Constitutionalising Europe

Processes and Practices

Michael Longo

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351949392
• Edition: 1
• Topic: Politique et relations internationales
• Subtopic: Relations internationales

The European Union is in a state of transformation with its constitutional future the subject of much heated debate. This book provides a durable, authoritative and comprehensive account of constitutional development, examining the pivotal roles of law and judicial politics in establishing the EU constitutional edifice. Michael Longo demonstrates and substantiates the arguments for and against constitutionalization through the development of a theoretical framework drawing on theories and empirical research in both law and political science to understand this new process of European integration.

Chapter 1

Introduction

This book studies the constitutional development of the European Union (EU). It critically examines the current constitutional arrangements of the EU and the challenges confronting its further development: the effects of EU membership and institutions on EU constitution building; the impediments to constitutionalisation; the need for a formal, documentary constitution and its relationship to legitimacy. It presents an analysis of the dynamic institutional interactions, processes and practices of EU governance that have generated constitutional change. This book argues that EU constitutional development is a consequence of such inter-institutional processes and practices, which transform Member State interests and preferences towards constitutionalisation.

The book formulates a theoretical framework for understanding the EU's constitutional development, against which the substantive constitutional questions presented in this book are tested. The theoretical framework describes the effects of Europeanisation on domestic institutional systems by their capacity to promote convergence and transform domestic values, interests and preferences in favour of constitutionalisation. The framework draws on aspects of social constructivism and substantive theories of European integration (EI), such as federalism and neo-functionalism, to further explain the constitutional development of the EU. In developing this theoretical framework, I argue that tracing the processes and effects of transformation to which the EU is subject brings to light the EU's constitutional identity and points to the future direction of its constitution.

This book aims to present a detailed account of the EU's specific constitutional attributes and its constitutional orientation. There is merit in establishing the basic character of a constitution to properly anchor discussion of its possible reshaping.¹ I argue that characterisation is a precondition to the proper assessment of the EU's constitutional prospects. There is a lack of consensus among the Member States and analysts as to how to characterise the EU in its current form, much less what it should become. The point of departure in this book, drawing on an observation by Maduro, is that the discourse dominating the construction of Community law and its relation with national legal orders is a constitutional discourse² since ‘the operation and effects’ of the European Community (EC) Treaty ‘closely resemble those of a Constitution.’³ Thus, the book explores the tension between the legal patrimony of the EU – a putative constitution – and the perceived need for a constitution.

There is an indeterminacy of meaning associated with key terms such as ‘constitution’, ‘federalism’ and ‘polity’, though the EU is increasingly perceived as a federal type polity.⁴ Disagreements over basic terminology and the EU's uncertain constitutional identity are two factors that have clouded the constitutional landscape and hindered the emergence of an informed public debate on how the EU should develop. Another contributing factor has been the inability or non-preparedness of scholars from diverse disciplines to share and profit from the insights and findings of their scholarly research. I argue that the elemental disagreement as to identity, the indeterminacy of terminology and the prevalence of single-discipline research on the EU have contributed to the entrenchment of a partial understanding of the EU. This problem has been exacerbated by a tendency to examine the EU against the analytical backdrop of the nation state, even when EU and state institutional functions, processes and practices clearly differ. The persistence of ‘democratic deficit’ and ‘legitimacy deficit’ discourse against an exclusively statist benchmark is symptomatic of theoretical incapacity or sclerosis.

The gradual increase of regulatory and policy output emanating from the European level of governance and a prevailing sense of the irreversibility of Europeanisation are transforming domestic politics and impacting upon European consciousness. These changes foreshadow increased interaction between EU governing structures and the citizen. However, doubt remains as to whether increased EU activity will produce direct engagement between supranational institutions and citizen or whether the national states will continue to mediate between them. The outcome will influence citizens’ perceptions of the EU and whether or not citizens ultimately identify with a supranational polity.⁵

For all the uncertainty surrounding EI, it is generally (and possibly correctly) believed by scholars that the legitimacy of EU governance will continue to elude the EU as long as its authority is derived from the Member States rather than its citizens. Central to the constitutional discourse, therefore, is the question of legitimacy through, inter alia, the promotion of democracy – ostensibly a matter of institutional or constitutional design, but clearly informed by ideational factors. While this line of reasoning invites acceptance of the proposition that it is possible to transform the EU into a democracy beyond the élite level, the proposition is by no means free from doubt.

