European Union

European Union
- On Constitution Making and Democratic Legitimacy

Erik O. Eriksen, John E. Fossum
and Agustín J. Menéndez

Paper prepared for the Arena Conference on Democracy and Democratic Governance.
Towards a new political order in Europe. Oslo, Grand Hotel, March 4-5. 2002.

Introduction
The EU - a constitutional polity in the making?

Direct legitimation?
A constitutionalising process?

How do rights relate to constitution-making in Europe?

Political Participation
Transparency
Balance of Power

I. Introduction

The Union stands at a crossroads, a defining moment in its existence… What might the basic features of [a European] constitution be? The values which the Union cherishes, the fundamental rights and obligations of its citizens, the relationship between Member States in the Union?(Laeken Declaration)

The EU is facing a major normative challenge. With the Single Market and Monetary Union more or less in place, integration aimed at functional problem-solving is exhausted as a resource for further integration. The pending enlargement to the East, the establishment of a common foreign security policy and, not least, the question of social measures at the EU level, pose new kinds of problems for co-operation. These questions affect the very basis for co-operation. They require a conception of what the EU is or should be - i.e., of its constitution and identity. They require a notion of the entity's foundation, mission or vision - beyond that of a single market. The questions have to do with the setting of its geographical borders and its priorities, and with the realisation of new collective goals. There is, thus, a need for the EU to clarify its value basis.

However, the EU has long been involved in a protracted process of "constitutionalisation". The Treaties and the many treaty changes are reflective of this. The constitutional turn is spurred on by the European system of rights entrenched in the European Convention of Human Rights and the national constitutions. The European Court of Justice's own embrace of constitutional principles and practices of the Member States has marked a turning point in the history of European integration. This process has been taken one step further with the drafting of the Charter of Fundamental Rights, solemnly proclaimed at the Nice European Council Meeting, in December 2000.

The overarching aim of this workshop is to address the following questions:

· What type of entity is the EU and how conducive is it to constitutionalisation?
· What is the contribution of fundamental rights to constitution-making?
· What is the contribution of the European Charter of Fundamental Rights to this process?

The first question refers to the need to clarify the nature of the EU with regard to entrenchment of constitutional rights. Increasingly, the EU affects and perhaps even shapes the interests and identities of the citizens of Europe, whilst in legitimacy terms it is still largely a derivative of the Member States. Is there a need for a decisive shift towards direct legitimation of the EU?

The second question seeks to clarify what a charter is and how it relates to the constitution. Charters are bundles of fundamental rights. How essential are these as prerequisites of constitutions? Our concern is with the forging of a European constitution, hence we need to go beyond the assessment of the role of charters within established constitutional frameworks, to the elucidation of their function in the forging of a new constitution - in the formal, material and procedural sense of the word.

In response to this question we will also spell out a set of criteria to guide the response to the third question. This is necessary as the European Charter is in formal terms a political declaration and not a legally binding document. However, there are a number of peculiar features of the Charter and its drafting that necessitate a more profound assessment of it in constitution-making terms. One such is that it is to a large extent based on existing EU law, which requires particular attention to the EU in polity terms - due to its many unique features.

II. The EU - a constitutional polity in the making?

The EU, in its present trappings, is not a state, nor is it an international organisation. It is a political system, a polity of some kind. Contemporary constitutions are state-based, but constitutionalism precedes the state. However, all constitutional democracies are states. Therefore, the question of the conduciveness of the EU to constitutionalisation requires attention to the type of entity it is, as well as what it may develop into. Much of the debate on the character of the Union has been cast within the framework of federalism, i.e. whether it is federal or confederal (such as a cooperative confederation) or even quasi-federal . But this debate has never been confined to the realm of federalism. Analysts portray the EU variously as (a) a system of multi-level governance, such as a multi-level polity, or a mixed commonwealth, or condominio, consortio; or (b) as some form of transition, such as partial polity or post-national entity; or (c) in globalist terms, such as cosmopolitanism. The complex question of labelling this entity has prompted some analysts to designate the EU as an objec politique nonidentifié.

