Jean Monnet Center at NYU School of Law


5. The White Paper as a Constitutional Episode

We are now in a position to draw upon the earlier discussion of legitimacy and how this connects with the internal and external limitations on constitutionalism in the EU to make some tentative points about the significance of the White Paper as a constitutional episode.

To begin with, we should note the absence of any explicit usage either in the White Paper itself or, initially at least, in the formal post-Nice process of the language of constitutionalism. The sound of this silence was deafening, particularly against the backdrop of the growing extra-curricular clamour for constitutional discussion of which Joschka Fischer's headline speech at Humboldt University in May 2000 was both symptom and reinforcing cause.52 Clearly, the reticence of official discourse reflected the resilience of the phenomenon of constitutional denial. It acknowledged both the care necessarily taken by those with a strong reform agenda, including those with a more explicit constitutional agenda, not to confuse or endanger wide-ranging discussion of key questions of institutional reform by introducing such a sensitive ideological tone, as well as the resistance of those who would be offended by such a tone. Indeed, even when,following a Franco-German initiative at the end of November 2001, the words "constitutional text" were finally allowed to enter the official lexicon aspart of the Laeken Declaration, the strong legacy of constituional denialensured that the prospect of the endorsement of such a text was relegated tothe longer-term and limited to the achievement of the technical goals of Treaty simplification and reorganisation.

Yet, the absence of an explicit constitutional discourse from the White Paper does not prevent the issues discussed and the proposals made from having significant resonance in terms of the multi-functional definition of constitutionalism set out earlier. We have already noted how the White Paper directly engages with questions of regime legitimacy and performance legitimacy, and this is achieved through a commitment to what we have termed substantive constitutionalism. At the heart of this commitment, and, indeed, at the heart of the White Paper, is the affirmation of five principles of good governance, namely, "openness, participation, accountability, effectiveness and coherence",53 which should govern the workings both of the Union in general and of the Commission in particular. These principles and their double commitment to regime and performance legitimacy are reflected in the organisation of specific proposals. One section concerned with "better involvement and more openness" is primarily directed to regime legitimacy, while another concerned with "better polices, regulation and delivery" is primarily directed to performance legitimacy, although there is also a clear recognition that the two are symbiotically related; this, for example, greater involvement in, and information about, policy proposals can also enhance the quality of these proposals.54 A third section on "refocused institutions"55 makes even more evident the inextricability of regime and policy legitimacy and of the governance values associated with them, `refocusing' presented as a means not only to optimise the efficiency and co-ordinative capacity of EU institutions, but also to increase transparency and accountability - to meet the need for people "to understand better the political project which underpins the Union."56 And alongside this, the White Paper is alive to the possibility of the governance values that anchor its substantive constitutionalism also relating to the identity-aspects of wider polity legitimacy. In this vein, there is much talk of "Europeans feeling alienated from the Union's work,"57 of their "no longer trust[ing] the complex system to deliver what they want,"58 of the need "to connect Europe with its citizens"59 and the like.

If we turn to the external post-Nice reform process with which the White Paper intersects, the constitutional resonance is again clear, even if, here, even after Laeken, we do not yet have an elaborated vision to corroborate this. The debate on competences and the examination of the role of the national Parliament both connect clearly with the authority aspect of constitutionalism's polity-affirming function, by dealing with the boundary negotiation question as a matter of both legal-jurisdictional limits and of institutional demarcation and interlocking. The debate on the Charter of Fundamental Rights is currently, perhaps, the strongest vehicle for an incipient constitutionalism. As well as providing a prominent, some would argue indispensable, feature of substantive constitutionalism and all that this implies for regime legitimacy and the identity-constitutive aspects of polity legitimacy, the unfinished Charter-making process also provides, by its example, the most visible pre-figurative evidence of the potential of a polity-generative constitutionalism within the Union other than the received IGC method.60 Finally, the Treaty consolidation exercise, again underpinned by a busy anticipatory schedule, hits some clear constitutional notes in a more modest technical key, and, indeed, as already noted, provided the immediate cue for the explicit reference to constiutionalisation of the Union in the Laeken Declaration.61

Given this scenario of a vigorous multi-faceted pursuit of various constitutional functions - which, in the scale and ambition of its constitutional reflection, is already becoming significantly removed from the vivid picture painted by one commentator of the Community in its turbulent post- Maastricht phase as possessing the outer carapace but little of the inner spirit of constitutionalism62 - does it matter that, at the official discursive level, this pursuit is still represented in crypto-constitutional terms, as a constitutionalism that hardly dare speak its name? In some respects, indeed, it might be seen as a positive advantage that this is the case. This way some of the internal dangers and distractions posed by the problems of constitutional denial, of ideological disagreement and of explicit engagement might be avoided or minimised. Further, constitutional reticence might be seen to allow other, perhaps healthier, regulatory vocabularies to flourish.

