Harvard Law School

Jean Monnet Chair
Professor J.H.H. Weiler

Harvard Jean Monnet Working Paper 5/00

Jean-Claude PIRIS

DOES THE EUROPEAN UNION HAVE A CONSTITUTION ? 
DOES IT NEED ONE?

Harvard Law School    Cambridge, MA 02138

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No part of this paper may be reproduced in any form
Without permission of the author.

© Jean-Claude PIRIS 2000

Harvard Law School
Cambridge, MA 02138
USA

DOES THE EUROPEAN UNION HAVE A CONSTITUTION ? 
DOES IT NEED ONE?

by Jean-Claude PIRIS (*)

The subject of a "Constitution for Europe" has become a highly topical one, more and more debated. It is sometimes seen in the comparative light of the constitutional process which took place in the United States of America some two hundred years ago, and which was about the creation of one State, one Nation, one People.  Along the same lines, some think that a "European Constitution" should be adopted as a basis for the establishment of a future European Federal State. Among those - more numerous - who do not think that the European Union (EU) should become a "United States of Europe", such a Constitution is sometimes seen as either necessary or desirable, in order to give more legitimacy to the EU.

In fact, the Court of Justice of the European Communities has already characterized the Treaties which are the foundation of the European Communities (EC) as "a Constitutional Charter"() . Does this imply that the EU already has a "Constitution" ? Is this "Constitution" similar to the Constitution of a State ? If that is not the case, how could it be transformed in such a way ? And if that does not look desirable or feasible, how would it be possible to improve the constitutional features of the European Union's founding Treaties ?

	*

In very simple terms, the present situation might be described as follows:

The EU has law-making institutions, including a Council composed of Ministers who are members of national governments of the Member States, and a directly elected European Parliament. The Council and the Parliament share the power of co-deciding legislative, administrative and budgetary acts, which are proposed by the Commission. The Commission, which exercises the powers conferred on it by the Council for the implementation of Community law, also ensures that this law is applied and may take a Member State to Court if it fails to fulfil its obligations. The Parliament shares with the Member States the power to approve the appointment of the President of the Commission and of the Commission as a whole; the Parliament also has the power to remove the Commission from office. The laws adopted by these institutions within the fields of power of the EC are superior to the laws of the Member States and may have direct effect on the citizens of the Union. The Union has a single market and manages a single currency and monetary union for most of its Member States. There are a number of fields for which the Member States have lost power to adopt legislation or to negotiate international agreements. There are other fields where "laws" (regulations and directives) or treaties can be imposed on the Member States and which they are obliged to implement, or else being faced with having to make lump sum or penalty payments, as well as paying compensation to adversely affected people. The Court of Justice has the power to rule on disputes between the institutions, between institutions and Member States about the extent of their respective powers, and on the rights and obligations of Member States and citizens under  European law.

This "new legal order" is embodied in fundamental texts which define these institutions and their powers, and oblige them to respect the rule of law and human rights. Do these fundamental texts, which have been adopted by the governments of the Member States and approved by their peoples through referenda or through their elected representatives, form a "Constitution" () ? 

But what is a Constitution ?

Let us look up the definition of what a Constitution is, in a standard law dictionary. That should help us to make sure that our analysis, at least at its point of departure, is as objective and scientific as possible. The definitions given in law dictionaries() can be broken down into a number of elements : 

•	a Constitution organises the government of the entity to which it applies ; •a Constitution prescribes the extent and manner of the exercise of sovereign powers;
•	a Constitution is the absolute rule of action: any official act in breach of it is illegal (this pre-supposes a constitutional or supreme court);  
•	a Constitution frequently lists rights of the individual and guarantees their protection;
•	a Constitution derives its authority from the governed and is agreed upon by the people;
•	a Constitution is the fundamental law of a Nation or State.

Before trying to check the situation of the EU against these elements, let us make a preliminary remark.

Of course, the authors of the EU Treaties could choose, if they so desired,  to use the term "Constitution" to designate those Treaties. That would be seen as a political gesture, but if nothing was changed as to the substance of the Treaties, it would not necessarily mean that the EU had a Constitution like that of a Nation State. A magnificent example exists in international law, for an entity which obviously does not pretend in any way to be a State: the International Labour Organization (ILO) was created in 1919 by the adoption of a "Constitution"; the ILO is still governed to this day by its founding "Constitution".

It follows from this preliminary remark that the debate about a "Constitution for Europe" is mainly a political one ().. To be or not to be in favour of such a Constitution often means to be or not to be in favour of the establishment of a Federal or a Confederal European State. This political debate is legitimate. However, lawyers should try to frame their reflections, as much as they can, on a more legal and institutional basis. On the one hand, their reflections might be useful as a modest contribution intended to clarify the political debate. On the

other hand, they might show that, even if (or as long as) the political debate does not receive an answer, that should not prevent the constitutional features of the EU's founding Treaties from continuing to be improved.

The four following questions will be addressed in this paper:

i)	Do the international treaties on which the European Union is founded constitute a "Constitutional Charter" ?

ii)	Is the EU's Constitutional Charter comparable to the Constitution of a State ?

iii)	How could the EU's Constitutional Charter be transformed into a Constitution like that of a State and does this look feasible ?

iv)	If that is not the case, how would it be possible to improve the EU's Constitutional Charter ? 

DO THE INTERNATIONAL TREATIES ON WHICH THE EUROPEAN UNION IS FOUNDED CONSTITUTE A "CONSTITUTIONAL CHARTER" ?

This first question has already received an answer from the Court of Justice of the European Communities. One may stress that:

-	the treaties on which the EU is founded go far beyond classic international treaties, and 

-	they do indeed contain some important elements which are mentioned by law dictionaries as defining what a Constitution is. 

