The Constitutional future of Europe: A Transatlantic Dialogue  

Convention on the Future of Europe
European Charter of Fundamental Rights
Activities of the Jean Monnet Center

A Colloquium held under the auspices of the Hauser Global Law School Program and the Jean Monnet Center for International and Regional Economic Law and Justice, New York University School of Law


(The rehabilitation of the villa's expansive garden,
has been a focus of the restoration)

Villa La Pietra, Florence

- July 2003 -

Convened by J.H.H. Weiler
European Union Jean Monnet Chair,
Director of the Global Law School, NYU School of Law

The Constitutional Future of Europe: A Transatlantic Dialogue held at New York University's Villa La Pietra in Florence from July 9th - 11th 2003, brought together Judges from both sides of the Atlantic. The event featured United States Supreme Court Justices Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, Sandra Day O'Connor, and Clarence Thomas; Judges and former Judges of European Member State Constitutional Courts (France: Olivier Dutheillet de Lamothe; Germany: Brun-Otto Bryde, Dieter Grimm and Gertrude Lübbe-Wolff; Italy: Valerio Onida; Portugal: Rui Manuel Gens de Moura Ramos; Spain: Francisco Rubio Llorente; United Kingdom: Lord Scott of Foscote and Lord Justice Stephen Sedley); and Members of the European Court of Justice (Judge Koenraad Lenaerts, Advocates General Francis Jacobs and Miguel Poiares Maduro). In addition the Colloquium included scholars in the fields of European and American Constitutional Law (Rachel Barkow, Eleanor Fox, David Golove, Stephen Holmes, Mattias Kumm, Lester Pollack (all from NYU); Pasquale Pasquino (CNRS, Paris & NYU Global Law School); Eric Stein (Michigan); Neil Walker (European University Institute, Florence); Marta Cartabia (Verona) and José M. de Areilza (Instituto de Empresa, Madrid). The Colloquium was convened and moderated by Joseph Weiler.

The subject matter of the Colloquium was the recently released Draft European Constitution and the European Charter of Fundamental Rights.

Joseph Weiler writes:

This was a colloquium in the true sense of the word. At least four conversations were taking place simultaneously. Like a good Opera the result was constitutional music, rather than noise. One such conversation was that between the Supreme Court Justices - a majority of the Court…! - with some of their Constitutional Court counterparts from Europe. It was an occasion for the American Judges to learn from a privileged set of interlocutors of these most momentous changes in the European Constitutional landscape and to make their own contribution to that debate. No less important and certainly no less interesting was the multilogue, at times passionate, of Constitutional Court Judges from different European Union Member States among themselves trying to gauge the significance and likely impact of the new Draft Constitution and Charter on the Union and the legal orders of the Member States. The conference took the form of an initial dialogue between Joseph Weiler, Judge Lenaerts and Advocate General Jacobs respectively on the key issues of the Constitution and Charter, which acted as a spring board for a general discussion among all participants. It also provoked yet another interesting conversation between the Members of the European Court and their national counterparts on issues which at times have been the subject of heated federal and constitutional tension. Finally, the colloquium was a meeting of academics and practioners - courts and court-watchers with the interesting added twist that many of the Judges were professors too. The Colloquium was "off the record" facilitating both a relaxed and frank exchange.

The themes for discussion were those considered most pertinent to the future European judiciary and European polity. In the Preparatory Documentation the following themes were identified:

  1. An exploration of the "nature of the beast" - Real constitution? A Treaty masquerading as a Constitution or, intriguingly a Constitution masquerading as a Treaty?
  2. Competences - Will the new Draft, can the new Draft, can any form of Constitution impose some "Limits to Growth" on centralized power? Define a jurisdictional balance consistent with the Constitutional understanding of the Member State legal orders? Balance the desire for well defined constitutional boundaries with the need for functional flexibility?
  3. Democracy, Accountability, Transparency - What, if anything will the new Draft do to the proverbial European Democracy and Political Deficit - and has the Judiciary any role to play in relation to this issue?
  4. The status, likely impact and potential points of contention of the new Charter.

Memorable expected and unexpected impressions from the Colloquium:

  • The heterogeneity of views, at times mutually exclusive, on the various issues held by the different European Constitutional Court judges in reflecting on the same document. Judicial discord is neither rare nor unwelcome. It was striking, however, to observe that one of the most hallowed cleavages - that between European Court and Member States Courts -- did not quite play out in the classically expected manner.
  • The ease with which constitutionalists from different countries, and, notably, judges from the US and Europe could converse on the themes of the Colloquium. There truly is a common vocabulary, even if expressed in different dialects.
  • The importance of setting and context as a means for fostering an atmosphere conducive to fruitful discussion. Stillicidi casus lapidem cavat (sometimes stated as The soft drops of water pierce the hard marble) The softness and beauty of the surroundings were the perfect setting to pierce the stone (La Pietra).
  • The precariousness of stereotypes: One could not avoid certain expectations based on national stereotypes as to the projected positions which judges from different countries would adopt. The stereotypes were disproved as often as they were proved.
  • The 'judicial restraint' shown by the professors…!

Defining Moment: Sandra Day O'Connor at the closing Press Conference lifting the US Constitution - a little booklet of 15 pages (7,671 words) -and saying: We have been grappling with this for over 200 years. Then lifting, with a smile, the 253 page (69,044 words) Draft European Constitution and stating: You have some work to do…

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