euro.
Il suft de savoir que les dix nouveaux venus ont fait augmenter la popu-
lation de lUnion de 20 %, mais son PIB de 7 % seulement. Et il suft de
14
R. Dehousse, op. cit., page 114.
15
Commission europenne, La construction europenne vue par les Franais, Eurobaro-
mtre Flash, n 178, mars 2006.
16
Il en soulve ds la phase daccession, quand les pays deviennent pr-ins , comme
dix dentre eux le sont actuellement, mais cette phase-l a vocation ne pas durer.
M. Lelart, The Euro Zone and the Single Currency in an Enlarging European Union,
in: N. Neuwahl (d.) European Union EnlargementLaw and Socio-Economic Changes,
Les Editions Thmis, Montral, 2004, pp. 133-162.
228
regarder la taille des vingt-cinq pays membres de lUnion actuellement.
Avec laccession des dix derniers pays, les Etats de petite dimension (moins
de dix millions dhabitants) sont treize ils sont dsormais la majorit
17
.
Et ils sont dix-neuf avoir moins de quinze millions dhabitants. La taille
compte dsormais en Europe, car les petits et les grands pays ont rarement
des structures conomiques homognes, et ils ne ragissent pas forcment
de la mme faon
18
.
Ils nvoluent pas non plus de la mme faon. La convergence sest peut-
tre renforce entre certains pays, entre dautres elle sest plutt rduite. La
transition vers lconomie de march ne se fait pas partout au mme rythme,
elle nemprunte pas toujours les mmes voies, elle nentrane pas les mmes
cots. Dores et dj des progrs sont incontestables en matire dination,
pour les anciens membres comme pour les nouveaux. Ils sont nettement
moins vidents en ce qui concerne les nances publiques et les dcits qui
leur sont lis. Les difcults dapplication du pacte de stabilit et de crois-
sance sont loquentes, comme le sont les difcults dordre budgtaire que
rencontre actuellement la Hongrie.
Que se passera-t-il quand ces pays les dix et les deux prochains
quitteront tour de rle cette phase daccession pour adhrer pleinement
et rentrer dans la zone euro ? Celle-ci deviendra un peu moins homogne.
La convergence risque davoir plus de mal se faire. Et les chocs extrieurs
risquent daffecter plus souvent tel ou tel des pays de la zone, en particulier
les nouveaux membres. Cest pourquoi on parle souvent de chocs asym-
triques . Comme tous ces pays nont plus chacun une monnaie eux, ils
ne pourront plus dvaluer. Les autres moyens dajustement y sufront-ils :
il sagit dun transfert de main-duvre, de ux de capitaux, de transferts
budgtaires ?
19
Il nest pas certain quune gestion centralise du taux de
change soit compatible avec un largissement de la zone euro. La mme
17
J. Bourrinet, The Costs of Enlargement : A Perspective for 20042013, in: N. Neu-
wahl (d.), op. cit., pp. 87-100.
18
E. Laurent et J. Le Cacheux, LEurope boucles dor : trois maximes pour sortir
dune impasse, 246 Lettre de lObservatoire franais des conjonctures conomiques, 30 jan-
vier 2004.
19
On reconnat l la thorie de la Zone Montaire Optimale. Quand un pays est affect par
un choc extrieur, il peut sajuster en dvaluant sa monnaie. Cest seulement sil ne risque
pas dtre affect par un choc extrieur qui naffecte pas ses partenaires ou si, subis-
sant ce choc, il peut sajuster en laissant sa main-duvre partir ltranger, en obtenant
une aide extrieure sufsante quil peut renoncer sajuster par son taux de change et
faire partie dune union montaire. Celle-ci est alors une solution optimale .
229
rserve concerne la politique montaire qui est elle aussi centralise. La BCE
ne prendra jamais en compte la situation particulire dun pays, plus forte
raison sil sagit dun petit pays. De toute faon les dcisions prises Francfort
ne visent qu maintenir lination dans la zone euro un taux en-dessous
mais proche de 2 %.
Llargissement soulve une autre difcult, de nature institutionnelle
cette fois. Le Conseil des Gouverneurs de la BCE comprend actuellement
douze Gouverneurs plus six Directeurs. Quand les dix pays pr-ins seront
entrs dans la zone, le Conseil comprendra 22 + 6 soit 28 personnes. Et
il augmentera chaque nouvelle adhsion. Une nouvelle formule simpo-
sait. La BCE a imagin un systme de rotation qui permettra de limiter le
nombre des Gouverneurs quinze, les petits pays seront moins reprsents,
mais les plus grands ne le seront plus toujours (4 postes pour 5). Il arri-
vera que la France, comme lAllemagne, un jour peut-tre la Grande-Bre-
tagne, ne puisse intervenir dans les dcisions prises par la Banque Centrale
Europenne
20
.
Cette rforme, certes ncessaire, a t abondamment commente en son
temps, comme lont t, en maintes occasions, les difcults que soulve,
au-del de llargissement proprement dit, lentre de nouveaux pays dans la
Zone euro. Mais si les Franais ont exprim leur dsapprobation cet gard,
cest aussi, cest surtout, parce quils ne voient pas le bout de ce processus.
Tout cela est bien connu. Pour linstant, ce sont les dix pays pr-ins , ainsi
que la Roumanie et la Bulgarie qui les ont rejoints, qui se prparent adop-
ter leuro. La Slovnie va le faire le 1
er
janvier 2007, les autres suivront, dans
quelques annes ou quelques dizaines dannes
21
Mais aprs ? La Croatie
a dj pos sa candidature. La Macdoine, la Serbie, la Bosnie, le Mont-
ngro, le Kosovo, lAlbanie ne posent pas de question de principe, ils sont
en Europe. Avec eux, nous serons trente-quatre pays tre, vouloir ou
pouvoir entrer dans la Zone euro. Mais que rpondra-t-on le jour venu
20
Un systme de rotation existe aussi aux Etats-Unis. Le Systme Fdral de Rserve com-
prend douze banques centrales, mais cinq seulement participent au Federal Open Mar-
ket Committee. Toutefois la Banque Fdrale de New York, qui excute les oprations,
y a constamment sa place. Les autres banques fdrales constituent quatre groupes au
sein desquels sopre la rotation. E. Apel, Central Banking Systems ComparedThe ECB,
the pre-euro Bundesbank and the Federal Reserve System, Routledge, Londres et New York,
2003, pp. 2627.
21
Les Pays baltes devraient entrer en 2008-2009, la Slovaquie en 2010, la Hongrie en
2012. Aucune date nest prvue pour les Tchques et les Polonais.
230
lUkraine, la Bilorussie, la Gorgie, lArmnie, la Moldavie
22
? Et
comment se concluront, dans dix ou quinze ans, les ngociations qui ont
commenc avec la Turquie ? Contrairement au Royaume-Uni et au Dane-
mark
23
qui ont le droit dentrer dans la Zone euro quand ils le veulent, et sils
le veulent, les nouveaux pays devront respecter lacquis communautaire ,
qui inclut lintgration dans lunion montaire. Ds lors, de mme que des
euros peuvent tre utiliss aujourdhui au-del des frontires de la zone, au
Danemark, en Suisse, au Maroc verra-t-on les paysans kurdes utiliser des
euros dans leurs villages de chaque ct de la frontire au milieu du sicle ? Et
verra-t-on des euros circuler sur les marchs de Bagdad ou dans les bourgades
de Tchtchnie, quelques centaines de kilomtres des nouvelles frontires
de leuro ?
24
. On comprend que des Franais qui ont pu imaginer cela naient
pas voulu ratier la Constitution !
Non seulement cause du chmage, mais aussi cause de llargissement,
leuro a une responsabilit dans le non franais. Cela ne veut pas dire que
lon ne peut sauver la Constitution quen supprimant leuro. Il est certain
que les Allemands nont pas oubli leur mark et un sondage a pu rvler que
70 % des Italiens souhaitaient un retour de la lire
25
. On peut aussi spculer
sur ce qui se passerait si les pays membres taient affects diffremment par
un choc extrieur grave, voire mme par un choc intrieur comme une aug-
mentation du chmage ou la difcult de nancer les rgimes de retraite par
rpartition
26
. Mais aucun pays membre de la Zone nenvisage srieusement
dabandonner leuro. Comment faire alors pour consolider lexprience euro-
penne et la doter dune constitution tout en llargissant ? Nous pensons que
des solutions existent. Elles passent naturellement par leuro.
22
Jusquau Cap Vert qui sinterroge puisque leuro est la monnaie qui circule lle de La
Runion, la Martinique, aux Canaries et aux Aores J.-F. Drevet, LUnion euro-
penne et ses priphries , 321 Futuribles, juillet-aot 2006, 67-92.
23
Le cas de la Sude est diffrent. Elle remplit tous les critres dits de Maastricht et devrait
donc entrer dans la Zone euro. Mais elle na pas rendu sa banque centrale indpendante,
ce qui est une condition pralable galement prvue par le Trait de Maastricht.
24
Sans parler dune euro-isation qui, comme la dollarisation, caractrise lusage dune
monnaie trangre sur une grande chelle, il arrive souvent que la monnaie dun pays
soit utilise dans les pays voisins, du fait simplement des changes, et mme quelle soit
dtenue lorsquelle est perue comme une monnaie forte . Ce serait naturellement le
cas de leuro dans toute cette rgion.
25
A. Gribe et L. Jacqu, Les jours de leuro sont-ils compts ?, Le Monde, 15 janvier 2004.
26
J.J.Rosa, Limpasse europenne, 102 Politique internationale, Hiver 2003-2004, 313-330.
231
IV. LEURO ET LAVENIR DE LUNION EUROPENNE
La premire ambition des pays europens, dans les annes cinquante, a
t de dvelopper leurs changes. Ils ont commenc par un trait de nature
commerciale, car les changes appellent des rglements, le commerce a besoin
de monnaie. A lpoque, les rglements entre les pays (les six) ne posaient
pas de problme. Non seulement les taux de change taient xes, mais on
venait de mettre en place un systme qui rendait plus faciles les rglements :
lUnion Europenne des Paiements. Les transactions entre dix-sept pays en
Europe taient centralises, les dettes et les crances qui sensuivaient taient
automatiquement compenses, les soldes pouvaient tre rgls pour partie
chaque n de mois, pour le reste, qui tait lessentiel, les mois suivants
27
. Le
succs de ce systme a beaucoup facilit la mise en place du march com-
mun. On a pens le rtablir entre les pays dEurope Centrale et Orientale
au dbut des annes quatre-vingt-dix pour remplacer le fameux systme du
rouble transfrable et faciliter le maintien et le dveloppement des changes
entre les pays membres de lancien CAEM, comme entre les nouveaux Etats
ns de la dislocation de lURSS
28
. La Communaut europenne aurait pu
soutenir lexprience et la Banque des Rglements Internationaux en tre
lagent, comme elle avait t celui de lUEP, mais le projet a t rapidement
abandonn
29
. Il est vrai que ce systme, tout efcace quil soit, tait centra-
lis, ce qui signiait une certaine bureaucratie. De plus, en quarante ans, les
choses avaient chang. Ce sont maintenant les banques commerciales qui
effectuent les rglements, au coup par coup. Et lquilibre se fait par les taux
de change, sur le march. Mais un tel systme aurait pu fonctionner pendant
quelque temps.
27
Ce systme tait une application au niveau europen du plan Keynes propos par les
Britanniques la Confrence de Bretton Woods en 1944, mais refus par les Amricains.
Il reposait sur la mise en place dune Chambre internationale de compensation qui
devait permettre de rgler les changes entre les pays par un simple transfert de compte
compte, comme les banques le font tous les jours.
28
Ce projet a t beaucoup soutenu par J. van Brabant, mais aussi par R. Dornbusch,
B. Eichengrenn, P. Bonger. Cf. par exemple les Actes du Colloque organis Francfort
par lAssociation dEconomie Financire en mars 1993, Plan Marshall et nancement de
la reconstruction de lEurope centrale et orientale : Quelles leons ?
29
En ralit, cette ide na jamais t propose ofciellement comme solution de rem-
placement ladhsion la Communaut europenne. G. Csaki, Un nouveau plan
Marshall est-il ncessaire, possible, ralisable ? , Revue dEtudes Comparatives Est-Ouest,
mars 1995, 35-49.
232
Cest lorsque les pays ont pu laisser otter leur monnaie, partir de
1974, que les pays de la Communaut ont dcid de stabiliser chacun la leur
par rapport celles de leurs partenaires. Ils ont dabord invent un dispositif
technique, le serpent, avant de conclure un accord le Systme Mon-
taire Europen dnissant une nouvelle monnaie, lcu, qui permettait
de dterminer des parits, les banques centrales sengageant intervenir sur
les marchs des changes pour stabiliser leur monnaie dans une marge de +/-
2,25 % autour de cette parit. Cet cu servait ensuite aux banques centrales
pour se rgler entre elles leurs soldes dinterventions. Les banques commer-
ciales sen sont trs vite servi pour ouvrir des comptes leur clientle en
fait de grandes entreprises et elles ont organis un systme de compensa-
tion en cus qui permettait de faciliter les rglements entre deux pays. Elles
ont mme propos douvrir ce systme des banques dEurope centrale. En
1992, une dizaine de banques, russes, polonaises, hongroises, tchques et
bulgares ont t associes
30
. Un projet de cration dune zone cu en Europe
centrale et orientale, largement inspir de lexprience de lUEP et de celle
du SME, a t mme t labor
31
. Les pays de la Communaut ayant dcid
de mettre en place une nouvelle monnaie, mise par une nouvelle banque
centrale, cet cu priv , comme on la appel, na pas survcu leuro
Quen est-il aujourdhui pour les pays de lEst, pour ceux qui se prpa-
rent entrer dans la Zone euro, et pour ceux qui voudraient bien commencer
sy prparer ? Ce nest plus de commerce entre eux dont il sagit. Ce nest
mme pas de leur commerce avec dautres pays, europens ou pas : il se fait
dj en dollars ou en euros le plus souvent. Ds lors, si ces pays souhaitent
rattraper leur partenaires europens, la meilleure solution est-elle de vouloir
intgrer ds que possible la zone montaire que ces derniers ont constitue ?
Ne serait-elle pas plutt de sorganiser pour suivre la voie que nous avons
ouverte ? Lexistence de leuro peut rendre les choses, techniquement et poli-
tiquement, plus faciles pour eux demain que pour nous hier.
Les tapes sont faciles imaginer, elles peuvent convenir la fois pour
la plupart des dix pays membres de lUnion europenne, pour les deux qui
vont y entrer, et pour les candidats actuels et futurs. Ce sont celles que les
Douze ont suivies.
Chaque pays concern dnit sa monnaie par rapport leuro. Pas besoin
cette fois dimaginer une nouvelle monnaie et de la dnir par rapport
30
M. Lelart, La construction montaire europenne, Dunod, 1994, pp. 218-221.
31
S. Collignon, Les pays de lEst dans lEurope : pour une zone cu , Revue dEconomie
Financire, numro spcial sur le Trait de Maastricht, septembre 1992, 253-275.
233
celles qui existent (lcu a t un panier de monnaies). La banque
centrale dtient principalement des euros dans ses rserves, et elle inter-
vient en euros pour soutenir sa monnaie sur les marchs des changes et
dfendre la parit choisie.
Les pays tous ensemble sentendent sur les marges que les banques cen-
trales vont devoir respecter. Ces marges pourraient tre progressivement
lgrement rduites Les pays sentendent surtout pour ne pas dvaluer
ou rvaluer leur monnaie en changeant la parit : ils dcident que
leur politique de change est une politique dintrt commun .
Les pays mettent en place un systme de crdits, non pas bilatraux
car leurs transactions ne doivent tre que rarement rgles en lune ou
lautre de leur monnaie, et il est probable que celles-ci sont peu chan-
ges sur les marchs des changes. Elles le sont certainement beaucoup
plus en euros. Cest donc la BCE, ou par exemple la Banque Europenne
dInvestissement, qui pourrait accorder des crdits dans des limites et
des conditions dterminer.
Ces modalits sont copies sur le Systme Montaire Europen. Mais ne
sont-elles pas reprises aujourdhui dans le Mcanisme de change europen n 2
(MCE 2) que chaque pays candidat doit respecter pendant au moins deux ans
avant dadhrer la Zone euro ? Il nen est rien. Dune part, cest chaque pays
individuellement qui entre dans le MCE 2. Il peut choisir les marges quil veut,
elles doivent seulement ne pas dpasser +/- 15 %. Il ny a donc aucune espce
de coopration entre les pays candidats. Dautre part, cest la BCE que les
banques centrales concernes peuvent emprunter des euros pour soutenir leur
monnaie et la maintenir dans ces marges. Mais si ces crdits sont sans limites
et sans conditions, la BCE peut suspendre ce soutien sil peut entrer en conit
avec son objectif principal qui est la stabilit des prix. Elle pourrait donc dci-
der daider une banque centrale et pas une autre, et pendant le temps quelle
voudra. Enn, ce mcanisme est connu, prcisment, comme une passerelle
vers ladhsion, il doit seulement durer au moins deux ans. Il peut durer plus
longtemps, mais sa vocation nest pas de durer.
Le schma envisag est donc tout diffrent. Il repose sur une coordina-
tion entre les pays concerns, propos de leur politique de change, et par
consquent de leur politique montaire, et qui devrait fatalement affecter
plus ou moins leur politique conomique. Cest une coopration de plus
en plus troite qui prendrait forme peu peu et pourrait voluer lentement
vers une nouvelle zone montaire. Entre des pays pourtant trs proches les
uns des autres le SME a dur vingt ans. Entre la premire initiative le
234
march commun et larrive de leuro, il sest coul quarante ans ! Au
lieu de brler les tapes que nous avons connues, les pays dEurope centrale
pourraient conserver chacun leur monnaie nationale, stabilise par rapport
celle de leurs partenaires, et utiliser leuro comme ils le font dj dans
leurs transactions avec les pays de la Zone, mais aussi entre eux et mme, au
moins quelquefois, avec le reste du monde. Ils pourraient aussi dcider, aprs
quelques annes ou davantage, sinon tous ensemble du moins au sein dun
groupe, de remplacer leurs monnaies nationales par une monnaie nouvelle,
et qui serait la mme pour les pays concerns.
Prenons un exemple. Actuellement la Lituanie et lEstonie ont choisi le
systme de la caisse dmission : leur monnaie est lie leuro dune faon
rigide. La Lettonie a dvalu sa monnaie de 7 % avant dentrer dans le MCE
2 en juin 2005. Le cours de sa monnaie reste stable depuis. Est-il difcile
dimaginer que ces trois pays, qui sont si proches lun de lautre de bien des
faons, dcident de grer ensemble leur monnaie qui est dj rattache leuro,
jusqu peut-tre la remplacer par une nouvelle qui serait la mme pour les
trois, une sorte deuro balte. Et pourquoi pas une mme coopration entre
les pays dEurope centrale, entre les pays de lex-Yougoslavie un jour entre
lUkraine, la Bilorussie, la Gorgie, lArmnie On aurait peut-tre plusieurs
sortes deuros mais na-t-on pas une dizaine de dollars, une dizaine de francs
encore aujourdhui, presque autant de dinars ou de pesos
Ce schma na rien de rvolutionnaire. Cest celui que la Communaut,
puis lUnion europenne, ont suivi. Des formules de coopration seraient
faciles imaginer entre tous ces arrangements montaires rgionaux, et pas
seulement en ce qui concerne les taux de change. Et lUnion europenne
pourrait, tout naturellement, apporter une aide qui serait tout la fois tech-
nique, nancire et mme politique, du seul fait quelle soutiendrait une
telle volution. Cette solution parat peut-tre un peu irraliste aujourdhui.
Mais elle pourrait convenir aux pays concerns dont le scepticisme euro-
pen perdure et dont les populations semblent toujours rticentes lide
de perdre leur monnaie nationale. Parmi les pays candidats, plus dun tiers
des personnes interroges par sondage en avril 2006 souhaitent un passage
leuro aussi loign que possible et trouvent que lintroduction de leuro aura
des consquences plutt ou trs ngatives pour leur pays. Elles sont mme
42 % ne pas souhaiter que leuro remplace leur monnaie nationale. Elles
sont mme 60 % dans les trois pays baltes
32
! Ces pourcentages ont un peu
32
B. Angel, La prparation de llargissement de la Zone euro , 490 Revue du March
Commun et de lUnion Europenne (juillet-aot 2005), 434-440.
235
diminu depuis le sondage prcdent effectu en 2004 except dans les
Etats baltes o il a lgrement progress
33
!
V. CONCLUSION
Nous pensons que leuro explique et fort bien la rponse des Fran-
ais au rfrendum sur la Constitution europenne. Ce nest pas la monnaie
unique en elle-mme qui a t rejete. Cest le fait que cette nouvelle mon-
naie na pu tre mise en place quau terme de compromis parfois douloureux
et que la faon dont elle est gre nest pas forcment compatible avec les
intrts de chacun des pays concerns. Cest aussi le fait que seul un nombre
limit de pays peuvent dcider de remplacer leur monnaie nationale par une
autre qui ne sera pas seulement une nouvelle monnaie, mais qui sera la mme
pour tous ! Les Franais peinent imaginer que cette monnaie, qui suppose
une harmonisation trs pousse des institutions, des procdures et des politi-
ques par lesquelles le pouvoir des Etats sexprime habituellement, puisse tre
adopte par un nombre de pays qui peut ne pas cesser de grandir.
Si leuro est, indirectement bien sr, responsable du pessimisme qui
semble aujourdhui stre install dans les opinions publiques europennes,
nest-ce pas pourtant travers lui que les pays europens doivent chercher
une solution pour poursuivre dans la voie quils ont ouverte il y a cinquante
ans et dans laquelle ils ont tant progress depuis. Si, comme on peut toujours
lesprer, les Etats se rendaient cette vidence, la France qui a t lorigine
de cette magnique aventure, serait, une nouvelle fois, grce au non quelle
a os, la mieux place pour entraner ses partenaires de nouveau.
Car, malgr tout ce qui est dit ou crit, la France nest pas devenue
hsitante, elle nest pas devenue frileuse face la construction europenne.
Les sondages effectus par la Commission le dmontrent loisir : 83 % des
Franais sont favorables une constitution : 9 % voudraient que les Fran-
ais votent nouveau sur ce texte, 35 % quon rengocie partir du projet
existant, 39 % quon rengocie en partant de zro . Les rponses ne sont
pas sensiblement diffrentes, et les pourcentages ne sont pas vraiment plus
faibles quand on interroge les Franais qui ont dit non : 4 % voudraient que
lon vote nouveau, 24 % que lon rengocie partir du projet existant et
52 % en partant de zro. Cest donc 80 % des Franais qui ont dit non qui
33
Commission europenne, Introduction of the euro in the New Member States, Flash
Eurobaromtre, n 183, avril 2006, pp. 106110.
236
sont favorables lide dune Constitution
34
. Cest un pourcentage, somme
toute, plus quhonorable !
Il y a peut-tre une autre faon dexpliquer et de comprendre les
rticences franaises. La monnaie est souvent compare la langue. Lune
et lautre sont un langage, lune et lautre permettent de faire circuler, la
premire les biens, la seconde les ides. A lheure actuelle quinze pays de
lUnion europenne se partagent onze langues ofcielles. Il y a donc 11 x 10
= 110 combinaisons possibles par lesquelles chaque langue doit tre traduite
en chacune des autres. Avec 25 pays il y aura bientt 20 ou 21 langues.
Avec 34 pays, il y en aurait sans doute 27 ou 28, ce qui veut dire au moins
700 combinaisons possibles. Il faudrait alors sept fois plus de traducteurs et
dinterprtes quaujourdhui ils taient dj plus de 1.000 au Parlement
europen il y a douze ans et huit fois plus la Commission ! La solution qui
se met en place jour aprs jour est lextension progressive de langlais qui
pourrait devenir la langue europenne. Cette volution ne serait-elle pas
contraire au principe mme de lidentit europenne qui ne se comprend
pas sans la diversit ? LEurope unilingue ne serait-elle pas la n de lEurope
35

tout comme pourrait bien ltre lEurope montaire si elle devait devenir
lEurope dune seule monnaie ?
34
Un autre sondage effectu la sortie des urnes fait apparatre que 57 % des Franais qui
ont vot non se dclarent favorables la poursuite de la construction europenne .
R. Dehousse, op. cit., page 110. Lauteur rappelle le rle dterminant quont jou dans
la campagne du rfrendum des responsables socialistes qui, comme Laurent Fabius, se
sont prononcs pour un non pro-europen .
35
A. Fenet, Diversit linguistique et construction europenne , in : F. Hervouet (d.),
Dmarche communautaire et construction europenne, tome I, La Documentation Fran-
aise, Paris, 2002, pp. 277-312.
237
ANNEXE
France Pays-bas
% des
personnes
interroges
% des
rponses
% des
personnes
interroges
% des
rponses
Effet sur lemploi
Trop de chmage
31 %
26 %
35,4 %
7 %
5 %
7,7 %
Projet trop libral
Pas assez
dEurope sociale
Contre directive
Bolkestein
19 %
16 %
2 % 23,0 %
5 %
2 %
4,5 %
Refus de la Turquie
Rejet nouvel
largissement
Trop loin, trop vite
6 %
3 %
3 % 7,5 %
3 %
6 %
11 % 12,9 %
Opposition
aux Politiques 18 % 11,2 % 14 % 9,0 %
Trop complexe
Manque
dinformations
12 %
5 % 10,5 %
5 %
32 % 24,0 %
Perte de souverainet
Opposition la
constr. Eur.
Refus dun tat fdral
5 %
4 %
2 % 6,8 %
22 %
8 %
5 % 22,6 %
Rien de positif
dans le texte
Pas assez dmocratique
Trop technocratique
Cote trop cher
4 %
3 %
2 %
5,6 %
6 %
5 %
6 %
13 % 19,3 %
100,0 % 100,0 %
Sources : Commission Europenne, La Constitution europenne, sondage post-rfrendum
en France, Flash Eurobaromtre, n 171, juin 2005, page 17. Et pour les Pays Bas, Flash
Eurobaromtre, n 178, juin 2005, page 15.
238
On ne connat pas le nombre de personnes interroges. On sait seulement
quel pourcentage dentre elles ont donn telle ou telle raison. Comme cha-
que personne a pu donner plusieurs raisons, il est plus signicatif de rame-
ner 100 le total des rponses et de calculer des pourcentages qui, au total,
fassent exactement 100.
SUBSIDIARITY: COMPETENCE CONTROL
OR POLITICAL MASQUERADE
*
Jan-Peter Trnka
I. INTRODUCTION
The principle of subsidiarity has acquired the status of an expressly
named general principle of the European Communitys legal order with
the Treaty on European Union (Maastricht Treaty, EU) in 1992. The prin-
ciple has captured the attention of an increasing number of legal scholars
since, and policy-makers and academics keep pushing the subsidiarity issue
back onto the public stage.
1
The climax of the recent developments is a
new protocol to the Treaty establishing a Constitution for Europe (Con-
stitutional Treaty, TCE), which enhances the role of national parliaments
in decision-making. Despite the rejection of the Constitutional Treaty by
*

I am grateful to the graduate school Foundations of European Law and the Institute
of International Economic Law at the University of Helsinki, which provide me with an
excellent working environment. I thank Kaarlo Tuori and Thomas Wilhelmsson, and not
least Teemu Juutilainen, Emilia Korkea-aho, Suvi Sankari, Ida Staffans and Kim Talus for
their helpful remarks on earlier drafts of this work.
1
The European Subsidiarity Conference Europe begins at home on 18/19

