The Constitution's Gift: A Constitutional Theory for a Democratic European Union

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Author: John Erik Fossum | Agustín José Menéndez

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The Constitution’s Gift

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The Constitution’s Gift A Constitutional Theory for a Democratic European Union

John Erik Fossum and Agustín José Menéndez

ROWMAN & LITTLEFIELD PUBLISHERS, INC.

Lanham • Boulder • New York • Toronto • Plymouth, UK

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Published by Rowman & Littlefield Publishers, Inc. A wholly owned subsidiary of The Rowman & Littlefield Publishing Group, Inc. 4501 Forbes Boulevard, Suite 200, Lanham, Maryland 20706 http://www.rowmanlittlefield.com Estover Road, Plymouth PL6 7PY, United Kingdom Copyright © 2011 by Rowman & Littlefield Publishers, Inc. All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means, including information storage and retrieval systems, without written permission from the publisher, except by a reviewer who may quote passages in a review. British Library Cataloguing in Publication Information Available Library of Congress Cataloging-in-Publication Data Fossum, John Erik. The Constitution’s gift : a constitutional theory for a democratic European Union / John Erik Fossum and Agustín José Menéndez. p. cm. Includes index. ISBN 978-0-7425-5311-8 (cloth : alk. paper) — ISBN 978-1-4422-0857-5 (electronic) 1. Constitutional law—European Union countries—Philosophy. 2. Constitutional history—European Union countries. 3. Constitutional law— European Union countries. I. Menéndez, Agustín José. II. Title. KJE4445.F677 2011 342.24—dc22 2010029033

™ The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI/NISO Z39.48-1992. Printed in the United States of America

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To Ewelyn To Elena Sullivan and Long John Silver

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Contents

Acknowledgments

ix

Introduction: The European Enigma

1

1 Introducing the Constitutional Tool Kit

17

2 A Theory of Constitutional Synthesis

45

3

From Paris to Nice: The Constitutional Path of European Integration

77

4 From Laeken to Lisbon: Moving Beyond Synthesis or Heightened Constitutional Ambiguity?

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5 Untangling the Knots by Means of the Theory of Constitutional Synthesis

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6 Canada’s Constitutional Experience and Lessons for Europe

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Conclusion: The Future of a Constitutional Experiment

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Notes

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Index

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vii

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Acknowledgments

This book is the product of European integration. It was sparked by the recognition that the complex and contested European integration process represents a major intellectual challenge for democratic and constitutional theory. Such a major transformation requires revisiting core concepts, theories, and received wisdom. An important theoretical challenge is to clarify what can safely be retained, what requires revising, and what intellectual innovation is required. The book is therefore the product of a long-time pursuit. It has clearly been facilitated by the various ways in which the European and Canadian processes of constitutional introspection have furnished us with intellectual arenas and meeting places of vital importance to the development of the arguments that inform the book. But every book is a collective effort. Authors are catalysts whose ideas and insights emanate from their active engagement with a far broader intellectual community, to which they are deeply indebted, and to which they contribute far less than what they receive. We gracefully acknowledge those debts. The book has also benefited in particular from the generous comments and inputs from those who have read parts or all of the manuscript, notably Alan Cairns, Flavia Carbonell, Eduardo Chiti, Massimo La Torre, David Laycock, Raúl Letelier, Fernando Losada, Chris Lord, Andrew Moravcsik, Francisco Rubio, and Anne Elizabeth Stie. We also presented early summaries of the argument at several ARENA seminars over the years and greatly appreciate the many constructive comments from the Oslo “factory,” as Hauke Brunkhorst has aptly labeled it. In that connection we particularly grateful for the comments from Erik O. Eriksen, Espen D. H. Olsen, Marianne Riddervold, Helene Sjursen, and Hans-Jörg Trenz. Many of the core ideas were discussed in the course ix

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on the constitutional law of the European Union that Agustín has taught for the past seven years, first at the Instituto Universitario Ortega y Gasset, then at the Centro de Estudios Constitucionales in Madrid, an experience that has enriched the final text thanks to the multinational background of the students enrolled in both institutions. The book is a contribution to the European Commission–funded Sixth Framework Programme Reconstituting Democracy in Europe (RECON). The main source of financial support is from ARENA and from the Norwegian Research Council. We have also received support from the Nordic Association for Canadian Studies (NACS-ANEC) and the European Network for Canadian Studies (ENCS), both of which receive funds from Canada’s Department of Foreign Affairs and International Trade (DFAIT); as well as from the (now extinct) Spanish Ministry of Science and Technology. We should also underline the excellent working conditions at ARENA and the stimulating intellectual environment it represents. Our long-time cooperation with Erik Oddvar Eriksen is a central element of this. Agustín is thankful to the law school in León, and very especially to Miguel Díaz and Juan Antonio García, dean and director of the public law department in the crucial period during which the book was written. We would also like to thank the RECON and ARENA administrations for excellent support. We are also very grateful to Susan McEachern and Janice Braunstein at Rowman & Littlefield for their very efficient and professional handling of the manuscript. But, above all, we would like to thank our better halves (and Pablo) for also bearing with us on those days that were far too short, and we were most engulfed in the pursuit of that elusive figure, constitutional synthesis.

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Introduction The European Enigma

The European Union is a puzzling political animal. In particular, it is far from obvious (1) what kind of political community it is (is it an international organization, a state in the making, or a radically new type of polity?), (2) what kind of norms underpin its actual functioning (does the Union have a constitution? If so, what are its contents and how was it established?), and (3) by what form of legitimacy should it be assessed (should it be assessed with reference to democratic standards? If so, is the Union’s democratic legitimacy direct, or is it derived from the member states? If not, what standards of legitimacy other than democracy are at work here?). These are the puzzles that bemuse students and observers of the Union; they distinguish the European Union as a political actor and Community law as a means of solving disputes and coordinating action at the continental level. Let us consider these puzzles in some more detail.

WHAT KIND OF POLITY? The most basic question we may ask about any political community, namely what kind of polity or political system the European Union is, has no ready-made answer. We know that the United Nations is an international organization and that Japan is a state, but what is the European Union?1 If we look at the many depictions of the European Union that are bandied about, it comes across as the chameleon of the political world. It has variously been depicted as a special form of international organization,2 as a fledgling or a quasifederal state,3 as a European empire,4 and as a new—sui generis—political entity5 (whether cast as a supranational 1

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Introduction

government, a system of transnational governance, or a regional cosmopolitan entity). As is the case with the United Nations, or for that matter the World Trade Organization, the European Union was established through what were, formally speaking, international treaties. To this day, the Union retains a formal institutional structure and a decision-making procedure with clear traits of international diplomacy. As is the case with the G-8 summits, hordes of journalists (in the thousands) travel to cover the European Council summits where the heads of states and governments from the Union’s member states meet at regular intervals to stake out the Union’s development. At the same time, and more in line with the United States or Japan, the European Union has a major impact on the daily lives of European citizens. The EU establishes much of the basic regulatory framework of social interaction. A large number of new laws that take effect in all the member states are essentially shaped at the European, not the national, level of government.6 European laws and decisions make up much of the stuff of Europeans’ “kitchen table” conversations on issues of great concern to them, from unemployment levels to mortgage rates (and these days, even salaries, as wage cuts are implemented in the name of saving the euro!) and from climate change to national security. Similarly, the European Union speaks and negotiates on behalf of European citizens to the rest of the world. There is a “Mrs. Europe” in foreign affairs (the newly appointed High Representative of the Union for Foreign Affairs and Security Policy), there is a “Mr. Europe” in international trade negotiations (the European commissioner in charge of the trade portfolio), and there is now also a European president (although the effective standing of this office is yet to be clarified).7 There is also the European Court of Justice. So surely with such a comprehensive institutional structure the Union must be more than an international organization. But is it really? European laws are influential and have continent-wide implications, but at the same time there appears to be something lacking or deficient about this entity that makes people uneasy: it lacks core state vestiges. There is no European army, there are no European prisons (albeit Community law has framing effects on national defense and national criminal law), and there are no substantial European taxes (although there is a handful of smaller European taxes). There is no deep sense of European national identity (Who is willing to die for Europe? Who feels that the European Union should ensure economic solidarity? Who thinks paying European taxes is a duty?). That is perhaps why so many authors have sought refuge in the notion that the European Union is a genuinely new political formation that is distinct from what we understand by both nation and state. Indeed, the hybrid and complex character of the Union seems to fit well with this understanding. What is less clear, however, is in what sense the Union is unique and the specific implications this has on behavior. Or, to put it differently, if the


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Union is a new type of political entity, what does this entail for the member states that have come together to form it? Are they superseded by, or assimilated into, a new, unique political formation? Others deny that the Union is so distinct. Instead of transcending the nation-state, they argue that it rescues it.8 Skeptics go further and argue that the Union’s apparent chameleonic character is a play with symbols to conceal that the Union is an unauthorized power grab by Europe’s elites.9 They rightly note that political communities are not chameleons and cannot easily change color. The upshot is that for both academic and political reasons, we cannot escape the question of the kind of polity the European Union is.

WHICH AND WHOSE EUROPEAN CONSTITUTION? Is perhaps, then, the best way to shed light on this vexing issue to look more closely at the European Union’s fundamental norms? Might this not take us closer to a solution? Not necessarily. There is an equally profound disagreement over the status of the Union’s fundamental norms. To start with, there are clashing views on whether the Union has a constitution—some claim it has, whereas others emphatically deny this. The negative view seems to be supported by the lack of any document thus called, and perhaps more importantly, by the lack of any process explicitly declared as having produced such a constitution: no Bastille, no European Philadelphia. But if the Union does not have a constitution, it becomes very difficult to explain how the Union was established and how it has become such an important player in Europe, indeed in the world. How could such an organization that has such a direct impact on the member states’ constitutional arrangements endure without a constitution to operate through? Yet it is obvious that there is no text or set of norms that is widely and uncontroversially referred to as “the European Constitution.”

WHICH LEGITIMACY CREDENTIALS? The third source of confusion pertains to the Union’s democratic legitimacy credentials. The Union has reiterated its vocation to be a democratic polity and has set up democratic institutions (can the European Parliament be anything but testimony to the will to democratize the Union? Indeed, it has no equal among the assemblies of all international organizations!), but this has in no way prevented a decades-long and heated debate on the Union’s so-called democratic deficit, which has failed to bring even a modicum of clarity. Euro-skeptics not only find the Union deficient, they also claim that it drains out the democratic lifeblood from the only viable democratic


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entities in Europe, the nation-states (that now make up the Union’s member states). Others flatly deny that the Union harbors any real democratic deficit. It is interesting to note that what people disagree about is not the need for democracy, but how it should be configured because they disagree so profoundly over what the Union is and what it should be. This has direct bearings on the “who gets what and when” that underpins all European policies.10 The problem is, put simplistically, that of establishing what democracy for what European Union. European integration has arguably contributed to some convergence on the appropriate mode of democracy in Europe (indeed, the Union has given a helping hand to southern and eastern European states on their road to democracy), but this has not led to agreement on how we should evaluate the democratic quality of the Union. Since people disagree on what type of political entity the Union is and should be, they disagree on the appropriate standard of democracy to assess it by. The point is that the democratic legitimacy standards that we use to assess an international organization will be very different from those with which we will assess a democratic nation-state. And what democratic standards we should apply to an entity sui generis is one of the great mysteries of European integration. At any rate, as long as the character of the polity remains shrouded in uncertainty and/or people cannot agree on what European Union they want, there will be contest over the appropriate democratic evaluation criteria and therefore also disagreement over the character and gravity of the democratic deficit.

AN UNSETTLED, RESTLESS, BUT EXPANDING EUROPEAN UNION The apparently convoluted and at any rate disputed character of the European Union puzzles Europeans and non-Europeans alike. The EU is often portrayed as a baroque entity, a highly composite structure apparently incapable of becoming a “serious” global actor. Remember the famous question that was attributed to Henry Kissinger: “Who do I call if I want to talk to Europe?”11 What and whose Europe? The Europe that Henry Kissinger referred to was labelled the European Community and had a handful of member states. It has since then changed to the European Union (in the Maastricht Treaty, 1992) and now consists of twenty-seven member states. Does the name change signal a profound metamorphosis—from a limited international organization to something new and distinctly different? If so, when did this take place? As Baroness Ashton, the brand-new high representative of the European Union (a position which has come closer to a European minister of foreign affairs) wryly commented, it is her number that the Kissingers of the world should now call. When you dial it, you hear a


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recorded message saying, “If you want the British view, press 1; if you want the French view, press 2; if you want the German view, press 3.”12 So the question remains valid: what and whose Europe? The enigma of the European Union is well reflected in (1) an apparently perpetual process of fundamental reform and (2) a rather baroque constitutional practice, plagued by apparently irresolvable disputes about the true constitutional nature of the Union. A Perpetual Reform Process? The Union is not only an unsettled political construction, it also appears to be quite restless. The founding of the Communities in the fifties was followed by a frantic period in which the European constitutional and institutional edifices were built according to the road map set forth in the treaties, but very much drawing on elements of national constitutional and institutional traditions. During the past three decades, the Union has gone through a constant process of mainly successive fundamental reform processes. Since 1979, seven major reform proposals have been produced (and five passed): the Spinelli Draft Treaty (1984), the Single European Act (1986), the Maastricht Treaty (1992), the Amsterdam Treaty (1997), the Nice Treaty (2001), the Laeken Constitutional Treaty (2004), and the Lisbon Treaty (2007). The ink had hardly been allowed to dry on the document reflecting the last settlement before the reform process was started again. Both the original foundation and the recent reform processes need to be studied closely to make sense of the European Union. But special attention is due to the last two rounds, the Laeken and the Lisbon reform processes. Lisbon determines the present normative and institutional setup of the Union (and as such is of special interest to the student of the present European Union, from the perspective of both positive law and political science). In addition, the Laeken process marked a major break with previous reform processes by being conducted by reference to an explicit constitutional agenda and resulting in what was at first sight a document of clear constitutional color, the so-called Constitutional Treaty (formally labelled as the Treaty Establishing a Constitution for Europe). Finally, the Lisbon Treaty represented a full retreat from the constitutional idiom, albeit perhaps not from the constitutional ground. The initiative to write a constitution for the European Union (a constitution that would be similar to national constitutions in terms of legitimacy and in structural and substantive content) was (re)launched13 in 2000 by then–German minister of foreign affairs Joschka Fischer. This set in motion the so-called Laeken constitution-making process that is assessed in detail in chapter 4 of this book. Initial drafting was entrusted to a body that


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resembled a constitutional assembly (the European Convention), which raised hopes of a major constitutional transformation. But the process was reined in by the national governments, which had a privileged role throughout, thus underlining the formally speaking intergovernmental character of this process. This became apparent even within the convention, where foreign ministers drew up “red lines” to demarcate what their national governments would accept. The convention’s draft was then submitted to the next stage, the Intergovernmental Conference (made up of the Union’s heads of states and governments), which accepted (after amending) the draft. The draft then had to be ratified by all the member states in accordance with their ratification procedures. Ten countries opted to hold popular referenda, among them France and the Netherlands. In the latter two countries the mismatch between initial aspirations and subsequent realities formed the background to the decisions by majorities of French and Dutch citizens to reject the draft in 2005. Some regarded this as a democratic triumph (in terms of reaffirming the ultimate democratic control of reform processes); others were extremely concerned about the implications for the very future of European integration. It took long before the governments recognized this as a ratification failure. After the referenda rejections they embarked on an eighteen-month period of “reflection,” which is better cast as inaction. And then apparently in a sudden (in a matter of weeks) burst of action, the national executives came up with a nonconstitutional replacement for the Constitutional Treaty. The whole undertaking reeked of cloning of a legal kind because the new draft was close to a replica of the Constitutional Treaty, but this time with no explicit constitutional ambition (the provisions on symbols or on the terminology of legal sources were out), with a peculiar collection of exceptions and opt-outs (including an opt-out from the Charter of Fundamental Rights) being granted to the governments that requested such. All this was in exchange for accepting that most of the text of the Constitutional Treaty was to be preserved. Thus, the so-called Treaty of Lisbon was born, with the ambition and pretense to manage properly the inefficiencies effected by enlargement on the Union’s institutional structure and decision-making processes. After a convoluted and agitated ratification process (charged with drama by the initial popular rejection of the Treaty in Ireland, in the only referendum that executives could not avoid calling), the Treaty of Lisbon was formally ratified and entered into force after the Irish apparently changed their minds in a second referendum. Thus ended a process that had initially been aimed at constitutionalizing the Union and that had produced a legal document with the impossible and contradictory denomination of Constitutional Treaty. This process was sunk by two popular referenda only to be resuscitated with largely the


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same substance but in the form of a nonconstitutional treaty in a secretive process of intergovernmental negotiations. How can it be that the answer to the initial plea for a European constitution that deserves its name (a democratic constitution) was the Treaty of Lisbon, whose text had been cleansed of any constitutional symbolism and which had been approved through a closed and secretive process of diplomatic bargaining? How could such an apparent U-turn be justified by those same national governments that had been in charge of and had sanctioned the Laeken constitutional exercise? Europe, if the Lisbon Treaty process is anything to go by, has shifted from constitutional ambiguity to constitutional rejection. This verdict appears to be grounded in a far more skeptical public attitude. Is the story of Laeken and Lisbon then one of outright deconstitutionalization? Does the Lisbon Treaty represent a qualitative change in the sense of rejecting the very notion of a European constitution? Or is there more to the story? Our point of departure is that the contorted character of the Laeken and Lisbon processes, and especially the peculiar way in which national governments changed their constitutional discourse, can be made sense of only insofar as we take properly into account the essentially contested character of the Union as a polity combined with the profound contestation over the Union’s legitimacy and the previous history of treaty making and reform.

THE MANY RIDDLES OF EUROPEAN LEGAL PRACTICE The lack of clarity on the character of the basic institutional configuration of the European Union (the polity and constitutional questions) and on the appropriate normative standards to apply to the Union has a direct impact on the legal practice of Community law, especially on what concerns the application of Community law to cases in which national and European laws enter into conflict or where the construction of Community norms is deeply controversial. While these conflicts may be few in quantity, they are qualitatively important, as they help define the constitutional grounds of the Union. How they are solved structurally permeates the entire European constitutional practice. Because the European Union was created by member states and not the reverse, it would be reasonable to expect that European law could not but be regarded as derivative from national constitutions. Indeed, the treaties were ratified in compliance with national fundamental laws, by reference to the constitutional clauses that authorized ratifying treaties such as the founding treaties of the Communities. Under such conditions, one may be


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tempted to think that the rules according to which conflicts between Community law and national law should be solved would be national (and that in line with national traditions, such rules would not assign primacy to Community law when the latter enters into conflict with national constitutions). And still, European constitutional practice is far more complicated. Community norms have been acknowledged to have direct effect, something which, as we will see at length in chapter 3, implies that conflicts between national and Community norms are indeed settled by Community, not national law, because it is Community law, not national law, that governs whether a Community norm has direct effect in one member state. Moreover, and despite the residual disagreement, which we will also analyze in chapter 3, both European and national institutions have come to accept that Community law should prevail over national law, even over some national constitutional norms. However, that practice is deeply muddled and lacks a clear, principled foundation, which cannot be forthcoming in the absence of a solution to the polity and legitimacy puzzles. Consider one of the most spectacular European constitutional conflicts of late, the Viking case.14 Finnish law seemed to affirm that the right to collective action of Finnish workers should include the right to trigger a pan-European strike to prevent a Finnish ferry company from relocating to Estonia, where labor costs were lower (and workers’ rights weaker). The right of the employer to decide where to set up shop was to be trumped and set aside because otherwise, there was not much left of the constitutional commitment to protect workers’ rights, which indeed is premised on the state’s countering the growing structural economic power of capital owners in a globalizing world and on workers being capable of organizing at the same level as capital makes use of its structural power. In brief, Finnish law was for the right of workers to strike. And, so one suspects, were most, if not all, national constitutions.15 And still the European Court of Justice solved the conflict in favor of the freedom of establishment of the ferry owners. The ruling is in the books, but it is far from obvious whether member states will comply with it. The writing on the wall consisted in the appeals to disregard the previous judgment of the ECJ in Mangold (concerning a conflict on what forms of age discrimination were constitutional) by no other than the former president of the German Constitutional Court, of the German Republic, and of the convention that drafted the Charter of Fundamental Rights of the European Union in its first version, Roman Herzog,16 and by the bellicose standing of one of the doyens of European studies, Fritz Scharpf vis-à-vis Viking.17 The ruling did not settle the issue but only exacerbated the sense that there was something terribly amiss in the understanding of the principle of primacy in the case law of the court—even if what is terribly amiss is unclear.


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The hardest questions to tackle in the adjudication of European Community law are indeed insoluble because we have not clarified what the Union is and how its legitimacy is to be assessed and tested. The polity, constitution, and legitimacy puzzles that we described at the beginning of this chapter have a direct legal translation into (a) the “genesis” riddle (why are formal international treaties that were derivative of national constitutions now constructed as if they themselves had given birth to a constitutional order?), which underlies the very characterization of Viking as a conflict between two sets of constitutional norms; and (b) the primacy riddle (why can a legal order that is logically and normatively a derivative of national constitutional law pretend to prevail over that same national constitutional law?), which underlies the constitutional practice of primacy. The problems seem so intractable that many jurists and legal theorists have retreated into a mere sociological analysis of the problem, suspending their legal disbelief, and claiming that the best we can do is to say that there are two correct legal solutions, depending on the point of view from which you look at the problem.18 That is, however, a deeply unsatisfactory solution if we aim at engaging with constitutional practice and not limiting ourselves to describing how things are. So we need a European constitutional theory capable of solving these central constitutional problems.

THE MAIN ARGUMENT OF THE BOOK: THE SYNTHETIC PATH TO THE EUROPEAN CONSTITUTION The purpose of this book is to shed light on the puzzles and riddles of European integration by providing a constitutional theory of European integration. That is the role and purpose of our theory of constitutional synthesis. Let us briefly explain what we mean by it. The theory is built on two key intuitions. The first is that the structural and substantive core of European constitutional law was composed of and to a large extent keeps on being composed of the common constitutional law of the member states. The establishment of the European Communities was thus akin to a foundational moment; but contrary to what is the case in a revolutionary constitutional tradition (such as those of the French or the Italian), the constitution of the Union was not written by we the European people but was defined by implicit reference to the six national constitutions of the founding member states. In that way, the French, German, Italian, Dutch, Belgian, and Luxembourgian constitutions were seconded to the role of being part of the constitutional collective of Europe. National constitutions started living a “double constitutional life.” They combined their old role as national constitutions and their


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Introduction

new role as part of the collective supranational constitution.19 Our second key intuition is that the foundation of the European Communities resulted in the creation of bits and pieces of the supranational institutional structure, a structure that was superimposed on the national institutional structures without aiming at a hierarchical structure or even a clear-cut division of labor by reference to competences. Because there had not been many institutional structures at the supranational level (with the exception of the League of Nations to the extent that it was basically a European institution), there were good reasons to limit the initial effort to the fundamental elements of the structure. The institutional structure was then to be progressively fleshed out (with different national institutional traditions and cultures competing to shape the new institutions) and completed. The peculiar constitutional pluralism resulting from combining one single constitutional law (originally merely the regulatory ideal of a common constitutional law) with a pluralist institutional structure was unavoidable if the path to a supranational democratic constitution was not to be mediated by a revolutionary constitution-making act (and Europeans were not interested in waiting until constitutional conventions would eventually and gradually emerge to organize their life in common). The theory of constitutional synthesis takes seriously the distinct fact of Europe, namely that the Union is a constitutional union of already established constitutional states. First, the synthetic characterization of European constitutional law clarifies the central role played by national constitutions in the process of European integration. It not only focuses our attention on the integration mandates contained in five out of the six constitutions of the founding member states (forged through national constitution makers recognizing in the immediate postwar period that constitutional democracy in one country was inherently unstable), it also stresses the continuity—and similarity in identity—between the national and the supranational fundamental law. Second, constitutional synthesis is indeed a process through which national constitutions came together without losing their specific constitutional identity; constitutional synthesis is thus normative synthesis, the synthesis of constitutional norms. Third, the pluralistic institutional anchoring of the process of normative synthesis was the ultimate guarantee of the European Union’s basis on democratic legitimacy. The collective of member states represented the ultimate source of democratic legitimacy for the whole edifice. Fourth, the Union’s pluralistic insitutional anchoring stems from the number and diversity of member states (with diversity increasing as new members are added). The Union-level institutions also embody some of this diversity through complex patterns of replication and adaptation.20 But the theory of constitutional synthesis does more than clarify the regulatory ideal that underpins European constitutional law (the common


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constitutional law, or in the jargon of the European Court of Justice, the common constitutional traditions). It also gives an account of the nature of the process of integration through constitutional law that has unfolded after the establishment of the Union. Indeed, constitutional synthesis unleashes twin processes of constitutionalization, in the sense of rendering explicit the constitutional nature of the polity and of its legal order, and in the sense of of fleshing out the concrete normative contents of the regulatory ideal of the common constitutional law—processes that go hand in hand with the progressive institutional affirmation and completion of the Union. This largely corresponds, as we argue in chapter 2 and show in chapter 3, with the first three decades of the European Union, where both legislatively, jurisprudentially, and institutionally, the key foundations of the European Union were established. And as we also explain in chapter 2, the intrinsic legitimacy limits of synthesis coupled with its vulnerability to external shocks and internal tensions go a long way to account for the many attempts at fundamental reform since 1979, what we label in chapter 3 as the “long constitutional season” of the European Union. The synthetic vocation of the European Union and of its legal order helps to clarify the legitimacy puzzle of the Union, and indeed the legal riddles that we have referred to above. Constitutional synthesis reveals the extent to which there is legal and political continuity between the member states and the European Union. The European legal order is not only derived from the member states, it is to a large extent made up of national legal norms. Or, to put it differently, it is not only the case that national constitutions authorize and mandate integration but also that the components that make up the European legal order (European Community norms) are components of national legal orders that have been transferred to the European level. This goes hand in hand with a transfer of democratic legitimacy from national constitutions to the European Union, insofar as the European constitution keeps on reflecting national constitutional norms. The latter is not to be taken for granted precisely because of the very constitutional dynamics to which synthesis is prone, and in particular, with the specific pluralistic traits in European constitutional law resulting from the combination of the regulatory ideal of one single constitutional law with the persistence of separate national institutional structures and constitutional norms. Synthesis is thus not only very fragile when external shocks hit, but it also faces internal limitations, including outright resistance fed by the integration dynamics. So, to put it briefly, synthesis is not only fragile, it is also self-subversive, to the extent that its success is bound to unleash dynamics that may stymie or even rein in the process of synthesis. The core of the book sets out this theory in detail and applies it so as to make sense of the Union’s constitutional development, by fleshing out a


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constitutional narrative of the unfolding of European integration; by offering a constitutional interpretation of the Laeken and Lisbon processes; by solving some of the key problems in European constitutional practice (indeed, by providing answers to the political puzzles and the legal riddles that we have referred to in the first section of this introduction); and by drawing a comparison between European and Canadian constitutional history. Canada seems to us a polity with clear constitutional synthetic traits. Reconstructing its constitutional development from a synthetic standpoint allows us to test the generalizability of our constitutional theory and also to draw Canadian lessons for European integration.

THE STATUS OF THE THEORY OF CONSTITUTIONAL SYNTHESIS Constitutional synthesis provides a distinctive constitutional narrative that makes sense of the most vexed political and legal problems in European integration. To this end, three clarifications are due. The first point to clarify is that constitutional synthesis is an interpretive or hermeneutic theory. We are interested in offering the best possible interpretation and account of European constitutional practice, understood as a social practice. We are thus concerned with purposes and not with empirical causalities or intentions. In the very terms of Ronald Dworkin: An interpretation is by nature the report of a purpose; it proposes a way of seeing what is interpreted—a social practice or tradition as much as a text or painting—as if they were the product of a decision to pursue one set of themes or visions or purposes, one “point” rather than another. This structure is required of an interpretation even when the material to be interpreted is a social practice, even when there is no historical author whose historical mind can be plumbed.21

We are naturally interested in legal norms, political decisions, and judicial discourses. But we are not interested in the authenticity or motivation of individual actors. We draw from such raw materials the point of the practice itself. Quoting Dworkin again, we analyze and seek to understand “the claims and arguments participants make, licensed and encouraged by the practice [insofar as this is] about what it means, not what they mean.”22 To put it differently, we are trying to find the best account of practices. This sets limits to interpretation, however. The best account is an account that we could reasonably assume the actors at the time would have been able to recognize and endorse had they formulated or explicitly articulated a critical theory of what they were doing. Something which, and here is the rub, they did not do.


