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1. One can distinguish the idea of a constitution in a functional sense from the idea of s constitution in the formal sense. Where there are legally determinate rules that define and allocate the powers of agencies of collective self-government, there is necessarily a functional constitution, and its rules are the rules that define, allocate, and limit governmental powers. A formal constitution is a legal text explicitly drawn up to perform the functions of a constitution in the functional sense, and expressly adopted by the citizen body to that end.
2. The European Union does not at present have a constitution in the formal sense but the Treaties do contain all the essentials of a constitution in the functional sense, and have been acknowledged by the Court as a "constitutional charter" of the Union.
3. It is urgent to re-cast the Treaties so as to make clearer the way they already function as a kind of European constitution. The existing ill-ordered and apparently jumbled set of rules ought to be re-ordered into a structured body of constitutional law, separating out fundamental constitutional principles and institutional competences, and differentiating these from essentially regulatory elements dealing with specific policies such as the Common Agricultural Policy. This can be done in the first instance without substantive change in the content of the Treaties, as has been shown through the exercise to this end carried out for the Commission by the Robert Schumann Centre of the European University Institute in Florence. Any further process of constitutional reform should start from a simply re-structured text of this kind.
4. One leading fallacy about the present constitutional structure is that it does not contain an explicit distribution of powers between Union institutions and Member States. In fact, there are several express provisions conferring competences on Union institutions, and several reserving competences and functions to Member States. Other competences, which are shared competences, are governed by the principle of subsidiarity. But the provisions on attribution of competence are stated with confusing differences of detail, and subject to a variety of different decision-making procedures involving in different ways the Commission, the Council of Ministers, the European Council, and the European Parliament.
5. The most satisfactory procedure in terms of clarity and democratic control is that under the so-called "Community model" (operative in the First Pillar, though not universally so). Here, the right of legislative initiative rests with the Commission. But the enactment of laws proposed by Commission is for the Council and the Parliament, the latter acting as a full legislative partner in the case of the process of legislative co-decision involved in the enactment of Directives in most but not all domains of law-making of this kind. In other cases, the Parliament has a merely consultative role, and the principal legislative power rests exclusively in the hands of the Council.
6. The existing European constitution is thus effectively that of a confederal union of sovereign states, not a centralized superstate. The fundamental basis is a unique form of constitutional pluralism. That is to say, the constitutions of the states, and those of their internal nations and constitutional regions exist independently of the Union constitution. They do not depend on it for their validity and they cannot be cancelled or overridden by legislative action on the Union level. This is the logical corollary of subsidiarity in the strong sense that currently prevails.
7. It must remain the case that constitutional changes at European level cannot take place so as to change state constitutions without the consent of the state, determined by the appropriate process of constitutional amendment within the state. This should be interpreted, in accordance with the principle of subsidiarity, as also protecting constitutional powers of internal nations or constitutional regions against revocation as a collateral effect of Union legislation. In turn, Union legislation always involves the governments of the Member States as such, acting in the Council.
8. The present judicial powers of the Union are not fully adequate to dealing with this, despite the remarkable success over many years of the ECJ. This is discussed below in section 7.
9. This idea of constitutional pluralism entails a strongly
decentralized conception of the Union. That is, the Union is not now and need
never become the site of a single overriding sovereignty exercised in the name
of the whole body of citizens of the union as a single totality. There is a
divided and balanced sovereignty such that the citizens of each state remain
masters of the state constitution while collaborating with others under a
common union citizenship to establish a limited sovereignty at Union level.
Constitutional regions, in particular internal nations, should be accorded
similar regard within member states. The debate about `federalism' should take
full account of the Union's strongly decentralized character. Indeed, this
feature of the constitutional architecture makes "confederation" a much more
appropriate term than "federation".