The EU founding treaties go far beyond classic international treaties

This point can be made briefly, because it does not give rise to many differences of  opinion. One should simply point out a few well-known characteristics of the EU:

•	Compared with classic international organizations, the EU institutions have special characteristics. The Council may vote by qualified majority and take decisions which are binding on the Member States without any need for transposition. The Commission is independent from the Member States and has a near-exclusive right of initiating legislation. The European Parliament is directly elected and shares with the Council a real right of co-decision for a large part of legislation and for the budget. The Court of Justice is independent and its decisions are binding on the Member States.

•	These institutions have been given important powers, both legislative and executive, in extensive fields of action.  In certain fields, the EC even has "exclusive" power (the common commercial policy, monetary union, agriculture, fisheries, competition, ...), Member States having lost some or all of their sovereign attributions in those areas. The Court of Justice has also determined that the EC enjoys "implied powers", notably in order to conclude agreements with third States and other international organizations, where that is necessary for achieving the objectives assigned to the Community on the internal level(). The Court has also ruled, in the ERTA case(), that:

		"each time the Community, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form these may take, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules".

•	EC law is binding and may have a direct effect for citizens, without any intervention on the part of national authorities. The Court stated in the case Van Gend en Loos(), as early as 1963:

		"that the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights ... and the subjects of which comprise not only Member States but also their nationals".

 	The Court therefore concluded that the Treaty provision at issue there "produces direct effects and creates individual rights which national Courts must protect". EC law also has supremacy over national law: the Court affirmed the "precedence of Community law" in the case of Costa v. Enel() in 1964. It has also stated, in 1970, that:

		"the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State or the principles of a national constitutional structure"(). 

	Over the years, the EC Court of Justice has developed this legal system through a body of law including superior principles of law, particularly by the preliminary rulings it gives whenever a question on the interpretation of EC law is referred to it by national courts (on the basis of Article 234 of the EC Treaty, ex-Article 177).

•	The Commission ensures that EC law is properly implemented by Member States. It may bring actions against Member States before the Court of Justice. The Court ensures the uniform interpretation of EC law and ensures its application. It has established that Member States must pay compensation to individuals for losses caused to them when Member States have violated Community law().. Furthermore, the Court itself may impose a lump sum or penalty payment on a Member State which has not complied with its judgments().

•	Finally, the Amsterdam Treaty has introduced provisions allowing the EU institutions to determine the existence of a serious and persistent breach by a Member State of principles of democracy, respect for human rights and the rule of law and to decide on suspending certain of the rights deriving from the Treaties to the Member State in question, including its voting rights in the Council().

The EU's founding Treaties include some important elements of what is generally defined as "a Constitution" 

The founding Treaties organize the "government" of the Union, by describing the composition of its institutions and prescribing the extent and manner of exercise of their powers. It is on these bases that the EC Court of Justice has determined that the EC founding Treaties constitute a "Constitutional Charter" which:

-	 is based on the rule of law,
-	 establishes a new legal order distinct from national laws,
-	 protects human rights and fundamental freedoms.

•	The rule of law

	The first time the Court expressly referred to the Treaty as a "constitutional charter" was in  the case of Les Verts() in 1986, when it emphasised that the Community:

		"is a Community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty." 

	This means that the Treaty has superior legal value, in the same way as a Constitution does: just as the different organs of government in any State have to comply with the national Constitution, so the Member States and the Community institutions are obliged to comply with the rules of the Treaty. The rule of law is perhaps the most fundamental of constitutional guarantees, because all other values depend on it, for them to be upheld at all.

	The Court also pointed out in the same case that : 

		"in Article 177 (new Article 234) the Treaty established a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of measures adopted by the institutions.  Natural and legal persons are thus protected against the application to them of general measures which they cannot contest directly before the Court by reason of the special conditions of admissibility laid down in the second paragraph of Article 173 (new Article 230) of the Treaty."
	
	The Community therefore gives effective rights of recourse to individual citizens(), not just to the Member States or to the Community institutions. This is indeed a crucial criterion which would certainly not be met by the typical mechanisms found in international agreements, for settling disputes between the States parties to the agreement over its interpretation or application. Moreover, it is not the national courts, but the Court of Justice which has the final say on the interpretation and the validity of Community acts. This ensures that such acts are interpreted as uniformly and consistently as possible in all Member States.

•	A new legal order

	The Court referred again to the Community Treaty as a "constitutional charter" in its Opinion nº 1/91(), where the Court distinguished the Treaty from the Agreement establishing the European Economic Area (EEA) between the EC and its Member States on the one hand, and certain Member States of the EFTA (European Free Trade Association) on the other hand. 

	The Court noted, firstly, that the Community Treaty is much more ambitious than an international agreement setting up a free trade area, by emphasising that:

		"the treaty aims to achieve economic integration leading to the establishment of an internal market and economic and monetary union".

	At the same time, the Court stressed that the ultimate objective of the Community is not just socio-economic but rather political:  

		"Article 1 of the Single European Act makes it clear moreover that the objective of all the Community treaties is to contribute together to making concrete progress towards European unity".

	The Court then showed that the Community Treaty is radically different in nature from other international agreements, by pointing out that: 

		"The EEA is to be established on the basis of an international treaty which, essentially, merely creates rights and obligations as between the Contracting Parties and provides for no transfer of sovereign rights to the intergovernmental institutions which it sets up.

		In contrast, the EEC Treaty, albeit concluded in the form of an international agreement, none the less constitutes the constitutional charter of a Community based on the rule of law.  As the Court of Justice has consistently held, the Community treaties established a new legal order for the benefit of which the States have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only Member States but also their nationals (see, in particular, the judgment in Case 26/62 Van Gend en Loos [1963] ECR 1).  The essential characteristics of the Community legal order which has thus been established are in particular its primacy over the law of the Member States and the direct effect of a whole series of provisions which are applicable to their nationals and to the Member States themselves". 

•	The protection of human rights and fundamental freedoms

	There is no list of human rights in the European Treaties(). However, according to Article 6(2) (ex-Article F.2) of the Treaty on European Union:

		"The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law".

