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European Rights and Powers

How the Conventions spurred the Union’s Constitutional Metamorphosis

Sonja Puntscher Riekmann

Department of Political Science and Sociology/

Salzburg Centre of European Union Studies

University of Salzburg

Kapitelgasse 4-6, A-5020 Salzburg

Tel. +43-662-8044-2440

e-mail: sonja.riekmann@sbg.ac.at

Paper presented at the

ECPR 2008, Rennes

WS 15 Constitutionalism beyond the state

First Draft, Do not quote without permission of the author

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Whoever takes upon him to reform the government of a city, must, if his

measures are to be well received and carried out with general approval,

preserve at least the semblance of existing methods, so as not to appear

to the people to have made any change in the old order of things;

although, in truth, the new ordinances differ altogether from those

which they replace. For when this is attended to, the mass of mankind

accept what seems as what is; nay, are often touched more nearly by appearances than by

realities.

Machiavelli, Discourses on the First Decade of Titus Livius, Chapter 25

Introduction: Playing on Words

The “to be, or not to be”–question about a European constitution no longer seems to haunt

decision-makers. They officially took it off their agenda: “The constitutional concept, which

consisted in repealing all existing Treaties and replacing them by a single text called

"Constitution", is abandoned.” (Presidency Conclusions, 21/22 June 2007, IGC Mandate)

And, more concretely: “The TEU and the Treaty on the Functioning of the Union will not

have a constitutional character. The terminology used throughout the Treaties will reflect this

change: the term "Constitution" will not be used, the "Union Minister for Foreign Affairs"

will be called High Representative of the Union for Foreign Affairs and Security Policy and

the denominations "law" and "framework law" will be abandoned, the existing denominations

"regulations", "directives" and "decisions" being retained. Likewise, there will be no article in

the amended Treaties mentioning the symbols of the EU such as the flag, the anthem or the

motto. Concerning the primacy of EU law, the IGC will adopt a Declaration recalling the

existing case law of the EU Court of Justice.” Between the Laeken Declaration on the Future

of the European Union (2001) calling for steps “Towards a Constitution for the Citizens” and

the abandonment of the very term constitution lies the Treaty establishing a Constitution for

Europe elaborated by the Convention and approved by the IGC and its rejection by

referendum in France and the Netherlands in 2005. Astonishingly though, the ensuing Treaty

of Lisbon (2007) contains, albeit under different names, most of the new provisions which

were part of the Constitutional Treaty. As spelled out quite genuinely in the IGC mandate, the

change is one of terminology rather than of substance. Moreover, the reference to the existing

case law of the ECJ is all the more intriguing as the Court has repeatedly qualified the

Treaties as the “constitutional charter” of the Union. As recently as January 23, 2008, the

Advocate General Poiares Maduro states in his opinion on a crucial case of alleged

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fundamental rights breach by the Council and the Commission, that in the Van Gend en Loos

ruling the Court “considered that the Treaty has established a “’new legal order’, beholden to

but distinct from the existing legal order of public international law. In other words, the

Treaty has created a municipal legal order of trans-national dimensions, of which it forms the

‘basic constitutional charter’.” (Case C-415/05 P-21) The AG continues, that in the conflict

between Community law and international law, “it seeks, first and foremost, to preserve the

constitutional framework created by the Treaty.” (ibid.-24).

Apparently, in the course of the reflection period following the negative referenda on the

Constitutional Treaty in France and the Netherlands a common sense among élites has

emerged about how the rejection is to be interpreted: Terminology is the culprit. How is this

to be explained in the light of a significant and stable majority favouring a European

constitution up to 20061 (Eurobarometer Survey 66)? Whatever the reasons underlying the

support for a European constitution at least as an ideal, on average 63% of European citizens

endorse the enterprise of constitutionalisation. Even in France (66%) and the Netherlands

(59%) these majorities are significant, albeit in the latter 48% do not deem it necessary for the

functioning of the Union (contrary to France where 67% also see a need for it). Moreover, in

both countries almost two thirds advocate a renegotiation of the Constitutional Treaty (48%

EU average), whereas only 16% wished its abandonment (13% EU average). In general 68%

of the citizens hold that the Constitutional Treaty will create a stronger EU in the world, 65%

that it will become more democratic, 64% more efficient and economically more competitive,

58% more transparent and 57% more socially minded. Thus, the tactic of dropping

constitutional terminology is hardly justified by opinion polls.

What then has happened? Have the political elites themselves lost their faith in this

enterprise? They have, however, only minimally altered the substance of the Constitutional

Treaty and masked the most visible aspects of supranationalism either by leaving old names

or by transferring allegedly contested provisions such as the primacy of EU law2 or the

competition policy into declarations and protocols. This reminds us of Machiavelli’s famous

dictum, that if you want to give the people new institutions it is better to keep the clothes of

1 In 2006 Eurobarometer for the last time asked citizens about their position on a constitution for the Union. 2 Interestingly, in the Austrian debate about whether or not a referendum on the Constitutional has to be held the clause on the primacy of EU law played a special role. Theo Öhlinger the constitutional lawyer who was asked by the government to give his opinion about the issue argued that the non-integration of the clause into the Lisbon Treaty does make a referendum unnecessary. Such clause would have implied a comprehensive change of the Austrian constitution whereby the referendum would have been mandatory (Öhlinger 2007).