Take, for instance, `governance' itself, the White Paper's anchoring concept. Defining governance as the "rules, processes and behaviour that affect the way in which powers are exercised at European level,"63 the White Paper goes on to link these explicitly to the five values enunciated above. A less loaded and more general definition, one which is, perhaps, more useful for understanding the broad orientation of governance discourse, is "the intentional regulation of social relationships and the underlying conflicts by reliable and durable means and institution, instead of the direct use of power and violence."64 Two features stand out as distinguishing the idea of governance in this more general sense from at least some definitions of constitutionalism. First, and more explicitly, governance is less concerned with the idea of hierarchical, command-based authority than some positivist visions of constitutionalism. Secondly, unlike the self-referential tendencies within constitutionalism to regulate only the public institutional complex of the state (or the polity more generally) which constitutional authority itself constitutes and only the institution-citizen relationships (typically through classical `first generation' rights) which are necessary incidents of the core security function and intrusive potential of the so-constituted public institutional complex of the state, governance is explicitly concerned with the regulation of all "social relationships", including those involving `private' social and economic actors.

Clearly, one need not accept the restricted definition of constitutionalism which would so flatter `governance' by contrast. Even if narrowly `public institutional' and/or hierarchical conceptions of constitutionalism hold sway in some traditions, constitutionalism is a sufficiently open-textured notion to overcome these local difficulties and embrace all that is `good' in `good governance'.65 Arguably, moreover, if we concentrate on the benefits, rather than the costs, of constitutionalism, the powerful historical legacy of constitutionalism also forges a powerful symbolical link with an idea of responsible self-government and with certain core ideas such as democracy, fundamental rights, dispersal and limitation of power, etc., which those who invoke the language of constitutionalism (for motives however self-interested) then ignore at their peril.66 In this way, constitutionalism generates a normative momentum and an ideological discipline that is difficult for any other concept to match. Yet, in the final analysis, `governance', despite, or perhaps because of, its shallower historical and normative roots, provided an appropriately flexible conceptual vehicle for the wide-ranging, non-coercive regulatory values espoused in the White Paper. At the very least, therefore, little, if anything, appears to have been lost by using a governance-based, as opposed to a constitutionalism-based, discourse, especially as constitutionalism figures as such a palpable ghost at the feast.

However, even if the absence from the White Paper of an explicit constitutional discourse is not per se detrimental, arguably, what this absence implies about the overall configuration of political forces from which the White Paper emerged and in terms of which it is apt to be judged is of more serious moment. Two related difficulties are particularly worthy of comment. The first concerns the uneasy relationship of the White Paper to the polity generative base of constitutionalism. The second concerns the broader communicative potential in a constitutional key of the valuable but under-elaborated complex of values that the White Paper identifies with good governance.

As regards the first problem, as already noted, the lack of an explicit constitutional discourse suggests the perseverance of problems of constitutional denial, of ideological disagreement and of explicit engagement in particular. While these difficulties do not undermine the capacity of the White Paper to wax eloquently about the substantive constitutional values that should lie at the heart of European governance, they indicate and dramatise the more urgent matter of the attenuation of its discourse from core polity-generative constitutional processes. As discussed earlier, the legitimating potential of constitutionalism in its various other functions rests significantly on the legitimacy of its polity generative function. This creates a paradox for a political entity such as the EU, whose existing generative processes are increasingly exposed to significant criticism and challenge but which has yet to develop a generally agreed alternative. Such a political entity is liable to be damned by some if it continues in a self-referential manner to follow its own constitutional reform process, and damned by others to the extent that it seeks to depart from this. In these delicate circumstances, it is unsurprising that the polity-generative constitutional process of the European Union at its present stage of development has come to display an uneasy mixture of both dynamics. On the one hand, the call for a wider and deeper debate at Nice involves an element of auto-critique, an admission by the state actors who control the IGC that the generative debate should be `deepened and widened', if only in terms which they self-referentially authorise. On the other hand, other actors, including (but by no means limited to) actors such as the Commission, which otherwise wield considerable institutional power within the Union but which are marginalised by the existing generative process, (in the Commission's case allowed to submit proposals for reform but denied a formal voice at the decision-making stage),67 respond to the opportunity - and, indeed, to the threat - posed by this loosening of the reins by giving full vent to their own voice and seeking to maximise their influence over the direction of the reform debate.