The challenge is to develop existing theories or to discover new theories of democracy beyond the state to legitimate (and perhaps extend) the forms of non-state governance in evidence in the EU. Contemporary analysts have repeatedly called for the development of new theories and perspectives to advance the study of EI.⁶ History suggests that this endeavour is possible. Classical constitutional theorists created space for new concepts, where none existed before, through a mix of conceptual originality and an enduring focus on the subject of constitutional theory – the individual. In so doing, they made it possible to conceive of something new. Current trajectories in governance, particularly in the EU, but also in the global sphere, signal a renewed need to create something new. The EU is at the forefront of this inquiry. As EU competencies have expanded together with the EU's political and social space, the search for new constitutional/institutional arrangements that promote democracy has intensified. To this end, academic analysis within a constitutional discourse can play an important part, ‘[contributing] to the creation of the object they aim at exploring’.⁷ Nevertheless, the constitutionalisation of the EU does not rest solely on conceptual innovation. It relies also on the application of established constitutional principles to a changed set of legal and political realities and new governmental structures. Ultimately, the relations between governmental structures and the governed are at the core of constitutional theory, whether the governing institutions are those of the nation state or a supranational entity or both.

Methodology and Approach

The focus of this book is neither exclusively legal nor political science. The debates over a European constitution draw on traditional and contemporary theories, understandings and explanations within both these disciplines. Accordingly, the investigation gives rise to a number of conceptual questions that invite an interdisciplinary approach or one grounded in what may be inelegantly referred to as ‘po-law-tics’, an approach that presumes convergence between law and political science in the study of EI.⁸ The specific questions addressed in the book are as follows: does constitutional discourse impact materially and/or ideationally on constitutional development; do the EU's constitutional arrangements have the status of a constitution; are those arrangements effective in securing fundamental rights and freedoms; may they be deemed legitimate and, if not, what is required to transform the EU into a fully legitimate polity? Furthermore, are the forces of regionalisation, Europeanisation and globalisation having an impact on the constitutionalisation of the EU; is a formal, documentary constitution desirable and/or achievable; and may democratic governance be achieved at EU level?

The questions and ideas outlined above are taken up, integrated and explored in subsequent chapters of this book. Chapters 2, 3 and 4 are devoted to examining and classifying the EU, and determining its current constitutional status from a legal and political standpoint, with a view to then discussing in chapters 5, 6 and 7 whether constitutional restructuring is, first, desirable and, secondly, achievable. The EU is in a state of transformation and, to the extent that its constitutional development may be guided from a position of knowledge, it remains important to understand the context within which developments are unfolding. Constitutionalism presents a useful framework within which the social/political and the legal merge, an intersection carefully mapped out in Chapter 2.

Aspects of an approach that may be classified as ‘social constructivist’ are employed which enables theoretical examination of the transformative effects that European institutional interactions and practices have on the processes of preference and identity formation in the EU. This perspective (directed in the first instance to the examination of the question ‘how did it get there?’) recognises the constitutive role that norms,⁹ rules, discourse, learning, deliberative processes and other social ontologies¹⁰ play in the formation of actors’ identities and interests. Importantly, a social constructivist approach elevates ideational factors to a position of equal prominence, together with material factors, in the construction of a European constitutional reality. The significance of adopting a broad sociological approach to this question is evident in the light of the existence of socially-oriented, potential impediments to the adoption of a constitution – viz, a partial understanding only of the processes and forces impacting on constitutionalisation, the uneven effects of Europeanisation across the EU, and the absence of a solid European collective identity.

