The Struggle for the European Constitution

A Past and Future History

Michael O'Neill

• Publisher: Taylor & Francis
• Year: 2008
• Print ISBN: 9780415378000
• eBook ISBN: 9781134183364
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

The European Union (EU) Constitution was one of the most important developments in the history of the EU, aiming to make the EU more transparent, relevant and accountable to the citizens of its member states. Current anxieties over the pace and direction of EU integration place this comprehensive study at the forefront of the EU governance debate.

O'Neill goes far beyond a simple account of the EU Constitution, focussing also on the response to the current crisis of confidence between the Union and its citizens and how those in power have responded to the challenge.

Making a substantial contribution to literature on the EU, key discussion points include:

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• The political crisis behind the Constitution

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• The power politics at work in the negotiations

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• How the Constitution affects EU policymaking

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• The impact on the citizens of the EU

This is essential reading for all those wishing to understand the background to one of the key areas within European Politics.

Michael O'Neill is Jean Monnet Professor in EU Politics at Nottingham Trent University.

Part 1
Why a European Constitution?

1 A problematic polity

In praise of Europe and yet…

The progress made towards closer co-operation between Western Europe’s nationstates begun in 1945 is a remarkable achievement measured against the continent’s turbulent past. Reconciliation and reconstruction have banished warfare to Europe’s geographical margins, common institutions are now in place to address problems of mutual concern, fostering a sense of shared purpose and endeavour previously unimaginable to all except idealists. There is much to celebrate in these developments. An extensive and well-organised single market whose institutions amount to a tier of transnational governance, a sophisticated monetary system that after an unsteady start is consolidating the euro as a major global currency, common procedures for managing foreign policy, initiatives to establish a European defence capability, all confirm progress undreamt of by Europe’s long-suffering peoples at the end of the Second World War. To these achievements must be added the growing corpus of European case law and legislation covering many aspects of public policy, from macro-economic management, labour market regulation to the environment, social policy and higher education.

Optimism must be tempered nevertheless by caution, for these achievements are only a part of the story. There are distinct limits to the achievements of European construction. The European project has failed to engage, let alone to enthuse, the public at large, and its cumulate institutionalisation reflects far more the interests and aspirations of Europe’s political, administrative and business elites than it does those of its citizens. This is due, in no small measure, to the model adopted in 1950 for rebuilding the European economy and social infrastructure. The Coal and Steel Community was a technocratic agency, chosen in preference to a more democratic federal design. Thereafter, the Community’s decision-making procedures remained opaque to the ordinary citizen, its operations altogether too difficult for them to comprehend, let alone to access in order to influence public policy. This was primarily an economic Community, and one that barely met democratic standards. Over time what had started as a common market and regulatory regime has become a polity, but its arrangements lack either public accountability or democratic legitimacy as this is understood in liberal polities. And this despite accession criteria that make democratic norms and procedures a requirement for joining the club.

The legitimacy problem is inbuilt in the EU system, but became an issue only during the early 1990s, as public opinion grew restive about the pace and direction of European integration after the stormy passage of the Maastricht Treaty in some member states. The problem of what contemporary commentators call ‘disconnection’ between elites and citizens has not gone away and indeed has worsened, reflected in widespread public indifference to the intergovernmental deals that resulted in the treaties of Amsterdam and Nice. These political bargains may have satisfied the governments who negotiated them, but they barely signified with the people at large. The negative publicity surrounding the Commission’s tribulations in 1999 after a Parliamentary report had levelled serious charges of incompetence and corruption merely served to confirm the Union’s low public esteem. This much is to be expected from a polity that from the outset has combined divergent, indeed competing, political purposes. Political tension over the meaning and direction of European integration is hardly new; it has defined the project from the outset.

The founding bargain that established the Coal and Steel Community accommodated quite different ideas about integration, a balance between governments convinced of the need to work more closely together for broadly mutual ends, and supranational interests and agencies represented in the Community’s institutions, for whom the project was an escalator towards a European federal polity. It suited both sides of this debate to play down ideological differences, to concentrate instead on making a bargain that suited their respective interests. As such, the European project has harboured an abiding ambiguity throughout about the meaning and trajectory of European integration. This compromise is most clearly reflected in the Community’s institutional arrangements, almost a ‘treaty-based federal arrangement in certain policy areas’, though ‘without having a formal, constitutionally based federation’.¹ On the one hand, the Community was designed to accommodate the interests of historic nation-states, though not to the exclusion of their common interests.² On the other hand, ‘ever-closer Union’ has its own momentum, and more than that its own prophets, who exhibit zealous faith as to its destiny, convinced that it will one day replace the nation-state with its own exclusive sense of identity, what amounts to a trans European patriotism, and a degree of cultural integration giving rise to common European values and mutual aspirations, and not least a sense of common purpose in a fast-changing world.