	Even before that Article was incorporated in the Treaty by the Maastricht Treaty, the Court of Justice had already established this constitutional feature, by holding consistently :

		"that fundamental rights form an integral part of the general principles of the law, the observance of which it ensures; that in safeguarding those rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States, so that measures which are incompatible with the fundamental rights recognized by the constitutions of those States are unacceptable in the Community"().

	The Court followed this up by awarding compensation for damages on the basis of Article 288 (ex-Article 215) of the EC Treaty, in cases where there had been a breach of "a general and superior principle of Community law for the protection of the individual" and "the Community legislature manifestly and gravely disregarded the limits of its discretionary power, thereby committing a sufficiently serious breach of a superior rule of law"(). 

The Court frequently refers to the European Convention for the Protection of Human Rights and Fundamental Freedoms, in order to uphold the rights and freedoms mentioned in the Convention and its subsequent Protocols.  In December 1998, the Court of Justice even ruled that the Court of First Instance of the EC had breached the right to a fair hearing mentioned in Article 6 of the Convention, by taking too long to give judgment in an anti-trust case.()

The Community is not, however, party to the European Convention on Human Rights, and there has always been the risk that the Court of Human Rights in Strasbourg would find certain provisions of Community law to be incompatible with the Convention. This risk had remained largely theoretical. However, in February 1999, the Court of Human Rights handed down a very important judgment in the case of Matthews v. United Kingdom, by ruling that an act of primary Community law was incompatible with Protocol nº 1 to the Human Rights Convention().

*               *
*

The answer to be given to the first question is, therefore, that the EU does indeed, as the EC Court of Justice has recognized, have a Constitutional Charter.

One should add that the "constitutional" characteristics of the Treaties have been deepened and strengthened, not only by the Court of Justice(), but also by successive Treaty amendments, which have been negotiated, signed and then democratically approved by the Member States : this has been generally recognized, albeit often rather belatedly, in the case of the Single European Act() and the Treaty of Maastricht(), but not (yet) for the Treaty of Amsterdam(), which entered into force on 1st May 1999. 

The constitutional importance of that Treaty has been generally ignored or under-estimated().  In fact this Treaty:

•	significantly increases the powers of the "integrated" institutions :
	-	that is obviously the case for the European Parliament, with the establishment of a real co-decision procedure for legislation, which has put the European Parliament on an equal footing with the Council(), with the extension of the scope of that procedure to some twenty new fields, with the obligation to consult the European Parliament for measures to be adopted under Title VI of the EU Treaty (police and judicial cooperation in criminal matters) as opposed to merely keeping it informed, and with the powers of the Parliament to approve the appointment of the President of the Commission and then the Commission itself;
	-	but that is also obviously the case for the Court of Justice, with its role in the safeguarding of fundamental rights in the new Title IV added to Part III of the EC Treaty on visas, asylum, immigration and other policies related to the free movement of persons, as well as in relation to measures under Title VI of the EU Treaty, the incorporation of the Schengen cooperation into the EC-EU legal framework and in relation to the possibilities of enhanced cooperation;
	-	that is also the case for the Commission, the legitimacy and the role of its President having been strengthened and its role of initiative extended;

•	enshrines in the Treaty constitutional principles which, up to now, were only reflected in the case-law of the Court; this is the case for:
	-	the principles developed by the Court regarding the relationship between national and Community law();
	-	the interpretation given by the Court to the definition of powers conferred on the EC by the Treaty();
	-	respect for the acquis communautaire "in full"();

•	increases the double democratic legitimacy of the EU's decisions, both through the European Parliament and through national parliaments, with the Protocol on the role of national parliaments in the European Union();

•	increases the constitutional value of the respect by the Union for "the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law"(), providing also for the institutions of the Union to control Member States' respect for these principles() ; 

•	envisages further constitutional improvements for the future: a reform of the institutions(), a uniform electoral procedure and a statute  for the Members of the European Parliament (regulations and general conditions governing the performance of their duties)().  The inter‑governmental conference also adopted Declarations nº 31 on "comitology", nº 32 on the organisation and functioning of the Commission, nº 42 on the consolidation of the Treaties, etc.

IS THE CONSTITUTIONAL CHARTER OF THE EUROPEAN UNION COMPARABLE TO THE CONSTITUTION OF A STATE?

The fact that the EU's founding Treaties may be characterized as a "Constitutional Charter" could lead one to describe them as "a Constitution". However, this does not necessarily mean that they are identical or similar to the Constitution of a State. Actually, the founding Treaties reflect the fact that the EU, which derives its authority from its Member States,  lacks some of the essential characteristics of a State.

The EU is lacking in  some  of the essential elements which are necessary for a complete system of governance and which characterize States 

Let us put aside the question of democracy (i.e. the more or less democratic contents of the EU's Constitutional Charter), at least for the time being. It has little to do with the comparison we are trying to make : there have been and there still are non-democratic States with Constitutions. Therefore, that should not be our criteria : we are not trying to assess whether the EU has a good Constitution, just whether it has one at all, which could be assimilated to the Constitution of a State. The same thing could be said about the system of separation of powers. In other words, the question is whether the founding Treaties of the EU give it the essential elements which characterize sovereign States.

Actually, the Union is far from having the means and resources which are necessary for a complete system of governance :

-	legal means : the implementation and control of Community law, for the most part, probably more than 90 per cent, lies in the hands of national administrations and courts;

-	human resources : the total number of staff of the EC is just about half of the municipal staff of a city like Paris() ;

-	financial resources : the EC budget represents a tiny proportion of the gross domestic product of the Member States, i.e. 1.13% in 1999, and the major part of its expenses (85%) is managed by the Member States' administrations() and paid directly to their beneficiaries by them; although the EU has its own resources (i.e. its budget does not depend, unlike the UN or other international organizations, on contributions by Member States), it has neither the power to levy taxes, nor to establish these resources, whose nature and level are laid down in a Decision which has to be ratified by the Member States;

-	administrative and technical capacities : the Community has very little operational means of control and action at its disposal; administrative expenditure represents only 4.6% of the total Community budget;

-	means of coercion: the EU also lacks the means of coercion which are usually the attributes of a sovereign State : police and army().