April 2006
in Austria and the cooperation efforts of the European institutions with national par-
liaments within the framework of the Conference of European Affairs Committees
(COSAC) should be mentioned. Recent scholarly publications include S. Albin, Das
Subsidiarittsprinzip in der EUAnspruch und Rechtswirklichkeit, Neue Zeitschrift
fr Verwaltungsrecht (2006), 629635; I. Cooper, The Watchdogs of Subsidiarity:
National Parliaments and the Logic of Arguing in the EU, Journal of Common Mar-
ket Studies (2006), 281304; Chr. Ritzer, M. Ruttloff, K. Linhart, How to sharpen
a Dull SwordThe Principle of Subsidiarity and its Control, German Law Journal
(Sep. 2006), Internet resource at germanlawjournal.com.
240
French and Dutch voters in 2005, the persistent debates on the role of
subsidiarity give reason to take a closer look at the latest developments and
the role of the principle.
In brief, the subsidiarity principle dictates that the Community should
act only when Community action is better than action by the Member
States individually or collectively. A 1992 Communication of the Commis-
sion describes the concept in the institutional context: The powers that a
state or a federation of States wields in the common interest are only those
which individuals, families, companies and local or regional authorities can-
not exercise in isolation. [The subsidiarity principle] dictates that decisions
should be taken at the level closest to the ordinary citizen and that action
taken by the upper echelons of the body politic should be limited
2
. In other
words, the principles aim is to delimitate powers of the Community and to
strengthen the role of the Member States. Yet, the scope of the principle and
the question of its effective application are to be settled.
Struggles about the vertical division of powers and their delimitation
have long played a central role in the integration and constitutionalisation
of the EU, and the subsidiarity principle can be seen as a tool for reconciling
the conicting needs of unity and diversity within the Union. Thus, the rm
establishment of the principle is one of the greatest outstanding issues in the
continuous search for boundaries of the Community. It came as no surprise,
therefore, that the issue of delimitation of competences took centre stage
in the Laeken Declaration
3
and the Convention on the Future of Europe
4
.
2
Communication of the Commission to the Council and the European Parliament, The
Principle of Subsidiarity, SEC(92) 1990 nal, Annex, at p. 1.
3
The European Council in Laeken adopted a Declaration on the Future of the Euro-
pean Union on Dec. 15, 2001 which nally provided for a mandate to draft provisions
for necessary treaty amendments; the Laeken declaration is available online at europa.
eu.int/constitution/futurum/documents/offtext/doc151201_en.htm.
4
In December 2001 the European Council at Laeken in Belgium announced that a
Convention on the Future of Europe would be set up under the chairmanship of Valry
Giscard dEstaing, former president of France, with the mandate to draft provisions for
amendments to the Treaties and provide for the necessary changes that could be neces-
sitated by the 2004 enlargement. Members from European Parliament, Commission
representatives and members of the national parliaments, even comprising members
from the candidate countries, formed the Convention. The outcome was the Conven-
tion draft Treaty establishing a Constitution for Europe, which served as a basis for the
substantial review and negotiations by the Intergovernmental Conference from 2003 to
2004; for a short introduction see H. Rasmussen, The Convention Method, European
Constitutional Law Review (2005), 141147.
241
SUBSIDIARITY: COMPETENCE CONTROL OR POLITICAL MASQUERADE?
The establishment of a specic Convention working group on subsidiarity
shows the importance given to a reassessment of the subsidiarity idea. The
Convention nally proposed to guarantee subsidiarity by involving national
parliaments in an early stage of the decision-making process
5
, and the Inter-
governmental Conference accepted this procedural approach for its consti-
tutional draft. But is this approach really in the interest of subsidiarity?
This chapter seeks to dene the reach and the role of the subsidiarity
principle in the EU in light of the recent efforts to clarify the principle.
Against the background of the closely related general discourse on compe-
tences
6
, European statehood and federalism
7
, this chapter will highlight the
aspirations for introducing the subsidiarity principle into the Treaties and
its formalisation in the context of the European integration process. After
tracing the evolution of the principle in the Community context, the scope
of the principle will be discussed in todays setting, together with the role of
the European Court of Justice (ECJ) regarding it. The Constitutional Treaty
would have for the rst time involved national parliaments into subsidiarity
scrutiny. This chapter will show that there is a need for including such a
democratic element into the legislative procedure and discuss possible ways
forward.
5
See the Conclusions of Working Group I on the Principle of Subsidiarity, CONV
286/02.
6
See e.g. A. von Bogdandy, J. Bast, The Vertical Order of Competences, in A. von
Bogdandy and J. Bast (eds), Principles of European Law (Oxford, Hart Publishers 2006),
pp. 343372.; F. Mayer, CompetencesReloaded? The Vertical Division of Powers in
the EU and the new European Constitution, International Journal of Constitutional
Law (2005), 493515.
7
In spite of being divided on the conception of European constitutionalism, scholars
agree that a (federal) statehood would presuppose a direct participation of its demos. In
this light the European constitution lacks a classical condition of constitutionalism: the
validation by a European constitutional demos; compare e.g. P. Kirchhof, Europa auf
dem Weg zu einer Verfassung?, in K. Beckmann, J. Dieringer and U. Hufeld (eds), Eine
Verfassung fr Europa (Tbingen, Mohr Siebeck 2005), 359382.; J.H.H. Weiler, A
Constitution for Europe? Some Hard Choices in Integration, in J.H.H. Weiler, I. Begg
and J. Peterson (eds), An Expanding European Union (Oxford and Malden, Blackwell
2003), pp. 1733.
242
II. THE EVOLUTION OF THE EUROPEAN PRINCIPLE
OF SUBSIDIARITY
1. FEDERALISTS IDEAS AND CATHOLIC DOCTRINE
The subsidiarity principle has dominated the discussions of European
federalism ever after the ratication of the Maastricht Treaty.
8
However, the
principle was not a new idea even then. It already played a role in the con-
cepts of federalist movements in the early twentieth century.
9
As such, for
instance, scholars in the lines of the European Union of Federalists, the big-
gest organised group of the time, found that subsidiarity and other Christian
principles should form an integral part of the federations structure.
10
Thus
it seems interesting to highlight and contrast some key aspects of the Chris-
tian subsidiarity principle as it has obviously inuenced political and legal
thought in Europe. It seems appropriate to ask if the catholic doctrine could
help with dening a subsidiarity principle in todays European setting.
Numerous scholars have traced subsidiarity back to nineteenth-century
Catholic social thought, often citing Pope Leo XIIIs 1891 encyclical Rerum
novarum on capital and labour as one of the earliest expressions of the prin-
ciple within Catholic social philosophy
11
. But only Pius IX gave it its nal
shape as an organising principle in the papal encyclical entitled Quadrag-
esimo Anno in 1931: Just as it is gravely wrong to take from individuals
what they can accomplish by their own initiative and industry and give it
to the community, so also it is an injustice and at the same time a grave
evil and disturbance of right order to assign to a greater and higher associa-
tion what lesser and subordinate organisations can do . . . Those in power
should be sure that the more perfectly a graduated order is kept among the
various associations, in observance of the principle of subsidiary function,
the stronger social authority and effectiveness will be the happier and more
8
G.A. Bermann, Taking Subsidiarity Seriously: Federalism in the European Community
and the United States, Columbia Law Review (1994), 331456, at 332.
9
See E. Haas, The United States of Europe, Political Science Quarterly (1948),
528550.
10
F. Nies, Die Europische Ideeaus dem Geist des Widerstands (Frankfurt a. M.: Suhr-
kamp, 2001), at p. 123.
11
See e.g. N. W. Barber, The Limited Modesty of Subsidiarity, European Law Review
(2005), 308325.; R. Hrbek, Das Subsidiarittsprinzip in der EUBedeutung
und Wirkung nach dem Vertrag von Amsterdam, Jahrbuch des Fderalismus (2000),
510531.
243
prosperous the condition of the State
12
. In abstract terms, the principle of
subsidiary function includes an obligation for the higher authority to sup-
port and help the smaller units. At the same time, the principle prohibits the
higher authority to assume competences which the smaller units can exercise
themselves. The higher authority can only act if it proves necessary to do so,
but not because of pure efciency reasons.
This doctrine could be transplanted to any polity in which authority is
allocated at different vertical levels and thus to the European polity. There
are, however, profound arguments against a transposition of the Catholic
doctrine. First of all, we should bear in mind that the Catholic ideas are based
on an idealised view of human behaviour, which does not correspond to the
polarity of European power struggles.
13
Secondly, the catholic model origi-
nally focused on the individual and determined the bounds of the private
realm, whereas subsidiarity in todays European polity is a means for delimit-
ing competences within the public sphere.
14
And perhaps most crucial, the
Catholic principle of subsidiarity function does not provide for a solution
in case of a lack of efciency on lower levels.
15
With respect to the EU, one
could, of course, argue that Member States powers should be preserved until
Community action would deem necessary. That would, however, lead to a
stand-still in European integration and prevent Europe from facing todays
challenges.
2. SUBSIDIARITY IN THE EUROPEAN TREATIES
European integration took off at a slower pace than many European
enthusiasts wanted.
16
Initially the intergovernmentalists won. The rst
12
Quadragesimo Anno: Encyclical of Pope Pius XI on Reconstruction of the Social
Order, at para. 7980.; the encyclicals are available on the Vatican website: vatican.
va/holy_father.
13
Barber, supra, note 11, at 313.
14
Id.
15
Chr. Henkel, The Allocation of Powers in the European Union: A Closer Look at the
Principle of Subsidiarity, Berkley Journal of International Law (2002), 359386, at 366
et seq. ; P. Marquardt, Subsidiarity and Sovereignty in the European Union, Fordham
International Law Journal (1994), 616640, at 636.
16
It is remarkable to see Haas realistic conclusions for the future way of European inte-
gration in this respect: The way toward a European unity, in which sovereignty will
inhere predominantly in the central authority, will apparently proceed through [ . . . ]
economic integration to confederation, and then on to nal full federation., supra,
note 9, at 550.
244
step towards a united Europe was the creation, 1949, of the Council of
Europe following a classical confederative model of intergovernmental
cooperation among sovereign nation states. The establishment of a rst
supranational institution followed later with the High Authority in the
framework of the European Coal and Steel Community (ECSC) in 1951.
The Treaty of Paris equipped the ECSC with a Parliamentary Assembly
and a Court of Justice, and thus constituted the foundations for the
Community structure which we know today. The Community powers
however stayed relatively weak, and it was rather up to the case law of
the European Court of Justice in the 1960s and 70s than to amendments
of primary law to foster the constitutionalising process of the European
Communities.
17
It was only at that time that the principle of subsidiarity re-entered
European parlance. Against the background of the rise of a powerful
supranational actor, proposals for the introduction of the principle mostly
resulted from institutional struggles and the fears of single Member States,
or the regions of Member States, who asserted that too much power was
shifting from the national to the European level. In this line, the 1975
Commission Report on European Union recognises the growing resistance
to centralise powers all over Europe and emphasises that a Union should
not give birth to a centralizing super-state
18
. With respect to conferring
new powers on the Union, the report expressly mentions the subsidiarity
principle as a tool for to limiting any transfer of power to what Member
States are no longer capable of dealing with efciently
19
. Thus, the report
mainly associates the principle with the allocation of power rather than
with its exercise.
20
17
E. Stein, Lawyers, Judges, and the Making of a Transnational Constitution, American
Journal of International Law (1981), 130.
18
European Communities, Commission, Report on European Union, Bull. EC, Suppl.
5/75, at para. 6 and 12.
19
Consequently, and in accordance with the principe de subsidiarit, the Union will be
given responsibility only for those matters which the Member States are no longer capa-
ble of dealing with efciently., Id., at para. 12.
20
It shall not stay unmentioned that the report shortly after relativises the signicance of
the governing principle: Of course, in deciding on the Unions competence, applica-
tion of the principe de subsidiarit is restricted by the fact that the Union must be given
extensive enough competency for its cohesion to be ensured., Id., at para. 12.
245
The many expressions of subsidiarity in the Community framework
The subsidiarity idea has been formalised in the EC framework in many
ways.
21
As such, for instance, subsidiarity played a role in research and tech-
nology policy during the adoption of the First Framework Programme in
1983.
22
After some large Member States, particularly Germany, expressed
their concerns about a shift of inuence on substantial research projects
towards the Community, the European Council dened several scenarios for
envisaging Community integration: Projects which necessarily demanded
action by the Community, i.e., if the size of the project or the nancial
burden involved exceeded the capacity of the Member States, and projects
with European added value, in particular, providing the whole Commu-
nity with important ndings or leading to harmonisation of norms and
standards.
23
Thus, the Framework Programme was to secure a minimum
involvement of the Community.
The rst acknowledgement of a general principle
24
of subsidiarity
appeared in the 1984 Draft Treaty on the establishment of the European
Union, also known as the Spinelli Draft Constitution, elaborated by the
Institutional Committee of the European Parliament under the auspices of
Altiero Spinelli in the years 19811984. The draft expressed the subsidi-
arity principle in a twofold way: it instituted subsidiarity as a competence
allocating principle
25
and as a principle limiting the application of shared
21
Due to the limitation in space, I restrict myself to few examples here. See Henkel, supra,
note 16, at 366 et seq. for further examples. Among others, he mentions the provisions
on the approximation of laws affecting the establishment of the common market in Arts.
3h and 100 EEC, the approach of ECJ and Commission to Art. 30 EEC Treaty and
the legal instrument of Community directives. Regarding the latter see also S. Prechal,
Directives in EC Law, 2nd ed. (Oxford, Oxford University Press 2005), at p. 5: the
directive seems to go hand-in-glove with the principle of subsidiarity.
22
For details see R. Sturm, Die Rolle des Subsidiarittsprinzips in der Forschungsund
Bildungspolitik, in R. Sturm (ed), Europische Forschungsund Technologiepolitik und
die Anforderungen des Subsidiarittsprinzips (Baden-Baden, Nomos 1996), pp. 3746.
23
Id., at p. 43.
24
With respect to subsidiarity as a general principle, it should not stay unmentioned that
the ECJ later on eliminated any possibility to interpret a general principle of subsidiarity
into the Treaty before the Maastricht Treaty coming into force; see joined cases C36/97
and C37/97 Kellinghusen and Ketelsen, [1998] ECR I6337, at para. 35.
25
See the Preamble of the Draft Treaty establishing the European Union: Intending to
entrust common institutions, in accordance with the principle of subsidiarity, only with
those powers required to complete successfully the tasks they may carry out more satis-
factorily than the States acting independently, Bull. EC, 2-1984, 826.
246
competence to measures which could be undertaken more effectively in
common
26
. It is interesting to see that the visionary Spinelli draft already
featured subsidiarity as a general constitutional rule. A large majority in
the European Parliament voted in favour of the Treaty, but it did not nd
the necessary political support in the Member States and other European
institutions in the end.
Nonetheless, an expression of the principle found its way into the Single
European Act in 1986, but in the limited eld of environmental policy
27
.
The newly introduced Article 130r(4) EC stated that the Community shall
take action relating to the environment to the extent to which the objectives
referred to . . . can be attained better at Community level than at the level of
the individual Member States.
28
The subsidiarity test of Article 130r(4) EEC
thus stipulated a comparative enquiry into the efciency of the Community
and the individual Member States in achieving the respective objectives of
environmental policies. Such a test on pure efciency grounds does not do
much for the Member States. However, Article 130s EEC secured the unanim-
ity requirement for the voting in the Council. This procedural hurdle did not
leave space for Community action on efciency grounds.
The way to Maastricht
With the Single European Act, the Community expanded its policy
scope into many sensitive areas of national deliberation, such as environ-
mental protection or worker health and safety. And further treaty amend-
ments were expected to even expand the legislative competences.
29
A surge
in European legislative activity accompanied the project of completing the
Single Market. Article 100a (now Article 95) EC provided the Community
with a wide competence in pursuit of market integration.
30
26
Id., Art. 12(2): The Union shall only act to carry out those tasks which may be under-
taken more effectively in common than by the Member States acting separately, in
particular those whose execution requires action by the Union because their dimension
or effects extend beyond national frontiers.
27
For a more detailed analysis see K. Lenaerts, The Principle of Subsidiarity and the
Environment in the European Union: Keeping the Balance of Federalism, Fordham
International Law Journal (1994), 846895.
28
The Maastricht Treaty deleted this specic mention of the principle when the general
principle set out in Art. 3b (todays Art. 5) EC was introduced.
29
Cf. Bermann, supr,a note 8, at 345.
30
The provision is considered to be extremely imprecise; see S. Weatherill, Competence
Creep and Competence Control, Yearbook of European Law (2004), 156.
247
Member States and consequently sub-national inuence dwindled with
the expansion of qualied majority voting,
31
which eased the Communitys
legislative initiative and boosted its determination to introduce new legisla-
tion. Given the new constitutional doctrines of supremacy of Community
law and direct effect,
32
the balance of powers between the Community and
the Member States had evidently altered by the late 1980s.
Not surprisingly, this increase in power met with growing resistance.
As soon as the Single European Act came into force, Member States, under
the leadership of Germany and the United Kingdom, started to press for
the incorporation of the subsidiarity principle into the Treaties.
33
The idea
found acceptance of the European Parliament and the Commission, but
these organisations gave a specic twist to it. They sensed the principle could
strengthen the Communitys position if a diluted version could be adopted,
which would enable the Community to act by reason of pure efciency
considerations
34
. In comparison, the British and the German governments
demanded an organising principle guaranteeing the Member States autono-
mous rights and protect them from the interference of the European authori-
tiesthe British going even further by demanding for a re-allocation of
powers to the Member States level.
35
Sub-national actors equally played a role in demanding a revision of
the division of powers. Among the staunchest advocates of a competence
delimiting principle were the German federal states (the Lnder) which
sensed that their inuence in decision-making was fading away. While the
federal government negotiated about conferrals of powers, the Lnder suf-
fered most as it was they who surrendered power to the Community. Their
criticism was directed to the European institutions and the German fed-
eral government alike. In addition, however, they demanded respect for the
31
In particular, legislation on the basis of the new Art. 100a EC demanded only the con-
sent of a qualied majority in the Council.
32
See Stein, supra, note 17.
33
See a description of developments before adoption of the Maastricht Treaty by W. Hilz,
Das Subsidiarittsprinzip im Maastricht-Proze: Eine europapolitische Karriere, in
R. Sturm (ed), Europische Forschungsund Technologiepolitik und die Anforderungen
des Subsidiarittsprinzips (Baden-Baden, Nomos 1996), pp. 1136, at pp. 1321.
34
Hrbek, supra, note 11, at 516/517.
35
That shall not distract from the fact that the British and German positions were based
on totally different views of a European Union. While the Germans favoured a union
based on a federal structure, the British were against the federal idea and rather opposed
the excessive shift of competences towards the Community; Id., at 516.
248
capability of sub-national actors in the comparative capability test. In line
with the British, moreover, they called for a power-allocating function of the
subsidiarity principle.
36
The Maastricht Treaty and the general principle of subsidiarity
The principle found a twofold acknowledgement in the Maastricht
Treaty. On the one hand, the Preamble and Article A (now Article 1) EU
proclaimed a new stage in the process of integration of an ever closer union,
in which [in accordance with the principle of subsidiarity] decisions are
taken as closely as possible to the citizen. On the other hand, Article B
(now Article 2) EU referred to Article 3b (now Article 5) EC, which stipu-
lated the limits to Community exercise of competences. It states: In areas
which do not fall within its exclusive competence, the Community shall take
action, in accordance with the principle of subsidiarity, only if and in so far
as the objectives of the proposed action cannot be sufciently achieved by
the Member States and can therefore, by reason of the scale or effects of the
proposed action, be better achieved by the Community.
The Maastricht Treaty thus embraced two ways to protect executive
prerogatives.
37
Article A EU and the Preamble articulated the obligation to
take decisions at the possibly lowest level of government. However, this com-
mitment to a subsidiarity approach took the form of a political statement
rather than a justiciable legal norm. The second expression of the subsidiar-
ity principle, that of Article 3b(2) EC, is more interesting. The provision
stipulates a two-tier test. After determining that the area within which the
Community has taken action does not belong to its exclusive competences,
the Communitys action must, according to its wording,
38
satisfy both of the
following requirements. Firstly, the respective action and its extent cannot
be sufciently achieved by the Member States acting alone (necessity criter-
ion). Secondly, the proposed action can by reason of the scale or effects be
better achieved by the Community (efciency criterion). The conditions are
cumulative, as the words and . . . therefore show. The test thus necessarily
36
[A]ls seine Kernforderung fr den Vertrag u.a. die Verankerung des Subsidiarittsprin-
zips im Sinne einer kompetenzregulierenden Schranke (BR-Dr 680/91 Beschlu),
Id., at 517.
37
American scholars would most probably talk of an executive subsidiarity approach; see
G. de Brca, Reappraising Subsidiaritys Signicance after Amsterdam, Harvard Jean
Monnet Working Paper 7/99, at Fn. 23.
38
The objective will of the constituents should generally be determined by the wording,
and only in second place by systematic and teleological reasons.
249
requires the determination of insufciency of measures at Member State level
before giving space to efciency arguments.
However, the Maastricht Treaty version was a compromise. Several
grounds for criticism were swiftly identied, and they sadly corresponded to
the above mentioned demands from the subsidiarity principle.
39
The principle
still lacked clear criteria for its application. The provision provided for a test
alright, but the abstract formulation left space for divergent interpretations.
Predictably, those who favoured a exible instrument kept pushing for Com-
munity action on efciency grounds.
40
Secondly, the Maastricht Treaty did
not embrace subsidiarity as a competence allocating principle and thus did not
return to the ideas in the parliamentary draft of 1984.
41
Art. 3b introduced
an expressly named principle to restrain the exercise of powers, but it did not
provide for a tool to (re-) assess the allocation of powers. The application of
the subsidiarity principle was, moreover, limited in its reach, particularly by
the requirement that subsidiarity would not operate in areas in which the
Community was given exclusive competence. The latter might not appear as
too constricting from todays point of view, but it should be borne in mind
that many relevant competence provisions, as for example Article 100a (now
Article 95), were seen as to belong to exclusive Community competences.
42
III. THE PRINCIPLES FINAL SHAPE
In the wake of the Danish negative referendum on the Maastricht Treaty
in June 1992, the near failure of the French approval in September and
rising public doubts in other Member States,
43
the debate on the primary
safeguard for the prerogatives of the nation states
44
gained new relevance.
While treaty amendments were out of question, the concept needed to be
rendered more specic as to reassure the Euro-sceptic.
39
See the above chapter on The way to Maastricht.
40
See the Commissions Communication, supra, note 2, at p. 2.
41
See above, supra, note 25.
42
For an assessment of the Art. 95 EC issue see Weatherill, supra, note 30.
43
Not only the tight referenda were fostering the debates, but also the complaints of
unconstitutionality of the Maastricht Treaty of four German members of the Euro-
pean parliament and a high ranking ofcial of the Commission pending at the German
Constitutional Court; the outcome was the famous Maastricht decision of the German
Constitutional Court; for a translation of the decision see the Common Market Law
Review (1994), at pp. 57.
44
Marquardt, supra, note 15, at 626.
250
1. THE EDINBURGH GUIDELINES AND THE INTERINSTITUTIONAL
AGREEMENT
The Commission was the rst to suggest ways to give additional content
to the principle. In its Communication to the Council and the European
Parliament
45
it departed from the wording of the second paragraph of Article
3b EC and the two-tier test, replacing it with a test of comparative ef-
ciency between Community action and that of Member States
46
. This only
underlined the Commissions unwillingness to allow the necessity require-
ments which the British and German governments had been pressing for
47
.
Meanwhile, the Commission showed some goodwill by including subsidi-
arity considerations in its procedures and by reviewing and withdrawing a
number of legislative proposals underway. It also planned review of existing
legislation, particularly such adopted for internal market purposes.
48
The European Council, who at its meeting in Lisbon
49
following the
Danish No in June 1992 had asked the Commission and the Council to
elaborate guidelines for the application of the subsidiarity principle, was able
to agree on an overall concept at its meeting in Edinburgh in December of
the same year.
50
It undertook a rm commitment to make the principle work
in practice and appealed for an inter-institutional agreement between the
Community institutions.
51
Its guidelines for the implementation of Article
3b EC stressed that the new principle would not alter the powers conferred
on the Community, and that subsidiarity would be a dynamic concept and
45
See the Commissions Communication, supra, note 2.
46
Id., at p. 2.
47
See e.g. the memorandum of the German federal government on the Treaty of Maas-
tricht in W. Weidenfelder, Reform der Europischen Union: Materialien zur Revision des
Maastrichter Vertrages (Gtersloh, Bertelsmann Stiftung 1995), pp. 300307.
48
See C. Timmermans, Subsidiarity and Transparency, Fordham International Law Jour-
nal (1999), 106127, at 108/109 for further details.
49
Bull. EC, 61992, at p. 11.
50
For a comprehensive summary of the ongoing discussions in the European institutions
see I. Eichelt, P. Slominski, The Negotiation of the Interinstitutional Declaration on
Democracy, Transparency and Subsidiarity, EIF Working Paper Series, Working Paper
Nr: 4.
51
Making the principle of subsidiarity and Art. 3b work is an obligation for all the Com-
munity institutions, without affecting the balance between them . . . An agreement
shall be sought to this effect between the European Parliament, the Council and the
Commission . . . , European Council, Conclusions of the December 1112 Edinburgh
Summit, Bull. EC, 121992, at p. 13.
251
should be applied in the light of the objectives set out in the Treaty.
52
Three
test cases were provided to help determine compliance with the principle.
The rst case was when transnational aspects were present which could not
be satisfactorily regulated by Member States. The second was where inde-
pendent action by Member States would conict with the requirements of
the Treaty or harm Member State interests. The third was where action at
the Community level would produce clear benets of scale or effects as com-
pared with action at the level of Member States. Particularly the latter alter-
native appears counterproductive in underlining Article 3bs requirements.
While the rst two alternatives refer to cases where Community action is
necessary and respects both the necessity and efciency criterion, the third
case scenario seems to directly address only the efciency criterion and so
to ignore the necessity criterion.
53
As such, the European Councils position
resembled very much the Commissions view pictured above.
An inter-institutional agreement between the European Parliament, the
Council and the Commission on the rules to put subsidiarity in practise fol-
lowed in October 1993.
54
It is apparent from that document that the institu-
tions nally agreed on a procedural approach to safeguard the principle of
subsidiarity. The document lays down rules on procedures and the review
of compliance with the principle. The institutions undertake to justify their
actions in the light of the principle of subsidiarity and the Commission is to
present the other two institutions with an annual report on compliance with
the principle, which the European Parliament is to debate.
55
It is agreed that
the procedures shall not call into question the acquis communitaire, the
provisions of the Treaties concerning the powers conferred on the institu-
tions or the institutional balance.
56
52
Id.
53
In the same way Lenaerts, supra, note 28, at 878.
54
Interinstitutional Agreement between the European Parliament, the Council and the
Commission on procedures for implementing the principle of subsidiarity, Bull. EC,
101993, at pp. 119/120 (point 2.2.2 of the overall Interinstitutional Declaration on
democracy, transparency and subsidiarity).
55
The Commission has produced an annual report on the application of the subsidiarity
principle since 1993. The reports coverage widened from 1995 which is also reected
in the change of its title: Better Law-Making, the last report to date being the Better
lawmaking 2005, COM(2006) 289 nal.
56
See the Interinstitutional Agreement, supra, note 54, under the headline General
Provisions.
252
2. TODAYS SETTING AND THE ROLE OF THE EUROPEAN
COURT OF JUSTICE
The weakness of the Edinburgh guidelines and the Interinstitutional
Agreement was evident from a legal point of view. Both documents were pol-
itical documents, not legally binding. This provoked several Member States
to push for provisions of primary Community law in the preparations for
the Intergovernmental Conference leading up to the Treaty of Amsterdam
in 1997. The IGC decided to append to the treaty a so-called Protocol on
the Application of the Principles of Subsidiarity and Proportionality,
57
a
document transforming the Edinburgh guidelines and the subsequent Inter-
institutional Agreement into a legally binding text
58
. The Amsterdam Treaty,
in addition to re-numbering the relevant Treaty provisions,
59
thus opened the
door to the judicial control of the subsidiarity principle.
60
It is interesting to take a closer look at this nal elaboration of the sub-
sidiarity requirements in No. 5 of the Protocol. Its rst sentence says: For
Community action to be justied, both aspects of the subsidiarity principle
shall be met: the objectives of the proposed action cannot be sufciently
achieved by Member States action in the framework of their national con-
stitutional system and can therefore be better achieved by action on the part
of the Community. Thus, it underlines both aspects of the principle, the
criterion of necessity as well as that of efciency. However, to determine
whether these aspects are respected, the protocol repeats the less than satis-
factory guidelines resulting from the Edinburgh Council. Was this the much
anticipated regulation providing effective competence control, or was this
once again political masquerade?
When the ECJ was asked to decide on the requirements and the scope
of the subsidiarity principle it appeared that such an adjudication decision
would straddle the borderline between law and politics. The Court was
required to make taxing assessments of an essential political nature whether
Member States measures would be sufcient or Community action would
be better. It therefore comes as no surprise that the ECJ has not worked
the subsidiarity principle very actively, and the court avoids to address the
57
Protocol No. 30 to the Treaty of Rome on the Application of the principles of subsidi-
arity and proportionality.
58
Id.; The recitals refer to both of above pictured documents (supra, notes 51 and 54).
59
Art. 3b of the EC Treaty was now Art. 5 and Art. A of the EU Treaty Art. 1.
60
See No. 13 of the Protocol, supra, note 57.
253
material content of the principle. So far, the ECJ has never annulled a meas-
ure for infringement of the subsidiarity principle, only for lack of compe-
tence or proportionality.
61
As an Austrian scholar observed, the Court is
interpreting the subsidiarity principle out of the Treaty.
62
Case C377/98 illustrates the judicial approach to subsidiarity. The
Dutch government sought annulment of Directive 98/44 on the legal pro-
tection of biotechnological inventions which was based on the internal mar-
ket competence norm Article 95 EC. Among other things, the Netherlands
claimed breach of the principle of subsidiarity because the laws of the Mem-
ber States were based on the European patent convention and clarications
should be effected by amending the Convention. In the alternative, the
Directive lacked adequate reasoning as it failed to state that the subsidi-
arity requirement was taken into account. The Court argued as follows:
The objective pursued by the Directive, to ensure smooth operation of the
internal market . . . , could not be achieved by action taken by the Member
States alone. As the scope of that protection has immediate effects on trade,
and, accordingly, on intra-Community trade, it is clear that, given the scale
and effects of the proposed action, the objective in question could be better
achieved by the Community.
63
With its reasoning, the Court assesses sub-
sidiarity by referring to the requirements of Article 95 EC. It does not deal
with the material content of the subsidiarity principle, but simply repeats
the recitals of the Directive and concludes that the subsidiarity principle is
necessarily implicit.
64
It equates subsidiarity scrutiny with the test of com-
petence and thus drains the principle of all its value.
Concerning the duty to state reasons, the Court simply refers to its case-
law,
65
in which it was held that although the Community legislature need
not mention the principle of subsidiarity expressly, the Court would not
be satised with mere formulaic reasoning regurgitating the two-tier test of
61
See e.g. case C376/98, Tobacco Advertising, [2000] ECR I8419.
62
Stefan Schima, cited by Albin, supra, note 1, at p. 632. For an assessment of the case
law see e.g. A. Estella, The EU Principle of Subsidiarity and its Critique (Oxford, Oxford
University Press 2002), at pp. 140176 who focuses on cases C84/94, UK v. Council,
[1996] ECR I5755 (Working time Directive) and C-233/94, Germany v. Parliamant
and Council, [1997] ECR I2405 (Deposit-guarantee schemes Directive); a recent
article giving an overview is Ritzer, Ruttloff and Linhart, supra, note 1.
63
Case C377/98, The Netherlands v. Parliament and Council, [2001] ECR I7079, at
para. 32.
64
Id., at para. 33.
65
For an analysis of the case see Estella, supra, note 62.
254
Article 5(2) EC. However, in later practice this did not prevent the Com-
munity legislator from spreading a multitude of justications in a haphazard
manner throughout the recitals of a measure.
66
The chosen case serves to illustrate the ECJs hesitant approach to the
material scope of the principle embodied in Article 5(2) EC. In other cases,
the Court has applied the principle as a supporting argument to strengthen
the Courts reasoning or as an aid to interpretation.
67
In Dworkins terms, we
need to differentiate between Article 5(2) as a legal rule and the subsidiar-
ity in its broader application as a legal principle. The concretisation of the
legal rule has so far largely been relegated to the primary law.
IV. THE PROVISIONS ON SUBSIDIARITY IN THE
CONSTITUTIONAL TREATY
The debate about a European constitution began only after the Nice
European Council in 2000, partially as a response to perceptions of failure
given the limited character of the outcome of that summit. Nevertheless,
further steps had been initiated, and the European Council committed itself
to agree on a declaration containing appropriate initiatives for the continu-
ation of this process
68
. This nally resulted in the adoption of the Laeken
declaration and the follow-up work of the Convention.
69
With respect to
the development of the subsidiarity principle, two important factors which
were later subject to the Conventions work
70
were already expressed in the
Nice declarations, namely the clearer establishment and monitoring of the
delimitation of Community powers, and the enhancement of the role of
national Parliaments
71
. Several elements found their way into the nal draft
of the Constitutional Treaty discussed below.
66
Ritzer, Ruttloff and Linhart, supra, note 1, at Fn. 60.
67
See T. Tridimas, The General Principles of EU Law, 2nd ed. (Oxford, Oxford University
Press 2006), at pp. 184/185.
68
See No. 4 of the Declaration No. 23 to the Treaty of Nice.
69
See supra, notes 3 and 4.
70
The Convention dealt with manifold proposals concerning the subsidiarity issue, includ-
ing proposals to introduce new political institutions, such as a parliamentary subsidiarity
committee or a competence court. These proposals were, however, soon discarded, and
the convention suggested introducing some kind of early-warning mechanism instead.
71
See No. 5 of the Declaration No. 23 of the Treaty of Nice.
255
1. THE CONSTITUTIONS RE-FORMULATION OF THE
SUBSIDIARITY PRINCIPLE
The Constitutional Treaty is meant to replace all the treaties signed
over the last fty years, with the exception of the Euratom Treaty
72
, and
merges the three pillars of the Union construct introduced by the Maas-
tricht Treaty. This also leads to a merger of the subsidiarity provisions in
the Treaty. The subsidiarity principle is located among the Fundamental
principles in Article I11, preceding the Constitutional Treatys chapter
on Union competences. The rst paragraph of the provision conrms
and claries the principles of conferral, subsidiarity and proportionality.
The rst of these governs competence allocation, and the principles of
subsidiarity and proportionality govern the use of those competences.
Denitions of the principles are articulated more precisely in the follow-
ing paragraphs.
Article I-11(3) TCE species the scope of the subsidiarity principle in
two paragraphs. The rst of them somewhat resembles the current Arti-
cle 5(2) EC: 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 sufciently 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. A closer look reveals noteworthy differ-
ences. First of all, the provision does not only mention the Member States
but expressly mentions a regional and local level. This change might just
be cosmetic
73
. Nevertheless, it is a tribute to all the calls for the refer-
ence to sub-national actors. The second difference concerns the discussed
and . . . therefore-formula which is substituted by but can rather.
This indicates an afrmation of a two-tier test, requiring the insufciency
of action by Member States or sub-national actors before dealing with the
efciency of Community action. The reformulation indicates that the
burden of proof is not met by mere reference to more efcient enforce-
ment possibilities on Community level. Whether a mere replacement of
72
The European Atomic Energy Community (Euratom) has not merged with the Union
and therefore retains a separate legal personality, though sharing the same institutions.
The Constitution adopts the changes which need to be made to the Euratom Treaty in
the Protocol amending the Treaty establishing the European Atomic Energy Commu-
nity, which is annexed to the Constitution.
73
N.W. Barber, Subsidiarity in the Draft Constitution, European Public Law (2005),
197205, at 201.
256
the and . . . therefore-formulation would result in a change of attitude
of the European institutions is, however, doubtful.
2. NEW PROTOCOL, NEW PROCEDURE, NEW WATCHDOGS
The second paragraph of Article I11(3) TCE refers to the new Proto-
col on the Application of the Principles of Subsidiarity and Proportional-
ity and expressly mentions the involvement of national parliaments in
ensuring compliance with the subsidiarity principle. It is this Protocol,
which brings about the most signicant changes concerning subsidiarity.
The Protocol not only comprises general rules on the application of the
principles by the European institutions, but it introduces a new control
mechanism, charging national parliaments with subsidiarity scrutiny dur-
ing the legislative drafting process. It also provides for a right to appeal to
the ECJ by the national Parliaments and the Committee of Regions.
74
Interestingly, the control procedure is also referred to in the implied
powers provision (todays Article 308 EC) which was retained in the Con-
stitutional Treaty in its Article 18, the exibility clause provision. If
the Commission would base its proposal on the exibility clause, Article
I18(2) obliges it to explicitly draw national Parliaments attention to
the fact, and the provision explicitly refers to the procedure laid down in
Article I-11(3), hence the procedure stipulated in the Protocol.
The new procedures laid down in the Protocol are to ensure that
the European legislative bodies will not be able to decide autonomously
upon the use of the principle of subsidiarity. First, the Protocol demands
a detailed justication of legislative proposals and initiatives from the
initiators with regards to the principles of subsidiarity and proportion-
ality.
75
For this purpose, any legislative proposal shall contain a sub-
sidiarity sheet
76
substantiating the reasons for the preference of Union
activity by qualitative and quantitative arguments, taking any nancial or
administrative burdens into account, and in the case of a Framework law
74
With respect to the enforcement of the principle of subsidiarity by the Court of Justice,
the new Protocol makes it clear that Member States may bring an action for annulment
against a legislative act on grounds of infringement of the principle of subsidiarity on
behalf of their national parliament or of one of its chambers. The Committee of the
Regions may also bring such action against legislative acts where the Constitutional
Treaty provides that it must be consulted; see Art. 8 of the Protocol.
75
Cf. Art. 5 of the Protocol.
76
See the Conclusions of the working group on subsidiarity, supra, note 5, at p. 4.
257
(corresponding to todays Directive) its implications for the rules to be
put in place by Member States.
77
Secondly, the legislative proposals are
to be forwarded to the national Parliaments.
78
This includes all the drafts
and amended drafts of the European legislative actors.
Within six weeks of transmission of the document, any national par-
liament or any chamber of a national parliament is entitled to send a rea-
soned opinion to the Presidents of the European Parliament, the Council
of Ministers and the Commission explaining why they believe a legislative
proposal fails to comply with the principle of subsidiarity.
79
It is up to
the national parliaments to consult regional parliaments with respective
legislative powers in the national context in so far. The Commission, the
European Parliament and the Council must take account of the reasoned
opinions issued by the national parliaments or the chambers of the parlia-
ments respectively. Only under qualied circumstances does the obliga-
tion go beyond consideration of the opinion however: If one third of the
national parliaments
80
nd that the proposal does not comply with the
principle of subsidiarity, the draft must be reviewed.
81
In the areas of police
co-operation or judicial co-operation in criminal matters the threshold is
one quarter.
As such, the control mechanism seems limited in its effectiveness. This
is so for technical reasons such as for example the seemingly too short
77
Any draft European legislative act should contain a detailed statement making it pos-
sible to appraise compliance with the principles of subsidiarity and proportionality.
This statement should contain some assessment of the proposals nancial impact and,
in the case of a European framework law, of its implications for the rules to be put in
place by Member States, including, where necessary, the regional legislation. The rea-
sons for concluding that a Union objective can be better achieved at Union level shall
be substantiated by qualitative and, wherever possible, quantitative indicators. Draft
European legislative acts shall take account of the need for any burden, whether nan-
cial or administrative, falling upon the Union, national governments, regional or local
authorities, economic operators and citizens, to be minimised and commensurate with
the objective to be achieved., Art. 5 of the Protocol.
78
79
80
To be exact, a unicameral parliament has two votes and each chamber of a bicameral
parliament has one vote in this respect, and the thresholds are one third or one quarter
respectively of the total sum of votes, compare Art. 7(2) of the Protocol.
81
258
six-week comment period.
82
It could be hard for national parliaments to iden-
tify and debate respective legislative proposals in such a short period of time.
Furthermore, the controlling mechanism could be questioned from a broader
point of view, as the mechanism would demand from national parliaments to
distance themselves from political opportunism and detach themselves from
the content of the legislative proposal and only judge it on grounds of subsidi-
arity.
83
This hardly seems realistic, the more so because it is unclear why the
possibility for stating a reasoned opinion is limited to subsidiarity reasons and
does not e.g. enable objections on grounds of proportionality or the breach
of human rights.
84
And nally, it seems incongruous that even a vast national
parliaments majority does not give parliaments a veto power, only a way to
force the European legislator to review the proposal.
However, the involvement of national parliaments in policing subsidi-
arity is a reasonable step. They are the bodies with the strongest interest in
seeing the principle work, and they would be more willing to address sub-
sidiarity issues than the European institutions.
85
As such, they are the perfect
watchdogs
86
of subsidiarity. Minor technical problems, like the six-weeks
commenting period could easily be overcome, particularly as the national
parliaments are installing new scrutiny mechanisms
87
and start to join forces
to develop new ways of subsidiarity review.
88
And the missing veto power
simply accentuates the general idea behind the mechanism: The national
parliaments are to detach themselves from political opportunism and to
only judge the content of the legislative proposal on grounds of subsidiarity.
They are to provide the European institutions not only with reasoned but
also with reasonable opinions.
82
See Mayer, supra, note 6, at pp. 501/502.
83
J. Peters, National Parliaments and Subsidiarity: Think Twice, European Constitutional
Law Review (2005), 6872, at 71.
84
Barber, supra, note 73, at 203.
85
In the same way Barber, supra, note 73, at 198/199; Cooper, supra, note 1, at 292.
86
I avail myself of the notion used by Cooper, supra, note 1.
87
See the continuously updated overview of scrutiny of EU-matters in national parlia-
ments on the COSAC website, cosac.eu/en/info/scrutiny/.
88
COSAC has launched a pilot project and it will conduct two subsidiarity and propor-
tionality checks during the year 2006, the results will be available on the COSAC website
cosac.eu/en/info/earlywarning. As for the respective role of the COSAC, already the Pro-
tocol on the role of the national parliaments in the European Union (Amsterdam Treaty)
states that the COSAC may address any contribution which it deems appropriate in the
relation to the application of the principle of subsidiarity, see II.6. of the Protocol.
259
V. CONCLUSIONS AND PERSPECTIVES
Todays system of Community competences is the result of a long-stand-
ing constitutionalisation process through treaty amendment, legislative
activity and decisions of the ECJ. The result is a complex entanglement of
political choices and jurisprudence representing a balancing act between ever
changing national and Community interests. On the whole, the principle of
subsidiarity was introduced to counter-balance an assumed centralisation of
powers, and thus to delimit Community competences.
As I have pictured above, throughout the history of European integra-
tion the debate on subsidiarity has reected the federalist/intergovernmen-
talist dichotomy. While the advocates of a strong Union would welcome
to see the Community undertake anything which cannot be dealt with
adequately at the national level, their opponents favour a conception of
subsidiarity favouring states and regions. Scholars have rightfully criticised
these approaches as outdated or the continuation of an old, vertical logic
which would reduce the issue to either action by the Community or action
by the Member States.
89
However, subsidiarity can be conceived in many ways. Among those the
subsidiarity principle envisaged in Article 5(2) EC appears an appropriately
restrictive but exible instrument for determining the boundaries of Com-
munity action in the dynamic European system. Even if seen as a principle
of essentially political nature,
90
it is a means to ensure maximal democratic
involvement in policy-making, implementation and enforcement.
Much progress has been achieved in making subsidiarity work by means
of the two procedures for safeguarding the principle, legislative guarantees
and judicial control. Already the Amsterdam protocol on the application of
the principle of subsidiarity contained procedural guarantees, including a
duty to state appropriate reasons for legislative proposals and the elaboration
of annual reports. The Protocol to the Constitutional Treaty only enhances
those requirements, for example repressing formulaic reasoning in legislative
proposals. Thus, the solutions offered by the Protocol are a reasonable step
to making the subsidiarity principle operational. As to the introduction of
89
Estella, supra, note 62, at p. 177.
90
Cf. the conclusions of the Convention working group, supra, note 5, at pp. 2/3. Against
this background, the Convention decided to discard proposals to introduce new political
institutions, such as a parliamentary subsidiarity committee or a competence court, and
nally decided for ex ante political monitoring of the subsidiarity principle.
260
other procedural safeguards the Constitutional Treatys idea could even be
further elaborated. To really prevent a competence creep
91
, i.e., the exten-
sive use of the wide non-sector-specic competence provisions in Articles 95
and 308 EC, the mechanism foreseen in the new exibility clause should
particularly be extended to the internal market competence which remained
unaffected in Article I-172 of the Constitutional Treaty.
As regards judicial control, however, the Amsterdam protocol did not nd
the right solution, which creates the impression that all the efforts of the time
were masquerade.
92
Subsidiarity considerations involve political judgments as
to what is the best level of action. As such, the Courts reluctance to address the
subsidiarity principle is quite understandable. Besides, how can the ECJ decide
when the Amsterdam protocol contains language that is inherently contradic-
tory, as it conrms both the necessity and efciency criteria, while at the same
time allowing alternative scenarios? This just opens the door to pure efciency
reasoning by the legislator. However, the impact of the principle of subsidiarity
depends a great deal on its rigorous judicial enforcement. The Protocol to the
Constitutional Treaty provides new ways to achieve this because the involve-
ment of national parliaments in subsidiarity scrutiny could foster the Courts
involvement. The national parliaments are not only the bodies most interested
in seeing the principle work, but they would also be most willing to address
subsidiarity issues. Thus, they would challenge Community measures more
often and force the Court to shape the principles requirements and reach.
Without being perfect, the Protocol to the Constitutional Treaty offers a
far better answer to most questions than todays solutions, and it remains to
ask how to implement the solutions, how to turn them into practice. To have
justiciable safeguards in place would require an amendment to the Treaties
according to Article 48 EU and a reform of the subsidiarity protocol in the
form proposed by the Constitutional Treaty. The Treaty in its present shape
gained new upswing in 2006 with Estonia and Finland ratifying it,
93
giv-
ing hope that the constitutional development may not have reached a dead
91
Cf. Weatherill, supra, note 30.
92
The question of Kompetenz-Kompetenz stays unanswered in the Constitutional Treaty,
i.e. the question who decides on whether the principle has been observed or not, if the
ECJ or national (constitutional) courts. On this issue J.H.H. Weiler, The autonomy
of the Community legal order: through the looking glass, in J.H.H. Weiler (ed), The
Constitution of Europe (Cambridge, Cambridge University Press 1999), pp. 286323.
93
The Finnish ratication took symbolically place during its presidency of the Council
in the second half of 2006. See the state of play in the Member states on europa.
eu.int/constitution/ratication_en.htm.
261
end. Has not the ratication of the Maastricht Treaty also suffered initial
setbacks before that instrument became a watershed in European integra-
tion history? However, it is probably true to say that the current problems
are fundamental ones and the ratication of the Constitutional Treaty seems
highly unlikely.
Given the consensus on the importance of subsidiarity and the fact that
it is not really controversial as a principle, the question is fully justied as to
how it can be implemented and improved independently of the Protocols
entry into force. In this regard, it is important to recall that the procedure
foreseen in the new protocol is built on the idea of involving national par-
liaments in the ex ante review, not as watchdogs being able to halt Euro-
pean decision making but rather as an alarm system transmitting intrusions
into the Member States sphere. The national parliaments are not meant to
become co-legislators having a right to veto decisions, but their involvement
is to reduce the democratic decit by giving national parliaments, and thus
the public, a voice, a voice that should not be underestimated against the
background of todays inuence of the press and the media.
We have learned from the history of the principle of subsidiarity that
an interinstitutional agreement could serve to make the legislative proceed-
ings work. Such an agreement could encompass a rm commitment of the
European institutions to substantiate their proposals, to transmit them to the
national parliaments
94
and to respect objections of national and sub-national
actors, thus the procedure foreseen in the Protocol. Including proportionality
considerations could, moreover, ensure more subtle ways of compromise and
thus facilitate the interinstitutional agreements distributive bargaining func-
tion.
95
The subsidiarity question decides on whether the European legislator
is allowed to act or whether not, while proportionality would entail a way
to compromise when action on the European level would deem necessary.
However, when discussing the nal shape of involvement of national parlia-
ments, one should not forget the particularities of putting such an agreement
into practice. Particularly the blizzard of paperwork
96
could result in a
94
The Commission announced in May 2006 that it will transmit directly all new legisla-
tive proposals and consultation papers to the national parliaments; see COM(2006) 211
nal, at p. 89.
95
Cf. I. Eiselt, P. Slominski, Sub-Constitutional Engineering: Negotiation, Content, and
Legal Value of Interinstitutional Agreements in the EU, European Law Journal (2006),
209225, at 213.
96
Cooper, supra, note 1, at 301.
262
deadlock of the work of smaller Member States parliaments. Therefore, the
present efforts of the Committee of Regions
97
and particularly the COSAC
98

in subsidiarity scrutiny should be closely followed. It may provide for an
answer to the question whether an expert group of members of national
parliaments and sub-national actors could reasonably be installed as a com-
munication mediator for the Member States parliaments in the future.
97
Follow the upcoming decisions of the Committee at cor.europa.eu/en/activities/
sub_net.htm.
98
See above, supra, note 88.
ENHANCED COOPERATION:
THE WAY OUT OR A NON-STARTER?
Nico Groenendijk
I. INTRODUCTION
Provisions regarding closer cooperation between EU Member States
appeared for the rst time in the 1997 Amsterdam Treaty. Three years later
these provisions were augmented and restated, by means of the Treaty of Nice,
now using the term enhanced cooperation. In the Constitutional Treaty,
the Nice mechanism has been subjected to further changes. Enhanced coop-
eration is frequently hailed as being the way out of the current deadlock in
EU decision-making and as an important possibility to proceed with Euro-
pean integration in selected areas. However, neither the closer cooperation-
mechanism of Amsterdam nor the enhanced cooperation-mechanism of
Nice (which became effective on February 1, 2003) has been used so far.
In this chapter it is argued that enhanced cooperation constitutes just
one of the many possibilities EU Member States have for exible integration.
First, there is the use of alternative integration outside the EU legal frame-
work (inter se agreements, parallel procedures). Examples include the Bologna
Process in higher education, the Schengen Agreement on border control (later
incorporated into mainstream EU integration) and the European Patent Orga-
nization. Secondly, there are other forms of differentiated integration within
the EU framework besides enhanced cooperation, like transitional arrange-
ments, temporary derogations and/or exemptions, and constructive absten-
tion. Thirdly, in some elds enhanced cooperation has de facto been brought
about without explicit use of the mechanism. The prime example here is the
development of the Eurogroup, as a byproduct of EMU.
264
The scant use of enhanced cooperation may be due to the fact that in
its current legal set-up it is subject to several conditions, of a substantive and
procedural nature. Although (in the rst and third pillar) the Nice Treaty did
away with the so-called emergency break procedure of Amsterdam (which
constituted an effective veto right for Member States opposing enhanced
cooperation), enhanced cooperation is still regarded as a means of last resort,
which clearly shows in the current provisions (Articles 11 and 11a EC and
Articles 27a-e, 4040b, 4345 EU). Still, in some policy areas (environmen-
tal policy, corporate taxation) enhanced cooperation regularly pops up as
a (second-best) solution to the problems of insufcient integration and/or
systems competition.
This chapter is structured as follows.
Section II deals with conceptualizing different types of sub-integration
(or: exible integration), i.e., integration that takes place among some but
not all EU Member States. Subsequently, the focus is on two types of sub-
integration: alternative integration and differentiated integration. Section III
deals with the actual use of alternative integration in severalselected
policy areas, showing the pros and cons of this type of sub-integration.
Section IV then discusses the use of differentiated integration in the EU
by means other than enhanced cooperation. Section V is concerned with
the enhanced cooperation mechanism and the conditions that are currently
laid down in the Treaties. Section VI analyses the possibilities for enhanced
cooperation, with a special emphasis on EU corporate tax coordination.
Section VII concludes.
II. SUB-INTEGRATION
Sub-integration refers to an instance of integration that takes place
among some but not all members of an already existing (larger) integration,
and it can take different shapes. The rst distinctive feature is whether sub-
integration takes place within the EU institutional framework or not. The
second feature refers to the policies that are involved. Sub-integration can
deal with policies that are within or outside of the EU policy domain (as
marked out by the relevant EU Treaties).
If sub-integration uses another institutional framework than the
EU framework it can either be labelled new integration or alternative
265
ENHANCED COOPERATION: THE WAY OUT OR A NON-STARTER?
integration.
1
New integration refers to sub-integration outside the EU
institutional framework dealing with policy areas that are not part of the
EU policy domain. Sub-integration outside the EU institutional frame-
work, concerned with policy areas that are within the EU domain, is
called alternative integration. In both cases it is possible to cooperate
either among EU Member States only or with outsiders as well (third
countries).
If sub-integration occurs within the EU institutional framework, there
are again two possibilities. One may call odd integration sub-integration that
employs EU institutions but deals with policies outside the EU domain. The
term differentiated integration is used to denote sub-integration taking place
both within the institutional framework and within the policy domain of the
EU. Table 1 shows the four basic types of sub-integration.
Table 1
Four basic types of sub-integration
Use of EU framework
Use of alternative
framework
Policies within
EU domain
Differentiated integration (including
enhanced cooperation)
Alternative integration
Policies outside
EU domain
Odd integration New integration
In the literature a large variety of concepts and terms has been put
forward to denote certain types of sub-integration or exibility: inter se
agreements, partial agreements, parallel procedures, two-speed Europe,
multi-speed Europe, multi-speed integration, European vanguard, avant-
garde group, directoire, pioneers clubs, pioneers and followers, core Europe,
Kern Europas, Harter Kern, noyau dur, centre de gravit, centre of gravitation,
variable geometry, gometrie variable, Europe la carte, pick-and-choose,
differentiated Europe, Abgestufte Integration, two-tier Europe, multi-tier
Europe, plusieurs niveaux, concentric circles, cercles concentriques, magnetic
elds, hub-and-spoke-Europe, eccentric ellipses, opt-in arrangements, opt
1
The distinction between the four types of (sub-)integration is based on but different
from Su, who uses the terms opt-out integration (rather than alternative integration)
and alienated integration (rather than odd integration). H. Su, Politics of Differenti-
ated Integration: A Comparative Study of Enhanced Cooperation in the EU and the
Pathnder in APEC (paper EUSA 9th Biennial Conference, Austin, Texas, 2005).
266
out arrangements, constructive abstention, declaratory abstention, positive
abstention, active abstention, transition periods, special treatments, deroga-
tions, exemptions, ying geese, breakaway riders and pelotons.
2
All of these concepts deal either with alternative integration (discussed below
in section III) or with differentiated integration (discussed in section IV).
III. ALTERNATIVE INTEGRATION
Europe is abounding with integration outside the EU framework. EU
Membership does not imply that countries have given up all other treaty-
making authority, which is exercised in relation with third countries or fel-
low Member States. Such agreements are called inter se agreements, partial
agreements, or parallel procedures. Some examples of alternative integration
are: the Benelux cooperation between Belgium, the Netherlands and Luxem-
bourg, the monetary union between Belgium and Luxembourg (which was
later incorporated into the EMU), the Nordic cooperation between Finland
and Sweden, the Schengen cooperation based on an Agreement signed in
1985 (which later did became part of the EU framework by the Treaty of
Amsterdam), the Common Travel Area between the UK and Ireland, the
Bologna Process dealing with higher education which now involves 40 Euro-
pean countries, the European Patent Organisation, the cooperation within
the framework of NATO and the Western European Union (WEU), the
cooperation within the OECD, and various other bilateral or multilateral
treaties on tax issues, environmental issues, culture and education.
In some of these cases (for instance the Benelux) the term alternative
integration as a form of sub-integration may be misleading, because the
alternative cooperation was already there before the larger integration
within the EU framework came about. The EEC Treaty specically did not
put an end to existing bilateral or multilateral treaties, a line which has been
held on to with the various accession treaties. Also, some of these forms of
cooperation do not so much deal with functional cooperation (i.e. coopera-
tion in a specic policy area) but have developed into forms of structured
2
For overviews of concepts of exibility, see e.g., H. Wallace and W. Wallace, Flying
together in a larger and more diverse European Union (Working Document 87, The
Hague: WRR, 1995); A. Lansdaal, Differentiation or Enhanced Cooperation. For-
malizing Flexibility, in A. Schauwen (ed), Flexibility in Constitutions: Forms of Closer
Cooperation in Federal and Non-Federal Settings (Amsterdam: Europa Law Publishing,
2002), pp. 4757; Federal Trust, Flexibility and the Future of the European Union (Lon-
don: Federal Trust, Oct. 2005).
267
coordination of views in order to maximize inuence on collective decision-
making. Again, the Benelux is an example of such a structured coordination,
as is the Nordic cooperation between Finland and Sweden.
Below, closer attention will be paid to four examples of alternative inte-
gration: the Schengen Agreement, the Bologna Process, the use of biand
multilateral treaties in corporate taxation, and the European Patent Organi-
sation. Subsequently, some general inferences on the pros and cons of alter-
native integration will be made from these examples.
1. THE SCHENGEN AGREEMENT
The Schengen Agreement (Schengen I) was originally signed in 1985
by ve European countries: Belgium, Luxembourg, France, Germany and
the Netherlands. It established the steps to be taken to create an area free of
border checkpoints (the so-called Schengen area). An additional document
(the Schengen Convention, or Schengen II) was created to implement the
Schengen Agreement. Since 1985, additional countries have also signed this
Convention, including the non-EU-members Iceland, Norway and Switzer-
land as well as the acceding countries Bulgaria and Romania, but excluding
EU-members Ireland and the United Kingdom. The current Schengen Area
comprises 15 countries, as implementation of the Schengen Convention is
still pending for the new EU10 Member States as well as for Bulgaria and
Romania
3
, and for Switzerland.
Schengen was preceded by the Saarbrcken Agreement (Sarrebruck
Accord) between France and Germany, in which a gradual abolition of bor-
der controls between the two countries was envisaged. This agreement was a
strategic action of Germany and France to encourage other Member States to
abolish internal border controls within the Community so as to facilitate fur-
ther economic integration. The hope of a spillover effect was a very impor-
tant aspect in the conclusion of the Accord.
4
The other countries involved
in the Schengen Agreement, the Benelux countries, already had abolished
their border controlsfor Benelux residentsin 1960.
France and Germany initiated Schengen independently of the EU, partly
because of the fundamental lack of consensus among EU Member States on
3
As Schengen has become part of the acquis, there is no possibility to opt out of Schengen
for acceding Member States.
4
A. Arifkhanova, The Origins of the Schengen Agreement (Tallahassee: Florida State
University, 2006).
268
the issue of open borders. Especially the United Kingdom wished to main-
tain its own relatively strict border controls (effectively forcing Ireland to stay
out of Schengen as well, as both countries are part of the so-called Com-
mon Travel Area).
5
Schengens independence from the EU was also in part
due to differences in implementation ability: some countries did not wish
to wait for others who were willing to abolish border controls but were not
yet ready.
6
Its independence from the EU also made it possible for Nordic
countries like Norway and Iceland to join Schengen, thereby preserving the
open borders agreement between the Nordic countries that had been in place
since 1952 (Nordic Passport Union).
Since its rst implementation in 1995, the Schengen Agreement has
undergone two major changes. First, it was incorporated into the EU frame-
work through the Treaty of Amsterdam, effectively making the Schengen
Agreement and Convention part of the EU and part of the aquis commun-
autaire. The Schengen Executive Committee was replaced by the Council
of the EU, effectively reducing the inuence of non-EU members like Nor-
way, Switzerland and Iceland. Secondly, because some EU Members hold
the opinion that Schengen does not go far enough in terms of information
exchange as part of their ght against terrorism, in 2005 the ve founding
states (the Benelux countries, Germany and France) together with Spain
and Austria, have negotiated a new parallel agreement, the Schengen III
Convention (or: Convention of Prm), aimed at improving such informa-
tion exchange.
2. THE BOLOGNA PROCESS
Another area in which parallel agreements play an important role, is that
of higher education. Just as the Schengen Agreement was preceded by the Saar-
brcken Agreement, the Bologna Declaration was preceded by the Sorbonne
Declaration. In May 1998 the ministers of education of Germany, France, the
United Kingdom, and Italy signed this Declaration, in which they called for
a European Area of Higher Education in which the European higher educa-
tion systems would be harmonized following the bachelor-master model. The
5
For a constructivist explanation of the British No to Schengen, see A. Wiener, Forg-
ing FlexibilityThe British No to Schengen, 1 European Journal of Law and Migra-
tion, (1999), 441463.
6
For an overview of the implementation difculties see A. Convey and M. Kupiszewski,
Keeping Up with Schengen: Migration and Policy in the European Union, 29 Inter-
national Migration Review (1995), 939963.
269
Bologna Declaration, signed the following year (June 1999) by all EU-mem-
bers and associated countries, contained an action plan dening clear goals on
comparability of higher education systems, on employability and mobility of
citizens involved in higher education, and on European cooperation in quality
assurance, all to be reached in 2010.
The Sorbonne and Bologna Declarations were established on a strictly
intergovernmental basis, outside the formal structure of the EU, with the
European Commission being given an observer status. As De Wit
7
argues,
this does not mean that the signicance of the EU was not appreciated. The
Bologna goals do largely coincide with the EUs objectives in higher educa-
tion, on the basis of which, from the late 1980s onwards, a large number
of programmes have been adoptedas part of the EU frameworkthat
have similar goals: Comett, Erasmus/Lingua/Socrates, Tempus, Leonardo da
Vinci, and the Jean Monnet project, all run by the European Commission.
It was exactly the fear of Europeanisation of higher education through such
programmes (using policy instruments as subsidies and legislation) that led
Member States to take more voluntaristic initiatives based on information
exchange, mutual learning, benchmarking, and peer review.
8
Pre-emption
of Commission ambitions in the eld of higher education clearly was a
strong motive for the parties to the Sorbonne agreement.
9
Interestingly, the
method chosen strongly resembles the EU open method of coordination
which was introduced in the second part of the 1990s in employment and
social policies.
The success of the 1998 Sorbonne Declaration was huge and several EU
Member States complained that they had not been advised of the initiative.
The 1999 Bologna Declaration thus had to involve far more countries and the
rst preparations for this Declaration were made at a meeting of Directors-
General of Higher Education of all EU Member States, out of which grew
a Steering Committee under the chairmanship of the then EU presidency,
Austria. The nancial support of the work of this committee by the European
7
K. De Wit, The Consequences of European Integration for Higher Education, 16
Higher Education Policy, (2003), 161178.
8
See also E. Beukel, Educational Policy: Institutionalization and Multi-Level Govern-
ance, in S. Anderson and K. Eliassen (ed), Making Policy in Europe, (London: Sage,
2001), 124139; Bache, I., The Europeanization of Higher Education: Markets, Poli-
tics or Learning?, 44 Journal of Common Market Studies (2006), 231248.
9
J.K. Witte, Changes of Degrees and Degrees of Change. Comparing Adaptations of
European Higher Education Systems in the Context of the Bologna Process (Enschede:
CHEPS, 2006), at p. 90.
270
Commission shows that the Bologna Process had in fact taken place on the
very edge of the EU framework rather than outside of it, and today it is increas-
ingly linked to EU policies. However, its membership has proliferated beyond
the EU: membership now includes 40 States, including the EU 25.
3. CORPORATE TAX TREATIES
Another eld in which alternative integration is an important feature is
tax co-ordination. A complex and diverse pattern of tax co-ordination has
developed in the EU, in which four major co-ordinating instruments can
be made out:
10
directives and resolutions for harmonisation of taxes, and based on that
the use (especially by the Commission) of the Court of Justice to ght
discriminatory taxation;
multilateral agreements within the EU framework. Obviously, we are
referring here to the use of the Code of Conduct for business taxation,
on which the Econ Council agreed on 1 December 1997. This Code
prevents the introduction of new scal measures that could inuence
the place of investment, such as a signicantly lower effective level of
taxation (including zero taxation) than that which generally applies in
the Member States in question, granting special advantages to non-resi-
dents, different rules for calculating the prots of multinationals than
the standard OECD ones, or the lenient application of tax regulations by
the tax authorities. The Code of Conduct provides for a review process
to determine which potentially harmful measures are actually harmful
and have to be rolled back. For new measures there is a standstill clause:
Member States are to refrain from introducing new harmful measures.
Although the Code was conducted by the EU15, and is formally not
part of the acquis communautaire, in the accession treaties all new EU
Member States have declared to live up to the Code
11
;
numerous bilateral agreements, outside the EU framework (tax
treaties)
12
;
10
N.S. Groenendijk, Tax Co-Ordination and the Enlargement of the European Union,
3 Journal for Institutional Innovation, Development and Transition (1999), 5573.
11
Strictly speaking, because the Code is upheld EU wide, there is no sub-integration
involved here.
12
See for instance the IBFD European Tax Handbook 2005 for an overview. International
Bureau of Fiscal Documentation, European Tax Handbook (Amsterdam: IBFD, 2006).
271
multilateral agreements outside the EU framework, particularly within
the OECD (and using OECD model tax treaties).
Of the above instruments the rst one is used especially in indirect
taxation (value added tax, excises), where the harmonisation efforts of the
EU have been highly successful, as a prerequisite of the completion of the
Single European Market (SEM). Tax harmonisation efforts in the eld of
direct taxation, especially corporate taxation, display a multitude of meas-
ures, reports, initiatives, Commission proposals, proposed Directives, draft
Directives, preliminary draft Directives and such, the bulk of which were
withdrawn later on.
13
With corporate taxation a twofold problem of double taxation arises.
First, corporate prots are taxed as company prots (through corporate
income tax) as well as shareholders dividends (through personal income tax).
Each Member State in the EU has dealt with this problem of double taxation
differently. Most countries have some kind of dividend relief system, at the
shareholder level (imputation system, tax credit system, or special personal
income tax rate). Secondly, prots that are distributed to foreign investors
(private investors, or foreign companies) may be taxed in the country where
these prots arise as well as in the country the investor resides. Basically,
company prots in the EU are taxed according to the origin or source prin-
ciple, but what happens to repatriated prots is outside the eld of vision of
the source state. Even if the source state itself provides for an identical treat-
ment of domestic and foreign investors, it has no say over the tax treatment
of exported prots.
Combined, these two double-taxation problems have proved to be
insurmountable for the EU. Initially (in 1975) the European Commission
aimed at eliminating double taxation on dividends through a full (i.e., base
and rate) harmonisation of company tax systems. In 1990 these proposals
were withdrawn for lack of support from Member States. The underlying
problem is that imputation is more often than not offered to domestic share-
holders only, which, of course, is discriminatory against foreign shareholders.
Company taxes in the EU discriminate between (various kinds of ) in-state
and out-of-state investors and result in an arbitrary division of the company
13
Apart from a Council Regulation on the application of social security schemes to indi-
viduals who choose to work in another Member State, the harmonisation of direct taxes
in the EU has been conned to certain aspects of corporate taxation, more precisely to
a. the withholding tax on dividends, b. the withholding tax on interest, and c. the taxa-
tion of groups of companies (including taxation of parent-subsidiary dividends).
272
income tax base between the state of investment and the state of the inves-
tor. A shift to the residence principle would solve this problem, but would
mean that countries forgo the right to tax income arising within their own
territory, i.e. forgo a considerable part of their power to tax.
What has happened then is that EU Member States have resorted to bi
and multilateral tax treaties, i.e. to alternative measures of integration outside
the EU framework. Such integration does not fundamentally deal with the
basic problem of having 25 different corporate tax systems, but it does take
the edge off the main negative effects of having all these different systems.
This approach does however involve high transaction costs, as is shown by the
extensive list of (often: bilateral) treaties (on dividends, on royalties, on inter-
est) which EU Member States have concluded with other EU Member States
and with third countries (see IBFD, 2006). Partly, these transaction costs are
reduced by the use of model tax treaties provided by the OECD.
4. THE EUROPEAN PATENT ORGANISATION
The last example of a parallel procedure is the European Patent Organi-
sation (EPO). The EPO was preceded by the International Patent Institute
(Institut International des Brevets, IIB), established in The Hague in 1947
by France and the three Benelux countries. Already in 1949 an EPO was
advocated by the Council of Europe, modelled on the IIB. It would take
until 1973 for the EPO to be established, by the Munich Convention on
the Grant of European Patents. Currently, the EPO has 31 Member States,
including 24 EU Member States (Malta is not yet a member of the EPO).
The EPO provides a single patent grant procedure, not a single European
patent. An EPO-patent
14
can be obtained by ling a single application in one
of the ofcial languages of the European Patent Ofce (English, French or
German) in a unitary procedure before the EPO and is valid in as many of the
contracting states as the applicant cares to designate. An EPO-patent affords
the same rights in the designated contracting states as a national patent granted
in any of these states. But there is currently no single, centrally enforceable,
EU-wide patent. This can be expensive for the patentee in that enforcement
must be carried out through national courts in individual countries, and for a
third party in that revocation cannot be accomplished centrally once a certain
opposition period has expired. That is why, since the 1970s, there has been
concurrent discussion towards the creation of a Community Patent (ComPat)
14
Often the more confusing term European patent is used, but not here.
273
in the European Union. The ComPat is intended to solve both of these prob-
lems, and also to provide a patent right that is consistent across Europe, thus
fullling one of the key principles of the SEM (different patent rights in dif-
ferent countries present a distortion of the internal market principle). In May
2004, however, discussions within the EU led to a stalemate (the language issue
being the most notable obstacle) and the prospect of a single EU-wide patent is
receding. Even though the EPO-patent is far from perfect, there simply is no
alternative available within the EU framework. Other legal agreements have
been proposedas with EPO: outside the EU legal frameworkto reduce the
cost of translation (of patents when granted) and litigation, namely the Lon-
don Agreement (of 2000, signed by 10 countries, of which 7 are EU Members,
but still waiting to be ratied) and the European Patent Litigation Agreement
(EPLA, still under discussion).
5. THE RATIONALE FOR ALTERNATIVE INTEGRATION
What do these four examples teach us about the pros and cons of alter-
native integration? Interestingly, it appears that alternative integration has
more than one potential advantage. First, with parallel agreements it is pos-
sible to cover a larger part of Europe than just the EU25 (or before 2004:
the EU15). Norway, Iceland, Liechtenstein and Switzerland are the usual
suspects for cooperation outside the EU.
Secondly, alternative integration may be benecial because the EU
framework imposes all kinds of constraints (in terms of decision-making,
legislation, democratic accountability et cetera). This should especially
explain instances of alternative integration involving the entire EU.
Thirdly, in cases where not all EU Member States are involved, inter se
agreements may be seen as a form of enhanced cooperation between a rela-
tively small subset of Member States, but without using the EU enhanced
cooperation mechanism. Lack of consensus in a specic policy eld, or
perceived differences in implementation capacity and speed, is at the root
of this kind of alternative integration. As the Schengen and Bologna cases
show, such alternative integration by a vanguard group can easily work as
a catalyst for all EU Members, eventually spilling-over to the entire EU.
The main disadvantage of alternative integration is of course that with
alternative integration the EU legal framework cannot be used, resulting in
a relatively high level of transaction costs, both in terms of preparation and
negotiation of a multitude of bilateral agreements as in terms of enforcement
and uniform application.
274
The success of alternative integration can be seen in two different lights.
On the one hand, manifold alternative integration to a certain extent is
the result of failure of integration within the EU framework. If Member
States cannot satisfactorily deal with policy problems inside the EU, they
will start looking for alternative arrangements. On the other hand, alterna-
tive integration is sometimes perceived as a threat to the larger EU integra-
tion, and all kinds of possibilities for differentiated integration (within the
EU institutional framework) have developedespecially since the Treaty of
Maastrichtas an alternative to alternative integration. We will turn to
this phenomenon in the next section.
IV. DIFFERENTIATED INTEGRATION
The starting point to discuss differentiated integration (i.e., sub-integra-
tion within the EU institutional framework and policy domain) is the EU
default mode of integration, which involves uniformity in time and matter,
which can also be labelled monolithic integration or unitary integration.
Common goals are set, EU wide, and are to be reached at a certain unique
point in time by all Member States.
Departure from this default mode is possible along a number of
dimensions:
1. Differentiation can refer to time only as opposed to differentiation in
time and matter. Put differently: to what extent should sub-integration
eventually be an exclusive thing? If there is differentiation in time only,
common, EU-wide goals are retained but may be reached at different
points in time by different Member States. Sub-integration in this sense
is open to all, and indeed is successful only if eventually all members
of the larger integration participate (after which the sub-integration is
simply absorbed into that larger integration). If there is differentiation
in time and matter, aiming at and attaining certain policy goals will be
exclusive to the insiders;
2. Sub-integration may deal either with a single issue (or a few single, non-
related issues) or with a multitude of (potentially interrelated) policy issues;
3. Sub-integration can differ as far as the size of the group of insiders is
concerned (relative to the size of the group of outsiders);
275
4. The composition of the group of insiders can be steady across the range
of policy areas in which sub-integration occurs, but can also vary (mixed
coalitions);
5. Moreover, such coalitions can be more or less stable over time;
6. There can be a difference in inuence in issues of the larger integration
between those Member States inside and those Member States outside
the sub-integration.
The closest thing to the default mode, i.e. unitary integration, is differ-
entiation in time only, on a limited number of issues, and involving a limited
number of outsiders. Transitional arrangements, temporary derogations and/or
exemptions (to the acquis communautaire) are a clear example of this kind
of sub-integration. Such differentiation has always been part of the Treaties
(and of numerous Protocols) and of specic Community Directives. Con-
structive abstention (declaratory abstention, positive abstention, active absten-
tion) is yet another possibility, restricted by the Treaty to specic measures
taken as part of the Common Foreign and Security Policy.
15
With construc-
tive abstention a Member State can simply declare that it does not support
the decision taken and will not apply it itself, but accepts that the decision
commits the Union.
16
Constructive abstention to a large extent resembles
the more general idea of a (temporary and single-issue) opt-out clause, as for
instance used by the United Kingdom and Denmark to be left out of the
third stage of Economic and Monetary Union (EMU).
17
If a larger number of Member States opt out, but these outsiders are still
expected to catch up with the others at a later stage, such sub-integration
can be labelled multi-speed Europe (two-speed Europe, multi-speed integration).
Here the idea is that European integration is driven forward by a sub-group
of Member States, but no Member State is excluded in the long run nor can
Member States exclude themselves everlastingly. Differentiation is allowed
to exist temporarily only. A special case of multi-speed is what German
commentators call abgestufte Integration. Member States agree on particular
15
Art. 23 EU, see also Art. III201 TCE.
16
If the members of the Council qualifying their abstention in this way represent at least
one third of the Member States comprising at least one third of the population of the
Union, the decision shall not be adopted.
17
In the EU opt-out clauses are generally reserved for incumbent members. Candidate
countries are not being offered the opportunity to negotiate similar exible arrange-
ments; the European Council has made it clear on a number of occasions that new
members will not be allowed opt-outs or others forms of exible integration.
276
policy objectives, but specic timetables or stages of adoption by individual
Member States are set. Differentiation is then a matter of (timing of ) policy
implementation rather than policy goals.
The multi-speed concept is rather similar to the idea of a European
vanguard group (avant-garde group, directoire, pioneers clubs, pioneers and fol-
lowers, pathnders, breakaway riders). Again, the nal goal is to reach shared
objectives, with the vanguard group braking ground and shaping these
objectives along the way.
Other forms of differentiated integration presuppose that differentia-
tion is not necessarily temporary. The idea of a core Europe (Kern Europas,
Harter Kern, noyau dur) assumes a highly restricted membership of that
core, which is (potentially) permanently limited. The core countries get
engaged in far deeper integration than Member States outside the core.
The latter do not longer constrain the former. The deeper integration does
involve multiple related issues, and core countries do have a considerably
larger overall inuence than countries outside the core. The idea of a two-
tier Europe is essentially the same, but uses another kind of visualization.
18