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Introduction

13

And for two good reasons. First, they were too occupied with finding institutional and policy means of avoiding a third war in one generation, so theory was (rightly) regarded as a secondary enterprise. Second, there was something genuinely new about the constitutional route that had to be taken. Applying the apt words of one constitutional historian of the American colonies to the European context, postwar Europeans faced “problems that were repeatedly experienced and at least partially grasped but by no means fully defined and certainly not resolved to the mutual satisfaction of all concerned parties.”23 In other words, there is a built-in assumption that certain readings of this experience will have been more compelling, more likely for them to want to accept than other readings. Indeed, even if neither key political actors nor citizens had a clear European constitutional theory at hand, their forays into theory are, however, congenial to synthesis. Robert Schuman had a try at defining the Coal and Steel Community as neither an international organization nor a state, but a supranational community (a term that appeared in article 9 of the Treaty of the Coal and Steel Community).24 That must be properly seen as an attempt at moving beyond the sui generis characterization into a constitutional theory, especially given that it was made in the prologue to one of the most astute expositions of the law of the ECSC. It was still a failed attempt. Because the supranational theory was not anchored in a public philosophy of integration, the term soon became the last refuge of the sui generis scoundrel.25 But the key insight was congenial to constitutional synthesis, namely finding a distinct constitutional path to the establishment of a democratic constitution. The same could be said about expressions such as “ever closer Union” and even more so of the key concept of “constitutional traditions common to the member states.” The second clarification pertains to our role as analysts. We relate to European constitutional practice not merely in our capacity as external observers, but also because we cannot but be participants in the practice itself. European integration is largely mediated by law; it is integration through law, to use the late Cappelletti’s phrase.26 So the moment in which we engage with this practice, the moment in which we start considering, even from our armchairs and with phlegmatic detachment, problems of constitutional adjudication, we cannot regard ourselves as mere external observers. Any argument about what law means implies jumping into the shoes of the judge, no matter how amateurishly this is done. This is an old point in legal theory, which, it is worth noticing, was not clarified by natural lawyers but by legal positivists.27 In that sense our inclusion in the practice aids us in the interpretation; it also conditions and constrains the interpretation because we as interpreters necessarily rely on many of the same aspects in making our interpretation. The focus on law and legal argumentation also entails, as we have already hinted at, a focus on constitutional discourse and decisions which may be few in number (and might seem an odd object of study


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Introduction

from a purely empirical perspective) but are defining in structural terms. This explains, for example, the object and contents of chapter 5. Conflicts over the proper interpretation of European constitutional law that pit the ECJ against national constitutional courts may be few and far between. Still, the way in which they are settled sets the background constitutional theory according to which the whole of European constitutional practice proceeds. This is not really structurally different from national constitutional practice. The third point of clarification pertains to the fact that the theory of constitutional synthesis presented in this chapter has been developed on the basis of the European experience. The theory has been developed to make theoretical sense of the specifics of the European experience, notably the development of a constitutional union within a context of already existing and persisting constitutional states. Their distinct institutional makeups and the conceptions of appropriate institutional organizing that inform them figure centrally in the story.28 But even if the theory is our attempt to make sense of European constitutional history, it seems to us that it may have wider purchase, among other things because Europeans in 1951 and 1957, similarly to the French in 1789, were starting a social practice that has wider meaning than a purely local one. Thus, in chapter 6 we examine whether constitutional synthesis can be of use in reconstructing Canadian constitutional history. After having demonstrated the merits of this, we discern lessons from the Canadian experience of relevance to the European Union. In brief, even if constitutional synthesis has been crafted with reference to the European experience (in hermeneutic spirit, going back and forth between European constitutional practice and theory), it seems to us that the theory is not Eurocentric, exclusively applicable to Europe. As a consequence, we locate ourselves within the broader ambit of legal and politico-philosophical discourses, more specifically in the space that was once characteristically occupied by the classical general theory of law and state.29 This perspective, which was so prominent earlier at the national level, now has inadequate traction at both the national and the European level. However, for the reasons we have already rehearsed, it is most needed now.

THE PLAN OF THE BOOK The European Union is in need of a constitutional theory, which again hinges on proper analytical clarification. This is what we proceed to do in chapter 1. In particular, it seems to us that a considerable amount of false discussion and a fair amount of talking past one another results from an inadequate delineation of the different facets of the concept of constitution. This is why we (1) distinguish among three different conceptions of consti-


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15

tution (formal, material, and normative) and determine in which sense the Union has or does not have a constitution; (2) distinguish between different types of constitutional dynamics (constitution making, transformative constitutionalization, and simple constitutionalization); and (3) discern the two main combinations of constitutional dynamics constituting the democratic path to write a national constitution (revolutionary and evolutionary constitutionalism). Analytical distinctions are much needed but are only auxiliaries to the task of providing a constitutional theory of the European constitution. Such a theory is set out in detail in chapter 2. As we have argued in this introduction, the key components of the theory are the regulative ideal of a common constitutional law, of a constitution made up of the collective of national constitutions, and the understanding that normative synthesis can go hand in hand with, and even be facilitated by, a pluralistic institutional structure. This theory is adapted to a process of constitution making that unfolds through states coming together but not necessarily resulting in a new state being forged. The theory therefore needs a different spatial metaphor than the sovereign state. We find that the European legal-constitutional dimension is not set up as a hierarchical state but is better imagined as a less hierarchical common constitutional “field,” where all national constitutions become structurally linked to the European construct. This structure comes with a specific set of preconditions for constitutional integration and inbuilt limits and constraints on constitutional integration. With these elements spelled out, we have a theory that permits us to make sense of the apparently contradictory nature of the European Union and its political order, unitary in its legal aspirations, pluralistic in its institutional structure. We demonstrate that by both reconstructing core components in the history of European constitutional law and tackling the main constitutional problems in European legal and political discourses. Chapter 3 deals with the first fifty years of integration, from the Treaty of Paris to the Treaty of Nice. We distinguish a “synthetic constitutional moment” that marks the beginning proper of the European constitutional process and corresponds to the signature of the three founding treaties of the European Union. A second phase of constitutionalization with limited constitutional politics ensued. This again was superseded by a third phase that corresponds to the long constitutional season of European integration. The “raising of the constitutional card” in Laeken (2001) marks the beginning of the most recent stage of this long constitutional season. In chapter 4 we consider in more detail the Laeken (2001–2005) and Lisbon (2007–2009) processes and show how the theory of constitutional synthesis makes sense both of the apparent U-turn in constitution-symbolic terms and of the substantive similarity between the two instances.


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Introduction

A critical test of the theory as it is set out is to demonstrate how and to what extent it provides a sounder guidance to legal practice than that on offer by existing constitutional theories. In chapter 5 we outline and discuss the theory’s ability to supply compelling accounts of the genesis and primacy riddles that underlie European constitutional conflicts. Then, in chapter 6, we explore whether the theory of constitutional synthesis can be extended to Canada and what broader lessons we can discern from this for our European constitutional theory. We sustain in that chapter that Canada is another and in some ways a comparable instance of a gradual process of constitutional transfer (from the U.K. colonial mother to the Dominion of Canada) with clear synthetic traits. The final chapter holds the conclusion.


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1 Introducing the Constitutional Tool Kit

Since talk is so cheap, and human nature so complex, political leaders can never hope for constitutional credibility merely by saying that they represent one of those rare movements through which citizens have hammered out a specially considered judgment on America’s future. Instead, if they want to make this claim, they must earn it—by subjecting themselves to a specially rigorous set of public tests as their higher lawmaking pretensions are signalled, deliberated upon, and codified. —Bruce Ackerman, We the People

We have seen from the Introduction that the European Union’s legal order is a strange contraption that is notoriously difficult to grasp. In this chapter, we start to untangle the confusion by introducing some important distinctions that help to clarify in what sense the European Union can be analyzed from a constitutional perspective. This undertaking makes clear that a proper understanding of Community law and politics requires a full-fledged constitutional theory. We present this theory of constitutional synthesis in the next chapter (chapter 2) and then proceed to apply it to the reconstruction and assessment of European constitutional practice (chapters 3 and 4). After that, we show that this theory has analytical purchase beyond Europe through applying it to the case of Canada (chapter 6). In this chapter, we first distinguish between three different conceptions of constitution (formal, material, and normative) and, in so doing, make clear that European constitutional debates are fundamentally speaking about the normative European constitution, about how the well-established material constitutional norms of the Union should be related to constitutional form, and how that relationship should be procedurally affirmed. 17


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Chapter 1

Second, we introduce a set of analytical distinctions that help us to clarify the distinctive features of European constitutional dynamics. This requires distinguishing among three sets of constitutional dynamics: radical transformation, a more gradual (albeit transformative) pattern of constitutionalization, and simple constitutionalization, or the working out of constitutional norms as they are applied in constitutional practice. This distinction provides us with a coherent interpretive framework that applies to the entire history of European constitutional law. Third, in order to situate properly the European constitutional experience in the broader framework of comparative constitutionalism, we consider how the three constitutional dynamics just mentioned fit with the two main democratic constitutional traditions, namely revolutionary and evolutionary constitutionalism. Does each constitutional tradition embody one single, distinct constitutional dynamic, or is it rather a combination of several? We show that both traditions exhibit mixes. With this in mind, it is easier to see that there is a particular mix that can capture the characteristic features of the European Union’s democratic constitutional path (through constitutional synthesis). Before we start considering this threefold set of analytical tools, it is necessary to stress that we are not so much breaking new ground as finding new uses for rather old concepts and tools. The analytical distinctions we propose in this chapter are characteristic of constitutional theory, as traditionally developed by the general theory of law and state.1 The concepts we suggest render clear what a constitution is, what the different constitutional dynamics are, and how the constitution is to be democratically established. Our main point is that these analytical distinctions are also needed when developing a European constitutional theory, that they make up essential components of the constitutional vocabulary used to depict the constitution of the European Union—across and beyond national constitutional borders. This is not infrequently challenged by claiming that the European Union is a radically new form of polity (and Community law a radically new form of legal order); consequently, there is a need of a radically new political and legal vocabulary. No matter how aesthetically pleasing the sui generis characterization of the European Union may prove to be, it is misleading. It fails to pay sufficient attention to the actual constitutional law of the European Union, to the close connection between Community law and national constitutional law, to which we return in extenso in chapters 2 and 3, where we defend the claim that the Union is a synthetic polity, a constitutional union of already established constitutional states. Furthermore, the sui generis theories2 have failed to deliver a distinct, convincing, and widely accepted constitutional vocabulary that can render clear how and in what sense Community law is unique. On this they cannot deliver. Starting from the notion of the Union as an entity sui generis is an impossible point of departure for a seri-


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Introducing the Constitutional Tool Kit

19

ous attempt at building a constitutional vocabulary. This notion also provides intellectual cover for the constitutional confusion we now find ourselves in.3 If the sui generis position appears credible, it is because it starts from a correct observation. The Union is not (at least not yet, and perhaps will never be) a full-blown state. And the Union has not followed the constitutional paths characteristically transited by states. But the Union is made up of constitutional states. This means that we have to rescue the vocabulary of democratic constitutionalism—but in a shape that has been disentangled from particular national constitutional traditions. Thus, our insistence on the need to retain the language of democratic constitutionalism does not amount to an uncritical embrace of the “statecentric” view of the political world, an intellectual outlook with a certain propensity for methodological nationalism.4 Present-day constitutional categories are then also infected with the many peculiarities and specificities that come from having exclusively served national constitutional histories and circumstances, literally for centuries (and implicitly deterred constitutional debates across national cultures). Democratic constitutionalism can serve a broader repertoire of political formations. But to ensure this we need to detach democratic constitutionalism from idiosyncratic factors at the national level.

THREE CONCEPTIONS OF THE CONSTITUTION: FORMAL, MATERIAL, AND NORMATIVE The first and most damaging confusion in European constitutional practice and debate concerns the very concept of “constitution.” Consider the following. The (relatively) innovative decision to include a representative convention in the Laeken reform process (2001–2005, and described in detail in chapter 4) was justified on the notion that Europe needed a constitution that “deserved its name.”5 The political argument was that the mounting doubts concerning the legitimacy of the Union connected in one way or the other to the lack of a European constitution. At the same time, jurists and lawyers had been discussing the constitution of the European Union for a long time,6 assuming throughout that it was already in existence! National constitutional lawyers have been slightly more skeptical and have sought to demote the fundamental law of the Union to a pact that gave rise to a Bund or an association of states. So from this one may surmise that the Union may have a constitution, but understood in a rather generic way, and very different from what we associate with a national constitution.7 What is it made up of? Are the treaties a constitution or not? If so, in what sense? Is European constitutional law enshrined in full in the treaties? If so, how could the European Court of Justice take a whole series of unwritten principles as fundamental principles of Community law (after all, direct effect,


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Chapter 1

supremacy, preemption, the protection of fundamental rights and the present understanding of economic freedoms are not written in the treaties in an explicit form)? This is only a sample of the central items in this confusing debate, but it should make abundantly clear that it is far from settled in European constitutional discourse whether the European Union has a constitution, and if so, what its contents are and how it should be constructed and applied. This confusion affects and plagues both constitutional reform and constitutional adjudication. To avoid such a ceremony of confusions and to refocus discussion on those matters where genuine disagreement persists, it is necessary to disaggregate the notion of constitution so as to discern the relevant different conceptions. Below we differentiate between (a) the formal, (b) the material, and (c) the normative conceptions of constitution. We further consider the proper relationship among the three conceptions from the standpoint of the key variant of the normative conception of “constitution,” the democratic one.

Three Conceptions of the European Constitution The Formal Conception of the Constitution The formal conception of the constitution refers to the set of legal norms contained in a document (or compilation of documents) that is designed as the constitution or the fundamental law in social practice.8 The formal conception stresses three basic features of the constitution: (a) its written character, (b) its singularity (one could say in rather theological terms that there is no constitution but the constitution), and (c) its being supported by a consistent and widespread social practice. Thus the formal constitution is necessarily a single, written, and socially recognized constitution. First, the formal conception of the constitution refers to one single set of legal norms. It may well be the case (and indeed is the case in several constitutional traditions) that the whole array of constitutional norms is not produced in one stroke and/or may be contained in different legal or political documents. This is indeed the case in the better-known constitutional traditions: the French and the American.9 But it is a contingent factor that is not essential to the definition of the constitution in a formal sense. The singularity of the constitution, its being unique, une et indivisible, does not entail that it has to be produced in one piece. Instead it refers to the presence of a general agreement that the document or canon of documents that make up the said constitution is actually referred to as the constitution. The constitution has to be made one in the social practice of referring to the constitutional canon or constitutional book as the constitution. Second, the idea of a formal constitution is intrinsically linked to the idea of a written constitution. Indeed, the book or pamphlet in which the text of


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the constitution is contained is not only a fundamental text for lawyers but is the one single legal piece that most citizens will have, will know about, and will be more likely to have read.10 Modernity came hand in hand with the self-organization of society, with its emancipation from the heteronomy of a God-given or nature-determined natural law.11 There are good reasons a consciously made law cannot but become a written law.12 When the self-evident nature of common action norms can no longer simply be assumed, and law as positive law becomes the main means of integration, law can integrate society effectively only if it is laid down in advance so that its subjects can take cognizance of the content of legal norms. This connection between formal and written law is indeed closely related to Fuller’s claim about the inner morality of modern law.13 Third, the actual contents of the written constitution may and do vary from one country to another, and from one period of time to another. What is essential is that in social practice, a certain book is identified as the constitution. Hans Kelsen added a further characteristic to the written constitution, that of its stability resulting from its rigidity, from the actual difficulty of getting the constitution reformed. But that is not necessarily an essential part of the social practice of characterizing a document or a collection of documents as the constitution. In fact, it seems to us that it is properly to be discussed within the normative conception of the constitution (indeed, it can be argued to be a necessary part of a democratic constitution).14 Most member states of the European Union have a formal constitution. The only country that is widely recognized to lack one is the United Kingdom. But while it is part of British constitutional practice to deny that the country has a formal constitution, it is not so obvious that there is not an implicit social practice that identifies certain key legal texts as containing the fundamental norms within the British legal order. The well-established canon of constitutional documents include the Magna Carta, the Habeas Corpus Act, the Bill of Rights, the Act of Union with Scotland, the Reform Act of 1832, the Parliament Act of 1911, the European Communities Act, and the U.K. Human Rights Act.15 Having said that, it is far from obvious whether this makes of them a constitution in any normative sense, given that at least pro forma, British constitutional practice seems to revolve around the supremacy of Parliament and thus of statutes. We will come back to this in “Constitutional Dynamics,” later in this chapter. Be that as it may, we can be certain that there is no obvious social practice concerning which text or set of texts is to be regarded as forming the constitution of the European Union. Not only is there no text that is usually referred to as the constitution of the European Union (a situation similar in that regard to that of the United Kingdom), but even more, there is no implicit social practice, not even among lawyers, concerning which


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Chapter 1

texts should be regarded as the canon of European constitutional law. In particular, there is no clear and consistent tendency whereby European and national courts identify the founding treaties of the Communities with the constitution of the European Union—beyond that of a very general formulation. For one, the conception of constitution at stake is clearly not the same from court to court or even from period to period. While the European Court of Justice appears adamant about characterizing the treaties as the constitution of the Union, national courts seem to dilute the concept and refer to a constitution of sorts, different from the understanding of formal constitution in national constitutional practice.16 Further, the treaties contain norms that may hardly be characterized as constitutional while at the same time do not include some of the norms that are characterized as constitutional in European constitutional practice.17 The latter was the case for a considerable time concerning the principle of protection of fundamental rights.18 Thus, the European Union does not have a formal constitution. This is so to the extent that there is no single document or compilation of documents that social practice refers to as the constitution of the European Union. The Material Constitution The material conception of the constitution refers to the common action norms that are considered as basic or fundamental in the integration of the political community, according to actual social practice. So while both the formal and the material conceptions of the constitution are essentially sociological ones, in the sense that they make reference to a social practice as a defining factor and as a basic criterion, the material constitution considers not what any given social practice designates as the constitution, but instead derives those norms that can be characterized as constitutional from actual patterns of behavior. The material conception of the constitution is more or less widely encompassing, depending on what type of norms are regarded as relevant. Indeed, the more encompassing sociological version of the material conception of constitution comes close to equating all social norms with “the” constitution of society. This may also be the way to construct Aristotle’s understanding of constitution in Politics,19 or Rousseau’s in The Social Contract.20 A determining variant of the material constitution is the legal one, which narrows down the concept by establishing two additional criteria.21 First, the material constitution is composed of legal norms and not of the norms of other normative orders (such as positive morality, rules of etiquette, etc.). Second, the fundamental legal norms are those that concern the institutional structure, the decision-making processes, and the basic entitlements that the subjects of law acknowledge to one another.


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The material conception of the constitution in its wider sense is closely related either to a premodern characterization of law as a means of social integration (as still a heteronomous order in Aristotle) or to the problématique of the relationship between the constitution and the whole sociopolitical structure (indeed, Rousseau’s definition of the constitution anticipates the discussion of the need for supporting constitutional culture to make legal constitutional norms capable of actually providing normative guidance to actual action). The material conception of the constitution, in its more narrow legal sense, is of essence when there is no widespread social practice of characterizing a set of norms as the constitution (as was the case and to a large extent continues to be the case in the United Kingdom) or when there is a major discrepancy between the formal constitution and the norms that in actual social practice are acknowledged as fundamental or constitutional. Critics of liberal formalism further developed the potential of the material conception as a means of showing the inconsistency between form and substance. A major influential exposition of such an approach is found in Ferdinand Lassalle’s What Is a Constitution? In his famous speech, the German leftwing politician openly criticized the formal Bismarckian22 understanding of the constitution.23 This text clearly echoed the magisterial move made by Karl Marx on The Jewish Question.24 Still, Lassalle was more explicit in endorsing the idea of a political constitution than Marx was. It goes without saying that all member states of the European Union have a material constitution in the legal sense. The same can be said about the European Union. Indeed, the claim that lawyers make that the treaties are a constitution is effectively the assertion that the treaties contain the key elements of the material constitution of the European Union, which can be further reconstructed by reference to national constitutions, key decisions by the Community legislature, and courts. This material constitution is the key object of treatises on European constitutional law.25 Thus, the European Union has a material constitution. In legal terms, this is so both in a structural and in a substantive sense. European law has constituted an autonomous legal order from its very inception to the extent that it contained a distinct and proper rule of recognition, that is, to the extent that the metanorms, or norms which grounded the validity of European norms, were not external but internal to the European legal order. Moreover, the European Court of Justice has refined the substantive constitution of the Communities by means of defining the parameter of constitutionality, of both secondary Community legislation and of national legislation that affects the scope of the Community’s competences. As we will see in chapter 3, preliminary requests from ordinary national courts and judges gave the court the chance to develop a peculiar kind of judicial review of the European constitutionality of national norms.


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Chapter 1

The Normative Conception of the Constitution The normative conception of the constitution refers to the array of legal norms that is characterized by a given set of normative properties. While both the formal and the material conceptions of the constitution identify constitutional norms by reference to social practice, the normative conception of the constitution is an essentially normative yardstick, that is, a counterfactual yardstick. The paradigmatic example of such a normative characterization of the constitution is the famous article 16 of the Declaration of the Rights of Man and of the Citizen, 1789,26 which says: “Any society in which the protection of rights is not guaranteed and the separation of powers is not established, has no Constitution.”27 In defining constitution by reference to “ideal” (in the sense of counterfactual) standards (which, in the concrete case of the Declaration of the Rights of Man and of the Citizen, were “the protection of rights” and “the separation of powers”), article 16 rejects a purely sociological definition of constitution. It turns the concept of constitution into a normative weapon, which allows us to deny constitutional status to norms that are widely recognized in social practice as the formal constitution or that are followed uncritically as the material constitution of the political community.28 There are as many potential normative conceptions of the constitution as there are normative theories, each of which comes with a distinct conception of the constitution and of constitutional norms. Consequently, a delineation of the relevant properties that make a norm constitutional depends on the concrete normative theory that is relied on. Having said that, two main families of normative conceptions can be distinguished along the usual procedural versus substantive distinction of normative theories. A procedural normative theory refers to the qualities of the process through which the norms were agreed (e.g., they were given by a wise legislator or they were the product of a highly democratic constitution-making process), whereas a substantive normative theory points to the intrinsic normative qualities of the said norms (e.g., they correspond to a thick conception of the good). In addition, among the procedural normative conceptions of the constitution, the democratic conception of constitution warrants special attention for several reasons. First, most constitutional states at least claim to be democratic, and consequently raise the claim that their material constitution (and if present, the formal one) is also a democratic one in a normative sense. But raising a claim is not the same as redeeming it. Second, all member states of the European Union do indeed raise a claim to have a democratic constitution, or to be more precise, to have become well formed constitutional states through a democratic or democratizing path. Third, the European Union itself claims to be democratic. Furthermore, democ-


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racy is a precondition for membership; each state entering the Union must be a democratic constitutional state.29 Now, the democratic principle of political legitimacy requires that all those affected by common action norms should have the right to participate in the deliberation and the decision making of the said norms.30 In this sense, the democratic principle is clearly associated with the idea of free political will formation. This intuition seems apparently at odds with the setting of specific constraints to the process through which common action norms are made or to the contents of the said norms. But democratic constitutionalism is not an oxymoron. Democracy and constitutionalism can be reinterpreted as two sides of the same coin.31 In a first step, one can surmise that from the very idea of a political community in which all citizens want to acknowledge and respect one another as holders of equal political rights, it follows logically that they should mutually acknowledge one another certain rights. Such rights can be seen as constituting the bedrock of democracy; they are needed in order to configure and to bootstrap democracy.32 They can be said to refer to thin substance, to the core substantive values, which do not need to be justified in a democratic manner but must be spelled out through democratic procedures.33 These basic rights are the ground under laws’ feet, to paraphrase Salman Rushdie. In a second step, we are led to the principle of legality, which is informed by the idea of democratic representation. The principle of legality implies that common action norms should possess the characteristics of democratic laws. However, the principle of representation, even if understood as democratic representation, needs to be properly circumscribed to avoid the risk of emptying out democracy.34 Thus, in a third step, the principle of legality, contrary to what tends to be assumed, should not be regarded as monolithic but as complex. This is required in order to correct for, so to say, the principle of democratic representation. At a first stage, one should distinguish, for democratic reasons, between the constitution and the laws. If one assumes a societal structure in which individuals have the right (but not a compulsory duty) to participate in the deliberation and decision making of common action norms, one sees the need for a clear division of standards of democratic legitimacy that imbue the different sets of laws. Those action norms that meet with the highest standards of democratic legitimacy, due to the fact that they were forged through specially demanding processes of deliberation and decision making, should be defined as the higher law of the land. They should be seen as laying the basic ground for the legal system to which they belong. These norms are the constitution. Next to them, one will find laws that meet with the minimum democratic requirements. Those laws will regularly be approved by the representatives of the people and accepted


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Chapter 1

as binding laws, even if the election of the representatives has not been the result of the expression of the will of all individuals (because they do not participate, for example). When seen in such a light, the democratic conception of the constitution defines as constitutional those norms that meet with the highest standards of democratic legitimacy, those regarding which the processes of deliberation and decision making are such that citizens can clearly see themselves as authors of the said norms. From this, it seems quite apparent that the Union does not have a constitution in a normative sense. Even if we will show how the constitutional reading of Union law did result quite rapidly in the threefold division of labor between different types of norms (cf. chapter 3), the norms that are said to make up the material constitution of the Union are not obviously recognized as the ones with the highest democratic legitimacy. As we will see, this is especially the case when an economic freedom (for example, freedom of establishment) trumps a fundamental national constitutional right, or to be more precise, when the right in question (for example, the right to strike) is formulated at the supranational level in a way that openly differs from national constitutional practice.35 The unease with which national constitutional courts have confronted the conflict between Community and national norms does indeed derive from the obvious fact that the norms that are supposed to prevail (Community norms) do not obviously have a higher democratic legitimacy than the national ones with which they are in conflict. In the absence of an explicit “constitutional moment” that infuses the treaties with the highest democratic legitimacy, and in the absence of an (evolutionary) development of loyalty to European institutions and laws, the claim that the Union has a normative constitution remains extremely problematic. Relationship among the Three Conceptions of the Constitution The three conceptions need to be kept separate to avoid confusion. This certainly applies to the European case, where we need to treat these as analytically separate in order to clarify positions and to disentangle complex issues. Having said that, it is also important to underline that there are normative connections among the three conceptions. Different normative conceptions of the constitution presuppose different relationships between the formal and the material constitution. In particular, the democratic conception of the constitution presupposes a dual relationship between the formal and the material constitution. First, the democratic legitimacy of the constitution requires a basic convergence or overlap between the formal and the material constitution. Or, what is the same, the material constitution should be reflected in the for-


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mal constitution. This is so because the only way to reconcile integration through constitutional law (and thus the effectiveness of the constitution in integrating society) and democratic decision making over the structural and substantive contents of the constitution is when the formal and the material constitution are essentially the same. This entails not only the existence of proper procedures for the amendment of the constitution (if there is a clear will to change actual constitutional norms that can be properly reflected in the written constitution),36 but also that the constitution have a certain rigidity so that it cannot be amended simply by adopting a new constitutional practice.37 Quite obviously, the key problem here is to find the proper balance between amendability and rigidity. Second, and as already indicated, the very existence of a formal rendering of the constitution is necessary for ensuring its effectiveness. Once we transcend the classical conception of natural law and assume the “manmade” character of at least most of the legal norms, knowledge of the constitutional norms can be properly ensured only by giving written form to the constitution. Consequently, the two moves of writing the law and making it coherent with reference to one single “master” legal document make up necessary preconditions for the democratic establishment of law. It is only when we know what the law is that we can change or amend the existing law. Assessment of the European Union Through applying the threefold distinction of constitution to the EU we find that (1) the European Union has a constitution in a material sense; (2) the European Union has at most bits and pieces of a formal constitution (especially after the entry into force of the Treaty of Lisbon, which makes the Treaty of European Union plus the Charter of Fundamental Rights visible elements of the formal constitution of the Union); and (3) the European Union does not seem to have a constitution in a normative-democratic sense because the norms that make up the Union’s material constitution (and are partially reflected in the bits and pieces that make up its incomplete formal constitution) seem to be lacking in democratic legitimacy. Establishing this helps us to avoid a good deal of the usual confusions in European constitutional debate so as to refocus the debate on the real point of disagreement, which pertains to whether the Union does or does not have a normative constitution and the consequences to be derived from that. Indeed, the debate on the European constitution is essentially a debate about the proper shape of the normative constitution of the European Union—whether it should be a democratic constitution (in which case, democratic principles, properly adapted and taking into account the nature


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of the Union, do apply) or whether it should be a normatively justified constitution by reference to normative principles other than democratic ones. It is only if we reconstruct the debates from that standpoint that questions about the contents of the European material constitution or about the constitutional form make sense. They are to be seen as resulting from the normative vision regarding the relationship between the different conceptions of the constitution, as we sustained earlier in the chapter.

CONSTITUTIONAL DYNAMICS Another confusion that mars European constitutional discourse concerns the relationship between the static and the dynamic aspects of constitution. It is hardly surprising that European constitutional discourse has failed to bring clarity to the dual character of the constitution as both a static set of structural and substantive norms that frame the legal order and thus play a decisive role in social integration, and as a dynamic process of transformation of both the static contents of constitutional law and social reality to make it comply with the normative requirements of the constitution. When there is no clear and agreed-upon conception of the polity that the constitution is to serve, it is much more difficult to discern whether something is a major transformation or rather a mere continuation of the existing arrangement. A good illustration of this is found in the debate on the similarity between the Constitutional Treaty and the Lisbon Treaty (see also chapter 4 for more on this). Political and legal commentators have almost exclusively focused on the substantive contents of the two texts, which are quite similar. The debate seems confined to the question of whether they are sufficiently similar to substantiate the claim that the Lisbon Treaty is the Constitutional Treaty by other means. However, if the constitutional means are different, the resulting text must also be different, because the procedural dimension is essential to the status of the constitution. To get a better handle on this, we need a more nuanced conception of the relationship between stability and change. To that end, we propose a distinction among three different types of constitutional dynamics, which we label as constitutional transformation (whether in the form of constitution making or constitutional amendment); transformative constitutionalization (of which the outstanding example is the emergence of constitutional conventions); and simple constitutionalization (the paradigmatic forms of which are the fleshing out of the constitution by the legislature or constitutional courts). The dynamic dimension is unavoidable given the mutability of human knowledge and the character of the problems involved. It is intrinsic to the very idea of a democratic constitution. It requires special attention if we are to capture the distinctive traits of Community law (in terms of both its static and its dynamic character).


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First, any constitution aspires to be a living constitution, in the sense of offering normative guidance to conflict solution and action coordination in the political community it applies to.38 Still, because constitutional norms are human creations, it is unavoidable that they will have to be completed (as new problems emerge that were not thought of, imagined, or taken seriously before) and that they will have to be clarified when a certain degree of ambivalence in normative terms or lack of clear-headedness renders the fundamental norm unclear or confused. Second, the social integrative role of constitutions in modern legal orders is crucially dependent on constitutional norms being formulated at a sufficient level of generality and abstractness. Indeed, the existential crisis of the Rechtsstaat in interwar Europe was closely related to the strategic manipulation of statutes and ordinary laws. General and abstract constitutional norms play a key role in recreating a common political culture that is capable of not only eliciting allegiance, but also of mediating what otherwise are naked interest conflicts.39 This makes the application of the constitution to specific concrete cases dependent on the fleshing out of the specific implications of constitutional norms through adequate constitutional argumentation. Third, getting a clear handle on constitutional dynamics is essential to understand the character and development of Community law, characterized as it is by a tension between the apparent international “grammar” of its founding documents and the constitutional “grammar” of the objectives assigned to the Communities in those very same texts. The Union is marked by constitutional and polity ambiguity. There is no clear answer to the question: What constitution for what European Union? Improving our understanding of constitutional dynamics will yield valuable insights also into the character of the polity that is being constructed. Furthermore, the social function and the legitimacy of the static constitution crucially depend on the procedural aspect of the constitution, on how constitutional norms are debated and decided upon (and thus eventually legitimized). That was indeed already considered when dealing with the democratic conception of the constitution, which, as we said, is essentially a procedural conception.

