The idea of a European Constitution

Oxford Journal of Legal Studies

Volumn 27, Issue 1, 2007, Pages 1-21

  Eleftheriadis, Pavlos ^a  

^a UNIVERSITY OF OXFORD   (United Kingdom)

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EID: 34147211700     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gql022     Document Type: Article

References (95)

1. See the Draft European Constitution, published as Treaty Establishing a Constitution for Europe, Official Journal of the European Union 16/ 12/2004, C310.
2. For the various stages to the drafting of this text see the earlier Draft Treaty Establishing a Constitution for Europe, 18 July 2003, CONV 850/03 (prepared by the Convention for the Future of Europe)
3. and Draft Treaty Establishing a Constitution for Europe, 25 June 2004, CIG 86/04 (drafted by the Intergovernmental Conference). The Treaty was signed in October 2004 by the Member States' governments. The process of ratification has now been suspended, after failed referenda in France and the Netherlands in May and June 2005.
4. In what follows I will not always draw the technical distinction between the European Union and the European Community. Very roughly, under the existing Treaties (but not under the Draft Constitution, which does away with the distinction) the European Community is the narrower entity encompassing the economic policies and core activities of the organization, whereas the Union is the larger body comprising the same membership but enjoying greater powers, including co-operation in criminal law policy, defence and foreign affairs. Strictly speaking the most important law of the Union is European Community law. An important complication is that the Community has international legal personality, whereas the Union does not. Hence, there are important differences between the two, but for the sake of simplicity I will ignore them for the purposes of this article. I will refer to the entity as 'the EU', a single entity, and its law as 'EU law'.
5. Case 294/83, Les Verts - Parti Ecologiste v European Parliament [1986] ECR 1339, par. 23.
6. Any textbook will give this account of the Court's case law. See for example, T.C. Hartley, The Foundations of European Community Law (5th edn, 2003) at 197-242,
7. Paul Craig and Gráinne de Búrca, EU Law: Text, Cases and Materials (3rd edn, 2003) at 178-229 (on direct effect) and 275-316 (on supremacy).
8. The main constitutional cases are short and just assert the constitutional character of the Treaties. They invariably ground the doctrines of direct effect and supremacy on the need for uniform and effective application of EU law. See, e.g. Case 26/62 Van Gend en Loos [1963] ECR 1, Case 6/64 Flaminio Costa v E.N.E.L. [1964] ECR 585, Case 106/78 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629.
9. See P.P. Craig, 'The Nature of the Community: Integration, Democracy and Legitimacy' in P.P. Craig and G. De Burca (eds), The Evolution of EU Law (1999) Ch. 1.
10. Hence, the discussion of current institutional law of the EU as a 'constitutional law'. See for example Koen Lenaerts, Piet van Nuffel and Robert Bray, Constitutional Law of the European Union (2nd edn, 2005). Other books on the Union's legal system prefer the title of "Introduction to EU law' or 'Foundations of EU law'.
11. For a useful review of the political science literature on the EU see George Tsebelis and Geoffrey Garrett, 'The Institutional Foundations of Intergovernmentalism and Supranationalism in the European Union' (2001) 55 International Organization 357-90. It will be obvious that a constitutional interpretation of the EU is a rather different task from an empirical description of the extant institutions.
12. See Joseph H.H. Weiler, The Constitution of Europe: 'Do the New clothes have an Emperor?' and Other Essays on European Integration (1999) at 238-63
13. (hereafter referred to as Weiler, The Constitution of Europe).
14. See also Joseph H.H. Weiler 'The Transformation of Europe', 100 Yale LJ 2403 (1991).
15. Weiler, The Constitution of Europe, 342.
16. Weiler, The Constitution of Europe, 344.
17. Weiler, The Constitution of Europe 270 ff.
18. Weiler writes that the Community embodies a 'Kantian idea' of supranationalism which 'diminishes the importance of the statal aspects of nationality' and allows 'the individual to rise above his or her national closet'; Weiler, The Constitution of Europe, 343.