While ambiguity remains, and as some see it continues to sustain the project’s broad appeal, there are signs nevertheless of a distinctive process of ‘Europeanisation’ under way. One consequence of European integration has been a fundamental shift in the European political order, reducing the primacy of the post-Westphalian nation-state and state system in the region’s politics.³ The coexistence in the Community’s founding bargain of national interests and supranational aspirations has produced an ‘in-between’ politics, ambivalence about fundamental purposes that is not resolved one way or the other, but balances quite different preferences in the policy process. The member states pool elements of their sovereignty, participate in common institutions and abide by an agreed legal code in order to solve mutual problems, though this unprecedented co-operation is constrained by national policy preferences and lacks the affective cement of a shared political identity. At the same time, states are no longer the singular or exclusive actors they are in the classic realist paradigm of international relations. The impact of such co-operation has given momentum to ‘Europeanisation’, a blurring of once pristine boundaries between levels of governance, and with it a growing commonality of values, a common approach to some important aspects of public policy once the exclusive preserve of the nation-state.

The boundaries between domestic and international politics now have a porosity that has altered the dynamics of governance—though less so of politics—at both the domestic and international levels, irrevocably changing conventional policy-making strategies.⁴ Government is much less the exclusive prerogative of state actors, with the EU ‘slowly defining political arrangements, altering policy networks, triggering institutional change, reshaping the opportunity structures of member states and their major interests’.⁵ Domestic interests that once relied solely on the state to represent their interests abroad engage directly in transnational policy networks. Contemporary governance is multi-tiered with the national, meso and supranational levels increasingly interdependent, each level ‘sharing the responsibility for problem solving because neither [level] has adequate legal authority and policy instruments to tackle the challenges they face’.⁶

In the process formerly hermeneutic states have become ‘hollowed out’, with at least some elements of their sovereignty spilling over to transnational agencies, the impact of these transactions in turn spilling back into national affairs, reshaping contemporary governance.⁷ This has been a cumulate and an incremental process, rather than the result of any formal constitutional bargain or defining moment constituting a European polity. As such, the institutional deficiencies that result from such a weakly connected, non-hierarchical governance architecture are plain to see, their consequences all too apparent in the Union’s current predicament. This is a polity without paramount public power, lacking either a monopoly of legitimate coercion within its boundaries or the means to defend its collective interests abroad. Above all, it lacks the over-arching identity found even in culturally plural and institutionally federated states, the normative ballast of public legitimacy that underpins what is, in effect, an implicit contract between ‘princes’ and people ensuring popular approval for the exercise of power. Indeed, this is a polity without even an agreed territorial space, ‘a political arena which is not fixed but in a constant state of construction’.⁸

Crisis is an over-used word in contemporary politics, but few close observers of the European scene now dispute the fact of growing public unease with a polity that touches the lives of its citizens to an unprecedented degree, yet one that remains beyond either the public’s effective control or comprehension. Public concern is apparent on several fronts: a discernible lack of empathy between decision-makers and citizens, and widespread public indifference to and incomprehension about remote governance. This mood finds expression in popular disapprobation of the apparent misdemeanours of some office-holders in the principal institutions, a mood that now extends beyond mere malaise and is reflected in negative media coverage, adverse public responses to opinion pollsters and low levels of participation in European elections. At the heart of the problem is the construction of the EU polity itself, an institutional muddle designed at the outset as a compromise between quite different visions of the Europe project, and one that makes for problematic governance.

Problematic governance

The EU is a multi-tiered polity whose institutional actors at various levels have quite different, indeed competing preferences about the purposes of their common endeavour.⁹ For the national governments represented in the European Council and the Council of Ministers, the European project is essentially about promoting and defending national interests, though this does not in itself preclude deals between them, usually in response to external challenges: bargains that commit the member states to a remarkable degree of commonality in public policy.¹⁰ The Union’s common institutions tend to regard such collective action as the precursor of yet more supranational governance to come, activity with a potentially federal outcome and for some even the harbinger of a European state-in-the-making. What began as ‘merely’ a common market has certainly developed into complex governance,¹¹ governance that differs markedly ‘from [that] of the European state as we have come to know it’.¹² However, the system’s asymmetry, its loosely coupled institutions are a direct legacy of the founding bargain.¹³ This is an inchoate rather than a hierarchical polity, one lacking a clear or undisputed locus for political authority, and one without an authoritative constitutional narrative, where ‘many decisions get made betwixt and between the established mechanisms of democratic control as matters of executive or administrative discretion’.¹⁴ The executive function, such as it is, is located in a supranational Commission, an institution lacking any demonstrable legitimacy other than the authority conferred by the treaties and the mandate to propose and supervise agreed common policy bestowed by the member states who appoint its president and College of commissioners. The Commission is ultimately accountable to the governments of the member states, yet it has considerable discretion in initiating policy.