The Three Main Constitutional Dynamics: Constitution Making, Transformative Constitutionalization, and Simple Constitutionalization Constitution Making Constitution making refers to explicit and time-bound processes through which the material content of constitutional norms is established (constitution making sensu stricto) or, if already preexisting, is changed (constitutional amendment).


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Constitution making adheres to two central logics in the democratic constitutional tradition, namely, deliberation and decision making. Deliberation, both in strong and in general publics,40 stimulates inputs, fashioning, and vetting of proposals and forging of views, opinions, and stances, thus opening the process, whereas decision making ensures choice among alternatives and thus closure of the process. An adequate interplay between strong and general publics is essential for the legitimacy credentials of the constitution-making process to come to fruition. The structure of constitution making in the democratic constitutional tradition is rather well established and basically corresponds to a fivefold sequence:41 (1) Signalling. The constitutional impetus results from somebody (usually an institutional actor) claiming that there is a widespread social demand for writing a new constitution or amending the existing one. Signalling has an anticipatory character and is justified in the claim to articulate a generalized popular demand (the latter perhaps only crystallizing after the political initiative to signal a constitutional moment), the quality and legitimacy of which the process is set up to evaluate (2) The initial deliberative phase. The claim raised by the constitutional entrepreneurs, along with their constitutional platform and supporting arguments, are put to the test of public opinion. The claim is redeemed if citizens endorse it (for example, by a landslide electoral victory for the party or parties that stand for constitutional change and that flag the issue openly and prominently in their electoral manifestos). As the legitimacy of the claim is debated, the constitutional reform agenda becomes concretized and more detailed. The initial deliberative phase comes to an end either when the project is abandoned or when an institution decides to open up a constitution-making process. (3) The drafting phase. This consists of the institutionalized debate, during which the will to establish or reform the constitution is enshrined in a document or a text that contains the constitutional proposals. Typically, drafting is in the hands of a constitutional assembly (with direct popular sanction and explicitly designed to write a constitution). The original platform of constitutional reform is considered in depth, on the basis of the deliberations of the representative institution itself and on the input that comes from civil society, expressed in phase two, and that keeps on circulating from general to strong publics in this phase.42 Put broadly and schematically, the deliberations of the assembly follow the shape of a tract, that is, they start out very broadly—in terms of subject, and with reference to matters of principle—and as the process unfolds, bring these agreements to bear on more specific matters. In overarching terms, the process sees a shift from an initial logic of justification to a much stronger subsequent focus on the logic of application.43 The


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process clarifies basic principles as well as their practical-institutional manifestations and implications. The work of the assembly ends when a draft constitution is put forth. This reflects the consensus among the members of the assembly that they have managed to synthesize the citizens’ desire for constitutional change into a coherent will, in draft proposal form. (4) The agenda-settled deliberative phase. This consists of a wide debate on the draft constitutional proposal produced in the draft stage. The debate has to be focused on the overall merits of the draft constitution so that the final decision as to whether to endorse it or reject it can be properly made. Strong publics should be committed to spark debate in civil society, but quite obviously they cannot in themselves replace the legitimacy input stemming from actual deliberation in civil society. It goes without saying that there is a difference between fostering debate and co-opting civil society. The debate is carried further by general publics, organized ones in social movements, and unorganized ones. (5) The ratification phase. This phase consists of the final test of the existence of a coherent constitutional will in favor of the draft constitution. A proper form of consultation is required in order to determine what the common will is. The standard form of such a consultation is a referendum. However, it can take other forms, such as a parliamentary election, the campaign of which has been basically devoted to the constitutional draft (or, in exceptional cases, a special vote in the parliament preceded by widespread social debate can also be legitimate). At any rate, a proper and thorough previous deliberation must precede it. Transformative Constitutionalization Transformative constitutionalization refers both to (a) the processes through which a congeries of legal norms start to be constructed as forming the constitution of the polity (whether because law used not to be constructed as part of a constitutional system or because a territory emancipates itself from the sovereign control of a polity, as in the case of Canada, to which we return in chapter 6); and (b) the processes through which the substantive content of material constitutional norms changes in the absence of an explicit constitution-making process and decision.44 These two aspects of transformative constitutionalization should be kept analytically separate because the establishment of a constitution entails two rather different things, which in revolutionary constitutionalism are part of the same act, but not necessarily so in evolutionary constitutionalism, as we will see. Constitutionalizing a legal order entails: (a) structuring the legal system around the regulatory distinction between constitutional and infraconstitutional norms (thus distinguishing between different legal forces


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and hierarchical ranks); and (b) determining the substantive contents of constitutional norms. In the first case, we observe the gradual emergence of a distinction between different types of legal norms within the legal order, resulting in the characterization of constitutional norms as having a higher form of legal validity than ordinary statutes (and by implication, than any other valid legal norm within the said legal order). The typical case of “transformational constitutional establishment” is where social and judicial practice interprets the fundamental norms in the structuring of institutions and in the organization of social relationships in a constitutional key, but without making any formal changes. Thus, fundamental norms are not only de facto fundamentally structuring society, but legal consequences are derived from that role. That is, when judges, civil servants, and citizens apply legal norms, they no longer consider all legal norms to be of equal rank or hierarchical status but instead proceed on the assumption that certain norms are constitutional and others are not, with the implication that the former must prevail over the latter in case of conflict, the former should be a source of inspiration when constructing the latter, and in case of legal gaps, rules could be derived from a systemic interpretation of higher “constitutional” norms. A contemporary example of this process of constitutionalization is perhaps the United Kingdom after the enactment of the U.K. Human Rights Act. The transformation of the British constitution that ensues is not only—and not mainly—the change in the substantive content of British law (although quite obviously there is by now a considerable body of case law that has transformed many areas of law), but in the larger picture of how the legal system is structured, in the characterization of certain norms as constitutional and thus enjoying a dignity and legal force above others.45 In the second case, constitutional transformation concerns structural and substantive changes in the content of constitutional norms, through the emergence of constitutional conventions and constitutional customs, which used to be the characteristic content of the British constitution (or at least were said to be so).46 Material constitutional norms change within a constitutionalized legal order not as a result of an explicit constitutionmaking process, but as a result of either unconventional constitutionmaking processes (during which material constitutional norms are changed without formally undertaking a constitutional amendment) or through the slow process of systemic reinterpretation of constitutional norms.47 This is rendered possible, and even fostered, by the very fact that constitutional norms tend to make extensive use of general and abstract terms proper of general practical reasoning. Thus, the right to effective judicial protection requires trials to be “fair,” but what is exactly a fair trial when it comes to the maximum time period to lapse before a judgment is given


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is not something established once and forever but relative to a given time and societal structure. Indeed, the grammar of constitutional law accounts to a large extent for both transformative and simple constitutionalization. Simple Constitutionalization The third and final type of constitutional dynamics is what we have termed simple constitutionalization. By that we refer to the fleshing out of the normative implications of constitutional norms when they are applied to specific circumstances. Constitutional provisions are by nature general and abstract. Applying them to concrete cases requires working out the rule that should be derived from the general norm affirmed in the fundamental law. This is why simple constitutionalization is about ascertaining derivative constitutional norms from general constitutional principles.48 As was already indicated, the integrative role played by modern constitutions requires their norms to be formulated at the proper level of generality and abstraction. When such general and abstract norms have to be applied to concrete cases, the gap between the general formulation of the norm and the concreteness of the case must be filled by constitutional argumentation. This leads to a process of constitutional exploration. Modern constitutions contain specific mandates to the legislature to undertake such exploration by approving statutes developing the constitution.49 The specific contours that the constitutional review of legislation has adopted in most European countries after World War II has also resulted in constitutional courts (and even in some cases all courts) playing an important role in this form of constitutionalization. Simple constitutionalization is especially intense after a major act of constitution making or a process of transformative constitutionalization. The general and abstract norms of the constitution stand naked, lacking a constitutional practice of application through which they must be fleshed out and their actual import on specific social relationships be figured out. Additionally, the enactment of a new constitution never occurs in a legal vacuum. Most ordinary legal norms that predate the constitution would have to keep on being in force for the time being because the task of rewriting the whole legal system in one stroke is a superhuman one. But the fact that they keep on being applied does not mean that they keep on being the same. For one, their validity basis changes, so that in precise terms, more than continuing to exist, they revive by the grace of the constitution wishing this to be so—indeed, to the extent that the constitution does not stipulate the opposite outcome.50 Further, their actual normative implications depend on their fitting in the new constitutional order. This unleashes a parallel process of constitutionalization, in the sense of interpretatively adapting the old legal norms to the new constitutional order. A typical example is


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the effect that an antidiscriminatory constitutional principle has. If the constitution affirms solemnly that discrimination on the basis of gender, race, or nationality will no longer be accepted, this results in the immediate derogation of the most obviously discriminatory norms, which are then not revived but buried by the entry into force of the new constitution. But the discriminatory effects of many other norms will be less obvious, sometimes indirect, and on occasion would not be recognized as such until the constitutional culture fully endorses the proclaimed constitutional principle. Simple constitutionalization proceeds hand in hand with the percolation of constitutional values into political life. Implications for the Union This threefold characterization of constitutional dynamics is essential to reconstruct the evolution of European constitutional law. First, it is clear that the establishment of the Communities was not the result of an act of constitution making in the sense just described, because there was no express, conscious, and time-bound process aimed at writing the constitution of the European Union. Second, it is clear that European constitutional practice has been characterized by a combination of a peculiar blend of transformative and simple constitutionalization. It has been widely documented that institutional actors, both political and judicial, have progressively adhered to the practice of reconstructing Community law in a constitutional key. It is rather well established that the structural principles of the European constitution (direct effect, supremacy, and the key principles of division of competences between the Union and the member states) are indeed the result of the transformative constitutional practice through which the treaties were read and constructed as a constitutional norm. The same can be said about the principle of fundamental rights protection and, with some caveats, about economic liberties, although the latter had a clear literal basis as they were formulated in the founding treaties (indeed, we will claim in chapter 3 that they were constitutionally transformed later, when the European Court of Justice departed from the literal tenor of the treaties and started constructing them as if concretizations of an individualistic and privatistic conception of freedom). However, it is important to stress that this transformative constitutionalization has not been so much about the unconventional or evolutionary amendment of the constitution as it has come about through a process whereby a set of norms were recharacterized as constitutional. This is what sets the European constitutional path apart from the British constitutional path. Additionally, the same institutional actors have also been engaged in parallel in the exploration of the normative implications of the Union’s


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constitutional provisions. While the Paris Treaty establishing the Coal and Steel Community did contain rather precise legal norms (indeed, it has been systematically characterized as a framework treaty, playing the same structural role as a statute vis-à-vis regulations or statutory instruments in national legal orders), the Rome Treaties combined a rather specific set of norms concerning the four stages to the common market and wide principles concerning the further unfolding of integration. This has the structural implication that many of the norms contained in the Rome founding treaties were formulated at a rather general and abstract level, and thus could be concretized only through correspondent constitutional argumentation. As we will see in more detail in chapter 3, while these two processes of constitutionalization tended to intermingle in the early years of the Community, they have become more disentangled as the process of integration proceeds. Analytical clarification does not solve European constitutional puzzles, but it allows us to recognize the critical questions that need to be sorted out. The reconstruction of European constitutional history by reference to processes of transformative and simple constitutionalization leaves open the question of what triggers and justifies the constitutional reading of the treaties in the first place. The question of the origin remains essentially unanswered. Were the basic norms of European Union law always of constitutional stature, so that what emerged from the transformative constitutional practice was merely the recognition of their constitutional dignity and force? Or was the said dignity and force conferred through a process of constitutional transformation? How could the first notion (always of constitutional stature) be correct in the absence of an explicit act of constitution making? How could the second notion be correct if that would go straight against the constitutional practice at the national level of characterizing the national constitution as the supreme legal norm? These analytical tools are not enough to answer these questions; a broader, more encompassing theory is required and will be devised in chapter 2.

REVOLUTIONARY AND EVOLUTIONARY CONSTITUTIONALISM AS DIFFERENT MIXES OF CONSTITUTIONAL TRANSFORMATION AND CONSTITUTIONALIZATION PROCESSES Constitutions are inextricably linked to origins and stories about such origins. Thus the obsession in the French or Italian constitutional traditions with the “constitutional moment” in which we the people is said to have written the constitution, or in the British constitutional tradition, with the slow but steady process of consolidation of the constitutional conventions


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that are said to make up the British constitution, doubly legitimate because they not only reflect the genius of collective wisdom through the ages (which British lawyers are trained to believe is deposited in the common law)51 but also have acquired democratic legitimacy through endorsement by we the British people at key turning points in history (the Glorious Revolution, the Reform Era, the two world wars). As a consequence, any constitutional theory includes a constitutional narrative, which reconstructs the main transformative events in the history of the constitution by reference to the normative underpinnings of the constitution (or in the terms developed in this chapter, reconstructs history by reference to the normative conception of the constitution). The European constitutional narrative is either deeply problematic or remains vague. As already said in the introduction but which bears repeating, there is no European Bastille, no European Philadelphia; and it is simply hopeless to claim that the European wisdom is reflected in the European constitution. So we are left with several troubling puzzles: Why are the treaties a constitution? What transformed them? How were they transformed? The usual “legal” narrative glorifies the role of the European Court of Justice (in some versions, seconded by national courts),52 which is said to have transformed an international legal order into a constitutional order by affirming the direct effect and the supremacy of Community norms in the founding judgments of Community law, as in Van Gend en Loos and Costa. But can that be so? The idea that the Court of Justice decided the constitutional transformation is hard to reconcile with the democratic underpinnings of national constitutions and, as a result, rather implausible (why was there not a massive backlash if the court was really transforming the nature of the European constitution, and by doing that, unavoidably of national constitutions?). So how was the European constitution established? What kind of processes are indeed relevant in the establishment of a democratic constitution? All these are questions that emerge with a vengeance during constitutional reform processes, as the Laeken reform process well illustrates. During the debate preceding the French referendum on the ratification of the Constitutional Treaty, French public opinion was divided and increasingly polarized as the campaign proceeded. But behind the dispute, the French constitutional culture, a “revolutionary one,” framed the positions of both the “yes” and the “no” sides. As in all “revolutionary” constitutional traditions, but especially in the French, where almost every generation has written its own constitution, the characterization of the Constitutional Treaty as a “constitution for Europe” invited comparisons with national constitutional processes, in which an explicit and time-bound political process tests whether the constitutional proposal is supported by a clear majority of the population (that is the point of constitutional moments). In particu-


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lar, the French debate of 2005 focused on whether the Laeken process was legitimate enough and on the implications of the substantive contents of the Constitutional Treaty when applied in ordinary constitutional practice. While the “yes” side was essentially or at least minimally satisfied with the Constitutional Treaty and answered both questions in the positive, the “no” side contested the legitimacy of the process and questioned the effects that the fleshing out of the constitutional norms would have for ordinary politics (in particular, claiming that it would reinforce the bias in favor of neoliberal policies). Furthermore, both the “yes” and the “no” sides found natural that if the result of the referendum were negative, the proper course of action would be to repeat the constitutional exercise. Indeed, this is what the French have been doing all over, and very especially in 1946, where the first postwar constitutional proposal was rejected by a popular vote. This resulted in a new constitutional draft, which in a second referendum was endorsed by the citizens. Changes were not simply cosmetic but were to a large extent aimed at creating a large consensus on the fundamental law. Thus the clear expectation of the “no” side to trigger a new “constitutional moment” by rejecting the Constitutional Treaty. The “yes” side did not find such an expectation wrong, but simply unrealistic, because this was not a purely French constitutional process (on that they come closer to the understanding that perhaps the establishment of a European democratic constitution cannot be done following the same path as at the national level). That contrasted clearly and neatly with the way in which the issue was perceived in Germany. While the ratification of the Constitutional Treaty was also widely perceived as having a clear constitutional dimension,53 what that “constitutional dimension” meant was not exactly the same as in France, in both procedural and substantive terms. Indeed, the clear political dimension of the constitution, the close connection between the exercise of political power and the approval of the constitution, is bound to be less marked in a tradition where the democratic legitimacy of the fundamental law has been acquired over time and cannot be traced back to a democratic constitutional moment. Without engaging in depth in the debate about the origins of the German constitution, certainly the political and military circumstances make it hard to conclude that the text was the result of a free exercise of political will by German citizens. The tragic history of Germany went hand in hand with a tragic constitutional history and left a characterization of the constitution that is more ambivalent to its democratic foundation. Indeed, the German tradition is in this respect not so dissimilar from that of the United Kingdom, or to be more precise, of the dominions, in the sense that the fundamental law did not have a democratic origin but has become legitimized as a democratic constitution due to both its substantive content (which allowed the establishment of a functioning and prosperous democracy in Germany) and its progressive endorsement by


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citizens in critical moments of time. As a result, the German constitutional tradition has tended to relativize the value of the “constitutional moment” and to pay heed to the process of constitutionalization of the legal order. Just consider that as a matter of positive constitutional law, organizing the ratification debate around a referendum is simply forbidden (for obvious historical reasons that make a direct popular vote problematic). But moreover, the German constitutional discussion on Europe has tended to revolve around whether Community law complies with substantive constitutional standards: fundamental rights, division of competences between Germany and the Union, and the “eternity” clause enshrined in the constitution. Indeed, it is only most recently, in an odd way in the Maastricht ruling and more clearly in the German Constitutional Court’s Lisbon ruling of June 2009, that the debate has been clearly reconnected to democratic concerns (by connecting the federal transcendence of the German state to a popular vote and by linking the eternity clause with the right to political self-determination). As a consequence, the French implicit assumption that a ratification failure should be regarded only as an opportunity to start a new constitution-making process was rather incomprehensible to German observers. And furthermore, in both cases there was an implicit recognition that the democratic path to be followed at the European level could not be different from the two that have predominated the national level, or in other words, that there could not be a third democratic path, a tertium genus. It seems to us that part of the fuzziness of the European constitutional narrative stems from its lack of fit with any of the paths that were followed at the national level to establish a democratic constitution. This has normative implications and effectively confines democratic constitutionalism to a rather specific set of institutional conditions. In effect, it rules out the legitimacy of any other path to the establishment of a democratic constitution, thus also implicitly subjecting the European constitutional path to national standards. This necessarily hinders constitutional debate across borders. Not only are the same facts very differently interpreted when they are constructed by reference to different variants of the democratic constitutional tradition, but it is difficult to understand the assessments that are made within the other constitutional traditions. Furthermore, this also leads to national models being projected to the European level, ruling out the possibility of a distinct European model. It seems to us that we can avoid this constitutional dead end by a double structural move. First, we need to take seriously the comparative dimension of democratic constitutional law and consider that there are at least two different but rather equivalent paths to the establishment of a democratic constitution at the national level, the revolutionary and the evolutionary. Second, we need to disaggregate such paths by reference to the peculiar blend of constitutional dynamics—in terms discussed earlier—that char-


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acterizes each of them. This will enable us to (a) show that the Union has followed neither of the two well-trodden national paths, and (b) consider whether the EU has followed a third path, resulting from a different albeit democratically equivalent combination of constitutional dynamics.

The Two Well-Trodden Paths Revolutionary Constitution Making We can distinguish two different main paths to the democratic constitution in the national constitutional traditions: the “revolutionary” path and the “evolutionary” path. The revolutionary path54 is characterized by the fact that the key legitimating factor is the constitutional moment, the explicit time-bound process in which a draft constitutional text is established and subjected to an intense public debate, after which a fundamental vote is made on whether to transform the draft into the constitution.55 The process is widely inclusive, so inclusive that it makes sense (especially in normative terms) to claim that citizens (we the people) have authored the constitution (or, as time passes, whereas our forefathers wrote the constitution, we would now write a very similar one if the chance arose).56 The revolutionary tradition is thus characterized by a process geared to producing an explicit and concrete constitutional will, which crystallizes in a formal constitution. The latter is seen as the plan according to which the legal and the political order are to be shaped and developed.57 In the terms we propose to clarify constitutional dynamics, the constitutional origin is an act of constitution making. The key move in the path to a democratic constitution is to engage in a constitutional moment, which is to be decisive both in defining the contents of the constitution and in providing the interpretative framework of its provisions by reference to constitutional debates. The dramatic overtones of the constitution-making debates merely reflect the central importance given by the revolutionary constitutional culture to constitutional moments. The revolutionary path brings with it a double set of institutional concerns. First, there is a need to create the requisite institutional structures to support the primacy of the constitution in actual constitutional practice. The normative value of the constitution (what continentals tend to refer to as the constitution as a legal reality, not a mere program) implies the direct effect of the constitution, its being the direct source of rights and duties. But this has full bite only when ensured by institutional structures aimed at reviewing compliance with constitutional standards (of which the most typical is the judicial review of the constitutionality of legislation, but which can be organized in different fashions, from those instances of reference back to a parliament more or less inspired by the référé legislatif58


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to a practice of full-blown political review of the constitutionality of legislation by the people themselves)59 and also guaranteeing the integrity of the constitution vis-à-vis constitutional practice (of which, as already hinted, the process of amending the constitution is fundamental). Second, there is a need to draw specific criteria for distinguishing constitutional from nonconstitutional norms, precisely because of the density of the institutional structure and procedures aimed at offering an additional protection to constitutional norms. The revolutionary path is inextricably linked with processes of simple constitutionalization. The fact that the constitution is the result of an act of constitution making does not alter the general and abstract character of constitutional norms, which thus have to be concretized to be applied in concrete instances. What is of essence in the process of concretization under revolutionarily established constitutions is that the constitution-making debates, and the ordinary political debates that refer to them, are a key reference in the process of developing constitutional arguments exploring the implications of constitutional norms. The establishment of a democratic constitution through a revolutionary path does not exclude that the contents of the constitution are changed through processes of transformative constitutionalization. Indeed, the emergence of constitutional conventions is not exclusive to constitutions established in an evolutionary manner, but can also be observed in revolutionary constitutions. The difference lies in the fact that there is always a tension between the revolutionary aspiration to ensure that the formal constitution reflects the material constitution, and that the material constitution is the result of a democratic process of collective will formation and the evolutionary transformation of constitutional norms. Moreover, patience and time are necessary preconditions for growth of an evolutionary constitution. But in constitutional politics, time is occasionally of the essence;60 and at the same time, time limits help form and focus a democratic constitutional will.61 Evolutionary Constitutionalization The evolutionary path to a democratic constitution62 is marked by the key importance of transformative constitutionalization. Bits and pieces of the fundamental laws of the realm become solidified and transformed into successive layers of the constitutional cake.63 At critical junctures of the polity’s political life, citizens’ endorsement of this “living” constitutional law confirms the constitution’s democratic legitimacy. Thus, the constitution is not a plan, but a map that is made and remade based on how institutions and citizens over time come to see the sociospatial universe they inhabit. The relationship between constitution and legal and political system is here


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reversed: the constitution reflects rather than shapes the legal order and the political culture as a whole.64 The key legitimating factor is the test of time, on the double account that evolved norms have had a long record that proves their efficiency in social integration; and they have had the chance of being endorsed by citizens at critical junctures of national constitutional history. What matters then is not the constitutional origin, but the sustained constitutional dynamic over time. In particular, whether the basic fundamental norms were or were not decided democratically is a trifle beside the point. Evolutionary constitutional norms are not made in one stroke, but they are at most decided in bits and pieces and critically transformed over time. Legitimacy is thus slowly acquired as a result of proving capable of integrating society over time, and as citizens endorse such norms in critical turns of national constitutional history. In the terminology we propose for clarifying constitutional dynamics, the key processes are those of transformative constitutionalization. There is also a marked contrast with the revolutionary tradition because institutionalization is a secondary issue when it comes to protecting or guarding the constitution. The defense of the constitution is to be trusted to the political process, to the internationalization of a constitutional culture that grounds the legitimacy of the constitution and spells out the attitudes to be developed in actual constitutional practice. It almost goes without saying that in the evolutionary path it is rather hard to disentangle processes of transformative and simple constitutionalization. What is perhaps less obvious is that the consolidation of the democratic principle as part of the evolved constitution generates internal tensions within the evolutionary paradigm. Indeed, as democratization catches up, there is a growing pressure in favor of exerting democratic power in the redrafting of the constitution. This is indeed a pattern that was clearly at work in the Commonwealth dominions when they acquired independence (as we will see when considering the Canadian case in chapter 6), and it can also be seen at work even in the case of the United Kingdom, the paradigmatic example of a polity following the evolutionary path toward a democratic constitution. Denationalizing the Establishment of a Democratic Constitution In the previous section we argued that it is possible to distinguish two main paths to the establishment of a democratic constitution, the revolutionary and the evolutionary. Furthermore, we showed how these paths can be characterized by reference to how different constitutional dynamics are combined in each of them. Revolutionary constitution making consists mainly in an act of constitution making followed by processes of simple constitutionalization in light of the normative decisions taken at the act


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of constitutional establishment. Evolutionary constitution making results from the combination of processes of transformative and simple constitutionalization. While the combinations are different, the democratic legitimacy of constitutional norms is ensured in each process. The heightened democratic legitimacy of the process of constitution making is essential in revolutionary constitution making, as such legitimacy remains a living force as long as the constitution is supreme and as long as the construction of constitutional norms is geared to the normative premises of the constitutional debates. The evolutionary constitution is legitimized by the test of time and especially by the endorsement of constitutional norms by citizens at critical moments in the life of the polity. Once we have come to realize that there are different paths to establishing a democratic constitution and that this is no serious obstacle to their “democratic” equivalence, we have not only overcome the prejudice that the only way to establish a democratic constitution is the national one, but we have also placed ourselves in a position from which we can engage in a meaningful discussion on the legitimacy of constitutions beyond national borders. Furthermore, we are now in a position to understand that the key question is how constitutional dynamics are combined so as to create the democratic legitimacy of constitutional norms. This has major structural implications for the development of a constitutional theory for the European Union. For one, we now have the analytical tools to realize the essential democratic equivalence of national paths to the establishment of the constitution. Further, we have established that the key legitimating factor is not following one or the other path, but combining constitutional dynamics in such a way as to ensure the democratic legitimacy of constitutional norms. We came to the conclusion that European constitutional history could be reconstructed as a peculiar combination of transformative and simple constitutionalization. Now we have established why in abstract terms such a combination should not be ruled out in principle as a path to the establishment of a democratic constitution. What we have to show now is how this combination ensures the democratic legitimacy of European constitutional norms. But that cannot be done from a mere analytical perspective; it requires a substantive constitutional theory of European integration.

CONCLUSION We distinguished among three different conceptions of constitution: formal, material, and normative. This allowed us to clarify a good deal of false controversy in the European constitutional discourses. In particular, we found that the Union has a material constitution, whereas it is doubt-


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ful whether it has a formal constitution (although the Treaty of European Union as amended after the entry into force of the Treaty of Lisbon comes close to one), and it is highly debatable whether it has a constitution in a normative sense; but indeed this latter question is the one that is really at the core of the interesting debates on European constitutional theory. Then we distinguished among three constitutional dynamics, namely, constitution making, transformative constitutionalization, and simple constitutionalization. This threefold distinction allows us to grasp the serious differences among different types of transformation of the constitution and in particular to pin down the peculiar constitutional character of the Union to the lack of clear-cut constitution-making dynamics, and its being changed through apparently intertwined processes of transformative and simple constitutionalization. We claimed that different ways of combining constitutional dynamics give rise to different constitutional paths. Democratic states have generally followed either a revolutionary or an evolutionary path. But we should not rule out that democratic constitutions could be established through a different pattern of constitutional dynamism. Indeed, in the next chapter, we claim that European integration has followed an alternative democratic constitutional path: the path of constitutional synthesis.


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2 A Theory of Constitutional Synthesis

The imperfection of all modern government must [. . .] in a great measure have arisen from this simple circumstance, that the constitution, if such an heterogeneous mass deserve that name, was settled in the dark days of ignorance, when the minds of men were shackled by the grossest prejudices and most immoral superstition. And do you, Sir, a sagacious philosopher, recommend night as the fittest time to analyse a ray of light? —Mary Wollstonecraft, A Vindication of the Rights of Men

THE CORE IDEAS BEHIND SYNTHESIS In this chapter we put forward the key theoretical component of the book, the theory of constitutional synthesis. In particular, we flesh out and substantiate the theory behind the claim that the constitutional law and politics of the European Union are more aptly described as an instance of constitutional synthesis. In essence, constitutional synthesis refers to a process in which already established constitutional states integrate through constitutional law. This is a process where participant states establish a supranational political community in which they become integrated without losing their institutional structure and identity.1 There are three basic insights behind constitutional synthesis. The first is that the constitutional law that frames and contributes to steering this process is neither revolutionarily established in a “Philadelphian” constitutional moment nor the outgrowth or accumulation of “Burkean” constitutional conventions and partial constitutional decisions à la anglaise. On the 45


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contrary, constitutional synthesis is characterized by the central structuring and legitimizing role played by the constitutions of the participating states (seconded to a new role as part of the collective constitutional law of the new polity),2 or along the same line, by the regulatory ideal of a common constitutional law, which is progressively recognized as the constitution of the new polity and whose normative consequences are fleshed out and specified as the process goes further. To put it differently, instead of a revolutionary act of constitution making or the slow growth of constitutional conventions, constitutional synthesis is launched by an act that implies the seconding of national constitutions to the role of common constitutional law. This makes synthetic founding much more economical in political resources than revolutionary founding while at the same time being much quicker than evolutionary founding. The price to be paid is that instead of an explicit set of constitutional norms, the founding document reflects a scattered set of norms, while the bulk of the common constitutional law remains implicit, a regulatory ideal to be fleshed out as integration proceeds. The second insight is that the supranational legal order goes hand in hand with a supranational institutional structure. But the latter is only partially established at the founding; it takes time to be rendered functional in a process where the different institutional cultures and structures of the participant states try to leave their mark on the supranational level, and its structure is necessarily rendered more complicated as new institutions and decision-making processes are added to handle new policies. This entails that constitutional synthesis be described as the combination of normative synthesis and institutional development and consolidation, two processes that have rather different inner logics. While normative synthesis exerts a centripetal pull toward homogeneity, institutional consolidation has strong built-in centrifugal elements—it serves as the conduit through which the constitutional plurality of the constituting states is wired into the supranational institutional structure. The third insight is that the regulatory ideal of a single constitutional law goes hand in hand with the respect of the constitutional and institutional structures of the participating states. This entails that while supranational law is one, there are several institutions that apply the supranational law in an authoritative manner. The peculiar combination of a single law and a pluralist institutional structure results from the fact that there is no ultimate hierarchical structuring of supranational and national institutions, and the peculiarity is compounded by the pluralistic proclivities of institutional consolidation at the supranational level. The key intuitions behind constitutional synthesis can be explored with the help of the spatial metaphor of the constitutional field.3 In the case of the EU, before the outset of the integration process, national constitutions were separate from one another (akin to different islands); with the unleashing of the process of integration, they willingly placed themselves in


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a common constitutional field. They not only acquired a collective identity (as members of this field) but also started to look to one another. This cannot but slowly and steadily transform the very identity of the participating constitutions (through horizontal processes of mutual learning and adaptation); in the process, this alters the identity of the participating states.4 Indeed, constitutional synthesis in postwar Europe was the path through which constitutional autarchy was ended and European states opened themselves up to binding cooperation. We elaborate and specify the theory of constitutional synthesis by reference to four core elements, which we consider sequentially in this section: (a) the regulatory ideal, distinguishing between normative synthesis and constitutionally protected institutional pluralism; (b) the set of preconditions that render this peculiar and complex form of constitutionalism possible; (c) the peculiar blend of constitutional dynamics involved in the process, including the limits to synthetic integration resulting from the character of the synthetic structure and its vulnerability to changes in the external socioeconomic environment (exogenous limits) and complex internal dynamics (endogenous limits, such as pluralism, resistance to integration, and diverging patterns of socioeconomic and political development); such limits result, as we will consider in chapter 3, in the stymieing of synthesis; and (d) the mechanisms through which the structure of the synthetic polity takes shape, including notably replication, adaptation, and experimentation. In the last section of the chapter, we complete the exposition of constitutional synthesis by considering how it is placed and how it relates to other political and legal theories of integration.