The related ideas of concentric circles (cercles concentriques) and of multi-tier
Europe (Europe de plusiers niveaux) differ in that they presuppose the exist-
ence of more than just two groups (of insiders and outsiders).
Variable geometry (gometrie variable) is yet another concept of sub-inte-
gration. It also assumes a permanent state of sub-integration to be estab-
lished, due to the fact that integrative capacities and desires will vary across
the Union. Variable geometry envisages a series of different policy areas (on
top of the internal market), all of which would have varying membership (or:
policy consortia).
19
Contrary to the idea of a hard core, which puts a perma-
nent set of Member States in the middle of integration, variable geometry
starts from the internal market as core policy, around which various other
policies have developed and will develop. This policy area conguration and
the membership of the different policy consortia are however rather stable.
The latter is not necessarily the case with Europe la carte (or: pick-and-
choose, or: opt in/opt out). Moreover, the policy core here is not a full-edged
internal market but a common trading zone.
18
The same goes for concepts like magnetic elds, centre of gravitation, and hub-and-
spoke Europe.
19
The concept of eccentric ellipses (Gomes de Andrade) is one way of visualizing this
variable geometry. N.N. Gomes de Andrade, Enhanced Cooperation: the Ultimate
Challenge of Managing Diversity in Europe, 40 Intereconomics (2005), 201216.
277
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279
The table clearly shows that the differences between the various forms
of differentiated integration are gradual only, and it is hard to label actual
examples of differentiated integration. EMU, for instance, can be considered
as an example of two-speed Europe but resembles a vanguard group, involves
opt outs, and can also be regarded as the current and future EU core.
Moreover, the difference between odd integration (dened in the pre-
vious section as integration within the EU framework but dealing with poli-
cies outside the EU competencies) and differentiated integration, rests on
the assumption that there is a stable EU policy domain. But what may be
odd integration at rst, can easily become differentiated integration as views
on what policy areas the EU should deal with evolve over time, possibly as a
result of vanguard group activity.
Finally, not included in our discussion is the possibility of partial EU
Membership and extended associations, which is of course close to the Euro-
pean core idea, or the idea of concentric circles.
20

The different types of exibility are obviously linked to certain views on
how European integration should proceed, and in some cases can be linked
to specic Member States. The idea of a Europe la carte can be regarded as a
mechanism to break federalist dynamism
21
and has been put forward in 1994
by then Prime Minister John Mayor.
22
Ideas like the noyeau dur, gometrie
variable, and cercles concentriques have been advocated by French politicians
(Delors, Mittrand, Balladur), assuming a Franco-German coalition at the
heart and at the helm of Europe.
23
As Su
24
observes, the need to seriously discuss differentiated integration
became imminent due to the eastern enlargement of the EU. In his analysis,
20
For a more detailed description of thisFrenchidea of different circles, with the outer
circle consisting of EU partners rather than EU Members, see H. Su, The Dynamics
of Widening on the Deepening of the European UnionThe Constitutionalization of
Enhanced Cooperation, 35 EURAMERICA (2005), 501545, at 524.
21
E. Philippart and M. Sie Dhina Ho, Flexibility and the New Constitutional Treaty
of the European Union, in J. Pelkmans, M. Sie Dhian Ho and B. Limonard (eds),
Nederland en de Europese grondwet (The Netherlands and the European Constitution)
(Amsterdam: Amsterdam University Press, 2003), pp. 109154, at p. 110.
22
In his William and Mary Lecture given in Leiden, The Netherlands, in June 1994.
23
See Lansdaal, supra, note 2 for a more detailed discussion of joint Franco-German ideas
in this eld.
24
Su, supra, note 20.
280
partly building on Philippart and Sie Dhian Ho,
25
enlargement has been
postponed time and time again, in order for the EU to reach consensus on
mechanisms it could use to deal with diversity, which explains the emergence
of opt outs, the increased importance of subsidiarity, the embracing in 2000
of the open method of policy coordination, andlast but not leastof
enhanced cooperation. When it became clear, quite early in the process, that
the central and eastern European countries would not content themselves
with association agreements but wanted full EU Membership, and EU lead-
erspressured by Germanyhad to give enlargement the green light (in
Copenhagen, June 1993), a new and formal mechanism had to be found to
make differentiation between EU Members possible: closer cooperation or
enhanced cooperation.
V. ENHANCED COOPERATION
Enhanced cooperation can be seen as a specic mode of exible integra-
tion, with a particular legal basis which regulates (and constraints) sub-inte-
gration within the EU.
Provisions regarding closer cooperation appear for the rst time in the
1997 Amsterdam Treaty and were changed (now using the term enhanced
cooperation) by means of the Treaty of Nice (which became effective on
February 1, 2003). In the draft Constitutional Treaty the Nice mechanism
has been subjected to further changes.
26
The closer cooperation mechanism of the Treaty of Amsterdam was a
very cautious and rather general mechanism allowing a group of willing
states to undertake closer cooperation among themselves while using the
institutional mechanisms of the EU, but only if others would allow them to
do so.
27
This mechanism was established in the rst and third pillars, and
contained an emergency brake procedure: the Council of Ministers had to
25
Philippart and Sie Dhina Ho, supra, note 21.
26
Arts 4345 EU (substantive and procedural conditions in general), Arts 11 and 11a EC
(decisions on enhanced cooperation proposals in the rst pillar), Art. 40 EU (specic
substantive conditions, second pillar), Arts 40a and 40b EU (decisions on enhanced
cooperation proposals in the second pillar), Arts 27a27b EU (specic substantive con-
ditions, second pillar ), Arts 27c27e EU (decisions on enhanced cooperation proposals
in the third pillar). In the TCE enhanced cooperation is dealt with in Arts I43 and
III321329.
27
B. de Witte, Future Paths of Flexibility: Enhanced Cooperation, Partial Agreements and
Pioneer Groups, in J.W. de Zwaan, J.H. Jans and F.A. Nelissen (eds), The European Union.
281
decide on closer cooperation by qualied majority, but any Member State,
for important and stated reasons of national policy, could refer the proposal
to the European Council for a unanimous decision (constituting a de facto
veto right). Furthermore, closer cooperation had to be endorsed by a major-
ity of Member States (smaller groups were not allowed). The provisions of
the Treaty of Amsterdam have never been used.
The Nice Treaty did away with the emergency brake procedure (in the
rst and third pillar) and extended enhanced cooperation to the second pil-
lar (CFSP) but with an emergency brake (i.e. veto) procedure. In the rst
and second pillar proposals for enhanced cooperation (put to the Council
by the European Commission following a request from the Member States
involved) are subject to a qualied majority vote. The number of Member
States required for launching the procedure has changed from the majority
to the xed number of eight Member States.
Under the Nice Treaty enhanced cooperation is subject to a number of
conditions, both substantive and procedural.
The substantive conditions can be clustered as follows (following Philip-
part).
28
First, there are conditions specifying what enhanced cooperation
should aim at. It should aim at furthering the objectives of the Union, at
protecting and serving EU interests, and at reinforcing the process of Euro-
pean integration. Secondly, there is a list of what enhanced cooperation may
not entail in light of the Unions cohesion and internal coherence. Enhanced
cooperation must respect the Treaties and the single institutional Union
framework. It must not affect the acquis communautaire and must respect
the whole of the Unions policies. It must not undermine the internal mar-
ket or economic and social cohesion. Thirdly, several conditions deal with
the protection of Member States not participating in the enhanced cooperation.
Enhanced cooperation must respect the competences, rights, and obliga-
tions of the outsiders. It must not constitute a barrier to or discrimination
in trade and must not distort competition. Fourthly, it is stated in which
areas enhanced cooperation is simply forbidden. Enhanced cooperation is
prohibited were the Union has no powers. It is prohibited in elds under
An Ongoing Process of Integration, (The Hague: TMC Asser Press, 2004), pp. 141153,
at p. 145.
28
E. Philippart, Optimising the Mechanism for Enhanced Cooperation within the EU:
Recommendations for the Constitutional Treaty(CEPS Policy Brief No. 33, Brussels:
CEPS, May 2003).
282
the exclusive competence of the Union, and (within the second pillar) it
must not have any military and defence implications.
The procedural conditions are as follows. There is a participation threshold
of eight Member States. Enhanced cooperation is a last resort (i.e. when it has
been established within the Council that the objectives of such cooperation can-
not be attained within a reasonable period by applying the relevant provisions of
the Treaties). And there is openness of enhanced cooperation to all EU Member
States, at all times, with participation to be encouraged by the Commission and
by the Member States already engaged in enhanced cooperation.
Decision-making within enhanced cooperation unions is envisaged as
follows. All EU Members are able to take part in deliberations, but only
enhanced cooperation union members shall take part in adoption of deci-
sions. The same decision rules (qualied majority rule, unanimity) and pro-
cedures (including Commission and EP involvement) apply as in the Union
at large. Acts adopted and decisions taken within enhanced cooperation
unions shall not become part of the Union acquis (which new Member States
must adopt). They are not binding on the outsiders. Expenditure resulting
from enhanced cooperation (other than administrative costs) will be borne
by the insiders only.
The Draft Constitution has stripped the enhanced cooperation mech-
anism of some of the conditions mentioned above (which by some were
largely considered to be superuous anyway),
29
but most provisions have
been retained, albeit rephrased
30
:
enhanced cooperation should aim at furthering the objectives of the
Union, at protecting its interests, and at reinforcing the process of Euro-
pean integration;
it should be established within the framework of the Unions non-exclu-
sive competences;
it may make use of the Unions institutions;
it shall comply with the Unions Constitution and law. It is however
possible for the Member States engaged in enhanced cooperation to
29
E. Philippart, A New Mechanism of Enhanced Co-Operation for the Enlarged Euro-
pean Union (Research and European Issues No. 22, Paris: Notre Europe, March 2003);
and Philippart, supra, note 28.
30
We refrain here from discussing the special provisions for enhanced cooperation in the
area of CFSP as the focus in this paper is on tax matters.
283
decide (unanimously) to take decisions by qualied majority even if in
the specic area unanimity is the rule;
it should be open at all times to all EU Member States;
it is a last resort (i.e. it has to be established within the Council that the
objectives of such cooperation cannot be attained within a reasonable
period by the Union as a whole);
a participation threshold applies of one-third of all Member States
(rather than the xed number of eight Member States);
all EU Members are able to take part in deliberations, only enhanced
cooperation union members shall take part in the vote;
acts adopted and decisions taken within enhanced cooperation unions
shall not become part of the Union acquis (which new EU Member
States must adopt upon accession). They are not binding to the out-
siders, but EU Members wishing to join the enhanced cooperation at a
later stage have to adopt the enhanced cooperation acquis;
it must not undermine the internal market nor economic, social and
territorial cohesion, nor distort competition;
enhanced cooperation must respect the competences, rights, and obliga-
tions of the outsiders;
expenditure resulting from enhanced cooperation (other than adminis-
trative costs) shall be borne by the insiders only;
the Council grants authorization to proceed with enhanced cooper-
ation by a European decision, upon a proposal from the Commission,
and after obtaining the consent of European Parliament. The Council
decides by qualied majority;
under the draft Treaty it is possible for States engaged in enhanced
cooperation to set aside the unanimity rule for decision making in areas
such as direct taxation and social policy, and take decisions using a quali-
ed majority rule.
Both under the Nice Treaty and the draft Constitutional Treaty an
important role is played by the European Commission.
31
First, the Com-
mission is to pass a request for enhanced cooperation to the Council by
31
See Federal Trust, supra, note 2, for a discussion of the possible functioning of some
other institutions under exibility.
284
means of a Commission proposal. Secondly, the Commission vets any later
applications of Member States wanting to join the sub-group.
VI. POSSIBILITIES FOR ENHANCED COOPERATION: THE CASE
OF CORPORATE TAX COORDINATION
As was shown in section three, corporate taxation is a eld where alterna-
tive integration is prospering, by means of biand multilateral tax treaties.
It is also one of the policy areas for which enhanced cooperation is often seen
as a way out of the current decision-making deadlock.
First, enhanced cooperation could be used to ght scal dumping. Fiscal
dumping refers to the practice of setting low (effective) tax rates in order to
attract foreign (direct) investment. Within the EU15, scal dumping was
practiced in the eld of corporate taxation by Ireland only. As such it was
a minor inconvenience. However, within the EU25, most new Member
States have very low effective corporate income tax rates. In 2004 France
and Germany proposed the use of enhanced cooperation to ght (excessive)
corporate tax competition, by establishing a single corporate tax zone, ini-
tially in France, Germany, Belgium and Spain only.
32
Within this zone there
would be a single corporate tax, with a single base and rate. In this way the
countries within the zone would be able to compete with countries outside
the zone (by reducing transaction costs for companies operating within the
zone), and competition within the zone would be minimized.
Secondly, enhanced cooperation has been put forward as a way to deal
with the proliferation of the corporate income tax system within the EU.
With EU wide direct tax harmonisation having been put on the back
burner (a line of action taken by former Commissioner Bolkestein and
endorsed fully by current Internal Market Commissioner McCreevy, but
less so by Taxation Commissioner Kovcs), enhanced cooperation may well
be the only way left to deal with issues of direct tax coordination in the
EU, also because direct taxation is still subject to unanimity voting in the
Council.
33
The only new development in recent years has been the idea the
32
European Voice, May 27-June 2, 2004, p. 7. In subsequent proposals made by France the
eligibility of EU Member States for EU structural funds support was linked to member-
ship of the corporate tax zone.
33
Earlier pleas for the use of enhanced cooperation in taxation were made regarding envi-
ronmental taxation, from 1999 onwards, by the European Commission, by European
Parliament, by some Member States (The Netherlands), and in academic circles. In 2004
285
Commission came up with in 2001 of a Common Consolidated Corporate
Tax Base (CCCTB). This CCCTB can be used by companies involved in
cross-border activities within the EU to calculate their taxable prots and the
apportionment of these prots over the Member States involved. Within this
system Member States are free to apply their own corporate tax rate to their
portion of company prots. Although often presented as a harmonisation
scheme, the CCCTB actually is an optional 26
th
system next to 25 systems
already in place. It is up to companies to decide whether they want to use
the CCCTB or not (in the latter case they can still use the national systems).
The Commission is currently aiming to get the CCCTB introduced by the
end of 2008.
34
Initially, the Commission expected the idea of a CCCTB to
be supported by around 20 Member States
35
, but apparently the idea is cur-
rently supported only by Austria, France, Belgium, Germany, Luxembourg,
Italy, and Hungary. Most Member States are hesitant, and some are outright
opponents of the idea: the United Kingdom, Ireland, the Baltic States, Slo-
vakia and Slovenia.
36
Commissioner Kovcs has argued that the idea will be
sustained, if need be, using the enhanced cooperation mechanism.
Suppose that a sub-set of EU countries would indeed engage in further
corporate tax coordination, within the enhanced cooperation framework
(hereafter labelled: ECUCT, Enhanced Cooperation Union for Corporate
Taxation). Such coordination could entail:
full base and rate harmonisation of their corporate tax systems (A);
base harmonisation only (B);
introduction of a CCCTB next to the corporate tax systems already in
place (C).
37
a common Nordic approach in the EU (and including non-EU Member Norway) was
suggested to deal with the cross-border shopping effects of alcohol excise differentials
between Norway, Sweden, Finland, Estonia, Denmark, Germany, and Poland (EUOb-
server.com, Oct. 20, 2004).
34
European Commission, Implementing the Community Lisbon Programme: Progress
to date and next steps towards a Common Consolidated Corporate Tax Base (CCCTB)
(Brussels: European Commission, COM (2006) 157 nal, April 2006), at 8.
35
EurActiv.com, Wednesday Oct. 26, 2005.
36
European Voice, April 1319, 2006, at 7.
37
A CCCTB would necessitate formula appointment of taxable prots. For an analysis
of the specic economic effects of formula appointment. P.B. Srensen, Company
Tax Reform in the European Union, 11 International Tax and Public Finance (2004),
91115.
286
What would the effects of such cooperation be?
First, in all cases (A, B and C) we would expect a reduction of transaction
costs for companies already operating across borders within the ECUCT. As
such compliance costs are a deadweight loss to companies, such reduction
represents a straightforward welfare gain for companies involved, whichin
a competitive environmentshould translate into lower prices and welfare
gains for consumers.
Secondly, high compliance costs do not only represent a deadweight
loss, they also operate as a barrier to trade. Cross-border economic activities
within the ECUCT are expected to increase with harmonisation.
Thirdly, if cross-country differences in effective tax rates would be
reduced (which may happen to a certain extent in cases B and C, and fully
in case A), this will lead to a more efcient allocation of capital across the
ECUCT.
38
Jensen and Svensson have shown that this effect is indeed larger
with full harmonisation than with just tax base harmonisation.
39
Fourthly, harmonisation of effective tax rates (due to base or base plus
rate harmonisation) will increase the tax burden in some ECUCT members
and decrease the tax burden in other countries. A larger tax burden will result
in higher tax revenues at a lower GDP; a lower tax burden will result in lower
tax revenues at a higher GDP. Jensen and Svensson have made estimations
of the effect of enhanced cooperation with full corporate tax harmonisa-
tion (our case A), between respectively the old EU15, Eurozone and a
EU11-group.
40
If these groups are expected to harmonize their tax rate on
31%, 31.5% and 33% respectively (based on unweighted averages of current
rates), this implies losses in GDP and gains in tax revenues. If harmonisa-
tion takes place using weighted averages of current rates there is an increase
in GDP and a loss of tax revenues. The magnitude of these effects depends
largely on the effect enhanced cooperation will have on Germany. Germany
currently has a high corporate tax rate. At the same time, Germany has a very
low ratio of corporate tax revenues to GDP. Any harmonisation of corporate
38
Srensen, supra, note 37.
39
J. Jensen and P. Svensson, Economic Effects of Tax Cooperation in Enlarged European
Union. Simulations of Corporate Tax Harmonisation and Savings Tax Coordination
(Brussels: European Commission, DG Taxation and Customs Union (Copenhagen:
Copenhagen Economics, Oct. 2004).
40
Consisting of Austria, Belgium, Finland, France, Germany, Greece, Italy, Luxembourg,
Portugal, Spain and Sweden. According to Jensen and Svensson, this grouping is based
on common views on tax accounting issues. Jensen and P. Svensson, supra, note 39.
287
tax bases will drastically increase the German base, and will lead to a sharp
increase in the ECUCT tax burden, regardless of the composition (as long
as Germany is in). To reach positive GDP effects harmonisation should take
place in such a way that the full magnitude of the largest economy in Europe
is taken into account.
Fifthly, ECUCT members will suffer welfare losses due to distortion of
their individual taxation preferences, which have to make way for collective
ECUCT preferences. These preferences concern the overall importance of
the corporate income tax in the national tax system and the size and level of
base and rates, but also very specic corporate tax system features (tax facili-
ties, loopholes), aimed at promoting certain activities (green investments,
company child care et cetera).
Sixthly, the ECUCT could induce negative externalities on EU Mem-
bers outside the ECUCT,
41
in terms of undermining the internal market,
thwarting economic, social and territorial cohesion, and distorting competi-
tion. Although these possible negative effects are often mentioned (and, as
was shown in section V, constitute a formal barrier to establishing enhanced
cooperation), there is no economic analysis available to make further infer-
ences as to their likelihood and magnitude.
Another possibility is a positive externality: the ECUCT will pave the
way for the countries temporarily left behind. These countries can benet
from the experimentation and learning on the pros and cons of cooperate
tax harmonisation by the ECUCT member.
42
The possibility that enhanced cooperation in one eld, by one group of
countries, will extend to other areas and will thus benet other countries has
been put forward by, among others, Baldwin
43
who uses the term domino
effect, Pisany-Ferry
44
who speaks of a centripetal force and Gomes de
Andrade
45
who uses the term pull effect.
41
M. Dewatripont a.o., Flexible Integration: Towards a More Effective and Democratic
Europe (London: CEPR, 1995).
42
Ibid.
43
R.E. Baldwin, A Domino Theory of Regionalism (NBER Working Paper No. W4465,
Cambridge: NBER, September 1993).
44
J. Pisany-Ferry, LEurope gometrie variable: une analyse conomique, 60 Politique
trangre (1995), 447465.
45
Supra, note 19.
288
Besides this, it may well be that those Member States that do not wish
to participate will do so because they feel their tax systems in specic areas
should be more tax-payer friendly than the ECUCT allows for; outsiders
can choose to remain outside the ECUCT for reasons of tax competition.
Seventhly, there is a rst-mover advantage. Bordignon and Brusco
46

have argued that the effects of enhanced cooperation should be assessed in
a dynamic and stochastic context. Stochastic refers to the possibility that
countries that may not want to join the ECUCT at t
1
may decide to do so at
t
2
. Dynamic refers to the inuence of t
1
on t
2
: what happens today is going to
affect what happens tomorrow. Their argument is that even with no negative
externalities taking place as such at t
1
or at t
2
, enhanced cooperation may
induce a welfare loss on outsiders because the rst movers set the example
which second movers must follow. In that way a relatively homogeneous but
small group of countries can enforce their preferences on the larger group.
The Treaty provisions, which were discussed in section V, indeed enable rst
movers to create the acquis. Suppose that the ECUCT consists of countries
with relatively high tax rates only (including Germany, France), and with
the establishment of enhanced cooperation a common relatively high corpo-
rate tax rate is established based on (weighted) averages of the participating
countries. Any other country wishing to join the ECUCT at a later stage
will be confronted by the need to sharply increase its rate. What goes for
the initial choice of rates goes for all other choices the ECUCT makes on
system and base issues as well. Of course the EC Treaty to a certain extent
deals with this problem by allowing outsiders to take part in the delibera-
tions within the ECUCT and by endowing the Commission (and to a lesser
extent European Parliament) with the task of guarding the interests of all
EU Member States.
Finally, one of the fears in this regard is that enhanced cooperation may
lead to a permanent divide between insiders and outsiders, between a rich
core and a poor periphery. Martin and Ottaviano
47
argue that the outcome
will probably depend on the level of labour mobility. If capital is foot-loose
and labour is sticky, the analysis of the effects of a reduction of transaction
46
M. Bordignon and S. Brusco, On Enhanced Cooperation (CESinfo Working Paper
No. 996, Munich: CESinfo, July 2003); M. Bordignon, Institutional aspects of EU
organization: an economic analysis (paper prepared for the CESifo-Delphi 2004 Con-
ference, January 2005).
47
P. Martin and G. Ottaviano, The Geography of Multi-Speed Europe (CEPR Discus-
sion Paper No. 1292, London: CEPR, Nov. 1995).
289
costs within the enhanced cooperation zone can be limited to the issue of
re-location of rms in relation to income convergence/divergence. If there
is a tendency to re-locate from the outside to the inside of the enhanced
cooperation zone, outsiders will suffer an initial economic blow, will have
to catch up and have to think about the proper timing (in terms of income
convergence) of joining the club. If labour is mobile as well, permanent
divergence of incomes is likely, which Martin and Ottaviano have labelled
the agglomeration effect of multi-speed integration.
48
Table 2 Summarising effects
Possible effects of enhanced cooperation in corporate taxation
Range of effect Effect Positive/negative
Within ECUCT Reduced deadweight loss in company
tax compliance costs
+
Increased trade +
More efcient allocation of capital +
GDP change <> tax revenue change,
due to harmonization of base/rate
+/-, but differences
between participants
Preference distortion -
Effect vis--vis
outsiders
Negative externalities - for outsiders
Positive externalities + for outsiders
First-mover advantage + for insiders ;for
outsiders
Agglomeration effect + for insiders ;for
outsiders
VI. CONCLUSIONS
Although some of the effects discussed above are particular to the case of
an ECUCT, some more general conclusions can be made based on the analysis
of possibilities for enhanced cooperation in corporate taxation.
First, alternative (sub-) integration is currently the main way of deal-
ing with direct tax coordination problems by EU Member States but also
48
Ibid.
290
in some other areas (higher education, immigration policy, patents). Given
the substantive and procedural requirements for enhanced cooperation, this
approach remains valid, even with these requirements having been relaxed
by the Nice Treaty (and by the draft Constitutional Treaty). Countries inter-
ested in pursuing the idea offor instancea CCCTB could relatively eas-
ily either engage in an inter se formal agreement (multi-lateral tax treaty)
or use the Code of Conduct instrument. As was shown in section three,
alternative integration can be used as a means of de facto enhanced coopera-
tion, without bothering with the formal Nice requirements. However, with
formal enhanced cooperation it is possible to use the EU legal framework for
preparation, adoption and uniform enforcement of legislation.
Secondly, the actual size and composition of the initial enhanced coop-
eration is of great importance, as the balance of benets (in terms of reduced
transaction costs, increased welfare) and costs (in terms of distortion of coun-
try-specic preferences) depends largely on these two elements. The larger the
enhanced cooperation the larger the effect is in terms of reduced transaction
costs. The more homogeneous the enhanced cooperation is, the better it is in
terms of limiting preference distortion. But of course these two elements are
often inversely related: the larger the cooperation, the more heterogeneous it
is. Enhanced cooperation is about nding an optimal policy area.
49
Finally, enhanced cooperation under the Nice Treaty (as well as under the
draft Constitutional Treaty) creates a partial acquis resulting in a rst-mover
advantage. On the one hand, such an advantage could be an incentive for
hesitant Member States to participate in the enhanced cooperation from day
one, or even to promote direct moves forward for the EU as a whole without
actual enhanced cooperation taking place. This may explain the recent suc-
cessful use of the enhanced cooperation mechanism as a threatening device
in the case of the European Arrest Warrant and the Bolkestein Directive.
On the other hand, the rst-mover advantage creates rigidity at later stages.
One of the main advantages of the enhanced cooperation mechanism over
alternative integration is precisely that enhanced cooperation is open to all
Member States at all stages. In that way rst movers can pull the laggards
in the right direction. But if accession to the enhanced cooperation at later
stages is very difcult due to an enhanced cooperation acquis that deviates
too much from the mean EU position, this advantage is imaginary only. It
should therefore be made possible to make the partial acquis negotiable upon
accession to the enhanced cooperation by newcomers.
49
Cf. the idea of an optimal currency area in monetary integration.
THE COMMUNITY AS A COMMERCIAL ACTOR
AFTER THE CONSTITUTIONAL DEBACLE
Nanette Neuwahl
I. INTRODUCTION
This chapter addresses some aspects of the Treaty establishing a Consti-
tution for Europe

in relation to foreign policy. It draws attention to some of
the benets of that Treaty that might go lost if it does not enter into force,
in particular as regards the external representation of the European Union
and its Member States. While it is plain to see that not ratifying the Consti-
tutional Treaty would be a missed opportunity as regards, say, the creation
of the post of EU Minister for Foreign Affairs or the legal personality of the
Union, we deal here more specically with the provisions governing the EU
as a commercial actor. Above all we will consider the improvements in the
Constitutional Treaty for the EU as a commercial actor, in the context of
the elimination of mixed agreements and the division of power between the
European Community and the Member States. After a brief discussion of
the disadvantages of mixity,
1
the innovations brought by the Conventions
Draft Treaty as regards the conclusion of commercial treaties will become
clear (Section II). It will be seen that the rejection of the Constitutional
Treaty would be a missed opportunity for increasing the effectiveness of the
Union. Given the 2004 enlargement, the rejection of the Constitutional
Treaty would be a step backwards, an Echternach procession in reverse:
worse than simply a lack of advancement. However, the authors are of the
view that a generous use of enhanced cooperation or exibility, in the form
introduced by the Treaty of Amsterdam and as reinforced by the Treaty of
1
This is the situation where the EC acts alongside one or more of its Member States.
292
Nice, can provide a remedy to the problems (Section III). Enhanced coop-
eration is the use of the Union framework with partial participation, i.e.,
less than all Member States, according to specic procedures specied in
the treaties.
2
It will be analysed how enhanced cooperation can be used to
regulate commerce, given the legal framework surrounding enhanced coop-
eration as provided for by the Treaties in force (Section IV). From here we
will conclude (Section V), that enhanced cooperation, although a second
best, should be considered as a medium-term policy option with regard to
certain areas of commercial policy.
II. COMMERCIAL POLICY: A HIDDEN TREASURE IN
THE CONSTITUTIONAL TREATY
The Treaty establishing a Constitution for Europe widens the area where
the EU can act on its own. It contains important improvements that would
remain a dead letter if nothing were done to save the Treaty. These improve-
ments have so far largely escaped the attention of the public. Commentators
of the constitutional debacle have mostly concentrated on the new rules of
representation (voting rights of Member States in the Council) and budget-
ary solidarity, but, as the Dutch saying goes, also other children risk to be
thrown away with the bathwater of the Constitutional Treaty if it is not
as yet ratied one way or another. This is particularly true in regards to the
external representation of the Union in the commercial domain.
Article III315 (formerly III217) TCE provides:
3
1. The common commercial policy shall be based on uniform principles,
particularly with regard to changes in tariff rates, the conclusion of
tariff and trade agreements relating to trade in goods and services and
the commercial aspects of intellectual property, foreign direct invest-
ment, the achievement of uniformity in measures of liberalisation,
export policy and measures to protect trade such as those to be taken
in the event of dumping or subsidies. The common commercial policy
2
For an overview of the use of terminology in the academic world, see the chapter by
Nico Groenendijk elsewhere in this volume. Among the growing literature on enhanced
cooperation see in particular F. Tuytschaever, Differentiation in European Law (Hart
Publishing: Oxford, 1999). J. Rideau (ed.), Union europenne, Commentaire des traits
modies par le trait de Nice du 26 fvrier 2001 (LGDJ, 2003). Thym, D., The Political
Character of Supranational Differentiation, 31 European Law Review (2006), 781799,
as well as the references there.
3
OJ L 310 of Dec. 16, 2004.
293
shall be conducted in the context of the principles and objectives of
the Unions external action. [ . . . ]
2. [ . . . ]
3. Where agreements with one or more States or international organisa-
tions need to be negotiated and concluded, the relevant provisions of
Article III325 shall apply. [ . . . ] The Commission shall make recom-
mendations to the Council of Ministers, which shall authorise the Com-
mission to open the necessary negotiations. [ . . . ]
4. [ . . . ] For the negotiation and conclusion of agreements in the elds
of trade in services and the commercial aspects of intellectual property,
as well as foreign direct investment, the Council of Ministers shall act
unanimously where such agreements include provisions for which una-
nimity is required for the adoption of internal rules. The Council shall
also act unanimously for the negotiation and conclusion of agreements
in the eld of trade in cultural and audiovisual services, where these risk
prejudicing the Unions cultural and linguistic diversity. [ . . . ]
5. [ . . . ] The exercise of the competences conferred by this Article in the
eld of commercial policy shall not affect the delimitation of internal
competences between the Union and the Member States, and shall not
lead to harmonisation of legislative or regulatory provisions of Member
States insofar as the Constitution excludes such harmonisation.
The main improvement enshrined in these provisions is that the
procedure for the negotiation and conclusion of important international
commercial agreements, including those on trade in services is com-
munitarized. Under the procedure of Article III325 (formerly Article
III227), the Commission is, as always, responsible for the negotiation of
international agreements, and the Council of Ministers concludes them.
This procedure is now extended to agreements in the eld of trade in
services, including trade in cultural and audiovisual services, hitherto an
exception under Article 133(6) EC, as well as foreign direct investment.
Even if in some cases the decision-making is by unanimity, the procedure is
an improvement as it rules out mixed agreements for the areas concerned.
Although the argument could still be made that these matters come within
the concurrent powers of the Union and the Member States, this would
be so only as far as the adoption of domestic legislation is concerned;
the question becomes moot for the conclusion of the agreement, as the
Constitutional Treaty allows the Commission to be the true and effective
294
representative of the EU and the agreement is to be concluded exclusively
by the Union.
4
At present, in multilateral commercial forums such as the World Trade
Organisation (WTO), the European Community (EC) very often acts
alongside its Member States rather than on its own. The situation where the
EC acts together with the Member States for the conclusion of international
treaties is called mixity. A treaty with third countries concluded by the EC
as well as its Member States is called a mixed agreement.
Although mixity can have its advantages in some cases (see, for example,
the even-handed chapter by Joseph Weiler),
5
and although the practice has
been accepted by the European Court of Justice, in general mixed agree-
ments have had vociferous adversaries, not least of course among ofcials
of the European Commission. Jrn Sack, a senior Commission ofcial, has
subtly set out his objections to mixed agreements in the eld of commerce
in a leading article in Journal of European Affairs.
6
According to this writer,
mixity might seem advantageous for Member States but it is destructive from
the viewpoint of the general interest of the EC. The negotiation of this type
of agreements can be tortuous, especially when the representation of the EC
and the Member States takes the form of a bi-cephalous delegation (headed
by a Commission representative and a representative of the Presidency). It is
suggested that the person representing the Member State of Presidency of the
EU is not the best spokesperson for the Union in international negotiations,
because the Presidency changes every six months and it is difcult for the
persons in the Chair to acquire the necessary in-depth understanding of the
interests he is supposed to promote, even if he may have excellent staff. Also,
contrary to what is required by Article 300 (1) EC, in practice, unanimity is
the rule for establishing the Community position when negotiating a mixed
agreement.
7
4
Under the Constitutional Treaty the European Union will have legal personality and
replaces the Communities.
5
J.H.H. Weiler, The External Legal relations of Non-Unitary Actors: Mixity and the
Federal Principle, in H.G. Schermers and D. OKeeffe, Mixed Agreements, (Kluwer,
Deventer 1983), at 3583.
6
J. Sack, Les Relations extrieures de lUnion europenne sous langle institutionnel
pas encore en plein essor ou dj bout de soufe ? , 12 Revue des Affaires europennes
(20012002/1), 2941.
7
Sack, ibid., at 34.
295
Yet the enthusiasm of Member States for mixity is not without lim-
its: Once the agreement is concluded, Member States willingly surrender
the cherished spokesmans role to the European Commission, even in the
framework of the dispute settlement procedures. Considering that a majority
of them defended so tenaciously Member State competences in the frame-
work of Opinion 1/94
8
and that they opposed so vigorously the adoption
of a code of conduct in the framework of the WTO, it comes as a surprise
that the Member States do not insist on taking the oor during the life of
an agreement.
9
According to Sack, this shows that the principal reason for
their battle is not so much to permanently occupy a seat that might be more
properly occupied by the Community, but to safeguard their right of veto.
Sack presents mixity as a modus vivendi that combines the Unions efciency
with the possibility of expressing a national veto in case of need only. The
presence of Member States is seen as a safety-net. Even so, mixity remains
a fragile equilibrium, which can only work if the national veto is used with
moderation.
10
An un-judicious or all too liberal exercise of the privilege may
cause paralysis, loss of credibility or missed trade opportunities for the Union
as a whole.
This picture is clearly compounded by the 2004 enlargement of the
EU. There are now 27 Member States and each of them can effectively cre-
ate havoc in the Community camp. What is more, one may wonder, can
the smaller states not be bribed into taking a position that goes against the
interests of the Community as a whole? Mixed agreements effectively prevent
the use of majority voting even on matters of trade in goods, in as far as the
conclusion of the agreement depends on the cooperation of all the Member
States. This is a matter that is not to be taken lightly, and it is plain to see that
especially after enlargement any progress in the elimination of the practice of
unanimity with regards to commercial treaties should be welcomed.
11
8
Opinion 1/94, Agreement establishing the World Trade Organisation [1994] ECR I526.
9
In the asbestos dispute before the WTO panel the EC was the defendant in a dispute
involving a French law on health questions and therefore, within national competence.
See N. Neuwahl, Droits et obligations internationales de lUnion europenne, la Com-
munaut europenne et les tat membresAnatomie de lautonomie, in Bourgeois
e.a., Commentaire Mgret sur le Droit de lUnion europenne. (In print.)
10
Sack, supra, note 6, at 35.
11
We are reminded by Sack, supra, note 6, at 39, that in matters of immigration, visas and
asylum, once bulwarks of national sovereignty, the EU has progressed further than in the
eld of multilateral trade representation. Indeed, since May 1, 2004 the EC Treaty allows
qualied majority voting in these matters, which were once considered so sensitive.
296
The Constitutional Treaty has brought closer the ideal staked out by the
European Commission in Opinion 1/94, of a unitary European representa-
tion in the eld of commerce.
12
In the Constitution the AETR doctrine
of implied external powers,
13
according to which the Commission would
only be able to act on the international plane after legislating in the internal
sphere, no longer applies to the elds in consideration.
Unfortunately, the improvements will not take place if the Constitution is
not entering into force. As a result, treaties regulating more than trade in goods
or services not involving cross-border movement of people will continue to be
concluded in mixed form. Their negotiation, conclusion and entry into force
will be affected by the need to go through the procedures not just once but
twenty-eight times since Romania and Bulgaria have joined, 2007.
It shall be clear that the rejection of the Constitutional Treaty is a missed
opportunity for increasing the effectiveness of the Union. This is because
the subject matters concerned are important issues of multilateral negotia-
tions. The liberalisation of services of all kinds is today economically more
important than that in goods.
14
Given the fact that the EU has almost dou-
bled in terms of the number of Member States, and decision making has
become more cumbersome, it seems that, for the representation of the EU
in multilateral trade organizations, the rejection of the Treaty establishing a
Constitution for Europe is a severe setback.
III. CAN ENHANCED COOPERATION BRING RELIEF IN
THE COMMERCIAL FIELD?
Enhanced cooperation denotes the use of EU institutions by fewer than
all Member States after prior consultation of those who do not participate. It
allows a group of Member States to spearhead integration in certain aspects of
policy (beyond the Nice acquis) when it is not possible to establish an EU-wide
consensus on a given issue. Such vanguard Member States
15
would be able
to use the institutions, procedures, and mechanisms of the Union to deepen
integration between them, while inviting all other Member States to join them
12
Opinion 1/94, supra, note 8.
13
Case C22/70, Commission v. Council (AETR), [1971] ECR 263.
14
Cf. OECD, Opening Up Trade in Services: Crucial for Economic Growth, OECD
Policy Brief (September 2005).
15
T. Jaeger, Enhanced Cooperation in the Treaty of Nice and Flexibility in the Common
Foreign and Security Policy, 7 European Foreign Affairs Review (2002), 297, at 298.
297
later. Although the history of European integration provides several examples
of partial participation (the Social Chapter before the Treaty of Maastricht,
European Monetary Union, Justice and Home Affairs), general provisions on
closer cooperation were introduced only at the end of the millennium, with
the Treaty of Amsterdam. The procedures were subsequently improved and
dubbed enhanced cooperation. General provisions can now be found in four
different parts of the Treaty,
16
but the main part, containing also the standard
procedure, is to be found in Title VII EU, entirely devoted to the subject.
The drafters of the Treaties did not work on the improvement of the
procedures without reason. When the Treaty of Nice was to prepare for the
big bang of the eastern enlargement of the EU, improving the procedures
for enhanced cooperation and enlarging access to it was a logical move.
Enhanced cooperation was and still is seen as a mechanism for progress, in
those cases where the minimum requirements for collective EU action are
not met but where a decision-making process at Union level has advantages
over action by one or more Member States outside the framework of the
Union. The provisions may yet have to be improved further, but, especially
in view of the much more cumbersome decision process since May 2004,
they are a welcome addition to the arsenal of policy-making strategies of the
EU, in times of deadlock or in case of need.
In Title VII EU on enhanced cooperation, Article 43 EU as amended
by the Nice Treaty provides that:
Member States which intend to establish enhanced cooperation
between themselves may make use of the institutions, proced-
ures and mechanisms laid down by this Treaty and by the Treaty
establishing the European Community provided that the proposed
cooperation:
(a) is aimed at furthering the objectives of the Union and of the Com-
munity, at protecting and serving their interests and at reinforcing their
process of integration;
(b) respects the said Treaties and the single institutional framework of the
Union;
(c) respects the acquis communautaire and the measures adopted under the
other provisions of the said Treaties;
16
Arts. 11 et 11A EC (First Pillar), Arts. 27A, 27 B, 27 C, 27 D, 27E (Second Pillar), Arts.
40, 40A and 40B (Third Pillar), and generally 43, 43A, 43B, 44, 44A, 45 UE.
298
(d) remains within the limits of the powers of the Union or of the Com-
munity and does not concern the areas which fall within the exclusive
competence of the Community;
(e) does not undermine the internal market as dened in Article 14(2)
of the Treaty establishing the European Community, or the economic
and social cohesion established in accordance with Title XVII of that
Treaty;
(f ) does not constitute a barrier to or discrimination in trade between the
Member States and does not distort competition between them;
(g) involves a minimum of eight Member States;
(h) respects the competences, rights and obligations of those Member States
which do not participate therein;
(i) does not affect the provisions of the Protocol integrating the Schengen
acquis into the framework of the European Union;
(j) is open to all the Member States, in accordance with Article 43b.
It can be taken from Article 43a EU
17
that the participation of all Mem-
ber States is to be preferred, and that enhanced cooperation can only be used
as a last resort, namely, when it appears that the objectives cannot be reached
in a reasonable time applying the normal provisions of the Treaty. In the EC
Treaty, Articles 11 and 11a EC lay down the general procedure to be fol-
lowed for enhanced cooperation in areas covered by the ECT, which requires
a proposal by the Commission, a majority in Council, and in some cases, the
assent of the European Parliament. The European Council can be involved
upon the request of one of the members of the Council of Ministers.
Philippart briey summarises the working of the current provisions.
18