Yet, this paradox of generative renewal is endemic and unavoidable within circumstances of constitutional transition, an unsteady state which is often exceptional and of limited duration in state constitutionalism, but which appears to have become the norm in the deeply contested European constitutional context. And equally unavoidable is the critical reaction which accompanies the events, such as the White Paper, through which this ever-shifting, always-precarious, scenario unfolds. Accordingly, the appearance or anticipation of criticism should not in itself engender pessimism about the broader reform process to which the White Paper contributes. After all, the Commission does not have the last word; other voices will be heard, and ultimate control of the reins continues to lie in the hands of the state actors. In the long-term constitutional view - the only view that can sensibly be taken of an episode in a regenerative narrative which is, in principle, unending and, in practice, at the very early stages of a phase of potentially far-reaching plot-development - what is important is not the volume of critical comment which greets the event but whether and to what extent it can be seen to have stimulated the constitutional process in a manner which, on balance, serves, rather than hinders, the legitimating potential of the various constitutional functions on which the document bears. In particular, it depends upon the type of message which the White Paper communicates in respect of these constitutional functions in which it is primarily implicated or with which it is primarily concerned, namely, the polity-generative function itself (now viewed in a longer perspective) and the substantive function.

In the present circumstances, these two functional imperatives and the dimensions of legitimacy with which they are associated are even more closely related than usual. At this early and informal stage of the preparation of an IGC in which an unprecedented depth and breadth of consultation is promised, the Commission's contribution to the enhancement of the polity-generative process depends upon how it feeds and responds to this broader consultative spirit, not just in terms of the openness of the White Paper process itself ( and here the intensity of the preparatory debate and the commitment to an extended and extensive web-centred post-publication debate send modestly promising signals),68 but also in terms of the breadth of the matters with which it concerns itself and its perceived willingness in treating these matters to transcend the Commission's own interests and to anticipate and accommodate a more inclusive set of aspirations and perspectives about the future of the Union. In this sense, then, the substance of its agenda and approach is also, in significant degree, a measure of the White Paper's contribution to the polity-generative process.

In this vein, the ambition shown by the Commission in framing its proposals in a general discussion of governance values is striking. The White Paper could have limited its approach to the detail of institutional reform within the gift of the Commission, but did not. It could have tailored its approach to the detail of institutional reform affecting the Commission including those which require broader Treaty sanction, but did not. It could have focussed on the broad sweep of institutional reform across the Union and yet have retained a pragmatic disregard for underlying philosophy, but did not. Instead, we are treated to the least restrictive approach of all, one which at least in some areas, does not shrink from institutional detail, yet, is just as concerned with its philosophical grounding.

But such an expansive strategy is a double-edged sword. An approach which delves beyond and beneath the Commission's own immediate institutional context may be of an imaginative ambition to engage sympathetically with a wide audience, but it is also risks being construed as displaying an arrogance of institutional ambition which threatens the interests and aspirations of that wider audience. We have remarked on how the range of governance values centring the White Paper seeks to bear positively on performance and regime legitimacy, and through the link provided by intrinsic regime values such as openness and participation, on the identity aspects of polity legitimacy. Yet, the generality of the underlying philosophical framework is both a strength and a weakness. The relationship between such a general framework and particular institutional proposals may be plausible and persuasive, but it can never be compelling. Not only are the particular values vague and open-ended, but, considered together, and notwithstanding the tone of the White Paper being to the contrary,69 they are not necessarily cumulative or complementary. In particular, the values which emphasise performance - effectiveness and coherence, may, sometimes, be in tension with those which emphasise the intrinsic features of regime legitimacy - openness, participation and accountability. So, questions of the operational meaning and scope of the individual values, and of the priority and choice between the `performance' and `regime' value-clusters remain controversial, requiring finer normative judgements and sensitivity to the balance of political assumptions and expectations about the state and direction of the Union, including awareness of what the wider limits of polity legitimacy of the Union are presently likely to withstand as regards the scope of its jurisdiction. It is in the pursuit of these questions within the vast permissive spaces left by its laconic framework of governance values, rather than in the choice of the framework itself, that the White Paper is vulnerable to criticism. In particular, five accusations of variable but cumulative force may be levelled against the White Paper as a constitutional episode - namely, hubris, institutional self-interest, performance bias, tokenism and internal inconsistency. In conclusion, we will briefly look at each of these.