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the old ones, if only for a while, so that the new ones can establish themselves without

resistance. Are the negative referenda then an instance of a European citizenry that is still not

ripe for the new order? Why do they so strongly advocate a constitution for Europe in the

polls, when they reject it in reality? It is however interesting to observe that the political as

well as the academic debate is completely absorbed by the French and Dutch No, whereas the

overwhelming approval in the Spanish and Luxemburg referenda hardly receive any attention

and even less so parliamentary ratification in two thirds of the member states.

With the crisis unleashed by the negative referenda the debate about the meaning of

constitutionalism beyond the state intensified again (Wiener 2004, Poiares Maduro 2004,

Somek 2007). While a host of scholars, lawyers as well as political scientists, have well

accepted that the European Treaties form the constitutional basis of the novel polity, they

criticise the lack of a constitutional theory as a necessary underpinning (Weiler 1998, 2002).

Informed by historical studies on constitutionalization processes we may well ask whether

such theoretical work will not always be an ex post elaboration of reasons for and meanings

of political acts born out of socio-economic needs rather than ex ante abstract propositions

conveyed to a given community in search of a new order. In particular, if we conceive

constitutionalism as a work of synthesis of legal practices transforming them into a doctrinal

whole (Ackerman 1991, p. 89), then logically practices have to precede and form a critical

mass of relevant juridical discourse. Such practices do, of course, not evolve ex nihilo, they

are triggered off and sustained by the foundational “contract” of a community. The contract,

however, being created to engender the new order, is only a starting point.

Envisaging a new order founders lay a basis, but they can hardly foresee future socio-

economic dynamics, inner or outer actors’ preferences, let alone contradictions or crises. A

political order is about the temporary stabilization of competitive societal forces. The greater

the plurality of such forces is the greater will be the propensity of a society towards

destabilization. Hence, since time immemorial and with immense efforts in modern times

political order became associated with creating a set of institutions framing and shaping the

competition between forces and powers. In the words of Loewenstein: “In the modern

democratic-constitutional state the essence of power consists in the attempt to establish an

equilibrium between the various competitive plural forces within the state society, with due

regard to the free unfolding of the human personality.” (Loewenstein 1965, p.7) However, in

post-war Europe due to the process of integration political powers and socio-economic forces

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have gradually shifted beyond the state and into a new realm. This is the very simple reason

why we discuss the chances and forms of constitutionalising this realm. Whatever

terminology we might use, today European politics is first and foremost about the

organisation of power wielded at the supranational level. What has been started as a

community of states willing to cooperate in specific and ever growing policy fields in order to

prevent war and create a new socio-economic order based on law over time has developed

into a veritable new polity. Moreover, the integration of democratic states into a new whole

quite logically requires that the whole – however defined – is to be democratic too. Hence,

there is no reason to believe that Loewenstein’s definition of constitutionalism does not hold

true also for the European polity: “The history of constitutionalism is nothing but the quest of

political man for the limitation of the absolute power exercised by the power holders and the

effort to substitute for the blind acceptance of factual social control the moral or ethical

legitimation of authority. This was found in the consent of the power addressees to the

exercise of social control by their rulers and, correspondingly, in their active participation in

the political process” (ibid.124).

Indeed, European constitutionalism is first and foremost the quest for supranational

democracy. Loewenstein’s list of minima to be followed in order to curb arbitrariness does

perfectly fit any democratic order, national as well supranational:

1. Differentiation of (state) functions – avoiding concentration of power

2. Planned mechanism for co-operation of power holders by a system of checks and

balances, power sharing and control

3. Planned mechanism to avoid deadlocks (e.g. calling in the electorate as ultimate

arbiter in democratic constitutionalism)

4. Planned mechanism for peaceful adjustment of the fundamental law, i.e. constitutional

amendment

5. individual rights and fundamental liberties, protected against encroachment by any or

all power holders (cf. ibid. 127)

The two European Conventions did just this: they looked for better modes of differentiating

powers - vertically as well as horizontally -, of checks and balances, of overcoming

deadlocks, of changing the basic treaties and last but not least of enshrining rights and

liberties in one coherent document.

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The first Convention treated the regime of rights, the second the regime of powers. Neither

started from a tabula rasa, both relied on the constitutional acquis treasured in the treaties and

ECJ jurisdiction. The latter on their part have borrowed from the democratic acquis of the

Member States and ECHR regime. The Conventions have paid tribute to their constructivist

approach.

This paper aims at describing and analysing the dialectic of the founding and the evolutionary

process of European constitution-building. The guiding thesis is that the quest for

supranational democracy was latently present from the outset of integration and crystallized in

the direct election of the European Parliament. This quest is framed by two competing, yet

intimately linked actors: the federalists and the intergovernmentalists. Constitutional

discourses in the Union are the result of their controversies and dialectic of interests.3

Generally speaking, they both claim to pursue integration and democratic governance. By

way of simplification: The first hold that integration and democracy must go hand in hand, i.e.

the supranational order must be democratic; the second see democracy primarily as pertaining

to the member states which legitimize national governments in their European activities.