19. J.H.H. Weiler, 'In Defence of the Status Quo: Europe's Constitutional Sonderweg' in J.H.H. Weiler and Marlene Wind (eds), European Constitutionalism Beyond the State (2003) at 10.
20. See also J.H.H. Weiler, 'A Constitution for Europe? Some Hard Choices' (2002) 40 Journal of Common Market Studies 563-80.
21. See, e.g. P.S. Atiyah, The Rise and Fall of Freedom of Contract (1985) at 726-70.
22. Walter Bagehot, The English Constitution, edited by Paul Smith (2001).
23. See for example Jeffrey Jowell and Dawn Oliver (eds), The Changing Constitution (5th edn, 2004)
24. and Dawn Oliver, Constitutional Reform in the United Kingdom (2003).
25. Armin von Bogdandy, 'The Prospect of a European Republic: What European Citizens are Voting On' (2005) 42 CMLRev 913.
26. See Koen Lenaerts and Damien Gerard, 'The Structure of the Union According to the Constitution for Europe: The Emperor is Getting Dressed' (2004) 29 European Law Review 289 (hereafter referred to as Lenaerts and Gerard).
27. See also Koen Lenaerts and Marlies Desomer, 'Bricks for a Constitutional Treaty of the European Union: Values, Objectives and Means' (2002) 27 European Law Review 377-407
28. and for some earlier reflections Koen Lenaerts, 'Constitutionalism and the Many Faces of Federalism' (1990) 38 American Journal of Comparative Law 205.
29. Lenaerts and Gerard, above n 18 at 291. Lenaerts seems to be responding to Weiler's challenge in The European Constitution in their suggestion that the emperor is 'getting dressed'. Yet the analogy is not well advised. If Lenaerts and Gerard concede that the EU without the Draft European Constitution is usefully compared to Hans Christian's Andersen's naked emperor, then what does it mean to say that the treaties are already 'the supreme law of an autonomous legal order' - and what are we to infer from the failure of the French and Dutch electorates to deliver on time?
30. Lenaerts and Gerard, above n 18 at 321.
31. Lenaerts and Gerard, above n 18 at 299-300 (footnote omitted). Later Lenaerts and Gerard add that 'the Union's Constitution co-exists with the constitutions of the Member States. Legitimate in the eyes of the Member States as the source of an autonomous political authority inasmuch as it draws inter alia on their common constitutional traditions (see Preamble to Pt II of the Constitution), it constitutes a complementary constitutional instrument at the Union's level that European citizens can precisely identify as the supreme law that they have in common';
32. ibid 301.
33. The key difference from other approaches to EU law is the insistence on the 'autonomy' of the legal order. A similar set of assumptions permeates Lenaerts' textbook, above n 6. For a similar view on the 'autonomy' of the European legal order see also René Barents, The Autonomy of Community Law (2004). Barents writes that 'because of its autonomy, the EC Treaty can be described in an objective manner as a "constitution", while Community law can be regarded as a "new" category of law, situated next to or between national and international law' (references omitted, 243-4).
34. G. Federico Mancini 'Europe: The Case for Statehood' (1998) 4 European Law Journal 29-42, at 41.
35. See also Joseph Weiler's reply 'Europe: The Case against the Case for Statehood' (1998) 4 European Law Journal 43-62
36. and Mancini's earlier formulation in G. Federico Mancini, 'The Making of a Constitution for Europe' (1989) 26 CMLRev 595.
37. There are numerous studies of the European Union from the point of view of political science, economics and sociology. For comprehensive accounts that broadly support the argument made here see Andrew Moravcsik, The Choice for Europe: Social Purpose and State Power from Messina to Maastricht (2003),
38. Alan S. Milward, The European Rescue of the Nation-State (1993)
39. and Loukas Tsoukalis, What Kind of Europe? (2003).
40. A contrary view seems to be supported by Alec Stone Sweet who writes of the 'constitutionalization of the Treaty of Rome' in his The Judicial Construction of Europe (2004) at 45-96.