THE REGULATORY IDEAL: INTEGRATION THROUGH A COMMON CONSTITUTIONAL LAW, OR PLACING NATIONAL CONSTITUTIONS IN A COMMON CONSTITUTIONAL FIELD The regulatory ideal of synthetic constitutionalism is the establishment of a common constitutional law,5 or the institution of a new constitutional order that is anchored in the fundamental norms of the states that participate in the process of integration. This regulatory ideal becomes relevant when a specific constellation of circumstances takes hold. First, state constitutions must open themselves to integration beyond national constitutional borders by acknowledging the limits of constitutional autarchy. Despite the cosmopolitan underpinnings of constitutional thought in the American and French revolutions, the form of constitution that states adopted was made subject to the structural logic of the territorially demarcated, and formally sovereign, nation-state. The fundamental law of the state was the constitution not


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only of a nation-state, but of a self-sufficient and normatively closed nationstate.6 Indeed, before 1945, with the sole and very partial exception of the Weimar Constitution,7 European constitutions were markedly insular, and the primacy of the constitution tended to be equated with the primacy of the national constitution. Second, state constitutions must reaffirm their commitment to social integration through democratic constitutional law, to democratic self-government mediated by constitutional law. On that basis, the commitment must be projected also to integration beyond constitutional borders if the very idea of democratic constitutionalism is not to be lost in translation, so to speak. As we will consider at length in chapter 3, the commitment to liberal constitutionalism was uneven and essentially weak in the interwar period; the sobering experience of two tragedies in one generation created the conditions under which Europeans embraced a “negative” revolutionary zeal.8 Third, political circumstances must render expedient the democratic constitutionalization of interstate relationships either through an explicit act of democratic constitution making or through the slow growth of constitutional conventions among mutually influencing states. In the former case, it may well be that a constitutional “big bang” would not succeed or might result in a constitutional backlash. Democratic constitutions rely on socioeconomic preconditions that may or may not be entrenched across borders. In the latter case, the need for common institutions, decision-making processes, and norms might be urgent and cannot be left to be worked out over time. That was, as we will also refer to in the next chapter, the situation in which Western Europeans found themselves in the aftermath of the war. Barring the immediate period after the war, the democratic constitution of a federal Europe seemed beyond reach. And at the same time, mere resort to intergovernmental cooperation such as under the League of Nations seemed ineffective at solving pressing problems of international stability and economic reconstruction. In a setting marked by the recognized need for constitutional integration beyond the state and by national unwillingness to rescind constitutional sovereignty by becoming straightforwardly absorbed in a larger supranational unit, integration could be constitutionally licensed only insofar as the primacy of each national constitution was ensured at the same time that the process of integration was effectively started. Is that not the constitutional equivalent of squaring a circle? Not if one considers the potential of the regulatory ideal of a common constitutional law. If we found the polity and the legal order by establishing a common constitutional law, by seconding national constitutions to the collective (and thus shared) role of common constitution,9 national constitutions remain the supreme law of the land in each participating state. And still, national constitutions acquire a new role as part of the collective of national constitutions embedded in the new supranational


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constitution.10 This offers an economical way of launching a process of integration. But there is more to it. The establishment of a new legal order framed by common constitutional law, by the preexisting national constitutions, offers an alternative solution (albeit, as we will see later in the chapter, temporary and provisional) to the legitimacy characteristic of revolutionary constitution making and to the progressive acquisition of democratic legitimacy proper of evolutionary constitutionalism. This is so because the new constitution is formed by national constitutional norms and consequently can draw on the democratic legitimacy that they were invested with in their national constitutional processes (whether they were revolutionary or evolutionary). In particular, by constructing the new supranational legal order according to this constitutional key, the validity of each and every legal norm of the new supranational order depends on its supranational constitutionality, to be assessed by reference to supranational constitutional law. But that constitutional law is indeed defined by reference to the collective of national constitutional norms. As a result, the democratic legitimacy of national constitutional norms is transferred to the supranational constitutional law and then radiated to all the norms of the supranational legal order, when interpreted and constructed according to the basic principles of the supranational constitutional law (i.e., the constitutional law common to the states that form the new polity). This provides the supranational polity with a measure of democratic legitimacy in the absence of a constitution-making act or an extensive process of constitutionalization. How this applies to the European Union is something that is considered at length in the next chapter. But as a means of illustration of what at first may seem a speculative and too abstract concept, let us consider the synthetic founding of the European Union. The founding treaties of the Communities (the 1951 Paris Treaty and the 1957 Rome Treaties) should be construed as the opening move in a process aimed at realizing the mandate to integrate enshrined in postwar national constitutions. At the same time, they should be seen as unleashing a process of supranational integration beyond mere intergovernmental cooperation but without an explicit act of constitution making, which would have backfired at that stage. The foundational act formalized in the founding treaties of the Communities resulted in the creation of not only a new political community, but also a new legal order, because this was a process of integration through law. While the form of the act was that of an international treaty, even a cursory glance would show that the member states had not only agreed to a considerable transfer of competences, but also to the creation of a new institutional structure, a specific decision-making process, and a system of sources of law. For such a bold process of integration through law to be in compliance with national constitutions, it would have to be


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regarded as capable of realizing the mandate to integrate, which was explicit in most national constitutions; it would also have to be framed by constitutional law so that the primacy of the national constitution could be rendered compatible with integration. And that was so because national constitutions started to play a double constitutional role, because they were transferred or projected as a collective to the role of common constitutional law of the Communities. A synthetic understanding of European integration implies that the founding treaties resulted in the creation of a new polity and a new legal order, but this did not entail multiplying political or legal entities. In the same way that the European Union was not something radically different from the collective of its member states, Community law was not something drastically dissimilar from the legal order of its member states. The “constitutional” parts of the founding treaties are to be regarded as a partial explication of what the common constitutional law entails in a process of integration. But most of the constitutional law of the Union is not new; it results from the seconding of national constitutions to the collective role of fundamental law of the Union. Metaphorically speaking, European constitutional law can indeed be said to be old wine in a new bottle. But creating the new bottle and inserting old wine into it from many sources would provoke chemical reactions that would change the composition of the wine, especially in the long run (in particular, as one might say postwar history proves, reducing toxicity and thus making the hangover milder).11

THE “DOUBLE” CONSTITUTIONAL PLURALISM CHARACTERISTIC OF CONSTITUTIONAL SYNTHESIS AND THE TWO SUBCOMPONENTS OF CONSTITUTIONAL SYNTHESIS The image of the constitutional field renders clear that what is eventually created is not a sovereign state at a higher, supranational scale. Instead, synthesis produces a system of tightly interlocked yet distinctive constitutional orders that authorize a common supranational legal structure that is to come into existence through the process of integration. The fact that the synthetic constitutional path is one where participating states retain their separate existence and their distinct constitutional and institutional identity implies that constitutional synthesis is a peculiar breed of pluralistic constitutional theory. On the one hand, it is not pluralistic to the extent that it endorses the monistic logic of law as a means of social integration through the regulatory ideal of a common constitutional law, in the terms discussed in the previous section of the chapter. It must


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be added here that the integrative capacities of law (its role as complement of morality in the solving of conflicts and the coordination of action by means of determining in a certain manner what the common action norms are) require law to be as final and decisive as possible. Were law to be as inconclusive as morality, it would not add much to our practical knowledge, and it would not be capable of operating effectively as a means of social integration. Both autonomy and the motivational force of law require that we assume that law gives one right answer to all the problems to be solved through it. Legal argumentation breaks down if we assume that one and the same case can have different, even contradictory solutions. That may be the case empirically, but from an internal perspective to law that cannot be endorsed as part of the social practice of integration through law. Democratic legal systems are further pushed into this peculiar form of “monism” by the normative requirements of the principle of equality before the law.12 On the other hand, constitutional synthesis is pluralistic in a double sense. For one, the regulatory ideal of a common constitutional law coexists with the actual plurality of national constitutional laws. As we will see in a later section of the chapter, the constitutional moment in synthesis results in only the endorsement of a regulatory ideal and bits and pieces of the set of common constitutional norms. Most constitutional norms remain potential norms (in nuce), or, better put, in several drafts, as many national constitutions participate in the process of integration. Only slowly (and not without setbacks and backlashes) the regulatory ideal of a common constitutional law is fleshed out in actual common constitutional norms (and in general in common legal norms). Further, the regulatory ideal of a common constitutional law goes hand in hand with a pluralistic institutional setting. Instead of a hierarchically structured institutional setup, a synthetic polity is characterized by the existence of a plurality of institutions legitimately claiming to have a relevant word in the process of applying the “single” constitutional legal order. That is indeed the correct intuition behind pluralistic constitutional theories of European integration.13 To render the theoretical point clearer, we may consider briefly the fact that constitutional synthesis has not led (and is not expected to lead) to member states losing their autonomous political and legal identity (which has been coined in the European constitutional jargon as the national constitutional identity).14 This is so thanks to, and not despite, integration. The constitutional pluralism that goes hand in hand with constitutional synthesis is rendered possible and stabilized by the new institutional structure and the growing substantive convergence between national constitutional orders.15 In the EU, constitutional synthesis could be seen as the political and legal counterpart to the common market of old (not the single market of the Single European Act) in the objective of rescuing the nation-state;16 in our view, it is more proper to consider it as a means of reconfiguring and


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redefining the state, at the very minimum detaching state from nation and perhaps (and more doubtfully in our view) even getting rid of the idea of the sovereign state completely.17 This “double” pluralism of constitutional synthesis reveals that when considered in depth, we can distinguish two different subprocesses within synthesis, which correspond to the logic of integration of constitutional norms (normative synthesis) and of constitutional institutions (institutional development). The relationship between these two processes is far from easy because they follow different logics, as we already hinted above, and still they affect each other (and heavily, for that matter). Normative synthesis concerns the process through which the common constitutional law is fleshed out. Its logic is essentially normative. Constitutional synthesis claims that through the foundational act, both the polity and its legal order are constituted. As we have claimed, the democratic legitimacy of this foundation without democratic constitutional politics is ensured by transferring the collective of national constitutions to the supranational constitution. What we add now is that from founding onward, the logic of the process of normative synthesis is one of rendering explicit what is already implicit in the regulatory ideal of a common constitutional law. Thus, as we will see later in the chapter, the intertwined processes of transformative and simple constitutionalization. The internal normative code of constitutional law entails that the more the process advances, the more the supranational system will tend to grow in breadth and scope, and the more normative space the supranational constitutional law will tend to occupy—unless, quite obviously, this expansion is checked or interrupted, as we will consider at the end of this chapter. But the inertial trend is one toward normative homogeneity, wired into the normative code of law as a means of social integration (in the terms we have discussed at the beginning of this section, resulting from the irrepressible “monistic” proclivity of law). Institutional consolidation concerns the outgrowth and consolidation of the institutional structure of the supranational polity. Its logic is not exclusively normative. Institutions are about law, but certainly not exclusively about law. Institutions are organizations infused with value. Moreover, they occupy buildings, make use of objects with empirical existence, and are represented by very material (when not venial) beings. Institutional organizations cannot be brought into existence by a normative regulatory ideal; they have to be created, staffed, and funded, and they develop their own institutional identity. In a constitutional union of already established constitutional states, this process is complicated by three factors. First, constitutional synthesis presupposes the combination of a single constitutional order with a pluralistic institutional structure, to the extent that supranational and national institutions are not hierarchically organized or ranked. Second, constitutional synthesis at the regional-continental level of government (i.e.,


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in between global organizations and nation-states) tends to proceed in a farfrom-crowded institutional space. In contrast to the constitution of a nationstate, which as a matter of fact relies not only on an existing institutional structure, but on a well-developed institutional template, constitutional synthesis requires creating new institutional structures for which there is no obvious blueprint. This usually entails that institution making proceed in a fragmentary fashion, that the synthetic polity start with bits and pieces of an institutional structure instead of with a complete one. Third, the derivative character of the synthetic polity implies that the institutional void is only formally a void, as the creation of supranational institutions consists in the projection of national institutional structures and cultures to the supranational level. But because such structures and cultures are much more idiosyncratic than national constitutional laws, the probable result is that the creation of supranational institutions is the site of a contest (perhaps even fight) among different national institutional structures and cultures. On such a basis, the homogenizing logic of normative synthesis contrasts with the manifold pluralistic proclivities proper of institutional consolidation. That tension is aggravated over time. A crisis emerges indeed when the relationship between the two processes is polarized. As normative synthesis proceeds, it fosters some institutional convergence. But the synthetic process can also feed institutional pluralism and conflict, thus producing a constellation incapable of solving institutional conflicts among levels of government. Again as an example (to which we will return in chapter 4), consider the basic structure of the legitimacy crisis of the European Union since the late eighties. The radical transformation of the jurisprudence of the European Court of Justice on economic freedoms is nothing but a polarization of the homogenizing effect of Community law through the horizontal application of its constitutional principles, which is hard to correct in the absence of a clear line of checking and balancing in the increasingly pluralistic European political order. This would pose a serious threat to the effectiveness of Community law if national institutions started articulating their disagreement (and eventually disobedience) on the basis of alternative understandings not so much of national constitutional law, but of European constitutional law itself. This might explain why, for example, many Community lawyers reacted so angrily to the Lisbon judgment of the German Constitutional Court.

PRECONDITIONS FOR SYNTHETIC CONSTITUTIONALISM Constitutional synthesis entails the integration of separate constitutional systems through a common constitutional law. As indicated, it is geared


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to the establishment of a single constitutional law; however, it is anchored both to what remains a plurality of national constitutions (the unitary element being a regulatory ideal, which is realized into a set of actual common norms as the regulatory ideal is steadily and slowly fleshed out from the set of different national constitutional legal orders) and to a plurality of institutions (resulting from the lack of a hierarchical ordering of supranational and national institutions, from the somewhat fragmented institutional structure being created at the supranational level, and from the unavoidable projection of bits and pieces of different national institutional traditions into parts of the progressively emerging supranational structure). This combination of the ideal of a common constitutional law and a pluralistic set of constitutional norms and institutions does away with a basic technique of societal stabilization and integration that is characteristic in national legal and political orders, namely the coupling of a single constitutional order with a single and hierarchically (or at least competentially) organized institutional structure. This might be illustrated by considering the coercive resources of the Union. Community norms are only indirectly embedded in a system of institutionally exerted coercion. Nevertheless, the much-discussed “uncoercive” character of Community law is obviously wrong. The fact that Union law is effectively executed by what for all purposes are national administrations does not set the Union apart from systems of “executive” federalism, as indeed Germany is one example. What is peculiar in the European case is this double pluralism, normative and institutional. This immediately raises the issue of the specific structural conditions (concerning both the environment in which the constitution sets itself and the design of the constitution)18 under which such a demanding and potentially unstable political form can be launched and can obtain the measure of stability necessary for the process of synthesis to proceed. Indeed, law’s unitarian proclivity as a means for social integration entails that any form of constitutional pluralism is a demanding structure, in terms of both institutional structure and legitimacy.19 That is also the case with constitutional synthesis, doubly so because it goes hand in hand with both a collective of constitutional norms and institutions interpreting and applying them, as we have shown. In the following section we consider the fundamental preconditions for constitutional synthesis, which reveal not only the peculiarity of the process of European integration through constitutional law, but also how the complexity of a constitutional union of constitutional states was offloaded by relying on the institutional structures and substantive contents of national constitutional law. For constitutional synthesis to get off the ground, at least three conditions must be met, namely: (a) that there is a high degree of interconnection and interdependence among the polities that have embarked on


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integration; (b) that there is social and legal recognition of this interconnection and interdependence and willingness to adapt to it; and (c) that the entities share a basic set of structural and substantive constitutional principles, including compatible institutional and decision-making setups. High Degree of Interdependence It is the existence of a high degree of interconnectedness and interdependence among a number of polities that constitutes the first precondition for any process of constitutional synthesis. Highly interdependent and mutually affected states that do not share a set of common institutions and decision-making processes are prone to inefficiencies, tensions, and overt conflicts. In a setting where polities interact but their interaction is not governed by a proper institutional and legal framework, each polity is likely to make decisions that affect citizens of neighboring polities (including noncitizen residents and what have later come to be understood as second-country and third-country nationals20) who will be bound by, but have no formal say in, such decisions (because they are foreigners, they are deprived of political rights). Such a structure contains both efficiency and democracy deficits that can be overcome only by some form of supranational integration. In the European case, the two world wars (1914–1918, 1939–1945; from a European-wide perspective, two civil wars whose consequences were exported worldwide) made painfully clear that social integration decoupled from (sufficient) institutional and legal integration could have enormously destructive effects, in both practical and normative terms.21 But barring a political will to integrate, interdependence will simply continue to persist (unless its very destabilizing effects lead to changes).22 There are thus both prudential and normative reasons to transcend such a state of affairs.23 Awareness of Mutual Interdependence The second precondition for constitutional synthesis is a social and legal awareness of mutual interdependence, coupled with a will to deal with its negative normative and practical implications. There must be a proper social and political endorsement of the need to transcend anarchic or intergovernmental forms of cooperation.24 Such support must be solidified; to furnish synthesis it has to be translated into proper legal provisions that render the opening up of national constitutions to supranational cooperation possible.25 As we discussed briefly in the introduction to this chapter (and will analyse at length in chapter 3), awareness of interdependence and will to integrate was reflected in the European case both in innovative constitutional


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clauses that created the conditions under which national legal and political orders could be rendered open and cooperative and in the manifold integration initiatives launched in the first decade of the postwar period. As we will discuss in chapter 3, but which is worth anticipating now, it must be stressed that these clauses not only rendered integration possible, they also mandated it.26 By linking the continued realization of national constitutional values (of the effective supremacy of the constitution as the fundamental law of the land) to supranational integration, these clauses turned national constitutions into the constitutional raw material of a common constitution. Or, to put it differently, they obligated national constitutions to situate themselves within a common constitutional field. The clauses also mandated democratic institutions to engage in a process wherein the collective of national constitutions would serve as the guiding framework for a process of supranational integration.27 High Degree of Constitutional Affinity Political will, awareness, and a properly demarcated constitutional path are not enough. Because constitutional synthesis is a form of pluralistic constitutionalism, the third precondition is a high degree of constitutional affinity among the integrating polities. Integration through a common constitutional law can be launched only if the structural and substantive contents of the constitutions of the integrating polities are sufficiently similar, because such affinity furnishes an integrative pull absolutely essential in the absence of the combination of a single constitutional order and a hierarchically organized set of institutions, in terms discussed at the beginning of this section. There are very good normative and empirical reasons to affirm that only democratic constitutional states will be inclined and capable of integrating through constitutional law (they will also be the ones more pressed to integrate once they realize that democracy in one country is simply impossible, pragmatically and normatively, once a certain degree of interdependence is reached). In the European case, the long period of internecine war had created the conditions for greater constitutional affinity by 1945, at least among continental Western European states. All member states had experienced different forms of political extremism, social and economic collapse, widespread abuse by the authorities, and different forms of foreign invasion. This fostered a return to what Carl Friedrich aptly labelled as “negative” revolutionary constitutionalism.28 Furthermore, this affinity extended to substantive social factors. The six founding member states of the Union embraced a rather similar form of Sozialer Rechtsstaat (contrary to what had been the case in the aftermath of World War I), if not in its institutional hardware, at least in its basic normative principles. This initial


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affinity was further reinforced by the establishment of constitutional and legal mechanisms that helped foster convergence of the substantive contents of national constitutions29 (especially the European Convention of Human Rights, and after a gap of almost two decades, the European Court of Human Rights).30

THE PECULIAR BLEND OF CONSTITUTIONAL DYNAMICS CHARACTERISTIC OF CONSTITUTIONAL SYNTHESIS In chapter 1 we distinguished three different types of constitutional dynamics: constitution making, transformative constitutionalization, and simple constitutionalization. And we further argued that the variants of constitutionalism typical of nation-states (revolutionary and evolutionary constitutionalism) could be defined by reference to particular combinations of constitutional dynamics. Finally, we suggested that contrary to sui generis theories of European integration, the dynamics of European constitutional law were not indefinitely “peculiar” but could be analyzed by reference to the same patterns of constitutional transformation that were characteristic of national constitutionalism. What was different was the mix of constitutional dynamics peculiar to the Union. This chapter provides the groundwork for this line of reasoning, which will be followed up in the next chapter by reconstructing the constitutional history of European integration by reference to the constitutional dynamics of constitutional synthesis discussed here. In particular, we flesh out the specific way in which constitutional synthesis is a path to the forging of a democratic constitution alternative to both revolutionary and evolutionary constitutionalism, or along the same line, which combination or mix of constitutional dynamics is proper to synthesis. In concrete terms, we maintain that constitutional synthesis proceeds according to a threefold pattern. First there is (a) a founding constitutional moment, the synthetic constitutional moment (paraphrasing the very apt Ackermanian terminology developed in the context of revolutionary constitutionalism), in which the constitutional norms of all participating states are projected to the role of collective constitutional law and are complemented by the laying down of bits and pieces of the set of constitutional norms and institutional structures of the new polity; this reveals the key advantage of constitutional synthesis, its economic character in terms of political resources being needed to launch constitutional integration through synthesis. This is followed by the unleashing of (b) simultaneous processes of transformative and simple constitutionalization, through which the constitutional nature of the polity and its legal order comes to the fore as the concrete normative implications of the regulatory ideal of a common constitutional law are clarified. But


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as time passes, (c) the vulnerabilities of synthesis stemming from its deep pluralism are exposed, a process triggered by significant changes in the environment of the synthetic polity (what we may label as exogenous limits to synthesis) and by the tensions internal to the synthetic model (what we characterize as endogenous limits to synthesis). It is perhaps appropriate that we reiterate again that our theory is essentially interpretative and reconstructive, and thus we are trying to offer a framework of understanding of the founding and development of the European Union. So our theory is indeed a result of moving back and forth between theory and constitutional history. The Synthetic Constitutional Moment As is the case with integration through revolutionary constitution making, constitutional synthesis is launched by an explicit decision. But contrary to what is the case in the revolutionary tradition, the “constitutional moment” does not go hand in hand with deliberation and decision making on the literal tenor of the new fundamental law. Synthetic constitutionalism is more economical in political resources. It suffices that the parties agree to start a process of integration through constitutional law (entailing, as we saw, that the collective of national constitutional laws be projected to the supranational constitutional law) and that the process is conceptualized in democratic terms for the process to be democratically legitimate. This is so because under such conditions, the “synthetic constitutional moment”31 corresponds to the institutional realization and embodiment of the mandate to integrate that is thus enshrined in the national constitutions. This is not an (institutionally speaking) open mandate. The mandate underlines the need to sustain the constitutional core and affinity among the integrating entities. This also, of course, applies to the character of the supranational institutional arrangements, including how the democratic principle is institutionalized and substantivized. As will be made clear below, supranational representative and responsible government is that arrangement that best ensures both the vertical and the horizontal dimensions of synthesis.32 As we will consider at length in chapter 3 but summarily anticipate here to illustrate the previous point, the founding treaties of the European Communities launched an “ever closer Union” to be realized in respect of, and also through, national constitutional law. In retrospect, with the benefit of hindsight and through relying on a historically reconstructive approach, we can conclude that the idea that was struggling to be expressed in the innovative language of the treaties was that of synthetic constitutionalism. Constitutional synthesis is especially enticing because it creates the conditions under which it is legitimate to create a new polity and legal or-


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der by relying on the “constitutional” foundations of already established constitutional states (i.e., on national constitutions and their democratic legitimacy). Democratically speaking, there is no need for an initial political mobilization of the kind that is characteristic of revolutionary constitution making. It is clear that intense political debate on the contents and structures of the constitution is a necessary element of democratic constitutionalism. It is also clear that supranational constitutional integration—to be democratic—also requires that citizens conceive of themselves as part and parcel of a wider-imagined community. The problem facing Europe after World War II was the inability of most Europeans to consider themselves as part of a wider European community (even if they at the same time felt that some form of integration was needed in order to avoid a new disaster). Task number one was instead to restore amicable relations among former enemy combatants. In this circumstance, there was a clear absence of a default stabilizing collective identity. Further, any effort to launch an intense political debate as a prelude to a constitutional “big bang” would most likely have backfired badly.33 European resistance movements were then also very conscious of the fact that the window of opportunity for constituting a European federation would be closed literally months after World War II had come to an end.34 The interesting point about constitutional synthesis is that it renders democratic constitution making possible under such apparently inhibiting circumstances. As we will show, integration through constitutional law in a setting of wellestablished constitutional polities comes with procedural-democratic safeguards that render a stabilizing collective identity less important at the outset. The genius of constitutional synthesis is that it combines democratic experimentation (democratic constitution making at the supranational level) with familiar state-based democratic procedural safeguards. The peculiar circumstances of constitutional synthesis suggest that there is no need for an intense political debate in the initial upstream. In other words, constitutional synthesis offers a way out of the impasse by pointing to a procedure where democratic legitimacy can be assured without an initial constitutional “big bang,” allowing the process of constitutional integration to start and creating the conditions under which the new common constitutional identity can be imagined (and consequently solidarity bonds be forged). This in no way rules out the need for popular sanction; the more integration proceeds toward a self-standing constitutional construct, the greater the need for popular sanction.35 Transformative and Simple Constitutionalization Constitutional synthesis reduces the political resources needed to launch the process of constitutional integration, but at the price of leaving implicit


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the constitutional nature of the polity and its legal order, of leaving unexplored the actual normative content of the regulatory ideal of the common constitutional law (and, as we will consider in the coming sections, of establishing an incomplete institutional structure). This explains why in constitutional synthesis the synthetic constitutional moment is followed by a combination of transformative and simple constitutionalization. Transformative Constitutionalization Because it does away with the explicit process of constitution making, synthetic constitutionalism resembles in some respects evolutionary constitutionalism. The transformative constitutionalization of the legal order is a necessary part of the evolution of a synthetic polity. The key difference lies in the fact that in constitutional synthesis, transformative constitutionalization is not so much about the actual content of constitutional norms (which is programmed, so to speak, by the regulatory ideal of the common constitutional law) but about the full internalization by institutional legal actors and citizens in general of the constitutional nature of the polity and of the legal order that is being created. As we will see shortly and in more practical detail in chapter 3, the emergence of a pattern of “substantive” transformative constitutionalization, or changing the content of the constitutional norms of the synthetic polity without regard for the regulatory ideal of the common constitutional law and without resort to explicit constitution making, is indeed an indicator of a crisis in the process of synthetic constitutionalism, something which is clearly not true in evolutionary constitutionalism. It is important to add that transformative constitutionalization was especially important in the European case because the European Union was a pioneering synthetic polity. This is what accounts for the specific complexities of a process such as that of accepting the structural principles of primacy and direct effect, or the late and controversial affirmation of the protection of fundamental rights as an unwritten general principle of Community law.36 Simple Constitutionalization The definition of the constitutional law of the synthetic polity through reference to the regulatory ideal of a common constitutional law implies that while we must assume that the synthetic constitutional order is created at the synthetic constitutional moment, its normative density is rather low. This is so because the synthetic constitutional moment brings to us only the regulatory ideal of a common constitutional law and some bits and pieces of the common constitutional law (in the European case, as reflected in the treaties).