Whereas the first wish to transform the supranational institutions into an autonomous source

of legitimacy, the second aim at maintaining national democracy as the primary source. The

outcome of both Conventions was a compromise between the two stances. The ensuing Treaty

establishing a Constitution for Europe opened new ways to more democratic law-making by

strengthening the European and the national parliaments, it strengthened federative elements

as well as intergovernmental supranationalism (Puntscher Riekmann and Wessels 2006).

However and most importantly, it brought into the open the constitutional reality of the Union

which had since long been developed by stealth. The “invisible constitution” (Wiener 2004,

p.26) became visible. As the constitution proposed by the Convention and accepted by the

IGC was rejected by the French and Dutch peoples Member States’ governments under the

auspices of the German presidency saved its substance, but opted for the old forms and

wordings. However, while the Treaty of Lisbon does in fact contain the greatest part of the

Constitution, the Constitution itself will become invisible again.

3 I suggest to take into consideration the notion of dialectic in order to understand progress of integration instead of focusing only on the dilemmas created by it (Majone 2006; Hofmann/Wessels 2008). There of course important dilemmas in European politics, however, they are also the result of the dialectical effects of different stances, that is of what Hofmann and Wessels e.g. describe as „instinct to problem solution“ at the EU level on the one hand and as „sovereignty reflex“ on the other (ibid., p.6). I agree that these two stances may end up in a dilemma, however until now they have step by step and in a piecemeal manner brought about the EU institutional set-up. If there were no such dialectical process and intertwining of the „instinct“ and the „reflex“, integration would not have happened.

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Dropping the veil

What led EU Member States to engage in an open debate about a constitution for Europe?

And why did they choose the Convention as a new mode of preparation of documents which

in the end made such an astounding career as to become institutionalised in the Constitutional

Treaty and safeguarded also by the Treaty of Lisbon (Art. 48, para 3)? Who were the driving

forces behind this new approach and why did the reluctant ones, who assuredly must have

existed, follow? It is a historical truism that power holders yield to new modes of governance

only by sheer necessity. The hypothesis that this was also the case in the Union, while being

plausible, has still to be tested by more in-depth studies. However, my prima facie proposition

is that after a decade of severe questioning of Europe’s seemingly inexorable path towards an

“ever closer union” by negative or narrowly won referenda on treaty reforms or new

memberships, by the rise of voiced euro-scepticism and anti-European parties in many

member states, by growing difficulties to negotiate viable institutional reforms in view of the

next grand enlargement, some governments came to the conclusion that a new approach was

needed. An approach that was more appealing to the citizens whose laissez faire in European

matters irrevocably belonged to the past.

Certainly Germany had a pivotal role as it held the Presidency when the European Council in

Cologne (3-4 June,1999) invented the first Convention to elaborate a Charter of Fundamental

Rights. It was not called a Convention but “a body composed of representatives of the Heads

of State and Government and of the President of the Commission as well as of members of the

European Parliament and national parliaments” (Annex IV of the Presidency Conclusions).

The European Council had however also spelled out the need for such enterprise when it

stated: “Protection of fundamental rights is a founding principle of the Union and an

indispensable prerequisite for her legitimacy. The obligation of the Union to respect

fundamental rights has been confirmed and defined by the jurisprudence of the European

Court of Justice. There appears to be a need, at the present stage of the Union's development,

to establish a Charter of fundamental rights in order to make their overriding importance and

relevance more visible to the Union's citizens.” (ibid.) It is noteworthy that the European

Council did not only claim a present need but reconnected it with principles of the founding

documents. Although neither in 1951 nor in 1957 democracy was expressively a principle of

the founding treaties it was the reason for establishing the Parliamentary Assembly along the

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other institutions. The Assembly which quite soon called itself European Parliament logically

tried to assert itself as a player and thereby promoted parliamentary democracy. From its first

session in 1958 it pressed for direct elections, which were only decided in 1976, but could

hardly be denied by Member States. In 1978 together with the decision to hold the first direct

election in 1979 the European Council of Copenhagen presented a Declaration on Democracy

(Bulletin EC 3/1978) to demonstrate its commitment to an ideal common to all Member

States. This had been interpreted as a signal towards the Mediterranean candidates who just

rid themselves of authoritarian regimes (Pollak 2007, p.138), but it was also the beginning of

a series of declarations which contained references to democracy as a principle to be pursued

in general and to parliamentary democracy in particular. The principle rather early entered the

jurisdiction of the ECJ, whose judge Pierre Pescatore interpreted the landmark rulings Van

Gend en Loos v. Netherlands or Costa v. ENEL as “the consequence of a democratic ideal”

(Pescatore 1983, p. 158). Last but not least, in the directly elected Parliament the Spinelli-

Initiative (1984) marked the beginning of a constitutional discourse which if it did not

produce immediate concrete results, created the sediments for further treaty developments.

