Jean Monnet Center at NYU School of Law



If the question of a "Constitution of the European Union" is seen as an approximation to the establishment of a European State, that is not a question for the short term, i.e. for the next IGC which will probably take place in the year 2000. This is not a real subject of discussion between the Governments of the Member States101.

The EU does not have and does not need a "Constitution like a State's", simply because it is not a State. Its powers derive from its component Member States and not directly from their peoples. The Union does not have the objective of getting rid of the Nation States which it comprises, in order to create a European Nation State102.. On the contrary, the Treaty of Amsterdam has enshrined the obligation of the EU to "respect the national identities of its Member States". 103

One should, however, stress the two following points :

- firstly, what has been built up as the EU is something sui generis, where a superior entity is able to impose its decisions on the sub-entities which make it up and even on to individual citizens;

- secondly, because of this fact, there is a need to endow this superior entity with rules protecting its sub-entities and individual citizens with a great deal of clarity and openness, as well as to make sure that its decisions are taken with the utmost respect for the rule of law, democracy and individual rights.

Therefore, the real question is that, despite the significant improvements to its Constitutional Charter made by the Single European Act and the Treaties of Maastricht104 and Amsterdam105, this Charter is still on the making. Further improvements are necessary in order to make the EU institutions more effective, more democratic and more transparent. This could be achieved, in particular, through a more representative and legitimate European Parliament, a stronger and more independent Commission, a more effective and consistent Council, greater control by national Parliaments over their Governments and tighter control by the latter over their civil servants. All of this has become an absolute necessity, with the perspective of a Union which could be made up of more than thirty States 106.

For nearly half a century, the path taken by European integration has not followed any pre-established cartesian model. It is for political reasons and pragmatically that the complex system of governance of the EU and its many complicated decision-making rules have been established and refined by its Member States in successive treaties. It is therefore difficult to describe them in terms of a coherent "constitutional system". At the same time, the Court of Justice of the European Communities has established a legal system with strong federalist characteristics107 which has now been enshrined in the Treaties and has become part and parcel of this "constitutional system"108.

This "constitutional system"109 in the making will again be subject to modifications in the next IGC, which will take place in the year 2000 and concentrate on institutional matters110. The consequences of the single currency, as well as the deepening of the debate on European Security and Defence, accelerated by the repercussions of the war for Kosovo, and the time-table, scope and conditions of the next enlargement of the Union -if they are known by that time- might have an influence on the results of that IGC. From a legal point of view, in the end, "the result may not have the symmetry and proportionality that come with the principles of classical architecture ..." but a "Europe of 'bits and pieces'111 may not necessarily lack justification and legitimacy"112.

The possible use of the terms "Constitution"113 , "Constitutional Charter"114, "Constitutional Pact"115 or "Constitutional Treaty"116 is and will remain the subject of a political debate. This political debate will become more intense in the future. Even if it does not receive an answer, that should not and will not prevent the continuing improvement of the existing constitutional features of the European Union's founding Treaties.

101 For its part, the European Parliament has tried several times to establish a "Draft Constitution for the European Union", aiming at the creation of a federal entity :

- Spinelli "Draft of a Constitution of the European Union" (1984), OJEC 19 March 1994, C77, p.33 and Bulletin of the European Communities, 1984, nº2, pp.8-26;
- Colombo Report (1990), doc. A3-165/90, OJEC 17 September 1990, C231, p.91;
- Oreja/Herman Report (1994), Resolution of 10 February 1994, OJEC 28 February 1994, C61, p.155 (the draft Constitution which is annexed to the Resolution has not been formally approved by the European Parliament).

102 "Over the long term, the EU appears not to be moving toward the United States of Europe some of its founding fathers imagined nor toward a breakup into fully sovereign countries or regions. Instead, the outcome is likely to be an unprecedented balance among supranational, subnational and national governments". Andrew Moravcsik: Centralization or Fragmentation ? Europe Facing the Challenges of Deepening, Diversity and Democracy (chapter I, p.6: Europe's Integration at Century's End).

103 "Integration is not about creating a European nation or people, but about the ever closer Union among the peoples of Europe." J. H. H. Weiler, "Does Europe need a Constitution ? Demos, Telos and the German Maastricht Decision", in European Law Journal, 3/95, page 230.

104 Jean-Claude Piris, "After Maastricht, are the Community institutions more efficacious, more democratic and more transparent ?", European Law Review, Vol. 19, nº 5, October 1994.

105 Jean-Claude Piris and Giorgio Maganza, "The Amsterdam Treaty: Overview and Institutional Aspects", Fordham International Law Journal, Vol. 22, 1999.

106 Possible new Members could be, in alphabetical order :

Albania, Bosnia-Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Former Yugoslav Republic of Macedonia, Malta, Poland, Romania, Slovakia, Slovenia, Turkey, Former Republic of Yugoslavia.

107 See Eric Stein : "Lawyers, Judges and the Making of a Transnational Constitution", American Journal of International Law, 1981.

108 On this point, one must particularly stress the constitutional importance of paragraphs 2 and 3 of the Protocol on the application of the principles of subsidiarity and proportionality, annexed to the EC Treaty by the Treaty of Amsterdam, and therefore in force with the same value as the Treaties since 1st May 1999 (emphasis added) :

"(2) The application of the principles of subsidiarity and proportionality shall respect the general provisions and the objectives of the Treaty, particularly as regards the maintaining in full of the acquis communautaire and the institutional balance; it shall not affect the principles developed by the Court of Justice regarding the relationship between national and Community law, and it should take into account Article F(4) of the Treaty on European Union, according to which 'the Union shall provide itself with the means necessary to attain its objectives and carry through its policies'.

(3) The principle of subsidiarity does not call into question the powers conferred on the European Community by the Treaty, as interpreted by the Court of Justice. The criteria referred to in the second paragraph of Article 3b of the Treaty shall relate to areas for which the Community does not have exclusive competence. The principle of subsidiarity provides a guide as to how those powers are to be exercised at the Community level. Subsidiarity is a dynamic concept and should be applied in the light of the objectives set out in the Treaty. It allows Community action within the limits of its powers to be expanded where circumstances so require, and conversely, to be restricted or discontinued where it is no longer justified."

109 Described by Alan A. Dashwood as "a constitutional order of States".

110 See, in Annex III, the Conclusions of the 3 and 4 June 1999 European Council on this issue.

111 Implicit reference to Deirdre Curtin : "The Constitutional Structure of the Union, A Europe of bits and pieces", Common Market Law Review, 1993, p.22.

112 Richard Bellamy and Dario Castiglione : "Building the Union : The Nature of Sovereignty in the Political Architecture of Europe", in "Constructing Legal Systems - European Union in Legal Theory", edited by Neil MacCormick, Kluwer Academic Publishers, Dordrecht, 1997, pages 115 and 91respectively.

113 As already used by some European law scholars.

114 As used by the EC Court of Justice in its case-law.

115 As proposed by the "European Movement".

116 As proposed by Dr Wofgang Schäuble and Karl Lamers to the German CDU-CSU political parties on 3rd May 1999: "Réflexions sur la politique européenne II - la suite du processus d'unification européenne", whilst they stress at the same time that : "des notions telles que 'Super-Etat européen', 'Etat fédéral européen' ou 'Etats-Unis d'Europe' ne sont pas de nature à rendre manifeste le caractère original de la construction juridique européenne".



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