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Synthesis thus presupposes that the specific normative contents of the regulatory ideal of a common constitutional law are then distilled from the set of national constitutions in a process that is different from that characteristic of both revolutionary and evolutionary constitutionalism, even if it shares some common traits with the latter.37 It is different from the former because it proceeds comparatively. Instead of one constitutional text, one set of constitutional debates, and a “constituted” political process, the evolutionary constitutionalization of the synthetic polity proceeds by exclusive reference to the national constitutions of the participating states (there are several, not one, constitutions; but in contrast, the constitutional debates and the “constituted” ordinary political processes are of less help precisely because they are too many). In contrast to evolutionary constitutionalism, the simple constitutionalization under constitutional synthesis does not proceed organically.38 It is not based on an exploratory trial-anderror process, but is framed by the collective of national constitutions. As a consequence, the synthetic constitution cannot be said to evolve so much as it is fleshed out and distilled from national constitutions. Constitutional synthesis still implies that there is a clear and fundamental reference to popular authorship as the ultimate legitimating principle of synthetic constitutional law, a feature typical of revolutionary constitution making. The regulatory ideal of a common constitutional law makes it possible for such a reference not to have to be mediated to the supranational people as such, but to the peoples who authored national constitutions and who are in the process of collectively building a supranational constitutional entity (key here is the transfer, the process whereby national constitutions lend democratic legitimacy to the supranational constitution). Furthermore, the constitution is the result of a process of progressive evolution, but there are always clear positive constitutional norms (the national constitutions) that serve as the reference for each and every decision in the progressive constitutionalization of the fundamental law. This places synthetic constitutionalism at odds with the inductive process of evolution and renders it similar to revolutionary constitutionalism, only that popular authorship is indirect in the synthetic notion, as national constitutional norms are legitimized and seconded as supranational constitutional norms. Exogenous and Endogenous Constraints: Vulnerability of Synthesis to External Shocks and Inner Tensions The process of constitutional synthesis is highly susceptible to the many tensions, upsets, and conflicts that emanate from within and without the common constitutional field. Some of these are, so to speak, intrinsic to the field (such as the fact that a field is made up of a range of legal systems and is therefore necessarily diverse); thus we may talk about limits that are


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intrinsic to any process of constitutional synthesis. In addition, there will be limits that are specific to the European case, but not necessarily to constitutional synthesis as such; they result from essential but contingent factors. A first set of constraints stems from the fact that synthetic constitution making is especially vulnerable to exogenous shocks caused by radical changes in that part of the political and socioeconomic environment that is external to the integrating polity. This vulnerability is mainly the result of the low institutional robustness of a synthetic polity when compared to nation-states, whether forged in a revolutionary or evolutionary manner. External shocks reveal the extent to which the synthetic polity lacks political resources (in the form of coercive, economic, or even cultural means) to absorb the shock and to create conditions under which a return to stability is possible (and quick). Second is the extent to which the process of constitutional synthesis can spur resistance to further integration. One relevant factor is that the more the process of synthesis advances, the greater will be the “institutional temptation” to put forward autonomous conceptions of Community law that are out of synch with what can be understood as a genuinely common constitutional law. This process of progressive emancipation is clearly at work in Community law. On the one hand, that is the background for the legitimacy crisis of Community law as a result of the ECJ dislodging it from national constitutional law. The case law of the Luxembourg judges since the late seventies has de facto emancipated the Community economic freedoms from national constitutional standards. Economic freedoms used to be characterized as operationalizing the principle of nondiscrimination on the basis of nationality. As such, they were essentially enjoyed by non-nationals, who were now to receive the same treatment as nationals. But what this treatment consisted of was still to be defined by reference to each national constitutional and ordinary legal order. Since its rulings in Dassonville and Cassis de Dijon, later extended to other economic freedoms, the court has recharacterized economic freedoms as part and parcel of the overall status of European citizenship. But contrary to what may be considered, this has not resulted in politicizing Community law, but in curtailing the links between national and European constitutional law. Economic freedoms are now enjoyed by all Europeans (including nationals against their member states) and are infringed by any kind of obstacle to their actual or potential exercise.39 Such emancipation comes at the price of a reduced measure of transferred democratic legitimacy via the common constitutional law. Because in Europe the emancipation has been led by the Court of Justice, there may be a day of democratic reckoning (a first instance of that was the public reaction to Viking and Laval,40 institutionally enshrined in the Lisbon judgment of the German Constitutional Court).41 On the other hand, the lack of a complete institutional structure implies the oppo-


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site risk, namely that synthesis may result in national opportunistic moves cloaked in constitutional discourse, or that national political or judicial institutions may try to reinforce their strategic options by producing legal opinions that define the common constitutional standard in ways amicable to their own interests. A third possible constraining element is that the more the integration advances, the greater will be the need to adapt national constitutional structures and the greater the challenge to national constitutional identity. The more that integration expands, the more diverse the Union will be. Here size and numbers matter: the greater the number of new entrants and the larger their size, the greater the institutional shock because every increase in membership entails a reconfiguration of the constitutional structure of the Union. Further, the more that integration advances, the more the tensions between substance and procedure are revealed, and the more they make the normative shortcomings apparent (the snowballing democratic deficit). And the more integration advances, the more the different institutional claims to legitimacy will clash. This is a dynamic that can be observed in the European Union, where we can see national governments sitting on a dubious indirect democratic legitimacy, the Commission finding itself at a loss once there is another institution that embodies the supranational will and interest, that is, the EP, and the latter trapped in a downward spiral (reduced voter turnout) due to the gap between its legitimacy credentials and its lack of consequent power, with the ECJ torn between its aspiration to emancipate European constitutional law from national constitutional law and the democratic foundation of Community law on common constitutional law. A fourth constraining category is direct political resistance to synthetic constitutional integration. This point underlines the role of political agency and can take many forms. One is explicit rejection of the supranational union as a constitutional project, whether by governmental actors or civil society ones. In the EU, the fuzzy character of the constitutional discourse has as one effect that this is not always clearly articulated, but it often shows up in unwillingness to frame discussion of treaty reform in constitutional terms. Another is unwillingness to adapt national procedures to serve the process of synthesis. Synthesis implies a gradual harmonization of the constitutional amendment procedures of participating states. Thus, unwillingness to harmonize national constitutional amendment procedures will clearly stymie the process of synthesis. A third form is seen in how national administrations contain their compliance with supranational law.42 One final constraining factor lies in the fact that actors and analysts have not understood the process as one of constitutional synthesis, certainly not in the sense of a constitutional theory that is able to account for and to justify constitutional integration. In the European case, these lacunae


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have produced diversity in outlooks, heightened uncertainty about process dynamics and results, and given impetus to resistance. It follows that the lack of a proper theoretical explanation of the key innovative features of European constitutional law has major implications.43 Field endogenous factors (such as, for instance, diversity and different orientations to each other and to the outside world) as well as field exogenous factors (such as structural shocks) affect the shape and pattern of integration. Increased field diversity through admission of new member states sets new limits on synthetic integration. The same applies when shocks or transformations increase the range and character of constitutional models, traditions, or visions in the field. Both forms of diversity may have external roots but become embedded in and reconfigure the shape of the field. That is well illustrated by the neoliberal turn in the EU in the late eighties and nineties, which represents the incorporation of a new and different conception of the underlying socioeconomic constitution. Its fissiparous effects were amplified in the nineties through the disjuncture between monetary and economic policy under the structural pressure of German reunification. Similarly differentiating and disintegrating effects had external sources, such as reorientations in American foreign policy, first under Nixon and more recently under George W. Bush. The list of constraining factors can be extended, as will become apparent when we consider more concretely how the process of constitutional synthesis has unfolded in the two latest rounds of European constitution making, Laeken and Lisbon. In the following discussion, we will use the term stymied synthesis to refer to how the process of constitutional synthesis has run up against either exogenously imposed or endogenously generated limits. If strong enough, they would halt or undo the process of synthesis. Constitutional synthesis is a path to the establishment of a democratic constitution that forms an alternative to both revolutionary and evolutionary constitutionalism. But even if all these three constitutional roads may lead to the Rome of a democratic constitution, each of them has different structural implications. The revolutionary path results in a constitution with an intense democratic legitimacy; not only does the process of constitution making release civic energies and political commitment, but the symbolism of the written constitution is capable of performing a key integrative role in society. Having said that, the revolutionary path has become so closely associated with the national constitution that it is hard to apply to the supranational level but may actually be an obstacle to the democratic constitutionalization of supranational relationships. And once an evolutionary constitution has become entrenched, it provides political stability even in the direst of circumstances. However, its development presupposes not only a firm hold on political power, but also a prepolitical common culture. Furthermore, stability comes at the price of the defense


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of the status quo, including different types of injustices. Consequently, it does not provide by itself much of a guarantee that constitutionalization will naturally gravitate toward democratic order. And finally, synthetic constitutionalism combines economy of political resources with speed in the process of integration. But synthetic polities are somewhat vulnerable to external shocks given their “double” constitutional pluralism, and the very success of constitutional synthesis results in the development of factors limiting (stymieing) integration from inside.

INSTITUTIONAL DEVELOPMENT UNDER SYNTHESIS: REPLICATION, ADAPTATION, AND EXPERIMENTATION As bears repeating, in Europe constitutional synthesis combines the regulatory ideal of a common and single constitutional law with a pluralistic institutional structure. This entails synthesis proceeding simultaneously, albeit quite differently, in the legal-normative and in the institutional dimensions. Constitutional synthesis of course comes with institutional presuppositions, which refer to the basic institutions that sustain national constitutions. But synthesis does not imply that such a complete set of institutions would be grafted onto the supranational level; in institutional terms, synthesis is a far more open-ended process, as we saw earlier in this chapter. The main structuring factors are on the one hand the regulatory ideal and on the other the frail organizational structure (field) that ties the participating states together. This implies that we have to pay explicit attention to the institutional development under synthesis; this is also because synthesis offers little assurance that the institutions will end up fully reflecting the synthetic impetus. Note first that on institutional development, the initial establishment of a constitutional union of constitutional states will likely unfold through the establishment of (only) some supranational institutions. Then the relationship between supranational and national institutions would not be subject to hierarchical integration; contrary to the case in national or federal systems, there would be no hierarchical structuring of institutions, not even as a residual or backup rule to solve conflict. This is an almost unavoidable consequence of synthesis, which is a process that proceeds with due attention to the autonomy of the participating states. Second, from this, the EU’s starting-point, the progressive “completion” of the institutional structure (both in the sense of adding new institutions and of completing those originally created) unfolds in the constitutional field and is driven by (at least) three processes or mechanisms, namely: (a) replication, copying central principles and institutional elements from the national institutional structures to the supranational level (which accounts


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for the establishment and consistent empowerment of the European Parliament and the Court of Justice); (b) adaptation, guided, for instance, by the pressure to apply the same national constitutional principles in an original fashion given the peculiar functional needs of the supranational polity (which explains, for instance, the structure of the Union’s law-making process); and (c) experimentation, which is unavoidable given the unprecedented character of constitutional synthesis (painfully exemplified in the EU by the so-called comitology committees and other related structures). Third, the step-by-step nature of setting up the supranational institutional structure results in a further source of internal pluralism as different bits and pieces of the institutional structure respond not only to constitutional synthesis but to various sets of influences, which make their effects felt in different moments in time. Thus, as we will see in chapter 3, while the European Court of Justice was institutionally established through what was essentially the transfer of French institutional culture to the European level, the setup of the Commission was a more fragmented process that also depended on the institutional culture that dominated within each directorate general. Similarly, the system of European Central Banks (ESCB) was dominated by a transfer not only of substantive principles, but also of institutional culture from the German system. The ad hoc institutional arrangements of the open method of coordination mainly reflect the predominance of the ideological movement of New Public Management, which had made inroads first and foremost in British institutional structures (but also in Scandinavian ones). This process has been constitutionally fuelled by the fragmentation of the process of integration, first through the narrow remit of sectoral integration in the Coal and Steel and Euratom Treaties, by the unleashing of parallel areas of integration subject to international law arrangements (such as the old article 220 of the Treaty of European Community), and then by the pillar structure. Fourth, the imperfect manner in which the process of constitutional synthesis becomes institutionally embedded accounts for a good number of the tensions and limits that the common constitutional law encounters. It is indeed a further source of constitutional pluralism within processes of constitutional synthesis.44 Consider again a concrete European example. Since the inception of the EU, there has been strong pressure to upload45 familiar institutional arrangements to the EU level. There has been “synthesis through replication.” The process had an element of reflexive replication because it unfolded not through the mere uploading of elements from one uniform structure but rather from a range of national arrangements located within a common organizational field. Given that a field will form only insofar as the constitutive entities share certain commonalities, the structural and substantive norms that these entities have in common are natural candidates to become


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part of the institutional structure and substantive contents of the supranational constitution. Institutional replication manifests itself in concrete organizational examples, such as the European Parliament, as well as a judicial organ with compulsory jurisdiction, such as the European Court of Justice.46 They were not merely to be formally similar; those many pushing for replication have also wanted them to be operationally similar. And even if they were set up at the supranational level, the general expectation has been that their location within the EU’s overall institutional structure would resemble that of the constitutional state. The normative template was set early on; it guided a more gradual and reflexive process whereby the institutional specifics were gradually worked out. This helps explain why the European Parliament has steadily gained new powers through constitutional conventions later codified in successive rounds of treaty amendment.47 It also helps explain the general acceptance of the powers and competences that the European Court of Justice has assumed and vindicated through its own activities.48 Further, the fact that the legal-institutional systems at the European and member-state levels are interconnected, with the courts also procedurally tied together, ensures that there are strong isomorphic pressures on all participating courts.49 In other words, there are strong (coercive, mimetic, and normative) pressures on the institutions in the European field to become more similar over time through processes of copying, emulation, mutual adjustment, and mutual learning. Thus, the progressive consolidation of synthesis transforms the national institutional structures and decisionmaking processes of the participating states. This unavoidably affects the constitutional norms and constitutional conventions that frame the relationships among the institutions.50 The above examples show that under constitutional synthesis there are strong unifying pressures in the field. At the same time, the field is diverse, with internal and external tensions. This suggests that in many cases attempts at mere “uploading” of national structural or substantive constitutional norms would be misplaced, improper, or inadequate. The diversity and complexity of the field often unleashes processes of searching for which norm should be defined as the “common” one, with the result being some form of innovation on the national norm. Or a process of copying could make actors realize that the constitutional problématique was simply different up the governmental scale; thus it was necessary to modify existing ones to suit the new circumstances. An organizational field sustains an element of national difference and divergence and is highly susceptible to differentiating shocks or punctuated equilibria, which hit national constitutional systems. In Europe, institutions, decision-making processes, and material norms have at times had to be rethought, the underlying principles figured out,


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and the result operationalized at the European level in its own peculiar form. We see this clearly with decision-making procedures which for a long time mixed intergovernmental and supranational principles but have gradually converged around a distinct system of supranational representative government. Even the European Parliament is no replica of national parliaments; it is a weak copy because it is a case of gradually adapting the notion of representative government to the supranational level. Even more pronounced, innovation in the institutional shape given to basic constitutional principles helps to account for the institutional identity of the Council of Ministers and of the Commission. Indeed, the Council of Ministers is to be regarded as the constitutional alternative to the diplomatic conference. Democratic accountability is structurally fostered not only by rendering the institution permanent (and thus opening the way to the forging of controlling institutions at the national level), but foremost by the design of the decision-making process. The consultative or co-decisive role of the European Parliament not only contributes directly with a modicum of democratic legitimacy to the final decision,51 but also indirectly renders possible, even if far from certain, national parliamentary control of national government52 (especially if national parliaments develop means of acting coordinately or even collectively in that regard—a development that may or may not be sparked by the innovations introduced in the Treaty of Lisbon).53 But the forging of a common constitutional law may give rise to problems that national constitutional states have not faced. Indeed, synthesis also implies a certain degree of experimentation, heightened in the European case by the pioneering role of European integration in this alternative, “third-way” constitutional tradition. In cases where national constitutional norms are unsuitable to the task at hand, either because the problem is radically different at the supranational level or because the effort to establish a viable common position simply produces results nobody will accept, the obvious solution is experimentation. This is illustrated by the development of procedures of regulatory decision making in the form and shape of comitology committees. The treaties contained a reference to the form of regulatory instruments (indeed, regulations and directives), but those instruments were actually defined as statutes in a material sense. There was thus a gap not only in the system of sources of Community law but also in the set of law-making procedures. Replication seemed inadequate to attend to the functional needs of European integration. In particular, it did not seem a brilliant idea (and probably keeps on not being so) to assign statutory regulatory development to the Commission as a supranational administrative body, as it lacks the knowledge basis necessary to write the said statutory regulations. Replication was dysfunctional; there was a need to innovate or better experiment, as was indeed the case with comitology committees. The


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production of regulations was to be led by the Commission but checked by representatives from the member states, who could also contribute local and technical knowledge to the process. If understood within the matrix of the democratic system of sources of law, comitology is to be regarded as having added to the democratic legitimacy of Community law, creating means and procedures through which the said legitimacy could be achieved even when implementing the essential elements of statutes through regulations.54 Institutional development under synthesis thus proceeds through replication, adaptation, and experimentation. And still, because the process is reflexive, the sum total is bigger than the parts, in the sense that these acts of “putting in common” institutions and fundamental laws have a major transformative potential. They require reconsidering the normative ties reflected in political and legal life on a larger scale because the very political and constitutional link among citizens was enlarged by creating common decision-making institutions and procedures, which produced common action norms. This necessarily implies a partial refounding of all national legal orders, in the sense that the validity of all national legal norms is now to be subjected to the condition of being in compliance with the principle of nondiscrimination.55 This is the result of expanding the breadth and scope of the general right to equality of nationals underpinning all national constitutions to all Europeans, whether nationals or not of the member states in which they are economically active.56 Accordingly, the European Union’s member states have been profoundly reconfigured to the point that neither the supranational nor the national institutional and constitutional structure can be understood without taking the other properly into account.57 Europeanization has in that regard meant an end to the understanding of the nation-state as an autarchic polity in empirical and normative terms, and its importance is further documented in the dynamics of institution building.58

CONSTITUTIONAL SYNTHESIS DISTINGUISHED FROM OTHER POLITICAL AND LEGAL THEORIES OF INTEGRATION In this chapter we have fleshed out the basic intuitions behind constitutional synthesis and described the normative and institutional dynamics through which it unfolds. But in the same way as the Union was not created on a blank slate, constitutional synthesis has not been crafted in a theoretical vacuum. In this final section we consider the five political and legal theories of European integration that have been more influential on our thinking.59 And still, it seems to us for the reasons mentioned below


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that constitutional synthesis offers a better and more coherent theoretical alternative. But if that is so, we would like to stress, it is because it captures what seem to us as fundamental insights of these theories. Wessels’s Fusion Terminologically speaking, the most similar-sounding approach to constitutional synthesis is naturally the fusion theory, foremostly associated with Wolfgang Wessels,60 who argues for the need to analyze European integration as a process of gradual fusion. The point of departure is the challenge of managing growing state interdependence. Within this context national governments and administrations have become intensely included in the entire EU policy cycle. The integration process brings about a fusion of public instruments from several levels (state and EU)—as part of a broader vertical and horizontal process of Europeanization of national actors and institutions. The upshot is a Union marked by overlapping competences and administrative and political interpenetration across levels, which makes it quite different from a state-type entity.61 Fusion results from rational state actors searching for a viable “third way” in between intergovernmentalism and federalism. This manifests itself in the EU’s legal-constitutional structure, which takes on aspects of both a constitution and a treaty (although it seems to us that the theory does not clarify the relationship between the two).62 Fusion theory is quite different from the theory of constitutional synthesis. It has a different analytical focus: it is about institutional interaction and policy processes, not constitution making (which is more general and encompassing). However, it is also (much like synthesis) process oriented and is particularly concerned with understanding the institutional dynamics of European integration. In that sense it yields valuable information on how the multilevel EU’s complex institutional structure operates. Still, it is not clear on its constitutional implications (neither in legal-dogmatic nor in normative terms). Fusion theory does not focus on how the EU’s legalpolitical institutions were formed, nor does it pay much attention to their institutional-constitutional identity. It is therefore silent on the core aspect of synthesis, namely the manner in which national constitutional arrangements have become integrated in the aggregate European constitutional order, and on the structure of the legitimacy equation of the European Union. Pernice’s Multilevel Constitutionalism Ingolf Pernice’s theory of multilevel constitutionalism is probably the theoretical approach that comes closest to the theory of constitutional synthesis.63 Pernice rightly underlines that the European legal system had consti-


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tutional character from the outset and further that this was authorized by the national constitutions, but in contrast to the theory of constitutional synthesis, he does not establish what this authorization entails in constitutional and democratic terms. Pernice does point to the close interdependence that exists between European and national law, an interdependence that is also manifest in the institutional structure, where member states and their constitutions are increasingly Europeanized through the development of the EU system: “[T]he constitutions of the EU Member States, no less than these states themselves, have undergone some important mutations. In addition to their character as founding instruments of the states, they have become foundational components of the European multilevel constitutional system.”64 This system, as multilevel constitutionalism underlines, is ultimately an instrument for the citizens. During the process of European integration, citizens have conferred upon themselves a new political status as citizens of the European Union. In accordance with this, the theory of multilevel constitutionalism seeks to devise a democratic constitutionalism that is adequate to the complex and unprecedented European setting. Multilevel constitutionalism and constitutional synthesis have roughly the same point of departure: national constitutions authorizing European integration.65 But multilevel constitutionalism does not develop how this structures the relationship between European and national law. Instead, the theory offers a vague account of pluralism and the absence of hierarchy between the two. Further, instead of placing the accent on how the memberstate constitutions condition the Union (through constitutional synthesis), the accent is on how the Union conditions the members. The development of the Union (a sui generis type of organization) contributes to transform the member states in a world wherein state sovereignty is undergoing profound changes. We see this in the strong emphasis on experimentation, which is held up as the main mechanism in forging the Union’s legal order—a system that has emerged through a process of “trial and error.”66 Constitutional synthesis, as we have seen, places more emphasis on transfer of constitutional norms and principles, which not only renders possible the development of a uniform legal order but also helps us understand the normative standards that condition behavior and inform the structure (or to put it differently, constitutional synthesis applies the same normative standard to all constitutional dynamics, and as such differentiates between those forms of experimentation that are normatively acceptable and those that are not). Multilevel constitutionalism is also a theory of democratic constitutionalism with normative purport, but where the normative standards are not made explicit and where the commitment to integration appears insufficiently attentive to the actual consequences of the process. Thus, it is not clear in what sense citizens can claim ownership to this structure. The


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theory offers no conception of what democratic citizenship entails; thus there is no clear standard to establish under what conditions European citizens can understand themselves as authors of the law, in substantive and procedural terms. In effect, the status of citizenship under Lisbon (deficient in terms of representation, transparency, and accountability) is said to qualify as multilevel constitutionalism. The closed and secretive manner in which the Lisbon Treaty was forged (as we argue in chapter 4 more akin to a governments’ constitution than to a citizens’ constitution and with citizens as mere ignorant bystanders) can also apparently be reconciled with multilevel constitutionalism. The theory can thus be accused of seeking to legitimate a particular institutional-constitutional structure. In contrast, the theory of constitutional synthesis underlines the conditional legitimacy license that national constitutions confer on the Union through the integration clauses, which solves the problem of democratic standards. Multilevel constitutionalism thus starts with a correct intuition, and although it provides a number of important insights, it ultimately fails to deliver on this. Moravcsik’s Liberal Intergovernmentalism Andrew Moravcsik’s concern is to explain why the EU has emerged, that is, why states have ceded sovereignty and permitted the emergence of a truly unique international institution.67 Moravcsik’s innovative theory of liberal intergovernmentalism (LI) was devised to explain treaty making/change as a series of great bargains.68 He depicts the EU as a limited nonstate regulatory polity that has reached a stable European constitutional settlement.69 Since Maastricht this material constitution has developed into a stable constitutional settlement; recent reform efforts have been mere tinkering, including the ill-fated Laeken effort, which was based on a misguided embrace of democratic constitutionalism. The European constitutional settlement is democratically legitimate because the EU is ultimately a confederal arrangement whose democratic quality remains anchored in the democratic member states. The EU also complies with standards of legitimate governance—more attuned to nonmajoritarian regulatory bodies than to majoritarian representative-democratic ones because it has a limited remit of action and basically deals with low-salience issues. Liberal intergovernmentalism shares with constitutional synthesis an emphasis on the central role of the member states in the forging of the Union’s constitutional arrangement. But the two perspectives offer very different readings of the character and status of the constitutional construct, as well as of the constitutional character and salience of this process.70 The LI approach lacks proper intellectual tools to capture the normative and symbolic dimension of the constitution. Moravcsik casts Laeken as a misguided and out-of-place constitutional attempt whereas our position is in


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this specific regard closer to that of Pernice, who argues that “without really changing it in substance, the Constitutional Treaty allowed understanding a little more of what the EU really is and does.”71 While Laeken was far from being a satisfactory constitutional process from a normative perspective, its normative élan is not in our view what caused it to fail. Laeken unraveled for very different reasons; and at any rate, it is misleading to conclude that what led the process to unravel was the concern with democratic legitimacy. Weiler’s Constitutional Tolerance Joseph Weiler starts from the notion that the EU has developed a stable constitutional settlement that departs from the state structure: “European federalism is constructed with a top-to-bottom hierarchy of norms, but with a bottom-to-top hierarchy of authority and real power.” This construct’s veritable Grundnorm is, according to Weiler, the notion of constitutional tolerance.72 Together with Joerges’s theory of conflicts—which we consider in the next section—constitutional tolerance can be said to have given expression to the pluralistic insights of the “law and context” approach developed in the seventies and eighties (especially at the European University Institute in Florence).73 The peculiar constitutional dynamics of the European Union are pinned down to the “dualistic” character of its constitution, composed of a supranational legal order and an intergovernmental political system.74 Weiler provides an incisive theory of institutional dynamics, especially on what concerns the interaction between supranational and national judiciaries.75 To that Weiler has also added a “political philosophy” of integration through European constitutional law under the already-mentioned label of “constitutional tolerance.” Weiler notes that “in the Community, we subject the European peoples to constitutional discipline even though the European polity is composed of distinct peoples. It is a remarkable instance of civic tolerance to be bound by precepts articulated, not by ‘my people,’ but by a community composed of distinct political communities: a people, if you wish, of ‘others.’”76 Tolerance is seen to generate voluntary acceptance and nondiscrimination, but Weiler is not clear on how far this can carry a constitutional arrangement. He correctly identifies nondiscrimination as a key factor in the determination of the Union’s normative identity. But nondiscrimination does not lead to a constitution of tolerance (which is geared to dealing with inequalities, not emancipating citizens from them), but rather to a constitution of equality, to integration through constitutional law, which, however, becomes a problem when it is instrumentalized at the service of a process of partial and limited integration, where the universalistic force of constitutional law is put at the service of values that undermine the very idea of integration through constitutional law. This would amount to a “Weilerian” reading of Weiler’s theory that the author himself has seemed


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less keen to follow in the past decade.77 Weiler’s notion of constitutional tolerance captures the frail character of what we label as the Union’s constitutional field, but Weiler’s perspective provides an inadequate account of the forces that keep the field together (whereas constitutional synthesis offers a more adequate account). Joerges’s Theory of Conflicts Joerges’s theory of European law as a sophisticated system of conflicts of law depicts Community law as a constitutional discipline of conflicts between coexisting legal orders. The key intuition is that Community constitutional norms should be characterized as the norms that establish (and frame) the conditions under which supranational conflicts are to be solved through the mutual recognition of national norms.78 This can be said to be not only a reelaboration of the core insight of the Cassis de Dijon line of jurisprudence, but a very concrete definition of constitutional pluralism in the European Union. Community law must prevail insofar, but only insofar, as such primacy is necessary to organize the coexistence of national legal orders effectively; such primacy is not unconditional and must indeed be graduated by reference to the “regulatory interest” of national legislation in each specific case.79 The theory has also been developed by reference to concrete institutional setups and decision-making processes. The true conflictual template of drafting conflicts’ community norms is to be derived from the practice of comitology. And that is because comitology gathers different forms of knowledge and renders the final norms cognizant of local conditions at the same time as its institutional design renders comitology committees into sites that foster a deliberative style of interaction. Judicial adjudication also used to hold promise, even if after Viking and Laval Joerges has become much more critical of constitutional adjudication, perhaps pointing to a further development of the theory in terms of its institutional implications. However, Joerges’s theory does not make up a complete constitutional theory but provides key insights (albeit within a more limited frame) into fundamental aspects of the European constitution. He rightly focuses on, and in doing so illuminates, transnational institutional structures and decision-making processes that are beyond (or perhaps below?) the radar of traditional constitutional theories in a manner not well enough picked up by the broader community of social scientists. Still, his explicit denial of the democratic foundation of the legitimacy of the European Union sets his theory at odds with constitutional synthesis. This may be tracked back to his downplaying the federal ethos of the Union and the growing consolidation of a supranational societal structure.


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Indeed, he foresees only a remedial function of European institutions, curbing the democratic deficit of a system of sovereign nation-states. And while that latter insight is key in the development of our own theory of constitutional synthesis, it seems to us that the constitutional practice of the European Union has in empirical terms long transcended the stage at which the theory of conflicts could be a normatively sound reconstruction of European integration. The depth and breadth of normative synthesis entails that a mere conflictual approach cannot solve the key legitimacy problems underlying the transformative interpretation of economic freedoms or the flawed design of what has proved to be a highly deficient monetary Union. Finally, constitutional synthesis offers a rather different diagnosis of the sources of complexity in the European constitutional system. While Joerges most of the time sees outcomes as unstoppable processes of social differentiation, constitutional synthesis detects tensions deriving from the tension between the growing realization of the regulatory ideal of a common constitutional law and a weakly entrenched supranational politics.

CONCLUSION In this chapter we have fleshed out the constitutional theory we employ in the rest of the book to reconstruct the constitutional history of the European Union (with special emphasis on the last two rounds of fundamental reform, the so-called Laeken and Lisbon processes), to solve some of the most fundamental problems in European constitutional adjudication, and to contrast the European and the Canadian “postnational” experiences. We defined constitutional theory as a path to forge a democratic constitution, to integrate a polity through democratic constitutional law, alternative to the forms of constitutionalism characteristic of nation-states, namely revolutionary and evolutionary constitutionalism. The key element in the theory is the regulatory ideal of a common constitutional law, or the assignment of a dual role to national constitutions: as single national fundamental laws and as parts of the synthetic collective constitutional law. We then claimed that constitutional synthesis is characterized by matching the regulatory ideal of a common and thus single constitutional law with two forms of constitutional pluralism, namely the nonhierarchical amalgamation of supranational and national institutions and the institutional pluralism resulting from the progressive creation of supranational institutions in which national institutional structures and cultures contrast each other. This led us to characterize constitutional synthesis by reference to both its constitutional and its institutional dynamics. On what concerns the former, synthesis tends to follow a sequence formed by a synthetic


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constitutional moment, where a “thin” decision is made to transfer the collective of national constitutions to the supranational constitution, with intertwined processes of transformative and simple constitutionalization, through which the constitutional nature of the polity and the legal order are revealed while the contents of the common legal norms are fleshed out by reference to the regulatory ideal of a common constitutional law, and that tend to lead to different forms of crisis, triggered by the proclivity of the synthetic polity to be destabilized by external shocks and internal tensions associated with the synthetic form. On institutional dynamics, we distinguish among processes of replication, innovation, and experimentation. These processes fill gaps in the institutional structure and shape the contest among national institutions and cultures. We finished by contrasting constitutional synthesis with five theories of European legal and political integration from which we have derived key insights, with affinities to or insights of relevance to constitutional synthesis. It is on this basis that we propose the theory of constitutional synthesis as the best possible account of the European experience. It combines attention to context, to core institutional-constitutional choices, and to the specific trajectory of the European constitutional development. In the subsequent chapters we will spell out how this process unfolded in the complex European setting. The next chapter starts with origins and traces the development up to the Laeken Constitutional Treaty experience.