From the Single European Act to the Treaty of Maastricht to the Treaty of Amsterdam the

“democratic question” and thus the question of constitutionalisation of the Union became part

and parcel of integration discourse.

In the light of this history it perhaps less astonishing that European Council finally conceded

or even wished to launch the debate about consolidating fundamental rights in a single

document and to call for a new body to work on it. If we accepted that a subterranean dialectic

between federalists and intergovernmentalists had been one important facet of integration this

choice appears rather logical. And as logical appears the choice of the President of this body

which the self-assertive “conventionels” quickly renamed as Convention: Roman Herzog had

not only been a former President of Germany, but also the President of its Constitutional

Court which in 1993 famously ruled on the Treaty of Maastricht and its implications for

national democracy and fundamental rights. Of course, naming the body as Convention was

meant to evoke the sisterhood with the glorious constitutional conventions of the American

and French Revolutions. Even if we may doubt that all national governments welcomed this

metamorphosis, we have, however, to recognize that they did not openly speak out against it.

The result of some eight months work of the Convention was a Charter of rights drawing on

national as well as the ECHR acquis but also consolidating the principles elaborated by the

ECJ in a new coherent whole and adding new rights as deemed necessary due to the

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challenges caused for instance by biotechnologies. The social rights which had already been

outlined in the European Social Charter became again a bone of contention between

representatives of member states engaged in liberalising and others in preserving their welfare

regimes. Thus, if only for a short moment, the Convention turned into a battleground for

different views on the Union’s socio-economic order, a controversy which had haunted also

the Member States’ constitutional fights of the 19th and 20th century and which would surface

again during the French referendum campaign in 2005. When J.J.H. Weiler prophetically

discussed the social question as belonging to the “hard choices” of European

constitutionalism in 2002 it was not yet clear how important it would become to the French

left advocating the No on the Constitutional Treaty which it portrayed as the Trojan horse of

neo-liberalism in the Union. Conversely, the second Convention first tried to shift around this

crucial issue, whereas the initiative of a group of Conventionels to establish a Working Group

on Social Europe produced meagre results beyond rhetorical commitments and the Working

Group on Economic Governance largely confirmed the status quo.

This sketch of the workings and results of the first Convention is to show that the

constitutional “coming out” of the Union started by a discussion on citizens’ fundamental

rights and on a rights regime which were to bind the Union’s institutions and powers as well

as those of the Member States when implementing European law. This initiative was also

meant to give more flesh to the principle of citizenship introduced by the Treaty of Maastricht

and which had hardly won the hearts and minds of citizens beyond those concretely enjoying

the four freedoms due to their mobility or transnational economic activities. The Charter,

however, also raised a number of fears about possible encroachments on the national rights

regimes, the debate about Article 51 regulating the implementation issue being the most

important case in point (Shaw 2006). The European Council of Cologne in 1999 had already

hedged itself against integrating the Charter into the Treaty by postponing that decision to the

Council of Tampere and proposing only to “solemnly proclaim on the basis of the draft

document a European Charter of Fundamental Rights” in Nice 2000. As a matter of fact, the

Convention’s ambition to integrate the Charter into the Treaty foundered at the doorsteps of

the IGC in Nice. The IGC ensnared in the bitter conflicts over voting rights, representation in

the European Parliament and the Commission had not taken the Charter as part of the Treaty

seriously into consideration already before starting the conference. The Conventionels and

supporters of the Charter at large took comfort in the idea that the Charter would unfold its

meaning and weight through the jurisdiction of the ECJ. In this respect, the latter though

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ostentatiously practised judicial restraint in spite of numerous references to the Charter by

Advocates General.

After the plethora of rhetorical gestures about the need for a thorough debate about the future

of the Union the petty bargaining at the IGC of Nice provoked a deep deception among those

who had hoped for a new and more fundamental start of the constitutional debate. However,

the Treaty of Nice also contained a Declaration on the future of the European Union and

called for a new Convention whose tasks were to be defined at the European Council Meeting

of Laeken and to be concluded before 2004 as to enable an IGC to decide upon. The

Declaration of Laeken did not only put up a long list of subjects to be discussed at the

Convention, it also conveyed that a debate on paths towards a Constitution for Europe would

be welcome. In parallel, speeches of prominent political actors such as the German Foreign

Minister Joschka Fischer at the Humboldt University in Berlin, the French President Jacques

Chirac in the German Bundestag or Tony Blair in Warsaw conveyed a commitment to the

process of constitutionalisation, albeit in often highly ambiguous terms oscillating between

perspectives on a European federation and a Union of states. That is, by diluting the perennial

conflict between federalists and intergovernmentalists in enigmatic terminology: Blair’s claim

about the Union as a superpower but not as a superstate is one important case in point, the

other being Fischer’s undecided toying with federation and union of states.