The complex question of labeling aside, the EU has over time developed a political system, with executive, legislative and judicial functions. These are entrenched within a set of stable and clearly defined institutions that are capable of reaching decisions and establishing rules that have a direct bearing on the citizens.

In its present form, this political system is a mixture of supranational, transnational, trans-governmental, and intergovernmental structures. Institutions such as the European Commission, the European Parliament (EP) and the European Court of Justice (ECJ) are 'supranational'.

The EP, the only directly elected supranational parliament in the world, has strengthened its ability to hold the Commission accountable. The Council of the Union is intergovernmental. The principles of 'supremacy' and 'direct effect' of EC law are premised on the notion of EC law as 'higher' law of the land of all Member States. Community law hence profoundly affects and even shapes the Member States. National courts of last instance have a duty to refer cases to the European Court of Justice if doubts arise concerning the interpretation of Community law; all national courts are bound by its judgments.

The decision-making system has been entrenched in a set of procedures and "the EU probably has the most formalized and complex set of decision-making rules of any political system in the world." From its modest origins as an economic organisation, it has established competence to deal with most aspects of politics and policy-making, however inchoate this may be.

The central institutions of the EU are linked to the citizens through a plethora of intermediary bodies, the main part of which are based on functional interests. But more value-based organizations and lobby groups do increasingly relate to the EU. In addition, the EU has established European citizenship, hence lending further credence to the notion of polity. Whilst deficient in relation to a democratic state, the political system of the EU has developed a set of feedback mechanisms through which groups and individuals respond to outputs and mobilise to forge new ones to reflect their values and interests.

These developments gained increased pace from the late 1980s on. They have also altered the conception of the EU. Up until the early 1990s, the dominant vision of the EU was technocratic. The EU was portrayed in both the public and the scholarly debate as an élite game in the hands of economic interests and bureaucrats. Executives, experts and functional interests were seen to dominate the EU, with very little room for the public and ordinary citizens. In this view, the EU exists mostly for handling those problems that are beyond the reach of the individual nation state. Consequently, its legitimacy has generally been related to its outcomes and seen as 'indirect' or 'derivative', i.e. conditioned on the legitimacy of the democratic nation states of which it is composed.

Recent developments, in policy, political and institutional terms have rendered this mode of legitimation inadequate. It can be argued that the EU has emerged into a polity in its own right, and is no longer a mere derivative of the member states. The principles, organisational and institutional structures, and action programmes, associated with present-day EU, an entity that established the EMU and is currently involved in preparing for enlargement to the East, require direct legitimation. Hence, the performance-based and indirect mode of legitimation is insufficient. Indirect and performance-based legitimation does not suffice to account for the present-day EU in democratic terms.

Direct legitimation?

The process of integration has led to the establishment of a political system at the European level. It has also affected or even transformed the member states so much that the question of the legitimacy of the democratic member state can no longer be seen as separate from or independent of the EU. There is evidence to suggest that the EU has altered its normative standards, in response to these developments. In the successive Treaties, in proclamations and rhetoric, and increasingly in its political and legal institutional make-up, the EU has become committed to the principles of the modern liberal state - the social and democratic Rechtstaat.

What this change in normative standards entails in practical and constitutional terms is currently being more profoundly and deeply debated than ever before. This debate on the final result of the European integration process gathered momentum in the last two years after the German Foreign Minister Joschka Fischer delivered his by now famous speech (speaking as a private individual and not as the German Foreign Minister) at the Humboldt University, Berlin, last year, and where he pleaded the need for further federalisation of the Union. His speech received a lot of attention and elicited many reflective and critical comments.