Therefore, the EU is, and will probably remain, almost entirely dependent on its Member States and on their legislative, executive, administrative and judicial authorities, firstly for inspiring and secondly for applying and controlling the implementation of the rules which it adopts. One has fully to grasp this feature, in order to avoid falling  into a misconception of the EU system.

The EU is not a State; it derives its authority from its Member States

One thing which is probably clear for all citizens of the EU is that it is not a State: they know, for instance, that the EU has no Head of State. On the other hand, the component Members of the EU do have all the attributes of States : Head of State, Head of Government, army, police, courts, prisons, ...()

•	The EU is not a Nation State

	An important criterion in the law dictionary definitions of a Constitution refers to "a Nation or State". On this point, the answer is clear and straightforward.  The EU, although it has some attributes of a State, is clearly not a State; nor do the citizens of the Union make up a single Nation.

	Black's Law Dictionary defines a State as : 

		"A people permanently occupying a fixed territory bound together by common-law habits and custom into one body politic exercising, through the medium of an organized government, independent sovereignty and control over all persons and things within its boundaries, capable of making war and peace and of entering into international relations with other communities of the globe". 

	Let us consider some of the elements of this definition.

	- A single people, or several peoples ?

		The first element in this definition of a State refers to "a people" in the singular, and so does the preamble of the USA Constitution, which begins with the words "We the People of the United States".  As far as the EU is concerned, it is undeniably made up of several Nations, and the Community Treaty refers in its very first preambular clause to "an ever closer union among the peoples of Europe", in the plural.

		The notion of the existence of a single people should not, however, be exaggerated.  There are many States whose citizens have different origins and who speak different mother-tongues, and it is quite normal for everyone to have multiple affinities and loyalties. We can think of ourselves not only in terms of national citizenship or by reference to a common language, but also to the locality or region where we come from (for example, a Frenchman may also think of himself as being from Brittany, a German from Bavaria, and so on), and these affinities can also embrace factors going beyond national boundaries. It is  undoubtedly the case that  Europeans share some important and distinctive things in common, distinguishing them from other peoples and societies, geographically, historically and culturally :

		Geographically, Europe is a more or less distinct entity, forming a peninsula with its extensive sea-coasts in the North, the West and the South. As far as a land frontier in the East is concerned, the Ural Mountains form natural landmarks separating Europe from Asia, but one has to admit that it is not always obvious to decide, on purely geographical grounds, exactly where the limits are.

		Historically, Europeans share their roots in the civilisations of Ancient Greece, Rome and Judaeo‑Christianity. By the time of the Enlightenment, the term "Europe" as such had gradually been adopted.  Rousseau even went so far as to announce that: "Il n'y a plus aujourd'hui de Français, d'Allemands, d'Espagnols, d'Anglais même, quoi qu'on en dise; il n'y a que des Européens."()

 		Culturally, notwithstanding its richness and diversity, Europe is clearly quite distinct from other continents, although the cultural differences between Europe and America are naturally lesser; but one could also stress that the so-called "European social model" is different from the American one.

	- Sovereignty and the attribution of powers

		Turning to the second element of the definition of a State: a State is said to have "independent sovereignty". Black's dictionary defines "sovereignty as "the self-sufficient source of political power, from which all specific political powers are derived".. In other words, a State enjoys sovereignty and power as a matter of right, over all fields of government except for those which are specifically removed from the remit of the State by the Constitution. 

		Very clearly, the EU and the EC do not have such "independent sovereignty" or "Kompetenz-Kompetenz" , as the Germans call it.  On the contrary, the EC is governed by the principle of the attribution of powers, which is enshrined in the EC Treaty() : "The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein."().. This means that, in contrast to Nation States, which are sovereign by definition, the EC has no power, except for those powers which have been specifically attributed to it by the Treaties. Each time the EC acts, it must do so on the basis of a specific Treaty provision which gives it the corresponding power, and this requirement is strictly controlled by the Court of Justice().

		Contrary to what some still think, Article 308 (ex-Article 235) of the EC Treaty does not allow for the exercise of any power falling outside the scope of the Treaty. Whilst it is true that the formulation of that Article is not very precise, such an extensive recourse to it is not possible (at any rate, it is no longer possible), either politically or legally. The Council takes a much more restrictive approach now to the use of this provision than it did in the past(), especially after the Court of Justice handed down its Opinions 1/94() and 2/94(). One could also mention, in this connection, the "Maastricht judgments" given by the German() and the Danish() Supreme Courts.

	- Control over all persons and things

		The third element in Black's definition of a State refers to it as having "control over all persons and things within its boundaries". On this point, although the Community has the power to regulate many sectors of the economy, it does not actually have control over all persons and things. It has to rely on the Member States to use the administrative and coercive machinery which is at their disposal alone, in order to ensure the proper application of Community law.

	- War and peace

		A State, according to the fourth element in Black's definition of this term, is "capable of making war and peace".  The EU does not have any such power : it has no army, no common defence, and it does not participate in a military alliance. Nevertheless, the Community and the Union are able to take certain other steps which are considered as unfriendly in international law, for example by imposing a trade embargo or other sanctions on a third State. Moreover, the progressive framing of a common defence policy is explicitly contemplated by the Treaty (), and is now being actively discussed.