Enhanced cooperation is a mechanism allowing a group of Member States
to use the EU framework to develop their cooperation or integration in
policy areas under EU competence. Under the current provisions it is
the Council who grants that facility upon a proposal by the Commission.
As mentioned before, according to Article 43 EU, this option may be
17
Art. 43a EU, inserted by the Treaty of Nice provides: Enhanced cooperation may be
undertaken only as a last resort, when it has been established within the Council that the
objectives of such cooperation cannot be attained within a reasonable period by applying
the relevant provisions of the Treaties.
18
E. Phillippart, Optimising the Mechanism for Enhanced Cooperation within the EU:
Recommendations for the Constitutional Treaty, CEPS Policy Brief No 33, May 2003.
299
undertaken only as a last resort: it must be established that the objectives
of the enhanced cooperation cannot be attained within a reasonable period
through normal procedures. The last resort condition in the Nice ver-
sion does not indicate how the Council is to establish that that requirement
would be met. The European Convention Secretariat, analysing the Nice
version of the procedures, noting the lack of clarity on this point, has sug-
gested that the failure or even the previous initiation of another procedure
should not be required; the Council should have a discretion to establish
the unsuitability of the normal procedures, for example by referring to
a number of legal bases concerned by the proposed cooperation.
19
The
reason why this is important is not just procedural: it is important also for
the scope of the enhanced cooperation: if only matters that have been dealt
with in a previous procedures can be subject to enhanced cooperation,
the procedure becomes a straight-jacket. The requirement of last resort
could also suggest a certain necessity or expediency of regulating the mat-
ter; however, this aspect is hardly a matter for judicial review.
Arguably, the assessment of enhanced cooperation requires a multiple
test, in which the subsidiarity condition of Article 5 EC also needs to be ful-
lled: rst, Community action must be preferable to action by the Member
States individually, secondly, action by all Member States is unattainable
within a reasonable period of time.
20
The use of the EU framework means that, whereas the full Council
of Ministers takes part in the deliberations, only the representatives of the
Member States participating in enhanced cooperation take part in the adop-
tion of decisions for the implementation of the cooperation. The adapta-
tion of the votes in Council (to reect the proportion each participating
member State would have in normal decision-making procedures) is the
main characteristic of this form of decision-making. For the rest, and this is
equally essential, the institutions play the role they would normally play in
the development of EU policies, thus guaranteeing the institutional frame-
work, the implication of its stakeholders and democratic control. That being
said, the decisions taken only bind the participating members, which, by
default, bear the operational expenditure resulting from implementation of
enhanced cooperation.
21
It is not entirely clear whether enhanced coopera-
tion can be applied to one single act, like the enactment of a directive, or
19
European Convention, Doc CONV 723/03. Brussels, 14 May 2003.
20
Rideau, supra, note 2, at p. 100102.
21
Cf. Art. 44A EU.
300
can only be used in a more institutionalised form to regulate prospectively
recurrent decision-making in a particular area. Absent evidence to the con-
trary derived from the negotiating history, there appears to be no reason to
have a restrictive view in this regard either way.
No authorisation of enhanced cooperation has yet been requested by
the Commission under these provisions, but the establishment of enhanced
cooperation has been envisaged on several occasions, and the mechanism is
sometimes used as a stick to coerce unwilling Member States into action.
In some cases, the threat to use enhanced cooperation has contributed to
breaking a deadlock. This happened, for instance, at three separate occasions
in 2001: in case of the Regulation concerning the European Company Stat-
ute,
22
the Works Councils Directive
23
and the Joint Action on the European
Arrest Warrant.
24
It is submitted that there is no reason why enhanced cooperation could
not apply to certain areas of the common commercial policy and the conclu-
sion of international treaties. In an earlier research paper, Franoise de la Serre
and Helen Wallace
25
have pointed out the reasons why trade was originally
specied, along with the common market and a range of common policies
such as agriculture, sheries, transport, competition and cohesion, among
those domaines excluded from the principle of enhanced cooperation:
Because these policies were interconnected and interdependent,
because they had produced blocks of collective policy powers, and
because of the requirements of nancial solidarity, there were limits
to what could be done under the rubric of enhanced cooperation,
unless one wanted to risk the emergence of an la carte Europe.
However, considering that partial harmonisation, though not ideal, is in
some respects better than no harmonisation at all and has been accepted in
the past, one may wonder whether a blanket exclusion of commercial issues
is justied at all. Whereas one can understand that there should not be a
22
Phillippart, supra, note 18.
23
Ibid.
24
J. Monar and N. Neuwahl, The EUs Response to International Terrorism after 11
September 2001, in: S. Bruning (ed.) Proceedings of Rethinking Globalisation: Criti-
cal PerspectivesA Joint ASAG/CGA Ontario International Business Research Centre
at Queens University Conference. Winnipeg 2002, pp. 3342.
25
F. de la Serre and H. Wallace, Flexibility and enhanced cooperation in the Euro-
pean Union: Placebo Rather than Panacea, Research and Policy Unit Notre Europe,
Sep. 1997, at notre-europe.asso.fr/chiers/Etud2-en.pdf.
301
U-turn on the acquis communautaire, that consideration need not apply in
elds that have not been harmonised. Even the free movement of workers
is limited in relation to new Member States, be it for a limited period of
time. The conclusion of a treaty on services by enhanced cooperation should
therefore not be too readily dismissed out of hand.
Should the matter come before the European Court of Justice, for instance
in a challenge to a Council decision introducing enhanced cooperation in the
eld of trade, or in an action brought by the European Parliament, it is sub-
mitted that the Luxembourg jurisdiction should look favourably on enhanced
cooperation, allowing it to be considered for new areas of commercial policy.
In particular, the Court may look favourably on those areas that in Opinion
1/94 were not seen as exclusive common commercial policy. In the absence of
a Council decision transferring competence to the Community, it is difcult
to maintain that trade in services should always be exclusively dealt with in
a Council of all Member States. To the extent that there is no harmonisa-
tion, individual action is allowed too. In that light it would be surprising if
enhanced cooperation should a priori be ruled out.
Of course the conditions for enhanced cooperation include that it does
not concern areas falling within the exclusive competence of the Community
(Article 43(d) EU); does not undermine the internal market (Article 43(e)
EU); does not constitute a barrier to or discrimination in trade between
the Member States and does not distort competition between them (Arti-
cle 43(f ) EU). We shall come back to these requirements below.
If these and the other pertinent conditions are met, however, there is
no reason why enhanced cooperation should not be used, either as a stick
intended to kick-start complete harmonisation or, in absence of the latter, in
the hope that other Member States will follow suit.
26
In economic matters,
normally they will be interested to do so, for fear of losing out. The idea of
economies of scale implies that harmonisation among several Member States
is better than no harmonisation at all. It is costly and unproductive, in the
long run, to maintain small and segmented markets protecting localised
interests. For this reason, large-scale markets (together with the concomitant
investment opportunities) are generally preferable, even if a few Member
States cannot come along.
26
On the so-called rst mover advantage, see the chapter by Nico Groenendijk elsewhere
in this volume.
302
If enhanced cooperation is applied to the conclusion of international
treaties, for instance in the eld of intellectual property rights or direct for-
eign investment, the EC can be authorised to negotiate and conclude a
treaty on behalf of less than all Member States. There would be no need for
the conclusion of a mixed agreement for those areas. Article 300 EC would
apply, the European Commission could effectively represent the Commu-
nity during the negotiation of an agreement, and the act of conclusion by
the Council could specify the territorial sphere of application of the Treaty
as regards the EC.
There is no wholesale exclusion of enhanced cooperation for this area
and it is submitted that partial participation of the European Community
should be discussed as one of the options open for action on the interna-
tional plane. In the opinion of the author, a creative use of the provisions on
enhanced cooperation would allow both for a more unitary representation of
the European Community and for the conclusion by the EC of international
agreements creating a level playing eld in part of the Communityshould
the Community so decide. Naturally all Member States have a say on the
expediency of the matter. Contrary to what is often assumed, certain aspects
of commerce, such as services liberalisation are, today, more suitable for
partial participation than before. To recognise this is to give the EU more
exibility in its international instruments, both in the sense of greater choice
and in the sense of variability over time.
27
IV. CONDITIONS OF ENHANCED COOPERATION AS APPLIED
TO COMMERCIAL POLICY
The legal framework of enhanced cooperation contains a number of
conditions that need to be analysed more closely in relation to commercial
policy. Among the 10 commandments of Article 43 EU, some seem at rst
sight to rule out the application of the procedure to the area under consid-
eration:

Paragraph (d) requires that enhanced cooperation remains within
the limits of the powers of the Union or of the Community and does not
concern the areas which fall within the exclusive competence of the Com-
munity; paragraph (e) demands that it should not undermine the internal
market as dened in Article 14(2) of the Treaty establishing the European
27
Evidently, on the international legal level the procedure for allowing Member States
wishing to join an international agreement at a later stage is a technical issue which is to
be addressed.
303
Community, or the economic and social cohesion established in accordance
with Title XVII of that Treaty. Under paragraph (f ) it may not constitute
a barrier to or discrimination in trade between the Member States and or
distort competition between them.
These conditions may seem especially difcult to full in the area under
consideration, and therefore, need to be addressed one by one.
1. THE DOMAIN CONCERNED COMES WITHIN THE COMPETENCE
OF THE EC
Under Article 43(d) EU it is necessary that the proposed area of enhanced
cooperation complies with the double condition of being within the com-
petence of the EC and outside the exclusive competence of the European
Community. This seems to be tantamount to saying that the area must
concern a matter of concurrent competence, in the sense that the Mem-
ber States retain competence until the adoption of common rules by the
Community. Before determining to which areas of commercial policy this
applies, it should be noted that after Opinion 1/94 it is possible to argue
that the treaty-making power of the Community outside exclusive powers
is a very limited one, because restricted to matters that are imperatively
associated with Community action.
28
Apart from such a restrictive concep-
tion of the Communities powers, one has no difculty admitting that the
implied powers of the Community are extensive, because the objectives of
the Community are manifold, and one can simply take the view that outside
exclusive community powers, the expediency of Community action is largely
determined by political considerations.
The competence of the Community for commercial matters is hardly
disputed, and recent Treaty amendments (Amsterdam, Nice) mirror an
evolution of the subjects of commercial interest. Even a supercial reading
of the Treaty shows that international agreements on services or the com-
mercial aspects of intellectual property, foreign direct investment come
under the notion of common commercial policy or at any rate within the
treaty making powers of the Community (Article 133, paragraph 5 EC),
except that a shared competence of the Member States is currently reserved
under Article 133 paragraph 6, notably as regards trade in cultural services,
education, social services and human health. Furthermore, the existence
28
Cf. N. Neuwahl, The WTO Opinion and Implied External Powers of the Community:
a Hidden Agenda?, in A.A. Dashwood and C. Hillion (eds.), The General Law of EC
External Relations, Sweet & Maxwell, London 2000, pp. 13951.
304
of a (non-exclusive) potential power of the EC in the eld of intellectual
property is conrmed by Article 133 paragraph 7.
29
2. THE DOMAIN CONCERNED DOES NOT COME WITHIN THE
EXCLUSIVE POWER OF THE EC
In terms of well established lines of jurisprudence of the ECJ, there
are essentially two ways in which the Communitys treaty-making power
can become exclusive: a) Powers have been transferred en masse to the
European Community as regards an entire policy eld, such as the common
commercial policy or sheries conservation measures (Rubber Opinion
30

and Kramer Case;
31
b) powers have become exclusive after the adoption of
common rules or by virtue of the necessity of action by the Community.
(AETR,
32
Opinion 1/76.
33
)
Judging by the terms of the EC Treaty, it is possible to argue, how-
ever, that the power in certain elds concerned is retained by the Member
States even if an agreement is concluded by the EC. The institutions have to
observe uniform principles when concluding an international agreement
in the eld of commercial aspects of intellectual property, but in much the
same way as in Article III325 TCE quoted, certain matters are reserved,
internally, to the shared competence of the Member States.
34
As a result, certain treaties remain, at least momentarily,
35
within the
shared competence of the European Community and the Member States.
29
The passerelle provided in this provision is no doubt an answer to the ECJs refusal
to recognise an exclusive power to the Community in this eld in the framework of the
WTO.
30
Opinion 1/78, (International Agreement on natural rubber), [1979] ECR 2871.
31
Joined Cases 3,4 and 6/76, Cornelis Kramer and others (Biological resources of the sea),
[1976] ECR 1279.
32
Supra, note 13.
33
Opinion 1/76, (Draft Agreement establishing a European laying-up fund for inland wate-
rway vessels), [1977] ECR 741.
34
On a reserved treaty-making power of the Member States see Art. 133 (5) fourth
subparagraph.
35
The Constitutional treaty would have transferred more powers to the EU, at the price
of reserving unanimity voting in certain cases. In accordance with Art. III315, para.
4, for agreements in the elds of trade in services, the commercial aspects of intellectual
property, and foreign direct investment, the Council is to act unanimously where such
agreements include provisions for which unanimity is required for the adoption of inter-
nal rules. It is also to act unanimously for the negotiation and conclusion of agreements
305
They can (and normally would) be subject to the conclusion of mixed
agreements.
The following matters are withdrawn from the obligation to adopt
uniform principles: trade in cultural services, education, social services and
human health.
36
The same is true for foreign direct investment, for which
there is currently no express mandate in the Treaty. If one can argue that
these matters come within the competence of the Community, one can also
subject them to enhanced cooperation, provided that such collaboration
does not violate the other requirements of the Treaty. Paragraph 5 would
then require a treaty to which the Member States are also parties; as regards
non-commercial aspects of intellectual property, the Council can instruct
the Community to act on its own on the basis of paragraph 7 and conclude
a treaty based on common principles.
3. THE DESIRED COOPERATION DOES NOT UNDERMINE THE INTERNAL
MARKET OR SOCIAL COHESION
It follows from the foregoing that, say, an agreement in the eld of trade
in cultural services, education, social services and human health or in the
eld of foreign direct investment or intellectual property can be covered
in a Community agreement and it is not forbidden to resort to enhanced
cooperation. In addition, however, Article 43(e) EU requires the institutions
not to undermine the internal market or social cohesion ex Title XVII of
the EC Treaty.
Interestingly, under Article 43(e) the obligation is not to undermine
the internal market as dened in Article 14(2) EC. As Thym observes, the
protection of the single market is restricted to the second paragraph of Arti-
cle 14 while harmonisation measures under Article 14(1) are excluded from
the prohibition and may therefore be enacted in the framework of enhanced
cooperation.
37
However this may be, the respect for the fundamental market
freedoms is a general principle of European Community law, which requires
Member States to introduce only those obstacles to free movement as are
non-discriminatory and can genuinely be justied by reason of imperative
requirements related to the public good. It can be argued that the reduction
in the eld of trade in cultural and audiovisual services, where these risk prejudicing the
Unions cultural and linguistic diversity.
36
This results from a reading of Art. 133, notably para 6, EC.
37
Thym supra, note 2, at 791.
306
of obstacles to trade in services between some Member States only is a public
good that does not normally interfere more than necessary with the rights
of other Member States, and which, moreover, does not interfere with the
grant of competence under Article 14(2). We will deal hereafter with the
prohibition of Article 43(f ) on constituting a barrier to or discrimination
in trade between Member States.
The requirement of not affecting social cohesion seems easily met, as
solidarity with poorer regions in the Union can take various form including,
for instance, monetary aid or other relief.
4. NO BARRIER OR DISCRIMINATION IN TRADE AND NO DISTORTION
OF COMPETITION
This arguably is the most elusive of the conditions in connection with
commercial affairs. At rst blush commercial arrangements between some
Member States only will always and by necessity discriminate or distort
competition in relation to the outs. The ambiguity disappears, however,
if we accept that this condition is concerned with real discrimination only,
that is, discrimination that cannot be justied by objective reasons or the
public good. In this view, Article 43(f ) EU would be concerned essentially
with Cassis de Dijon type of discrimination. (The negotiating history of the
article gives some support to this view). Moreover, it could be argued that
the second condition in this article is essentially a reminder that the Member
States should not should not allow companies to partition the market among
them where they are not allowed to do so themselves. Both these principles
would thus, like most of the other conditions of enhanced cooperation in
the eld of Community law, be codications of general principles of Com-
munity law. As, moreover, enhanced cooperation does not affect the acquis
or the autonomous competence of the Community, this form of lawmaking
should, in principle, be acceptable.
All this goes to show that, whereas the interpretation of the conditions
of enhanced cooperation is still a matter of considerable uncertainty, it is not
possible to say a priori that it cannot be applied in the context of interna-
tional commercial relations.
V. CONCLUSION
We have seen that the non-adoption of the Treaty establishing a Con-
stitution for Europe constitutes a missed opportunity in terms of efcacy of
307
the Union on the international plane, and therefore, a loss. However, it is
possible to make up for some of the damage by resorting to the procedure of
enhanced cooperation. The latter procedure allows the Community to con-
clude an agreement in the eld of trade in services, notably cultural services,
education, social services and human health or direct foreign investment
even if not all Member States would subscribe to the policies concerned.
As regards trade in other services and the commercial aspects of intellec-
tual property, the Community has no choice but to conclude an agreement
affecting all of its (by now 27) Member States, and, in many cases, has to
work towards unanimity.
Whereas enhanced cooperation seems worth proposing as a way out of
the enlargement impasse and as a way to implement at least in part policies
that would have been facilitated by the Constitution, the non-entry into
force of the Constitutional Treaty could help to shed more light on the
practical relevance of enhanced cooperation and thereby elevate it into an
operational principle of EU constitutional law. The need for a more coherent
action in the eld of external commercial affairs was clearly brought to light
during the works of the Convention and the IGC, and the opposition of,
say, a small number of Member States should not normally be a reason for
advancing at the pace of the slowest Member State.
THE EUS CONSTITUTIONAL CRISIS AND THE
AREA OF FREEDOM, SECURITY AND JUSTICE:
IMPLEMENTING THE CONSTITUTION
THROUGH THE BACK-DOOR?
Jrg Monar
I. INTRODUCTION
Since the entry into force of the Treaty of Amsterdam in 1999, the creation
of the Area of freedom, security and justice (AFSJ) of the European Union
has become one of the major political objectives and most ambitious projects
of the European Union. The pace of decision-making has been impressive,
with the Council adopting on average over 100 texts relating to the justice
and home affairs (JHA) elds falling within the scope of the AFSJ, which
range from asylum over immigration and border controls to judicial coop-
eration in civil and in criminal matters as well as police cooperation. Some
major breakthroughs have been achieved both on the legislative sidesuch
as by the adoption of the Framework Decision on the European Arrest War-
rant in June 2002and the institutional sidesuch as by the establishment
of the external border management agency FRONTEX in June 2005. Yet
more recently, there has been increasing evidence that the further construc-
tion of the AFSJ in line with the 2005 to 2010 Hague Programme is losing
speed, with major projects such as the proposed Framework Decision on the
European Evidence Warrant, the Decision on cross-border police coopera-
tion, common action in the domain of legal immigration and the putting
into place of the second generation Schengen Information System (SIS II)
suffering major delays. At the same time it has also become apparent that the
implementation of programmes as well as of certain legislative acts agreed
310
upon in the Council have been seriously affected by delayed or incomplete
implementation by the Member States, the most striking example being the
EU Action Plan against Terrorism.
The signs of increasing problems in the further construction of the
AFSJ have coincided with what has been termed the constitutional crisis
of the EU after the rejection of the EUs Constitutional Treaty in referenda
in France and the Netherlands on May 29 and June 1, 2005 respectively.
As the Constitutional Treaty comprises a range of provisions which would
have strengthened EU competences and procedures in respect of the AFSJ,
its rejection has cast an additional shadow over the future prospects for
progress with this major integration project. Unsurprisingly, there has
been no shortage of voices, political
1
and academic,
2
expressing regrets and
worries about the implications the uncertain future of the Constitutional
Treaty might entail for the AFSJ. In addition to the general debate on how
the EU might nd a way out of its constitutional crisis there has therefore
been a specic debate relating to the AFSJ howin order to inject a new
momentum to its constructionat least parts of the reforms provided
for in the Constitutional Treaty for the AFSJ could be put into operation
in advance of or even without the entering into force of the Treaty. The
most signicant political initiatives in this respect have been taken by the
European Commission who proposed in June 2006in two Communi-
cationsto use the existing treaty bridging provisions of Article 42 EU
and Article 67(2), second indent, EC to apply the Community method
in terms of decision-making rules and judicial control to the areas still
remaining under intergovernmental Title VI EU, i.e. police and judicial
cooperation in criminal matters.
3
Such a move, which was largely endorsed
by the Finnish Presidency of the EU in the second half of 2006, would
effectively implement an important part of the reforms of the Constitutional
Treaty, but not under its name and not through the normal ratication pro-
cedure the Constitutional Treaty is subject to. It would therefore amount
1
See for instance, the Opinion of the European Parliaments Committee on Civil Liber-
ties, Justice and Home Affairs of Nov. 24, 2005 for the Committee on Constitutional
Affairs on the period of reection, Report A60414/2005 of Dec. 16, 2005, EP docu-
ment no. PE 364.708v0200, at 3637.
2
See for instance, E. Guild and S. Carrera, No Constitutional Treaty? Implications for
the Area of Freedom, Security and Justice, CEPS Working Document no. 231, Brussels,
Oct. 2005.
3
COM(2006) 331 and COM(2006) 346, both of June 28, 2006.
311
IMPLEMENTING THE CONSTITUTION THROUGH THE BACK-DOOR?
to a partial implementation of the Constitutional Treaty through the back
door, so to say, of the existing Treaties.
On the basis of an assessment to what extent the non-entry into force of
the Constitutional Treaty means a crisis for the AFSJ, this contribution will
analyse the political reactions to this move towards the implementation of
elements the Constitutional Treaty by other means, discussing its advantages
and disadvantages. Before doing so, however, it seems useful to recall the
main reforms which the Constitutional Treaty foresees for the AFSJ.
II. THE REFORMS OF THE CONSTITUTIONAL TREATY
1. THE LEGAL FRAMEWORK
By far the most fundamental change the Constitutional Treaty foresees
for the AFSJ is the recasting of its overall legal framework. The existing
division between the EUs three pillars is to be replaced by a single legal
framework in a single legal text. This step would remove the existing split in
the JHA domain between, on the one hand, asylum, immigration, border
controls and judicial co-operation in civil matters falling under Title IV of
the EC Treaty (rst pillar) and, on the other hand, judicial co-operation in
criminal matters and police co-operation falling under Title VI of the EU
Treaty (third pillar). It would put an end to the need to adopt parallel
legislative acts under the different pillars in certain domains of cross-pil-
lar implications (such as money laundering), reduce the potential for con-
troversies over the appropriate legal basis and facilitate the negotiation and
conclusion of agreements with third countries on cross-pillar matters.
Yet the major progress made with the abolition of the pillar structure
is partially undermined by a number of special provisions for individual JHA
policy areas: According to Article III264 the European Commission, which
has an exclusive right of initiative for asylum, immigration, border control and
judicial co-operation in civil matters, will have to share this right with the Mem-
ber States in police and judicial co-operation in criminal matters. Whereas in
the aforementioned areas (asylum etc.) the Constitutional Treaty provides with
one small exception (family law) for qualied majority voting, substantial parts
of police and judicial co-operation in criminal matters will still be governed by
the existing unanimity requirement.
4
A similar distinction applies to the role
4
Certain measures in the criminal law domain according to Art. III270(2)(d) and 271(1);
establishment of a European Public Prosecutors Ofce and extension of its mandate,
312
of the European Parliament, which is granted co-decision on most of the issues
of the rst named areas, but is limited to assent or consultation procedures on
quite a number of the last named ones. All this means that from an institutional
and procedural point of view, the old pillar division would at least to some
extent continue to exist. This hidden continuation of the pillar separation
could lead to problems in the adoption of cross-cutting packages of measures
because of different procedures, majority requirements and forms of involve-
ment of the Parliament.
2. THE CHARTER OF FUNDAMENTAL RIGHTS
A major element of the new legal framework of the AFSJ which the
Constitutional Treaty would create is the Charter of Fundamental Rights,
fully incorporated through part II of the Constitutional Treaty. There can be
no doubt that measures in the JHA domain can affect fundamental rights of
individuals in a much more direct way than, for instance, most of the Single
Market measures. Through the full incorporation of the Charter, the Consti-
tutional Treaty would clearly create a better basis for comprehensive funda-
mental rights protection byand where necessaryagainst EU institutions.
Although it is true that the protection of certain fundamental rightssuch
as non-discriminationcan already be regarded as adequately ensured in
the current EC legal order, there are still a number of gaps of relevance for
JHA measures which will be lled only through the incorporation of the
Charter. This applies, in particular, to the right of protection of personal data
(Article II68) whichhaving regard to the proliferation of data-bases and
exchange systems in the context of the AFSJ (SIS, Europol, Eurodac, etc.)
and the rapidly developing co-operation with third countries (example: the
Europol-USA agreement of December 2002 which provides for the exchange
of personal data)is of growing importance. Of considerable relevance for
the AFSJ are also the judicial rights laid down in Title VI of the Charter.
With the inclusion of the right to legal aid (Article II107, last sentence),
the principle of proportionality of offence and penalty (Article II109(3) and
the right not to be tried or punished twice for the same criminal offence (ne
bis in idem principle, Article II110), these judicial rights go clearly beyond
mere minimum guarantees like the rights to an effective remedy and the
principles of presumption of innocence and of legality. Taken together, they
dene important elements of a common approach of the Member States to
Art. III274(1) and (4); operational police cooperation, Art. III275(3); framework law
on operations of national authorities in another Member State, Art. III277 (see below
section II.4).
313
criminal justice and they could well serve as important foundation stones for
the gradual creation of an EU criminal justice system.
3. THE NEW POLICY-MAKING OBJECTIVES
The Constitutional Treaty would both amend and add to the policy-
making objectives currently contained in Title IV EC and Title VI EU. Only
the more important changes can be mentioned here:
As regards border controls, the most signicant innovation would be
the gradual establishment of an integrated management system for external
borders (Article III265(1)(c) and (2)(d)). In the asylum policy domain, the
formal introduction of a common policy (Article III266(1)) reinforces the
common ambition in this area, which is strengthened by additional objec-
tives. This applies, in particular, to the introduction of a uniform status of
asylum (Article III266(2)(a)), a uniform status of subsidiary protection
(Article III266(2)(b)), common procedures for the granting and withdraw-
ing of the asylum or subsidiary protection status (Article III266(2)d)) and
partnership and co-operation with third countries for the purpose of man-
aging inows of people applying for either status (Article III266(2)(g)).
Although some elements of these objectives are already found in the current
Article 63 EC, the foreseen common uniform status goes beyond the more
fragmentary existing treaty provisions which were largely focused on a com-
mon minimum standards approach.
The Constitutional Treaty also establishes the objective of a common
policy in the area of immigration policy where the Constitutional Treaty
provides for the Union to take action on the efcient management of
migration ows, fair treatment of legally resident third country nation-
als, prevention and enhanced combating of illegal immigration and traf-
cking in human beings (Article III267(1)). Yet these very ambitious
objectives are not matched by correspondingly extensive powers of the
Union. New are only provisions on measures against illegal immigration,
unauthorised residence, trafcking in persons (Article III267(2)(c) and
(d)) as well as the conclusion of readmission agreements with third coun-
tries (Article III267(3)), all areas, however, in which the Union has already
become active. Provision is also made, it is true, for measures promoting
the integration of third-country nationals, but these have to exclude any
harmonisation of the laws and regulations of the Member States (Article
III267(4)). Another major restriction on EU action is imposed by Article
III267(5) which provides that Member States will fully conserve their
314
right to determine volumes of admission of third-country nationals for
work purposes, whether employed or self-employed. It seems rather doubt-
ful whether much of a common policy on the crucial issue of integration
could be constructed on such a slight basis.
In the domain of judicial cooperation in civil matters, the Constitu-
tional Treaty would add to the current catalogue of aims in Article 65 EC
by the objectives of a high level of access to justice, the development of
alternative methods of dispute settlement and support for the training of
the judiciary and judicial staff (Article III269(2)(e), (g) and (h)). As the
Union has already become active in all of these areas, this represents largely
a codication of existing practice, although it would clearly reinforce the
basis for future action.
In the area of judicial cooperation in criminal matters the Constitutional
Treaty foresees an increased range of objectives. New are, in particular, the
possibility to adopt framework laws on minimum rules regarding the mutual
admissibility of evidence, the rights of individuals in criminal procedure, the
rights of victims of crime and other specic aspects of criminal procedure
(Article III270(2)), the considerably increased list (which can be added
to further) of the areas of particularly serious crime for which minimum
rules concerning the denition of criminal offences and sanctions can be
established (Article III271(1)), an authorisation for EU action in the eld
of crime prevention (Article III272) and the possibility of the establish-
ment of a European Public Prosecutors Ofce (Article III274). Yet there
are also a number of limitations, such as the exclusion of any approxima-
tion of national legislative and regulatory provisions in the eld of crime
prevention (Article III272) and the restriction of the role of the European
Public Prosecutors Ofcewhose establishment would any way still need
an unanimous decisions by the Councilto crimes affecting the nancial
interests of the Union (Article III274(1)).
As regards police cooperation, the Constitutional Treaty would only
streamline and simplify current provisions on general police co-operation,
while leaving their substance largely unchanged (Article III275). The role
of Europol would be slightly strengthened by the possibility to entrust it
with co-ordinating functions and the organisation and implementation of
investigative and operational action carried out jointly with national authori-
ties (Article III276(2)(b)). Yet, Article III276(3) severely restricts prospects
for a stronger operational role of Europol by reserving coercive measures
exclusively to national authorities and by providing that any operational
315
action by Europol must be carried out in liaison and in agreement with
national authorities.
4. THE REFORMS OF THE DECISION-MAKING SYSTEM
As regards voting requirements, the Constitutional Treaty would bring
a major breakthrough towards qualied majority voting. Co-decision by
the European Parliament with majority voting in the Council becomes
the standard decision-making procedure also for the domain of JHA co-
operation. There are a number of exceptions, however. Unanimity would
still apply to measures concerning family law with cross-border implica-
tions (Article III269(3)), the establishment of minimum rules concerning
other (i.e. not explicitly mentioned) aspects of criminal procedure (Arti-
cle III270(2)(d)), the identication of other (i.e. not already explicitly
mentioned) areas of serious crime for which minimum rules concerning
the denition of criminal offences may be introduced (Article III271(1)),
the European law on the establishment of the European Public Prosecu-
tors Ofce (Article III274(1)), the extension of the Prosecutors Ofces
mandate (Article III274(4)), legislative measures regarding operational co-
operation between national law enforcement authorities (Article III275(3))
and the laying down of the conditions and limitations under which national
law enforcement authorities may operate in the territory of another Member
State (Article III277). In addition to these restrictions on majority vot-
ing, the Constitutional Treaty provides for what has become known as the
emergency brake mechanism: According to Article III270(3) and Article
III271(3), a Member State who considers that a draft European Framework
Law in the respective domains of procedural and substantive criminal law is
likely to affect fundamental aspects of its criminal justice system would be
able to refer this draft legislative act to the European Council. This would
have the effect of suspending the normal legislative procedure under Article
III396 and leave it to the Heads of State of Government of the EU to decide
whether the draft should be referred back to the Councilin which case the
normal legislative process would be resumedor request the Commission or
the proposing group of Member States to submit a new draft, which would
mean the non-adoption of the original draft. Overall, therefore, the Consti-
tutional Treatys progress on the majority voting side would come with quite
a price tag in terms of restrictions and blockage possibilities.
Another aspect of the decision-making system touched by the Consti-
tutional Treaty is the right of initiative. While the European Commission
is vested with an exclusive right of initiative for border checks, asylum,
316
immigration and judicial co-operation in civil matters, the Constitutional
Treaty provides that in the areas of police and judicial co-operation in
criminal matters it has to share its right of initiative with the Member
States (Article III264). Those, however, can only introduce collective ini-
tiatives with at least one quarter of their total number. It appears to be a
good compromise between, on the one hand, the preservation of a right
of initiative on the side of the Member States and, on the other, the need
to prevent a proliferation of initiatives from individual Member States, all
too often inspired by purely national interests.
5. DEMOCRATIC AND JUDICIAL CONTROL
As a domain which in many cases directly touches upon citizens inter-
ests and rights, effective democratic control through the European and the
national parliaments is of obvious constitutional importance to the AFSJ.
The Constitutional Treaty would considerably strengthen the role of the
European Parliament, who would gain co-decision powers in accordance
with the ordinary legislative procedure (Article III396) orin the case of
other aspects of criminal procedure (Article III270(2)(d)), the extension
of the list of areas of serious crime subject to potential harmonisation meas-
ures (Article III271(1)), the establishment of the European Public Pros-
ecutors Ofce and the extension of its competences (Articles III274(1)
and III274(4))it would have at least the power of consent in most elds
covered by the AFSJ. Thereby, the EP becomes in fact a real co-legislator for
the further construction of the AFSJ. This breakthrough is further enhanced
through explicit information rights of the EP regarding the evaluation of
implementation of Union policies (Article III260) and the proceedings of
the standing committee on operational co-operation (Article III261) as
well as its involvement in the evaluation of the activities of Eurojust (Article
III273(1) and Europol (Article III276(2)).
It should be noted, however, that even under the Constitutional Treaty
the Parliament would still be limited to its current purely consultative role
in some elds: administrative co-operation between Member States (Article
III263), measures in favour of Member States facing an emergency situation
because of a sudden inow of third country nationals (Article III266(3)),
measures concerning family law with cross-border implications (Article
III269(3)), operational co-operation between national law enforcement
authorities (Article III275(3)) and the denition of the conditions under
which national authorities may operate in the territory of another Member
State (Article III277).
317
The position of national parliaments would be strengthened by Article
III259, which not only gives them a particular responsibility for ensuring
EU compliance with the subsidiarity principle in police and judicial co-oper-
ation in criminal matters in accordance with the early warning procedure
provided for by Protocol on the application of the principles of solidarity and
proportionality, but also grants them the same rights of participation as the
European Parliament has regarding the evaluation of the implementation of
Union policies, the proceedings of the standing committee on operational
co-operation and the evaluation of the activities of Eurojust and Europol.
Regarding judicial control, the formal abolition of the pillar would
remove most of the remaining pillar specic restrictions on the role of the
Court of Justice. There is only one exception: According to Article III377,
the Courts jurisdiction would still not extend to operations carried out by
the police or other national law enforcement services, nor to measures under
national law regarding the maintenance of law and order and the safeguard-
ing of internal security. But this limitation would only apply to current
third and not rst pillar elds.
III. DOES THE NON-RATIFICATION OF THE CONSTITUTIONAL
TREATY MEAN A CRISIS FOR THE AFSJ?
The above survey of the main reforms brought by the Constitutional
Treaty to the AFSJ policy-making domain shows that these would be of a
substantial nature indeed. Taken together, in particular the formal abolition
of the three pillars, the incorporation of the Charter of Fundamental Rights,
the widening of the policy-making objectives and the extension of majority
voting and parliamentary control would clearly bring added value in respect
of the existing framework, both as regards policy-making capacity guarantees
and for citizens in terms of protection of their rights and democratic control.
But can one deduce from that that the non-ratication of the Constitutional
Treaty means a crisis for the further development of the AFSJ?
According to the lexical database of the Cognitive Science Laboratory
of Princeton University, a crisis denotes an unstable situation of extreme
danger or difculty or a a crucial stage or turning point in the course of
something.
5
There is currently little indication of the AFSJ nding itself in
an unstable situation, let alone in extreme danger. On the basis of the
current Treaty provisions, the EU has been able to implement much, though
5
WordNet Database (http://wordnet.princeton.edu/perl/webwn).
318
not all, of the objectives which the Tampere European Council of October
1999 had set for the rst ve years of the AFSJ which have later become
known as the Tampere Programme. The Hague Programme, which was
adopted in November 2004,
6
has carried the uncompleted Tampere objec-
tives over into a second ve year programme period until 2010, adding
further objectives, although on a more modest scale than its predecessor. It is
true that some weaknesses have become apparent in the decision-making on
and implementation of AFSJ related measureson which we will come back
belowbut on the whole, there is much continuity as regards the objec-
tives and the pace of development of the individual policy-making elds
of the AFSJ. None of the EU institutions or experts writing on the AFSJ is
currently suggesting that the whole AFSJ projector even only the Hague
Programmerisks failure or disintegration because of the non-ratication
of the Constitutional Treaty.
The picture is a slightly different one if one understands the term cri-
sis as a crucial stage or turning point. There can be little doubt that the
ratication of the Constitutional Treaty would provide the construction of
the AFSJ with more impetus, with enhanced decision-making capacity and
(through the additional guarantees offered to citizens in terms of protection
of their rights and democratic control) legitimacy. In 1999 the entry into
force of the Treaty of Amsterdam with its wide range of reforms for the
domain in question, in combination with the agreement on the Tampere
objectives, generated an unprecedented pace of development of policy-mak-
ing in the elds of justice and home affairs. History never exactly repeats
itself, but some of the post Amsterdam dynamics (which was unfortunately
much helped by the 9/11 terrorist attacks) could also be generated by the
Constitutional Treaty. If one accepts that, then one can indeed speak about
a crucial stage or turning point in the current situation in the sense that
the constitutional crisis might be depriving the Union of the potential for
a new important stage of development of the AFSJ with enhanced decision-
making capabilities and legitimacy.
Yet one should not overestimate the positive impact the Constitutional
Treaty would have. After all, as indicated briey above, the substantial
reforms of the Treaty are riddled by numerous exceptions, restrictions and
blockage possibilities in the decision-making rules. One cannot take it for
granted, for instance, thathaving regard inter alia to the British and Irish
positionsthe necessary unanimity could be reached in the Council in the
6
EU Council document no. 16054/04 of Dec. 13, 2004.
319
foreseeable future on establishing a European Public Prosecutors Ofce.
Having regard to the persisting signicant differences between national pri-
orities, concepts and legal traditions in the public order and security domain,
one cannot take it for granted that the Member States could actually muster
the necessary common political will to fully exploit the opportunities pro-
vided by the Constitutional Treaty. There is also the question whether these
would be used by all Member States or only by some. The Treaty essentially
maintains the current opt-outs which were granted to Denmark, Ireland
and the United Kingdom by the Amsterdam Treaty.
7
This means already
some differentiation within the AFSJ, but more could follow. Some Member
States might be willing to go further than others in respect of, for instance,
the establishment of the European Public Prosecutors Ofce, criminal law
harmonisation or the integrated management of external borders. In that
case they could well be temptedand indeed regard it as the only alterna-
tive open to themto use the enhanced cooperation possibilities under
Articles I44 and III416 to III424 to go ahead in the respective areas.
8

