Implications of a Constitution for European identity

Posted in Europe | 03-Mar-03 | Author: Prof. Dr. Ludger Kuehnhardt

When the “Convention on the Future of the European Union” started its work on February 28, 2002, the skeptical mood prevailed and the expectations were low. A year later, the European equivalent of the Philadelphia Convention is not only getting good credits for its substantial work. It has already presented the first concrete elements of a European Constitution and thus proved itself useful as an innovative instrument in furthering institutional reforms in the European Union. By now, the French and the German Foreign Minister have joined the Conventers, chaired by former French President Valery Giscard d’Estaing. Whatever the ultimate compromises will be and whatever the continuos contradictions and shortcomings might be: The path towards a European Constitution has never been as open as it is today. By the end of 2003, the work of the Convention – and the follow-up work by an Intergovernmental Conference – will be done. The ratification process will follow in 2004. As the Constitutional Convention is still in the midst of its work, and as propositions favoring one or the other direction of future institutional arrangements in the European Union are still outpouring, it is worth looking into the American constitutional experience as a mirror to better understand whereto the current European process is heading for.

1.Most evident is the fact that the American constitution followed the independence of the US as much as the current development towards a European constitution is following the very creation of the European Union. John Ellis in his fine book on the “Founding Brothers” has talked about the constitution-making of 1787 as the second founding of the US. Whether a European Constitution, in name and reality, will have the same impact remains to be seen. But the very establishment of the Constitutional Convention of the European Union - with representatives of all relevant institutions among its 105 members, and with participation of the EU candidate countries - can be called a success over the futile, intransparent and increasingly bureaucratic effort to manage institutional reforms in the EU through rather obscure Intergovernmental Conferences in past years. The debate about a constitutional identity of Europe has become definitely more political and more transparent. The Constitutional Convention is indeed pushing the debate about a European identity from the world of academia and belletristic into the sphere of constitutionalism and politics. Its result will become the point of reference for further reflections about a European “constitutional patriotism”.

The formulation of the European Charter of Human Rights, one of the few successful outcomes of the EU Summit at Nice in December 2000, was a first indication for a clearer focus into this direction. While the American Bill of Rights and the 10th Amendment followed the ratification of the US Constitution, the European Union did it the other way around. The Basic Charter of

Human Rights, the first document prepared by a Convention, will yet have to be properly included into the EU Treaty system to be made judiciable. Once this will have happened, the notion of European identity will get a strong twist towards its legal implication as is the case with basic rights implementation in the US. Rule of law might take over from the prose of big intellectual volumes about European unity in diversity when it comes to defining rights and duties and hence a European identity.

This will have implications on the future role of the European Court of Justice, or more generally speaking, on the issue of primacy of EU law over national legislation. As in the past, the European Court of Justice will serve as engine of further European integration through its interpretation of community law. Resistance will grow in member states, and particularly among lawyers, judges and most prominently, among law professors, who remain primarily trained in national law traditions and all too often dislike the idea of further transfer of legal sovereignty to the EU level. With the inclusion of the European Charter of Basic Rights into the upcoming Constitution, this however will become inevitable.

2.At the core of European constitution-building is the issue of “limited powers” to use the American notion of what is called “subsidiarity” in Euro-speak - for all those who are not familiar with Catholic social doctrine in which this term originated. As we all know, the evolution of American federalism has been very lively over the past 150 years. In spite of the limits of Union competencies under the Tenth Amendment, the originally loose links between the States and the Union have in reality developed towards “national federalism” in the US. Whether the EU will follow suit, remains to be seen, but as it stands today, the rearranging of competencies and responsibilities which is on the agenda of the Constitutional Convention might in fact lead both to limited powers for the European Union and at the same time to more and new powers in the most crucial fields such as gouvernance economique, justice and home affairs, and foreign and security policy. Whether the results of the Constitutional Convention will produce European equivalents of the “enumerative powers” or a specific “supremacy clause” remains to be seen. The presentation of the first 16 articles of the constitution by the Presidium of the Constitutional Convention in February 2003 indicates the direction: Legislation in the European Union shall be divided into exclusive competencies for the EU, competencies shared between the EU and the member states, and supportive competencies of the EU. The national parliaments of EU member states are requesting a stronger inclusion in the legislative process through the mechanism of an “early warning system” concerning the implication of a certain legislative proposition on their specific competencies and mandate. Thus, the notorious notion of “subsidiarity” shall be made more palatable and concrete.