As a résumé of the Convention elaborating the European Charter of Fundamental Rights I

hold that it was a first “constitutional moment” and that it took place in greater openness than

any IGC before. However, it goes without saying, that the constitutional moment was weak by

national historical standards: No king had been beheaded and no masses had climbed the

barricades, but then that was the history post war Europeans do not wish to repeat. If this

history is on the minds of those who argue that constitutionalization presupposes a revolution

against oppression (Offe), it could be dismissed as a highly romantic view on the past. What

is not so easily to be dismissed is the lack of public awareness of this moment. About Nice

citizens may recall the horse-trading about voting weights, but hardly the solemn declaration

of the Charter of Fundamental Rights. Yet, if the constitutional moment was elitist, that could

be said about a number of national constitutional moments as well. Although such elitism was

to be overcome by the second Convention which organised meetings with civil society actors,

real public awareness arose from the ratifications campaigns and even more so from the

rejection of the Constitutional Treaty by the French and Dutch peoples. Is thus European

constitutionalism an effect of a “negative constitutional moment” or, to put it differently, is it

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born by negation? But is such interpretation not again pure romanticism? We should rather

bear in mind that more often than not processes of constitutionalisation are highly antagonistic

events. In that respect a look at the American Federalist as well as Anti-Federalist Papers

could teach an important lesson. If comparing the European development with the

revolutionary constitution making of the US founding fathers may appear as too far-fetched,

defining the Union’s constitutionalisation as a “metamorphosis by silent revolution” is not.

The Constitutional Convention: Harvesting the Dialectic of

Supranationalism and Intergovernmentalism

The second Convention strengthened the constitutional moment, but it was again bereft of any

romanticism. As aforementioned, it did not start from a tabula rasa but built on the treaties

and trod the path of constitutional evolution (Puntscher Riekmann 2005; Puntscher Riekmann

and Wessels 2006). The discourses were pervaded by the classical constitutional questions:

How are the European institutions to be conceived in order to enhance democracy and

efficiency? As to the term constitution itself, the Convention’s President Giscard d’Estaing in

his inaugural speech took up the question asked by the Laeken Declaration about opening “the

way towards a Constitution for Europe” and proposed a dazzling compromise: “In order to

avoid any disagreement over semantics, let us agree now to call it a ‘constitutional treaty for

Europe’”. The final outcome was even more dazzling, in that it bore the title “Treaty

establishing a Constitution for Europe”. Does this entail that once established the Constitution

would be set free from the treaty? Perhaps, although such freedom traditionally at least

requires that further constitutional amendments would no longer be subjected to unanimity.

Yet, how is the provision in Part IV-Article 7 (4) of the Constitutional Treaty to be

interpreted? Does it open new paths to solve ratification problems? It states that in case that

after two years and after ratification by four fifth of the members one or more member states

should encounter difficulties in ratifying the Treaty “the matter should be referred to the

European Council.” This clause has also been kept in the Treaty of Lisbon (Art 48, para 5).

Declaring a Treaty as adopted even without ratification completed by all members would

certainly amount to a revolutionary act comparable to the American breach of the ratification

conditions set by the Confederation or to the Swiss ratification history of the 19th century.

However intriguing the novel provision treating ratification of amendments, this interpretation

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is for the time being mere speculation. If it is worth mentioning here than because negative

referenda always called for solutions, generally opt-out clauses, to be negotiated by the

European Council. Moreover, read together with the right to secession established in the

Treaty of Lisbon and thus ending the legal controversy about the issue, it might also be

interpreted as a signal to those who tend to use their veto to blackmail the others.

It is beyond question that the second Convention was again a battleground between federalists

and intergovernmentalists, and this even more so, the more serious the debate about how the

powers are to be distributed became. If choice of personnel is again to be considered as one

indicator of choice of content, then heads of states and governments chose with Giscard

d’Estaing a president with a good intergovernmentalist record, but they also chose two vice-

presidents with quite different stances. Whereas Amato professed a rather undogmatic pro-

integrationist view of the Union, Dehaene was known as a keen federalist, though pragmatic

in his approach. Giscard d’Estaing, on his part, from the very beginning avoided the image of

the hard core intergovernmentalist by ambiguous statements about the union as a hybrid, as a

“union of states with federal competences” (Norman 2003, 29). In any case the praesidium

made up of twelve members representing national governments, national and European

parliaments and the Commission has been depicted as the real power holder of the

Convention structuring, if not determining the debates by its proposals (in particular the

famous skeleton presented by Giscard d’Estaing) and by the selective choice of which

positions articulated in the plenary or working groups would be heard and integrated into draft

documents and which ones would be ignored. A special role was attributed to the secretary of

the presidium John Kerr who many perceived as the mole of Blair, but in fact was eager to

maintain a rather neutral role so much so as to frustrate British officials. In sum it is perhaps

realistic to assess the praesidium as aiming to broker between federalists and

intergovernmentalists. If the latter, in particular those representing national governments,

could have been sure that their cause was satisfactorily advocated by the praesidium they

would most likely not have thought of upgrading their members to foreign ministers.