Further differentiation could well prove the price to be paid for attempting
to make full use of the potential of the Constitutional Treaty.
Depending on a range of political factors difcult to predict, the Con-
stitutional Treaty could therefore turn out to be more or less of a turning
point for the AFSJand in this sense its non-ratication is more or less of a
crisis in missing this opportunity. However, as already emphasised, there
are a range of reforms in the Treaty which could make a difference for the
further development of the AFSJ, and some of them would address major
shortcomings of current EU policy-making on matters of the AFSJ.
In its Communication to the Council and the European Parliament
on the implementation of the Hague Programme of June 28, 2006,
9
the
Commission has identied those mainly as problems of the decision-making
process. As regards the elds of police and judicial co-operation in criminal
matters the Commission points in particular to the following challenges:
the specic legislative instruments in the third pillar (Common Pos-
itions, Framework Decisions, Decisions and Conventions under Title
VI EU) that complicate implementation;
7
Protocols 18, 19 and 20 annexed to the Constitutional Treaty.
8
It should be recalled that at least one third of the Member States must participate in such
an initiative and that a host of other conditions would need to be met.
9
COM(2006) 331 of June 28, 2006.
320
the insufcient powers for the European Parliament in the legislative
process;
the use of unanimity, often leading to agreements on the lowest com-
mon denominator basis;
the shared right of initiative of each of the (then) 25 Member States,
which does not favour what the Commission calls a true European
dimension, nor the accountability of the Member States legislative
initiatives, which are not submitted to ex ante impact assessment;
the limited role of the Court of Justice (exclusion of infringement pro-
cedures and preliminary rulings subject to national opt-inconsented
to at that time by 14 out 25 Member Statesand possibility limited to
the highest national jurisdictions);
the lack of formal infringement procedures to ensure proper transpos-
ition and implementation.
All this is contributing, according to the Commission, to major prob-
lems in moving forward in elds like mutual recognition in criminal matters
and police cooperation, for which the Commission gives the examples of the
problems of agreeing on the European Evidence Warrant, on basic minimum
standards for procedural rights, on condemning in the same way offences of
racism and xenophobia throughout the Union and on authorising further
cross-border investigation and prosecution.
As regards the communitarised elds of the rst pillar (Title IV EC),
the Commission has identied the unanimity rule for decisions on legal migra-
tion and family law and the remaining restrictions on the role of the Court of
Justice by virtue of Article 68 EC as major problems.
10
The Commissions analysis was largely endorsed by the Finnish Presidency
of the second half of 2006. In a note for the Informal JHA Ministerial Meeting
in Tampere of September 2022, 2006 published August 30, 2006, the Presi-
dency listed the main decits under the three different headings of decient
efciency (mainly due to the unanimity requirement), decient implementa-
tion (mainly due to the lower quality of legal instruments and the absence of
effective infringement proceedings) and decient legitimacy (mainly because
10
Ibid., at 1213.
321
of the limited involvement of the European Parliament and reduced possibili-
ties of the Court to provide judicial protection to citizens).
11
While avoiding the term crisis, both the Finnish Presidency and the
Commission used rather strong language suggesting a pressing need for action
such as the urgent need to nd a new impetus (Commission), recurrent dif-
culties leading to numerous blockages (Commission) and a variety of sub-
stantial deciencies which must be addressed (Presidency).
12
The Presidency
and the Commission also largely agreed on how to address these problems:
By using the so-called bridging clauses of the existing Treaties which would
allow in fact for a partial implementation of the reforms provided for in the
Constitutional Treaty.
IV. THE PROPOSED USE OF THE BRIDGING CLAUSES
1. THE COMMISSIONS PROPOSALS
In its June 2006 Communication, the Commission proposed to use Arti-
cle 42 EC to transfer matters currently falling under the third pillar (Title VI
EU) to the rst (Community) pillar (Title IV EC) and to use Article 67(2),
second indent, EC to bring legal migration under the EC co-decision procedure
and to extend the powers of the Court of Justice. In taking this initiative, the
Commission was encouraged not only by positive signals from the incoming
Finnish Presidency but also by a proposal of the French Government of April 20,
2006
13
to activate the Article 42 passerelle to improve the EUs decision-mak-
ing capacity regarding the AFSJ as well as by a European Parliament Resolution
14
of June 14 advocating the same step. Article 42 EC provides that
The Council, acting unanimously on the initiative of the Commission
or a Member State, and after consulting the European Parliament, may
11
Finnish Ministry of Justice and Ministry of Interior: Improvement of decision-making
in justice and home affairs, note for the Informal JHA Ministerial Meeting in Tampere,
Helsinki, Aug. 30, 2006, 12.
12
Ibid, and COM(2006) 331 of June 28, 2006, 3 and 12.
13
Letter of French Minister for European Affairs Catherine Colonna and French
Foreign Minister Ph. Douste-Blazy to Austrian Foreign Minister U. Plassnik of
April 20 and attached Contribution franaise sur les amliorations institution-
nelles partir du cadre des traits existants, internet resource at rpfrance.eu/article.
php3?id_article=437#sommaire_2.
14
European Parliament resolution on the next steps for the period of reection and analysis on the
Future of Europe, EP document no. P6_TA-PROV(2006)0263, June 14, 2006, para. 3.
322
decide that action in areas referred to in Article 29 [police and judicial
cooperation in criminal matters] shall fall under Title IV of the Treaty
establishing the European Community, and at the same time determine
the relevant voting conditions relating to it. It shall recommend the
Member States to adopt that decision in accordance with their respect-
ive constitutional requirements.
This bridging clause (or passerelle) allows for no less than a change of
substantive Treaty provisions without the need of a formal treaty revision Inter-
governmental Conference. According to the Commissions proposal, the current
third pillar elds would be brought under the co-decision procedurethe
most communitarian of the EU legislative procedureswith full co-decision
by the European Parliament and qualied majority voting in the Council.
15
This
would in fact amount to a full communitarisation of the third pillar, thereby
putting an end to the articial pillar divide of the AFSJ and implementing one
of the most substantial reforms of the Constitutional Treaty.
Article 67(2), second indent, EC provides that after the end of the tran-
sitional period (and it ended in 2004),
the Council, acting unanimously after consulting the European Parlia-
ment, shall take a decision with a view to providing for all or parts of
the areas covered by this title [asylum, immigration, border controls and
judicial cooperation in civil matters] to be governed by the procedure
referred to in Article 251 [co-decision procedure] and adapting the pro-
visions relating to the powers of the Court of Justice.
This other bridging clause allows to apply the co-decision procedure
with its full legislative co-decision by the European Parliament andas
proposed by the Commissionqualied majority voting in the Council to
elds so far not subject to this procedure. It is to note that the Commission
has only proposed to use this bridge for legal migration and not judicial
cooperation in civil matters where such a step would be much more contro-
versial because of the political and cultural sensitivity of many matters (such
as the question of the recognition of homosexual marriages).
As far as the adaptation of the powers of the Court of Justice is con-
cerned, the Commission has proposedin a separate Communication of
June 28, 2006to use Article 67(2), second indent to align the powers of
the Court with respect to the elds of Title IV EC with those it otherwise
15
COM(2006) 346 of June 28, 2006, at 1314.
323
enjoys under the EC Treaty. This would mean, rstly, to remove the restric-
tion currently provided for by Article 68(1) EC which prohibits national
courts other than those of nal instance from applying to the Court for
preliminary rulings. It would mean, secondly, to remove the restriction cur-
rently provided for by Article 68(2) EC which excludes from the jurisdic-
tion of the Court any measure relating to the maintenance of law and order
and the safeguarding of internal security. It would mean, thirdly, to remove
the restriction currently provided for by Article 68(3) that applications for
preliminary rulings by the Court must not apply to judgments of courts or
tribunals of the Member States which have become res judicata.
16
This proposed use of the second bridging clause would also imple-
ment parts of the Constitutional Treaty reforms, both by bringing all aspects
of immigrationincluding legal immigrationunder the co-decision pro-
cedure and by removing the existing restrictions on the role of the Court of
Justice in the rst pillar areas. Taken together the use of the two passerelles
therefore constitutes a substantial reform package, which goes beyond a mere
adjustment of decision-making procedures.
In some respects the proposed step would actually even go beyond the
reforms of the Constitutional Treaty:
(a) If the current third pillar elds would be communitarized through
the use of the Article 42 EU bridging clause, the powers of the Court
of Justice as dened in the EC Treaty would automatically apply also to
these newly communitarized elds. This results in the inapplicability
of the abovementioned exception provided for by Article III377 of the
Constitutional Treaty, according to which the Courts jurisdiction would
still not extend to operations carried out by the police or other national
law enforcement services and to measures under national law regard-
ing the maintenance of law and order and the safeguarding of internal
security. In other words, the Commissions proposal clearly goes further
in extending the Courts powers than the Constitutional Treaty.
(b) As mentioned above, the Constitutional Treaty provides that the Com-
mission would still have to share its right of initiative in the areas of
police and judicial co-operation in criminal matters with the Member
States, although these would only be able to introduce collective initia-
tives with at least one quarter of their total number (Article III264). A
pure and simple application of co-decision to these elds would entail
16
COM(2006) 346 of June 28, 2006, at 1415.
324
an exclusive right of initiative for the Commission, which amounts to a
substantial strengthening of its position.
(c) The proposed passage to co-decision with qualied majority voting in
the Council for matters currently under Title VI EU would remove
national veto possibilities in the elds of substantive and procedural
criminal law without the safeguard provided for in the Constitutional
Treaty by the so-called emergency brake of Articles III270(3) and
III271(3). The proposals therefore go further in terms of the abolition
of national veto possibilities.
(d) As mentioned earlier, Article III267(5) provides that Member States
will fully retain their right to determine volumes of admission of
third-country nationals for work purposes, whether employed or self-
employed. A communitarisation of legal immigration with co-decision
by the European Parliament and qualied majority voting could argu-
ably undermine this right.
The Commission has explicitly stated that its proposals should not in
any way pre-empt the Constitutional Treaty.
17
But on the other hand it
took the absence of the entry into force of the Treaty as the point of depar-
ture for its proposals,
18
so that they clearly appear as a sort of compensatory
measure for the nonor at least much delayed ratication of the Treaty.
2. POLITICAL REACTIONS
In the aforementioned note for the Informal JHA Ministerial Meeting
in September 2006 the Finnish Presidency broadly endorsed the Commis-
sions proposals and came out strongly in favour of a transfer of all matters
under the current third pillar to the rst as well as the adoption of all
future measures under the co-decision procedure with qualied majority
voting. However, being aware of the reservations of some Member States
(see below) the Finnish Presidency conceded that consideration should be
given to requiring unanimity in the Council, after consultation of the Euro-
pean Parliament, for particularly sensitive issues, and it also pointed to the
possibility of agreeing on a transitional period (of for example ve years)
for implementing the move towards co-decision. The Presidency note also
backed the use of the second bridging clause regarding legal migration and
17
Ibid., at 3.
18
Ibid., at 1.
325
the extension of the powers of the Court of Justice, this, however, with a
more guarded language.
19
The Commissions proposals have met with resistance right from the
outset. The German Minister for Europe, Gnter Gloser, rejected almost
immediately the suggested use of the bridging clauses, saying that such a
move amounted to cherry picking parts of the EUs Constitutional Treaty,
which Germany intended to revive when it takes over the EUs Presidency
in 2008. There were also negative signals from Denmark, Holland, Ireland
and Sweden.
20
The British Government, traditionally a staunch defender of
national veto possibilities in the third pillar elds, indicated a more exible
attitude, mainly because of concerns about the effectiveness of EU action in
the ght against terrorism. Yet in a report on Developments in the European
Union adopted on July 19, the Foreign Affairs Committee of the British
House of Commons came out sharply against the Commissions proposals,
partly because of concerns about the undermining of British veto possibili-
ties. Taking generally the view that the Constitutional Treaty was comatose
and on life-support and that the British Government should encourage its
European counterparts to face up to this reality and to abandon the Treaty
as a package, the Committee also stated more specically with regard to
the AFSJ that it would oppose attempts to use the bridging clauses in the
current treaties to introduce core objectives of the constitutional Treaty in
the eld of justice and home affairs.
21
In the run-up to the already mentioned Informal Ministerial Meeting
in Tampere of September 2006, both the German and the Irish position
against the Commissions proposals hardened in spite of the strong backing
by the Finnish Presidency, with the British Government also indicating a
more sceptical attitude. The German Government took the view that, by
implementing elements of the Constitutional Treaty in a piecemeal way,
the use of the passerelle clauses would undermine any efforts to revive the
Constitutional Treaty as a wholea priority objective for the upcoming
German Presidency. It also became clear, though, that both the German and
19
Finnish Ministry of Justice and Ministry of Interior: Improvement of decision-making
in justice and home affairs, note for the Informal JHA Ministerial Meeting in Tampere,
Helsinki, Aug. 30, 2006, at 23.
20
EurActiv: Barroso wants Member States to give up vetoes on justice and security, June
29, 2006.
21
House of Commons Foreign Affairs Committee: Developments in the European Union,
Sixth Report of Session 200506, HC 768, The Stationary Ofce, July 26, 2006, at 2
and 18.
326
the Irish Government had major concerns about giving up national veto
possibilities in the sensitive eld of criminal justice cooperation, especially as
the proposed use of the bridging clauses for the AFSJ would not give them
what they had obtained in return in the Constitutional Treaty for accepting
such a move.
22
In these circumstances the EU ministers of justice and of the
interior were, unsurprisingly, unable to reach a consensus on the Commis-
sions proposals at the already mentioned Informal Meeting in Tampere in
September 2006. At the JHA Council of October 5, 2006 the Finnish Presi-
dency announced that it would seek to bring the matter on the agenda of the
December 2006 European Council.
23
But with the incoming Presidencies of
both Germany and Portugal rmly committing themselves to a re-launching
the Constitutional Treaty project during 2007
24
the bridging clause option
was at least temporarily put on the backburner at the European Council
meeting of December 1415. In the end the Finnish Presidency got only
some rather vague reference to the need for the framework of the AFSJ of
being genuinely strengthened in order to meet present challenges and an
afrmation of the principles acknowledged in the context of the Unions
reform process.
25
3. THE PROS AND CONS OF THE BRIDGING CLAUSE PROPOSALS
Although not ofcially presented as such, the Commission proposals
clearly constitute an attempt to implement some of the substantial reforms
of the Constitutional Treaty through the backdoor of the existing passerelle
clauses. The advantages are easy enough to identify:
(1) Without having to wait for the clarication of the uncertain future of the
Constitutional Treaty, the Union could implement substantial reforms
regarding the AFSJ in terms of decision-making capacity and democratic
and judicial control.
(2) These reforms would not require a new Intergovernmental Conference
and a new Treaty, avoiding the risks of any re-negotiation and leaving
the Constitutional Treaty and the option of its full ratication and entry
into force untouched.
22
Euobserver.com: Berlin and Dublin prepare for EU justice veto ght, Sept. 20, 2006.
23
Finnish Ministry of Interior: Reinforcing the control of the EU southern external mari-
time borders, Press release of Oct. 5, 2006.
24
Financial Times: Fresh push to end EU constitution deadlock, Dec. 6, 2006.
25
See para. 20 of the Presidency Conclusions, EU Council document no. 16879/06 of
Dec. 15, 2006.
327
(3) Bringing police and judicial cooperation measures currently based on
Title VI EU under the rst pillar co-decision procedure with qualied
majority voting would reduce the risks of blockages and least common
denominator agreements in the Council, thereby increasing the Unions
decision-making capacity. The same would apply to the eld of legal
migration.
(4) The communitarization of the current Title VI EU elds would gener-
alise the use of EC legal instruments for the whole AFSJ, thereby making
a substantial contribution to legal coherence, quality and transparency
of the AFSJ.
(5) Passage to the co-decision procedure would increase democratic control
and legitimacy of EU measures in the current Title VI EU elds.
(6) By giving an exclusive right of initiative to the Commission, the exten-
sion of the co-decision procedure to the current Title VI EU elds
would put an end to initiatives from Member States which are primar-
ily inspired by national interests and not subjectas the Commission
initiativesto ex ante impact assessments.
(7) The communitarization would remove the current restrictions on the
role of the Court of Justice in the current Title VI EU elds, strengthen-
ing both judicial guarantees for individuals and judicial control of full
implementation of EU measures by Member States.
(8) The removal of restrictions on the role of the Court of Justice in the
rst pillar domain (Title IV EC), in particular of the limitation
of applications under the preliminary rulings procedures to national
courts of last instance and of the restrictions on the role of the Court as
regards measures relating to maintenance of law and order and internal
security, would contribute to more effective judicial remedies being
available to individuals
26
(who might not have the means to make their
case reach a national court of last instance), to a more comprehensive
judicial control of EU action in elds of particular sensitivity to civil
liberties and fundamental rights
27
and to the uniform interpretation of
26
In its Communication the Commission elaborated at length on the importance of lower
courts access to the preliminary rulings procedures for the judicial protection of indi-
viduals. See COM(2006) 346 of June 28, 2006, at 56.
27
The Commission has rightly emphasized that on the basis of current Art. 62(1) EC any
judicial review of, for instance, Community rules on controls on persons at internal
328
AFSJ law (as the preliminary rulings procedure has been central to the
emergence and guarantee of a coherent EC legal order).
These are surely substantial advantages, and in the aforementioned doc-
uments both the Commission and the Finnish Presidency have not failed to
bring them out very clearly. Yet there also several more problematic aspects
which have not been taken in the communications setting out the Commis-
sions proposals:
(1) The rst point to make is a fairly obvious one, but nevertheless import-
ant: The use of the bridging clauses would only put a few of the reforms
of the Constitutional Treaty into effect, leaving much of the substantive
reforms lingering with the fate of the Treaty itself. Rather than dealing
with substantive issues (such as EU objectives and competences in elds
like immigration, police and judicial cooperation in criminal matters)
this partial reform would largely focus on procedural issues, reecting
once more the EUs increasingly problematic approach of giving prefer-
ence to procedures (and institutions) over substance. There is a curious
basic assumption in both the Commission and the Finnish Presidency
documents that procedural reforms on their own can guarantee better
policies. Evidence of the Community method producing better poli-
cies in the communitarized domains of the AFSJ is at best patchy, and
there have been cases whereadmittedly in special circumstancesalso
the third pillar has produced substantial results (such as the European
Arrest Warrant).
(2) There could indeed be a risk of the implementation of parts of the Con-
stitutional Treaty through other meansas the use of the passerelles
would doweakening the case for its full ratication and entry force.
If it would appear that in the case of the AFSJas perhaps also in other
eldsimportant elements of the Treaty could be put into effect with-
out its ratication, some governments could be tempted to argue that
this is a further proof that the EU can work and further develop without
the Treaty, making them even more reluctant to take the political risks of
a new effort to put the Treaty into effect. In this sense the German Gov-
ernment clearly has a point when expressing concern about cherry pick-
ing undermining efforts to revive the Constitutional Treaty, although
these concernsas pointed out aboveseem also to be motivated by
the specic interests of the upcoming German Presidency.
borders, would be excluded and that such a restriction of the Courts jurisdiction over
public-policy measures is inconsistent with other parts of the Treaty. Ibid, at 67.
329
(3) In the current political context it seems most unlikely that if the bridg-
ing clauses would indeed be used if consensus could be reached amongst
the Member States to communitarizeas suggested by the Commis-
sionall of the Title VI EU elds and at once. As the aforementioned
note of the Finnish Presidency of August 2006 has indicated, political
compromising might require exceptions for certain matters as well as
potentially a transitional period. It can also not be excluded that one
or more Member States might wish to negotiate an opt-out arrange-
ment possibility as their price for agreeing to qualied majority voting
in the newly communitarized elds. This would not only substantially
reduce some of the advantages identied above but also come at a hefty
price in terms of increased complexity and reduced transparencyof
which the EU has already more than enough.
(4) Some national governmentsand the German and Irish are examples
for thatmight justiably take the view that the proposed passage to co-
decision with qualied majority voting without some of the safeguards
offered to national positions in the Constitutional Treaty (such as the
so-called emergency brake) violates the carefully balanced strategic
deal reached in the Constitutional Treaty with regard to such sensitive
matters as criminal justice cooperation. This is likely to stiffen their
resistance against the proposals as a whole and their insistence on the
above-mentioned exceptions if a deal is reached at all.
(5) If implemented, the proposals of the Commission would further
strengthen EU decision-making capacity without having as a counter-
balancing part the legal codication of the Charter of fundamental rights
foreseen by the Constitutional Treaty, whose importancebecause of
the civil liberties implications of EU action in the JHA domainis
going to increase with every further extension of action in the AFSJ
context. It seems curious that in its proposals
28
the Commission refers
repeatedly to the importance of human rights protection in the context
of the AFSJ without ever mentioning the Charter.
(6) The increase of the powers of the European Parliament through the
extension of co-decision would not go hand in hand with the strength-
ening of the role of the national parliaments (subsidiarity control and
enhanced information rights) provided for by the Constitutional
Treaty. This could limit national parliamentary control of positions
28
Especially in COM(2006) 346 of June 28, 2006.
330
adopted by national governments regarding the AFSJ and increase
concerns of national parliaments about potential centralisation ten-
dencies at EU level.
(7) The fact that the proposals would give the Commission an exclusive
right of initiative and that in this respect, as well as in the other above
mentioned respects, they would go beyond the Constitutional Treaty
reforms could increase the perception of a power-hungry and centralis-
ing EU with the Commission as its driving force.
29
In the current polit-
ical climate and after the two failed referenda, the EU might rather wish
to avoid that.
(8) The use of the bridging clauses would inevitably fuel the perception of
a rather blatant attempt being made at introducing parts of the Constitu-
tional Treaty through the backdoor in spite of its rejection in the French
and Dutch referenda.
30
While advocates of the proposals have a perfectly
valid point in arguing that going ahead with the proposals would only
mean using existing treaty provisions which might well have been used
even without the Constitutional Treaty ever having been agreed upon, the
uncomfortable fact remains that what the proposals are aimed at is actually
part of a Treaty rejected in a perfectly democratic process in two Mem-
ber States. Apart from the fact that the French and Dutch Governments
would have to nd ways and means to placate those in their countries who
had opposed the Treaty in the referenda campaign, it is a more general
problem for the EU, as it will hardly add to its credibility if a political
discourse on the need for full ratication of the Constitutional Treaty is
accompanied by attempts to introduce parts of it through the backdoor.
After all the evidence of serious communication decits which the
EU has accumulated over the last years, it disappoints to see that in the
Communications containing the bridging clause proposals the Commis-
sion has not addressed any of these problems, be it only to refute them in
advance. Rather than providing a comprehensive impact assessment, the
Communications read like a dose of good old integrationism to be sold to
governments, parliaments and publics without admitting to any potential
problems.
29
It does not help that in a remarkable case of self-assertion the Commission presents itself
without any further explanation or evidence as the sole guarantor of the true European
dimension of legislative initiatives. Ibid., at 12 and 14.
30
This is already the case. See for instance, P. C. Glover, Is the EU Set on Overriding the
Democratic Will?, WorldPoliticsWatch, Oct.2, 2006.
331
V. CONCLUSIONS
For the major integration project of the AFSJ, the EUs constitutional
crisis means most likely a loss of impetus and development opportunities,
but not a crisis in the sense of a risk of complete stagnation or even dis-
integration. The Commissions proposals on using the bridging clauses of
Articles 42 EU and 67(2) EC are based on an overall sound assessment of
current difculties in the EUs decision-making capacityespecially in the
elds of police cooperation and judicial cooperation in criminal mattersas
well as of the decits in terms of control by the European Parliament and
the Court of Justice. The proposed communitarization of the third pillar
elds of police and judicial cooperation in criminal matters on the basis of
co-decision with qualied majority voting in the Council would enhance
the Unions decision-making capacity and the legal coherence of the AFSJ,
implementingand in part going even beyondthe substantial reforms
provided for by the Constitutional Treaty in this respect. The removal of
the remaining restrictions on the role of the Court, which are largely in line
with the Constitutional Treaty, would enhance both the judicial protection
of individuals and the judicial control of effective implementation by the
Member States.
Yet a use of the passerelle provisions will carry the stigma of putting
into effect some of the Constitutional Treaty reforms through the backdoor
of opaque treaty provisions, little known beyond the circles of decision-mak-
ers and other experts. It would also break up the compromise package on the
AFSJ reached in the Constitutional Treaty, having an almost exclusive focus
on procedural reforms, contributing to imbalances between decision-making
powers and the protection of rights through the Charter, between powers
of the European and the national parliaments and between majority voting
and safeguards for national positions in sensitive areas. Further risks include
the reduced incentives for national governments to stick to the objective of
a full implementation of the Constitutional Treaty as well as a fuelling of the
image of a power-hungry and centralising EU.
The substantial advantages of a use of the bridging clauses for the
AFSJ as one response to the EUs constitutional crisis must therefore be
measured against substantial disadvantages and risks. Whether this backdoor
option is worth accepting the disadvantages and risks is ultimately a question
of political judgement. It may be easier to answer this question if and after
the main door of a full ratication and entry into force of the Constitutional
Treaty is denitely closedwhich is not yet the case.
THE FUTURE OF THE EU CHARTER OF
FUNDAMENTAL RIGHTS
Eve C. Landau
I. INTRODUCTION
What can be done to activate the adoption of the Constitution, to amend
and improve the text, and more particularly, to save the Charter of Fundamen-
tal Rights
1
from oblivion? Some of the answers to these questions pertain to
extra-legal considerations, to the political will of the Member States and the
peoples of Europe. There may be fewer objections to the adoption of a Charter
of Fundamental Rights independently of the adoption of a Constitution. The
adoption of the Constitution involves political considerations touching upon
the sovereignty of the Member States, whereas the Charter targets human
rights with obligations imposed mainly on the EU institutions and not on the
States. Article 51 of the Charter expressly and clearly states that:
The provisions of this Charter are addressed to the Institutions and
bodies of the Union with due regard to the principle of subsidiarity and
1
On the protection of fundamental rights in the EU, see a.o., Ph. Alston (ed.), The
EU and Human Rights, Oxford University Press, 1999; G. de Burca, The Drafting
of the European Union Charter of Fundamental Rights, 26 European Law Review
(2001),126138; Lord Goldsmith, The Charter of Human RightsA Brake Not an
Accelerator, 5 European Human Rights Law Review (2004), 473; K. Lenaerts, Fun-
damental Rights in the European Union, 25 European Law Review (2000), 575600;
N. Neuwahl and A. Rosas (eds.), The EU and Human Rights. Kluwer Law International,
The Hague 1995; P. Pescatore, The Context and Signicance of Fundamental Rights in
the Law of the European Communities, 2 Human Rights Law Journal (1981) 295; UK
House of Lords, EU Charter of Fundamental Rights. 8
th
Report by Select Committee
on the European Union, May 16, 2000.
334
to 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.
EU States have fewer reasons to object to this Bill of Rights, as no lim-
itation of their sovereignty is directly involved. If the Charter is put to the
vote of the peoples of Europe they truly have no reason to reject a Bill of
Rights that champions their interests. It is therefore the aim of this study
to advocate the divorce of the adoption of the Charter as a legally binding
source of law from the destiny of the Constitution. The Charter has a future
as an independent Bill of Rights regardless as to whether the Constitution
is adopted or not.
No future can be discussed without the past that preceded it. This chap-
ter will thus rst deal with the history of the relationship between the EC/
EU and the protection of Human Rights. It will show how the absence of
a legal text sparked the creativity of the Community Court in lling gaps.
The evolution of a Community Common Law of Human Rights, inspired
by general principles of law, can be observed, in the development of the
case-law of the Court of Justice of the European Community, the European
Court of Justice (ECJ).
Secondly, the relation to the European Convention on Human Rights
and Fundamental Freedoms, 1950 (ECHR) will be focused upon. The
option of accession of the European Union (the EU) as a party to the ECHR,
in addition to the accession of all its 25 Member States, will be discussed.
The ECJs negative Opinion 2/94, in 1994
2
rejecting the option of acces-
sion, will be reviewed in the light of the new approach of the EU Constitu-
tion, calling for such accession (Article 19 (II) of the Constitution)). The
question that arises is, now that the EU has a much more modern and up
to date Charter of its own is accession to the old ECHR still necessary? The
issue of accession comprises two elements: (1) a substantive component of
reception of the corpus juris, namely the adoption of the ECHR catalogue of
civil and political rights on the one hand, and (2) a procedural component,
which entails the submission of the EU institutions, including the ECJ, to
the scrutiny and judicial review by the European Court of Human Rights
(the Strasbourg Court) on the other.
Thirdly, the main part of the chapter will discuss the provisions of the
Charter, its scope and application. It will address its background, its purpose
2
Opinion 2/94 on Accession by the Community to the ECHR, [1996] ECR I1759.
335
THE FUTURE OF THE EU CHARTER OF FUNDAMENTAL RIGHTS
and its binding force upon the institutions of the EU. The following questions
will also be aired: Is the Charter a mere compilation of existing rights or is
there a minting of new rights? In what ways does the Charter overlap with the
ECHR, and to what extent does the Charter provide a wider scope of protec-
tion? Does the Charter purport to be exhaustive of all civil, political, economic,
social and educational rights? What is the legal distinction between rights and
principles? What are the desirable amendments to the text?
Fourthly, enforcement of the Charter within the Union and the role of
the European Court of Justice will be discussed. Should the ECJ be the nal
arbiter in protecting human rights rather than the Strasbourg Court?
Finally, in conclusion, certain unresolved issues will be singled out for reec-
tion. The prospects of the entry into force of the EU Charter of Fundamental
Rights independently from that of the EU Constitution will be addressed. In
case the Charter is not adopted as a legally binding instrument, is a gradual judi-
cial incorporation of the Charter into the EU legal order a realistic option?
II. THE EU AND THE PROTECTION OF HUMAN RIGHTS
The Treaties creating the European Community did not make any ref-
erence to human rights. The short and middle-term objectives and aims of
the Community were economic rather than political and this is the reason,
according to a former Judge of the ECJ, Pierre Pescatore, why the treaties
signed in Rome [ . . . ] are silent on the subject.
3
In the absence of any formal, coherent and comprehensive provisions
in written Community Law, the ECJ assembled from various sources of law
elements for the development of principles of fundamental rights in the
context of the Community.
It is the Single European Act, 1986,
4
dealing with the transformation of
relations among the Member States into a European Union that expressly
refers for the rst time in its Preamble to the recognition of human rights,
as the Contracting Parties are
[d]etermined to work together to promote democracy on the basis
of the fundamental rights recognized in the constitutions and laws of the
3
P. Pescatore, The Context and Signicance of Fundamental Rights in the Law of the
European Communities, 2 Human Rights Law Journal (1981), 295.
4
Bulletin of the European Communities, Suppl. 2/86, 5; OJ 1986, L 169/87.
336
Member States, in the Convention for the Protection of Human Rights and
Fundamental Freedoms and the European Social Charter, notably freedom,
equality and social justice.
The insertion of this proclamation substantiates Pescatores explanation
of its absence from the basic original Treaties of the 1950s, as the Single
European Act adds a framework for European Political Cooperation and the
Community is set to outgrow its economic mindset.
The EEC Treaty, 1957, which dealt with social and economic matters,
did contain scattered provisions relating to the prohibition of discrimina-
tion on the grounds of nationality between nationals of the Member States
(Article 7) and on the grounds of sex regarding remuneration for equal work
(Article 119), as well as rules concerning freedom of movement of workers
(Articles 48 et seq.), the right of establishment (Articles 52 et seq.) and indi-
rectly the right to property (Article 222). In addition, certain standards and
criteria set by the Treaty, such as references to what is fair or justied
(Articles 36, 39, 48, 56 and others), opened the way to the transposition into
Community Law of concepts of proportionality and legitimate expecta-
tions known in national constitutional laws.
The skeleton of rights modestly specied in these isolated Treaty pro-
visions has acquired esh and blood through Community legislation and
through the consistent and coherent case law of the ECJ. The Court for the
rst time in 1969 approached the issue of fundamental human rights, viz.
the right to dignity, in Stauder v. Ulm
5
, where it referred to fundamental
human rights enshrined in the general principles of Community law and
protected by the Court.
In 1970 the Court had to deal with the complex case of Internationale
Handelsgesellschaft in which the principle of proportionality, inspired by the
German principle of Verhaltissmssigkeit, was debated in the context of
Community Law. The Court ruled as follows:
. . . respect for fundamental rights forms an integral part of the gen-
eral principles of law of which the Court of Justice ensures respect.
6
The Court repeated its recognition of fundamental rights in a line of
cases involving the protection of economic and social rights, such as the
right to property and the freedom to conduct a business. In the case of
5
Case 29/69, [1969] ECR 419.
6
Case 11/70, [1970] ECR 1125.
337
Nold v. Commission (1974)
7
, the Court stated that besides the constitutions
of Member States, international conventions for the protection of human
rights can supply guidelines which would be followed within the framework
of Community law. These two sources of general principles of lawconsti-
tutions and international conventions, in particular the European Conven-
tion of Human Rights, 1950have been reconrmed in the case of Hauer
v. Land Rheinland Pfalz, (1979) in which the Court consolidated the con-
cept of the inherent limitations of fundamental rights and found that there
was in fact no violation of fundamental rights.
8
In the domain of freedom of movement of persons, one of the leading
cases is that of Rutili (1975). In this case, which was decided a few months
after France had ratied the European Convention on Human Rights, one
nds express reference to certain provisions in the ECHR:
Limitations placed on the powers of Member States in respect of
control of aliens are a specic manifestation of the more general
principle, enshrined in [ . . . ] the Convention for the Protection
of Human Rights and Fundamental Freedoms and in Protocol
No. 4 . . . which provide, in identical terms, that no restrictions in
the interest of national security or public safety shall be placed on
the rights secured . . . other than such as are necessary for the pro-
tection of those interests in a democratic society.
9
Not only was the right examined in the light of the ECHR, but the
same criteria for the scope of review were adopted by the ECJ as those that
were elaborated by the Strasbourg Court. Likewise, the same narrow margin
of appreciation was left to national authorities to apply the exception of
public policy and public security formulated in Article 48(3) of the Treaty
of Rome relating to the freedom of movement of workers. The Community
Court ruled:
. . . restriction cannot be imposed on the right of a national of any
Member State to enter the territory of another member State, to stay
there and to move within it unless his presence or conduct consti-
tutes a genuine and sufciently serious threat to public policy.
7
Case 4/73, [1974] ECR 491.
8
Case 44/79, [1979] ECR 3727.
9
Case 36/75, [1975] ECR 1219; See also C. Shachor-Landau, The Protection of
Fundamental Rights and Sources of Law in the European Community Jurisprudence,
10 Journal of World Trade Law (1976), 289.
338
Only a genuine and sufciently serious threat to public policy would
justify a limitation of liberty.
In addition, human rights were recognized and applied in the context
of staff actions against the institutions of the Community. Equality of the
sexes was respected in the following leading cases already in the early years
of the Community: SabbatiniBertoni v. European Parliament and Chol-
lait-Baudin v. Commission as early as 1972
10
, as well as Airola v. Commission,
1975
11
Razzouk and Beydoun v. Commission, 1984
12
.
The Court was asked to safeguard the fundamental right of freedom
of religion in another staff case: Prais v. Council, 1976
13
. Although the ECJ
found that there was no discrimination on grounds of religion in this case,
the Court considered itself bound by freedom of religion even in the absence
of a written Community law protecting civil and political rights. The sub-
missions of the plaintiff relied upon the denition of discrimination adopted
by the Court in an earlier case:
Discrimination in substance would consist in treating either simi-
lar situations differently or different situations identically
14
.
The concern of the ECJ with concepts of equality and discrimination,
both direct and indirect, found emphasis in the eld of employment. It is in
this domain that the Court has made a substantial and dynamic contribution.
As we have seen, in the absence of Community written law the norms were
gleaned by the Court from the general principles of law, sources outside the
written law of the Community. This source is a formal source of law expressly
provided for in Article 38 of the Statute of the International Court of Justice.
No such provision is to be found in Article 164 of the Treaty of Rome, now
Article 220, which denes the role of the Community Court. The task of the
Court is to ensure that in the interpretation and application of this Treaty
10
Case 32/71, [1972] ECR 345.
11
Case 21/73, [1975] ECR 221.
12
A.o., Joined Cases 75 and 117/82, [1984] ECR 1509.
13
Case 130/75, [1976] ECR 1589.
14
Case 13/63, Italy v. Commission, [1963] ECR 165 at 178. This denition has been
consistently applied in a number of cases over the years: Discrimination consists solely
in the application of different rules to comparable situations or in the application of
the same rule to different situations. See Case 283/83, Racke v. Hauptzollamt Mainz,
[1984] ECR 3791; Case C342/93, Gillespie v. Northern Health and Social Services
Board, [1996] ECR I475.
339
the law is observed. The Court is entrusted with ensuring the observance
of written as well as of unwritten law. Human rights have become, through
the Courts jurisprudence part of the unwritten Community law, inspired by
international conventions binding on the States, on the one hand, and by the
national constitutions on the other hand.
In the domain of social rights, notably, the principle of equal pay for
equal work for men and women, enshrined in Article 119 of the Treaty of
Rome later amended and replaced by Article 141, the ECJ was inspired i.a.
by ILO Conventions, such as Convention No. 100 on Equal Remunera-
tion, 1951 and by general principles of law. In the third Defrenne v. Sabena,
Case,1978,
15
Advocate General Capotorti said:
First, the respect for fundamental rights is a limitation on all Com-
munity acts: any measure whereby the powers of the Community
institutions are exercised is subject to that limitation and in that
sense the entire structure of the Community is under an obligation
to observe that limitation. Secondly where directly applicable Com-
munity measures exist (by the effect of the Treaties or secondary
legislation) they must be interpreted in a manner which ,accords
with the principle that human rights must be respected.
As far as the rst situation is concerned, the ECJ has in subsequent deci-
sions
16
conrmed Capotortis opinion that Respect for fundamental rights
is [ . . . ] a condition of the lawfulness of Community acts.
In the eld of rights, other than socio economic rights mentioned above,
the ECJ gleaned the solutions from the ECHR. When all Member States
of the Community have become parties to the ECHR, the ECJ merely
received its provisions as part of the Communitys own legal baggage.
Norms binding all the States are also binding on the Community, albeit not
as a formal source of law, but as general principles of Community Law.
In 1977 the European Parliament, the Council and the Commission
made a joint Declaration that they attach prime importance to the protection
of fundamental rights, as derived in particular from the constitutions of the
Member States and the European Convention for the Protection of Human
Rights. They added that they are committed in the exercise of their powers
15
Case 149/77, [1978] ECR 1365.
16
Opinion 2/94, supra, note 2 at p. 1789 and AG Jacobs Opinion C84/95 in the Bosphorus
Case, [1996] ECR I3953 at p. 3972.
340
and in pursuance of the aims of the European Communities to respect these
rights.
17
At a later stage, as of 1986, written binding commitments to the pro-
tection of human rights are to be found in the basic Treaties. The Single
European Act, (1986) mentioned above, the Treaty of Maastricht (1992),
the Treaty of Amsterdam (1997) as well as the Treaty of Nice (2000) con-
tain express references to the observance of fundamental rights. The Treaty
of Nice contained the EU Charter of Fundamental Rights in a Protocol.
Although the Nice Treaty entered into force, the Protocol did not.
The original Article F(2) of the Treaty of Maastricht, reproducing the
idea of the Preamble of the Single European Act, provided that:
The Union shall respect fundamental rights, as guaranteed by the
European Convention for the Protection of Human Rights and
Fundamental freedoms, signed in Rome on 4 November 1950 and
as they result from the constitutional traditions common to the
Member States as general principles of Community Law.
III. ACCESSION TO THE ECHR
As early as the mid-seventies, two schools of thought were emerging.
One school of thought proposed that the Community should develop its
own Bill of Rights. In as much as some of the sovereignty of the Member
States of the Community has been transferred to the Community institu-
tions, individuals in the Community should be protected against violations
of their rights by the institutions of the Community. On 4th February 1976
the Commission published a Report on The Protection of Fundamental
Rights in the European Community. It supported the idea of elaborating
a catalogue of fundamental rights for the Community and held that in the
meantime, the protection awarded by evolution of the case-law of the Court
and its recognition of human rights was satisfactory enough.
18
The other school of thought advocated the accession of the EC to the
ECHR in order to ensure the adoption of the catalogue of rights, and the
acceptance of the European mechanism of protection to control acts of the
EC institutions in addition to the control of acts of States. However the
Commissions above-mentioned report rejected the proposal because, in
17
OJ 1997, C 103/1.
18
Bulletin of the European Communities, Suppl. 5/76.
341
view of the ipso facto binding nature of fundamental rights in Community
Law, the intervention of a formal constitutive legal act was unnecessary.
19
In
1979, however, the Commission changed its attitude. Inuenced by pressure
from the European Parliament, it published a memorandum on Accession
by the EC to the ECHR
20
to the surprise and scepticism of European Judges
and legal scholars, like Pierre Pescatore, Francesco Capotorti and Jochen
Frowein.
21
Ten years later, in 1989, the European Parliament advocated again the
accession of the EC to the ECHR. In 1990 a formal proposal was put to the
Council by the Commission and four years later the Council decided to ask
the ECJ for an opinion in accordance with Article. 228 (now Article 300)
EC, as to whether the accession of the Community to the ECHR would be
compatible with the EC Treaty. The Courts view was that as Community
Law then stood, accession would require an amendment of the Treaty. In
particular, no Treaty provision conferred on the Community institutions
any general power to enact rules on Human Rights or to conclude interna-
tional conventions in this eld. There was no express or implied power for
such purpose and Article 235 (now Article 308) EC, though empowering
to ll gaps, did not permit the adoption of provisions that would amount to
a Treaty amendment. Furthermore, accession would consist of the entry of
the Community into a distinct international institutional system as well as
integration of all the provisions of the Convention into the Community legal
order and, as such, would be of constitutional signicance. The Court was
simply of the opinion that accession to the ECHR was inappropriate. One
should also bear in mind that the ECHR is open to accession by States only
and an amendment of the 1950 Convention would be required in order to
accommodate the accession of the EU as a party.
The Opinion of the Court delayed action by the Community but not
for long. In 1996 the European Commission set up three separate Comits
des Sages to consider the Unions human rights policy and possible Treaty
amendment. The Second Committee recommended accession to the ECHR
19
Ibid, n 28, al.3.
20
Bulletin of the European Communities, Suppl. 2/79.
21
See P. Pescatore, La Cour de justice des communauts europennes et la Convention
des Droits de lHomme, in Protecting Human Rights: The European Dimension. Studies
in Honour of Gerard J. Wiarda, Carl Heymans Verlag KG, Koln, 1988, pp. 441, at p. 452
and references there.
342
and to the European Social Charter. We shall return to the problem of acces-
sion to the ECHR when we address the issue of the role of the ECJ.
IV. WHY A CHARTER?
The German Presidency (January-June 1999) made the adoption of
an EU Charter of Basic Rights one of its aims and priorities. The expres-
sion fundamental rights was used as convenient shorthand for the vari-
ety of phrases used to describe Basic or Human Rights and Fundamental
Freedoms.
Although the ECJ provided protection in its ever-growing number of
precedents in the eld of Human Rights, it was felt there was lack of visibility
and the codication of rights would be preferable to an empiric approach.
The way in which the ECJ discovers human rights via general principles
of Community Law was considered too ambiguous for the general public,
for whom a written law is more predictable than an unwritten one. As Prof.
Toth put it before the House of Lords Select Committee on EU, 20023 (6th
Report)
22
that at the beginning of the 21st century the citizen is entitled
to see his fundamental rights set out in black and white terms that he can
enforce in a Court of Law.
A Charter would enhance legal certainty in particular after the adoption
of the second and third Pillars of the Union, by the Maastricht Treaty. These
new competences are likely to create new potential infringements of human
rights. The passage from an Economic Community to a Political Union that
extends its competences into areas of justice and criminal judicial coopera-
tion that are sensitive to the violation of human rights renders a Charter
indispensable.
In addition, it was felt that the level of the existing protection of human
rights conferred on the individual was not sufcient. An extension of the
rights as well as better visibility would be benecial to both legislators and
to the citizens.
Some see the Charter as a benchmark for compliance by existing Mem-
ber States with the principles upon which the Union is founded, including
22
The Future Status of the EU Charter of Fundamental Rights, Feb. 3, 2003, publica-
tions.parliament.uk/pa/Id200203/Idselect/Ideucom/48/4803.
343
those of fundamental rights as well as a benchmark for determining eligibil-
ity of Accession States.
23
Many perceive the Charter as a step along the road to further integration
and harmonization of laws. The general opinion favoured the creation of a
Charter to bind the institutions of the EU in the performance of their func-
tions. No opposition to the Charter was voiced by either the EU institutions
or by European jurists. Quite on the contrary, the EU institutions aspired to
be bound by a Bill of Rights. However, in view of the Community Courts
effective protection of fundamental rights via the general principles of law,
some European jurists considered codication of fundamental rights in a
Charter as desirable, though not necessary.
24
Whether or not desirable or necessary, the Charter was drafted and is
waiting for its entry into force as a binding legal text. The Charter gives a
concrete form to the four universal values that Community Law claims to
follow: Dignity, freedom, equality and solidarity.
V. MILESTONES IN THE CREATION OF THE CHARTER
In 1989, the Community Charter of the fundamental social rights of
workers was adopted and subsequently became the Social Charter adopted
in a Maastricht Treaty Protocol in 1993.
In 1993 the Maastricht Treaty (EU) provided that the Union must
respect, as general principles of Community Law, fundamental rights guar-
anteed by the ECHR. (Article F(2)). The Unions activity in the eld of
justice and home affairs has to comply with the ECHR and the Convention
on the Status of Refugees, 1951. (Article L EU).
In 1997 the Treaty of Amsterdam provides that the Union is founded
on the principles of liberty, democracy, respect for human rights and funda-
mental freedoms, and the rule of law, principles which are common to the
Member States. The Treaty enshrined the principles of equality (Articles 13
and 141) and gave human rights a new prole.
In June 1999 the European Council in Cologne decides on the launch-
ing of an EU Charter of Rights to consolidate fundamental rights at a Union
23
See E. Regan, What the Constitutional Treaty Means: Fundamental Rights in the EU,
The Irish Institute of European Affairs, 2005, at 5.
24
Prof. Schermers testifying before the House of Lords Select Committee, supra, note 22;
See also testimony of Professors Waelbroeck and Semitis.
344
level and to make their overriding importance and relevance more visible to
the citizens of the Union.
In 2000 the EU Charter of Fundamental Rights has been introduced as
a Protocol to the Treaty of Nice.
In 2004 the EU Charter constitutes Part II of the EU Constitution, but
as we know the latter was rejected in 2005 by the peoples of France and the
Netherlands. The issue is important enough to argue that the destiny of the
Charter should not be linked to the crisis involving the Constitution. The
future of the EU Charter should be ensured independently of the entry into
force of the Constitution. This will be conrmed by a brief overview of the
contents of the Charter.
VI. IS THE CHARTER JUST A SHOWCASE OF EXISTING RIGHTS?
Whilst opinions diverge as to its innovative nature ratione materiae,
there is consensus as to its future application ratione personae, to the institu-
tions of the EC. And here is where the novelty lies. Lord Goldsmith, one
of the architects of the Charter, stated that its purpose is to constrain the
actions of the EU institutions, rather than any other, perhaps misunderstood
purpose, such as controlling the Member States that are already bound by
other instruments. He further states that the Charter is not a mine of new
human rights.
25
However, the Charter embraces in one instrument civil, political, eco-
nomic, social, cultural and other rights, as well as principles, that the Union
is to recognize, respect and protect. It is composed of seven Chapters: Dig-
nity (Chapter I), Freedoms (Chapter II), Equality (Chapter III), Solidarity
(Chapter IV), Citizens Rights (Chapter V), Justice (Chapter VI) and Gen-
eral Provisions (Chapter VII).
The Charter is a consolidation of fundamental rights enshrined in a vari-
ety of Conventions, such as ILO Conventions, European Social Charters,
the UN Convention on the Rights of the Child and the Convention on the
Status of Refugees and last, but not least, the ECHR. Upon close inspection,
this consolidation in 54 articles comprises not only declarative provisions
but also constitutive ones. It is not just a restatement of existing EU written
law or of EU common law created by the Court of Justice.
25
The Charter of Human RightsA Brake Not an Accelerator, 5 European Human
Rights Law Review (2004), 473.
345
As the preamble of the Charter proclaims, it is necessary to strengthen
the protection of fundamental rights in the light of changes in society, social
progress and scientic and technological developments by making those
rights more visible in a Charter.
An example of such visibility is afforded by Article 3 entitled the 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 elds of medicine and biology, the following must be respected
in particular:
the free and informed consent of the person concerned, according
to the procedures laid down by law,
the prohibition of eugenic practices, in particular those aiming at
the selection of persons,
the prohibition on making the human body and its parts as such a
source of nancial gain,
the prohibition of the reproductive cloning of human beings.
Is this up-to-date provision a legal novelty or is it merely reecting exist-
ing law, rendering it simply more visible?
It is true that Kantian philosophy already stipulated that a human per-
son should never be treated as a means but always as an end. The Universal
Declaration of Human Rights has also enshrined the right to dignity. But
Article 3 (2) addresses more specic rights that were not the object of pro-
tection before.
Although these rights are included in the Convention on Human Rights
and Biomedicine, adopted by the Council of Europe in 1997
26
, they were
not recognized and could not be included in the 56 years old ECHR simply
because science and medicine were not as yet advanced. Furthermore, the
1997 Convention has been ratied to-date by a mere nineteen out of the
forty-six Member States of the Council of Europe and only by eleven EU
Member States, that is, in both cases less than half.
Bearing this data in mind it is not quite accurate to say that the right
to the integrity of the person and especially Article 3 Paragraph (2) of the
26
European Treaty Series (ETS) 164 and additional Protocol ETS 168.
346
Charter do not mint new rights de lege feranda. Searching for precedents of
the ECJ recognizing this right, we nd the case of Netherlands v. Council,
2001, where the issue of the legal validity of patenting of biomedical inven-
tions arose. The Netherlands applied to the Court to annul Directive 98/44/
EC
27
that determines which inventions involving the human body may or
may not be patented. The Dutch government was of the opinion that the
Directive violated i.a. the human right of dignity. In his Opinion (para.
197) Advocate General F. Jacobs refers to Article 3 of the EU Charter which
enshrines the right to the integrity of the person, although the Charter is
not yet adopted as positive law. The Netherlands, who had not ratied the
1997 Convention on Human Rights and Biomedicine, did not invoke that
Convention. The Opinion and the Judgment of the ECJ in Netherlands
v. Council do not refer to the instrument at all, although it protects human
dignity and is considered as the inspiration for the inclusion of this right in
the Charter.
28
This would support the view that the right to integrity of the
person in the eld of medical research is rstly recognized as a fundamental
right in the EU Charter.
Space does not allow to individually examine each of the fundamental
rights that have become a positive obligation on Member States and the EU,
such as the right to asylum enshrined in Article 18, the rights of the elderly
by virtue of Article 25, the rights of persons with disabilities to integration
in society, enshrined in Article 26 and the controversial right to strike, with-
out limitations, introduced as part of the right of collective bargaining in
Article 28. These rights may indeed qualify as quasi-innovative rights.
The very fact of elevating certain rights to the status of a fundamental
right may also be considered as an innovation. Examples of such rights are
afforded by i.a. the right to protection of personal data enshrined in Article 8
and the freedom of the arts and scientic research and academic freedom
consecrated in Article 13, as well as, the right to good administration in
Article 41 and others.
Rights have also to be distinguished from principles. Unlike rights,
principles are subject to judicial review only when the Union has legislated
in these matters. (Article II112(5) of the Constitution). Environmental
protection and the principle of sustainable development provided for in
Article 37 and consumer protection as ensured in Article 38 are examples
27
OJ 1988, L 213/13.
28
See legal explanation to Art. 3 in eucharter.org/home.
347
where the rights are as yet inchoate until further Union legislation takes place
and until judicial remedies accompany these rights. As the House of Lords
Select Committee on the EU Charter commented: Many of the Articles
are of an aspirational character and lack precision and denition that would
be expected of Articles in a Bill of Rights.
29
The Committee recommended
a revision of the Charter in paragraph 11 of its Report and added in para-
graph 17:We doubt whether a citizen will be much impressed if access to a
remedy is not available to him when he believes that his rights . . . have been
infringed. Rights without remedies are indeed no rights.
VII. THE CHARTER AND THE ECHR
If one compares the EU Charter to the ECHR one realizes immediately
that the Charter provides a greater spectrum of rights. Even in the eld of
civil and political rights covered by the ECHR the Charter expands the pro-
tection. One can classify the rights into two groups: those that overlap with
the ECHR and those that do not.
The rights, mainly civil and political, which overlap, include the fol-
lowing: the right to life, freedom from torture or degrading treatment or
punishment, freedom from slavery and forced labour, the right to liberty
and security of the person, the right to marry and the right to found a fam-
ily, freedom of thought, conscience and religion, freedom of expression and
information, freedom of assembly and of association, the right to education,
the right to property, right to an effective remedy and to a fair trial, respect
for the rights of the defence and the presumption of innocence, the funda-
mental right to non-retroactive laws, the right not to be tried or punished
twice in criminal proceedings for the same criminal offence. Some jurists
attribute to these rights the qualication of rst generation human rights
or classical human rights.
These rights, which draw their inspiration from the ECHR, will be
interpreted and have the same meaning and scope as those enjoyed under
the ECHR by virtue of Article 52 of the EU Charter. In addition, paragraph
3 provides that [t]his [ . . . ] shall not prevent Union law providing more
extensive protection.
29
See para. 8 of the House of Lords Select Committee on the EU, Sixth Report, supra,
note 22.
348
The text of the Charter itself indeed allows for more protection of sev-
eral rights enshrined in the ECHR and its Protocols. Some examples will
illustrate this point:
1. Article 5 of the Charter, echoing Article 4 of the ECHR by prohibiting
slavery and forced labour, adds in paragraph 3 that trafcking in human
beings is prohibited. Trafcking in human beings has become a real
problem in the last three decades, which could not be foreseen by the
ECHR.
2. Article 10 regarding freedom of thought, conscience and religion is
based on Article 9 of the ECHR, however, it spells out for the rst time
the right to conscientious objection, which is as yet not recognized by
all Member States.
3. Article 14 of the Charter extends the right to education found in Proto-
col No.1 Article (2). The vague provision in the Protocol does not refer
to the possibility to receive free compulsory education nor a right to
vocational and continuing training. These provisions are now to be
found in the Charter.
30
4. Article 17 (1) of the Charter on the right to property echoes the provi-
sion of Protocol 1. Article (1), but Article 17(2) adds that intellectual
property shall be protected, which was not explicit under the ECHR.
5. One cannot deny that the Chapter on Equality (Chapter III) is innova-
tive. Article 20 declares that Everyone is equal before the law. Up
to now only citizens of the Union were equal before the law and no
discrimination was allowed on the basis of nationality between citizens
concerning the provisions of the basic Treaties. The extension of equality
to non-citizens of the Union is a novelty. With respect, the proviso that
is included in Article 21 (2) should appear here as well. To be quite clear
Within the scope of application of the Treaty establishing the Euro-
pean Community and of the Treaty on European Union, and without
prejudice to the special provisions of those Treaties, any discrimination on
grounds of nationality shall be prohibited. (Emphasis added.)
Furthermore, Article 21 of the Charter extends the grounds and scope
of the right to equality much beyond the scope of Article 14 ECHR.
30
See E.C. Landau, The Right to EducationThe European Perspective in M. G. Kohen
(ed), Liber Amicorum in honour of Judge Lucius Caisch, Kluwer Academic Publishers,
Geneva, 2006.
349
Article 21 enumerates the following grounds: 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, mem-
bership of a national minority, property, birth, disability, age or sexual
orientation shall be prohibited. Article 14 of the ECHR enumerates just
over half of those grounds. It does not mention genetic features, disabil-
ity, age or sexual orientation. Also, one can invoke it only in conjunction
with a claim of a violation of one or more rights under the Convention
and not independently.
31
Unlike Article 14 ECHR, Article 21 of the Charter provides for an
independent, self-standing right to non-discrimination. Regarding
the newly prohibited grounds of discrimination, they were extended
to cover national minorities, disability, age and sexual orientation in
line with the acquis communautaire and the 2000, 2002 Directives on
non-discrimination.
The use of the words such as in Article 21 of the Charter makes it clear
that the list of the prohibited grounds of discrimination is not exhaust-
ive but merely illustrative. New categories of persons protected against
discrimination may therefore be added to reect social changes.
6. Article 23 on equality between men and women is declarative of the
legal position as far as employment, work and pay are concerned in
the Union. But it is constitutive and innovative as far as it dictates that
Equality between men and women must be ensured in all areas. Up
to now Community legislation (some 13 Directives) and the initial pro-
vision of the Treaty of Rome, Article 119 (amended by the Treaty of
Amsterdam and replaced by Article 141) addressed uniquely the prin-
ciple of equality of men and women at work.
32
Up until the Treaty of Amsterdam, the Union has not promoted human
rights or equality in a substantial measure. Now, equality should be
ensured in all areas, such as education, vocational training, representa-
tion in public life and in decision-making forums.
31
The legal position would be modied once Protocol No 12 of the ECHR, 2000, enters
into force. The right not to be discriminated against would become a free-standing,
independent right.
32
See E.C. Landau, The Rights of Working Women in the European Community, pub-
lished by the European Commission in European Perspective Series, Brussels, 1985.
350
The reluctance of the Community to deal with the issue of afrmative
action and quotas was mitigated by its approach to positive action for
the promotion of women, now formulated in Article 141(4)EC. The
provision is in the spirit of the second paragraph of Article 23 of the
Charter: The principle of equality shall not prevent the maintenance
or adoption of measures providing for specic advantages in favour of
the under-represented sex.
The case-law of the ECJ has not tolerated, however, rigid advantages
for women or quotas resulting in reverse discrimination for men,
as the cases of Kalanke, (1995)
33
Marschall (1997),
34
Badeck (1999)
35
and Abrahamsson (2000)
36
show.
7. Article 49 of the Charter restating the principle of nonretroactivity of
laws enshrined in Article 7 of the ECHR adds in its rst paragraph that
if subsequent to the commission of a criminal offence, the law provides
for a lighter penalty, that penalty shall be applicable. No such exception
is to be found in the ECHR.
Judging by these examples, the Charter is an up-to-date Bill of Rights
that has enlarged and modernised the scope of the ECHR in the spirit of
Article 52(3) of the Charter and its Preamble.
VIII. IS THE CHARTER AN EXHAUSTIVE BILL OF RIGHTS?
Should the Charter be considered as an exhaustive Bill of Rights? The
answer is in the negative for more than one reason. First, the Preamble of
the Charter formulates its purpose to strengthen the protection of funda-
mental rights in the light of changes in society, social progress and scientic
and technological developments. Changes and progress are a continuing
development and, to quote the famous German legal philosopher Rudolf
von Jhering, Law is perpetually in the process of becoming.
37
He pro-
nounced this phrase in the nineteenth century, but it is even more true of
our century.
33
Case C450/93, [1995] ECR I3051
34
Case C409/95, [1997] ECR I6363.
35
Case C158/97, [1999] ECR I3633.
36
Case C407/98, [2000] ECRI5539.
37
Free translation by the author. Cf. Der Kampf ums Recht, Vienna 1874, reproduced and
prefaced by Felix Ermacora in 1992, Propylaen Verlag, Berlin, at p. 69.
351
Secondly, Article 19 of the Constitution provides that fundamental
rights as they result, i.a., from the constitutional traditions common to the
Member States shall constitute general principles of the Unions law. Conse-
quently, the catalogue of fundamental rights enumerated in the Charter may
not be considered as exhaustive or necessarily preventing the development
through case law of new rights inspired by national constitutional law and
traditions.
38
IX. THE CHARTER AND DEROGATIONS
Another question may arise as to the application, limitation, or suspen-
sion of fundamental civil and political rights as well as other rights in times
of emergency. Should the application of the Charter follow the model of
the ECHR?
We recall that the ECHR distinguished in Article 15 between sacro-
sanct rights that cannot be suspended in times of emergency, such as the
right to life, freedom from torture, freedom from slavery and forced labour
and freedom from retroactive legislation, and those fundamental rights that
may be derogated from in times of emergency. There is no parallel provision
to that effect in the EU Charter.
What interpretation should be given to the silence of the Charter on
this point? The answer is perhaps to be found in part in Article 52(1) of the
Charter, which stipulates that Any limitation on the exercise of the rights
and freedoms recognized by the 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 recognized by the Union or the
need to protect the rights and freedoms of others. Yet this provision does
not provide for derogation on account of an emergency as does Article 15
ECHR. Naturally, the Member States can resort to Article 15 ECHR, but
the fact remains that there is no similar provision for the EU institutions.
X. THE ROLE OF THE ECJ
The rule that any matter concerning EU Law should be adjudicated
exclusively by the ECJ is sound. It is enshrined in Article 219 of the Treaty of
Rome, 1957 (now Article 292 EC). Why should human rights be resourced
38
Regan, supra, note 23, at p. 8.
352
elsewhere? In other words, why should the EU accede to the ECHR and to
its judicial mechanism? There were many reasons that justied the ECJs
negative Opinion to accession to the ECHR (Opinion 2/1994). Further-
more, the institutional problems that such an accession provokes outweigh
the advantages.
39
Now that an up to date Charter of fundamental rights has been drafted
for the Union and the substantive element, namely a catalogue of rights, has
been taken care of, is accession to an outdated ECHR still necessary? As far
as the procedural element is concerned, would the mechanism of control of
human rights by the Strasbourg Court in any way be superior to the review
by the ECJ?
The Community Court has fty years experience of reviewing actions
of Community institutions via the procedures enshrined in Articles 173
and 175, now Articles 230 and 232. When dealing with human rights, it is
hoped that the Court would be more generous and liberal in its interpreta-
tion of the notion of individual concern, required in order to establish a
locus standi for the individual in a direct action for annulment (according
to the fourth paragraph of Article 230 EC). As a last resort, an amendment
of that Article is to be envisaged so as to relax this requirement and allow a
wider access for individual applicants.
40
The Community Court also has competence in infringement actions
against Member States to control the national implementation of EU Law, in
accordance with Articles 226 and 228 EC. Moreover, the Court is empow-
ered to impose nes on Member States for non-fullment of their obliga-
tions or for their disregard of the Courts judgments.
Furthermore, the ECJ is the only supranational court competent to give
preliminary rulings under Article 234 EC. It is mainly via this procedure
that the ECJ developed the Community common law of Human Rights, as
39
On the advantages of accession by the EU to the ECHR, see J.-P. Costa, La Convention
europenne des droits de lHomme et la Charte des droits fondamentaux de lUE et la prob-
lmatique de ladhsion de lUE a la Convention, European University Institute, Florence,
March 2004.University Institute in Florence in March 2004. See also the views of the
British Institute of Human Rights, bihr.org/pdfs/submission.EUcharter.pdf
(Oct. 2002).