In light of the biggest shortcoming of the politicization and parliamentarization of the EU, it is worth recalling that also the American constitution was originally lacking a fiscal constitution. The European Constitutional Convention is not mandated to develop one either. But the issue of fiscal federalism and the arrangements for resource allocation will ultimately define the fate of any European constitution. It is increasingly present in all European discussions about the ordering of competencies. In fact, the issue of budgeting and of fiscal accountability is at the core of the European legitimacy debate. No matter, how much the role of the European Parliament and the idea of parliamentary, transparent democracy might be strengthened through an increase in qualified majority voting in EU legislation, the core of the problem is the continuous “representation without taxation”. Whether or not a European tax will ultimately find support and recognition, it is in the murky waters of fiscal accountability and transparency that the Constitutional debate will certainly continue beyond the current work of the Constitutional Convention. The American revolution was launched in the name of the opposite claim - no taxation without representation. It would indeed be a European revolution if the battle-cry “no representation without taxation” would one day make it into the emerging European Constitution. This is the most important among the unresolved aspects of EU integration which demonstrates that Amendments will be due in future years no matter what the outcome of the current Constitutional Convention will be.

It has already been proposed to continuosly install this mechanism and transform the Constitutional Convention as the future means for amendments of the European Constitution. Another important element in order to raise legitimacy of the European integration process is the proposal to include an “exit clause” which would allow member states of the European Union to fully withdraw from the EU once they do not want to support its integration path any longer. Pro-integrationists take pleasure in the growing trend among Constitutional Convention members to grant the European Union the status of a legal personality.

3. When it started its work, the mandate of the European Constitutional Convention seemed to be as limited as the one which launched the Philadelphia Convention. In the meantime, the most crucial and controversial issues are at the table of the Convention, including the question of EU leadership. At the end, also in the EU a “great compromise” has to be found in order to resolve the most daunting controversies. In the US this was done on the matters of a two-chamber parliament, the specific role of the President, currency standardization, harmonization of the justice system, the definition of tax rights and so on. The European Union will ultimately be forced to find a “great compromise” between intergovernmentalists, favoring the role of the European Council, and supranationalists, favoring the role of the European Parliament with the Commission as its executive.

In early 2003, the French and the German government have proposed two presidencies: a President of the European Commission, elected by the political majority of the European Parliament, and a President of the European Council, elected by the heads of government of all EU member states. This proposal has meet a lot of reservation among other EU member states and in the European Parliament. The question of a specifically defined mandate of a Council President is of particular importance. Critics argue that a longer-term Council President would prolong the democratic deficit of the EU while at the same time a Council President without strong authority and a viable bureaucracy to support the workload will not be able to meet the expectation that he or she could be perceived as the Number One spokesperson for Europe in world affairs. A French-like semi-presidential governance system would only push the question of accountability of an EU Council President one floor up from the current inconsistency between the Offices of the Commission President, the Council’s High Representative for Foreign and Security Affairs and the EU External Affairs Commissioner, which after all shall be fused and replaced by one European Foreign Minister according to growing consent in the EU.

Nevertheless: at the end a variant of the Franco-German proposal - a Commission President matched by a longer-term Council President with a specified mandate of limited competencies – could be an acceptable solution in the Constitutional Convention as some sort of a great compromise with regard to identity and power-ambitions of the various political actors in today’s EU. It might resonate in the US which is not particularly pleased to memorize new Council President’s names every six months. But I doubt whether such a “great compromise” would echo the identity and interests of EU citizens. On the one hand, to identify with a real “EU President” is too early, on the other hand, if an EU President were to be realized, it must be a real one at the end. Only a directly elected EU President could probably ultimately claim to represent the Union citizens.

In the absence of a solid consensus on the question who should speak on behalf of the EU, the NATO model of coordinating leadership rotation in the Council might better serve the European Council and its purpose, while the next Commission President should indeed be elected in late 2004 on the basis of the majority which the European Parliamentary election will produce in the summer of 2004. The European Union remains a construction side while it is fascinating to see how fast the very idea of a European constitution has gained consensus – even among the British members of the Constitutional Convention.