In the last months the discussion about a European Constitution has gained further popularity with the highly controversial speech of German foreign minister Joschka Fischer at the Humboldt University3. Until recently, most draft constitutions like the Spinelli initiative of the European Parliament in 1994 or the Herman Report in 1994 were discussed on a theoretical level without a hope for realization. Now there is a wave of speeches and contribution of key politicians on this subject. In fact, there are reasons to assume that there is more to it that just the typical German focus on constitutionalism4 but that “a window of opportunity is opening”5: the need for legal and institutional reform becomes evident in view of the incipient eastern enlargement and the results of the Amsterdam Conference and its postponing strategy have satisfied only few. Moreover, the fact that ECSC expires in 2002 gives further monumentum to the discussion about where Europe should be heading in the years to come and how the problems of a deeper and enlarged Union can be overcome.
1 see Schneider, Heinrich: Gesamteuropäische Herausforderungen an eine Europäische Union, in: Wildenmann, Rudolf (Hrsg.): Staatswerdung Europas? Optionen für eine Europäische Union, Baden-Baden Nomos, 1991 (Studien zur gesellschaftlichen Entwicklung, Bd. 9), pp. 125.
2 see Weidenfeld, Werner: Die Reformbilanz der Europäischen Gemeinschaft: ′Bundesrepublik Europa′ als Perspektive? in: Weidenfeld, Werner/Wessels, Wolfgang (Hrsg.): Wege zur Europäischen Union. Vom Vertrag zur Verfassung? Bonn Europa Union, 1986, pp. 28, and Hertel, Wolfram: Supranationalität als Verfassungsprinzip. Normativität und Legitimation als Elemente des Europäischen Verfassungsrechts, Berlin Duncker und Humblot, 1999 (Tübinger Schriften zum internationalen und europäischen Recht, Bd. 47), Diss. Univ. Tübingen 1998, pp. 21.
3 Fischer, Joschka: Vom Staatenbund zur Föderation – Gedanken über die Finalität der europäischen Integration. Rede am 12. Mai 2000 in der Humboldt-Universität in Berlin, http://www.auswaertiges-amt.de/4_europa/index.htm.
4 Kohler-Koch, Beate: A Constitution for Europe?, Mannheim, 1999 (Arbeitspapiere - Mannheimer Zentrum für Europäische Sozialforschung, Bd. 8), pp. 2.
5 ibid. pp. 3.
Table of Contents
I. Introduction
II. Does the EU have a constitution?
III. Should the EU have a constitution?
III.1. The EU - State or Process?
III.2. A Constitution without a State?
III.3. A Constitution and legal/institutional reform
III.4. A Constitution without a Constituency?
III.4.a. Principle of Double Legitimacy
III.4.b. The Democratic Deficit
III.4.c. European Democracy without a European Demos?
IV. Conclusion
Research Objectives and Themes
The primary objective of this work is to critically examine the necessity and feasibility of a European Constitution. It addresses the research question of whether the European Union currently possesses a constitution in its founding treaties, and whether a formal constitutionalization process would provide a viable solution to the Union's institutional, legal, and democratic challenges.
- Legal analysis of the constitutional character of current EU founding treaties.
- Evaluation of the "democratic deficit" within European supranational structures.
- The relationship between statehood, legitimacy, and European integration.
- Prerequisites for democratic legitimacy, specifically the concept of a European "demos."
- Critique of constitutionalization as a panacea for institutional reform.
Excerpt from the Book
III.1. The EU - State or Process?
Before analyzing the alleged advantages of a constitution, we have to deal with a very straightforward objection: is a constitution as a legal instrument that traditionally guaranteed continuity and stability an appropriate solution for a dynamically evolving Union, or would it more likely promote the emergence of rigid structures and turn out to hinder further steps of integration?
The treaties are, as the formula of the EU as an “ever closer Union” indicates, designed to fit the need of a legal basis allowing permanent change. The current legal form of a treaty allows continuous correction and integration of new experience and knowledge and therefore takes into account the dynamics of European integration. Most scholars surprisingly agree that a constitution can be combined with the flexibility of a treaty. Of course, at the national level, flexibility is important as well and attempts are being made to include flexible elements in the national constitutions as well. A constitution therefore is “a basic order confined to laying down the goals and framework for politics, and otherwise left open to be fleshed out politically.” It fixes the framework, not the outcomes of politics. Moreover, if a European Constitution would include regulations on the procedure of assigning new competences, the EU would in no way limit its possibilities for development. A European Constitution with the ability of constitutional change seems therefore feasible. On the contrary, some authors even argue that the mingling of basic principles and detailed regulations in the founding treaties makes them unnecessarily difficult to amend and results in a “excessively rigid system”.
Summary of Chapters
I. Introduction: Outlines the historical context of the debate regarding a European Constitution, emphasizing the recent political momentum and the author's central thesis that a constitution does not solve the Union's fundamental problems.
II. Does the EU have a constitution?: Investigates whether the current founding treaties of the EU fulfill the normative requirements of a constitution, concluding that they lack the necessary link to a sovereign "pouvoir constituant."
III. Should the EU have a constitution?: Analyzes whether constitutionalization is a desirable goal, exploring themes like the nature of the EU as a "process," the lack of a democratic demos, and the limits of institutional legal reform.
IV. Conclusion: Summarizes the argument that a European Constitution is not a solution to the EU's legitimacy crisis, suggesting instead that the focus should shift toward addressing structural deficits in representation and the specific requirements of supranational democracy.
Keywords
European Constitution, European Union, Supranationality, Legitimacy, Democratic Deficit, Founding Treaties, European Integration, Demos, Pouvoir Constituant, Institutional Reform, Sovereignty, Political Participation.
Frequently Asked Questions
What is the core focus of this publication?
The publication examines the validity of the call for a European Constitution, arguing that such a legal instrument is both inadequate and unnecessary to solve the structural and democratic problems currently facing the European Union.
What are the primary themes discussed in the book?
The work explores the nature of European integration, the legal and normative definition of a constitution, the democratic deficit, the role of political legitimacy, and the societal prerequisites for democracy in a supranational framework.
What is the main research question?
The author asks whether the EU founding treaties already function as a constitution, and whether moving toward a formal constitution would improve the Union's functional capacity and democratic legitimacy.
Which scientific methodology is applied?
The study employs a political science and legal-theoretical approach, conducting a critical analysis of academic debates, existing treaty law, and the institutional evolution of the EU.
What topics are covered in the main body of the work?
The main body focuses on the distinction between the "State" and the "Process" of integration, the principle of double legitimacy, the absence of a European "demos," and the challenges of creating democratic institutions without an established transnational public sphere.
Which keywords best describe this research?
The research is best characterized by terms such as "European integration," "democratic deficit," "supranationality," and the distinction between formal and social legitimacy in the context of the European Union.
How does the author define the "democratic deficit"?
The author defines it as the inherent difficulty of applying traditional nation-state democratic models—which require a homogeneous demos—to a heterogeneous, supranational structure where decision-making power has shifted away from national electorates.
What is the significance of the "pouvoir constituant" in the author's argument?
The author uses this concept to demonstrate that a genuine constitution requires a foundational act by "the people," which is currently absent in the EU, as the treaties are products of government negotiations rather than direct acts of a European constituency.
- Quote paper
- M.A. Hans Christian Siller (Author), 2000, Why Europe does not need a constitution, Munich, GRIN Verlag, https://www.grin.com/document/5484
