When the Convention on the Future of Europe started work in February 2002, a skeptical
mood prevailed and expectations were low. Little more than a year later, the European
equivalent of the U.S. Constitutional Convention in Philadelphia in 1787 is getting
credit for the substantial amount of work it has accomplished. The European Convention
has already presented the first concrete elements of a European Constitution, and
shown its worth as an innovative instrument of EU institutional reform.
Whatever compromises the Convention may ultimately reach, and whatever its shortcomings,
the path toward a European Constitution has never been as open as it is today.
Even though the repercussions of the war in Iraq have caused some delays, there
are still hopes that 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. With the Convention still in the midst
of its work, America’s constitutional experience in the late 18th century
offers some instructive indications as to where the current European process may
be heading.
The most obvious parallel is the fact that the American constitution followed
the independence of the United States, just as the move to develop a European
constitution is following the creation of the European Union. The American author
John Ellis, in his fine book The Founding Brothers, describes the enactment of
the American constitution as the second founding of the United States.
Whether a European Constitution will have the same impact remains to be seen.
But the very establishment of the European Constitutional Convention can justifiably
be called a success in comparison with the Union’s futile and increasingly
bureaucratic efforts to reform its institutions through obscure Intergovernmental
Conferences in past years. The Convention, which counts representatives of all
the relevant EU institutions among its 105 members, together with participants
from the EU candidate countries, has acquired considerable momentum.
In the process, the debate over Europe’s constitutional identity has become
markedly more political and more transparent. The Constitutional Convention is
pushing the discussion out of the academic world of constitutional theory into
the glare of the public political marketplace. The outcome of the Convention will
become a reference point for further reßection on what might be called a European
“constitutional patriotism,” or the fostering of allegiance to a more
united Europe through constitutional advances.
The drawing up of a European Charter of Basic Human Rights, one of the few successes
of the EU summit meeting in Nice in December 2000, provided a first indication
that progress could he made in this direction. While the American Bill of Rights
followed the ratification of the U.S. Constitution, the European Union did it the
other way around. The Human Rights Charter, the first document to be prepared by
a European Convention, has yet to be incorporated into the EU treaty system and
acquire the force of law.
Once this is done, however, the notion of European identity will acquire a strong
legal input, as is the case with the implementation of basic rights in the United
States. The rule of law may become more important than intellectual purple prose
in defining European rights and obligations, and thus a European identity.
This will have implications for the future role of the European Court of Justice,
and, more generally speaking, for the whole question of the primacy of EU law
over national legislation. As in the past, the European Court of Justice will
serve as an engine of further European integration through its interpretation
of EU law. Resistance will grow in member states, particularly among lawyers,
judges and, above all, law professors, who are still primarily trained in the
traditions of national law and all too often dislike the idea of further transfers
of legal sovereignty to the central EU institutions. With the incorporation of
the Human Rights Charter into the Constitution, however, this will become inevitable.
At the core of European constitution building is the issue of “limited powers,”
to use the American notion of what Europeans call subsidiarity, a term that has
its origins in Catholic social doctrine. Subsidiarity is the principle that EU
decisions should be taken at the lowest appropriate level – whether national,
regional or local – and that only those requiring action at EU level should
be taken in the Union’s central institutions. The American equivalent is
the Tenth Amendment, which states that “the powers not delegated to the
United States by the Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people.”
As we all know, the evolution of American federalism has been very lively over
the past 150 years. In spite of the limits on federal authority contained in the
Tenth Amendment, the originally loose links between the States and the federal
government have in reality developed toward “national federalism,”
meaning that the concept of the nation has become a federal one.
Whether the European Union will follow suit remains to be seen. As things stand
today, however, the Constitutional Convention might in fact propose both “limited
powers” for the European Union in general and, at the same time, more and
new powers in specific, crucial fields such as economic governance, justice and
home affairs, and foreign and security policy.
The presentation of the first 16 articles of the constitution by the Convention’s
Presidium, or high-level steering group, in February 2003 indicates the general
direction. These articles suggest that EU legislation should fall into three different
categories. In the first case, the institutions of the European Union would have
exclusive jurisdiction; in the second, authority would be shared between the European
Union and the member states, and in the third, the competent bodies would be national,
regional or local authorities.
The national parliaments of EU member states are asking for stronger representation
in the legislative process via an “early warning system” that would
monitor the impact of proposed EU laws on national parliamentary authority and
on the political mandates that national parliamentarians derive from voters. The
idea is to make the notorious notion of “subsidiarity” more palatable
and concrete.
The biggest shortcoming of the current process is that the Convention has no mandate
to include fiscal provisions in the proposed constitution. It is worth recalling
that the American constitution also originally lacked fiscal provisions. But the
issue of fiscal federalism and arrangements for resource allocation will ultimately
define the fate of any European constitution. These issues are looming increasingly
large in the discussion of Europe’s future constitutional division of powers.
In fact, questions of budgeting and of fiscal accountability are at the core of
the debate over the legitimacy of the EU institutions. However much the role of
the European Parliament, and the idea of transparent, parliamentary democracy,
might be strengthened through an increase in the use of qualified majority voting
in the adoption of EU laws, the core problem will remain “representation
without taxation.” Whereas the American colonies rebelled partly for the
opposite reason – they were being taxed by a body (the Parliament in London)
in which they were not represented – European citizens are represented in
a Parliament that does not have the power of taxation.