Unsurprisingly, the balance was difficult to strike. How great the difficulties were did not

come to the fore immediately, as the praesidium allowed for quite an extensive initial

listening phase while working on the “skeleton”. While the “skeleton” became the hub of

further debates, it is save to say, that the representatives of the European Parliament have

successfully been shaping “the Convention mainstream, namely the EU’s legal personality, no

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re-nationalisation of competencies, the inclusion of the Charter of fundamental rights in the

treaty and its mandatory character, …the abolition of the pillar structure” (Oberhuber 2006,

103). The EP gained growing support in particular among national parliamentarians for the

extension of the co-decision procedure and QMV as well as the extension of its powers in the

institutional balance (Puntscher Riekmann 2006). The strong role of the EP in the Convention

is not only the result of the inconsistent and therefore inconclusive activities of the

Commission or simply of its own supranational esprit de corps, it mirrors a long and indeed

consistent advocacy of European constitutionalisation in the name of democracy. From the

Spinelli Initiative to the Herman Report to numbers of papers elaborated in view of the treaty

revisions in Maastricht, Amsterdam and Nice, the Committee of Constitutional Affairs has

impressively evolved into one of the most important committees of the EP.

Intergovernmentalist Supranationalism

Thus, the first approach for which the Giscard D’Estaing’s “skeleton” served as framework

was an attempt to balance intergovernmentalism with federalism. Intergovernmentalists

would have their will by inventing the new President of the European Council. The

president’s tasks are coordination and steering of the European Council’s work, but also

representation of the Union in CFSP matters, thus potentially competing with the Minister of

Foreign Affairs, perhaps also with the President of the Commission. On the other hand, as the

European Council is conceived to deliver the guidelines of European politics and not to

legislate, the powers of the president remain rather weak, whereas the rotating presidency in

the Council is to be retained by the Treaty of Lisbon. However, this invention has to be

gauged in a more subtle way: it is not a simplistic expression of intergovernmentalism tout

court, it rather mirrors the transformation of the latter into “intergovernmental

supranationalism”. That is, governments are not just stubbornly clinging to their prerogatives

as nationalistic souverainistes (or at least only few of them are), they are much keener to

preserve their power at the supranational level. Their ever more important playing field

appears to be the European Council, whose president according to the new rules is to be

elected by QMV for two and a half years and is not to hold a national position at the same

time. While his or her competences seem rather limited, in a longer perspective they may

generate a new source of supranational power and thus trigger even more deepening as

perhaps foreseen by the “arbiters of the treaties”. Another hybrid is the creation of the Foreign

Minister (the High Representative in terms of the Treaty of Lisbon) who will wear two hats

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by being part of the Commission, in fact one of its vice-presidents, and by heading the

Council of General affairs. He or she is appointed by the European Council and accountable

to the latter, which is also able to end his term (Treaty of Lisbon, Article 9 E), whereas the

Commission is accountable to the European Parliament. However, this point remains

somewhat unclear as the High Representative is also subject to the consent of the European

Parliament as is the whole Commission. May that be as it is, what can be said of the whole

approach is that apparently intergovernmental supranationalism is opening new paths for a

European executive which is either separate from or infiltrating the Commission. But then, as

aforementioned in the Convention the Commission failed to project itself as a power player in

the future constitution. In spite of its right of initiative the Commission seems to lose out to

both: the European Parliament and the European Council. Thus the ill-fated Penelope-

Initiative set by Prodi is more than unfortunate PR, it is the sign of a much deeper going

transformation of the Commission from what I have described as a powerful instance of

“commissarial management” into a more classical administration rather than into a European

government (Puntscher Riekmann 1998). The thesis about an intergovernmental supranational

executive may gain substance also from the creation of a host of independent agencies in

CFSP and in particular in AFSJ (Puntscher Riekmann 2008a; Puntscher Riekmann 2008b).

Classical intergovernmentalism showed its face more clearly in other respects: First, member

states reaffirmed their power by insisting on their power of conferring to or removing

competences from the Union (Article I-1 in the Constitutional Treaty). This is reconfirmed by

Article 3b of the Treaty of Lisbon, where under the header of subsidiarity it is stated that

1.“(t)he limits of Union competences are governed by the principle of conferral. The use of

Union competences is governed by the principles of subsidiarity and proportionality.

2. Under the principle of conferral, the Union shall act only within the limits of the

competences conferred upon it by the Member States in the Treaties to attain the objectives

set out therein. Competences not conferred upon the Union in the Treaties remain with the

Member States”.

Intergovernmentalism remains the structuring feature in CFSP, ESDP as well as in a number

of provisions governing the Area of Freedom, Security and Justice, i.e. all issues pertaining to

the core of national sovereignty. However, important inroads have been made in the AFSJ,

particularly by involving the EP and the ECJ. With regard to classical intergovernmentalism

as a source of veto against supranational developments two last instances are to be mentioned:

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First, governments abolished the “legislative council” envisaged by the Convention as a new

procedure of public co-decision strongly advocated by MEPs; and second, they took the

reform of Part III, i.e. the policies of the Community as regulated by the EC Treaty, out of the

Convention’s hands.

Federalist Supranantionalism

Federalist Supranationalism had its way in several important aspects. First, even the skeleton

did not shun the “F-word” as it proposed a “Union of States which, while retaining their

national identities, closely coordinate their policies at the European level and administer

certain common competences on a federal basis” (quot in Norman 2004, p.72). Although the

formula “on a federal basis” did not survive and was replaced by “shall exercise in the

Community way the competences they confer on it” (TCE Article I-1), pledging the

Community way was a tribute to the Monnet Method which so far has been responsible for

the stealthy creation of a number of federal elements in the Union.

