Jean Monnet Center at NYU School of Law


How could the Constitutional Charter of the European Union be transformed into a Constitution like that of a State and does this look feasible?

After the resignation of the Commission in March 1999, a lot of articles were written in the press. Among them, one may quote these two:

· "it is not a crisis ... quite the contrary ... it is the best thing that has happened to the course of European unity in many years ... For the first time, democracy is breaking through at the European level... The resignation of the Commission ... looks similar to the fall of a European national government that has lost its parliamentary majority";53

· "This week may mark a great leap forward for the "European project" ... a full-scale constitutional reform is now required ... the need for a new constitutional settlement for Europe, analogous to the Constitutional Convention that created the USA in 1789, is the one issue that unites almost all honest thinkers on Europe..."54

Does such a need exist ? Will such an event happen ? Does the transformation of the EU's Constitutional Charter into a Constitution like that of a State appear suited to the sui generis character of the Union ? Does it appear realistic ?

In order to try and give some elements which might help to answer these questions, one should try to define the essential criteria which would have to be met in order to transform the EU's fundamental texts into a Constitution like that of a State. Whilst admitting that other criteria could be chosen, one could include the four following ones:

- a clear-cut division of powers between the EU and its Member States;
- the organization of an EU government;
- full sovereignty in external relations for the EU;
- the adoption of a Constitution for the EU directly by its people(s).

A clearer division of powers between the European Union and its Member States

· It is often stressed that today, the division of powers, as organized by the Treaties, is not clear enough.

It is true that, for instance, when the EC becomes a member of an international organization, it is sometimes difficult to give to that organization and to its members a precise indication of the boundaries between the powers of the EC and the powers of its Member States.

Another and more acute problem is that Member States, and also their sub-entities wherever the latter have powers of their own (being Länder, Regions, Communities, ...) cannot be fully guaranteed that, in such or such an area, the EC will never adopt legislation.

Let us take a concrete example: the Treaty does not give to the EC the power to legislate in the fields of health or of culture.. But the internal market requires that distortions of competition be eliminated, as well as national provisions which hinder freedom of movement, and the EC is therefore able to adopt rules on the basis of Article 95 (ex-Article 100a), which might have an effect on health or culture.

Others also stress that the institutions may abuse their powers under Article 308 (ex-Article 235), or their budgetary powers, or their "implied powers" as recognized by the Court of Justice, resulting in the fact that the boundaries between EC and Member States' powers become even more blurred.

That is the reason why a clear division of powers has been requested by both "pro-" and "anti-integrationists", that the Committee of the Regions of the EU recently published a report on this subject55 and that both the European Parliament and the European Movement have requested that the Treaties be amended in that way.

On the side of the anti-integrationists, it is sometimes asserted that the boundaries of the EC's powers are open, porous, unstable, and that they are always shifting in the same direction; this is not true. A few facts must be stressed in this respect:

- Some articles of the Maastricht Treaty expressly exclude any harmonization of the laws and regulations of the Member States in certain fields (education: Article 149 (ex-Article 126); vocational training: Article 150 (ex-Article 127); culture: Article 151 (ex-Article 128); public health: Article 152 (ex-Article 129)). Before Maastricht, such harmonization would have been legally possible under Article 235 (now Article 308). It is now forbidden;

- above all, in a series of judgments and opinions given during the last ten years, the Court of Justice has established progressively clearer rules of delimitation :

· Despite this progressively clearer delimitation of powers, which has probably not yet been fully perceived, one can understand the reaction of a regional entity of a Member State, to which the national Constitution reserves and guarantees full power to legislate in, for example, the fields of culture and education, when the federal authorities of that Member State have to admit that they cannot prevent the EC from legislating, at least indirectly, in these very areas61.