40
An alternative is to change the case-law on individual concern as advocated by
A-G Jacobs in his Opinion in UPA v. Council, Case C50/00, [2002] ECR I6677, at
para. 4. The ECJ has unfortunately not followed his Opinion in this case.
353
national courts referred questions to the Luxembourg Court for an authori-
tative interpretation.
Admittedly, the Strasbourg mechanism has been streamlined in 1998
with the entry into force of Protocol No. 11.
41
Actions by individuals are
now heard by the European Court of Human Rights directly, and the two-
tier cumbersome procedure through the European Committee on Human
Rights was abolished. However the Strasbourg Court is overburdened by
actions brought against the 46 Member States of the Council of Europe and
justice is delayed even without the additional jurisdiction of judicial review
of EU actions.
Access to the ECJ presents potential advantages to litigants over actions
before the Strasbourg Court, as litigants in Luxembourg do not need to
exhaust all domestic remedies, as do applicants to the Strasbourg Court.
42
As Sir Francis Jacobs stated in his keynote address at the British Institute
of International and Comparative Law Annual Conference in June 2006,
the idea behind EU accession to the ECHR is to ll a gap, by allowing an
individual to bring a case against the EU, as well as against Member States.
A problem however exists where the ECJ has no jurisdiction in respect of
matters under the Second and Third Pillars (introduced by the Maastricht
Treaty) that impinge on the basic human rights of individuals.
Sir Francis Jacobs adds, however, that extending the jurisdiction of the
ECJ is preferable to EU accession to the ECHR. The ECJ needs to be given a
greater role so as to be able to ensure respect for the rule of law in important
areas requiring effective judicial review.
43
Article 19(2) of the Constitution, which provides that [t]he Union
shall accede to the ECHR is, with respect, redundant once the Charter is
adopted independently and becomes legally binding. The rights enshrined
in the Charter cover a much more substantial scope than the ECHR and the
control mechanism of the implementation of the Charter is better served by
the Luxembourg Court than by the Strasbourg Court.
41
ETS No. 155.
42
For a detailed comparison, see S. Douglas-Scott, A Tale of Two Courts; Luxembourg,
Strasbourg and the Growing European Human Rights Acquis, 43 Common Market Law
Review (2006), 629665, at 661.
43
Sir Francis Jacobs,The Future of the Constitutional Treaty for Europe and the ECJ,
2006, in biicl.org/les/633_report_annual_conference_speech_sir_francis_jacobs.pdf.
354
The ECJ is a master in lling gaps in the absence of a written positive
law. Just as the principle of supremacy of EU law over conicting national
laws was coined by the Court, as early as 1964 in the Costa v. ENEL Case
44

in the absence of any written norm, so too. until the Charter becomes rati-
ed and enters into force, it will serve as a source of inspiration and law in
the eld of Human Rights. In those domains where the rights are considered
as declarative and a mere consolidation of existing law, the Commun-
ity Court should not hesitate to apply the Charter as evidence of general
principles of Community Law, which it is bound to protect. Indeed all the
Advocates General, in a growing number of cases, as well as the Court of
First Instance, have already cited the provisions of the Charter
45
, including
Francis Jacobs, AG in Netherlands v. Council, discussed above. AG Mischo in
his Opinion in Booker Acquaculture Ltd sums up the impact of the Charter
as from its initial proclamation as follows.
I know that the Charter is not legally binding, but it is worthwhile
referring to it given that it constitutes the expression, at the highest
level, of a democratically established consensus on what must today
be considered as the catalogue of fundamental rights guaranteed by
the Community legal order.
46
Human Rights will continue to bind the Court, and ibi jus ubi remed-
ium. The granting of remedies by the Court will reinforce the rights: ibi
remedium ubi jus. Gradually, therefore, the Charter will become part of the
Unions legal order by judicial incorporation.
XI. CONCLUSIONS
The EU Charter of Fundamental Rights is a progressive and welcome
instrument. It is less controversial than the EU Constitution, and where it
is, a few amendments can improve the text. It is unfortunate that the destiny
of the EU Charter was interwoven with the destiny of the Constitution and
that both were rejected by the peoples vote in France and The Netherlands
in the spring of 2005.
44
Case 6/64, [1964] ECR 585.
45
A. Arnull, From Charter to Constitution and Beyond: Fundamental Rights in the New
European Union, Public Law (2003), 774.
46
Joint Cases C20/00 and C64/00, para. 126 of the Opinion (Sept 20, 2001).
355
The adoption of the Charter as an independent binding legal instru-
ment would be benecial for the Institutions of the Union as well as for
individuals. It would strengthen integration and enhance democratic values,
especially in a decade of enlargement.
Concerning the scope ratione materiae, the Charter is perhaps over-
ambitious, and some fundamental rights are more fundamental than others.
As visibility seems to be one of the central keywords, the focus should be
on the core of fundamental rights rather than on human rights in general.
A certain classication should also be made into declarative rights and con-
stitutive rights and a clear demarcation should be drawn between principles
and rights. The rights which are promotional and are not yet accompanied
by remedies should be listed separately. The classication by commenta-
tors into rst generation rights with immediate judicial remedies, second
generation rights and even third generation rights, without immediate
judicial remedies is problematic and runs counter to the EU Charters object-
ive of making it more visible and accessible to the EU citizens.
47
A clear
choice should be made between fundamental rights that are acquired, posi-
tive rights, on the one hand, and aspirational or promotional rights, on the
other hand. Such a distinction is already functioning within the standard
setting practice of the International labour Organisation.
Express provision should be made as to the non exhaustive nature of
the catalogue of the rights. In addition, a clearer statement about tolerated
derogations in times of emergency should be offered in order to help the ECJ
in its implementation of the Charter.
The role of the ECJ should be conrmed as the only judicial body
with exclusive jurisdiction over the application of the Charter. The case for
such conrmation would be especially evident if the Charter enters into
force independently of the Constitution. At the same time, accession to the
ECHR should no longer be advocated, for the reasons elaborated earlier.
By virtue of Article III375(2) of the Constitution, Member States
may not submit a dispute concerning the Constitution to any method of
settlement other than before the ECJ. In accordance with Article I5(2),
the Union would likewise be bound to submit any dispute with Member
States to the Court. If the Charter enters into force independently of the
Constitution, these provisions should be applied also to the Charter. The
exclusive competence of the ECJ as the nal arbiter on fundamental rights
47
eucharter.org/home. Para. 13.
356
should even expressly be provided for in the Charter. This is an unresolved
issue that goes to the core of the implementation of the EU Charter and its
judicial review.
This essay has repeatedly mentioned that the destiny of the EU Charter
should not be linked to the destiny of the Constitution. Just like the UK has
a Human Rights Act, 1998, without having a written Constitution, ways
should be found to adopt the Charter as a legally binding instrument. In the
last resort the model of a Single European Act, following the homonym-
ous precedent, could successfully be adopted. This would close the circle of
recognition of fundamental rights. As the Single European Act was the rst
legal instrument to refer to human rights in 1986, it is appropriate that some
twenty years later, a new Single European Act, to enshrine a Bill of Rights for
the EU is adopted. Whether it is adopted by ratication or by referendums,
little objection by the Members States is to be feared, as the Charter does
not impose any new obligations on them, but rather on the EU institutions.
The peoples of Europe called to vote would likewise welcome the Charter as
a champion of their fundamental rights.
Failing the adoption of the Charter as a legally binding instrument, the
Charter will become a subsidiary source of general principles of law. Grad-
ually, the fundamental rights enshrined in it would be introduced into the
EU legal system by the Luxembourg Courts, as has traditionally been done.
There is no reason why European Judges should not use the Charter as a
source of inspiration in the same way as they have used the ECHR.
48
Indeed, the EU Charter has a future, either as a legally binding instru-
ment or as a model Bill of Rights to inspire the institutions of the Union
and its Court of Justice.
48
Editorial Comment, The EU Charter of Fundamental Rights still under discussion,
38 Common Market Law Review (2001), 16, at 6.
THE FUTURE OF EURATOM
Pamela M. Barnes
I believe that you can be against nuclear and love the existence
of Euratom
1
1. INTRODUCTION
Although it was identied as one of the four founding Treaties of the
European Union (EU),
2
little attention was paid to the Euratom Treaty
upon which the European Atomic Energy Community (EAEC) was based
during the Constitutional Convention in 2002 and 2003. The Convention
presented an opportunity to dispense with the only Treaty remaining in the
EU which targeted a specic economic sector.
3
However it was not con-
sidered to be appropriate to substantially amend the Euratom Treaty or to
change its nature from that of primary legislation during the Convention
deliberations. Instead, it was decided to incorporate any changes which
were required for the Treaty into a Protocol annexed to the Constitution.
These changes were quite limited and related mainly to the adaptation of
the Treaty to the new rules for institutional and nancial arrangements.
1
N. Commeau-Yannoussis, cited in EIE Conference report The Euratom Treaty and
Future Energy options, organised by NOAH, September 23, 2005, Danish Parliament
Building, Christiansborg, at 34.
2
The European Coal and Steel Community Treaty, the European Economic Community
Treaty, the European Atomic Energy Community (Euratom) Treaty and the Treaty on
European Union.
3
The only other Treaty of this type was the Treaty establishing the European Coal and Steel
Community, which was operative from July 24, 1952 until it expired on July 23, 2003.
358
The Treatys distinct character and the organizations legal personality thus
remained unchanged by the terms of the Constitutional Treaty (TCE).
As with many other international agreements which had a difcult birth,
once in place, the Euratom Treaty has proved to be remarkably resilient even
though its usefulness at times in the EUs history appeared to be marginal.
There were a number of possible scenarios for the Euratom Treaty proposed
during the Convention each of which will be reviewed in this chapter. The
most rational position leading to the development of an EU policy to pro-
vide sustainable, competitive, secure and carbon free energy
4
for the future
would be to abolish the Euratom Treaty and develop a new Treaty or Treaty
chapter dealing with energy and climate change policy. But the Convention,
not unsurprisingly left the Treaty unaltered. Following the widely publicized
problems surrounding the referendums held in France and the Netherlands
in 2005 the EU has engaged in what is called a period of reection on
the future of the EU.
5
The political reality of the EU 27
6
is such that it is
unlikely that the Euratom Treaty will be changed as a result of any proposals
made during the period of reection.
A combination of factors has altered the nuclear energy policy envi-
ronment signicantly in recent years. A new spirit of realism has forced
governments to acknowledge that nuclear energy offers the best chance of
combating climate change and ensuring the secure supply of electricity that
the world craves.
7
But the divergence of views amongst the Member States
of the enlarged EU about the use of nuclear electricity continues and has
created a crowded policy space at the national level which it will be difcult
for the EU to enter. There are criticisms of the terms of the Euratom Treaty
particularly with regard to the levels of state aid given to the electronuclear
industry and also lack of reference to the safety of nuclear installations and
safe disposal of radioactive waste. The way in which these issues are dealt
4
European Commission Green PaperA European Strategy for Sustainable, Competi-
tive and Secure Energy. COM (2006) 105 nal, Brussels, March 8, 2006.
5
Despite this, by Spring 2007, 18 of the Member States had ratied the TCE using the
appropriate national means.
6
EU 27 Member States. In Sep. 2006 the European Commission presented a monitor-
ing report on the preparations for membership of the EU of Bulgaria and Romania.
Although the Commission identied some areas of concern, the recommendation was
that the two countries had made progress to complete their preparations for membership
and so should accede in Jan. 2007, completing what may be seen as the nal phase of
the 2004 enlargement process.
7
European Nuclear Society, e-News, no.12, Apr. 2006, at euronuclear.org/e-news.
359
with in the Euratom Treaty is the result of the energy policy environment of
the 1950s and the lack of political willingness to open the national nuclear
energy policies of the time to anything more than limited EU competence.
The evidence from the debate during the Convention and the lack of
willingness of the Member States of the EU to deliberate changes or repeal of
the Treaty demonstrates how difcult it would be to negotiate an alternative.
On the other hand the UK House of Lords Select Committee on the EU has
concluded 2006 that an important role did exist for the EU to take a lead in
safe management and disposal of radioactive waste because of
grave concerns that Member States are failing to educate citizens about
the use of nuclear power, how the safety of nuclear installations is maintained
and of the action taken and options available to Member States to manage
the radioactive waste produced.
8
There thus appears to be value added for the European Union from
the continued existence of the Euratom Treaty. It provides a legal framework
for EU level competence to deal with those issues which are currently of
most concern to the citizens of the EU. In the light of the lack of political
willingness to make changes it is perhaps better to have this Treaty with all
its aws than no Treaty at all.
II. THE EURATOM TREATYA DIFFICULT GESTATION
Economic development, aspects of public health and public safety
depend upon access to a reliable power supply that is available on demand.
In the early 1950s the European states urgently needed such an access to
reliable energy resources for the massive reconstruction required in their war
torn economies. The desire for peaceful co-operation with their neighbours
also dominated the policy agendas of the countries of Western Europe. Coal
was the primary energy source in Europe at the time and a major component
in the manufacture of steel, therefore, committing to policy co-operation in
coal and steel production was an obvious choice for that concrete action in
limited areas which would . . . substitute for historic rivalries the merger of
their essential interests and lay the foundations of a broader and deeper com-
munity among peoples long divided by bloody conicts(Preamble to the
Treaty of Paris, 1951 establishing the European Coal and Steel Community,
ECSC). But at the same time the vested national interests of the individual
8
House of Lords EU Committee, Managing Nuclear Safety and Waste: the Role of the EU,
37
th
Report. 20052006, July 6, 2006, para. 110.
360
states generated a number of controversies about how the process of Euro-
pean integration was to be moved forward into other policy areas.
Although the Euratom Treaty in 1957 came early in the history of
the Union, it was born, not from the rational plan for integration pro-
posed by Jean Monnet in 1956
9
, but from political compromises brokered
during the negotiations of the following year. The strategy for increased
policy integration amongst the signatory states of the ECSC had been
undermined when the proposals for a European Defence Community were
rejected in 1954. The ECSC had shown that successful policy integration
was possible in two areastrade and energy co-operation. So if national
defence policies could not become integrated, attention was turned to
other possibilities. The civilian use of the nuclear technologies was an
exciting new development which appeared to offer an opportunity to re-
energize the enthusiasm and impetus for further policy integration. The
Preamble to the Treaty began by Recognizing that nuclear energy repre-
sents an essential resource for the development and invigoration of indus-
try and will permit the advancement of the cause of peace. It would be a
costly approach, as it was new technology and would need a great deal of
investment. It was not investment which the individual Member States of
the EAEC could afford to make on their own. But if all the States worked
together to integrate their nuclear energy policies and shared the costs, all
would benet from the . . . prospect of achievements commensurate with
the creative capacities of their countries.
10
Jean Monnet had considered the nuclear energy sector to be de-polit-
icized and therefore open to political integration and the possibilities of
supranational action. Monnets vision was however quickly overtaken by
events. The national nuclear energy programmes of the time were admittedly
haphazard, but they were being developed in response to narrow interests
and commercial pressures. The governments were not prepared to pool deci-
sion making about national energy policy resources and the choices being
made about their energy resources mix. The French government supported
the evolving electronuclear industry in which France had an important busi-
ness interest. The German and Italian governments on the other hand were
looking to forge agreements with the United States to obtain cheap supplies
9
Report to the Committee established under the chairmanship of Paul-Henri Spaak
to relaunch the European Project following the failure of the European Defence
Community.
10
Preamble to the Euratom Treaty.
361
of enriched uranium and US-built reactors. Of the other signatories, neither
the states preparing to use nuclear electricity, nor those which did not want
to develop the technology were prepared to open their national industry to
the possibility of interference.
The outcome of the 1956/7 negotiations was that the main terms
of the Euratom Treaty were limited to promoting the development of
the new nuclear technologies and the management of some aspects of
safety related issues, but excluding the safety of the nuclear installations
themselves. Overall the Treaty conformed to a traditional statist model of
intergovernmental agreement for action in a limited sectoral policy area.
It was much narrower in focus than the European Economic Community
(EEC) Treaty also signed at the same time. The role for the then General
Assembly, later European Parliament (EP), was minimal. Furthermore,
the objective of promotion of nuclear energy appeared to contradict the
promotion of use of coal supported in the ECSC Treaty. Despite the exist-
ence of the two Communitiesthe EAEC and the ECSCit was clear
that a coherent and effective EU energy policy was not in the process of
being developed.
The objective of the European Atomic Energy Community was clari-
ed in the Treatys Preamble as raising the standards of living in its Mem-
ber States . . . by creating the conditions for speedy establishment and
growth of nuclear industries (Article 1) that would provide extensive and
cheap energy resources. Promotion of the electronuclear industry was thus
to be accomplished through the promotion of research and the dissemina-
tion of the information gained as a result. The terms of the Treaty were
also to facilitate investment in the industry. As the electricity utilities were
predominantly state owned in the 1950s this was in effect to agree to a
considerable degree of state aid going to the developing industry.
The Euratom Treaty conferred the sole rights of option and ownership
of all ssile material being used for civilian purposes on the EAEC, thus
creating a nuclear common market for trade in nuclear ores and materials
within the EU so that sufcient supplies would be available for Commu-
nity users (Chapter IV Euratom).
11
The provisions of the Treaty brought
11
The Euratom Supplies Agency (ESA) was established June 1
st
, 1960 to ensure equitable
and regular supply of nuclear ores and fuels for the EUs nuclear utilities (Chapter IV
Euratom Treaty). The Agency is a common supply agency for ores, source materials
and special ssile materials and under the supervision of the European Commission.
Currently this is within DG TREN. However The Supplies Agency exists, but is a
362
international agreements and co-operation to the European Commissions
competence as a necessary element of the common supply of the raw mate-
rials for the industry. The Euratom Treaty also provided the basis for the
free movement of the staff, capital and services required in the nuclear
sector. The European Commission was given considerable power over the
implementation of its terms. But the supranational action was limited and
focused on eight main areas which were outlined in Article 2 with promi-
nence being given to safety of the workers in the industry and the public
in the areas surrounding the nuclear power plants.
12
A notable omission
from Article 2 was measures to ensure safety of the nuclear installations
themselves. These remained within the competence of the national govern-
ments and authorities.
The creation of the European Atomic Energy Community was not a
commitment by the national governments of the six signatory states to
any form of co-operation on the military use of nuclear technology. The
underlying political philosophy for the creation of the EAEC was a search
for peaceful co-operation, not collaboration so that weapons of war could
be developed. The underlying political realities of the 1950s were domi-
nated by reluctance of national governments to proceed with strategic
and military integration in a context other than NATO, combined with
ongoing military actions involving national forces outside the European
region. The Euratom Treaty therefore contained measures to ensure that
the ssile materials being used in the nuclear power plants of the EAEC
mere shadow of what was intended (EP 2002:xiii). In 2006 the ESA had merely 10
employees. As the EU is highly dependent on imported uranium supplies then the ESA
arguably has a role to play in the future in monitoring imports.
12
Art. 2 Euratom: In order to perform its task, the Community shall, as provided in
this Treaty: a. promote research and ensure the dissemination of technical information;
b. establish uniform safety standards to protect the health of workers and of the general
public and ensure that they are applied; c. facilitate investment and ensure, particularly
by encouraging ventures on the part of undertakings, the establishment of the basic
installations necessary for the development of nuclear energy in the Community; d. en-
sure that all users in the Community receive a regular and equitable supply of ores and
nuclear fuels; e. make certain, by appropriate supervision, that nuclear materials are not
diverted to purposes other than those for which they are intended; f. exercise the right
of ownership conferred upon it with respect to special ssile materials; g. ensure wide
commercial outlets and access to the best technical facilities by the creation of a com-
mon market in specialized materials and equipment, by the free movement of capital for
investment in the eld of nuclear energy and by freedom of employment for specialists
within the Community; h. establish with other countries and international organiza-
tions such relations as will foster progress in the peaceful uses of nuclear energy.
363
were being used for peaceful purposes. The Euratom Safeguards Ofce
(ESO) was established to deal with measures to ensure Member States
do not divert or acquire materials away from their intended and declared
uses (Chapter VII Euratom). The ESO is now based under the supervi-
sion of the European Commission (DG TREN) with more robust mech-
anisms in place and a much clearer role and mandate than the Euratom
Supplies Agency (ESA) now has.
13
The electronuclear industry is also subject to the European Eco-
nomic Community Treaty (EC). Electricity is a product which may be
moved within the integrated market, irrespective of how it is gener-
ated. During the 1990s and early 2000s legislation has been adopted
to liberalize national markets in electricity and thus reduce prices for
domestic, commercial and industrial users by enabling competition to
take place. Although trade in electricity within the EU remains limited,
these developments have increased the pressures to ensure interoper-
ability of national transmission networks. As a consequence, a number
of issues not referred to in the Euratom Treaty such as safe management
and disposal of radioactive waste are gaining in prominence on the policy
agenda of the EU.
Public opinion surveys conducted by the European Commission
show that while [citizens] know little about radioactive waste, [they are]
concerned about it and have very little trust in the nuclear industry and
ninety percent of respondents thought that the lack of a decision on how
to dispose of high level waste had a negative effect on the image of nuclear
energy.
14
13
In 2002 a High Level Expert Group was established to report on the effectiveness of the
ESO as the terms of the Euratom Treaty had not been revised since 1957. The ndings
of the Group were that the ESO should remain the focus of EU wide controls for both
practical and legal reasons. The Euratom Treaty being a . . . remarkable document
that expresses the essential commitments of the parties in a exible and forward-looking
language. European Commission, High Level Expert Group Review of the Euratom
Safeguards Ofce, 2002, at 7.
14
T. Botella et al., European Citizens Opinion towards Radioactive Waste: an Updated
Review. Paper presented at the conference Local competence building and public infor-
mation in nuclear territories. organised by the Group of European Municipalities with
Nuclear Facilities (GMF), Cernavoda, Romania, April 5
th
6
th
2006.
364
III. THE END OF THE NUCLEAR DAWN?
The Euratom Treaty has shown remarkable resilience and has remained
substantially unchanged throughout the history of the EU.
15
Initial sup-
port for development of nuclear energy was undermined in the 1960s as
energy developments progressed and oil rapidly became the most impor-
tant energy resource. Oil appeared to offer a cheap and readily available
resource base to meet Europes energy needs. The EU Treaty frameworks
focused primarily on coal and nuclear energy. It was argued that perhaps
the Euratom Treaty was obsolete but no signicant proposals to repeal or
amend the Treaty were made.
In the early 1970s pressures began to grow in the EU for the accepted
energy policy paradigm to change from that of the traditional model of
intergovernmental action to one based on market functionality. This was
particularly the case following the 1973 Oil Crisis and the impact of the
dramatic rises in the price of oil on the global economy. Despite some views
that the Euratom Treaty was not needed in this emerging scenario, again
no changes were made to its terms as it did appear to have regained some
relevance. Until the late 1980s there was a steady increase in the develop-
ment of both nuclear reactor units and their capacity to provide electricity
as the technology improved not just in the EU States but globally.
The Treaty experienced a mid-life crisis of condence in the late
1980s during a period of doubt about the industry and its safety (most
notably raised by the Chernobyl disaster of 1986). Although some discus-
sion of the continued usefulness of the Treaty did take place, no moves
were made to abolish or amend the Euratom Treaty at that time. This may
have been because it appeared to be of little consequence for most Member
States, apart from France, and would have taken too much political effort
to change for little gain in most instances. Or it may have been that the
mechanisms for sharing the competence for action in the electronuclear
industry the EU had created a structure which did not intrude on the
national interests. As such, it did not pose a threat to national policies
which had to be addressed. Certainly, the Treaty and the action taken by
the EU States within the context of international agreements on safety
standards had provided the basis for a comprehensive safety regime in the
15
The Merger Treaty of 1967 merged the institutional structures of the Treaties but did not
change the provisions of any of them. Subsequently, the ECSC Treaty expired in 2002 and
the EEC Treaty has been subject to changes (the Single European Act, 1987, the Treaty on
European Union (EU), 1993, the Treaty of Amsterdam, 1999, and Nice, 2003.
365
reactors in Western Europe which was not present in those of Soviet design
and control in the 1980s.
Construction of reactors declined and closures of some units were
initiated during the 1990s and it appeared that the electronuclear industry
was no longer viable. However despite reactor closures, developments in
nuclear technology increased the efciency levels of the operating reactors.
The result was that the electronuclear industry was able to provide one-
third of the electricity being used within the EU by the early 2000s.
In 2002 the European Parliament concluded that the Treaty was out-
dated, undemocratic and biased towards the electronuclear industry, and
proposed that the Treaty should be phased out at the same time as the
ECSC Treaty was due to expire.
16
These criticisms of lack of democracy
stem from a number of aspects of the Treaty provisions. They primarily
relate to the unchanged nature of the Treaty, which dates from the period
prior to the introduction of direct elections to the EP in 1979. As a conse-
quence of this there is no requirement for the Council of Ministers to do
anything more than formally consult the EP on substantive issues. Under
the provisions of the Euratom Treaty the unelected European Economic
and Social Committee (EESC) and the Scientic and Technical Commit-
tee (STC) (with a membership nominated by national governments) have
formal rights of consultation comparable to those of the European Parlia-
ment. Article 101 Euratom excludes the EP from involvement in interna-
tional agreements based on its terms. The EP is co-budgetary authority for
all the expenditure based on the Treaty.
Euratom legislation is subject to majority or qualied majority voting
(QMV) in the Council of Ministers,
17
but not to the co-decision proce-
dures. In other areas of action there have been substantial changes made
to the role of the EP which now has the power to act as co-legislator with
the Council on a considerable number of market related issues which have
an impact on the electronuclear industry. As there are a number of safety
related issues considered of importance to the public, the EP considers
that (I) t can be plausibly argued that it is precisely in these areas [ . . . ]
relating to safety [ . . . ] that the public most feels the need for rigorous
16
European Parliament, The EP and the Euratom Treaty; Past, Present and Future. Energy
and Research Paper ENER 114, European Parliament, 2002 at p. iv.
17
Art. 118 Euratom Treaty Save as otherwise provided in this Treaty, the Council shall
act by a majority of its members with the remaining sections of the article giving the
procedures to be used for the qualied majority vote in the Council of Ministers.
366
democratic scrutiny, control and accountability
18
and thus requires more
opportunity for the EP to perform an active role in the EAEC decision
making process.
IV. THE CHANGING NUCLEAR ENERGY POLICY ENVIRONMENT
The energy policy environment of the EU has radically altered since
the establishment of the constitutional Convention and the 2004 enlarge-
ment. The reality of the energy situation in the EU27 is that of increased
dependency on imported energy resources, a tendency which is likely to
continue as dependency is expected to grow to 70% of needs by 2030.
For some EU States nuclear electricity is the most cost effective option
(Slovakia), in others it is already widely used (France) and in several states
it is already the provider of 50% of electricity needs (Belgium, Sweden).
Inability to meet demand with alternative sources was a major factor in the
decision of French and Finnish governments to commission new reactors
and for the Lithuanian, Latvian, Estonian and Polish governments to enter
into discussion in 2006 for a joint project to build a new reactor at the
Ignalina site in Lithuania. Bulgaria and Romania, preparing for accession
in 2007,
19
have a high level of dependency on the electronuclear industry
and so support its continuation. In sum, the nuclear sector cannot be
ignored.
20
The EU is seeking to establish a Common Energy Policy which will
enable secure, competitive and sustainable energy to be available within
the EU. Yet, the approach adopted to date lacks coherence and effective-
ness. Despite many initiatives and targets being set, the EU is unable to
cut its greenhouse gas emissions and the nuclear technology is increas-
ingly seen as a means of contributing to the targets to cut emissions. The
electronuclear industry is more diverse as a result of increasing levels of
privatization of former state owned electricity utilities but continues to
receive signicant amounts of state aid. Despite this, the economics of
the industry, long considered to be the major obstacle to its development,
18
EP, supra, at p. 2.
19
The European Commission in its September Monitoring Report recommended to Bul-
garia to take administrative and operational action to implement the strategy of closure
of the reactor units at the Kozloduy Nuclear Power Plant.
20
Globally, 441 nuclear power plants were in operation as of Dec. 31, 2005, while 27 were
under construction. Asia is the main centre of expansion, accounting for 16/27 reactors
under construction and 24/34 of the last reactors to be connected to a grid.
367
appears more favourable in comparison with the increasing costs of other
energy sources.
21
The cost of generation of electricity depends on a number of factors,
including the location of the plant, the price of the fuel used (apart from
that for some renewables), the costs of labour in the industry and the costs
of borrowing to pay for the construction of the required power plant.
Unlike other major producers of electricity, coal and natural gas, nuclear
prices are not determined by uctuations in price of the basic raw materi-
als. The price of nuclear electricity is mainly derived from the capital costs
needed for the nuclear power plants. An advantage of the electronuclear
electricity for the consumer is the stability of price and guarantee of supply.
What is apparent is that none of the most commonly used technologies is
the cheapest in all situationsthere is both room and need for coal, gas
and nuclear resources to be utilized to meet the increasing demand for
energy.
22
In combination, these factors have led to a signicant growth
in support for the nuclear sector, which is further enhanced by concerns
about the rising price for oil and natural gas.
But the electronuclear industry is surrounded by many controversies,
such as the provision of state aid to the industry, the safety of the indus-
try, connections with the military use of the technology, the safety of the
nuclear power plants and the safe disposal of high level radioactive waste.
Post 2001 the possibility of terrorist attack on a nuclear installation has
also been added to the list of concerns of the politicians and public alike.
As a result, national governments and their electorates have very differing
and seemingly irreconcilable views on the future of nuclear electricity.
Convergence of views on the appropriate competence for the EU in the
development of an EU nuclear energy policy appears to be as far distant in
2006 as it was when the Euratom Treaty was adopted in 1957.
21
Mid Sept. 2006, oil prices were around $60 a barrel, in contrast to highs of almost $70 a
barrel earlier in the year. Problems for Europes economic development come not solely
from the fact of high prices which, if consistently high may be dealt with. The problems
are of volatility, which is difcult to predict. Although there was a fall in the price of oil
during 2006, prices have uctuated signicantly in recent years, having been close to
$10 a barrel in the late 1990s.
22
NEA/IEA Projected costs of generating electricity2005 update. Joint report, OECD
Paris, 2005, at 81.
368
5. THE CONVENTION AND THE EURATOM TREATY
The most recent debate about the founding
23
Treaties of the EU was
that of the Convention on the Future of Europe in 2002 and 2003. The
Convention was an innovative format for the discussion of Treaty changes.
Legally the outcome of the Convention would require the convening of
an Intergovernmental Conference of the Heads of Government of the EU
States to decide on any proposals for change. But the Heads of Govern-
ment of the EU Member States
. . . had through an ingenious blend of ambition and ambiguity left
the objective of the Convention entirely open-ended. If the Convention
wished to do so, it could change the face of the Union, or create the impres-
sion that it has changed or perhaps merely tinkered at the edges.
24
The Convention had as its President Valry Giscard dEstaing. As an
individual he dominated the Conventions deliberations and faced much
criticism as a result. Given the timetable which the Convention was required
to work towards, merely 18 months, it is both surprising how much was
accomplished and unsurprising that Mr Giscard dEstaing as President and
Mr Jean-Luc Dehaene and Mr Guiliano Amato as his deputies should have
played such important roles in directing the deliberations.
Although identied as one of the four founding Treaties, it appeared
that little attention was paid to the Euratom Treaty during the Convention.
The approach initially favoured by Mr Giscard dEstaing was to make only
minor technical adjustments to the Treaty and import its articles whole-
sale into the TCE. This however prompted disagreement from a number
of Convention delegates and environmental groups. The major objection
to the inclusion of the Euratom Treaty in the Constitutional Treaty centred
on a view that by including it in body of the Treaty, supranational action
by the Union would be extended to areas over which national governments
would not want interference (i.e., the choice of energy resources). It would
also seem to introduce an obligation for all Member States of the EU to
introduce nuclear power plants and reactors.
Despite the limited time which the Convention devoted to it, a number
of alternative scenarios for the Treaty were identied and discussed. They
included its repeal, additions to the Treaty and/or simplication of its
23
These were identied as the Community Treaties and the Treaty on European Union.
24
G. Milton and J. Keller-Noellet, The European Constitutionits origins, negotiation and
meaning, John Harper Publishing 2005, at p. 30.
369
terms. However it was not considered appropriate to substantially amend
the Treaty or to change its nature from that of primary legislation.
25
The
Euratom Treaty was regarded by the Praesidium of the Convention as
being a distinct, complex and technical subject which it was not appropri-
ate for the Convention to deal with. Working Group III on Legal Personal-
ity had reached a broad consensus that the EU should have a single legal
personality to replace the existing legal personalities deriving from the
separate Treaties. But in view of certain specic problems relating to the
Euratom Treaty, it was felt that the possible implications of merging this
Treaty needed to be further investigated.
26
This view went unchallenged
by most members of the Convention. Andrew Duff, a Convention mem-
ber, concluded that Given the essentially controversial nature of nuclear
power but also because of lack of time the Convention was unable to
reach consensus on whether to repeal, assimilate or amend the Euratom
Treaty.
27
It was decided instead to incorporate any changes which were required
for the Euratom Treaty into a Protocol annexed to the Constitutional
Treaty.
28
The changes were quite small and related mainly to the adaptation
of the Treaty to the new rules for institutional and nancial arrangements.
The Treatys legal personality remained unchanged. The limited role of
the EP in the decision making process was also unchanged. In addition
to the Protocol to amend the Treaty, a Declaration was also appended to
the Constitutional Treaty on behalf of the States of Germany, Ireland,
Hungary, Austria and Sweden noting that the Euratom provisions had not
been altered since 1957 and supporting the idea of an inter-governmental
conference to review as soon a possible.
29
But not all the Member States
with criticisms of the Euratom Treaty signed the Declaration, Denmark
being a notable exception.
30
During the Inter-governmental Conference
(IGC) which followed the Convention, while Ireland and some other
25
Secretariat of the European Convention. Suggested Approach for the Euratom Treaty,
CONV 621/03 Brussels, March 14, 2003, paras. 2 and 5b)(ii).
26
Para. 15 of the Final report of Working Group III.
27
A. Duff, The Struggle for Europes Constitution, Federal Trust. 2006, at p. 167.
28
Protocol amending the Euratom Treaty, CONV 850/03 at 236.
29
Declaration 44 annexed to the TCE
30
Denmark is a state with a strong anti-nuclear policy where there has been signicant
investment in the development of alternative renewable sources of electricity generation
particularly in wind power development.
370
Member States proposed a more extensive debate on Euratom, it was clear that
there was no consensus in support of this.
31
This outcome was not unexpected as regards the Convention or the
IGC. The Euratom Treaty was framed as a traditional statist model treaty,
based on intergovernmental action. Divergent national interests and policies
remained at the heart of the debate in the Convention. The Euratom Treaty
was not part of the pillar structure of the Treaty on European Union which
was under scrutiny by the working groups of the Convention. It could not
be used to identify the core values of the Union which its citizens could
appreciate. It is addressing issues in a narrow eld of economic activity. The
Convention on the Future of Europe was not an intergovernmental confer-
ence of the type convened in the past by the national governments of the EU
to amend the Treaties. Instead it
. . . was a conscious effort to encourage a debate with all sections of
society. It is difcult to conclude that the content of this debate had any
major inuence on its outcome. But it had a symbolic impact in that it
demonstrated the determination of Europes leaders to break with the past,
there was to be no more secret diplomacy; instead the people were being
consulted not just at the end of the process but throughout.
32
But the Euratom Treaty is dealing with a particular sector of indus-
try which is reluctant to engage in open debate. As such, discussion of the
terms of the Treaty would not easily t into this aspect of the Conventions
mandate.
There is much misinformation and lack of information about the tech-
nology being used. For example, in a Eurobarometer survey in 2005, 74% of
respondents reported they were not well informed about radioactive waste.
33
In some States of the EU where there is a phasing-out programme in place,
the public appear to have been able to openly participate in a national debate
about its merits. However it is still evident in those States, particularly Aus-
tria and Germany, that imported electricity is needed to meet demand, and
some of that imported electricity is generated in nuclear reactors, a fact not
generally known to the public of those states. In other States, where there has
31
Irish Government, Department of Foreign Affairs, The European ConstitutionWhite
Paper, June 2005, at 92.
32
Milton and Keller-Noellet, op. cit., at 26.
33
Eurobarometer, Radioactive Waste Special report no 277, June, European Commission,
2005, q1.
371
been more open debate about the use of the technology, e.g. in Finland, the
outcome has been to support new developments. In France the concern of
the public about the safety of the national electronuclear industry was met
prior to 2001 by an open-door policy at the reactors. The terrorist attacks
in the US on September 11
th
2001 however raised security concerns and this
policy is more constrained than before.
VI. A NEW NUCLEAR DAWN?
Recent events have moved very swiftly in the debate about the use of the
nuclear technologies as a means of generating electricity in sufcient quan-
tities to meet the EUs growing demand. From a situation of uncertainty
about the future use of nuclear energy as expressed in the somewhat cautious
terms of the EUs Green Paper on the Security of Access to Energy in 2000,
34
interest in the use of nuclear generation of electricity has increased. The
Euratom Treaty has demonstrated its usefulness in recent years as the interest
in the industry has increased. The reluctance of the Convention to repeal the
Treaty may be partly attributed to this rise of interest.
The electronuclear industry is a divisive issue on which it is difcult
to reach agreement among the Member States and as a result, support to
maintain the Treaty is also lacking. EU competence in energy policy is the
subject of difcult and highly political debate. This has created a difcult
policy environment in which to develop an EU nuclear energy policy. The
situation is similar to that of the 1950s, which saw the birth of the Treaty.
The variables of the energy policy environment of the 2000s differ from
those of 1957 but the outcome is the samedivergent national policies
which are difcult to reconcile.
Amongst the changed variables of the energy environment are concerns
about the most effective measures to deal with aspects of safety of installation
and decommissioning of ageing reactors. These concerns were not driven by
the Convention deliberations, although the division of EU and national com-
petences for action on safety at installations and safe management of waste
produced by the industry is highly controversial. The driving force of the
34
Nuclear energy had been classied respectively as a less than perfect energy option . . . ,
(one of the) undesirables, . . . , a source of energy in doubt, . . . , tainted by the origi-
nal sin of dual usagecivil and military. European Commission, Towards a European
Strategy for the security of energy supplyGreen Paper COM (2000) 769 nal, Brussels,
November 2000, at 3132.
372
debate about safety of the electronuclear industry has been the need to meet
the challenges of the 2004 enlargement of the EU. The accession of Bulgaria
and Romania in January 2007 will complete this enlargement process and at
the same time add to the concerns about safety in the nuclear sector.
The prospect of enlargement of the EU to include States of the former
Soviet Union in the early 1990s acted as a catalyst for action in the eld.
Many of the reactors at the nuclear power plants in the candidate states were
based on graphite moderated light water reactors (RBMK) similar to that of
Chernobyl. The problems of the Chernobyl type reactors were that the safety
standards had been sacriced to the needs of building reactors which would
serve dual purposes and have the potential to meet both military and civilian
needs. In addition to this, the political structures in the former Soviet Union
raised concerns about the absence of an overall safety culture in the plants.
Once the formal application and accession process was begun, the pro-
spective new member states were the subject of intensive review in all areas
of economic and political development, to determine if they fullled the core
requirements and conditions of membership. Amongst these was that of bring-
ing their nuclear reactors to the same standards of safe operation as those oper-
ating in the existing member states. A mandate was given to the Commission,
and in particular DG TREN, enabling it to play a lead role in the investigation,
analysis and monitoring of the various reactors in the candidate states.
The mandate for the Commission was possible because of the powers
conferred on the Community by the Euratom Treaty. Working with the Inter-
national Atomic Energy Agency (IAEA) and supported by the duty of accept-
ance by the candidate States of the legal acquis of the Euratom Treaty, the
Commission was involved in making recommendations which have led to the
closure of some reactors and the introduction of radical measures to improve
safety in others. These closures have been the subject of much controversy
amongst all the EU Member States, old and new, those in which there is sup-
port for the industry and those where there is opposition to its use. However,
closure programmes have been carried out, supported by EU funding.
There is a high dependency on nuclear electricity in the new Member
States, with little prospect of quickly and easily nding alternatives and com-
mitment to further developments.
35
Whilst it was generally acknowledged
that the EU has a comprehensive nuclear safety regime based on international
35
Latvia, Estonia, Lithuania and Poland agreed to the construction of a new reactor at the
Ignalina power plant in 2006.
373
standards, there was nevertheless signicant concern that as a result of the
accession of the new States the measures might become less stringent. It is
no longer desirable to consider nuclear safety in a purely national perspective.
Only a common approach can guarantee the maintenance of a high level of
nuclear safety in an enlarged EU . . . .
36
In 2002 the European Commission
introduced a Nuclear Safety Strategy including a series of legislative measures
targeting safety at nuclear installations and also national arrangements for
funding to sustain the decommissioning of questionable reactors. The view
of the Commission was that this legislation should be in place before the new
Member States acceded but this was not achieved.
37
The objective of the proposed legislation is to change aspects of the
non-binding acquis
38
i.e., of the voluntary harmonisation of national
safety practices. The national regulatory authorities will retain responsibil-
ity for safety at the national installations, but with increased competence
for the EU in the monitoring of the national provisions. An important
element of the proposed legislation was a denition of nuclear installa-
tionsthat is to say, any civilian facility and its associated land, buildings
or equipment used throughout the nuclear fuel cycle until the facility is
cleared of any radiological restrictions placed on its use. This includes
the processing, use, handling, storage and disposal (temporarily or perma-
nently) of radioactive materials and would bring into the competence of
the EU aspects of the safe management of high level radioactive waste,a
major problem for the industry.
The legal basis for the proposals comes from several articles of the
Euratom Treaty. Article 2b) stipulates that the Community should establish
uniform safety standards to protect the health of workers and the general
public and ensure that they are applied. Article 30 gives greater clarity and
denition to the expression standards. Article 31 provides for the scrutiny
of the legislation by a group of scientic experts appointed by the Member
36
European Commission, Nuclear Safety in the EU, COM (2002) 605 nal, Brussels
November 6, 2002 at 11.
37
The nuclear package, proposed by the Commission Nov. 6, 2002 comprised:
-Framework Directive on safety of nuclear installations, (not adopted at time of writing)
Directive on radioactive waste, (not adopted)Decision authorising the Commission to
negotiate an agreement with Russia on trade in nuclear materials (adopted by the European
Council, Nov. 6, 2002).
38
This so-called non-binding acquis is based on a Council Resolution of July 22, 1975
(77/C 181/1) which recommended aligning safety requirements in the context of a har-
monised approach that would draw on collaboration between the national governments.
374
States and consultation of the European Parliament. Article 32 provides for
revision of the basic safety standards. Although these articles do not include
the safety of the installations, a ruling by the European Court of Justice
(ECJ) in December 2002
39
had conrmed that the technical competence
of national authorities to deal with the safety of nuclear installations did
not preclude the EU from legislating on the issue. In the opinion of the
ECJ, it was not appropriate for the safety of the workers and the public to
be seen in some way as separate from the issue of safety of the installations
themselves.
Safety issues do change over time as new technology is developed and
awareness and understanding of the dangers from exposure to ionising
radiation increases. The IAEA standards are based on the principle of pro-
tection of people to the same level all the time. This is extremely difcult
to achieve. But as the safety problems which are being addressed are the
same, the national operators and regulators of the nuclear power plants
are required to ask themselves similar sorts of questions. The underlying
approach of the European regulators is that there should be a continuous
improvement in the levels of safety at nuclear installations of all types. In
France, the conclusion has been reached that an acceptable level of risk
can only result from a constant confrontation between what is desirable
and what is possible.
23
The existence of the Euratom Treaty provides a
legal framework for the EU States to provide this constant confrontation
and work together to ensure that people are protected to the same degree
all the time.
The EP tabled more than 100 amendments to the proposed legisla-
tion during 2003. Many of the EPs amendments were focused on the
provisions dealing with the national nancing arrangements for decom-
missioning. The European Commissions view was that the EPs expec-
tations on nancing were too high and would not be acceptable to the
Council of Ministers. The EP amendments that were adopted were those
relating to public information dissemination and research and technology
development.
In November 2003 deadlock remained in the Council of Ministers as
the Swedish, Finnish and British governments proposed a non-legally bind-
ing alternative to the proposed directives. At the same time the commit-
ment of the European Commission to the proposals remained unaltered:
39
ECJ, Case C29/99, [2002] ECR.
375
A Community intervention is indispensable to guarantee the main-
tenance of a high level of nuclear safety within the enlarged European
Union . . . . The absence of Community legislation would be prejudicial to
Community citizens and to the interest of the enlarged EU.
40
However, in 2004 the European Commission adopted amended propos-
als for the Directives as an attempt to break the deadlock, but the legisla-
tion is unlikely to be adopted before 2007 as a result of the strength of the
national interests continuing to oppose it.
VII. THE VALUE ADDED OF THE TREATY
Irrespective of the outcome of the adoption of this legislative package,
it is apparent that there are opportunities to respond to other changes in
the nuclear energy policy environment using the legal basis of the Euratom
Treaty. In 2002, state aid was agreed for British Energy (BE). The UKs pri-
vately owned nuclear generator had been experiencing nancial difculties
during 2002, and an approach was made to the UK government for aid to
continue operating. The UK government provided BE with a credit facility
of 410 million and produced a re-structuring plan for the company. The
restructuring plan transferred BEs nuclear waste liabilities to the UK gov-
ernment, a series of measures worth some 6 billion of state aid. Following
an investigation of the restructuring proposals the measure was approved by
the European Commission. It was agreed by the Commission that it was
appropriate to address the objectives outlined and derived from the Euratom
Treaty articles relevant to worker safety and public protection.
41
In addition, EC competence to take action on state aid to industry that
might cause distortion in the electricity market may be used. In February
2005 the Finnish government issued a licence for the construction of an
advanced Generation III European Pressurized Water Reactor (EPR) based
on Pressurized Water Reactor (PWR) technology at the Olkiluoto site in
Finland. The impression given of the project was that it was being built and
developed without state aid. The European Renewable Energies Federation
40
Cf. the Commissions amended proposal for Council Directive ( Euratom) laying down
basic obligations and general principles on the safety of nuclear installations and amended
proposal for Council Directive ( Euratom) on the safe management of spent nuclear fuels and
radioactive waste, COM (2004) 526 nal, Brussels, Sept. 23 2004, 13 4.
41
EC Decision on State Aid which the UK government is planning to implement for BE
Plc. COM (2004) 3474 nal.
376
(EREF) led an action with the DG Competition of the European Commis-
sion calling for an investigation of the new reactor development on grounds
of violation of EU state aid requirements, export credits, public procurement
legislation and safety. The EREF complaint listed organizations not just in
Finland and France but also in Sweden and Germany as well as the govern-
ments of those countries as being in probable violation of EU legislation.
The complaint was lodged with DG Competition although no resolution
was reached at the time of writing, Spring 2007.
42
The importance of the challenge by the EREF is that it could estab-
lish the principle that the electronuclear industry should be subsidized as it
requires sizeable input of capital. But the agreement of the European Com-
mission for state investment, loans at special rates, and support for the export
of materials will not be based on the difculty of the nuclear sector operating
in the market without state support. The ndings of the European Commis-
sion will be based on the overall impact on the European energy market of
the production of electricity from the new reactor.
The EC rather than the Euratom Treaty was the basis of the 2006 ruling
of the Court of First Instance (CFI) in the case of a German tax exemption
scheme applied to nuclear power plants.
43
Provisions in German law require
nuclear power plants to set up reserves to cover the costs of disposing of
irradiated fuel and radioactive waste and closure of plants. These reserves
may be counted amongst the liabilities of the undertakings and are subject
to a tax rebate. In 1999 three German utilities requested that the European
Commission investigate the tax exemption scheme which was being applied
to those reserves. In presenting its ndings the CFI found that there was an
advantage from lower taxes to the nuclear power plants but that it did not
grant the specic advantage inherent to the idea of state aid.
The primary objective of the Euratom Treaty is to support the develop-
ment of the nuclear industry and provision for funding for research and
technology developments was included in the Treaty in 1957 (Article 7
Euratom). The EC on the other hand had no such provision for research
and technology funding it its original provisions. However, since the
1980s, the EUs has developed a successive series of Research and Technol-
ogy Development (RTD) programmes, which now include the Euratom
42
Correspondence with Dr Dorte Fouquet, Khubier Law Firm, Brussels, representing
EREF, July 2006.
43
Case T92/02, Stadtwerke Schwabisch Hall GmbH et al v the European Commission.
[2006] ECR.
377
programmes. In the Seventh Framework RTD programme (FP7) proposed
by the European Commission (20072013) the proposals for funding of
the Euratom Research Programme were also identied. But FP7 is a multi-
annual programme to run for seven years, and the Euratom regulations are
for a multi-annual programme for ve years. The possibility of an extension
of the Euratom funding is included for 20112013 to bring the funding for
both areas into line and enable more effective management of the transfer
of the funds to the national level. The Euratom budget was not forwarded
for scrutiny to the European Parliament with the other elements of the FP7
Budget, as this is not a requirement under the terms of the Treaty.
Agreement on the budget for the Euratom Research Programme 2007
2011 was difcult to achieve because of the divergent views of the national
governments about further developments in nuclear ssion technology. The
Austrian government exercised its prerogative of veto with regard to funding
for nuclear ssion
44
technology, other than that associated with decommission-
ing reactors and safe disposal of radioactive waste. Agreement was eventually
reached in the Council of Ministers on July 24
th
2006 with the bulk of available
funding being directed to new fusion technology developments. The resolution
of the controversy on this funding showed the versatility of the Euratom Treaty
to respond to the concerns of those who are not in favour of the continued use
of nuclear technology as well as those Member States which are.
Of the total budget for Euratom research of 2.7 billion euros, 2.1 billion
are to be allocated to fusion research
45
and in particular the development
of the International Thermonuclear Experimental Reactor (ITER) which is
under the auspices of the International Atomic Energy Agency (IAEA). The
agreement for the ITER development in Cadarache, France, was signed in
June 2006 and will include input from partners in Japan, China, India, Rus-
sia, South Korea and the United States. The ITER development is regarded
by many as having the potential to make a major contribution to sustainable
and secure energy supplies in Europe but is unlikely to be at the stage of com-
mercial production before 2050 because of the difculties of achieving and
maintaining the high temperatures needed for the reaction to take place.
44
Nuclear ssion is the process of splitting molecules of uranium235 in order to produce
energy and is the basis of the nuclear technology currently used.
45
Nuclear fusion is the process of fusing two hydrogen atoms to form a single atom of
helium. One gramme of the fuel produced can develop the same energy as 45 barrels
of oil. However the process requires extremely high temperatures, which it is not yet
possible to achieve in a reactor.
378
No funding facility was included in the Euratom to modernize or
upgrade the safety systems of the nuclear power plants. The European Com-
mission was however given the competence to issue loans to contribute to
modernization schemes by the Council in 1977.
46
This was the result of
pressure from the pro-nuclear governments of the EU. Companies in France,
Germany, Belgium, and Italy made use of 50 loans totalling awards of 2.8
billion euros between 1977 and 1987 (39 were awarded to developments
in France). As this was given to companies which had a great deal of state
involvement it was essentially state aid to the industry.
The changes in the geo-political situation in Europe following the
ending of the Cold War introduced the possibility of former Soviet States
becoming members of the EU. Signicantly, in 1994 a Council decision
47