The debate has already resulted in the Declaration on the Future of Europe (Declaration 23 annexed to the Treaty of Nice) and the conveyance of a Convention on the future of Europe, which will lay the ground for the Treaty Reform scheduled for 2004. Hence, the agenda for 2004, as set by the Laeken Declaration, includes:

· the inclusion of the Charter of Fundamental Rights into the EU Treaties
· the simplification of the EU Treaties
· the ordering of competencies between vertical and horizontal layers of governance;
· the weighting of power relations between Member States and the EU institutions, and between the Council, the Commission, and the EP, and
· the future role of national parliaments in the governmental system of Europe.

This debate is one indicator of a far more visible commitment to the spelling out of the vision and the normative foundation of the EU. It turns to a large extent on the conditions for democracy in Europe.

A constitutionalising process?

The European Union already has a constitution in a material sense (that is, a core set of basic norms concerning the making, change and adjudication of norms). The presence of such a material constitution could be reconstructed by analysing the basic constitutional documents of the Union, in the light of the jurisprudence of the Court of Justice. Such a constitution grounds a legal structure for collective decision-making. Having said that, the principled and practical status of this material constitution is controversial. It has not come about through the drafting of a formal constitution something which has been related to the opaque and cumbersome character of Community law. Further, the lack of a full-fledged constitution-making process has prompted Joseph Weiler to identify a 'legitimacy gap' between on the one hand, the structure in place, and on the other, the reasons for why it is there, and what its normative basis is.

If that is so, the EU does not only lack but also needs a constitution in a procedural sense, which determines the procedural and substantive standards of law-making. As has already been said, because of its actual power and the actual effects it has on the European people - the goals and competences of the Union, the rights and duties of the citizens need to be spelled out through a basic binding text which a) specifies the responsibilities between the vertical and horizontal institutions and levels, between the decision-making bodies of the EU on the one hand, and between the member states, and regional units on the other; and b) is adopted through a constitutional process, which meets the standards of congruence and representation.

III. How do rights relate to constitution-making in Europe?

Thus, the EU is currently involved in a "constitutionalisation process". This is no doubt driven forth by the particular developments within the EU pertaining to critical debate and scrutiny, closer policy integration, and further institutional development. It is also given impetus by the particularly vexing challenge of enlargement, which is a litmus test for the democratic future of Europe. But this process of constitutionalisation is also spurred on by the emerging global system of rights entrenched in the European Convention of Human Rights and supported by the UN Convention.

The Council of Europe with the European Convention of Human Rights, and its European Social Charter, have transformed Europe into an area of human rights, more specific and more binding than in any other area of the world.

This development interacts with and reinforces the European Court of Justice's own embrace of constitutional principles and practices from the constitutional arrangements of the Member States. The net effect is a mutually reinforcing process of norm development - from above and 'below' - which reinforces the conception of the EU as subject to basic democratic standards and requirements.

The question is whether or the extent to which this process is taken one step further with the proclamation of the Charter of Fundamental Rights. Before responding to this we need to know more clearly what contribution rights development have to the process of constitutionalisation and constitution-making in Europe.

The text of the original treaties establishing the European Communities did not contain more than scattered references to fundamental rights. Those few were mainly to be found in the Treaty on European Community (the preamble reference to peace and liberty, the discrimination on grounds of nationality of Article 6 and the right to equal pay for equal work of Article 119).

But even if the text of the Paris or the Rome Treaties did not contain a proper list of fundamental rights, the Court of Justice of the European Communities established that the protection of fundamental rights was one of the basic principles of Community law back in the late 1960s . In the seminal case Stauder , the Court hinted at the unwritten general principle of fundamental rights protection as a basic foundation of Community law.

It did not take long before the ECJ provided an articulated formulation of this jurisprudential shift. The leading case in that respect is Internationale . Instead of considering whether there was a conflict between European law and the standards of rights protection of the German Constitution, the ECJ rephrased the case as a matter of conflict internal to Community law, to the extent that fundamental rights were to be considered part and parcel of the latter, even if "not reflected in the text of the treaties". From then onwards, the ECJ has built up a considerable body of case law acknowledging quite a number of rights as being part and parcel of Community law.