Therefore, if an EU "Constitution" like that of a State were to be drawn up, one could say that it should allow for its (sub-)entities to be protected against any excessive extensions of the powers of the EU. For example, the Committee of the Regions has stated the view that :

"Protecting regional prerogatives and local autonomy involves both giving guarantees to local and regional authorities, and making it possible to verify the proper application of these guarantees, as well as the use of sanctions in the case of failure to respect them."62

Similarly, the European Parliament has often expressed the same opinion, as early as in 199063 :

"Having regard to the future development of the Community, in particular its commitment to draw up a draft constitution for European Union and the fact this process of transforming the European Community requires a clear distinction to be made between the competencies of the Union and those of the Member States."

However, one has to admit that this would not be so easy to achieve as it may appear at first glance.

· Firstly, the examples of Federal States, such as the USA or Germany64, show that such a delimitation of powers is, except in the field of external relations, somewhat vague even though it appears broadly generous :

- see the Tenth Amendment, 1791, to the US Constitution: "the powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people."

- see Article 30 of the German Basic Law: "The exercise of governmental powers and the discharge of governmental functions shall be incumbent on the Länder in so far as this Basic Law does not otherwise prescribe or permit." ; see also Article 70:

"1) The Länder shall have the right to legislate in so far as this Basic Law does not confer legislative power on the Federation.

2) The division of powers between the Federation and the Länder shall be determined by the provisions of this Basic Law concerning exclusive and concurrent legislative powers."

One also has to take note of the fact that the US and German Supreme Courts have been very cautious whenever they have had to give an interpretation of these respective provisions.

In the EC Treaty, the rule mentioned above, i.e. Article 5 (ex-Article 3 b) first sub-paragraph is of the same kind: "The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein". EC law is, moreover, subject to the socalled "subsidiarity principle", contained (since the Maastricht Treaty) in the following sub-paragraph of the same Article and developed (since the Amsterdam Treaty) in a Protocol to the Treaty.

· Secondly, EC law is not stable. It is dynamic. The boundaries of the EC's powers move with the adoption of decisions, regulations, directives and the conclusion of international agreements.

In a number of cases, the Treaty theoretically gives powers to the EC, which have not (yet) been exercised, be it in the fields of services, of taxation, of transport, etc... So long as these powers have not been exercised, the Member States remain free to act; whenever they are exercised, Member States lose their powers correspondingly. Sometimes the EC exercises its powers on the internal plane, and this has automatic consequences for its external powers.

Therefore a strict, precise and stable division of powers would seem extremely difficult to draw. That goes in both ways. Could one really say, for example, that Member States have lost all their powers to act in trade policy or in agricultural policy? That is actually not the case, even though these two policies are regarded as the prime and the best examples of the so-called "exclusive powers" of the EC.

· Thirdly, a further difficulty is that the EU would risk being drawn into the delicate matter of the relations between Member States and their regional entities, which pertains to the Constitution of each Member State. A precise delimitation of powers at the European level could have the consequence of obliging each Member State to change its internal constitutional and political arrangements65.

Even if, despite the difficulties, one could try and find the means to improve the definition of the EC's powers, particularly on the basis of the case-law of the Court of Justice, it is not sure that it would be possible (or even desirable) to change drastically the present situation..

Organization of a European Union Government

Under the present organization of the EU, its balance of powers does not correspond to the classic principle of the separation of powers. The interplay of checks and balances does not give a necessarily weaker result, but it is different. However, if the EU were to have a Constitution like that of a State, one might wish to organize the institutions more classically66 by having the executive power, i.e. the Government, on the one side, and the legislative power, i.e. the Parliament, on the other side.

In such a scenario, two EU institutions could be candidates for becoming the EU Government: the Commission or the Council (or, probably, in the latter case, the European Council and the Council taken together).

The Council has more political legitimacy than the Commission. Its members are members of their national Governments and they are subject to direct public scrutiny and political accountability. However, the Council lacks continuity, consistency and permanence, due to the fact that it has more than twenty different formations, each of them having a different composition, that its members deal directly with EU affairs only one day each month for some of them or even one day each semester for some others, that it has a six-month rotating Presidency and that it has a very small administration (there are only 300 people in the professional grade working in the General Secretariat of the Council).