To begin with, despite its initial claim to have no magic cure for the ills of Europe, the White Paper proceeds to court the danger of constitutional hubris. In foregrounding its abstract framework of governance values, yet demonstrating little acknowledgement of the difficult and controversial character of the institutional choices thrown up by the tension between these constituent values and the need to respect the boundaries of existing polity legitimacy in their articulation, the White Paper tends to understate those limits on constitutionalism which concern the translatability of the governance blueprint into institutional design and culture (including the difficulties posed by the lack of a default statist template to guide institutional reform) as well as the `boot-strapping' constraints of governance measures in deepening the authoritative claims of the entity. To say, as the White Paper does of an entity whose wider polity legitimacy remains challenged on both `identity' and `authority' grounds, that " people... expect the Union to take the lead [and to act as visibly as national governments] in seizing the opportunities of globalization for economic and human development, and in responding to environmental challenges, unemployment, concerns over food safety, crime and regional conflict,"70 is to underestimate the difficulty of translating what may be persuasively analysed as an objective need for the Union to fill certain `gaps' left by the declining legal authority and economic steering power of the state on the one hand,71 into a widespread subjective appreciation and endorsement of such a need on the other. To imply, as the White Paper does,72 that any such gulf between objective need and a popular mandate for action can be adequately bridged purely through attention to governance values and regime legitimacy, tends to overestimate the legitimating potential of regime values in the abstract and to underestimate how their operationalisation is itself made more problematical by unresolved issues of polity legitimacy. To take but one example, the exhortation to the Council to forego the search for unanimity and to pursue qualified-majority voting wherever possible to speed-up the legislative process and fill in the policy `gaps' in the name of the governance values of efficiency and co-ordination,73 ignores the complex culture of inter-state compromise and minority protection which reflects the existing basis of and limits to trust and solidarity within the emergent Euro-polity.

Secondly, there is a danger that the pattern in the White Paper of consolidating power in the Commission risks being seen as the product of naked ambition or the jealous preservation of vested interests. Clearly, as noted at the outset, we ought neither to be surprised nor shocked that a key institution of the Union should look favourably on its own role in any redesigned regime of governance. Indeed, in a serial, open-ended process of constitutional reform, where other actors and institutions are apt to do the same, this can even contribute to balance and to the healthy engagement of different perspectives.74 Further, to the extent that there is, nevertheless, criticism of the Commission's motives, some of this is unavoidable, for, in a polity whose status and limits remain fundamentally contested, there will be no shortage of those inclined to read the motives and judge the quality of the constitutional proposals of its traditionally most communautaire institution uncharitably - with a mind to condemn the imperialism rather than to embrace the breadth of its vision. Yet, precisely because of the delicacy of the present constitutional situation of which this tendency to cynical interpretation is symptomatic, and the consequent need for the Commission to bolster the fragile legitimacy of the constitutionalism process with a generous approach to the exploration of substantive reform possibilities, it is also important that the Commission does not offer too many hostages to fortune. From this perspective, it must be conceded that the circumstantial evidence of self-aggrandisement is not insubstantial. In particular, the suite of proposals concerned with enlarging the influence and discretion of the Commission in matters of legislative policy, including a more uncompromising use of its legislative initiative,75 the greater use of framework legislation,76 its abolition of policy and management `Comitology' committees at the implementation stage,77 and its careful circumscription of the independent role of agencies,78 suggests a "revitalization of the Community method"79 which promises to revitalize one organ - the Commission itself - rather more than others.