What passes for legitimacy in this polity resides with an intergovernmental Council of Ministers, in fact several sectoral or functional councils meeting periodically, co-ordinated as far as possible by a rotating presidency. But this institution legislates neither with transparency nor with a democratic mandate worth the name. The European Parliament on the other hand is elected and it does have supranational aspirations, but even the recent acquisition of a significant co-legislative role through co-decision and its growing budgetary powers have not entirely redressed its limited capacity to shape the Union’s policy agenda, let alone to embody what might be called the General Will, the authority conferred by the people to ‘speak for Europe’. Above all, party politics here is loosely organised, remote from the electorate’s affections, and its elections are widely seen even by those who participate in them as second-order contests deciding little of significance for their everyday lives, at best an opportunity to send a mid-term warning to their governments. And though legitimacy is assumed by its elected members, this is not legitimacy securely grounded in a European demos, for much more is required for a pan-European deliberative democracy than merely ‘submerging a national democratic government into a larger and less democratic trans-national system’.¹⁵

The Court of Justice, too, falls some way short of the standard set by constitutional courts in democratic polities. While it lays claim to the role of final arbiter of the public interest as embodied in the judicial function, the fount of judicial (and ultimately of constitutional) review, a function that is the ballast of legitimate governance in national polities, in practice the Court falls short of the benchmark for classic judicial review. Its expansive legal order enjoys supremacy by means of the dual principles of direct effect and primacy over national law, but only in specific aspects of public policy, and even then without any independent means for enforcing its writ.

Measured against any conventional yardstick this is a muddled political architecture, and one that makes for complicated and hardly for efficient governance.¹⁶ Competencies are shared between these diverse institutions, a mix of mutually dependent public and private actors who must make bargains in order to maximise their preferences and realise their policy objectives and political goals.¹⁷ And in ways that deliver something less than optimal policy outcomes, and all too often result in costly ‘decision traps’ that exasperate special interests and baffle the citizens at large.¹⁸ The Commission, the principal engine for initiating common policy, lacks any independent capacity for enacting agreed policy outcomes.¹⁹ Whereas the Council of Ministers’ legislative function lacks proper democratic accountability or the means for effective public scrutiny. Despite recent advances in its powers, the Parliament remains much less the cockpit of a robust deliberative democracy, a truly European democratic space holding the power-brokers properly accountable. The Court, meanwhile, depends on the goodwill of other agencies to enforce its judgements. It is an understatement to describe these arrangements as merely ‘untidy’.²⁰ The lack of a constitutionally guaranteed separation of powers makes for disjointed governance, weak authority and opaque decision-making.

Some commentators see in these institutional deficiencies the roots of the Union’s present legitimacy crisis.²¹ The ‘permissive consensus’ that prevailed in the early years of the European project, whereby ministers in the Council unanimously and covertly made decisions, and assumed that the people at large accepted their right to do so, could no longer suffice as the basis for authoritative decision-making once the Union moved to decisions by qualified majority. Nor was ‘performance legitimacy’—another convenient rationale for unaccountable EC decisions, whereby political elites are assumed to act in the best interests of the people—sustainable, given the extension of decision-making into areas of public policy central to citizens’ everyday concerns. The legitimacy deficit and how to redress it has become over time the focus of a debate about reform, prompting acceptance in some quarters of the need for a European constitutional order.²² Institutional arrangements have evolved, but not in ways that have deepened legitimacy or enhanced the Union’s democratic credentials.

The democratic deficit is as apparent now as it was at the outset, indeed it is a matter for more serious concern, because the scope for policy-making has increased signifi-cantly since 1986, when the passage of the Single European Act launched the Single Market project.²³ The extension of policy domains, the geographical enlargement o...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• List of tables
• Acknowledgements
• Prologue
• PART 1 Why a European Constitution?
• PART 2 Constitutionalising the European Union
• PART 3 The politics of ratification