41. Stone Sweet speaks of a process 'by which the Rome Treaty evolved from a set of legal arrangements binding upon sovereign states into a vertically integrated legal regime conferring judicially enforceable rights and obligations on legal persons and entities, public and private, within EC territory. The phrase thus captures the transformation of an intergovernmental organization governed by international law into a multi-tiered system of governance founded on higher-law constitutionalism' (65). Nevertheless, Stone Sweet does not endorse the position that the EU is an 'autonomous' political authority. His position seems to me closer to the hybrid position taken by Weiler and others. For an overview of these issues see also the various essays in Kalpyso Nicolaidis and Robert Howse (eds), The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union (2001).
42. See Andrew Moravcsik, 'In Defence of the "Democratic Deficit": Reassessing Legitimacy in the European Union' (2002) 40 Journal of Common Market Studies 603-24
43. and Andrew Moravcsik, 'The European Constitutional Compromise and the Neofunctionalist Legacy' (2005) 12 Journal of European Public Policy 349-86.
44. Larry Siedentop, Democracy in Europe (2000).
45. Ibid at 251.
46. German Constitutional Court, 'Maastricht Decision', 12 October 1993, reprinted in A. Oppenheimer (ed.), The Relationship between European Community Law and National Law: The Cases (1994) at 524-75.
47. See also Paul Kirchoff, 'The Balance of Powers Between National and European Institutions' (1999) 5 European Law Journal 225-42, at 230. Kirchoff argues that the relations between domestic courts and the ECJ is one of a 'balance of powers', not hierarchy. Kirchoff thereby rejects the ECJ's doctrine of unconditional supremacy of EC law on the grounds that a view of European law as 'original' would weaken the 'rootedness of Community Law in the political units of the Member States' and would 'loosen the requirement for democratic legitimation' through an elected legislature. He concludes that 'the endeavour to shut the state and politics out of the process of European integration through the abstraction of a graduated system of law lies outside the European legal tradition' (229).
48. See also, for a separate argument, Trevor Hartley, Constitutional Problems of the European Union (1999).
49. See Neil MacCormick, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth (1999).
50. Along the lines, perhaps, suggested by Hedley Bull, The Anarchical Society: A Study of Order in World Politics (2nd edn, 1995).
51. See generally Hans Morgenthau, Politics Among Nations (1985),
52. Kenneth Waltz, The Theory of International Politics (1979).
53. See also Tim Dunne and Brian C. Schmidt, 'Realism' in John Baylis and Steve Smith (eds), The Globalization of World Politics: An Introduction to International Relations (2nd edn, 2001) at 141-61.
54. Bull, above n 29 at 134-5.
55. Immanuel Kant, 'Perpetual Peace: A Philosophical Sketch' in Kant, Political Writings, edited by Hans Reiss, trans. by H.B. Nisbet (1991) at 93-130.
56. For commentary see J. Bohman and M. Lutz-Bachman (eds), Perpetual Peace: Essays on Kant's Cosmopolitan Ideal (1997).
57. John Rawls, The Law of Peoples (1999), 47.
58. A phrase used by Neil MacCormick in his Who's Afraid of a European Constitution? (Exter: Imprint Academic, 2005).
59. See Tridimas, The General Principles of EC Law (2nd edn, 2006) at 3. Tridimas' extensive study focuses on the second part, which I shall call the 'public law' of the EU.
60. The recent Köbler judgment illustrates these risks: Case C-224/01 Köbler [2003] ECR I-10239. See Peter J. Wattel,' Köbler, CILFIT, and Welthgrove: We Can't Go on Meeting Like This' (2004) 41 CMLRev 177-90.
61. For a detailed analysis of the theoretical problems of supremacy see Pavlos Eleftheriadis, 'Aspects of European Constitutionalism' (1996) 21 European Law Review 32-42 (from the point of view of the Court of Justice)
62. and Pavlos Eleftheriadis, 'Begging the Constitutional Question' (1998) 36 Journal of Common Market Studies 255-72 (from the point of view of the courts of the Member States).
63. This was recognized implicitly in the Court's judgment in Joined Cases 10-22/97 Ministero delle Finanze v IN.CO.GE. 90 Srl et al. [1998] ECR 6307, paras 20 21. In this case the Court held that an Italian measure that was contrary to pre-existing EC law was not void and non-existent for all purposes, but that national courts only had a duty to 'disapply' it according to powers given to them by national laws. The distinction suggests to me that supremacy is recognized to be conditional on national law, be it procedural or substantive.
64. See Kant, above n 31.
65. See Pavlos Eleftheriadis, 'Cosmopolitan Law' (2003) 9 European Law Journal 241-63,