The Commission is an appointed institution; each of its members has been, up to now, de facto chosen by its own national Government. We will see in the future what the consequences will be of the Amsterdam Treaty, which gives both to the European Parliament and to the designated President of the Commission the possibility of influencing these choices. The Commission does have a certain democratic legitimacy, being appointed by elected Governments and confirmed in office by an elected Parliament, which can also dismiss it. Furthermore, most of its members have been members of national governments before their appointment. However, if the Commission were to be transformed into a Government, it should probably have a more direct link with the citizens. If it were decided that the Commission should be elected in order to achieve this goal, it could be done so either directly by the European Parliament alone, or directly by the people(s) (at least for its President). In the first case, there would be a risk of having an "Assembly-régime" as in the Fourth French Republic, and it would in any case necessitate greater legitimacy on the part of the European Parliament (this point will be raised later); by the same token, it would lack the legitimacy which is given to it by the Governments of the Member States. In the second case, the risk would be of making the Commission too powerful67 and politically, it would seem ill-adapted to the sui generis nature of the EU.

In any event, if the Commission were to become the Union's Government, the EU Parliament would probably be conceived of as a bi-cameral one, with a First Chamber corresponding to the present European Parliament and a Senate corresponding to the present Council. But on that point, one has to stress that at present, the Council does not only have legislative powers, but it is also very much an executive power. Moreover, if one considers the three fields which have a great deal to do with executive power and which will also be the areas which should develop the most substantially in the years to come, i.e. a) Economic and Monetary Union, b) Police Cooperation in criminal matters, and c) Foreign Policy, Security and Defence, then in all three of these cases, the authors of the Treaties have clearly shown that they do not wish the Commission to be the major decision-making body in these fields.

Therefore, on the second criterion, it is by no means sure that one should try to disturb the present balance of powers of the EU institutions in order to make them more similar to national institutions. That would not reflect the political reality.

Sovereignty of the European Union in external matters

Any Constitution of a State, whether it be centralized, decentralized, federal or confederal, always leaves power over external matters to a single superior entity: full treaty-making power, extensive power at the very least in the economic sphere,and exclusive power in the fields of foreign policy, security and defence.

During the 1996 IGC, which led to the adoption of the Amsterdam Treaty, one of the most discussed questions was the possible extension of the external economic powers of the EC, especially following Opinion 1/9468 of the EC Court of Justice of 15 November 1994. It is recalled that, in this important opinion, the Court ruled that the power to approve the contents of the Uruguay Round Agreements was shared between the EC and Member States, in the fields of services and intellectual property69.. Therefore, a single voice and a single vote on the part of the EU could not be guaranteed in the World Trade Organization (WTO). This raised a number of difficulties. Nevertheless, the Member States subsequently took the deliberate decision that the Amsterdam Treaty would not extend Community powers in these areas. The result is that the powers with which the EC will be endowed on the international economic scene at the beginning of the XXIst Century will still be similar to those given to the European Economic Community in 1957 when the Treaty of Rome was signed, with the exception of the powers it has acquired by developing its internal legislation70.

As regards foreign policy, the contents of the Amsterdam Treaty will no doubt provide more convenient tools for action, but it will remain the fact, at least for the foreseeable future, that everything will depend on the will of the Members of the Council. In any event, Member States are not at all minded at present to give exclusive powers to the EU in this field.

That being so, it goes without saying that, as regards security and defence, in a Union made up of some States which are members of a military Alliance and others which are neutral, there is no prospect in the short term of exclusive powers being conferred on the EU and of corresponding attributions being given to its institutions. On this point, however, one should not disregard the rapid progress made in the recent period: the Franco-British Declaration on 4 December 1998 in St Malo, the Vienna European Council on 11-12 December 1998, the informal meeting of the fifteen Ministers of Foreign Affairs in Reinhartshausen on 13-14 March 1999, the NATO Washington Summit on 24 April 1999, the meeting of the Western European Union in Bremen on 10-11 May 1999, the Cologne European Council on 3-4 June 199971. The tragic events which followed the disintegration of Yugoslavia have played an important role in these political developments.