	- International relations

		One of the last elements in Black's definition of a State mentions "entering into international relations with other communities of the globe"..  The EC has legal personality and treaty-making power, but it can only conclude international agreements in respect of those matters which fall within its powers.  To the extent that an international agreement covers matters over which powers are shared between the Community and the Member States, the Member States remain free to exercise these powers themselves, by concluding the agreement on their own behalf. As far as the EU is concerned, it now has treaty-making power in the fields covered by Titles V and VI of the EU Treaty(). This reinforces the argument that implicitly the EU has legal personality, even in the absence of an express provision to that effect.() 

	After having reviewed these different elements of the definition of a State, one can reach two conclusions: on the one hand, the EU is not a State, but on the other hand, its Member States have not retained their full sovereignty and complete freedom to act; they have accepted to give up some of their powers to the EC or to share them within the Union.

•	The EU does not derive its authority directly from its citizens but rather from its Member States

	An important element of Black's Law Dictionary definition of a Constitution describes it as "deriving its whole authority from the governed".  This is indeed the case of the United States Constitution, whose preamble says "We the People of the United States ... do ordain and establish this Constitution".

	By contrast, the EU's founding Treaties were concluded in the form of international agreements between His Majesty the King of the Belgians, Her Majesty the Queen of Denmark, and so on.  However, the Court of Justice ruled in its Opinion nº 1/91 that the Treaty is a "constitutional charter ... the subjects of which comprise not only Member States but also their nationals".. In other words, the Community brings together not only the Member States, but also their peoples, the "citizens of the Union".  

	It is, nevertheless, an undeniable fact that the constitutive authority for negotiating and adopting Treaty amendments remains with the Member States. 

The answer to be given to the second question is, therefore, that the Constitutional Charter of the European Union is not comparable to the Constitution of a State. One must stress that the Treaties stipulate that:
	"the Union shall respect the national identities of its Member States";()
and also that :
	"citizenship of the Union shall complement and not replace national citizenship".()

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";()

•	"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..."()

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 subject() 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 :
		.	for the use of Article 95 (ex-Article 100A): in a case on shipments of waste();
		.	for the use of Article 308 (ex-Article 235): Opinions 1/94() and 2/94();
		.	for the use of budgetary powers: in the case of UK v. Commission, on the funding of a Community action programme to combat social exclusion;() 
		.	for the boundaries of "implied powers"(): Opinion 1/94.

•	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 areas().

	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."()

	Similarly, the European Parliament has often expressed the same opinion, as early as in 1990() :

		"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 Germany(), 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:

		" i)	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 arrangements().

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 classically() 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 powerful() 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 1/94() 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 property().. 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 legislation().

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 1999(). 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"() 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 State(), 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.

HOW WOULD IT BE POSSIBLE TO IMPROVE THE CONSTITUTIONAL CHARTER  OF THE EUROPEAN UNION ?

Although it seems unsuitable and unrealistic, at present, to consider transforming the EU's Constitutional Charter into a Constitution like that of a State, it would, however, be possible and desirable to make a number of improvements to this Charter and to the way it is implemented. Such improvements should be specifically adapted to the sui generis character of the Union and would seek to improve the effectiveness, democratic legitimacy and transparency of its system of governance. Six possible issues will be mentioned which could be addressed in this connection. A number of other issues could also be mentioned. The most important of them, which will not be discussed here, is obviously the strengthening of the powers of the Union in the field of defence and security, a subject on which the debate among Member States has recently become concrete and which will probably lead to important decisions in the short or medium term().. Another issue not discussed below would be the strengthening of certain institutions of the Union such as the Court of Justice, the Court of First Instance() and the Court of Auditors.

• A single and simpler "Treaty-Charter" ?

Everybody agrees that the form taken by the results of the successive IGCs, i.e. an accumulation of long and complicated treaties, is not ideal. The form and presentation of the Treaties are lacking in the clarity they would need in order for them to be understood by some and accepted by all.

The suggestion, which I have already made in the past(), would therefore be to replace the present Treaties by a single, short "Treaty Charter", which would provide for the merger of the EU and of the three European Communities into one entity and which would be as short and readable as possible. It would contain only the fundamental provisions, including the objectives of the Union, citizenship, the attribution and division of powers and institutional matters. All the other provisions, including those governing the common policies, would be contained in protocols annexed to the Treaty Charter. This would not change much legally, and the Treaties would not become a Constitution like that of a State as a result, but it could change things psychologically and politically. The Amsterdam IGC adopted a Declaration on this point().

However, one cannot ignore the fact that a great deal of efforts were made in order to try to achieve this during the Amsterdam IGC, and that they failed. The reason was that certain Member States were firmly opposed to re-submitting existing Treaty provisions, in a different shape and form, to their national ratification procedures. They feared that doing so could risk calling the existing Treaties and policies into question. As this political point seems to be quite weighty, the chances of success look slim. In any case, one can observe that not all States have short and simple Constitutions:  was that the case of Switzerland until the Constitutional reform of 1999?() Is it the case of Bosnia and Hertzegovina?() Is it the case of Belgium?()

• A Bill of Rights ?

As has already been shown, human rights and fundamental freedoms are recognised in Community law and must be respected. The Community legal system provides for judicial review and it provides individual citizens with the opportunity to protect their rights. The situation has been further improved, both by the Maastricht and by the Amsterdam Treaties.

The suggestions here would be both to improve these rights() and to codify them - including those deriving from the European Convention for the Protection of Human Rights and Fundamental Freedoms - into a Bill of Rights, which could eventually become an integral part of the Treaty, whilst also codifying existing rights at the European level, i.e. the right to free movement and non-discrimination, the right to vote in elections to the European Parliament and local elections, etc. That would not change the legal situation dramatically, unless it entailed improving the access of individuals to the Court of Justice and/or the accession of the EC to the of European Convention on Human Rights and Fundamental Freedoms, and thereby access to its Court of Justice, but it would have an important political impact. The European Council, at its session in Cologne on 3rd-4th June 1999, adopted a "decision on the drawing up of a Charter of Fundamental Rights of the European Union". A draft Charter is to be presented in advance of the meeting of the European Council due to take place in December 2000. The "European Charter of Fundamental Rights", which should be proclaimed as a solemn declaration, could subsequently be integrated into the Treaties().