Even if the Commission's generous interpretation of its own place in the scheme of things is not read cynically, it may be criticised on one of the other three grounds mentioned. To begin with, there is the question of performance bias. Arguably, in resolving the (largely unacknowledged) areas of tension between performance and regime values, the White Paper tends to come down in favour of the former. The general streamlining of the legislative process alluded to above, for example, or the restriction on the use of the new and much-heralded Open Method of Co-ordination to circumstances where legislative action under the Community method is not possible,80 tend to favour programme values at the expense of the nurturing of an inclusive and consensus policy-making environment. In turn, this tends to undermine the credibility and import of these measures that are innovative in seeking to underpin regime legitimacy. The menu of suggestions aimed at greater involvement of local, regional, national and other grass-roots organisations in policy-consultation, finessing and implementation, including the broader use of formal and informal consultative procedures (in which virtual consultation figures prominently),81 and the greater use of target-based tripartite contracts,82 partnership arrangements83 and network-led initiatives,84 are all promising in their endorsement of a broader conception of regime legitimacy. Yet, their stark juxtaposition to a reinforced, efficiency-orientated Community method which downgrades the role both of states and other constituencies in the key areas of authoritative decision-making threatens to taint these suggestions with the aura of tokenism.

Drawing these arguments together, we may conclude that the White Paper is vulnerable to a more general charge of inconsistency in its constitutional approach - one of key communicative significance. If, at one level, the White Paper recognises its constitutional responsibility to stimulate an inclusive constitutional debate which, in agenda and substance, makes up for some of the unavoidable deficiencies of the constitutional process of which it is part, then, in terms of delivery, it falls some way short of the mark. Just as constitutionalism's procedural polity-generative role should be directly concerned with nurturing the identity base of polity legitimacy but remains dogged by the problem of self-reference, so the kind of substantive constitutionals in which the White Paper engages is also indirectly concerned with polity-generation through the secondary effects of institutional design and regime legitimacy in demonstrating a commitment to a quality of inclusive identification which accommodates both old (state) and newer (non-state) constituencies. To the extent that the White Paper has missed its constitutional opportunity, this lies in its failure, notwithstanding its grand statement of abstract intent in the language of governance values, to show sufficient empathy with these deeper concerns.

52 Reproduced together with a series of commentaries in C. Joerges, Y. Mény and J.H.H. Weiler, (eds) What Kind of Constitution for What Kind of Polity? Responses to Joschka Fischer (Florence: Robert Schuman Centre, 2000).

53 WP 10.

54 WP 11-12

55 There is also a fourth section on "The EU's contribution to global governance", the brevity of which rather reinforces the point that the main concern of the White Paper is the internal legitimacy of the EU.

56 WP 37.

57 WP 7.

58 WP 7.

59 WP 3; see, also, 27.

60 See de Búrca, n.50 above; N. Walker "The Charter of Fundamental Rights of the European Union: Legal, Symbolic and Constitutional Implications," in P. J. Cullen and P.A. Zervakis, (eds) The Post Nice Process: Towards a European Constitution?, (Bonn: Nomos, forthcoming).

61 See, in particular, the EUI Report, A Basic Treaty for the European Union: a Study of the Reorganisation of the Treaties (Report submitted on 15 May 2000 to Mr Romano Prodi, President of the European Commission). See, also, Craig, n.28 above, 147-50. The Commission's commitment is followed through in its subsequent pre-Laeken contribution; Renewing The Community
Method, Brussels, 05.12.2001 COM(2001) 727 final.

62 Weiler, n. 23 above, ch.1.

63 WP 8 (fn 1).

64 M. Jachtenfuchs, "The Governance Approach to European Integration," (2001) 39 Journal of Common Market Studies, pp.245-64, at 246.

65 See, for example, M. Loughlin, Sword and Scales: An Examination of the Relationship Between Law and Politics, (Oxford: Hart, 2000) ch.14.

66 See Walker, n.13 above.

67 Art. 48, TEU.

68 WP 9.

69 Especially in the "Better Involvement" section (11-18).

70 WP 3

71 See, for example, Scharpf, n2 above, Section 3

72 In the paragraph immediately following on p.3.

73 WP 22.

74 See, for instance, the work of Jim Tully, who argues that democratic constitutional deliberation has an irreducibly `agonic' quality according to which positional differences can never be eradicated but, if fully recognised, can at least be the subject of fair and fruitful negotiation. See, for example, "Struggles over Recognition and Distribution," (2000) 7 Constellations 469.

75 WP 22.

76 WP 20.

77 WP 31.

78 WP 23-24.

79 WP 29.

80 WP 21-22.

81 WP 11-17

82 WP 13.

83 WP 17.

84 WP 18.




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