Jean Monnet Center at NYU School of Law


A constitutionalizing process?

The EU is a polity that should meet the criteria of congruence and accountability. Governance is not the answer to the legitimacy problem of the EU, because the EU cannot be seen as an intergovernmental organization. It is a political entity with far reaching effects on interests and identities, and in one sense the EU, in fact, already has got a constitution. The Treaties are the constituting elements of the Union, extended for handling deeper and wider integration whenever necessary. The Treaties of Rome of 1957, the Single European Act of 1986, the Treaty on the European Union (the Treaty of Maastricht) of 1991, the Treaty of Amsterdam of 1997, the Treaty of Nice of 2000 and the Charter of Fundamental Rights of the EU solemnly proclaimed at the Nice IGC meeting, may be seen as the constituting parts of the EU.

The EU contains a legal structure for collective decision-making - entrenched rules for the exercise of executive, legislative and judicial powers. For a long time, an acquis communautaire has been in operation in the Community, i.e., shared rules, norms and procedures (Wiener 1998: 65ff, Weiler 1999). Community law has a constitutional fundament, but the presupposition of a supreme authority - or of a people - does not exist in Europe (Weiler 2000:3). The European Communities already have a Constitution in a legal sense; however, this is not recognised by the Member States and the Treaties are not formulated as such. The EU may, therefore, need a proper constitution. 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 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 nation states, and regional units on the other.

From this perspective, the future task includes abolishing the pillar structure (because the Second and Third Pillars are intergovernmental and essentially outside the realm of Community law), redistributing and delimiting the competences of the decision-making bodies, empowering the EP, making the Council into a second chamber, the Commission into a government headed by an (EP) elected president, etc.. Hence, the agenda for the next intergovernmental conference 2004 includes:

The so-called "constitutionalisation process" is no doubt driven forward by the particular developments within the EU pertaining to closer integration, and given impetus by the particularly vexing challenge of enlargement. But it is also spurred on by the emerging global system of rights entrenched in the UN Convention and the European Convention of Human Rights. 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 (Eriksen and Fossum 2000b). This process is taken one step further with the proclamation of the Charter of Fundamental Rights.

The Charter of Human Rights proclaimed at the Nice Conference may be seen as a vehicle for constitution making. After its proclamation, the EP, the Commission and some Advocate Generals have made it clear that they will act as if the Charter were a binding document. This document clearly shifted the focus on the EU from merely a free market project to a union of citizens built upon shared values and binding universal norms. Furthermore, the proposed Charter can be read as one, if not "the", most explicit statement on the EU's commitment to direct legitimacy that has ever been produced in the EU. The institutions and the rights provided to the citizens by the EU shall, in themselves, provide the necessary basis for legitimate governance. It documents to the fact that the EU is a full-blown polity (cf., Menéndez 2001). However, the Charter is not without ambiguities and constraints. It only applies to the actions of the EU institutions and the Member States' authorities when implementing EU law, it is not designed to replace other forms of fundamental rights protection. While it is not binding, it is still written as if "it were a binding legal text." (Eeckhout 2000:98).




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