However, here again, one should not under-estimate the substantial difficulties involved with this exercise. Firstly, the list of fundamental rights recognized by the Constitutions of the fifteen Member States are different, and it would be difficult for a Member State, having recognized one of those rights at the national level, to accept that the same right be left out at the European level (or vice-versa). Secondly, the constitutional definitions and practices with regard to a fundamental right, and the way in which it is protected, may differ in each Member State, and a right which appears not to entail significant financial consequences in a given State could actually do so in another State. Thirdly, and in particular for the same reasons, it would seem difficult to provide for a EU list which would be different from the European Convention list, and if indeed that

were not to be the case, the usefulness of the exercise might be questioned. Fourthly, it would be difficult to solve the problem of determining which European Court of Justice should have jurisdiction for reviewing implementation by the parties concerned (i.e. the Court in Luxembourg or the one in Strasbourg ?)

Enhancing the democratic legitimacy of the European Union through the European Parliament ?

What is known in Euro-jargon as the "democratic deficit" or, better said, the "democratic malaise", is often seen in over-simplistic terms. For a number of writers on this subject, the solution looks easy: according to them, it would be necessary and sufficient to give more powers to the European Parliament. If that were right, however, the democratic malaise would largely disappear with the implementation of  the Amsterdam Treaty, since the new powers which this Treaty has given to the European Parliament are extremely important. In particular:

-	the co-decision procedure has been extended to a great number of matters;

-	above all, it has now become real co-decision, particularly by having done away with the stage of the so-called "third reading", where the Council could impose its views hitherto;

-	the Parliament has the right to approve the President of the Commission and then the Commission as a whole;

-	the Parliament has acquired new powers in the fields of visas, asylum and immigration as well as on police and judicial cooperation in criminal matters.

However, if the reforms aimed at enhancing the democratic legitimacy of the EU were limited to an increase of the powers of the European Parliament, that would not be the miracle solution: the "democratic malaise" of the EU will not disappear simply by giving more powers to the European Parliament. The EU is at one and the same time both a sui generis entity in itself, and a Community of States(), out of which most of its institutions are emanations. Its democratic legitimacy is double: it has to be founded not only in its own institutions, but also in its Member States(). According to Dieter Grimm(), Joseph  Weiler(), and others (), giving the European Parliament too much power could actually have disruptive effects and aggravate the legitimacy problem of the EU even further.

In this connection, one has to recognise that the real political game is still played out not at the EU level, but at the Member State level. The Members of the Council are accountable to their national parliaments, not to the Strasbourg Assembly. The European Parliament is not divided between a minority opposition and a majority supporting a government (which does not exist), nor can it be dissolved, even in the event of a major conflict with the European Council and the Council. Whatever their assiduity or their voting record, the members of the European Parliament are elected for a five-year period, and their personal responsibility towards the electorate is weak, given the electoral procedures presently applicable in most of the Member States (i.e. national lists). People participating in the elections of the European Parliament do not have the feeling of influencing policy choices at the European level, which probably explains the low turn-out rate for these elections.

In a recent interview, the British Prime Minister Tony Blair said : 

	"The European Parliament is more directly democratic but it is more remote from people than their National Parliaments or their elected Governments. The Council of Ministers is closer to people in the sense that the British Prime Minister is directly accountable to the British electorate in a very obvious way and yet, in terms of the European decisions we take, it [the Council] is less directly democratic. That's the dilemma."()

That being said, something might be done in the future to try to solve this "remoteness" of the European Parliament from the people, in particular by agreeing on a uniform procedure for the election of its members, which should aim at ensuring that these members are known to their constituents and more responsible towards them(). But one has to recognize that this is not something which is presently envisaged by the Member States().

Other suggestions have been  made, which would strongly enhance the "double legitimacy"of the EU; they would consist: 

-	on the one hand, of giving the European Council the right to dissolve the European Parliament, and

-	on the other hand, of dividing the European Parliament into two chambers, the first one being the present European Parliament, the second one being made up of elected representatives of the national Parliaments().

Enhancing the democratic legitimacy of the European Union through  greater involvement at the level of the Member States 

Greater involvement at the Member States' level is absolutely necessary. The EU has two facets and needs two legitimacies, one through the European Parliament and the other through the democratic legitimacy and the political institutions of its Member States.

A former Permanent Representative of Germany to the EC once wrote that: "The democratic deficit is essentially the incapacity of national parliaments to control their governments in EC matters"().. That is partly true and is the reason why the Member States annexed to the Amsterdam Treaty a "Protocol on the role of national parliaments in the EU", which provides for a number of important elements:

	"1.	All Commission consultation documents (green and white papers and communications) shall be promptly forwarded to national parliaments of the Member States.

	2.	Commission proposals for legislation as defined by the Council in accordance with Article 207(3) of the Treaty establishing the European Community, shall be made available in good time so that the government of each Member State may ensure that its own national parliament receives them as appropriate.

	3.	A six-week period shall elapse between a legislative proposal or a proposal for a measure to be adopted under Title VI of the Treaty on European Union being made available in all languages to the European Parliament and the Council by the Commission and the date when it is placed on a Council agenda for decision either for the adoption of an act or for adoption of a common position pursuant to Article 251 or 252 of the Treaty establishing the European Community, subject to exceptions on grounds of urgency, the reasons for which shall be stated in the act or common position."

This implies that national parliaments have a say on any Community legislative proposal (paragraph 2), as well as and especially for a proposed measure on police and judicial cooperation in criminal matters (paragraph 3: obligatory waiting period of six weeks before taking a decision). It will now be up to the political institutions of each Member State to make full use of this possibility.