Therefore, to conclude on the third criterion, it is difficult to see how the Member States would accept, at least within the next few years, to give up in full their sovereignty in foreign policy in favour of the institutions of the European Union. However, it does look certain at present that some progress willl be made in the direction of a Common European Policy on Security and Defence, as the results of the 3-4 June 1999 session of the European Council show.

Adoption of a European Union Constitution directly by its people(s)

As has already been mentioned above, the EU Treaties refer to "peoples" and not "the People" and this has been confirmed again by the Treaty of Amsterdam. But one could still imagine the possibility of the basic EU constitutional texts being prepared by a Constituent Assembly and put to the peoples of the Member States for direct approval in a European-wide referendum. This has been proposed by the European Parliament, as well by the European Movement in its recent "Appeal for Objective 2002". That would be a big step, as the EU would then derive its authority directly from its citizens, and no longer from its Member States.

However, in the absence of the three criteria analysed above, the logic of taking such a step would not be obvious for the politicians of our Member States. Moreover, it seems doubtful that they would feel enthusiastic about this idea: the Member States consider themselves as being the "masters of the Treaties"72 and most of them intend to keep this power.

Such a development would also raise some difficult questions, in the event of one or several of the "peoples" refusing to approve the Constitution. Would the Member State(s) of which they are nationals then have to be excluded from the EU ? Or would those State(s) be obliged to participate, even against the will of their own "people", once a given number of Member States and/or a given percentage of EU citizens had approved the Constitution ?

Therefore, the fourth criterion does not look likely to be met in the foreseeable future. This conclusion is of some importance: it would be difficult for a "Constitution" which had not been directly adopted by the people concerned to be perceived as a "Constitution" by public opinion in most of the EU Member States.

At the end of this brief survey of the four criteria which would have to be met by a possible EU "Constitution" in order for it to be comparable to the Constitution of a State, it seems that these four criteria do not look well-adapted to the sui generis present nature of the EU. Assuming the EU continues not to be a State73, there would be no need, in the short or medium term, for seeking to amend the EU's Constitutional Charter in this kind of way.

Even if this conclusion was wrong, it does not appear likely that the Member States would contemplate agreeing on such amendments unanimously, at least at this stage of the process of European integration.

53 Reginald Dale in the "International Herald Tribune" (19 March 1999).

54 Anatole Kaletzky in "The Times" (18 March 1999).

55 Report of 11 March 1999 of the Committee of the Regions (rapporteurs : Messrs. Delebarre and Stoiber), doc. CdR 302/98.

56 Judgment of 28 June 1994 in Case C-187/93, ECR 1994-6, I-2857.

57 Opinion of 15 November 1994, ECR 1994-11/12, I-5267.

58 Opinion of 28 March 1996, ECR 1996-3, I-1788.

59 Judgment of 12 May 1998 in Case C-106/96, ECR 1998-5, I-2729.

60 In any case, the doctrine of "implied powers" should not be exaggerated. As Alan Dashwood has explained very clearly:

"An extensive doctrine of implied powers, enabling the Community to take any actions that might reasonably be regarded as furthering objectives identified in the preamble or the general Articles of the Treaty, would certainly be incompatible with the principle of limited attribution in Article 3b; and it would undermine any attempt to delineate Community powers more precisely. I can say at once that the Community order knows no such doctrine. The rather modest quantity of case law on the Community's implied powers represents a carefully contained response by the Court of Justice to two kinds of situation.

The first situation is where the Treaty gives one of the institutions, typically the Commission, a specific job to do, and the institution considers it needs a certain kind of power for this purpose, which has not been specifically provided for.

(...) The other, and more significant, case of recognition of implied powers is where powers are conferred on the Community without an express indication as to whether they can be used to organize the external relations aspects of the matter in question, as well as the internal Community aspects.