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3 From Paris to Nice The Constitutional Path of European Integration

It is rather hard to explain how after all the work by the Parliament, the Dooge Committee, the Milan and Luxembourg summits and the Intergovernmental Conference, the neat result is what many people suspect, a dead duck anyway. —Altiero Spinelli, 16 January 1986

The two previous chapters introduced the requisite analytical, conceptual, and theoretical tools to make sense of the European Union and how it has come about. This chapter puts the tools to work. It provides a theoretically informed empirical account of the process of European integration from its foundation through the Paris (1951) and Rome Treaties (1957) and up to the end of the twentieth century, with the Nice Treaty (2000) as the marker. The chapter has three specific aims. First is to make sense of the Union’s complex identity, the characteristic feature of which is a constitutional Union of already established constitutional states that has come about through an unorthodox constitutional process. Second is to clarify through empirical reconstruction the role of the theory of constitutional synthesis in accounting for the process and the result. We thus need to be able to identify a constitutional synthetic moment as well as that combination of simple and transformative constitutionalization and institutional development that chapter 2 set out as characteristic of constitutional synthesis. Third is to clarify how and why the European Union, apparently a very fragile construct (less robust than a classical state), has undergone a dramatic process of growth and is even considered quite successful (consider, for instance, the number of states that have joined and those that still want to join it as members). In what sense can these features be traced back to 77


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the peculiar strength of the mode of synthetic polity integration and the innovative constitutional path that Europe’s democratic constitutional states followed in their efforts to forge a common constitutional order? The Union’s distinctness calls special attention to how the process of constitutional synthesis was embedded in institutional and policy form and how this in turn conditioned constitutional synthesis and the character of the Union as a polity. The chapter is organized in three sections that cover: (a) the synthetic constitutional moment that corresponds to the signing of the founding treaties of the Union (in three installments: 1951, 1957, and 1965); (b) the period of intense transformative and simple constitutionalization between 1958 and 1979; and (c) the European Union’s long constitutional season, which extends from 1979 to 2000. Developments from 2001 are studied in detail in chapter 4. The next section of this chapter explores the specific contours of the European synthetic moment. The sections afterward consider the three dimensions of constitutional transformation, simple constitutionalization, and institutional development in the two latter periods (1958–1979 and 1979–2000).

THE SYNTHETIC CONSTITUTIONAL MOMENT In the spring of 1945, at the end of Europe’s second and most devastating war in less than a generation, it was clear to most observers that a system of sovereign nation-states had no built-in mechanism to prevent further disasters. If anything, it gave license to untrammelled aggressive nationalism and cutthroat capitalism, the costs of their containment becoming ever greater.1 Further, the effects of the war, however divisive its conduct, had also impressed upon Europeans that they shared strong common interests, minimally so in containing the potentially explosive character of conflicts, maximally so in a host of common values and principles.2 This Hobbesian struggle of all against all, it should also be noted, stood in marked contrast to the high degree of social and economic integration that had been a major characteristic of Europe’s societies through the ages.3 It was in this stunde null (zero hour) of Europe4 that (a) the negative revolutionary zeal5 of postwar constitutions was forged, critically including a mandate to create supranational institutions or, more precisely, to create institutions above the state level that could give sustenance to the constitutional project of living under democratic law. It was the shocking experience of two world wars in one generation (b) that propelled dozens of integration projects in the first decade of peace, out of which the European Union was to result, thus realizing in an effective manner the justmentioned national constitutional mandate to integrate.


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National Constitutions Open Themselves . . . Indeed, the terrible consequences of two wars in less than a generation go a long way to account for the commitment to the restoration of constitutional democracy in Western Europe in 1945. Such a compromise was unequivocally tied up with the belief that supranational integration was a necessary precondition for realizing the democratic constitutional program.6 Three of the six constitutions of the founding states in 1951 and five out of the six in 1957 contained7 remarkable—and unprecedented—clauses establishing supranational integration as a core constitutional objective and purpose.8 These provisions must be construed as explicit acknowledgments by the national constitution maker (i.e., by we the national people) that the core principles of the national constitutional order cannot be realized within the confines of the sovereign nation-state but require establishing supranational institutions and common action norms governing transnational social and economic relationships.9 This is for two main reasons. First, the combination of a high level of social and economic interdependence with the lack of common action norms and common institutional structures had twice proved to be a disastrous combination. A system of autarchic nation-states in a continent marked by a multitude of transfrontier relationships was necessarily prone to crisis. Second, autarchic nation-states were structurally biased against democracy. Large sections of those affected by national decisions would be excluded from the process of making them (those who were affected across the border but debarred from discussions and votes).10 Peaceful coexistence in a system of autarchic nation-states had proved a dangerous illusion. This naturally required reconsidering what the primacy of the constitution entailed, in view of the fact that such primacy could be guaranteed only through integration (and then integration implies putting an end to the characterization of the constitution as an autarchic set of norms). The critical point was that constitutional primacy should not be transformed into an obstacle to supranational integration. That would be (and continues to be) a key point in the elaboration of a proper constitutional theory of European integration.

Supranational Integration Is Launched The painful and tragic events reinforced the notion that the constitutional state depended on supranational integration to ensure peace, democracy, and social justice. This accounts to a large extent (albeit not fully)11 for the great number of integration proposals—of one kind or another—that were advanced in the mid- and late forties.12 All proposals were built on the


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premise that the high degree of interdependence among European societies required the establishment of common institutions and common action norms. While diverging on the concrete means through which this goal was to be realized, all of them were underpinned by the belief that there was a need for some form of institutional and normative integration to transcend the “state of nature” that then accrued in interstate relations in Europe.13 We know now that the European Coal and Steel Community in 1951, completed by the Economic Community and the Atomic Energy Community in 195714 and placed under a common institutional framework partially in 1958 (for what concerned the Assembly, the later Parliament, and the Court of Justice) and completely in 1967,15 were to be the institutional structures through which the national constitutional mandates were to be realized. The just-mentioned set of treaties (the Paris Treaty of 1951, the Rome Treaties of 1957, and the Merger Treaty of 1965) are rightly characterized as foundational. The treaties not only established a new institutional structure (three Communities which were, however, to be regarded as bits and pieces of the same political project, for a long period referred to as the European Community or “the Community”) but critically constituted a new legal order, widely known as Community law. Formally speaking, the Community was created through what were three international treaties (plus an ancillary treaty on common institutions in 1957 and the Merger Treaty of 1965). The new legal order was one subset of international norms, or a specimen of regional law written in the very template of international public law.16 However, and despite formal appearances, we claim that this foundational moment is properly reconstructed as a constitutional moment, as a moment in which a new polity (the European Community) was created and a new constitutional legal order established. This can be substantiated by considering (a) the range of public powers that were transferred, (b) the scale and depth of institutions that were created, and (c) the principled nature of the normative powers being constituted which were in open tension with the treaties’ international form. The treaties envisaged in clear-cut terms the transfer of the exercise, if not the full title, of significative public powers from member states to the European Union. In the case of the ECSC and the Euratom, this was somehow obscured by the fact that the powers being transferred concerned a rather specific and narrow set of issues (albeit of dramatic importance, as coal, steel, and atomic energy were the sinews of war in the 1950s). In the case of the EEC, there was some equivocation resulting from the combination of a detailed set of negative integration measures (aimed at realizing a “common market”) with vague references to wider goals of economic and political union. But in all three cases, what count as key competences in the political process of a democratic polity were agreed to be transferred to the European level. In that regard,


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not only did the ECSC expect the Community to be self-financing through the use of its taxing power over coal and steel industries (thus granting the newly created institutions a limited but revealing power of the purse), but the EEC Treaty implied the full transfer of powers to the Community over customs duties as an unavoidable consequence of the creation of a common external tariff17 as well as a partial but decisive transfer of legislative competence over turnover taxes. That necessarily implied transferring key taxing powers, which have always been at the very center of the political constitution of democracies (and of revolutionary democratic politics, from the British civil wars and the Glorious Revolution of 1689 to the French Revolution of 1789). To that we could add the transfer of competences on external trade, also a logical part of the creation of a customs union, and on agricultural policy (once the inconclusive provisions of the treaty were rendered concrete in political practice), which was one of the items at the very heart of political debate in the fifties, given the higher strategic, economic, and social importance of farming at the time (it might be added that a large part of the population was still occupied in the primary sector and that the failure to ensure a decent standard of living to farmers in the interwar period had facilitated the rise of fascists and nazis to power).18 The institutional structure contemplated in the treaties went well beyond what is generally associated with an international organization. It included a supranational High Authority or Commission with competences far beyond those proper of either a permanent secretariat or even a supranational independent administrative agency, a Common Assembly (which from early on had the vocation to become a directly representative parliament, that is, a body elected by the direct suffrage of the citizens),19 and a Court of Justice in charge of ensuring that the “law” (and not merely the treaties) would be observed and to whose jurisdictions member states were compulsorily subject. It was hard to think of similar institutional arrangements in international organizations. This was further underlined by the fact that the Rome Treaties of 1957, while resulting in a threefold Commission/High Authority and Council of Ministers structure (one such structure for each of the Communities), made the Common Assembly and the Court of Justice common institutions in the three Communities, thus laying the basis for a common institutional framework achieved through the Merger Treaty of 1965, and at any rate pointing to a decision to create a wide and encompassing supranational structure beyond the concrete Communities being launched to make integration feasible and possible at first. The new institutional structure was not only assigned with substantive competences up until then in the hands of sovereign states, but was also given normative powers, concretely, the power to approve regulations and directives. Such legal norms were not to be regarded as a congeries of


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technical or specific norms but were framed by constitutional principles, of which they were expected to be concretizations. Key in that regard was the principle of equality before the law, which in the context of a process of European integration was essentially defined as the principle of nondiscrimination (crucially on the basis of nationality, but also on the basis of sex, and to which, much later in the process, race would be added).20 If all these three elements were to be realized, European integration was bound to change the constitutional identity of the nation-states that signed and ratified the treaties by forcing them to share competences, institutions, and laws. For these three reasons, European integration had the potential to be a process of integration not only through law but through constitutional law. We may add that the treaties were also perceived as constitutive by contemporary players. As one leading European constitutional lawyer has reminded us, “[l]egally speaking, it was clear from the outset that the 1957 EEC Treaty, like the 1951 ECSC Treaty before it, established a special, supranational organization of a constitutional character.”21 This finds ample confirmation in other sources.22 But the foundation was not and could not be a constitutional moment in the revolutionary constitutional sense. It was of a different constitutional breed: a synthetic constitutional moment, critically different from a process of revolutionary establishment and also clearly distinct from the mere evolutionary emergence of a democratic constitution. By 1951, all the founding member states of the Union (and all states that have joined afterward) were constitutional democracies, with legal orders based upon the premise that such constitutional norms should be and were democratic, and thus occupying the place of choice in the national constitutional order because they were founded on the principle of popular authorship or, at the very least, popular endorsement. If a new constitutional order was being created through the three founding treaties of the Communities and this resulted in a serious transformation of the national constitutional orders, how could that be regarded as legitimate? How could it be that what materially and normatively amounted to a European constitution, implying a serious transformation of the very constitutional identity of the member states, was made to enter into force through the signature and ratification of three international treaties? Unless properly accounted for, a major constitutional transformation would have been brought about through means contrary to those required and prescribed by the conception of constitutional democracy that underpinned (and keeps on underpinning) the positive constitutions of all the member states (and, as just said, especially the amendment procedures of the said constitutions, key in guaranteeing their normative force). Given the strong attachment to the idea of the constitution as the most legitimate set of norms in the legal order prevalent in postwar Europe (part


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of the negative constitutional moment brought about by two wars in one generation), it is difficult to believe that such a transformation could simply have taken place peacefully and orderly if it flew in the face of national constitutional norms. Indeed, the usual attribution of the agency of change either to national governments,23 to the European Court of Justice seconded by national courts,24 or to a combination of the two, is an overly narrow explanation and does not adequately take into account European citizens’ and legal and political elites’ depth of attachment to the idea of the constitution as the ultimate legal guarantee of democratic legitimacy. How, then, to make sense of this, given the depth of attachment to the normative standard in question? Constitutional synthesis posits that a constitutional order can be established in a legitimate yet alternative manner to revolutionary and evolutionary constitutionalism, if (a) supranational integration would lead to the creation of a supranational constitutional order, and (b) the substantive content of the supranational constitutional order would be defined by reference to the substantive content of national constitutional orders, that is, it would be defined by reference to the common constitutional law of the member states. Under such conditions, the primacy of the constitution that is the fundamental premise of national constitutions is guaranteed because most of the “national constitutional DNA,” so to speak, is transferred to the new constitutional order. At the same time, the mandate for supranational integration, for the establishment of one single legal order at the supranational level, is realized through the regulatory ideal of a common law promoting the convergence in constitutional terms of postwar European constitutions. The second condition is crucial because it stresses not only the derivative nature of Community law but also reveals its legitimacy foundations. Indeed, the new European constitutional order derives its democratic legitimacy from the democratic legitimacy of national constitutional norms. Because and to the extent that the collective makeup of national constitutions is to be regarded as the deep constitution of the European Communities, the democratic legitimacy of national constitutions is transferred to the new political order. The reconstruction of European integration as the search for an alternative democratic path to the establishment of a democratic constitution permits us to offer a coherent account that is able to (a) reconcile the (simultaneous) derivative and supreme character of Community law, (b) account for the constitutional process that the Communities were established through, and (c) demonstrate how this process can realize democracy beyond the nation-state. Constitutional synthesis is the framework under which integration can be started in a democratically legitimate manner without embarking on a revolutionary constitutional process, by substituting the revolutionary


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constitutional moment, the exercise of the democratic pouvoir constituant, with the synthetic establishment of the Union, by the promotion of the collective of national constitutions to the collective role of common constitutional law. And at the same time, it offers a framework for transformative and simple constitutionalization that is better defined and more precise than that of evolutionary constitutionalism. European integration may not have been possible had the revolutionary or even the evolutionary constitutional path been chosen. Key in that regard was the lack of a clear precedent of how to forge the democratic constitutional will of well-entrenched constitutional states and of how to stabilize such a union afterward, not to speak of the barrier to integration that entrenched national identities constituted in the aftermath of two bloody wars. Barring the exceptional chance that Europeans enjoyed in the last months of the war and the first of the peace, a revolutionary constitution of the European Union was unlikely and could be counterproductive, in that efforts to unite recent combatants could backfire badly. At the same time, the evolutionary path risked being equally impossible because the basic preconditions for its development seemed to include some form of collective identity or we-feeling, as well as a general commitment to enter into a binding constitutional arrangement, both of which were initially lacking in Europe. The synthetic path could (at least initially) do away with the people as a direct constitutional agent, but not with the democratically supported set of constitutional norms.25 All this was part and parcel of the experience of and the drive for integration. Still, as we stressed in chapter 2, there was neither a full-fledged vocabulary to express the constitutional nature of what was being done, nor was the challenge as the actors saw it to forge such a theory. Amid “utter misery and desolation,” the main tasks were to get on with the business of preventing further atrocities through urging on the process of integration and notably, in 1946 and 1947, providing enough food for starving populations. It is therefore hardly a surprise to find that what unfolded failed to exhibit a clear and easily discernible pattern that we can ascribe to a coherent constitutional theory or public philosophy of European integration. A synthetic constitutional “interpretation” of the European Union and of Community law offers the best account of the “point” of the collective practice of European integration at the same time as it provides a plausible and systemic reconstruction of the constitutional origins and implications of the process. It follows from this that the founding treaties constitute a mere partial explication of the deep constitution of the Communities. They represent the first efforts to specify and contextualize the common constitutional traditions in key areas from a strategic standpoint to realize the purpose of supranational integration.


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FROM PARIS TO THE DIRECT ELECTIONS OF THE EUROPEAN PARLIAMENT: TRANSFORMATIVE AND SIMPLE CONSTITUTIONALIZATION General Features As we have seen in the first section of this chapter, the founding treaties constituted the synthetic moment of European integration, creating the conditions under which integration was not only democratically licensed but also functionally structured. The undertaking was unprecedented and experimental but with a teleological orientation induced by the integration clauses and the broader constraints that emanated from this process taking place in a setting of already constitutionalized states with different appetites for supranational constitutional integration. The combination of these factors accounts to a large extent for the peculiar character of the first two long decades of the process of integration (which we mark by two key turning points: on the one hand, founding; on the other, the direct election of the European Parliament). In the following discussion, we reconstruct the key constitutional developments of this period, and in line with what was said initially, we seek to discern the character of the larger process of constitutionalization. To this end, we distinguish between (a) the dynamics of transformative constitutionalization of Community law, or the progressive assimilation of the constitutional nature of the European Union and its legal order; (b) the dynamics of simple constitutionalization, that is, the specification and fleshing out of the regulatory ideal of a common constitutional law, resulting in the distillation of derivative constitutional norms and ordinary legal norms; and (c) the dynamics of institutional development, the working out and activation of the institutional setup and decision-making processes foreseen in the treaties, which emerged through processes of institutional replication, adaptation, and experimentation. It must be added that this threefold process of constitutionalization proceeded for two decades in a relatively stable environment.26 In geopolitical terms, the Cold War—especially before the death of Stalin—created an environment in which Western European countries had external and internal incentives to proceed with the process of integration, a process given strong support by the United States of America, which actively propounded the “United States of Europe.”27 The United States also played a vital financial stabilizing and anchoring role, resulting in exceptional conditions of monetary and exchange stability. It was only in the last decade of the period that the environment became less favorable. Precisely when the constitutional nature of the Union was becoming widely recognized and the first (and extremely delayed) enlargement took place, the stable pattern of economic


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growth in the postwar era came to an end, and it could no longer be taken for granted that the United States would provide financial and geopolitical stability to Western Europe.

Transformative Constitutionalization Earlier we observed that there was an acute tension between the international form of the founding treaties and their constitutional substance. We claimed that this did not preclude Community law from being reconstructed in a constitutional light, as a constitutional arrangement. Nevertheless, the novelty of the situation coupled with the many tensions that the politically and institutionally pluralist Europe brought up meant that it took time to work out the implications of what was unfolding. That was the late fruit of a long process of transformative constitutionalization, of a transformation of European constitutional practice bent on accommodating the process of integration and coming to terms with its constitutional nature. In this section we consider the five key processes that propelled a transformed constitutional understanding of the Union: (a) the debates on ratification of the founding treaties; (b) the legislative implementation of the treaties; (c) the judicial interpretation and application of the treaties; (d) institutional practice, especially of the Parliament and the Court of Justice; and (e) the scattered but relevant amendments to the founding treaties that were approved in this period. We also consider the legal-dogmatic implications of constitutionalization, in the form of a new constitutional characterization of the system of sources of Community law and, in particular, the three processes of constitutional, legal, and regulatory construction of the sources of Community law. Finally we consider the few and limited instances of constitutional transformation through constitutional amendment in this period, which revealed a pattern of constitutionalization of reform processes. The Five Forces of Transformative Constitutionalization The constitutional nature of the Union struck home first in national processes of treaty ratification. During the parliamentary debates and judicial proceedings concerning the constitutionality of the ratification of the founding treaties, the constitutional nature of the new polity started to come to the fore.28 The constitutional underpinning of the documents was perhaps more neatly recognized in the opinion of the Conseil d’État of Luxembourg during the ratification of the Paris Treaty of 1951:


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Despite the fact that the objective at which the Treaty and the Conventions aim is of an economic nature, it cannot be contested that the Plan has a clear political intention. . . . History teaches us that economic cooperation between States has been the prelude and the foundation of political union. . . . When such goals are proclaimed, certain sacrifices are due, and must be accepted by European states. It is obvious that the establishment of supranational institutions requires renouncing certain national sovereign powers. The acknowledgment of a supranational authority will result in further constitutional developments within the framework of the Fundamental Law of Luxembourg. But as a matter of principle it should be granted that a State could and should transfer some of its sovereign powers if that is required by the public good, its realization being the ultimate purpose of the state. And next to the domestic public good we find the international public good. In many occasions, the realization of the domestic public good may be dependent on the international public good.29

Second, the process of legislative implementation of the founding treaties confirmed the constitutional identity of Community law. The supranational High Authority created by the Paris Treaty not only made use of the powers it had been granted, powers that pointed beyond the mere creation of an international organization (such as the collection of taxes from coal and steel industries, or the design of a policy with a clear social component aimed at the restructuring of national industries), but formulated clearly developed policies and views aimed at becoming the foundations of a wider and general European polity. That was especially marked in the first two years, during which the Coal and Steel Treaty was in force, and the debates on the contents and ratification of the Political and Defence Community Treaties were ongoing. This “constitutional” impulse decayed afterward but still left a major imprint on the process. It was less explicitly but forcefully present in the practice of the Commission and the Parliament during the first two decades of the European Economic Community. The constitutional nature of the European Economic Community accounts for the way in which the Commission and the Parliament made use of their powers from the very first day of the entry into force of the Rome Treaty.30 The Union’s constitutional identity was further entrenched in three momentous decisions of the Council of Ministers that reinterpreted the competence basis of the Communities and the purpose of common decision making. First was the fleshing out of the common agricultural policy, from the agreement reached in Stresa in 1962 to the completion of the regulatory framework of common market organizations in 1967 (and belatedly the agreement on genuinely European taxation as its financial basis in 1970). What is significant is not only that agricultural policy was the first positive economic policy implemented by the Community, but also that it implied contradicting the characterization of the Communities as a project of negative commercial integration (with wide institutional implications, which


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will be considered further below). Free circulation of agricultural products was rendered possible by heavy public intervention, not by deregulation, thus reconciling food provision, social peace, and justice.31 Second, the Council agreed in 1967 to a mid-term common European economic policy and to give legal form to the necessary measures through article 100 on the approximation of laws.32 Even if this was at best only half completed, the decision by itself implied going beyond the concrete four (and essentially negative) stages to the common market enshrined in the treaties and recharacterizing the Community with reference to its broader political and socioeconomic goals beyond the customs union and negative integration. The aspirational goals enshrined in the preamble were expected to be transformed into legal and political decisions. Key in this new understanding of economic integration was the shift in German economic policy. The ordoliberal macroeconomic paradigm favored by the towering economics minister and later chancellor (equivalent to prime minister) Erhard was replaced by a more Keynesian interpretation of what a “social market” economy meant,33 which led to a closer (even if not complete) convergence with the macroeconomic policies of the other member states (despite the long shadow cast by Jacques Rueff as adviser to de Gaulle from his position as judge in Luxembourg).34 This was further confirmed in 1972, when a European summit (an informal precedent of the European Council) agreed on the need to make use of then article 235 (on residual competence) as a means not only of taking legislative action in the framework of the Customs Union, but of achieving the larger goals of European integration.35 An intense growth in the Communities’ sphere of competence followed, with European laws on education, public health, environmental protection, regional policy, and noneconomic aspects of free movement of persons, among others.36 These three decisions implied transcending a characterization of the Union as a functional, sector-specific organization and endorsing the view of the Union as a process of integration through constitutional law. Third, judicial decisions, especially preliminary judgments rendered by the European Court of Justice at the request of national courts, are assumed to have been the key factor in the transformative constitutionalization of the European Union.37 While we must stress that there was a whole array of forces driving the transformative constitutionalization of the Union, there is no reason to downplay the role of judicial fiat in the process. In particular, as we will consider in more detail in the next section, it is essential to stress the constitutional implications of the key “structural” principles of Community law (direct effect and primacy), complemented in a second wave by “substantive” principles of Community law (economic freedoms and fundamental rights) and by the “structural” principle of preemption, which was naturally affirmed once the legislative action of the Community started


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to go beyond the strict realization of the mandate contained in the four stages to the common market. In particular, the doctrine of direct effect of Community law had a clear and open constitutional import because it affirmed that Community law and not a national provision was to determine the effect of Community norms in all national legal systems. This opened the constitutional floodgates, as it was simply logically impossible to reconstruct Community law and national law as separate legal orders (something that has not prevented national political and legal actors from pretending to this day that this can be done while accepting direct effect, regardless of logic. Fourth, the constitutional color of the Union was implicitly supported by the way in which both the Parliament and the Court of Justice performed their tasks. We have already stressed that the fact that the institutional structure of the treaties included a parliament and a court spoke volumes on the Union’s constitutional inclination, which they pushed to the full. And indeed, from its very establishment, the Parliament projected an institutional image corresponding to that of the parliament of a constitutional polity, claiming further competences, making strategic use of those obtained,38 and insisting on its present legitimacy basis and at the same time making a strong case for the direct election of its members.39 And through all, Parliament defended a clear-cut constitutional interpretation of the treaties, going beyond the mere understanding of the treaties as an economic charter.40 On what concerns the Court of Justice, it is significant that the vision of the Union as a constitutional polity underpinned its case law from the very early days,41 and that despite the narrow substantive breadth of the Coal and Steel Treaty and despite the fact that the original Court had a mixed composition, made up of both jurists and laymen, which might have inclined judges to assume a different institutional role and to operate with the assumption that the Union had a different political identity (to assume, in brief, that they were an arbitration panel rather than a court). That was fully reflected in the development of structural and substantive constitutional principles of Community law (to which we return later in the chapter). Fifth, it must be pointed out that the major “treaty-completing” decisions made in this long two decades added to the constitutional nature of the new polity and its legal order. The granting of (modest) budgetary and taxing powers to European institutions through the Own Resources Decision of 1970 and the 1970 and 1975 treaty amendments, as well as the direct elections of the members of the European Parliament, were unequivocal in this regard. The same can be said of the fleshing out of the common agricultural policy. While it is well known that the original plans of the Commission to create an independent financial basis for the funding of agricultural policy were unsuccessful at first, the policy was launched on a basis of financial solidarity and added a double redistributive side to European politics (through revenue gathering and through expenditure).


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The Legal Implications: The Constitutional System of Sources of Community Law The main legal implication of the transformative constitutionalization of Community law was the progressive reconstruction of the supranational legal order in the image of a constitutional legal order, through a threefold distinction among constitutional, legal, and regulatory norms. That transformation was, however, far from complete, given the institutional reluctance, including paramountly on the side of the Court of Justice, to “close” the system of sources of law through a clear-cut hierarchical ranking of the different types of laws.42 The process of constitutionalization sensu stricto corresponds to both the reading in a constitutional key of the founding treaties, famously regarded by the European Court of Justice and by at least one national constitutional court (the German) as containing key provisions in the European material constitution, and to the explication of the structural and substantive principles of European constitutional law. We return to this in a later section. The process of legalization resulted in regulations and directives being characterized as statutes in a material sense. The latter were invested with full binding legal character after the transposition period had expired in the mid-1970s. Both regulations and directives were affirmed as de facto laws by means of establishing their primacy over conflicting formal and substantive national statutes (a specific implication of the affirmation of the structural principle of primacy of Community law) and by means of unfolding their normative potential in the development of a common market, especially including tax harmonization (crucially so with the Sixth VAT Directive, which laid the basis for not only wider own taxing powers of the Union but also for the harmonization of one of the three main tax figures to this day in all member states).43 Finally, the creation of procedures and legal instruments of regulation in a technical sense filled a functional void in the original treaties. The daunting task of establishing the normative framework of the common market required creating within the European legal order procedures similar to well-established ones in the national legal orders, namely those that operationalize the division of normative labor among the legislature, the executive, and the administrative organs.44 The legislator steers regulation through general laws, which are concretized and “filled in” with local, technical, and expert knowledge by administrative and bureaucratic organs. In the Union, the absence of a specific provision led to the arrangement of such processes under the general legal type of “delegation of powers,” coupled with an experimental process in which the Commission worked together with expert representatives of the national governments to produce statutory regulations in the so-called comitology, whose institutional implications are considered below in the subsection on institutions.45


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Limited Constitution Making At the same time, the period was characterized by the almost complete absence of explicit acts of constitutional transformation, of explicit acts in which the treaty amendment power was exerted. That is not surprising. First, the potential of the treaties was far from realized. The need for reform could follow only afterward. That presupposes that the constitution has soaked in sufficiently, that its existence, contents, and institutional structure are sufficiently developed, because that is a logical prerequisite for realizing what is to be amended. Second, the relative success of the process of transformative constitutionalization rendered explicit constitution making less pressing. Indeed, the constitutional license embedded in synthesis accounts for the limited extent and relevance of the few instances of treaty reform in the first three decades of European integration. The limited explicit constitutional changes concerned (a) ancillary aspects to the founding decisions46 and (b) the completion of pending and open decisions in the Treaty on the European Economic Community. And still, three such decisions were fundamental and constitutional in nature. First was the fleshing out of the common agricultural policy, merely sketched in articles 38 through 40 of the original version of the Treaty of the European Economic Community.47 Second was the concretization of the Communities’ taxing powers and budgetary autonomy, undertaken through the 1970 Own Resources decision and through the 1970 and 1975 treaty amendments.48 Third was the direct election of the members of the European Parliament, which was put into practice in 1979 in compliance with the 1976 act.49 Moreover, even if constitutional reform was very limited, we can observe a slow albeit relevant move away from the diplomatic, intergovernmental character of treaty reform to a protoconstitutional process of treaty amendment (which mirrored in many ways the dual processes of constitutionalization that are part and parcel of constitutional synthesis in the terms described in this chapter). The Treaties of 1956 (Saar) and 1957 (Rome) did not follow the amending procedure established in the Coal and Steel Treaty, something which seemed to confirm the international character of the project of European integration. However, all remaining amendments were operated in full observance of the amendment provisions of the treaties. By the 1970s, supranational institutions with a democratic vocation (i.e., the European Parliament) were not only in place, but in the process of acquiring new powers and new degrees of democratic legitimacy, which rubbed off on the reform procedures. There was, for instance, a limited but far from irrelevant tendency to render the process more open and inclusive in the 1970s. Indeed, the 1970 and 1975 reforms, which granted substantive albeit limited budgetary powers to the Parliament, heralded in the


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processes of constitutionalization of treaty reform, to which we will return later in the chapter. The Growing Internalization of the Constitutional Nature of the Union We have shown that the international form of the treaties should not detract from the underlying constitutional tenor of the process of European integration. Moreover, the new legal order’s constitutional dignity and transcendence would soon be revealed and clarified in key decisions adopted in the political process and by courts. In that regard, it was also necessary to stress the key importance of the development of the substantive policies of the Communities. Simple Constitutionalization Constitutional synthesis proceeds by transferring the collective of national constitutions to the European constitution. As we pointed out, this results in a set of supranational constitutional norms that are written (in each and every national constitution), although they are also in a sense underdetermined (to the extent that there might be differences or even contradictions among different sets of national constitutional norms). Or, to put it differently, constitutional synthesis proceeds by reference to the regulatory ideal of a common constitutional law, only partially explicated in the founding treaties. From this perspective, the unfolding of integration leads quite naturally to a process of simple constitutionalization, in which the regulatory ideal of a common constitutional law is concretized into derivative constitutional norms by means of making specific legislative and judicial decisions, at both the national and supranational levels. To resort again to the field metaphor, the advance of integration implies that as constitutions entered the new constitutional field, differences were progressively worked out (while the external and internal limits to synthetic integration resulted in the parallel growth of other differences, some of which were fostered by synthetic integration itself). Constitutionalization through Legislation The legislative path was key to fleshing out the key substantive principles of Community law. In particular, the Council of Ministers worked out the core socioeconomic principles enshrined in the treaties in a way congenial to constitutional synthesis: it fleshed out the core normative content of the constitutional dimension of Community law, albeit in a manner respectful of those normative powers that were crucial to the development of socio-