In some Member States, the practice has already moved in that direction. It is for example the case in France, where an Article 88-4 was introduced in the Constitution to that effect on the occasion of the ratification of the Maastricht Treaty, and enhanced during the ratification process of the Amsterdam Treaty. It has been the case for a long time in Denmark, with the long-standing activity of the Danish Parliament in European matters. Generally speaking, the use of so‑called "Parliamentary reservations" has become quite a frequent practice over the last few years for other members of the Council as well.

Greater involvement at the level of the Member States should not stop at the doors of their Parliaments. National governments should also organize themselves in order to coordinate and control their individual Ministers better, when sitting in the twenty different formations of the Council. Individual Ministers should also exercise more control over their civil servants in the 250 committees and working parties of the Council which are active at  present().. That would also be a key to implementing properly the "subsidiarity" principle, according to which decisions should be taken at the EU level only when they can be better achieved at that level rather than at the level of the Member States.

Improving the efficiency, independence and strength of the Commission

After the crisis which led to the resignation of all the Members of the Commission in March 1999, this a must.

It is vital for the EU to preserve the balance which has existed up to now between the institutions and, therefore, the essential and central role of the Commission, symbolised by its quasi-monopoly of the right of initiative, which should be extended even further, and by strictly preserving its independence vis-à-vis the other two political institutions.

On the question of the number of the Commission's members, if each Member State insists that the Commission include a member having its own nationality, and if this, as seems probable, were considered as being politically unavoidable, a distinction could be made in practice between some of the members of the Commission, who would form an "inner Cabinet", and its other members, even

if all members would retain the right to participate fully in the taking of decisions. The role of the President could be further enhanced, leaving the President with the task of choosing his or her colleagues according to their capacities and of distributing appropriate portfolios and responsibilities to them().

The European Parliament should not be given the right to dismiss one or several members of the Commission: the balance of powers between the two institutions would be changed dramatically. Moreover, the collegiality of the Commission is essential to the proper exercise of its functions, as well as to the independence of each of its members, even and above all in delicate cases where the opinion of the European Parliament might be different from the Commission's position. However, the President of the Commission should have the right to change portfolios around, or to alter the importance of the responsibilities given to a particular Commissioner during the term in office of a Commission, according to changing needs or to the performances of the Commissioners involved. This point has already been taken into account by the Declaration nº 32 adopted by the Amsterdam IGC on the question of the organisation and functioning of the Commission, which states that:

	"The Conference notes the Commission's intention to prepare a reorganization of tasks within the college in good time for the Commission which will take up office in 2000, in order to ensure an optimum division between conventional portfolios and specific tasks.

	In this context, it considers that the President of the Commission must enjoy broad discretion in the allocation of tasks within the college, as well as in any reshuffling of those tasks during a Commission's term of office.

	The Conference also notes the Commission's intention to undertake in parallel a corresponding reorganization of its departments. It notes in particular the desirability of bringing external relations under the responsibility of a Vice-President."

One could even consider giving the President of the Commission the right to propose to the Governments of the Member States that a particular Commissioner be dismissed() .

Improving the effectiveness, the continuity and the consistency of  the actions of the Council

This is also a must, especially with an enlarged Union in prospect()..

The Treaties have given the Council executive powers as well as powers to legislate.

In order to exercise its legislative powers better, and especially in view of the enlargement of the Union, the Council should preserve its effectiveness. It should do so by more qualified majority voting, through the "quasi-elimination of unanimity"().. Qualified majority voting is more democratic than unanimity. More democracy could also be brought about by re-weighting the votes of each Member of the Council, in order to take better account of the relative importance of the Member States, and more particularly of their populations. The Council should also adapt its working methods to the new co-decision procedure, i.e. to the new powers of the European Parliament. It should do so by introducing new working methods (),  as well as through more openness in its legislative deliberations. 

In exercising its executive powers, the Council should increase its effectiveness, continuity and consistency. Particularly in the area of foreign policy, there is a real need for delegating authority, to a greater or lesser degree, on bodies able to act rapidly and effectively under the Council's supervision. A foreign policy cannot be conducted effectively through a fifteen-member Council (and twenty, twenty-five or maybe even thirty would of course make things more difficult in the future), nor by a Presidency and staff changing every six months. It requires a delegation of authority, with a degree of latitude, to a personality or a permanent body accountable to the Council.

More generally, the Council should improve its continuity, by organising its Presidency better (especially for its preparatory organs)(), as well as its consistency through better co-ordination of the work going on in its twenty different formations().. It will have to adapt its working methods, in order to take account of an increase in the number of its Members, as well as by improving the way the "General Affairs" Council deals with institutional and horizontal matters on the one hand, and with external policy matters on the other hand.

Therefore, the proposed answer to be given to the fourth question would be that yes, there is now an imperative need, specially with the Union's enlargement in prospect, to improve the EU's Constitutional Charter and the way it is implemented, in order to bring more efficiency, more democratic legitimacy and more transparency to its system of governance. The continued political debate about the use of the term "Constitution" should not hamper the achievement of this imperative, notwithstanding the difficulties, which have already been encountered during the Amsterdam IGC.

CONCLUSION

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 States(). 

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 State().. On the contrary, the Treaty of Amsterdam has enshrined the obligation of the EU to "respect the national identities of its Member States". ()

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 Maastricht() and Amsterdam(), 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 ().

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 characteristics() which has now been enshrined in the Treaties and has become part and parcel of this "constitutional system"().

This "constitutional system"() 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 matters(). 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'() may not necessarily lack justification and legitimacy"().

The possible use of the terms "Constitution"() , "Constitutional Charter"(), "Constitutional Pact"() or "Constitutional Treaty"() 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.

								Jean-Claude PIRIS
								 9 June 1999

	ANNEX I

	EUROPEAN COUNCIL DECLARATION
	ON STRENGTHENING THE COMMON EUROPEAN POLICY
 	ON SECURITY AND DEFENCE

1.	We, the members of the European Council, are resolved that the European Union shall play its full role on the international stage. To that end, we intend to give the European Union the necessary means and capabilities to assume its responsibilities regarding a common European policy on security and defence. The work undertaken on the initiative of the German Presidency and the entry into force of the Treaty of Amsterdam permit us today to take a decisive step forward.