amending a previous one of 1977, authorized the European Commission
to enable Euratom loans to be used to contribute to nancing needed to
improve safety and efciency of non EU Member States in Central and
Eastern Europe. The funds awarded included 212.5 million euros for the
upgrade of the Kozloduy nuclear power plant in Bulgaria, reactor units 5,6
(2000); 223.5 million euros for Cernavoda, unit 2 in Romania (2004);
83 million euros for completion of Khmelnitsky 2 and Rovno 4 in Ukraine
(2004) and 350 million euros for Belene in Bulgaria (2005). Controversy
surrounded these loans, in particular, concerns are that instead of being used
for up-grades or completion of plants already under construction they are in
fact funding of newly built equipment. Despite the controversy the support
continues as the safety concerns which have to be addressed are signicant.
VIII. THE FUTURE OF THE EURATOM TREATY
Since the summer of 2005 referenda results the EU has engaged in a
period of reection (inactivity) on the future of the EU and the difcul-
ties surrounding the ratication of the Constitutional Treaty. One of the
questions asked was that of possibilities to renegotiate the Treaty. The evi-
dence suggests it will be difcultRichard Baldwin points out that in many
respects the Constitution for Europe is an accidental Constitution which
emerged from the Conventions deliberations, despite the fact that the lead-
ers of the 15 Member States at the time of the Laeken declaration were not
46
Council Decision 77/270/Euratom of March 29, 1977.
47
Council Decision 94/179/Euratom of March 1, 1994 amending decision 77/270/
Euratom.
379
able to agree that a Constitution was needed. Now the situation is even
less favourable with 27 Member States. As the primary focus of the new
Member States is national security and economic benets, further pooling
of sovereignty is perceived as a sacrice rather than a necessity of European
integration.
What this means is that one of the strongest forces for a renewed Con-
stitutionthe desire to ensure that enlargement does not end the European
dream [ . . . ] is not nearly as strong in the EU25 as it was in the EU15
48
Despite the widely publicized problems surrounding the referendums
held in France and the Netherlands in 2005, ratication of the TCE
continued through 2006. In these circumstances it would be extremely
difcult to embark on a new draft constitution. Equally, there is little to
be gained by presenting the Constitution once again to the French and
Dutch populations. The period of reection was extended by agreement
at the June 2006 European Council Summit.
49
The German government
was asked to prepare an assessment of the state of the deliberations with
regard to the Constitutional Treaty with possible future scenarios for dis-
cussion during the German Council Presidency in the rst half of 2007.
It is unlikely that the outcome will be a grand design for the future
focusing on all aspects of the EUs activities.
The future of the Euratom Treaty is likely to be that of the current sta-
tus quoi.e. to leave the special regime of the Euratom Treaty unchanged.
This in turn will have implications for any proposals which may be made
for an Energy Chapter or EU Energy Treaty. It will undermine the EUs
commitment to achieve a coherent sustainable and competitive energy pol-
icy contributing to climate change. A number of factors contribute to this
conclusion. Although considered to be one of the founding Treaties of
the EU, the Euratom Treaty deals only to a limited extent with aspects of
policy development that contribute to a European energy sector. It is based
on intergovernmental action between the signatory states of the European
Atomic Energy Community. It was difcult enough to achieve agreement on
its terms in 1957. The national governments continue to be deeply divided
about the use of nuclear technology half a century later.
48
R. Baldwin, Trail to Failure; the History of the Constitutional Treatys Rejection and
Implications for the Future. CEPS Policy Brief No 104 of May 2006.
49
European Council Summit Meeting Minutes, Brussels, June 2006.
380
Whilst it would in principle be legally possible for a Member State of the
European Union to withdraw from membership of the EAEC, this would
be extremely difcult to achieve in practice. Since the Merger Treaty of 1967
the EAEC has shared the EUs institutional structures. The Euratom Treaty
is considered to be an element of the acquis communautaire which aspir-
ing Member States need to accept as a condition of EU membership. The
number of Member States committed to an active programme of use of
nuclear electricity has increased to 15 Member States out of 27. For some of
the new Member States, such as Lithuania, the opportunity of a secure indig-
enous supply of electricity, constituting a product of trade within the inte-
grated European energy market makes the electronuclear industry extremely
attractive. The Euratom Treaty , concluded for un unlimited period of time,
is unlikely to be repealed or even signicantly amended given the dynam-
ics of decision making and the unanimity requirement for changes to the
Treaty. Indeed the proposal by the European Commission to the Conven-
tion, known as the Penelope paper, did provide a realistic option for the
EU of how to accommodate the Euratom Treaty as a separate Treaty outside
the Constitutional Treaty framework.
50
IX. CONCLUSIONS
Will the Euratom Treaty be repealed? Never in my lifetime.
51
Overall there was little consensus for an extensive debate on the Euro-
pean Atomic Energy Community and the repeal the Euratom Treaty during
the deliberations of the Convention on the Future of Europe and the ensuing
Intergovernmental. The argument of this chapter has been that the national
differences that created a Treaty focusing on a limited sector of economic
policy in 1957 were those of a crowded national energy policy environment
which made consensus difcult. There have been changes in the national
nuclear energy policies in the 2000s but national differences and lack of
consensus are as deeply entrenched as they were in 1957. As a sector specic
Treaty dealing with a controversial energy resource there is no opportunity
or willingness for policy bargaining amongst the national governments to
produce an alternative.
50
Proposal for an Additional Act to be added to the TCE, on the Peaceful Use of Atomic
Energy.
51
Head of Unit DG TREN in correspondence with author July 2005.
381
The major concerns about the modern electronuclear industry in Europe
are the high level of state aid given to the increasingly privatized industry
which may act as a distortion of the market, safety of the nuclear installations
and the safe management and disposal of radioactive waste. These issues
may be addressed on the basis of the Euratom Treaty and the competences
given to the EU to manage the operation of the EUs electricity market. The
European Commission and its ofcials have developed a considerable exper-
tise in dealing with nuclear safeguard controls in EU nuclear installations
and monitoring levels of radioactive materials in the environment including
radioactive waste.
The national governments continue to jealously guard their compe-
tence and choose their national energy policies, particularly their rights to
choose the mix of energy resources. In March 2006 this was reafrmed as the
European Commission concluded that The new Energy Policy for Europe
52

should [ . . . ] fully respect Member States choices of energy mix.
53
Some
EU Member States are heavily reliant on the sector for their energy needs,
others are reviewing their national nuclear policy. France as a major supplier
and user of nuclear electricity would support the continued existence of the
Euratom Treaty. On the other hand
[t]he use of nuclear energy is not an option for Austria in the
future . . . .That choice has now been endorsed as a result of the consensus
among the Member States [on the retention of national sovereignty over the
choice of energy mix].
54
As the period of reection was drawing to an end in late 2006 a pro-
posal for an alternative was made by Andrew Duff
55
in which he outlined
the necessity to ring fence those areas of the 2004 text of the Constitutional
Treaty where there had been consensus and then to engage in a renegotiation
of other sections in a judicious, tactical and modernizing manner. In making
his proposals he pointed to the opportunity which the EUs Member States
had to return to a discussion of the Euratom Treaty which had not been
52
Green PaperA European Strategy for Sustainable, Competitive and Secure Energy,
COM (2006) 105 nal, March 8, 2006, Brussels.
53
Council of the European Union. 2717
th
Meeting of Transport, Telecommunications and
Energy Council, Brussels March 14, 2006, at 2.
54
M. Bartenstein, Austrian Energy Minister, speech following Extraordinary Energy
Council meeting held in Brussels, March 14, 2006.
55
A. Duff, Plan B: How to Rescue the European Constitution. Notre Europe, Studies and
Research No 52, October 2006. Intrenet resource at notre-europe.eu.
382
taken advantage of during the Constitutional Convention. However other
issues of institutional change, the nature of future EU foreign and security
policy, the absorption capacity of the Union vis--vis further enlargement
appear to be much higher on the political agenda of the national govern-
ments then a return to a Treaty about which there was no consensus to make
changes during the Constitutional Convention or the subsequent Intergov-
ernmental Conference.
The Convention was charged with the task of reviewing the founding
treaties to make the EU more democratic, transparent and efcient. In the
light of the lack of political willingness to make changes to the Euratom
Treaty the question then remains about the extent to which the Treaty has
the potential to play a role in future developments to meet these objectives.
The continued existence of the Treaty provides a legal and political basis
for challenges to be made about the use of the nuclear technology from
those who oppose it and an opportunity for debate with those who support
future developments. The Euratom Treaty keeps open debate about aspects
of energy policy in the EU which might not otherwise be possible given
the wide spectrum of national opinions. The Euratom Treaty may not be
the perfect solution but it does suit national governments and their nuclear
energy policiesboth those who support the technology and those who
oppose its use.
See further:
Barnes P.M., Nuclear Safety for Nuclear Electricity: the Search for a Solid Legal
Basis, 45 Managerial Law (2003) Vol 45, part 5/6
Barnes P.M.,The Nuclear Industry: a Particular Challenge to Democracy in Europe?,
48 Managerial Law (2006) Vol 48, part 4
HOW FAR BEYOND PAX WESTPHALICA
Stphane Beaulac*
I. INTRODUCTION
International legal scholars have made much of 1648,
1
as David
Kennedy succinctly and accurately put it. This is of course the year the
Thirty Years War ended in Europe with the Peace of Westphalia. What
has been known as the Westphalian model of international relations
holds that this German principality was the cradle of our modern interna-
tional state system, where the distinct separate polities of the Holy Roman
Empire became sovereign.
2
The traditional European international law
* An earlier version of this paper was given at the 6th Biennial Conference of the European
Community Studies AssociationCanada, entitled A Constitution for Europe? Gover-
nance and Policy Making in the European Union, held in Montreal, Canada, on 2729
May 2004. It was rst published in the conference proceedings, under the title Constitutio
Westphalica: Europes First Constitution?, and draws from the authors book, The Power
of Language in the Making of International LawThe Word Sovereignty in Bodin and Vattel
and the Myth of Westphalia (Leiden & Boston: Martinus Nijhoff, 2004).
1
D. Kennedy, Primitive Legal Scholarship, 27 Harvard International Law Journal
(1986), 1, at 1.
2
See among numerous international legal commentators who take that position or assume
its validity, H. Wheaton, History of the Law of Nations in Europe and AmericaFrom
the Earliest Times to the Treaty of Washington, 1842 (New York: Gould, Banks, 1845), at
p. 69; J. Westlake, Chapters on the Principles of International Law (Cambridge: Cambridge
University Press, 1894), at p. 66; L.F.E. Oppenheim, International LawA Treatise, vol.
1, Peace (London: Longmans, Green, 1905), at p. 60; A.P. Higging, International Law
and the Outer World, 14501648, in J.H. Rose, A.P. Newton and E.A. Benians (eds.),
The Cambridge History of the British Empire, vol. 1, The Old Empire, From the Beginnings
to 1783 (Cambridge: Cambridge University Press, 1929), pp. 183, at p. 206; R.A. Falk,
The Interplay of Westphalia and Charter Conceptions of the International Order, in
384
system dates from the Treaty of Westphalia of 1648, which marked the
formal recognition of states as sovereign and independent political units,
3

wrote Charles Rhyne. Accordingly, Westphalia has been considered the
cornerstone of the modern system of international relations,
4
and of
international law.
5
The question on many European legal scholars minds is whether we
are having another Westphalian moment with the combined effect
6
of the
eastern enlargement of the European Union and the attempted adoption of
the Treaty Establishing a Constitution for Europe.
7
In other words, are we in
the middle of another paradigm shift in the organisation of Europe, for the
now 27 Member States of the Union? Or, on the other more pessimistic side,
are Valry Giscard dEstaing and the architects of the latest super-version of
Europe not more likely to join the like unsuccessful visionaries such as Wil-
liam Penn with his Essay towards the Present and Future Peace of Europe by
R.A. Falk and C.E. Black (eds.), The Future of the International Legal Order, vol. 1, Trends
and Patterns (Princeton: Princeton University Press, 1969), pp. 32; and W.G. Grewe, The
Epochs of International Law (Berlin & New York: Gruyter, 2000), at p. 7.
3
C.S. Rhyne, International LawThe Substance, Processes, Procedures and Institutions
for World Peace with Justice (Washington: CLB Publishers, 1971), at p. 9. [emphasis
added]
4
G. Poggi, The Development of the Modern StateA Sociological Introduction (London:
Hutchinson, 1978), at p. 89. See also H.J. Morgenthau, The Problem of Sovereignty
Reconsidered, 58 Columbia Law Review (198), 341, at 341; and K.J. Holsti, Peace and
WarArmed Conicts and International Order, 16481989 (Cambridge: Cambridge
University Press, 1991), at p. 25.
5
Cf. P. Daillier and A. Pellet (eds.), Nguyen Quoc DinhDroit international public, 5th
ed. (Paris: Librairie gnrale de droit et de jurisprudence, 1994), at p. 50: Juridique-
ment, les Traits de Westphalie peuvent tre considrs comme la base de dpart de
toute lvolution du droit international contemporain. See also D. Anzilotti, Cours de
droit international, vol. 1, IntroductionThories gnrales (Paris: Sirey, 1929), at p. 5;
and L. Gross, The Peace of Westphalia 16481948(1948), 42 American J. Intl L. 20,
at 28.
6
On the interrelation between the enlargement and the constitutionalisation of the Euro-
pean Union, see N. Walker, Constitutionalising Enlargement, Enlarging Constitutional-
ism, 9 European Law Journal (2003), 365; W. Sadurski, Charter and Enlargement, 8
European Law Journal (2002), 340; and J.H.H. Weiler, Europe 2000The Constitu-
tional Agenda, in A.E. Kellermann et al. (eds.), EU EnlargementThe Constitutional
Impact at EU and National Level (The Hague: T.M.C. Asser Press, 2001), pp. 3.
7
CIG87/2/04 REV 2. The nal version of the text was adopted at the Conference of the
Representatives of the Governments of the Member States on 29 Oct. 2004. The docu-
ments are available at: europa.eu.int/constitution/index_en.htm
385
the Establishment of an European Dyet, Parliament or Estates,
8
Charles Irne
Castel Abb de Saint-Pierre with his Mmoires pour rendre la Paix perptuelle
en Europe,
9
and (to a lesser extent) Immanuel Kant with his Zum ewigen
Frieden.
10
Ironically, this latest episode in the development of a formal con-
stitution for modern Europe struggles over, indeed is haunted by, that
structural ide-force
11
of state sovereignty deemed born in Westphalia.
As examples, one may think of such issues as the division of competences
between the Union and the Member States, the reforms of the institu-
tions of the Union, the changes in the jurisdiction of the Court, even the
protection of fundamental rights, all of which must be reconciled with
sovereignty-related arguments. This seems to testify to the profound social
effect that the Peace of Westphalia has had on the shared consciousness of
humanity. But is it really the case? Is the Westphalian orthodoxy histori-
cally founded? Can a powerful idea like sovereignty be empirically traced
to such one event?
The chapter argues that no, the social construct that is sovereignty
has formed part of a continuing system originating long before the Thirty
Years War and continuing long after the Peace of Westphalia. What hap-
pened in 1648 did not at all put an end to multi-layered authority in
Europe, but simply constituted a case of redistribution of power within
the Holy Roman Empire. In that sense, these international treaties are
not dissimilar to the many that have created the European Union in the
second half of the 20th century, including the latest such proposal with
the Constitutional Treaty for Europe. The reality of imperial overlordship in
fact long survived Westphalia and, as history tends to repeat itself, one can
indeed contend that, conversely, the reality of state sovereignty will also
survive the next attempt to provide a (pseudo) constitution for the Europe
of 27 Member States.
8
W. Penn, Essay Towards the Prefent and Future Peace of Europe by the Eftablifhment of an
European Dyet, Parliament or Eftates (London: n.b., 1693).
9
C.I.C. de Saint-Pierre, Mmoires pour rendre la paix perptuelle en Europe (Cologne: Jac-
ques le Pacique, 1712). This work was later reprinted in two volumes under the name
of Projet pour rendre la Paix perptuelle en Europe (Utrecht: Antoine Schouten, 1713).
10
I. Kant, Zum ewigen Frieden (Leipzig: Schubert, 1838), rst published in 1795.
11
See A. Fouille, Lvolutionnisme des ides-forces (Paris: Flix Alcan, 1890), at p. XI.
386
II. THE PEACE OF WESTPHALIA
This section examines the treaty documents of the constitutio Westphalica,
with a view to proving that the dogma according to which 1648 can be cred-
ited for the birth of the modern state system is unsupported by historical
facts. The rst thing to point out is that the Peace of Westphalia, formalised
on 24 October 1648, was made of two separate agreements:
12
the Treaty of
Osnabrck, concluded between the Queen of Sweden and her allies, on the
one hand, and the Holy Roman Emperor and the German monarchs, on the
other; and, the Treaty of Mnster, concluded between the King of France and
his allies, on the one hand, and the Emperor and the Princes, on the other.
13
Although the Treaties paid homage to the unity of Christendom,
14
it
is signicant that they involved numerous polities.
15
Sweden and France
insisted on having the German Princes as parties to the Peace, a strategy
12
However, it was imperative for the participants to achieve a unitary peace; see H. Steiger,
Concrete Peace and General Order: The Legal Meaning of the Treaties of 24 October
1648, in K. Bussmann and H. Schilling (eds.), 1648War and Peace in Europe, vol.
1, Politics, Religion, Law and Society (Mnster: Westflisches Landesmuseum, 1998),
pp. 437, at p. 444.
13
For the full text of the Osnabrck and Mnster Treaties, in both their Latin and English
versions, see C. Parry (ed.), Consolidated Treaty Series, vol. 1 (Dobbs Ferry, U.S.: Oceana
Publications, 1969), pp. 119 and pp. 270. [hereinafter Treaty Series] It is the English
translation that will be used here, which Parry said is taken from the General Collection
of Treatys; the old English spelling used will be modernised.
14
Towards the end of the Osnabrck Treatys preamble, it stated that the parties agreed
among themselves, to the Glory of God, and Safety of the Christian World; similarly,
in the Mnster Treaty, one can read that the agreement was reached to the Glory of
God, and the Benet of the Christian World; [spelling modernised] see Treaty Series,
id., at pp. 199200 and p. 321. See also A. Osiander, The States System of Europe, 1640
1990Peacemaking and the Conditions of International Stability (Oxford: Clarendon
Press, 1994), at pp. 2730, who notes that the rulers representatives at the peace confer-
ences viewed themselves as part of a community based on the Christian religion.
15
The preamble of the Osnabrck Treaty, in ne, stated: [T]he Electors, Princes and States
of the Sacred Roman Empire being present, approving and consenting; likewise, the
Mnster Treatys preamble ended: [I]n the presence and with the consent of the Electors
of the Sacred Roman Empire, the other Princes and States; Treaty Series, id., at p. 200
and p. 321. [emphasis in original] [spelling modernised] As well, there are mentions
of the different polities making up the Empiresome 332 of themthroughout the
two Treaties of Westphalia; A.D. McNair, Law of TreatiesBritish Practice and Opin-
ions (Oxford: Clarendon Press, 1938), at p. 70. See also R. Redslob, Histoire des grands
principes du droit des gensDepuis lantiquit jusqu la veille de la grande guerre (Paris:
Rousseau, 1923), at pp. 215216.
387
obviously meant to weaken the position of the Emperor vis--vis the Princes.
In fact, the Treaties were instruments not only to bringing peace between the
former belligerents, but also to dealing with constitutional matters within
the Empire.
16
Indeed, Article 70 of the Mnster Treaty declared:
For the greater Firmness of all and every one of these Articles, this
present Transaction shall serve for a perpetual Law and established
Sanction of the Empire, to be inserted like other fundamental Laws
and Constitutions of the Empire in the Acts of the next Diet of the
Empire, and the Imperial Capitulation; binding no less the absent
than the present, the Ecclesiastics than Seculars, whether they be the
States of the Empire or not: insomuch as that it shall be a prescribed
Rule, perpetually to be followed, as well by the Imperial Counsellors
and Ofcers, as those of other Lords, and all Judges and Ofcers of
Courts of Justice.
17
This large number of actors from both within and without the Empire
18

seem, a priori, to bear witness to the termination of the Imperial transcen-
dental domination in Europe.
19
However, the following analysis of West-
phalia will go beyond this facade and will show that the Peace did not signal
the death toll of the Empire in favour of the German distinct separate poli-
ties. Thus the actual agreements reached in 1648 must now be scrutinised
to ascertain their main objects and material provisions, which have nothing
to do with the creation of a state system.
16
See R. Lesaffer, The Westphalia Peace Treaties and the Development of the Tradition
of Great European Peace Settlements Prior to 1648, 18 Grotiana (1997), 71, at 71 and
77; and C. Bilnger, Les bases fondamentales de la communaut des tats, 63 Receuil
de cours de lAcadmie de Droit international (RCADI) (1938), 129, at 156, who wrote:
Le Trait de Westphalie, gnralement regard comme la base juridique et positive de
la premire priode du droit des gens moderne, tait, en mme temps quun trait de
droit des gens, une loi fondamentale constitutionnelle de lancien Empire allemand.
17
Treaty Series, supra, note 13, at 353. [emphasis added] [spelling modernised]
18
See Holsti, supra, note 4, at p. 25, who wrote: The congresses [of Westphalia] brought
together the main heterogeneous political units of Europe at that time. There were
145 delegates representing 55 jurisdictions, including the Holy Roman Empire and all
the major kingdoms except Great Britain [and Russia], as well as signicant duchies,
margraves, landgraves, bishoprics, free cities, and imperial cities. [footnotes omitted]
See also V. Gerhardt, On the Historical Signicance of the Peace of Westphalia: Twelve
Theses, in K. Bussmann and H. Schilling (eds.), 1648War and Peace in Europe, vol.
1, Politics, Religion, Law and Society (Mnster: Westflisches Landesmuseum, 1998),
pp. 485.
19
See Steiger, supra, note 12, at p. 422.
388
1. RELIGIOUS ISSUES
First and foremost, building on the acquis from the Peace of Augsburg
in 1555,
20
the main object of the Peace of Westphalia was to establish a
regime on religious practice and denominational matters.
21
Although the
Westphalia Treaties did not explicitly abandon the principle that the mon-
arch could determine the religion of the land, they nevertheless provided for
some constitutional safeguards.
22
Indeed, several provisions were inserted to
circumscribe and curtail the Princes formerly absolute authority over the
religious sphere.
23
The most material one, at Article 5, paragraph 11, of the
Osnabrck Treaty, established that a ruler who chose to change his or her
religion could not compel his or her subjects to do the same.
24
Also, the Treaties formally recognised freedom of conscience for Catho-
lics living in Protestant areas and vice versa, which included protection for
worship practices and religious education. Article 5, paragraph 28, of the
Osnabrck Treaty thus read:
It has moreover been found good, that those of the Confession of
Augsburg [i.e. Protestants], who are Subjects of the Catholics, and the
Catholic Subjects of the States of the Confession of Augsburg, who
had not the public or private Exercise of their Religion in any time of
the year 1624, and who after the Publication of the Peace shall profess
and embrace a Religion different from that of the Lord of the Territory,
shall in consequence of the said Peace be patiently suffered and toler-
ated, without any Hindrance or Impediment to attend their Devotions
in their Houses and in Private, with all Liberty of Conscience, and
20
The Peace of Augsburg recognised and legitimised the Protestant religions (Lutheran
and Calvinist) and gave to the ruler the right to determine the religion of its subjects.
See J.-G. Gagliardo, Germany under the Old Regime, 16001790 (London: Longman,
1991), at p. 16.
21
See G. Pags, La guerre de trente ans16181648 (Paris: Payot, 1949), at pp. 247249.
See also, on the religious practices before and after 1648, S.D. Krasner, Sovereignty and
Intervention, in G.M. Lyons and M. Mastanduno (eds.), Beyond Westphalia?State
Sovereignty and International Intervention (Baltimore, U.S. & London: Johns Hopkins
University Press, 1995), pp. 228, at pp. 234236.
22
See A. Hobza, Questions de droit international concernant les religions , 5 RCADI
(1924), 371, at 377378.
23
See A.W. Ward, The Peace of Westphalia, in A.W. Ward, G.W. Prothero and S. Leathes
(eds.), The Cambridge Modern History, vol. 4, The Thirty Years War (Cambridge: Cam-
bridge University Press, 1934), pp. 395, at p. 416.
24
Treaty Series, supra, note 13, at 218219.
389
without any Inquisition or Trouble, and even to assist in their Neigh-
bourhood, as often as they have a mind, at the public Exercise of their
Religion, or send their children to foreign Schools of their Religion,
or have them instructed in their Families by private Masters; provided
the said Vassals and Subjects do their Duty in all other things, and hold
themselves in due Obedience and Subjection, without giving occasion
to any Disturbance or Commotion.
25
As well, such dissenters were not to be excluded from the Community
of Merchants, Artisans or Companies, nor deprived of Successions, Legacies,
Hospitals, Lazar-Houses, or Alms-Houses, and other Privileges or Rights.
26