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economic policies in the constitutional grammar of the postwar European state, essentially a social-democratic one (Christian-Democratic parties in most member states also endorsed this ideological stance during this period). This was reflected in three key sets of decisions. First was to establish differentiated legal regimes to the different economic freedoms. Following the structure of the treaties themselves, Community law established different regimes for the free movement of goods and for the other three economic freedoms.50 The underlying understanding (in this point rather “Keynesian” in a strict sense) was that actual free movement of goods could be ensured only provided that other factors of production were amenable to (national) regulation. This reconciled the welfare advantages resulting from free trade in goods (within a supranational normative framework) with the maintenance of the structural means to implement the socioeconomic goals characteristic of the Sozialer Rechtsstaat.51 Second was to characterize free movement of capital as free movement of payments, circumscribing its breadth and scope to an ancillary role to that of other economic freedoms.52 This proved crucial in “rescuing” the primacy of political over economic power in terms of taming capital. Third was to embed progressively the four economic freedoms into a wider set of economic policies, pointing toward the completion of negative and antidiscriminatory integration with measures of positive common integration. That was the case with the common agricultural policy, but also with key measures such as the system of common recognition of social security contributions established in Regulation 1408/1971.53 Still, positive integration was made dependent on political agreement, or in other words, it was politically designed and led. Judicial Constitutionalization Most of the focus in the literature has been on the judicial exploratory constitutionalization of the European legal order, more specifically the European Court of Justice, legendarily seconded by national courts in the undertaking of this task.54 Our account underlines this role as part of a broader legal-political process which helped to drive and sustain it. In particular, it seems to us that this period was essential in terms of fleshing out the “structural” principles concerning the relationship between Community and national law, and in particular, direct effect, primacy, and later on preemption as a key in the division of competences; and of the “substantive” principles of European constitutional law, more specifically the unfolding of economic freedoms and fundamental rights. The constitutional turn of European law is closely associated in all renderings of European integration with the two leading cases, Van Gend en Loos


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and Costa. In Van Gend en Loos,55 the Court affirmed the direct effect of treaty provisions by claiming that treaty sections such as the one being constructed “intended to confer rights which become part of their legal heritage.”56 It is important to stress that this not only implied affirming that treaty provisions such as this had concrete legal effects within the new supranational legal order (which would have implied the endorsement of the “banal” doctrine of direct effect in international law), but sustaining the radical implication that the legal effects of treaty provisions in both the supranational and all the national legal orders were to be determined by Community law. This had both a transformative and a simple constitutionalization effect. The provision at stake in Van Gend en Loos was a very narrow rule, article 12 of the original TEC. That provision clearly and explicitly prohibited member states from introducing new customs duties on imports from other member states or any other measures having an equivalent effect. This implied that while the principle of direct effect was enunciated in the ratio decidendi of the case, it was not obvious how far it extended (in particular, how concrete the norm had to be for its enjoying direct effect). In Lütticke,57 the ECJ affirmed that direct effect could be predicated not only on rules but also on principles enshrined in treaty provisions—a decisive move. The ECJ further added in the mid-seventies that direct effect of treaty provisions also included horizontal direct effect, or that the rights deriving from directly effective treaty provisions could be opposed to private parties.58 And just at the time (the mid- and late seventies) that the Council was expanding the Communities, competence remit and making heavy use of directives for tax harmonization, the Court claimed that the effectiveness of Community law required extending the doctrine of direct effect to norms enshrined in directives once the period when member states were expected to “transpose” the directive had expired, something that was far from obvious given the characterization of directives in the founding treaties.59 The boldness of this move may explain why the ECJ soon denied horizontal direct effect to directives; still, this position has been said to contradict the constitutional identity of Community law and has continued to haunt the Court of Justice since.60 In Costa,61 the Court had to come to terms with normative conflicts between Community and national law. The case was triggered by a litigation that was ingeniously crafted by a barrister from Milan, aimed at opposing the nationalization of most electricity-generating companies in Italy (of some of which he was a shareholder) through litigation before both the national and the European courts. The Italian Constitutional Court decided the case before the judges in Luxembourg, and in doing so affirmed in fairly unqualified terms that Community law did not limit the powers of the Italian parliament; at most, national statutes in breach of Community law would trigger the international liability of the Italian state, which was


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a matter of international, not constitutional law. Sensing the restlessness of the governments of all the other member states, the Court of Justice took the chance to affirm the opposite and to claim that treaty provisions should prevail over contradicting Italian statutes also as a matter of domestic law, implying its implicitly binding character on national institutions. The ratio decidendi pointed to a general principle of primacy of Community law anchored to the principle of equality of all Europeans before Community law. One could say that the hidden premise of the judgment is indeed the constitutional nature of the European legal order, which renders the idea of legally sanctioned inequality intolerable, and thus necessarily requires primacy of Community law as the residual conflict rule. However, the breadth and scope of the ruling was more modest, essentially covering the primacy of primary law, which had been in all member states the object of parliamentary ratification, when in conflict with posterior national statutes. This is why it was bound to be further litigated upon and concretized by the ECJ. In the seventies, the Court affirmed that primacy also applied to conflicts with national constitutional norms in two decisive cases. First was Internationale,62 in which the unconditional primacy of Community law over all national laws was affirmed but at the same time anchored to the collective of national constitutions (this was the case in which indeed the ECJ affirmed for the first time in a clear manner the “unwritten” principle of protection of fundamental rights as resulting from the constitutional traditions common to the member states, to which we will also refer throughout). If the primacy of Community law was not to be circumscribed by reference to national fundamental rights, it was because the collective of national bills of rights were the Community law on fundamental rights. Second, the operative conclusions of this robust conception of primacy became explicit in Simmenthal, where the Court instructed national judges to set aside any national provision, including constitutional ones, when contrary to Community law.63 On what concerns substantive principles, the Court engaged in its fullfledged constitutionalization only once the four stages in establishing the common market were completed. For a decade or so, it essentially followed the line established by the Council and not only stressed the different legal regime of free movement of goods and the other freedoms while denying direct effect to free movement of capital, but also offered a general reconstruction of economic freedoms as operationalizations of the principle of nondiscrimination (and thus defining their actual substantive content by reference to national constitutional law). Only in the late seventies did the Court plunge into a radicalization of the constitutional bite of free movement of goods, heralding the major transformation of the four economic freedoms that took place in the eighties and nineties, to which we will return later. And still, it must be noticed that a tension was in the offing


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since the Court had been very selective in determining which treaty provisions were to be acknowledged as having direct effect, and thus could de facto serve as rights on which plaintiffs could trigger the review of national legislation against European constitutional standards.64 Regarding fundamental rights protection, we have already considered the extent to which Internationale had clear structural implications for how the derivative character of Community law was reconciled with its primacy over national law. But it must be stressed that the process of fleshing out fundamental rights as part and parcel of Community law, the drawing out of a judge-made European bill of rights case by case was the outgrowth of the transformative constitutionalization that we referred to in the previous subsection.65 The more the Union was acknowledged as the holder of full public powers, the more pressure there was to counterbalance the exercise of such powers by protecting fundamental rights. In addition, major political events on both sides of the iron curtain accelerated the process of constitutionalization in this regard.66 In developing the set of rights protected under Community law, it is important to stress that the Court engaged in the weighing and balancing of different types of constitutional rights from an early date. In fact, the key leading cases concerned conflicts in which Community law fostered collective goods and interests, and plaintiffs claimed that it was in breach of their right to private property (or an adjacent faculty).67 This is a typical, almost millenarian conflict at the core of fundamental rights protection. What is relevant is that it is substantively identical to the ones that have been at the heart of public debate in the past few years, with the revealing difference that what conflicted with collective goods was a Community-protected economic freedom, and that the Court solved the conflicts according to a different normative logic. That in itself shows the extent to which the European constitution has been transformed by the new interpretation proposed by the ECJ on fundamental freedoms. We will return to this. Finally were procedural rights. The institutional autonomy of member states on what concerned the organization of judicial processes accounts for the limited approach originally taken by the Court. Community rights were underpinned by a right of access to court. That was operationally concretized in two basic principles. Procedural rules applicable to claims based on Community rights have to be as favorable as the rules framing claims of rights granted by national legislation; and they have to be sufficiently generous so as to ensure the effectiveness of Community rights.68 The moment in which the Communities engaged in substantive policy making and started to develop their external dimension was the moment in which the issue of division of competences between the Communities and the nation-states emerged as a pragmatic problem. The Court followed first a rather expansive interpretation of the breadth and scope of Com-


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munity competence.69 Internally, it seemed to adopt the federal principle of preemption, claiming that once the Union had exerted its competences, member states should refrain from exerting theirs.70 Externally, it favored the claim that internal competence should immediately translate into the Community power to be the holder of the right to negotiate in the name of all member states. However, the Union lacked the institutional capacities to make full use of this characterization, which resulted in a complex finetuning of both claims.71 At the national stage, both legal and judicial actors gave final credence to the constitutional transformation of the Union—not without strife and hiccups, and also through a certain penchant for constitutional avoidance.72 But the constitutional nature of the polity and of its legal order became increasingly well entrenched, and indeed set the foundations for explicit constitutional recognition through second-generation European clauses. Putting Flesh on Constitutional Bones The net result of the combined processes of legislative and judicial fleshing out of the regulatory ideal of the common constitutional law is that by the end of the seventies, European constitutional law could be defined by reference to a set of structural and substantive principles, including norms on the division of competences between the Union and its member states. This was far from the full picture of a complete constitution, but it was much more than the bits and pieces of a constitution reflected in the founding treaties. Institutional Development and Convergence In chapter 2, we underlined that there are two parallel, albeit different, processes involved in constitutional synthesis. Normative synthesis tends to gravitate toward homogeneity. The fleshing out of the regulatory ideal of a common constitutional law tends to breed homogeneity for the simple reason that monism is wired into the normative code of law as a means of social integration (however, establishing one single common solution in one corner of the law may result in growing tensions within each national legal order; and changes in the socioeconomic environment also often push for legal heterogeneity at the regional and national level).73 Institutional development (especially when the issue is that of forging a new structure on top of existing states, as was the case with the European Union), on the other hand, must reconcile homogeneity with the diversity and pluralism of those contributing to the construction. This is not to deny that constitutional synthesis comes with its own institutional presuppositions (i.e., constitutional synthesis would be fostered


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by certain institutional arrangements and hampered by others), but rather to underline that the process of institutional development that sustains constitutional synthesis is quite complex. General Traits The European Union’s institutional structure was from the outset of constitutional stature and informed by democratic principles. The Treaty of Rome, 1957, established a supranational commission, a European representative assembly, and a European court of justice, as well as an intergovernmental council. This structure was unprecedented and highly pluralistic, as it sought to accommodate the diversity of its membership in a setting without a clear hierarchical ranking of supranational and national arrangements. This peculiar structure and its breed of institutional pluralism was the (incomplete and highly composite) overarching institutional framework for constitutional synthesis. It was a vital precondition for integration but was also the site where tensions and contradictions arose that helped stymie the process of constitutional synthesis, as we will see in more detail later in this chapter. The system was from the very outset based on democratic principles. The main decision-making body was the Council, which was composed of elected government ministers from the member states. In addition, the Assembly, initially composed of national parliamentarians, could through a motion of censure (a two-thirds majority underpinned by more than 50 percent of the members) remove the Commission from office.74 This meant that the initial system was based on two modes of democratic accountability: one where each minister was directly accountable to his/her respective national constituency, the other where the Commission was accountable to the collective of national parliamentarians in the European Assembly. This democratic structure provided democratic drivers and safeguards to enable the process of constitutional synthesis to get off the ground. Broadly speaking, the supranational institutions pushed supranational integration and democratization, whereas the more intergovernmental ones balanced integration with special national safeguards. All—not only the intergovernmental—institutions were based on the recognized need to respond to and harmonize national stances. This is because synthesis presupposes that the new system must be accountable to the constitutional signatories, the member states, but with the controls exerted through democratic institutions at the central level. An important issue is the kind of democratic license afforded to these central institutions. How independent should these institutions be, first initially and then later, over time? Constitutional synthesis presupposes that those in charge of integration must demonstrate that they can credibly effectuate the democratic license. We see here that


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even in the initial system, that function was never purely intergovernmental: the Council could stop Commission proposals but could not remove the Commission from office. It was the Assembly, a representative body composed of seconded national parliamentarians, that could remove the Commission from office.75 This body had, as we shall see, a strong supranational democratic vocation, which lent critical support to the process of constitutional synthesis. In overall terms, the institutional design of the original treaties was incomplete, with many of the specific traits and rules of the foreseen institutions simply left open and undecided, and with several gaps in the institutional design—clearly, necessary functions for the workings of the polity and its legal order had not been contemplated and institutionally devised. This reflects, as we have noted above, the character of the treaty: “It is first and foremost an ‘outline-treaty.’”76 This meant that the ones setting up and operating the system had leverage to devise it according to their ideas and experiences. The complex manner of ensuring democratic accountability is then also closely related to the pluralistic traits of the European institutional structure, which can be traced back to (a) the unprecedented nature of the polity, which bred institutional experimentation; (b) the lack of a constitutionally prescribed hierarchical ranking of supranational and national institutions, which is at the heart of the theory of constitutional pluralism applied to the European Union; and (c) the incompleteness of the Union’s institutional structure, whose further “filling out” within the complex Union with its highly pluralistic membership would engender further pluralism. These three distinct features of the institutional consolidation under synthesis deserve special consideration. First is that the EU is a political system with no clear precedents (there was basically no default blueprint to draw on); thus the process would naturally have an experimental component whose relationship to democratic constitutionalism has to be clarified. This was further compounded by the incompleteness of the institutional design enshrined in the treaties. And one should keep in mind that when applied to a new setting, even processes of replication and adaptation can add up to something distinct and unprecedented, as was the case with the EU. Second is that the EU institutions are closely interconnected but without a clear hierarchical ordering. The system from the outset combined supranational and intergovernmental principles in a structure with weak hierarchical features but correspondingly strong horizontal ones (the national systems being blended together in the institutions at the EU level). The best way of conceiving of this multilevel structure is that of a highly pluralistic institutional field. This implies that the regulatory ideal of a common constitutional law is not anchored in a hierarchical or fixed competence-based


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ordering of the relationships between supranational and national institutions but is, as the institutional depictions will demonstrate, embedded in a more pluralistic, cooperative, and consensus-seeking institutional setting. The third feature is that EU-level institutional development takes place in a context of politically and institutionally diverse member states. This diversity rubs off on the structure that is established at the EU level because the structure incorporates the member states (through institutional participation, shared competences, and policy-making processes) and because the EU structure is partly the result of the blending together of different institutional cultures and practices from the member states. The organizational field was designed to sustain a constitutional union of already constitutionalized states. Consequently, the organizational field served as a transmitter not only of constitutional principles (normative synthesis) but also of structural and organizational templates from the member states to the Union level (part of the Union’s institutional development). This meant that deeply entrenched organizational models and templates were imported into the emerging structure through complex patterns of replication and adaptation. Thus, the administrative services of both the High Authority and the Commission “conformed to the dominant model of public administration in the six founding member states.”77 The general normative principles underpinning the organization of the administration were common, but this in no way prevented the administration from drawing on a range of distinct national institutional and cultural traditions as well. One account holds the Commission as a system halfway between a French ministry and the German economics ministry.78 The common principle that all the member states share is replicated, but the concrete organizational shape it takes is adapted to suit those persons and traditions that fill the organization and direct its operations. In that sense, we also see that institutional development will at most approximate synthesis because, as the late Schattschneider reminded us, “[O]rganization is itself a mobilization of bias in preparation for action.”79 Some traditions and worldviews are organized in; others, out. Replication and adaptation from existing arrangements were facilitated by the fact that the first generation of occupants of EU institutions would have been trained and raised in their respective national systems and brought these experiences (coupled with possibly international ones) with them.80 Further, the national dimension also permeated characteristically the institutions. Indeed, as noted, the Parliament81 was composed up until 1979 of seconded national parliamentarians.82 Institutional Structure This period was first and foremost characterized by a relatively rapid and smooth development of the institutions, as programmed in the treaties.


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The process unfolded in the spirit of synthesis as one of incorporating and harmonizing national positions and traditions, as well as through experimentation. The Commission, trumpeted as the carrier of the supranational interest, was also the institutional terrain in which different national institutional traditions competed to shape the development of the Union. Quite the same thing could be said of the Court of Justice. On the other hand, the Council, the safeguard of national interests, was driven by functional imperatives to develop a complex institutional structure that served as a major driving force in the process of Europeanization of national administrations. The most experimental aspect of this institutionalization of the process of constitutional synthesis was seen in the fleshing out of the comitology procedure. A direct result of the initial incompleteness of the treaty’s institutional template, it soon revealed itself as a fortuitous arrangement with a certain democratic promise. This structure was set up to accommodate the pluralism of the initial six member states; as the Union developed, it became more complex and inchoate, as we shall see. The Council of Ministers and the Emergence of the European Council. The Council of Ministers was the fundamental decision-making body in the structure created by the Treaty of Rome (but not in the Treaty of Paris). The Council has generally been understood as the Union’s intergovernmental body par excellence because it is composed of national ministers and national staff. Thus, it was designated as an important national democratic (and pluralistic) safeguard. But this was coupled with the role of lending sustenance to European integration. The Council’s role is therefore best understood as an innovative mixture of a creature of the member states and an institution committed to the carrying out of collective EU functions.83 It was possible within the cooperative and consensus-seeking EU institutional system to direct it to support integration in a relatively consistent manner. As the institution was given concrete shape and developed over time, its ability to carry integration forward increased: the rotating presidency and the sectoral organization promoted Europeanization, its internal organization created the conditions for the transformation of national government officials into a specific breed of Eurocrats,84 and the emergence of the European Council ensured that intergovernmental meetings of heads of state became part of the Union’s institutional hardware. The Council’s envisaged role was only very sketchily depicted in the Treaty of Rome.85 It has added tasks and organizational instruments in line with the Union’s growth. Already the Treaty of Paris had instituted the mechanism of a rotating Council presidency, where the presidency shifts from one country to the next according to a fixed schedule (whose initial tenure was three months but was extended to six for the Community in the Treaty of Rome and in 1965 for Euratom).86 Again, as with the Council in more general terms, that formula could well be understood as a mere


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intergovernmental feature, but it has turned out to be a powerful vehicle of Europeanization of national administrations.87 Formally speaking, in its internal structure the Council was (and remains) one single organization; in practice, its operations were soon organized along sectoral lines, with agriculture the first. This increased Europeanization through disaggregating the national-territorial and reinforcing the functional dimension. Over time, three formations became particularly prominent, two of which are specialized, namely agriculture and Ecofin (macroeconomic and monetary issues), and one with a more general and coordinating role, namely the General Affairs Council, which consists of the foreign ministers.88 The Council’s increased workload has over time led to the addition of further institutional layers, below and above the level of ministerial councils, with Europeanizing effects. First was the Committee of Permanent Representatives (COREPER), which consists of permanent national delegations in Brussels.89 It is now composed of two formations, COREPER II (ambassadors or permanent representatives) and COREPER I (their deputies).90 The Council’s second layer consisted of specialized preparatory committees (and, significantly, article 113 on international trade; the Special Committee on Agriculture; article 36 Committee on Political Cooperation, the forerunner of the second pillar), and the third layer is made up of a plethora of working groups.91 Looking back we see that, over time, the steady growth of Community competences made it necessary to create a permanent supportive administrative structure from whence both the Council Secretariat92 and the Legal Service resulted.93 Taken together, these developments reveal the peculiar identity of the Council as an intergovernmental institution, albeit itself both Europeanized and Europeanizing the Union’s institutional development. From the late 1960s, internal constitutional growth and external shocks (in the form of the oil crisis and the new turn of American foreign policy under Nixon/ Kissinger) rendered high-level political decisions necessary.94 Thus, a number of external challenges, a Commission weakened by the Luxembourg compromise,95 and growing capacity and coordination problems inside the Council gave rise to a number of ad hoc summits among heads of state and government that became formalized in the European Council.96 In a sense, we can see this specific institutional development as a consequence of transformative constitutionalization, to the extent that the latter had reached sufficient depth to require more regular meetings among heads of state and government to give direction to the European integration process. The obvious advantage of the European Council was that it allowed heads of state and government to agree to strategic programs of action and to commit their member states accordingly (during their tenure in office). In that sense, the European Council can play (and indeed has played) an important role in promoting constitutional synthesis. But as we will also see


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clearly in chapter 4, the European Council is an ambiguous constitutional agent. It has fostered integration but has downplayed the constitutional significance of the process. Part of this relates to the fact that the electoral links and chains of accountability for each head of state or government remain steeped in each member’s respective national constituency, with member states differing greatly on the desirability of a European constitution. From High Authority to Commission. The High Authority and the Commission were the most innovative and supranationally oriented organs in the institutional structure foreseen in the Treaties.97 The High Authority could be compared with a supranational administration but confined to the narrow sectorial scope of the Coal and Steel Community (and the rather detailed nature of the treaty), and is frequently seen as the forerunner of the Commission but is also different from this. On the latter, the analogy “could perhaps [be] with the federal ministries of the Federal Republic of Germany rather than with the small, flexible and highly cohesive group that Monnet wanted to have in Luxembourg.”98 The Commission was envisaged as a permanent body (the treaty had no time limit): it was intended as an independent body with its own responsibilities, a highly informed administration, and a broad sphere of competence. It has through its central role in initiating legislation and policy in more general terms been considered a central driver of the integration process.99 This appears reinforced through the other roles normally associated with it, namely as an executor or administrator, a guardian of the treaties and a privileged actor before the European Court of Justice (and watchdog over implementation), an external representative for the member states, a body that mediates among the member states, and “the conscience and voice of the Union as a whole.”100 The Commission was thus set up to play the role of the Union’s foremost, albeit not only, executive, with a clear mandate to drive integration forward. There was a national dimension here as well. The obvious proof is that Commissioners were appointed by member states. But this should not undermine the Commission’s autonomy, as Commissioners were legally barred from representing a national interest.101 The Commission was a central component in the process of driving integration forward. It ensured expertise, continuity, and institutional memory through its large staff and through broad patterns of consultation and cooperation with institutions and civil society actors. The first EC Commission, under Walter Hallstein, consisted of nine commissioners, five of them former senior government ministers, suggesting both the desire to give the body a high political profile while also retaining a measure of national influence.102 The rapid filling up of the Commission’s directorates general (DGs) brought in officials from across the Union. Although it had a strong French accent, it also reflected the diversity of European administrative traditions built into it.103 At the same time, the


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Commission also deviated from national administrations in being more dynamic, which relates to the distinct institutional structure it finds itself situated in.104 Thus, we see that the presumed most original of the Union’s institutions was built on a complex mixture of the familiar with the new: there were obvious traits of copying of basic administrative principles, grafted onto an organization with a distinct objective and operating in an institutional context of highly diverse member states whose presence was felt from the national level, incorporated into the workings of the institution and reinforced through interaction with the other institutions at the EU level.105 In Between Council and Commission: Comitology. When looking back at the treaty, one clear gap in the Community institutional structure concerned the regulatory implementation of secondary Community law. This resulted from both the peculiar system of sources of Community law and from the lack of a specific decision-making process. As soon as substantive economic policies started to be developed, it became clear that the division of labor between statutes and statutory instruments would have to be replicated at the European level. That pushed for institutional experimentalism. On the basis of article 155 TEC, implementation was delegated to the Commission working in tandem with committees made up of national representatives, recruited from national administrations or from groups of national experts.106 Comitology is a clear example of the more “experimental”107 side of synthesis. It exhibits the distinct “field” character of the EU in that it ties national institutions together with the EU-institutions. In this system of functional interdependence, comitology plays an important role in harmonizing and synthesizing regulatory policies out of a plethora of national positions. Although clearly an administrative practice, comitology has been attributed with democratic qualities, such as inclusion between affected states and interests.108 It has also proved an influential template for member states to reform their own regulatory procedures, which shows how the field not only transmits policies, regulatory arrangements, and institutions from the member states to the EU but also the reverse. The Court of Justice. The European Court of Justice was first established as a mixed court in the Treaty on Coal and Steel, being composed of both laymen and professional lawyers. It was transformed into a fully “juristmade” court in the Treaties of Rome and made into a single court for the three communities in the ancillary convention “on certain common institutions.” There was no obvious precedent for the European Court of Justice (as it was not only a supranational adjudicatory body, such as the Permanent International Court under the League of Nations, but one with compulsory jurisdiction). This institutional void was filled along synthetic lines


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as a product of emulation and competition. French legal culture, and more specifically, the legal culture of the Conseil d’État, left a major imprint on the institution, although the first enlargement of 1973 created an institutional dynamic where the French institutional dominance was questioned at the same time that the set of substantive legal traditions that Community law had to draw from grew (because not only the United Kingdom and to a large extent Ireland were “common law” countries, but Denmark was certainly not a civil law country but part of the Scandinavian legal family). But even in the earlier period, the French culture was challenged and complemented. While the symbols of the institution (the sword, the scales, the oak leaf) were suggested by the first president, the Italian Massimo Pilotti, the dress code was a hybrid mixture of several traditions (with burgundy being a German contribution). From Assembly to European Parliament. The European Parliament was a central driver of the process of constitutional synthesis despite the fact that it was not formally a part of the system of treaty change, or what is termed the IGC model (see below). The EP was the institution that experienced the most dramatic institutional transformation during its first two decades. It was initially programmed as a “seconded” or “derivative” assembly with scrutinizing, controlling, and even a censuring role, able to oust the Commission if there was enough internal support. Only later did it acquire budgetary and legislative powers.109 But its self-understanding was that of the Parliament: In choosing to call itself a “parliament,” the Assembly was not so much pretending to be a parliament as clearly pointing out that it wanted to become one. The same logic lay behind the name change from European Assembly to European Parliament in the Single European Act: the Member States were not so much declaring that the Assembly was a parliament as effectively recognising that it should become one.110

There was a clear institutional template especially strongly articulated by the Germans: the parliament of the democratic constitutional state.111 Thus, whereas it was the world’s first supranational parliament and operated in an institutional environment different from that of the member states, there was a consistent process in place to establish the EP with the same basic structure and functions as we find in national parliaments. This became particularly pronounced after the institution of direct elections in 1979, when the EP could claim to be the Union’s only democratic body with a direct link to the European citizens. The EP has developed as an intrinsic part of a broader structure of representation in the EU that is unprecedented in character. It has taken shape from the EU’s distinct organizational field, which has emerged as part of the broader process of Europeanization of national institutions.