	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.

2.	We are convinced that to fully assume its tasks in the field of conflict prevention and crisis management the European Union must have at its disposal the appropriate capabilities and instruments. We therefore commit ourselves to further develop more effective European military capabilities from the basis of existing national, bi‑national and multinational capabilities and to strengthen our own capabilities for that purpose. This requires the maintenance of a sustained defence effort, the implementation of the necessary adaptations and notably the reinforcement of our capabilities in the field of intelligence, strategic transport, command and control. This also requires efforts to adapt, exercise and bring together national and multinational European forces.

	We also recognise the need to undertake sustained efforts to strengthen the industrial and technological defence base, which we want to be competitive and dynamic. We are determined to foster the restructuring of the European defence industries amongst those States involved. With industry we will therefore work towards closer and more efficient defence industry collaboration. We will seek  further progress in the harmonisation of military requirements and the planning and procurement of arms, as Member States consider appropriate.

3.	We welcome the results of the NATO Washington summit as regards NATO support for the process launched by the EU and its confirmation that a more effective role for the European Union in conflict prevention and crisis management will contribute to the vitality of a renewed Alliance. In implementing this process launched by the EU, we shall ensure the development of effective mutual consultation, cooperation and transparency between the European Union and NATO. 
	
	We want to develop an effective EU-led crisis management in which NATO members, as well as neutral and non-allied members, of the EU can participate fully and on an equal footing in the EU operations. 

	We will put in place arrangements that allow non-EU European allies and partners to take part to the fullest possible extent in this endeavour. 

4.	We therefore approve and adopt the report prepared by the German Presidency, which reflects the consensus among the Member States. 

5.	We are now determined to launch a new step in the construction of the European Union. To this end we task the General Affairs Council to prepare the conditions and the measures necessary to achieve these objectives, including the definition of the modalities for the inclusion of those functions of the WEU which will be necessary for the EU to fulfil its new responsibilities in the area of the Petersberg tasks. In this regard, our aim is to take the necessary decisions by the end of the year 2000. In that event, the WEU as an organisation would have completed its purpose. The different status of Member States with regard to collective defence guarantees will not be affected. The Alliance remains the foundation of the collective defence of its Member States.
	
	We therefore invite the Finnish Presidency to take the work forward within the General Affairs Council on the basis of this declaration and the report of the Presidency to the European Council meeting in Cologne. We look forward to a progress report by the Finnish Presidency to the Helsinki European Council meeting. 

	ANNEX II

	EUROPEAN COUNCIL DECISION ON THE DRAWING UP OF A CHARTER

	OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION

Protection of fundamental rights is a founding principle of the Union and an indispensable prerequisite for her legitimacy. The obligation of the Union to respect fundamental rights has been confirmed and defined by the jurisprudence of the European Court of Justice. There appears to be a need, at the present stage of the Union's development, to establish a Charter of fundamental rights in order to make their overriding importance and relevance more visible to the Union's citizens.
 
The European Council believes that this Charter should contain the fundamental rights and freedoms as well as basic procedural rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and derived from the constitutional traditions common to the Member States, as general principles of Community law. The Charter should also include the fundamental rights that pertain only to the Union’s citizens. In drawing up such a Charter account should furthermore be taken of economic and social rights as contained in the European Social Charter and the Community Charter of the Fundamental Social Rights of Workers (Article 136 TEC), insofar as they do not merely establish objectives for action by the Union.
   
In the view of the European Council, a draft of such a Charter of Fundamental Rights of the European Union should be elaborated by a body composed of representatives of the Heads of State and Government and of the President of the Commission as well as of members of the European Parliament and national parliaments. Representatives of the European Court of Justice should participate as observers. Representatives of the Economic and Social Committee, the Committee of the Regions and social groups as well as experts should be invited to give their views. Secretariat services should be provided by the General Secretariat of the Council.

This body should present a draft document in advance of the European Council in December 2000. The European Council will propose to the European Parliament and the Commission that, together with the Council, they should solemnly proclaim on the basis of the draft document a European Charter of Fundamental Rights. It will then have to be considered whether and, if so, how the Charter should be integrated into the treaties. The European Council mandates the General Affairs Council to take the necessary steps prior to the Tampere European Council.

	ANNEX III

	EXTRACT FROM THE PRESIDENCY CONCLUSIONS

	OF THE COLOGNE EUROPEAN COUNCIL ON 3rd AND 4th JUNE 1999

	Intergovernmental Conference on institutional questions

	In order to ensure that the European Union's institutions can continue to work efficiently after enlargement, the European Council confirms its intention of convening a Conference of the Representatives of the Governments of the Member States early in 2000 to resolve the institutional issues left open in Amsterdam that need to be settled before enlargement.  The Conference should be completed and the necessary amendments to the Treaties agreed upon at the end of 2000.

	In accordance with the Amsterdam Protocol on the institutions with the prospect of enlargement of the European Union and the declarations made with regard to it, the brief of the Intergovernmental Conference will cover the following topics:
	–	size and composition of the Commission;
	–	weighting of votes in the Council (re‑weighting, introduction of a dual majority and threshold for qualified‑majority decision‑making);
	–	possible extension of qualified‑majority voting in the Council.
	Other necessary amendments to the Treaties arising as regards the European institutions in connection with the above issues and in implementing the Treaty of Amsterdam, could also be discussed.

	The European Council invites the incoming Presidency to draw up, on its own responsibility, for the European Council meeting in Helsinki, a comprehensive report explaining and taking stock of options for resolving the issues to be settled.  In so doing, the Presidency will take into account proposals submitted by Member States, the Commission and the European Parliament.  The Presidency may also consider the question of further consultation.  An appropriate exchange of views should be held with the applicant countries within existing fora.