People living in denominationally mixed citiesAugsburg, Dunckelfpiel,
Biberach, Ravensburg, Kauffbeurwere free to practice their religion with-
out any molest or trouble.
27
Furthermore, Osnabrck promoted equality between Catholics and Prot-
estants in the assemblies of the Diet and in other decision-making bodies of
the Empire.
28
For example, Article 5, paragraph 42, stated: In the ordinary
Assemblies of the Deputies of the Empire, the Number of the Chiefs of the
one and the other Religion shall be equal.
29
Likewise, in judicial procedures
at the Imperial Courts, a party could demand the religious parity of judges.
30

These rights afforded to the Lutheran Protestants (Confession of Augsburg)
were also extended to Calvinist Protestants (the Reformed).
31
It is interesting to draw a parallel with the Constitutional Treaty for
Europe, which provides for the constitutionalisation of a bill of rights.
32

25
See Treaty Series, id., at 228229. [emphasis in original] [spelling modernised]
26
Art. 5, par. 28, of the Osnabrck Treaty, id., at 229. [spelling modernised]
27
Art. 5, par. 24, of the Osnabrck Treaty, id., at 225227. [spelling modernised]
28
See Ward, supra, note 23, at p. 414.
29
Treaty Series, supra, note 13, at 234235. [spelling modernised]
30
Art. 5, par. 45, of the Osnabrck Treaty, id., at 237238.
31
See article 7 of the Osnabrck Treaty, id., at 239240. [emphasis in original] [spelling
modernised]
32
See E.M.H. Hirsch Ballin, The EU Charter of Fundamental Rights: A Building Block
for the European Constitutional Order, in A.E. Kellermann et al. (eds.), EU Enlarge-
mentThe Constitutional Impact at EU and National Level (The Hague: T.M.C. Asser
Press, 2001), pp. 31; and N. Walker, Protection of Fundamental Rights in the Euro-
pean Union: The Charter of Fundamental Rights, in P. Cullen and P.A. Zervakis (eds.),
The Post-Nice Process: Towards a European Constitution (Baden-Baden: Nomos Verlag,
2001), pp. 125. See also, on the Charter of Fundamental Rights in general, K. Lenaerts,
390
Article I9(1) reads: The Union shall recognise the rights, freedoms and
principles set out in the Charter of Fundamental Rights which constitutes
Part II, that non-binding instrument proclaimed at Nice in December
2000.
33
One can therefore argue that, similar to the Westphalia Treaties,
one of the main objects of the Constitutional Treaty for Europe, indeed one
of its three parts, also pertains to the protection of the rights and freedoms
of the people living on the territories.
34
Relevant as well is that the obli-
gations thus imposed fall on both the European Union and the Member
States,
35
much like the religious guarantees had to be provided for by both
the Holy Roman Empire and the German separate polities pursuant to the
provisions of the Peace of Westphalia.
36
2. TERRITORIAL SETTLEMENT
The second object of the Peace of Westphalia concerned territorial
settlement, which turned mainly on the satisfaction of Sweden and France.
Swedens traditional claims with respect to the south shore of the Baltic
region were given effect in the Treaty of Osnabrck. Accordingly, Western
Pomerania, the islands of Rgen, Usedom and Wollin, the bishoprics of
remen and Verdun, and the port of Wismar passed under the Swedish
La protection des droits fondamentaux en tant que principe constitutionnel de lUnion
europenne, in Mlanges en hommage M. Waelbroeck (Brussels: Bruylant, 1999),
pp. 423; H.G. Schermers, Drafting a Charter of Fundamental Rights of the European
Union in A.E. Kellermann a.o. (eds.), EU EnlargementThe Constitutional Impact at
EU and National Level (The Hague: T.M.C. Asser Press, 2001), pp. 15; G. de Brca,
The Drafting of the EU Charter of Fundamental Rights, 26 European Law Review
(2001),126; and K. Lenaerts and E. de Smijter, A Bill of Rights for the European
Union, 38 Common Market Law Review (2001), 273.
33
OJ 2000, C364.
34
See on the importance of the Charter of Fundamental Rights for the Constitutional
Treaty for Europe, E. Bribosia, La protection des droits fondamentaux, in P. Magnette
(ed.), La constitution de lEurope (Brussels: Editions de lUniversit de Bruxelles, 2002),
pp. 113, at pp. 128129.
35
Art. II111(1) provides: The provisions of this Charter are addressed to the institu-
tions, bodies, ofces and agencies of the Union with due regard for the principle of
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 applica-
tion 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.
36
See J.H.H. Weiler and S. Fries, A Human Rights Policy for the European Community
and Union: The Question of Competences in P. Alston (ed.), The EU and Human
Rights (Oxford: Oxford University Press, 1999), pp. 147.
391
Crown.
37
It must be emphasised, however, that the conveyances were not
totalSweden was to hold these territories as Imperial efs.
38
Indeed, Arti-
cle 10 of the Osnabrck Treaty repetitively stated that all transfers were in
perpetual and immediate Fief of the Empire.
39
The Swedish ruler was also
to occupy seats in the Diet to represent these regions within the Empire.
Pursuant to the Treaty of Mnster, France was granted territories with
all manner of Jurisdiction and Sovereignty, without any contradiction
from the Emperor, the Empire, House of Austria, or any other.
40
Unlike
Sweden, therefore, the French Crown received full title in, and authority
over, most transferred territories,
41
which included the bisoprics of Metz,
Toul and Verdun,
42
as well as the area known as Pinerolo.
43
The House of
Austrias rights in the region of Alsace were also conveyed to France,
44
but
not without a substantial qualication. Indeed, Article 92 of the Mnster
Treaty provided:
That the most Christian King shall be bound to leave not only the
Bishops of Strasbourg and Bae, with the City of Strasbourg, but
also the other States or Orders, Abbots of Murbach and Luederen,
who are in the one and the other Alsatia, immediately depending
upon the Roman Empire; the abbess of Andlavien, the Monastery
of St. Bennet in the Valley of St. George, the Palatines of Luzelftain,
and all the nobility of Lower Alsatia; Item, the said ten Imperial
Cities, which depend on the Mayory of Haganoc, in the Liberty
and Possession they have enjoyed hitherto, to arise as immediately
dependent upon the Roman Empire; so that he cannot pretend
any Royal Superiority over them, but shall rest contended with
the Rights which appertained to the House of Austria, and which
by this present Treaty of Pacication, are yielded to the Crown
of France. In such a manner, nevertheless, that by the present
37
See art. 10 of the Osnabrck Treaty, Treaty Series, supra, note 13, at 244249.
38
See Ward, supra, note 23, at p. 403404.
39
Treaty Series, supra, note 13, at 244247.
40
Art. 76, id., at 341. [emphasis in original] [spelling modernised]
41
See Ward, supra, note 23, at pp. 404405.
42
See article 71 of the Mnster Treaty, Treaty Series, supra, note 13, at 340.
43
See article 73 of the Mnster Treaty, ibid.
44
See article 74 of the Mnster Treaty, id., at 340341.
392
Declaration, nothing is intended that shall derogate from the
Sovereign Dominion already hereabove agreed to.
45
As a consequence, although they ofcially passed under the French
Crown, these parts of the Alsatian territory maintained a sui generis autono-
mist status based on some Imperial privileges.
46
Obviously, one can make an analogy with modern Europe and the fth
enlargement of the Union, which saw its overall territory increase substan-
tially with the number of Member States going from 15 to 27.
47
The latest
two phases of expansion, with 10 of its 12 new countries being from the
former Soviet Bloc, was meant to heal the rift opened up by World War II
and that continued throughout the Cold War.
48
Beside this geo-political
aspect of the enlargement, which makes it akin to the Peace of Westphalia,
what is signicant in modern terms is that the total population of the
European Union is now over 460 million people. As the authorities like
to point out,
49
this is more than the combined population of the United
States of America and the Russian Federation, which no doubt now makes
Europe a major actor (be it politically, economically, strategically) in a
multipolar world.
45
Id., at 345. [emphasis in original] [spelling modernised]
46
See Pags, supra, note 21, at pp. 258259. See also Redslob, supra, note 15, at p. 214,
footnote 3.
47
See generally, J. Vandamme and J.-D. Mouton, Lavenir de lUnion europenne: largir et
approfondir (Brussels: Presses interuniversitaires europennes, 1995); A.E. Kellermann
et al. (eds.), EU EnlargementThe Constitutional Impact at EU and National Level (The
Hague: T.M.C. Asser Press, 2001); H. Sjursen, Why Expand?: The Question of Legiti-
macy and Justication in the EUs Enlargement Policy, 40 Journal of Common Market
Studies (2002), 491; and N. Neuwahl (ed.), European Union EnlargementLaw and
Socio-Economic Changes (Montreal: Thmis, 2004).
48
Already when the iron curtain fell in 1989, the European Community (as it was then
called) declared that it would welcome the countries of Central and Eastern Europe. It
created the PHARE Programme to help former communist countries towards liberal
democracy and capitalist economy and, in 1993, the Copenhagen European Council set
out the political and economic conditions necessary for membership. It is in 1997, with
the European Commissions Agenda 2000 and the Luxembourg European Council,
that the latest enlargement processes were formally launched.
49
See Directorate-General for Press and Communication, More Unity and More
DiversityThe European Unions Biggest Enlargement, p. 3, document com-
pleted in November 2003 and available at this website address: http://europa.
eu.int/comm/publications/booklets/move/41/en.doc
393
Here, what is most relevant for the present demonstration is that the
treaty provisions relating to religious practice and denominational mat-
ters, as well as those pertaining to the territorial satisfaction of Sweden
and France, undoubtedly represent the two principal objects of the Peace
of Westphalia.
50
The parties also formally recognised the United Provinces
of the Netherlands
51
and explicitly provided for the independence of the
Swiss Confederation,
52
which however were already at this point faits
accomplis.
53
3. TREATY-MAKING POWER
According to the general view that considers 1648 as a break from the
ancien rgime, there is another material provision in the agreements which
50
See Holsti, supra, note 4, at p. 34.
51
At the conclusion of the conict between the United Provinces and Spain, the latter
recognised the territorial boundaries of the Netherlands in a peace treaty signed on 30
January 1648, also at Mnster. As a consequence, these territories were excluded from
the Burgundian Imperial Circle during the negotiations at Westphalia which, implic-
itly, legally ratied the Dutch independence from the Holy Roman Empire. See J.V.
Poliensk, The Thirty Years War (London: Batsford, 1971), at pp. 236237; and Pags,
supra, note 21, at p. 254.
52
Switzerlands independence was legally consecrated in article 63 of the Treaty of Mnster,
which stated: And as His Imperial Majesty, upon Complaints made in the name of the
City of Bae, and of all Switzerland, in the presence of their Plenipotentiaries deputed
to the present Assembly, touching some Procedures and Executions proceeding from
the Imperial Chamber against the said City, and the other united Cantons of the Swiss
country, and their Citizens and Subjects having demanded the Advice of the States of
the Empire and their Council; these have, by a Decree of the 14th of May of the last
Year, declared the said City of Bae, and the other Swiss-Cantons, to be as it were in
possession of their full Liberty and Exemption of the Empire; so that they are no ways
subject to the Judicatures, or judgments of the Empire, and it was thought convenient
to insert the same in this Treaty of Peace, and Conrm it, and thereby to make void and
annul all such Procedures and Arrests given on this Account in what form soever; see
Treaty Series, at 337. [emphasis in original] [spelling modernised]
53
See Pags, supra, note 21, at p. 254, who wrote as regards the Netherlands and Swit-
zerland: Enn divers articles lgalisent un tat de fait dj ancien, mais qui navait pas
encore la garantie dun instrument diplomatique. [emphasis added] See also F. Hertz,
The Development of the German Public MindA Social History of German Political Senti-
ments Aspirations and Ideas, vol. 2, The Middle AgesThe Reformation (London: Allen
& Unwin, 1962), at p. 515; E.A. Beller, The Thirty Years War, in J.-P. Cooper (ed.),
The New Cambridge Modern History, vol. 4, The Decline of Spain and the Thirty Years
War, 160948/59 (Cambridge: Cambridge University Press, 1970), pp. 306, at p. 358;
and Redslob, supra, note 15, at pp. 214215.
394
would epitomise statehood, namely, that dealing with the delegation of
power to conclude treaties.
54
At Article 65, the Treaty of Mnster read:
They [the German polities] shall enjoy without contradiction, the
Right of Suffrage in all Deliberations touching the Affairs of the
Empire; but above all, when the Business in hand shall be the mak-
ing or interpreting of Laws, the declaring of Wars, imposing of
Taxes, levying or quartering of Soldiers, erecting new Fortications
in the Territories of the States, or reinforcing the old Garisons; as
also when a Peace or alliance is to be concluded, and treated about,
or the like, none of these, or the like things shall be acted for the
future, without the Suffrage and Consent of the Free Assembly of
all the States of the Empire: Above all, it shall be free perpetually to
each of the States of the Empire, to make Alliances with Strangers for
their Preservation and Safety; provided, nevertheless, such Alliances be
not against the Emperor, and the Empire, nor against the Public Peace,
and this Treaty, and without prejudice to the Oath by which every one
is bound to the Emperor and the Empire.
55
Article 8, paragraph 1, of the Osnabrck Treaty was to the same effect.
56

The political entities making up the Empire were thus given the power to
independently make agreements between themselves and with foreign coun-
tries. This competence, however, was explicitly limited by the caveat accord-
ing to which no such alliance could be directed against the imperium or be
in breach of the Peace of Westphalia itself. Also signicant is that, beside
treaty-making, these provisions conrmed to the Imperial Diet all other
powers usually linked with the exercise of supreme authority over a terri-
toryfor example, legislation, warfare, taxation.
57
54
See for instance, F. de Martens, Trait de droit international, vol. 1 (Paris: Chevalier-
Marescq, 1883), at p. 116; G. Gidel, Droits et devoirs des NationsLa thorie clas-
sique des droits fondamentaux des tats, 10 RCADI (1925), 537, at 549; D. Philpott,
Revolutions in SovereigntyHow Ideas Shaped Modern International Relations (Princeton
& Oxford: Princeton University Press, 2001), at p. 85; Redslob, supra, note 15, at p. 215;
Holsti, supra, note 4, at pp. 3536; and Osiander, supra, note 14, at pp. 4647.
55
Treaty Series, supra, note 13, at 337338. [emphasis added] [spelling modernised]
56
Id., at 241. See also Lesaffer, supra, note 16, at p. 71.
57
The legislative history of these provisions shows that the parties originally meant to go
much farther in favour of the Princes than what was provided for in the nal version of
the Mnster Treaty. The proposition suggested by the French delegation on 11 June 1645
was unqualied and even referred to the idea of sovereignty. Indeed, art. 8 of the said
proposition, which was ultimately rejected, read: Que tous lesdits Princes & Etats en
395
Moreover, it appears that these treaty articles merely recognised a prac-
tice which had already been in existence for almost half a century. Indeed,
the powerful German Princes were conducting their own foreign policy long
before Westphalia. Palatinate and Brandenburg, for instance, struck alliances
with the United Provinces of the Netherlands in 1604 and 1605 respec-
tively.
58
Further, most rulers within the Empire formed part of the armed
force coalitionsthe Evangelical Union and the Catholic Leaguethat
existed at the outbreak of the Thirty Years War in 1618. In light of this,
the articles concerning the treaty-making power can hardly be viewed as
groundbreaking or as compelling evidence of a new independent status for
the German monarchs.
When one puts this issue of the power to conclude treaties in the larger
picture of the struggle over competences between central authorities and con-
stituting polities,
59
there is an interesting parallel to draw with the European
Union and, more particularly, the principle of subsidiarity.
60
First codied in
gnral & en particulier seront maintenus dans tous les autres droits de Souverainet qui
leur appartiennent, & spcialement dans celui de faire des confdrations tant entre eux
quavec les Princes voisins, pour leur conservation & suret; [emphasis added] [spelling
modernised] see G.-H. Bougeant, Histoire du Trait de Westphalie, ou des Negociations qui
se rent Munfter & Ofnabrug, vol. 3 (Paris: n.b., 1751), at pp. 428429. Therefore,
it appears that the compromised art. 65, Treaty of Mnster, was a victory on the part of
the Holy Roman Empire because the language used stopped short of recognising any
sovereign rights to the German Princes.
58
See G. Parker, The Thirty Years War (London: Routledge & Kegan Paul, 1984), at p. 2,
who noted that, along with England and France, Palatinate and Brandenburg struck
treaties of friendship with the Netherlands, which helped the latters effort against
Spain.
59
On the different ways to strike a balance between the two, see K. Lenaerts, Constitu-
tionalism and the Many Faces of Federalism, 38 American Journal of Comparative Law
(1990), 205; and also, generally, G.F. Mancini, The Making of a Constitution for
Europe, 26 Common Market Law Review (1989), 595.
60
See generally, V. Michel, Recherches sur les comptences de la Communaut europenne
(Paris: LHarmattan, 2003); and R. Dehousse, Le principe de subsidiarit dans le
dbat constitutionnel europen, in P. Magnette (ed.), La constitution de lEurope
(Brussels: Editions de lUniversit de Bruxelles, 2002), pp. 157. See generally, E.T.
Swaine, Subsidiarity and Self-Interest: Federalism at the European Court of Justice,
41 Harvard International Law Journal (2000), 1; G. de Brca, The Principle of Sub-
sidiarity and the Court of Justice as an Institutional Actor, 36 Journal of Common
Market Studies (1998), 217; N. Bernard, The Future of European Economic Law in
the Light of the Principle of Subsidiarity, 33 Common Market Law Review (1996),
633; F. Thoma, Le principe de subsidiarit en droit communautaire (Luxembourg:
Publications du centre universitaire de Luxembourg, 1998); K. Lenaerts and P. van
396
Article 3b of the Maastricht Treaty,
61
it is now also found, in a more elaborate
version, in Article I11(3) of the Constitutional Treaty for Europe:
62
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 intended action cannot be sufciently 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.
As regards the Unions external relations (or external action) and interna-
tional agreements
63
explicitly provided for at Article III323 Constitutional
Treaty for Europe, to be read with Article I7 on legal personalitythe underly-
ing idea of subsidiarity will most certainly prevent the recognition of a generous
European competence over the three pillars. In turn, this situation will mean an
increased use of mixed agreements in these matters, with the ensuing complexi-
ties and delays,
64
which are arguably reminiscent of 17th century Germania.
Since the beginning of the European project in the 1950s, the emergence of
the principle of subsidiarity is certainly the most important stumbling block in
the redistribution of powers in favour of a single European authority.
65
Similar
Ypersele, Le principe de subsidiarit et son contexte: tude de larticle 3B du Trait
CE, Cahier de Droit europen (1994), 3; T.C. Hartley, Constitutional and Institu-
tional Aspects of the Maastricht Agreement, 42 International and Comparative Law
Quarterly (1993), 213; G.A. Bermann, Subsidiarity and the European Community,
17 Hartings International and Comparative Law Review (1993), 97; and A.G. Toth,
The Principle of Subsidiarity in the Maastricht Treaty, 29 Common Market Law
Review (1992), 1079.
61
Treaty of the European Union, [1992] OJ C191.
62
See also Jan-Peter Trnkas chapter elsewhere in this volume.
63
Generally, see M. Cremona, The Draft Constitutional Treaty: External Relations
and External Action, 40 Common Market Law Review (2003), 1347; A. Dashwood,
The Attribution of External Relations Competence, in A. Dashwood and C. Hillion
(eds.), The General Law of EC External Relations (London: Sweet & Maxwell, 2000),
pp. 115.
64
On mixity, see A. Rosas, The European Union and Mixed Agreements, in A. Dash-
wood and C. Hillion (eds.), The General Law of EC External Relations (London: Sweet &
Maxwell, 2000), pp. 200; M. Cremona, External Relations and External Competence:
The Emergence of an Integrated Policy, in P. Craig and G. de Brca (eds.), The Evolu-
tion of EU Law (Oxford: Oxford University Press, 1999), pp. 137.
65
Philip Allott is probably the one international commentator who has most ercely objected
to the principle of subsidiarity, arguing that it ies in the face of the creation of a new
legal order for Europesee Ph. Allott, The Health of NationsSociety and Law beyond the
397
to the Westphalia Treaties, therefore, the latest attempt to provide an organising
structure for Europe does not settle one way or another the continuous and
continuing debate over the locus of authority to govern over the territory, which
is actually at the very centre of the idea of sovereignty.
III. CONCLUSION
Going back to the hypothesis of the present chapter, it was shown that
the principal objects and material provisions of the Osnabrck and Mnster
Treaties do not support the position that the Peace of Westphalia consti-
tutes a paradigm shift whereby the political entities involved gained exclu-
sive power over their territories. The two main purposes of the agreements
related to the practice of religion and the settlement of territories, not to the
creation of distinct separate polities independent from any higher authority.
As regards religious matters, the German Princes did not even retain their
existing power; au contraire, the rule of cuius regio eius religio was restrained
by denominational protections for minorities and equality guarantees were
provided for Catholics and Protestants.
Furthermore, the Empire remained a key actor according to Westphalia.
Indeed, it is through Imperial bodiessuch as the Diet and the Courtsthat
religious safeguards were imposed in decision-making process. With respect
to territorial settlements, the satisfaction of Sweden was given in terms of
efdoms within the Empire, thus acknowledging an enduring overlordship
for the Emperor. Vis--vis France, although no Imperial feudal link remained
State (Cambridge: Cambridge University Press, 2002), pp. 159285. In an unpublished
paper (dated mid1990) he used for his LL.M. course entitled The European Union as a
New Legal Order, he wrote the following: Subsidiarity enables us at last to identify the
elements of this concealed self-destructive theory. I can best express the essence of it as a
series of implications. 1. Subsidiarity implies that the EC is derivative and secondary in
relation to the inherent and primary powers of the Member States. 2. Subsidiarity implies
that the EC is essentially an aggregating of national interests, to be aggregated as and
when it is useful or desirable to do so. 3. Subsidiarity implies that the EC is contractual
in character, rather than natural and organic. 4. Subsidiarity implies that the EC is, in
principle, a system with limited competencein other words, it has objectives which are
something less than the traditional objectives of a political societysay, peace, order and
good government. 5. Subsidiarity implies that the problem of the future development of
the EC is a problem of organising the relationship between the constitutional organs of the
EC and the constitutional organs of the Member States. 6. Subsidiarity implies that the
future constitutional development of the EC lies in an extrapolation of familiar national
constitutional structures, and, in particular, its future lies in some manipulation of the
established structures of liberal-democratic capitalism.
398
after most land transfers, some parts of Alsace maintained their autonomist
status granted by the House of Austria. Finally, it was just seen that the
power to conclude alliances formally recognised to the German Princes was
not unqualied and that, in fact, they had conducted such foreign affairs
long before then.
This perspective on Westphalia thus proves that 1648 is not really a
turning point in the development of the present state system. Rather, the
outcome of the congress constituted nothing more than a step further
even, arguably, a relatively modest onein the gradual shift from the ideal
of a universal overlordship to the idea of distinct separate political entities
having sovereignty over their territories.
66
In that regard, it was interesting
to draw parallels, if only in passing, between the Peace of Westphalia and
the latest episodes in the development of the European Union with the
eastern enlargements and the Constitutional Treaty for Europe, also rela-
tively modest advances in developing a constitution for the continent. It
was seen that the latters main features, inter alia, pertain to fundamental
rights and changes in territorial status, and that both the European Unions
and the Holy Roman Empires competences were and are in continuing
competition with those of their constituting polities.
Are the recent attempts in the construction of the European system
of governance at all seminal? No, probably not. But neither were those of
1648. In any event, does it matter? No, most certainly not. It is rather the
ex post facto interpretation of such episodes that shall be crucial. In that
regard, may the Peace of Westphalia as a precedent in construing, imagin-
ing, inventing a constitution for Europe be useful yet again.
66
See T.A. Walker, A History of the Law of Nations, vol. 1, From the Earliest Times to the
Peace of Westphalia, 1648 (Cambridge: Cambridge University Press, 1899), at p. 148,
who, speaking of the hybrid political status of the Empire and its constituting parts in
1648, noted: The territorial state had long existed in point of fact, but, whilst each
royal, ducal, or republican ruler of provinces had failed to recognise in his frontiers the
precise limits of his jurisdiction, the sense of national independence had been held down
in pupilage [sic] by the awe-inspiring shadow of a majestic common superior. See also,
to the same effect, M. Wight, Systems of States (Leicester, U.K.: Leicester University
Press, 1977), at p. 152: At Westphalia the states-system does not come into existence:
it comes of age; and Westlake, supra, note 2, at p. 55: When the plenipotentiaries at
Mnster and Osnabruck signed the Peace of Westphalia in 1648 the ground had been
well prepared for an international society, such a society had indeed been gradually
emerging.
CONCLUSION
The editors believe that Europe is in a transition stage, where it is impor-
tant to reect on how to end the current state of stagnation of the Consti-
tution-making process. Of course the European construction has been in a
transitional stage all along, in accordance with the objective to achieve ever
closer Union, so that there is nothing new. However, the outcome of the
Dutch and French referenda seems to stir minds because of the enormousness
of the defeat, that is, when measured against the yardstick of the proclaimed
importance of the adoption of the constitutional treaty. This book wanted to
be a stocktaking of the real or perceived crisis. While in no way minimising
the events of 2005 and the failure of the entry into force of the constitutional
treaty, the book proposed to suggest ways as to how to make the most of the
Treaty in the given situation. Some twenty authors were asked to reect on
the way ahead in absence of the entry into force of the treaty, and to see if
what has been termed a crisis is perhaps, after all, not such a crisis at all. On
the whole the authors have responded well to the call.
As Olaf Leisse starts out by making the point, in his chapter titled The
Fall and Rise of the European Constitution, that the constitution-making
process is now a central problem of European integration, in the sense that
there is unlikely to be any progress in the integration process before the
constitution problem is unravelled. But there are no recipes as to go about
doing this. One way of looking at the situation is to put the blame for the
blockage of the constitution-making process on the constitution-making
method itself. One may legitimately ask rst why it was necessary to call a
convention and then, given the initial success of the convention in bringing
about a constitution, what would be the factors accounting for the current
standstill. If one is merely to take an intergovernmentalist approach to this
problem, the explanation would center on the role of the Member States.
However, this does not completely explain what has been and is still going
400
on. Another perspective is offered by deliberation theory, which presupposes
that the convention on the future of Europe was a paradigm for a free dis-
course on the future of the continentand it nds fault essentially in that
context. A reanimation of the integration process requires eliminating the
shortcomings associated with both kinds of the aforementioned problems.
It becomes clear that the EU is in need of a decision about the road
map for the future. Both strategies investigated by Leissemore intergov-
ernmentalism or more deliberationare valid choices. What is crucial is
the development of a practicable as well as generally accepted method of
constitution-making. It is probably fair to say that the constitutional project
has not failed yet, especially as the draft treaty is a useful starting point for
a future debates. However, as Leisse demonstrates, the nature of the prob-
lems entails that questions concerning the constitution-making process will
remain on the agenda of European politics much longer than expected.
In the chapter Statutes and Status, or: the Real Nature of the European
Constitution, Stefan Haack has analyzed to what extent the Treaty establish-
ing a Constitution for Europe fulls the criteria of the term Constitution.
This helps to assess what are the consequences of its not entering into effect.
In constitutional theory, the term Constitution can mean a particular
statute that denotes a basic set of rules when forming the organizational
structure of any form of association. In a different but related legal sense,
Constitution is considered to be the supreme law of an autonomous legal
system, which, whether or not in writing, is characterized by its legal quality
and supreme rank. By contrast, one has to distinguish a third usage of the
term Constitution, which refers to the political status of a specic com-
munity and can therefore be called the status-related or political concept of
a Constitution. Keeping public affairs in order can be somewhat compared
to dening a status. The coordination of various emanations of authorities
or jurisdictions requires the denition of their status by an independent,
supreme level of decision making which can be viewed as the constitution
of a polity in a political sense.
Embarking on the formation of a political unit requires, in addition to
its own autonomous system of law, a unity-constituting idea of order that
supports this system. Constitutional statutes such as the Treaty establishing
a Constitution for Europe are steps towards integration; however, their true
meaning remains linked to the status issue. If one sees a constitution as the
bond of a specic community to an internally and externally independent
political entity resulting from a specic concept of order regarding the unity
401
CONCLUSION
of the whole, it becomes clear that the establishment of a self-supporting
system has preoccupied decision-makers for quite some time. It is this issue
which has remained and remains unsolved politically even after the adoption
of the treaty, and it is unresolved even if the treaty would enter into force.
It is this situation which makes the current situation special in form, if not
in substance.
The chapter The EU Constitutional Crisis as Viewed from North
America by Dorothee Heisenberg provides an American perspective on the
Constitutional Crisis. The European Commission, as well as several Mem-
ber States, have promoted the Constitutional Treaty in Washington and in
Ottawa as an important stepping stone toward a more federal polity that
could stand with the US on a world stage. The Constitution was explicitly
compared to the documents crafted centuries ago by the founding fathers of
the US Constitution. While this served well to convey the importance of the
developments and corresponded to the magnitude of the combined intel-
lectual effort involved, back home it undermined the European project, as
many citizens opined against the Treatyfor reasons wholly unrelated to the
fundamentals of European integration. The Treatys failure thus raises several
questions abroad, for instance, whether it is more fruitful to deal with Mem-
ber States bilaterally rather than dealing with the European Commission. It
is suggested that there exists such a state of uncertainty about the EU as to
harm the effective conduct of transatlantic affairs. For that reason, the views
of Washington and Ottawa have become relevant to discussions of the way
forward. Unfortunately, the circle of people in the US and Canada who truly
understand the European project is restricted. Paradoxically, the impression
of a failing EU has become relevant even when it is incorrect.
Within the EU, meanwhile, one question that comes natural is, whether
or not the constitutional momentum needs to be maintained, whether one
should get back to ordinary business, or whether a qualitative leap is required.
Joakim Nergelius reects on this in his chapter Procedural Devices for Main-
taining the Constitutional Momentum. If the will were there, the qualita-
tive leap could be made, according to this author, by asking the European
people what they want. It is a daring view but on the whole, perhaps less so
than the organisation of national referenda. Assuming that the constitution-
building process is genuine, a Europe-wide referendum, even one that is not
binding, would therefore provide a recommendable way of maintaining the
constitutional momentum.
402
Is it easier to decide what Europeans want than what French or Dutch
people want? This hypothesis underlies the chapter by Aharon Yair Mac-
Clanahan Shophet, titled What Europeans want. On the basis of an analysis
of the development of four factors that have traditionally inuenced the
process of European integration and European public opinion it is possible
to reach conclusions as to what the European institutions could do to make
the electorate more sympathetic towards their aspirations. It is observed that
European public opinion has traditionally and increasingly so been met with
popular resistance. Power asymmetry amongst the Member States and the
apprehension about integration in smaller countries was also a factor, as well
as cultural, linguistic and historic characteristics. Finally, it was found that
the Second World War positively affected public opinion in countries that
had experienced Axis rule. As regards the future, it is suggested that while
the cultural focus is likely to become more pan-European, EU expansion will
mitigate the impact of asymmetry. At the same time, however, nationalist-
inspired resistance will heighten as integration increasingly acquires political
characteristic. The memory of the Second World War naturally loses force
with the inevitable generational turnover.
In the EU, national institutions are well established, which leaves it
without the basic means to shape public opinion independently. Absent the
means to fully create a European identity or cultural focus, the EU should
focus on employing its resources in a targeted way taking into account of all
its possibilities. This implies it should market itself better.
Karsten Nowrot in his chapter On the Unifying Self-Conception of a
Republican European Union observes that the EU is lackingand in need
ofa normative guiding principle. The sustainable creation of a European
polity requires a normative guiding principle aimed at the promotion of
civic virtues, the establishment of a common public sphere for the discursive
forming of the European public good and the orientation of the European
decision-making processes towards the long-term interests of the Unions
citizens. For Nowrot, the conceptual content of republicanism could signi-
cantly contribute to the realisation of a European polity. A republicanisation
of the European Union would convey the notion of a community in which
public power is exercised with the participation of and with due regard for
citizens and thus actively supported by the peoples of Europe.
The classical interaction between deepening and widening integration
has been a recurrent theme in integration studies ever since the fall of the
Berlin wall, and it is no surprise that it plays a role also in the context of
403
CONCLUSION
the adoption of a constitution for the EU 27-plus. However, there are new
edges to this debate as it is transplanted to what is considered a superior
level of law.
For Matej Avbelj, the previous trend of incrementalism and procedural
constitutionalism is in the process of being changed. In his chapter Consti-
tution-Building through a Basic Law and of Differentiation, it is suggested
that the practice of quid pro quo, incompletely theorised agreements could
well be changed in favour of a more open and confrontational constitutional
politics, based on the theory of substantive constitutionalism, to provide the
impetus for the future development of the Union. The objective should be,
to generate a two-tier consensus: one general level there should be agreement
on the fundamental issues and on a compartmentalized level one should
strive at consensus between different Member States, whereby the general
consensus would be strong enough to provide the necessary coherence for a
workable set of differentiated legal systems. In practical terms, this solution
for the present constitutional deadlock could take the form of the adoption
of a Basic Law for the European Union, complemented by Acts of differen-
tiation. The existence of a differentiated constitutional future for the EU is
thus guaranteed.
This ties in well with the views of Alberta Sbragia, in her Chapter on
The Future of Federalism in the European Union. She remarks that the
constitutional treaty has served as a catalyst for a movement on the part
of the Member States toward a greater degree of shared rule outside the
supranational model. This gives rise to a deeper form of shared rule, even
if the Constitution for Europe itself is not ratied. The EU is thus destined
to become a more balanced entitythe balance being between a federal
type or supranational arrangement, on the one hand, and a confederal or
shared rule arrangement on the other.
This of course poses question of leadership. As Agnieszka K. Cianciara
explains in her Chapter The Constitution is Dead, Long Live the European
Commission, Europe is faced with the particular problem that the Euro-
pean Commission nds itself on a path of constant institutional and political
decline, as a result of which the process of European integration has lost vitality.
The TCE would not have contributed to the reinforcement of the Commis-
sions role, on the contrary. The Commission would have been put at a greater
disadvantage. In light of the paralysis of the Constitutional project, the author
has looked at the issues of the lack of political leadership and the scarcity of
resources at Commissions disposal, which are nevertheless indispensable for
404
the maintenance and development of the European project. It appears that the
issues of leadership and priorities choice are of paramount importance. The
Commission and its President should therefore strive, not to adjust to the eco-
nomic and political circumstances, but also to actively create them and develop
new ideas that will put the Union on a brand new integration track.
Some policy elds are or have become controversial when combined
with an enlarging EU. This is probably true for economic and monetary
Union, which is part and parcel of the Union since the Treaty of Maastricht
and which is analysed by Michel Lelart in his chapter on the reasons for the
French No vote on May 29, 2005. Le scepticisme des Franais quelles rai-
sons, quelles solutions ? As the single currency complicates EU enlargement
and the functioning of the EU itself, it is within this eld that solutions need
to be found in order to overcome the reticence of the electorate.
The chapter From the Constitutional Blueprint to an Economy of
Social and Economic Wellbeing by Neva Maher intends to show why the
social and economic well-being of the people is to be among the essential
state functions, and why this should be part of a written or unwritten con-
stitution. In the current century, the world is concentrating as one global
market. Thus, competitiveness becomes a value, for the European Union,
for States, for companies and for individuals. The EU has proclaimed its
adherence to social inclusion, social cohesion, and social policy. They are
part of the European Social Agenda, which in turn is important for attain-
ing the results and aims of the Lisbon Strategy. Among the most important
resources for achieving it is the EUs human capital, in individual and social
terms. As resources are limited, conicts of interest arise, even regarding
fundamental values. It is therefore of special importance to act systematically
and in a qualitative manner. Five key quality norms are singled out to guide
decision-making: integrity, legality, economy, efciency, and effectiveness.
These norms can provide the backbone to the afrmative action that is now
required of the Union in exceptional times.
A core eld of integration is the Single Market, but even here, much
remains to be done. In his chapter The Importance of the Lisbon Strategy,
particularly as applied to the Service Sector, Samo Zupancic deals with the
aim of the Lisbon Strategy to harmonize the different service practices in the
Member States. The recently adopted Directive on Services aims at reduc-
ing obstacles in the eld of services, but it does not solve all problems. In
the eld of services, the entry into force of the new Constitution would be
benecial, in particular because it would end the situation under the existing
405
CONCLUSION
law according to which services are subordinated to freedom of movements
for goods, persons and capital. Given the stagnation of the Constitution,
the best way to proceed is to liberate the free movement of services through-
out the Community, by following some solutions contained in the GATS.
Anticipating the coming into force of the Constitution, it may be possible to
improve and modify the content of the Directive on Services in the Internal
Market as well as other acts concerning services, taking into account, how-
ever, that this is really second best.
The chapter The European Community as a Commercial Actor after
the Constitutional Debacle, by Nanette Neuwahl, addresses some aspects
of the Treaty establishing a Constitution for Europe in relation to foreign
policy, in particular, the improvements it would bring for the EU as a com-
mercial actor and the elimination of mixed agreements and the division
of power between the European Community and the Member States. The
rejection of the Constitutional Treaty risks to affect the effectiveness of the
Union, now that it is enlarged. However, the author is of the view that a gen-
erous use of enhanced cooperation, in the form of introduced by the Treaty
of Amsterdam and as reinforced by the Treaty of Nice, can provide a rem-
edy to the problems. Enhanced cooperation is the use of the Union frame-
work with partial participation, i.e., less than all Member States, according
to procedures specied in advance. The author takes the view that partial
participation, although a second best, should be considered as a medium-
term policy option even in the commercial eld. The advances obtained in
the Constitutional Treaty might even serve as an inspiration for the practi-
cal implementation of enhanced cooperation, thus putting esh on what is
turning into a constitutional principle of the Union even without a written
Constitution.
The chapter The EUs Constitutional Crisis and the Area of Free-
dom, Security and Justice: Implementation of the Constitution through the
Back-Door? by Jrg Monar focuses on recent proposals by the European
Commission aimed at introducing parts of the Constitutional Treaty reforms
for the area of freedom, security and justice by using the passerelle clauses
of the Treaties in force. The analysis shows that in this area the EU has found
an interesting case of responding the crisis, although not one without serious
problems.
But there are other areas in which progress can be achieved independently
of the Constitutional treaty. In the chapter titled The Future of the EU Char-
ter of Fundamental Rights, Eve C. Landau advocates the adoption of a legally
406
binding instrument, a binding Bill of Rights, independently of the adoption
of the EU Constitution, ensuring the codication and consolidation of exist-
ing and new rights. The existing charter would contribute to integration and
serve as a benchmark for the implementation of fundamental rights in an ever
growing Community. The present text of the Charter does not impose new
obligations on the Member States, who are boundin the domain of civil
and political rightsrather by the European Convention of Human Rights.
The Charter covers a wider scope than the ECHR and its Protocols. It is up
to date and its adoption will obviate the need of accession to the 56 years old
ECHR. Certain improvements may be suggested, including concerning the
role of the European Court of Justice, which should be the nal arbiter to
protect individuals against human rights abuses by the Member States and the
EU and it is proposed to make its jurisdiction exclusive. The idea of recourse
to the European Court of Human Rights is rejected.
Perhaps the most important lesson of the Constitutional Treaty is that
there can be majesty in moderation. The current treaties contain a number
of devices that seem to provide suitable avenues for policy making on the
European level and on that of the Member States, including enhanced coop-
eration and subsidiarity; these should perhaps be used to the full.
Enhanced cooperation is frequently hailed as being the way-out of the
current deadlock in decision-making and as a major possibility to proceed
with European integration in selected areas. However, neither the closer
cooperation-mechanism of Amsterdam nor the enhanced cooperation-
mechanism of Nice has been used so far. In the chapter Enhanced Coopera-
tion: The Way-Out or a Non-Starter? Nico Groenendijk argues that enhanced
cooperation constitutes just one of the many possibilities EU Member States
have for exible integration. The author shows that alternative integration
(meaning integration outside the EU framework) is currently the main way
to deal with coordination issues in various policy elds (such as direct tax
coordination, higher education, immigration policy, patents). Given the sub-
stantial substantive and procedural requirements for enhanced cooperation
under the current (Nice) framework this approach remains valid, consider-
ing also the attention given to rst-mover advantages and the composition
of enhanced cooperation associations.
The chapter on Subsidiarity: Competence Control or Political Mas-
querade? by Jan-Peter Trnka deals with the subsidiarity principle as a tool
for determining the appropriate level of action inside the Union, and thus for
reconciling the conicting needs of unity and diversity within the European
407
CONCLUSION
Union. Originally introduced to counterbalance an assumed centralisation
of powers, and thus to delimit Community competence, the stakes have now
evolved. Todays system of Community competences is a complex entangle-
ment of political and legal decisions requiring a balancing act between ever
changing national and community interests. The European Constitution
would for the rst time have involved national parliaments into the legisla-
tive process and subsidiarity scrutiny. Whereas there is a need for including
such a democratic element into the legislative procedure, this chapter argues
that the changes could be introduced without the adoption of a comprehen-
sive new treaty.
In the chapter The Future of Euratom, Pamela M. Barnes deals with
the special case of the European Atomic Energy Community. The Euratom
Treaty traditionally had a problematic start in 1957, because its signatory
states had developed very divergent energy policies. It proved difcult to
transfer competences to the Community other than in limited areas of
the management of safety-related issues and the promotion of technology.
Despite views that the Treaty was outdated, undemocratic and biased towards
the industry concerned, Euratom has always resisted change. The European
Convention had the opportunity to dispense with this only remaining EU
Treaty which targeted a specic economic sector. However, because of the
lack of consensus during the Convention and the IGC, it was not considered
appropriate to change its nature by way of primary legislation.
The Member States of the EU are divided on the use of the technol-
ogy and the desirability of transferring competences for action to the EU.
Regardless of the outcome of the current period of reection, the political
reality of the EU 27 is such that it is unlikely that the Euratom Treaty will
be changed for the foreseeable future. Nevertheless the continued existence
of the Treaty provides a legal and political basis for challenges to be made
about the use of the nuclear technology from those who oppose it and an
opportunity for debate with those who support future developments. The
Euratom Treaty keeps open debate about aspects of energy policy in the EU
which might not otherwise be possible given the wide spectrum of national
opinions. The Euratom Treaty may not be the perfect solution, but it does
suit national governments and their nuclear energy policiesboth those
who support the technology and those who oppose its use.
On a reective note, the chapter How far beyond Pax Westphalica by
Stphane Beaulac draws interesting parallels between the European project
and the Peace of Westphalia which ended the Thirty Years War in 1648.
408
Both centre on the idea of sovereignty, and struggles over it. The tension
is reversed this time, moving from the national level of Member States to
the supranational level of the European Union. But Westphalia is a social
construct. Sovereignty has formed part of a continuing system originating
before the Thirty Years War and continuing long after the peace treaties
that ended it. The Peace of Westphalia did not put an end to multi-lay-
ered authority in Europe, but was simply a case of redistribution of power
within the Holy Roman Empire. In that sense, the deals struck in 1648 are
not dissimilar to the latest episode in the development of a formal consti-
tution for the modern Europe of 27, which also amount to very modest
changes indeed for the organising structure of the continent around a
European sovereignty.
This helps to relativize both what the TCE represented and what we lost
by not adopting it. It also helps to get back to day-to-day business. While this
book contains some concrete recommendations about strategies and tactics
to make the best out of a failure to ratify a treaty, we are not faced with a
crisis or emergency.
Manuscript completed January 2007
The Editors
Nanette Neuwahl
Stefan Haack
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Unresolved Issues of The Constitution For Europe M Rethinking The Crisis

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