Second, recognition of the Union’s legal personality and as a consequence the abolition of the

pillar structure is a major achievement in terms of federalism. The debate of the pertinent

Convention Working Group resulted in a large consensus (though not a complete one) about

the need to strengthen “cohesion” and “consistency” by conferring legal personality to the

Union (CONV 305/02, p.8). Thus, the Union is to be represented by “a single voice” in

international negotiations. Moreover, the Working Group stressed the need for review of the

Union’s international agreements by the European Court of Justice ex ante and ex post and for

consultation with the European Parliament (ibid. p. 12-13). To underpin its reasoning the

Working Group in its final report quotes an Opinion of 1991, in which the ECJ referring to an

agreement that fell partly within the competence of the Community and partly within that of

the Member States (traditional mixed agreement), had emphasised the need "to ensure close

cooperation between the Member States and the Community institutions, both in the process

of negotiation and conclusion and in the fulfilment of the commitments entered into. That

obligation to cooperate flows from the requirement of unity in the international representation

of the Community." (Opinion 2/91 of the Court of Justice, 19 March 1993, ECR pp. I-1061 et

seq.). On this basis the Working Group concluded, that “there is no doubt that the position of

the Court as expressed above is transferable to the situation in which the Union would possess

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a legal personality replacing that of the Community”. Finally it stressed the principle of

loyalty as stipulated in Article 11(2) TEU according to which Member States "shall refrain

from any action which is contrary to the interests of the Union or likely to impair its

effectiveness as a cohesive force in international relations". (CONV 305/02, p. 12, Fn. 14).

This is, once again, an instance for the Convention’s discursive strategy by arguing in line

with past steps of constitutionalisation. Reiteration and citation of legal texts is the classical

method of gradually and incrementally creating a doctrinal whole as practised in European

legal history since time immemorial: In this respect there is indeed a tradition which leads

from Bologna to Brussels as argued by de Coing (Häberle 1998, Puntscher Riekmann 2007).

The legal personality clause has been maintained in the Treaty of Lisbon (Art. 44 A) as well,

whereas the goal of clarity and simplification that was debated by the same Working Group

remains an object of desire.

The third instance of successful federalist supranationalism concerns democracy. The

commitment to further democratic principles and procedures had been the political mantra of

political actors since the emergence of the democratic deficit discourse in the early 1990ies in

the wake of the Danish No and the French “petit oui” to the Treaty of Maastricht. Whereas the

Treaty revisions of Amsterdam and Nice dealt with this issue by enhancing the powers of the

European Parliament, the Charter of Fundamental Rights was considered as a next step,

although incorporation into the Treaty of Nice did not occur. The second Convention in its

Draft Constitutional Treaty opened with a commitment to democratic principles in the

preamble where it also cited the famous Pericles’ statement about Athenian democracy

(Thucydides II, 37) and designed institutions accordingly: First, it integrated the citizens as

one source of legitimacy of the Union alongside the member states. Article I-1 reads:

“Reflecting the will of the citizens and States of Europe to build a common future, this

Constitution establishes the European Union, on which the Member States confer

competences to attain objectives they have in common. The Union shall coordinate the

policies by which the Member States aim to achieve these objectives, and shall exercise in the

Community way the competences they confer on it.” And Article I-2 on the values of the

Union includes the whole acquis treasured by modern politico-philosophical thinking on

democracy: “respect for human dignity, liberty, democracy, equality, the rule of law and

respect for human rights. These values are common to the Member States in a society of

pluralism, tolerance, justice, solidarity and non-discrimination”. Even if, as Wiener states

(2004), member states may understand these notions differently and accordingly may have

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spelled out different policies, differences are not so fundamental as to rule out future

European convergence. Indeed overcoming divergent interpretations of such notions is also

the challenge of new generations of political actors and legal scholars in national contexts.

From the founding constitution to the recognition of Afro-American slaves as citizens holding

property and voting rights to New Deal policies to affirmative action the political

development goes hand in hand with new constitutionalist approaches as ways of re-

interpreting fundamental values of the US-society, as impressively analysed by Bruce

Ackerman (1991). A similar story may be told by European national legal scholars and

political scientists.

Whereas Article I-8 largely repeats the provisions defining European citizenship, the

Convention also created a Title VI on the democratic life of the Union to encompass the

principles of democratic equality (Art. 44), of representative democracy (Art. 45) and of

participatory democracy (Art 46). The latter is particularly interesting, in that paragraph 4

offers real participation through the so-called citizens’ initiative: “No less than one million

citizens coming from a significant number of Member States may invite the Commission to

submit any appropriate proposal on matters where citizens consider that a legal act of the

Union is required for the purpose of implementing the Constitution.” Although the specific

procedures and conditions required for such a citizens’ initiative were to be established by

ordinary legislation, in particular what “a significant number of Member States” actually

meant, this certainly signified a new start in the EU-citizens relations. More importantly the

provision found its place also in the Treaty of Lisbon (Article 8). The democratic life as

spelled out by the Constitutional Treaty included also the relations of EU organs with the

social partners, the role of the Ombudsman, data protection, access to EU documents and

general provisions of transparency, and recognition of religious as well as non-confessional

organisation, all maintained in the Treaty of Lisbon.