66. Pavlos Eleftheriadis, 'The European Constitution and Cosmopolitan Ideals' (2001) 7 Columbia Journal of European Law 21-39.
67. Kant's prescience is impressive: '[I]f by good fortune one powerful and enlightened nation can form a republic (which is by its nature inclined to seek perpetual peace), this will provide a focal point for federal associations among other states. These will join up with the first one, thus securing the freedom of each state in accordance with the idea of international right, and the whole will gradually spread further and further by a series of alliances of this kind'; Kant, above n 31 at 104.
68. Many others do as well. Mattias Kumm, for example, argues in favour of the consideration of legal ideals, rather than formal hierarchies by the Court of Justice. See Kumm, 'The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty' (2005) 11 European Law Journal 262, at 299-304. In a different but parallel argument Ingolf Pernice explains that there is 'no a priori supremacy either of European law or of the national constitutions' under the idea of 'multilevel constitutionalism'.
69. See Pernice, 'Multilevel Constitutionalism in the European Union' (2002) 27 European Law Review 511-29, at 520. I have benefited greatly both from reading these essays and from discussion with the authors.
70. MacCormick, above n 28.
71. Ibid.
72. J.H.H. Weiler, 'In Defence of the Status Quo: Europe's Constitutional Sonderweg' in J.H.H. Weiler and Marlene Wind (eds), European Constitutionalism Beyond the State (2003), 7.
73. Weiler, 'In Defence of the Status Quo', 9.
74. See also Weiler, The Constitution of Europe 337 ff.
75. Weiler, 'In Defence of the Status Quo', 20.
76. Weiler, 'In Defence of the Status Quo', 21.
77. Weiler writes: 'When acceptance and subordination are voluntary, and repeatedly so, they constitute an act of true liberty and emancipation from collective self-arrogance and constitutional fetishism: A high expression of Constitutional Tolerance'; 'In Defence of the Status Quo', 21.
78. See also J.H.H. Weiler, 'The Constitution of the Common Market Place: Text and Context in the Evolution of the Free Movement of Goods' in Craig and de Burca (eds.), The Evolution of EU Law 349-76, where Weiler notes that common market in goods is the 'heart of the material or substantive constitution of the Community' (350).
79. Habermas, 'Why Europe Needs a Constitution' (2001) 11 New Left Review (Sep-Oct), 5.
80. For a more extended argument along the same lines see Jürgen Habermas, 'The Postnational Constellation and the Future of Democracy' in Habermas, The Postnational Constellation: Political Essays, trans. by Max Pensky (2001) 58.
81. For a general discussion of federalism and the EU see Sergio Fabbrini (ed.), Democracy and Federalism in the European Union and the United States (2005).
82. Larry Siedentop, above n 25.
83. Habermas, 'Why Europe Needs a Constitution' 21.
84. See also the similar sentiments expressed in the joint statement Habermas made a propos of the Iraq war, in Jürgen Habermas and Jacques Derrida, 'Nach dem Krieg: Die Wiedergeburt Europas', Frankfurter Allgemeine Zeitung, May 31, 2003.
85. Bogdandy, above, n 17, 916.
86. Juliane Kokott and Alexandra Rüth, 'The European Convention and Its Draft Treaty Establishing a Constitution for Europe: Appropriate Answers to the Laeken Questions?' (2003) 40 CMLRev 1315, at 1321.
87. Kokott and Rüth, above n 53 at 1318 (footnote omitted).
88. Weiler, 'In Defence of the Status Quo', 21.
89. Nagel, 'The Problem of Global Justice' (2005) 33 Philosophy and Public Affairs 113.
90. Ibid at 127.
91. Ibid at 129-30.
92. Rawls, above n 32.
93. Nagel, above n 56 at 144.
94. See Art 7 of Parliament and Council Directive of 29 April 2004 to move and reside freely within the territory of the Member States on the Right of Citizens of the Union, 2004/38/EC, Official Journal L 158 of 30.04.2004. The right of free movement established by Art 18 of the Treaty establishing the European Community, under the chapter of 'citizenship, has always been read narrowly. For an earlier, almost identical, provision see Council Directive of 28 June on the right of residence, 90/364/EEC, Art 1 (1).
95. Isaiah Berlin, 'European Unity and its Vicissitudes' in Isaiah Berlin, The Crooked Timber of Humanity: Chapter in the History of Ideas, edited by Henry Hardy (2003) 175 at 205.