The recognition that the protection of fundamental rights stands as one of the basic principles of Community law and the elaboration of a concrete catalogue of such rights reflect the progressive transformation of the Communities, i.e. , the shift from economic to more comprehensive and explicitly political goals referred to in the previous section. One should keep in mind that Internationale was decided on the eve of the first enlargement of membership and ensuing deepening of activities undertaken by the Union.

At the same time, the rights turn of the European Union has been conducive not only to the constitutionalisation of Community law but also to the emergence of basic questions of democracy and legitimacy onto the political agenda of the Communities. Community law was originally perceived as a rather specialised and technical field.

The Rome Treaty brought in a clear legalisation of Community law, marked by the major decisions adopted by the ECJ in Van Gend en Loos and Costa. But only the recognition of fundamental rights protection as a foundational principle of Community law did expand the set of values at the core of Community law. This has led to a slow but constant reinterpretation of the implications of economic integration: the values associated with it have (should) be re-weighted against other normative and ethical values.

The affirmation of rights as a basic foundation of Community law has also helped to shape the normative standards against which Community action is judged. Once recognised, fundamental rights become shields with which citizens can defend their public and private autonomies. They ensure the citizens' use of (and establishment of) reasons to invoke to support their claims on political institutions and other individuals. As the Community has raised a claim for rights compliance, it has invited individuals to actually test the extent to which the claim is redeemed.

For the Charter of Fundamental Rights of the European Union to constitute a means of fostering a European Constitution, we should expect that it will contribute to the following set of requirements that are germane to all charters as vehicles of constitution-making.

Political Participation

Charters of rights render clear that citizens can make use of such rights, especially political ones, in order to give themselves a constitution. Thus, a charter can be seen as an invitation to explore the potential inherent in those rights through transnational political action. This is further confirmed by the relationship between the affirmation of rights standards and the coming of constitutional moments, of periods during which the constitutional identity of the Communities is (re)defined. The mutual recognition of rights is not only a logical, but also a practical prerequisite for democratic constitution-making. Rights allow the building of bridges across the manifold public spheres, national and local, strong and general , that should play the major role in an "open and wide-ranging" process of deliberation and decision-making. The Charter can be seen as a potential interface, as a lingua franca to talk about the shape of Europe. In this sense, it signals a potential constitutional moment, which could or could not be made use of by Europeans.

Transparency

Democratic law aspires to legitimacy through the identification of its authors and its subjects . Codification protects not only certainty concerning what is mandated or allowed by the law, but also the chance of meaningful participation of citizens in the law-making process. The clearer the law, the more cognoscible it is. Thus, meaningful political participation of citizens in the process of deliberation and decision-making of the law (and the companion duly compliance with it) implies a mandate to draft the law in such a way as to increase its transparency, that is, the capacity of individuals to understand it. This principle is closely associated with the reflexivity of democratic law . The latter is not conceived as a final statement, but as an authoritative formulation resulting from the democratic process, open to further deliberation in which it will be placed as the starting point of the debate. This is not necessarily an unqualified mandate for simple rules, but for as much simplicity and clarity as possible.

Once this is acknowledged, it becomes clear why Charters might be seen as substantively contributing to the furthering of democracy. By making the central piece of constitutional law clearer, they enhance its transparency, and increase the chances of the further democratic refinement of these rights.

Balance of Power

Charters tighten the framework within which Courts argue and decide cases. The rather oracular formulation of fundamental rights requires the further and frequent intervention of the same judges in order to strike the balance between conflicting rights . However, the bill of rights provides constraints within which judges operate, and thus it reduces the intensity of the legitimacy gap that raises every single case that they give judgments not mechanically based on positive law .