A years old bone of contention and now a major step towards federalist supranationalism was

the clause on double majorities in case decisions were taken by qualified majorities: “such a

majority shall consist of the majority of Member States, representing at least three fifths of the

population of the Union” (Article I-24). Double majorities are repeated in the Treaty of

Lisbon in Article 9 C 4 stating that, “(a) s from 1 November 2014, a qualified majority shall

be defined as at least 55 % of the members of the Council, comprising at least fifteen of them

and representing Member States comprising at least 65 % of the population of the Union. A

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blocking minority must include at least four Council members, failing which the qualified

majority shall be deemed attained”. (see also Article 205(2) of the Treaty on the Functioning

of the European Union and the Protocol on transitional provisions).

Last but not least, national parliaments have finally found their place in the European

constitution having a voice in the legislative procedure (e.g. III-160) as well as in the revision

process (IV-7). Two protocols regulate their participation: the Protocol on the role of National

Parliaments in the European Union and the Protocol on the application of the principles of

subsidiarity and proportionality. These have become part also of the Treaty of Lisbon. Of

course, how these rules translate into real and viable practices remains to be seen, but in case

of ratification the Union’s representative democratic life will be enriched by a further multi-

level dimension. The European Parliament has finally gained equal footing with the Council

through the ordinary legislative procedure as to become a true co-legislature in spite of

exceptions relating to CFSP and EDSP: “European laws and European framework laws shall

be adopted, on the basis of proposals from the Commission, jointly by the European

Parliament and the Council of Ministers under the ordinary legislative procedure as set out in

Article III-302. If the two Institutions cannot reach agreement on an act, it shall not be

adopted” (Art I-33). Here too, the changes by the Treaty of Lisbon (Art 9 C), are minimal and

mainly due to the shift of subjects such as the transfer of personal data to third data into

articles regulated by intergovernmentalism.

Of course, there will be no laws and framework laws as the terminology regarding legal

instruments has been reversed to past definitions. However, few doubt that directives and

regulations are something entirely different from laws, in particular as their primacy and

direct effect have been well established in the member states. Primacy of European law over

national law has been stated in Article 10 of the Constitutional Treaty has now taken the veil

of Declaration Concerning Primacy (17): “The Conference recalls that, in accordance with

well settled case law of the Court of Justice of the European Union, the Treaties and the law

adopted by the Union on the basis of the Treaties have primacy over the law of Member

States, under the conditions laid down by the said case law”. It is underpinned by a reference

to an Opinion of the Legal Service of the Council which states that “(i)t results from the case-

law of the Court of Justice that primacy of EC law is a cornerstone principle of Community

law. According to the Court, this principle is inherent to the specific nature of the European

Community. At the time of the first judgment of this established case law (Costa/ENEL, 15

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July 1964, Case 6/641) there was no mention of primacy in the treaty. It is still the case today.

The fact that the principle of primacy will not be included in the future treaty shall not in any

way change the existence of the principle and the existing case-law of the Court of Justice.”

Conclusions: The Veils of European Constitutionalism

This paper argued that European constitution building is a decades old process taking place in

different institutions and with varying degrees of intensity. Constitutionalism on the other

hand has evolved much slower following the logic of any creation of a new legal order. It is as

evolutionary as the constitutional process itself. The paper further argued and tried to

demonstrate that the current return to classical Treaty revision has not stopped that process

but simply opted for the old terminology. As a matter of fact in substance most provisions

invented by the Convention have been integrated in the Treaty of Lisbon albeit veiled in old

forms. But then also the constitutional discourses of the Convention did not mark a complete

departure from the acquis. They built on it, but used the terminology pertaining to national

constitutionalism thus bringing into the open what actually is European reality. This reality is

indeed embedded in a process of constitutionalisation by stealth posing problems of

democratic legitimacy. Both Conventions, the first establishing European rights, the second

organising European powers, engaged in the evolution of the existing treaties by harvesting

the dialectic of supranationalism and intergovernmentalism. It is argued here that in the last

two decades the old dichotomy between the two stances has eroded and given way to a

dialectic producing a new order marked by federalist supranationalism and by

intergovernmentalist supranationalism. European constitutionalism should pay greater

attention to this dialectic instead of contrasting intergovernmentalism and supranationalism

too sharply (Poiares Maduro 2004). In particular, opposing intergovernmentalism to

constitutionalism may not meet reality any longer. What is needed is an analytical view on

intergovernmental supranationalism and its implications for democratic governance as well as

constitutionalism. The crucial question will be whether intergovernmental supranationalism is

eventually evolving into European federalism or revolving into nationalism or rather creating

a political limbo in which government is ultimately diluted into abstract and thus

unaccountable governance.

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