(...) The answer to the question, which the Court of Justice worked out in a series of judgments and opinions during the 1970s, may be formulated like this: in any case where the Community has been given powers to achieve a certain objective in its internal system, it has the corresponding external powers necessary for the achievement of that objective, even if there is no express provision conferring such power.

(...) At all events, I can safely conclude that in the two situations where the Court of Justice has had recourse to the doctrine of implied powers, there is no serious danger of opening the floodgates of Community competence."

(Inaugural lecture in Cambridge, 13 November 1995, on "The Limits of European Community Powers", European Law Review, 1996).

61 See the Declaration by Germany, Austria and Belgium on subsidiarity, of which the Amsterdam IGC took note :

"It is taken for granted by the German, Austrian and Belgian governments that action by the EC in accordance with the principle of subsidiarity not only concerns the Member States but also their entities to the extent that they have their own law-making powers conferred on them under national constitutional law."

62 Report of 11 March 1999 of the Committee of the Regions (rapporteurs: Messrs. Delebarre and Stoiber), doc. CdR 302/98.

63 Resolution of 12 July, 1990.

64 See also the Constitutions of Switzerland and of Belgium:

- Article 3 of the 1999 Federal Constitution of Switzerland: "Les cantons sont souverains en tant que leur souveraineté n'est pas limitée par la Constitution fédérale et exercent tous les droits qui ne sont pas délégués à la Confédération." This Article must be read together with Article 42: "1. La Confédération accomplit les tâches que lui attribue la Constitution. 2. Elle assume les tâches qui doivent être réglées de manière uniforme."

- Article 35 of the 1994 Constitution of Belgium: "L'autorité fédérale n'a de compétence que dans les matières que lui attribuent formellement la Constitution et les lois portées en vertu de la Constitution même (...)".

65 This risk was carefully avoided in the Protocol on the application of the principles of subsidiarity and proportionality, annexed to the EC Treaty by the Amsterdam Treaty.

66 Some also propose that a Head of State ("the President of the Union") be elected.

67 "Making Europe more democratic will also make it too powerful" (David Macintyre in "The Independent", 19 March 1999).

68 ECR 1994, I-p. 5267.

69 Ramón Torrent, "Derecho y Práctica de las Relaciones Exteriores en la Unión Europea" (CEDES Editorial, Barcelona, 1998).

70 The failure of the Amsterdam IGC on this point reflects the complexity of the indissoluble links between the matters which could be the subject of a transfer of powers from the Member States to the Union and other extremely sensitive matters (tax and social policy, for instance) which would remain within the powers of the Member States. The present situation might be long-lasting. If that were to be the case, means should be devised in order to ensure that the requirement for single external representation of the Union is fulfilled, by creating the necessary pragmatic but legally binding instruments and procedures through an arrangement between Member States, Council and Commission.

71 See, in particular, the following extract from the European Council Declaration on Strengthening the Common European Policy on Security and Defence, the full text of which is reproduced in Annex I of this paper:

"In pursuit of our Common Foreign and Security Policy objectives and the progressive framing of a common defence policy, we are convinced that the Council should have the ability to take decisions on the full range of conflict prevention and crisis management tasks defined in the Treaty on European Union, the "Petersberg tasks". To this end, the Union must have the capacity for autonomous action, backed up by credible military forces, the means to decide to use them, and a readiness to do so, in order to respond to international crises without prejudice to actions by NATO. The EU will thereby increase its ability to contribute to international peace and security in accordance with the principles of the UN Charter."

72 According to the formulation of the German Supreme Court in the Brunner Case, Judgment of 12 October 1993: "Herren der Verträge".

73 See Amadeu Lopes Sabino : "La Communauté n'est pas un Etat, non pas parce qu'elle n'est pas encore un Etat, mais pour la simple raison qu'elle est une autre chose. Cela implique de la penser autrement", in "Penser la Constitution de l'Union européenne", Revue du Marché Commun et de l'Union européenne, April 1993, nº367, p.366.



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