The élite-driven debate, spearheaded by the Convention on the Future of Europe, directed to the resolution of the essential constitutional question of what kind of constitution was conducted in a theoretical and historical vacuum, emphasising the material factor of ‘good institutional design’ as the ultimate goal but largely ignoring the sociological processes and forces that impact on constitutionalisation. Consequently, the outcome of the Convention – The Treaty Establishing a Constitution for Europe (the Constitutional Treaty) – even if ratified can only be viewed as a single step, or an episode, in the constitutional development of the EU rather than a ‘constitution’ in the traditional sense, being the culmination of a consensus-building process that ‘constitutes’ a polity. The constitutional practice of the EU confirms an evolutionary ‘building-block’ approach, which resists a view of constitutional development punctuated by a ‘founding moment.’ Despite the probable justification for such an approach (the EU is not yet ready for a constitution in the traditional sense), the adherence by élites to a conception of a EU constitution, predominantly in terms of effective institutions, precludes the growth of a broader discourse in the public sphere on the meaning and ramifications of a constitution and the factors and processes impacting (both positively and negatively) on constitution-building. This failing does not bode well for future constitutional development if ‘knowledge’ is by nature ‘constructive’, as claimed in this book and elsewhere.¹¹

This book seeks to redress the imbalance by seeking to describe the constitutional development of the EU in all of its complexity from interdisciplinary and multi-dimensional perspectives. This entails the establishment of a framework (as outlined above) within which the effects of Europeanisation on domestic institutional systems (e.g., through EU law and the co-ordination of EU policies) may be described by their capacity to promote convergence and transform domestic values, interests and preferences in favour of constitutionalisation, while recognising the existence of multiple veto points.

The constitutional process is multi-faceted and contestable, and central to it, both at the material and ideational levels, is the role of the individual. It is postulated that individual participation in the process of Europeanisation (secured ideationally and materially via the judicial principle of ‘direct effect’) is a means to both securing a constitutional imperative (i.e. the protection of rights) and informing constitutional design, most blatantly through the exercise of electoral choice. A focus on the ‘ideas’ of human rights and democracy within the constitutional debate, as advocated in Chapter 7, has the capacity to galvanize public opinion in Europe, potentially giving a sense of ownership of the EI venture and, thus, fulfilling an important purpose of EI. Yet, it is unlikely that such outcomes will be automatic as the constitutional process is as fragile as it is contested. The European political space would need to be configured to offer a level of security or protection at least equal to or greater than that afforded within individual Member States, and must be seen to do so.¹² In the absence of such protection, real and perceived, the process of constitution-building is denied an important source of support, identification and, hence, legitimacy (in the Weberian sense of enjoying ‘the prestige of being considered binding’¹³).

The peoples of Europe should be involved in these processes. This book therefore argues, by way of auxiliary proposition, that concern with democracy and fundamental rights is not only conducive to the construction of a European collective identity and thus to constitution-building, but is the raison d’être for a European constitution. The questions concerning the desirability and achievability of a constitution introduce to the discussion a strongly discursive dimension, drawing on the language of Habermas,¹⁴ permitting recourse to rational argumentation to justify the adoption of a constitution according to indicators such as values, effectiveness and outcome.

Ostensibly, a constitutional document can secure human rights, democracy and citizenship in the EU. In contrast, the Treaty-based developments on these fronts to date only partially achieve these ends. The élite form of decision-making manifested in Treaty-based provisions on citizenship and respect for human rights, albeit underdeveloped and still emerging, fall well short of the standards adopted within the Member States, where primary responsibility still lies. While this does not conclusively prove that the ends referred to can be achieved only through a European documentary constitution, a documentary constitution cannot be justified without recourse to these ends.

The constitutional questions raised in this introduction require an historical and a conceptual context. They presuppose knowledge of what the EU is in its present form, though, as often acknowledged, there is a lack of common understanding as to the EU's constitutional heritage and vocation, exacerbated by what Peterson has called ‘phoney the...