Whether or not a European tax will ultimately be adopted, it is in the murky waters
of fiscal accountability and transparency that the constitutional debate will continue
beyond the current work of the Constitutional Convention. This, the most important
unresolved problem of EU integration, ensures that amendments will be necessary
in future years regardless of the outcome of the current Convention. It has already
been proposed that the Convention should not be a one-off event, but should be
transformed into a permanent mechanism for amending the proposed European Constitution,
perhaps convening every five years or so.
Another important and controversial proposal is the suggestion that the Constitution
should include an “exit clause,” which would allow member states to
withdraw from the Union if they no longer supported its plans for closer unification.
Given that the United States fought a bitter and bloody civil war to stop states
seceding from the Union, the American precedent points to the explosive nature
of this proposal.
Advocates of the “exit clause” say it would increase the legitimacy
of the European Union by demonstrating that membership was voluntary. Opponents
argue it would open a Pandora’s Box in which member states would be constantly
threatening to secede if they did not get their way, and the issue of EU membership
would, at least in some countries, be confirmed as a permanent and potentially
destructive political issue. Any withdrawing state would also have to engage in
complicated and almost certainly difficult negotiations to preserve its trading
and economic links with the remaining members.
Another controversial issue is whether the European Union should be endowed with
a legal personality, a development that looks likely since a consensus in favor
has been established in the Convention. This would enable the European Union in
the future to become much more active in matters of international law, joining
international institutions and signing treaties on behalf of all its member states.
The modern European equivalents of America’s 18th century anti-Federalists
are resisting such a move. Those who favor further integration, as did the American
Federalists, are pleased that the notion has made headway among Convention members.
In 18th century America, of course, the Federalists won the day by winning ratification
of the new constitution.
Agreement on the U.S. Constitution in Philadelphia was finally made possible by
a “great compromise” that struck a balance between big and small states
in the composition of the Senate and the House of Representatives. The European
“great compromise” will have to be between inter-governmentalists
and supra-nationalists over the vexed question of EU leadership.
Inter-governmentalists (the modern heirs of the American anti-Federalists) want
leadership to be exercised by the European Council, the forum in which national
leaders represent their own governments. Supra-nationalists (the heirs of the
Federalists) want more power for the European Commission and the European Parliament,
in which national sovereignty is pooled in the overall interests of the Union.
In early 2003, the French and the German governments proposed two presidencies
with enhanced powers. The President of the Commission would be elected by the
European Parliament, instead of, as now, nominated by government leaders; the
President of the European Council would be elected by heads of government and
serve for several years. The Council Presidency currently rotates between the
member states in alphabetical order every six months.
The Franco-German proposal represents a compromise between the inter-govermentalist
leanings of the French government, which wanted a stronger President of the Council,
and the supra-nationalist views of the German government, which wanted more democratic
legitimacy, and thus political authority, for the President of the Commission.
The solution was simply to grant each government its wish. The plan, however,
has run into opposition from other member states and from the European Parliament.
The mandate of a stronger Council President is of particular importance and controversy.
Critics argue that a long-term Council President would prolong the Union’s
so-called democratic deficit, given that voters would have no direct say in who
should hold the office. At the same time, a Council President without strong authority
and viable bureaucratic support would find it difficult to function effectively
as the prime spokesperson for Europe in world affairs – one of the main
roles he or she would be expected to fulfill.
The Franco-German plan would also fail to resolve current tensions between the
Council and the Commission over which institution should take the lead in foreign
affairs at Ministerial level. At the moment, that role is shared awkwardly between
the President of the Commission, the Council’s High Representative for Foreign
and Security Affairs (currently Javier Solana) and the External Affairs Commissioner
(Chris Patten).
There is a growing consensus that this particular dilemma should be solved by
merging Mr. Solana’s and Mr. Patten’s jobs and appointing a single
European Foreign Minister. But if the roles of both Presidents were simultaneously
strengthened, the institutional conßict would simply be moved up to a higher level.
Nevertheless, a variant of the Franco-German proposal might be accepted as Europe’s
“great compromise.” An elected Commission President could be matched
by a longer-term Council President with a specific mandate covering a limited number
of policy areas. Such a solution might be welcomed by the United States, which
is not particularly pleased at having to deal with a new Council President every
six months.
It must be doubted, however, whether such a compromise would truly reßect the
interests of EU citizens or advance the concept of a common European identity.
On the one hand, it is probably too early for most Europeans to accept a real
President of the European Union, in the same way that Americans accept Presidential
authority. On the other hand, if the European Union is to have a President, that
President must, in the end, be a real one. Ultimately, only a directly elected
President – or a President with a double hat, presiding over the Commission
and the Council simultaneously – could legitimately claim to represent the
Union’s citizens with the same authority as an American President.
A clear majority in the Constitutional Convention favors the election of the next
Commission President by the European Parliament in late 2004. The choice would
reßect the political alignment that will emerge from Europe-wide elections to
the Parliament that are to be held that summer, the first to include the ten new
member countries that are due to join the Union in May 2004.
Although the European Union remains a construction site, it is fascinating to
see how fast the idea of a European constitution has gained consensus –
even among British members of the Constitutional Convention. Britain, which does
not have a written constitution, has also traditionally been among the most reluctant
supporters of further political integration. But it is not inappropriate that
Britain should play a role in forging a European constitution. After all, although
the U.S. constitution came into being as the result of the break with Britain,
America’s Founding Fathers were strongly inßuenced by English ideas.
Ludger KŸhnhardt is Director of the Center for European Integration Studies at the University of Bonn. His most recent publication, Constituting Europe: Identity, institution-building and the search for a global role, was published by Nomos Publishing House of Baden-Baden, Germany, in early 2003. In 2002, he was a Public Policy Scholar at the Woodrow Wilson International Center for Scholars in Washington, D.C.
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