EU: Lost Momentum

The European Constitution Did Not Win People’s Affection Because They Did Not Feel Part of the Process

News | Johannes Pollak | April 2007

In July 2003, after the Convention on the Future of Europe handed over the draft Constitutional Treaty, the cover of the British weekly The Economist showed a large dustbin: Time to trash the text. Those who had hoped for something short and concise were sorely disappointed. The draft Constitution was long and complicated, and almost unreadable.

Federalists all over Europe had raised people’s hopes, citing the Constitutional Convention of the American Colonies in Philadelphia in 1787 – either unaware of the historical details or simply overly optimistic about the chance for a major democratic breakthrough in the European Union. Forming an ever closer Union out of 27 different member states, consolidated over the last 200 years at least, each with its distinct social and political traditions, appears to be a daunting task.

Since the 1970s, a deficit of democratic process has repeatedly haunted the European project. With the help of a new instrument – the Convention – a taming of the executive agencies suddenly seemed possible. National MPs were in a clear majority and for the first time there was open discussion of possible reform of the treaty. So it was hoped that together with a critical public, a constitution could be passed to launch a new beginning for the European project.

However, ever since the European Court of Justice in 1986 first gave the name "Constitution" to the founding treaties of the EU, others have watched the constitutional process with mixed feelings.

Isn’t the EU a club of nation states? And isn’t a constitution a symbol of these very states? Topping the existing treaties with a constitution means undermining the national constitutions, hollowing out national identities and creating a legal mess.

However, the sceptics were revealing their ignorance. The primacy of EU law had, in fact, long been established fact, and the quest for a European constitution was as old as the EU project itself.

So, even if the text itself was legally dead after the negative votes in France and the Netherlands, there was still a constitutional debate worth having. It may also be that the current German Council Presidency can come up with a viable plan that can, in the end, save some of the substance of the text.

But more important, what’s the point? What, after all, is a constitution good for? And what brings it into being?

In the American case, a group of people came together and drafted a text which was then subjected to a rigorous debate immortalized in the Federalist Papers.

In the German case, the Grundgesetz - passed in the wake of the horrors of WWII - was a gift of the Allied liberating forces that imposed it on a country in shambles. It took some years before ordinary citizens grasped its advantages and embraced it as a dignified statement of the values of the new Germany.

Thus, a constitution is the result of self-reflection by a political community and contains a list of objectives or ideals this community is committed to. Politics is the productive struggle about the right means to reach these objectives.

And it is in this struggle that people start to disagree. Hence, constitutions also have to set up norms for the game of constitutional politics, invested with greater authority than ordinary laws, and such that changing them becomes quite cumbersome and difficult. Constitutions are a kind of code-book which allows us to judge the performance of political elites who have to act within the constitution’s limits.

A conclusion might be that wherever political representatives exert authority over subjects, a constitution is needed.

So does the supranational EU Government claim authority over the life of the European citizens? Indeed, it does. The daily life of every European citizen is heavily affected by the rule-making of the European authorities. If we want this authority to be exercised in a democratic way, we need to draw up a code-book. limiting the authority of the political elites.

Did the European constitution achieve that?

It was clear that the "German option" of imposing a new treaty on the European citizens would not work any longer. According to Article 48 of the Treaty on European Union, it is only the heads of government and states that are entitled to revise the founding treaties. And they haven’t been very good at it recently: Neither the Amsterdam nor Nice conventions can be called a major success. In addition, more and more citizens are aware that negotiations behind closed doors are out of fashion in the 21st century. In fact, it has been outdated since Jan. 4, 1642, when British House of Commons Speaker William Lenthall confronted Charles II and affirmed parliamentary sovereignty.

So the EU held a convention, with citizen forums, invited experts and hundreds of drafts discussed, ridiculed and rejected -- and finally applauded and moulded it into a text.

Was there a constitutional moment? Not really, since the overwhelming majority of the European citizens either didn’t pay attention or were not aware the convention was even going on at all. Small wonder the citizens were less than enthusiastic.

It would have been up to the European leaders to get a debate started about the obvious advantages and necessary compromises. But all they did was amend the text, referring to their powers enshrined in Art. 48 TEU – a protocol signed only months before.

Remember it was not the Convention draft that was rejected by the French and the Dutch (and, by the way, confirmed by 15 other member states). It was a text changed at will by the heads of state and government – something that could be considered a gross violation of democratic and parliamentary principles.

Nevertheless, the neatly and paradoxically named "Treaty establishing a Constitution for Europe" was an important step towards a more democratic, republican and transparent Union. It establishes the co-decision-making procedure (granting the EP the decisive role in rule-making) as a legislative method; simplifies the decision-making in the EU Council by introducing the double majority (55% of states and 65% of citizens); enhances the role of the national parliaments; abolishes the absurd budgetary procedure differentiating between obligatory and non-obligatory expenditures; creates the posts of a European Council President (for 2.5 years) and a European Foreign Minister; and allows for independent European initiatives, so that if one million citizens sign a petition, the European Commission can be asked to start a legislative process.

True, the text lacks the beauty of a refined, coherently composed document. In some places it is too timid and in other parts too presumptuous. It needs to be further criticized and discussed.

We should bear in mind, though, that "creating Europe in one fell swoop" is not, and never would have been, possible. And those who complain about a neo-liberal bias of the Constitution have either not bothered to read it or have not understood what the Union is about. Those who fear a militarisation of the Union should also take another look.

But both can, and should, demand that their anxieties and worries be taken seriously.

We should leave no room for those demagogues who use Europe for petty nationalistic -- and xenophobic -- short term objectives. Europe is a fascinating journey, and we should probably listen to the Chinese proverb of Convention President Valerie Giscard d’Estaing: "The journey is the reward."

In that journey, a European Constitution is just one step.

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