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Europeanization of National Institutions. The process of institutionalization of the European political order is fed by and also feeds back on the national institutions that find themselves part of the said process. Here we briefly look at the processes of Europeanization of national parliaments and national administrations.112 On what concerns national parliaments, institutional transformation did not appear very urgent until 1979. But from that point when direct EP elections were held and the agenda of integration widened in competence terms, there was a premium on parliamentary scrutiny and influence on the legislative process at the EU level. This led to the establishment of specialized committees within national parliaments keeping abreast with and actively scrutinizing European political and legislative processes and instructing, mandating, and controlling national governments in the Council formations as well as in the European Council.113 Pioneering in that regard were the Danish, U.K., and German parliaments.114 Over time this system has been solidified in a multilevel parliamentary field,115 marked by structured patterns of communication, exchange of information, and institutional learning among all parliaments in the EU. Clearly, the fact that national administrations implement EU-level decisions makes them central players in the multilevel EU configuration.116 They no longer simply effectuate national legislation; equally important is their role in effectuating legislation from the EU level.117 The Union’s member states are institutionally diverse also in administrative terms. There are important constitutional differences between federal and unitary states, with direct bearing on the patterns of implementation of EU decisions; there are different administrative styles and traditions; systematic differences in administrative efficiency; and different combinations of rule compliance, political loyalty, and professional independence. This diversity has brought up issues of whether EU policy is at all coherently effectuated across the Union and how differences relate to national administrative cultures and traditions as well as to different policy sectors.118 It must be added that the more the process of institutional development advanced, the more this process of transformation of national administrations revealed its constitutional problématique. While integration was expected to render possible the realization of constitutional values across borders, adding a pluralistic supranational institutional structure created numerous pressures at the national level. While the most obvious effect was the unleashing of processes of Europeanization of specific national institutions (in terms we have considered for parliaments and national administrations), in overall terms it also created serious stress on the constitutional principles and conventions that presided over interinstitutional relationships. The well-described empirical phenomenon of “vertical” networking among governments, parliaments, courts, and administrations119—as one


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part of the broader EU multilevel institutional field—put into question the basic equilibria and balances that were essential in the forming of democratic decisions. Successes and Failures The first two decades of European integration were marked by a dual process of constitutionalization. On the one hand, the constitutional nature of the polity and of the legal order initially set out in the founding treaties was slowly but steadily given sustenance. It had already been discussed during the parliamentary ratification debates of the founding treaties, and it was acted upon both by the Community legislature and, quite famously, by the European Court of Justice. We have stressed that, contrary to what is sometimes assumed, the Council of Ministers played a leading role by widening the policy remit of the Communities beyond the specific program of the four stages to the common market. By pushing the Union beyond a mere customs union, the Council sent powerful constitutional signals to the Court of Justice, which the latter in a continuous and systematic manner translated into an increasingly complete set of structural and substantive constitutional principles. On the other hand, all these political processes were not conducted for the sake of clarifying the polity status of the Union, but in order to make concrete substantive policy decisions. When doing that, both lawmakers and judges contributed to render specific the regulatory ideal of a common constitutional law. Of essence in that regard was the launch of a common agricultural policy based on price intervention, financial solidarity, and Community preference, and the putting in common of national markets by ensuring the legal bite of principles that protected European citizens against discrimination on the basis of nationality. Both processes contributed to consolidate the economic recovery in the whole of Europe. Independently of their direct impact on the national gross domestic product, they were vital in creating the conditions under which citizens could be reassured that there would not be a new military conflict. It is hardly mere coincidence that the consolidation of the common market went hand in hand with the expansion and consolidation of national welfare states. But the propitious circumstances under which European integration had started deteriorated by the mid-seventies. The limits of the economic model of the postwar years became evident in the first oil crisis, which represented an external shock that the European fledgling synthetic polity had major difficulties absorbing. Indeed, the first and the second oil crises marked the end of the major consensus around socioeconomic policies that had become very evident since 1967 and the change in German economic policy. This was happening at the same time as the changes in American foreign policy,


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both in diplomatic and financial terms, created waves of uncertainty that threatened to undermine the degree of economic integration achieved by the Communities and to render unworkable the design of its key substantive policy, the common agricultural policy. The end of the Bretton Woods international financial architecture not only contributed to plunging member states into monetary turbulence but threatened to undermine all key policies of the Communities (and especially its flagship agricultural policy). The protectionist temptation to buffer national economic agents came back with a vengeance at the same time that price-fixing in the common agricultural policy became an impossible task with currencies in wild fluctuation. Because the Communities lacked institutional robustness and policy depth when it came to the coordination of national economic policies, decisions aimed at restabilizing the economy remained national. By the time the second oil crisis shocked Europe in 1978–1979, diverging national responses consolidated a deep gap between member states’ underlying socioeconomic constitution—with deleterious effects in the next two decades. Competence-wise, the oil crises revealed the extent to which the allegedly mere economic competences of the Union really limited national autonomy when making crucial political decisions with a key social dimension and implications.120 Economic integration had a political price. At the same time, synthesis had not gone far enough to create substantive new political possibilities at the supranational level. Indeed, the pluralistic traits in the Union’s institutional structure were magnified at that specific conjuncture of advanced but politically truncated integration. And it was precisely at this time that the hegemonic role of the United States was exerted in earnest (and despite the facile demise of the United States after its defeat in Vietnam— but what would become key in the coming years was economic and financial power). This created a clear and permanent feeling that there was a need for renewing the goals and objectives of integration once the common market program had been completed, of finding ways of either stabilizing synthesis through institutional and substantive reform or transcending synthesis through the explicit creation of a constitutional union. There was a clear dissonance between institutional structures and legal and political practice: direct elections to the European Parliament rendered that quite clear. The decision in the 1976 act to have members of the European Parliament elected through direct and universal suffrage meant that after direct elections, there would be an institution that could claim to articulate the general European will on any issue, not as the mere aggregation of national interests but as a genuinely different will at the supranational level, a will that transcended national vetoes based on processes of national will formation (whether it does so or whether there is such a thing are different matters). But this institutional carrier of constitutional synthesis was legally barred from exercising the full range of functions. Less obvious but


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perhaps equally important was enlargement. With the solemn reaffirmation that only democratic states could become members, there was a constant pressure on the EU as the overseer, itself to comply with democratic standards lest its legitimacy as overseer suffer.121 So by the end of the seventies, the process of European integration was destabilized from outside and from within. In the absence of a “benign” hegemon, the synthetic path of integration seemed incapable of absorbing external shocks in the form of monetary or geopolitical crises. At the same time, the very success of the process of transformative constitutionalization was exposing the Union’s legitimacy shortcomings, while the development of the institutional structure was rendered possible by pluralistic traits that would end up hampering integration. Was the peculiar “Community path” viable? Or was the only way to preserve and propel integration to reestablish the Union in an open, constitutional manner? This was the dilemma that opened the long constitutional season of the European Union in 1979.

FROM THE SINGLE EUROPEAN ACT TO THE NICE TREATY: THE LONG CONSTITUTIONAL SEASON OF THE EUROPEAN UNION General Contours The second period of European integration is marked by the growing tensions resulting from internal and external developments (in the terms we have just described in the last paragraphs of the previous section) and the attempts to stabilize integration through fundamental reform of the European Union and its legal order. Such reform was successful only to a very limited extent. This is why we characterize this period as the long (and unfinished) constitutional season of the European Union. In the late seventies and mid-eighties, a powerful dynamic fostering reform emerged, partly driven by inner contradictions and the combined effect of the Single European Act and the jurisprudential reconceptualization of economic freedoms as self-standing constitutional standards. As we explore later in this chapter, by recharacterizing economic freedoms as part of a substantive and transcendental constitution of the Community, courts delinked European constitutional law from the original “antidiscrimination constitution” of the Union, which was substantially anchored to national constitutions (the standard of what was discriminatory being a national, not a supranational, one). This could only result in the erosion of the Union’s basis of legitimacy within a process of constitutional synthesis (given the key legitimating role of national constitutions). Institutional development was marred by cumulative tensions stemming from the “disaggregation” of national institutional structures under


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the pressure of Europeanization processes and from the imperfect monetary Union contemplated in the Maastricht Treaty. While the national constitutional conventions governing relations among institutions were progressively undermined by transnational and supranational institutional networking (the Council of Ministers and the European System of Central Banks being the most institutionalized examples of that), no overarching supranational constitutional design was established to compensate for the eventual democratic losses (an issue we will come back to in a later section of this chapter). These changes created the structural conditions under which several reform processes were launched. If we leave aside the reform tried by the European Parliament through the quasi-constitutional process that resulted in the Draft Treaty on European Union (widely known as the Spinelli Treaty), all subsequent changes were the outcome of an intergovernmental process of negotiating treaty reforms. Still, the emerging constitutional nature of the Union and of its legal order resulted in the progressive constitutionalization of both the reform process and the resulting treaties, as we will highlight in the next section. But these were not characterized as instances of constitutional change by those in charge of them: political leaders avoided the constitutional idiom but kept the process running. This was bound to result in half-hearted reforms, with the participants acknowledging that further changes would be required later, one of the reasons the constitutional season was long and at the same time inconclusive. The growing pressures unmatched by actual reforms opened the door to a new breed of institutional arrangements and decision-making procedures that promised to deliver reform without formally undertaking it. We consider these structures later, under the label of “governance arrangements.” The apparent success of (and academic hype about) this approach resulted in the arrangements’ becoming floated and considered as promising means of stabilizing synthesis—alternatives to reformed synthesis and to the constitutionalization of the Union, as we later conclude. It must be added that the geopolitical and economic context tended to be essentially unfavorable to the stabilization of a synthetic polity such as the European Union. By the end of the eighties, the Communities were confronted with a major external shock in the form of the fall of the Berlin Wall and the end of Soviet dominance over Eastern Europe. This sole event changed the political and economic game very rapidly. German reunification was a source of both political tension and economic stress, as the partial institutionalization of stabilizing mechanisms in the new international monetary context made the Bundesbank the maker of monetary policy in Europe without a collective mandate and responsibility.122 The fall of dictatorships in Eastern Europe paved the way for the dream of a truly continental European Union. But these expectations proved exaggerated, and the financial and administrative capacities to handle these challenges proved to


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be very limited. The Union nevertheless embarked on what has proved to be a protracted and complex process of enlargement. In particular, Eastern European countries’ transition to capitalism was managed so as to foster a long-term depressive tendency in wages, which were to exacerbate social tensions and macroeconomic imbalances within the whole of Europe in the coming decades.123

Constitution Making General Traits By 1980, constitutional synthesis had proceeded far enough to render the constitutional character of the process of European integration apparent. As we indicated in the previous section, the two oil crises made it clear to governments and citizens alike that the economic liberties at the core of the treaties were not merely “economic.” National governments could not easily resort to limit imports or subsidize failing national business in the name of “social” considerations without fouling Community law. At the same time, synthesis had not proceeded so far as to recreate the proper means of political action at the supranational level (thus the perennially truncated prospects of a “social” Europe). The direct elections to the European Parliament rendered patently visible that while an institutional structure capable of forging a European general will existed, its powers were strongly curtailed. The long season of constitutional reform thus started in earnest and proceeded in a peculiar fashion for well over two decades.124 From the direct elections of the European Parliament in 1979 and up to 2003, five major reform proposals were produced (the Spinelli Draft Treaty,125 the Single European Act,126 the Maastricht Treaty,127 the Amsterdam Treaty,128 and the Nice Treaty.129 Four of these constitutional trains have reached some kind of destination, at least in the sense of triggering reforms of Union primary law (all the above except the Spinelli Treaty). But none equipped the Union with a generally accepted democratic, efficient, and stable constitutional arrangement. In that sense it is fair to say that the Union was not able to live up to its democratic commitment. Constitutional reform was characterized by downplaying constitutional language and symbolism, the slow but steady constitutionalization of the reform process, and the progressive explication of the constitutional character and implications of the reform agenda. These series of intermittent and inconclusive reform processes resulted in the codification of many of the main interpretative outcomes of the process of constitutionalization (both politically developed constitutional conventions and constitutional case law). However, it must be added that these reforms had also introduced


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major changes in the treaties, which have been completed and rephrased in such a way that their constitutional character have been rendered more explicit, something that in turn had given further support for and impetus to the process of constitutionalization. The Process: The Intergovernmental Conference Model With the single exception of the Spinelli Treaty, fundamental reform was conducted as an intergovernmental bargaining process followed by a national ratification phase. The central arena in this process was the diplomacy-driven Intergovernmental Conference, closely associated in the popular imagination with the marathon bargaining sessions at major European meetings since the Stresa Conference. The national ratification phase is, so to speak, doubly national because unanimity is required, with each member state holding a veto, and the structure of the process of constitutional ratification is decided by each member state in full autonomy. This procedure is compatible with the initial stage of constitutional synthesis in the sense that it can prevent strong actors from dominating the process. Over time, as synthesis proceeds, it presupposes that the procedures be harmonized and Europeanized (with a stronger direct imprint on the process by the European-level institutions). The Intergovernmental Conference (hereafter, IGC) model is based on democratic authorization. It is conducted through the European Council system, which democratically speaking is a second-order130 European constitutional agent. The leaders who occupy the European Council are democratically elected by, and directly accountable to, their national constituencies; they can therefore not claim to be democratically authorized to speak on behalf of the collective of European citizens, understood as the European constituency. To understand the nature and logic of this fundamental reform process, it is useful to consider its five main phases. This reveals not only that there is more than the IGC to reform, but also that there are many phases that are amenable to a certain degree of transformation in a constitutional direction (in the terms we already advanced earlier). First, reform is prepared by an expert group or committee on the basis of a mandate established by the European Council: the Dooge131 and Adonnino132 reports in the case of the Single European Act (together with the Spinelli Draft Treaty, although the latter was rather left aside), the Delors133 Report before Maastricht, the Westendorp report before Amsterdam,134 and the Von Weizsäcker, Dehaene, and Simon reports135 before Nice. Second, the reform process itself is launched by signalling the need for treaty change. According to both the original article 236 TEC and 48 TEU, any member state may suggest the need to open a reform process, but the


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signalling as such must be decided by the Council and the ensuing Intergovernmental Conference convened by the president of the Council. The Commission and the Parliament have formally speaking only a consultative role in the process. Third, decision making proceeds through expert groups and, at the final or critical stages, within the European Council as such. The Council Legal Secretariat has come to play a prominent role as permanent adviser in this context.136 Fourth, there is a phase of agenda-settled deliberation, which extends from the successful conclusion of the IGC to the date of ratification in each member state. Fifth and finally, ratification takes place in each member state according to its constitutional requirements in full autonomy. While this gives the impression that the process is heavily intergovernmental, opaque, and structurally incapable of being responsive to public opinion, the process was progressively transformed and approximated to constitutional reform processes (a transformation that in inchoate form could be discerned already in the seventies, as we noted earlier). Key in that regard were: (a) the growing public profile of the preparatory phase—while the committees themselves tended to be composed of and staffed by insiders, the growing public profile of the act of presentation of their conclusions helped spark interest and debate within national representative institutions, “warming them up” to the reform process as such; (b) the development of parliamentary scrutiny systems that gave national parliaments a more direct say in the process—this was notably the case in Denmark, in the terms we discussed in the previous section when considering the Europeanization of national parliaments; (c) the tendency to subject treaty amendments to a national reform process akin to that of a constitutional reform, and very especially, to subject them to a referendum or plebiscite that had a structural impact on the behavior of national delegations and national governments during the negotiation process; indeed, the fact that ratification depends at the end of the day on obtaining a positive vote creates incentives to render the public knowledgeable of the main twists and turns of the negotiation as it happens; (d) the length of intergovernmental conferences, their being structured in several meetings stretching over a period of up to a year—creating opportunities for rendering the intergovernmental bargain less opaque and offering more scope for public debate and contestation. It is on such grounds that we can conclude that the process of fundamental reform was slowly but steadily constitutionalized in this phase;137 (e) the process of ratification, where two different “national” versions have emerged. The first version is the parliamentary one. Here it is notable that whereas the process keeps on being conducted through the European Council as a second-order democratizing agent, over time an implicit—synthetic—com-


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ponent emerged. At the ratification of the Single European Act, the Italian parliament, at the urging of Altieri Spinelli, pledged that it would ratify the accord only if the European Parliament had given its assent. After that, the Belgian parliament followed suit so that since then, this procedure has been applied to all treaties (Maastricht, Amsterdam, and Nice).138 This procedure offers a good institutional example of how the logic of constitutional synthesis makes its way into processes that appear entirely intergovernmental: national parliaments de facto lend their constitutional authority to the supranational EP. At the same time, this procedure also clearly manifests the conditional character of synthesis: it is ultimately based on trust. Further, precisely because it is informal, the support can be revoked: it is a conditional license. The second ratification version is the plebiscitarian one. From the Single European Act to Nice, the practice was irregular (because each member state decided its ratification procedure and most did not have referenda requirements).139 But even a single-constituency decision can give systemwide shocks. Negative referendum results (for instance, in the Danish Maastricht referendum in 1992) were interpreted as evidence that the Union was democratically deficient; thus the long-term response to the referenda rejections has included further democratic reforms to prevent future referendum rejections. Transformative Constitutionalization Transformative constitutionalization concerned in this period the substance more than the structure of European constitutional law. Key in that regard were (a) the recalibration of economic liberties defended and successfully argued for by the European Court of Justice in the aftermath of the Single European Act and (b) the exhaustion of the process of structural transformative constitutionalization, as the core constitutional content of primacy and direct effect had already been established (thus courts could rightly claim that they were merely fine-tuning principles that were already well established and were thus engaged in simple, not transformative, constitutionalization) and as the competence growth through the formal assumption of new competences had reached its limits (the insertion of the principles of subsidiarity and proportionality in the Treaty of Maastricht serving more a symbolic than an actual constitutional purpose in that regard). The key constitutional transformations of the period were the recharacterization of economic freedoms and the companion move on what concerned competences. As we pointed out at the beginning of the chapter, the Court had started exploring the constitutional implications of the four economic freedoms at the end of the four-stage process toward the creation of a common market. But economic freedoms were essentially portrayed as concretizations of the principle of nondiscrimination on the basis of na-


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tionality and thus substantially dependent on the constitutional substance of each national constitution. Starting in Cassis de Dijon140 (and even more so after the Single European Act), the Court characterized economic freedoms as self-standing components of a supranational ideal of negative and individualistic freedom. This new doctrine acquired the stature of a constitutional transformation when the Court started to do away with the clear division in the constitutional regime between the four economic freedoms. In this new interpretation, any obstacle to the exercise of any economic freedom, including a nondiscriminatory one, would constitute a breach of Community law.141 This seemed to correspond to the drive toward a single market sanctioned in the Single European Act. However, it had massive and (as would turn out in due time) insufficiently considered constitutional implications. First, it required doing away with the traditional limits of Community law, in the form of purely internal situations and reverse discrimination.142 Second, it implied a dramatic and overnight growth in the breadth and scope of Community law, as all national legal norms, not only those fundamentally concerned with the substantive policies developed by the Community, were potential obstacles to the realization of the four economic freedoms. This resulted in a massively asymmetric competence development, as the universal breadth of economic freedoms as constitutional principles did not go hand in hand with the expansion of the legislative competences of the Union. The risk of wholly disempowering the political process became actual.143 Third, it reformulated the very structure of constitutional conflicts in Community law. While the formal conflict in cases such as Costa was in substantive terms a horizontal one and an unavoidable consequence of forging a common constitutional law, the way in which economic freedoms were emancipated from national constitutional standards created the conditions under which purely vertical conflicts became possible and indeed frequent in the years to come (see chapter 5 for more on vertical and horizontal conflicts). Fourth, it resulted in a quantitative leap in the process of judicialization of European politics. Second, there was a major transformative change on what concerned competences. While seeming to “rein in” the power of the Union, Tobacco Advertising144 implied the abandonment of the previous point in leading cases such as Titanium Dioxide145 to limit the breadth and scope of market and nonmarket issues (in the latter case, by the so-called center of gravity test, which would result in characterizing as nonmarket measures those measures that would further a different collective good or a fundamental right). Even if this smacks of centralization through judge-made law, the division of labor between legislative procedures within the Union results in a structural bias, which entails that only a certain type of integration ends up being favored. We consider the democratic implications of this in chapter 5.


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At the same time, the processes of transformative constitutionalization described in the beginning of this chapter had basically run their courses. The key normative components of primacy and direct effect had been established by the end of the seventies. And while there was still a wide use of the Union’s residual competence basis (article 235 TEC, later renumbered 308 TEC) from the Single European Act to Maastricht, the fact of the matter is that both in the SEA and in Maastricht the competences that had accrued to the Union through that basis were formally consolidated. In fact, the key challenge in competence terms was no longer the legislative action of the Union as much as the competence implications of the new understanding of the economic freedoms as political tools. From the standpoint of the theory of constitutional synthesis, the kind of transformative constitutionalization consisting of the major recharacterization of economic freedoms and refashioning of the competence domain of the Union illustrate the synthetic polity’s proclivity to become legally autonomous, even if this comes at the price of undermining its own source of democratic legitimacy. The case law of the European Court of Justice, both on economic freedoms and on competences, even if partially resulting from strong albeit very controversial political signals, is a good illustration of how the process of constitutional synthesis has a built-in tendency to foster inner contradictions, in the terms we considered in chapter 2. Simple Constitutionalization Because the development of both structural and substantive principles had been considerably advanced in the first three decades of integration, and because innovative political decision making at the legislative stage became more difficult as the membership of the Union grew, constitutionalization became an eminently judge-led process (or, to be more precise, ECJ-led with national constitutions increasingly checking and balancing the Luxembourg judges). In that regard we may highlight five major developments, which essentially reveal that the more the constitutional nature of the Union and of its legal order came to the fore, the more apparent became the tensions with the national constitutional configurations. In the terms we develop now, direct effect revealed itself as an irritant to the systems of national state liability, crucial in the distribution of burdens among citizens; primacy challenged the way in which national political systems reconciled the mandate to integrate with the primacy of the national constitution; and the fleshing out of supranational fundamental rights standards questioned the preferences and rankings of rights embedded in national systems of fundamental rights, especially when coupled with the recalibration of economic rights and the reconsideration of what the procedural effectiveness of Community rights required.


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First, there was further guidance to be found in the breadth and scope of the direct effect of Community law. In particular, the Court supported an “interpretative” direct effect of all Community norms, including directives.146 And it gave final bite to the doctrine by affirming a right of the individual to be compensated for the extent of damages he or she would incur in case of a breach.147 Moreover, the direct effect of treaty provisions and regulations was further extended by rendering state authorities liable for the damages caused by violations resulting from private action when the state had not been sufficiently diligent and had not taken appropriate measures to ensure the respect of the freedom.148 Second, primacy was further consolidated by means of specific decisions concerning the setting aside of concrete national constitutional norms (Greece, Luxembourg)149 and by a dramatic expansion of the direct applicability of Community norms, by claiming that not only judges but also administrative authorities should leave aside conflicting national laws.150 Third, the binding character of Community fundamental rights standards was confirmed, as the Court affirmed that their material breadth extended to those cases in which a national law implements Community law or when a national law infringes in a justified manner on a Community (economic) freedom.151 Fourth, it must be added, even if it implies going beyond the time frame of this chapter, that the new characterization of economic freedoms was to reverse the very terms in which the conflict between the right to private property and collective goods was solved under Community law. Indeed, while we saw that the nondiscriminatory reading of economic freedoms went hand in hand with a characterization of private property in line with the “social” color of postwar constitutions, it was only a matter of time before the “emancipated” economic freedoms would start to be invoked as reasons to set aside faculties stemming from national socioeconomic rights. While the Court stood firm when the rights at stake were civil and political (Schmidberger, Omega, Khadi, although cautiously self-restraining in Vajnai),152 it has given full credit to this dramatic reversal when economic freedom entered in conflict with socioeconomic rights (Viking, Laval, Ruffert).153 Fifth, there was a major expansion in the substantive protection of the remedies available to Community right holders in national legal systems. Community law was interpreted as requiring the offer of remedies to render Community rights effective even when these remedies were not foreseen in national law (as was the case with the granting of temporary injunctions in Factortame),154 the granting of appropriate damages,155 the elimination of unfair time limits,156 and the elimination of limits in the access to courts.157 This was finally crowned into the affirmation that the access to a Community judge should not be guaranteed by Community law, but by national law, or that the restrictive interpretation of the right of private parties to


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contest Community acts directly before the ECJ was to be compensated by a wider protection being offered by the “natural” Community judge, the ordinary national judge.158 The spelling out of the constitutional nature of the Union and of its legal order thus made the case for reconsidering the breadth and scope of Community law. As we emphasized at the beginning of this section, constitutionalization was thus bound to trigger controversy given the Union’s incomplete basis of democratic legitimacy and peculiar institutional structure. This accounts for the development of a consistent line of jurisprudence on the side of national constitutional courts concerning the limits of the primacy of Community law, which even if having its origins in the previous phase, were refined and stabilized around the German Constitutional Court’s Solange II ruling.159 Similarly, the Union’s incomplete institutional structure (as seen from the vantage point of constitutional synthesis) accounts for an emergent tendency of self-restraint on the part of European institutions, constitutionally reflected in the enshrinement of the principle of subsidiarity (which in legal terms may boil down to the application of proportionality to the allocation and exercise of competences),160 and of the implicit devolution of powers either to private actors (with deleterious consequences for democratic legitimacy) or to national institutions (as is the case in the monitoring of competence).161

Institutional Development and Convergence The institutional development of the Union during the “long European constitutional season” was characterized by a long series of incremental changes and adaptations rather than by any major explicit reforms of the existing institutional structure. This was, in turn, combined with several new institutional additions to handle functionally specific tasks. It effectively meant (a) further accentuation of the Union’s institutional pluralism as a result of three new or renewed forces breeding institutional heterogeneity: growing competences, several rounds of accession of new member states, and the emergence of the new institutional template “governance”; and (b) complex and differentiated patterns of evolution in three of the four key institutions, namely the Commission, the Council, and the Parliament. These developments show that as synthesis advanced and extended over the constitutional field, the more pluralistic, internally and externally, the institutional structure of the Union became. This in turn meant that the institutional structure became less capable of carrying the synthetic process. With this began the search for alternatives (the governance template) that would further detract from the process of synthesis.


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Further Deepening of Institutional Pluralism The Union’s dynamic development in the period, as noted, manifested itself foremost in increased institutional pluralism rather than major reform. We have identified three main sets of pluralizing factors with mixed effects on synthesis. First were the several additions to the set of European institutions and decision-making processes resulting from the growth in competences intrinsic to synthesis. Fundamental in that regard was the active use of article 235 TEC on residual competence (later renumbered 308 TEC) to develop new policy areas. This was a pattern dating back to the seventies (see the discussion earlier in the chapter). The growth was compounded by new fields of competence added by successive reform treaties, especially the Treaty of Maastricht, which erected two new “pillars” (Foreign and Security Policy and Justice and Home Affairs) in the Union and included a peculiar blueprint for Union. Because the newly added institutions were programmed at a different moment and under different circumstances from those created by the founding treaties, it was almost unavoidable that the institutional templates would be different and not necessarily compatible. Indeed, and as we will see, the European Central Bank, the main institutional addition, would have to be reined in due to its pretense of being not only autonomous, but a specialized international organization, wholly independent from the rest of the Union structure. On what concerns specifically the new institutions programmed by the treaties, most of them (with the exception of monetary institutions) seemed to reinforce the intergovernmental “side” of the Union. The wish to preserve an intergovernmental hold on the development of security and defense and justice and home affairs resulted in the programming of institutions in ways hard to reconcile with the standard “Community” template of the Rome Treaty (which in itself was less supranational than the Coal and Steel Community). At the same time, even the minimalistic objectives of ensuring cooperation among national institutions required a certain degree of institutional consolidation. This explains why there was abundant recourse to a specific breed of “intergovernmental” agencies, such as Europol and Eurojust (and similarly on what concerned defense policy, the European Defence Agency), which by design may end up tilting the balance in favor of governance arrangements, in the terms we discuss infra.162 Second, institutional pluralism was greatly increased through several bouts of enlargement. Between 1957 (when the Union began with six members) and 2000, it went through four rounds of so-called enlargement, ending up with fifteen members by 1995. Although all new members were Western European states, their inclusion greatly increased the range of positions, views, and political and administrative structures of the Union (not the


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least because the enlargements of the 1980s were to what were then “new” democracies: Greece, Portugal, and Spain had experienced new constitutional beginnings and were themselves shaping and molding their own institutional structures accordingly). One should also take into account possible pluralizing effects from the “pre-accession” process that former communist countries underwent before (ten of them) joined the Union in 2004 and 2007. While formal enlargement took its time, a network of bilateral treaties emerged within months of the fall of the Berlin Wall. Such agreements not only prepared but also anticipated accession. This led to the transformation not only of the legal-political order of the prospective candidates but also of the Union itself. Each addition of a new member is a kind of institutional shock: with each new member, the system must be reconfigured. Given the Union’s constitutional character, each addition of a new member entails a round of reconstitutionalization. Here it should be added that the EU’s democratic conditionality is conducive to constitutional synthesis: it ensures that only constitutional democracies become members; operating with democratic entrance criteria feeds back on the EU, whose own democratic credibility will be assessed in relation to its monitoring of applicants’ democratic credentials, thus reinforcing synthesis. Third, institutional pluralism was exacerbated by the progressive affirmation of a new and hybrid institutional template, that of “governance.” In that regard, the lack of a clear overall constitutional design at the supranational level (because the constitutional conventions that characteristically established democratic equilibria among institutions could not be immediately applied to a different institutional setting) had fed the development of peculiar institutional practices among European institutions, such as the interinstitutional declarations, the “modus vivendi” and others, which defied standard institutional logics. This was complemented by the practices followed in the horizontal and vertical relationships among “disaggregated” national institutions (under the pressure of Europeanization), such as relationships among national parliaments themselves or among the European Parliament and the collective or some of the national parliaments.163 This shadowy, apparently voluntary, noncoercive relationship became a more defined institutional template as a result of the functional pressures resulting from the monetary union decided at Maastricht and put into effect in 1999 (also governance is of course a phenomenon that encompasses far more than monetary union).164 Monetary union as enshrined in the Treaty of Maastricht is a clear case of imperfect monetary union, which implies a truncated or stymied synthesis. On the one hand, it was agreed that monetary policy should be federalized and entrusted to an independent System of European Central Banks, with the European Central Bank at its apex. While this brought into line the in-


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stitutional design and decision making on monetary policy in most of the European Union (even in countries such as the United Kingdom, which received an explicit opt-out allowing it never to enter monetary union if it so decided), it also fostered institutional pluralism within the Union (by creating a special set of institutions and decision-making processes on monetary policy in contrast to those functioning under the “first” pillar, and also in the pillars and in areas where policies remained more or less “uncommunitarized”)165 and within each member state, as in most member states, barring Germany and more recently the Netherlands to a large extent, there was no real experience with fully independent central banks.166 It must also be added that the institutional asset of central banking further increased divergence, as both the institutional structure and the policy mandate were the result of “uploading” the German model to the European level.167 On the other hand, fiscal, employment, social, and wage policies were nominally left in national hands, contrary to what is usual in “perfect” monetary unions. Given that all these policies are closely interrelated and are key in the macroeconomic steering of the economy, there was a need to develop mechanisms for ensuring that the competence divide was not dysfunctional. The lack of political will prevented not only a full-fledged “federal solution” but also a traditional “Community” approach (the latter being complicated by the German central banking model’s onus on depoliticizing monetary policy, whatever that means in actual practice). As a second or third best, a series of apparently innovative institutional structures and decision-making processes were established, based on the several experimental institutional arrangements to which we refer supra. Thus while governance encompasses far more and emerged before the Maastricht commitment to monetary union, it is significant to note that the label as such began to be applied in European political and scholarly debates at that time. The term, which had been first applied to private company governance and then to international arrangements, was perhaps useful because there was a set of institutional structures and decision-making processes that did not fit with the traditional notion of “government.” These differed in the degree of similarity to standard governmental processes and are hard to square with synthesis. At one extreme was apparently the multilateral surveillance of the Growth and Stability Pact (the latter added in the Treaty of Amsterdam), where peer review was coupled with what seemed to be “hard” coercive mechanisms. On the other side was the “open method of coordination,” which is characterized by the assumed absence of any difference in power among actors. In decisional terms, the open method of coordination refers to a process oriented toward mutual learning and peer review without sanctions. Hard law is substituted by guidelines, deadlines, targets, benchmarks, and “peer pressure.”168 The open method of coordination was used by all member states (and not only euro states) to undertake


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surveillance of the Broad Policy Economic Guidelines aimed at coordinating economic policy and to ensure that it was regarded by all member states as a matter of common concern. It has also169 been applied to employment,170 social,171 education,172 and innovation policies.173 Part and parcel of the “governance” paradigm, the disparate collection of agencies that mushroomed since the early 1990s was the result of the ascendance of the regulatory state paradigm, closely related to the philosophy of New Public Management.174 This has resulted in a new institutional template and in further confusion in how the overall institutional design fosters the necessary mutual checks and balances. And, as we anticipated, the “apparent” success175 of these methods gave force to the voices that claimed that the open method of coordination and other governance structures were instances of a wider polity vision,176 which will partially underlie the procedure followed in Lisbon, or so we will argue in chapter 4. The Institutional Triangle under Trial Constitutional reform and the ongoing processes of transformation and simple constitutionalization left their marks on the Union’s institutional structures. In general terms, they pushed the Union closer to the template of the democratic constitutional state, even if confined by the constraints built into the Union’s peculiar institutional structure. However, there were also strong forces countervailing synthesis, some of which were bred by synthesis itself (see also chapter 2). This is reflected in how the key Union institutions grew and consolidated and shows up in mounting tensions in their institutional identities. Enlargement increased institutional diversity as the Union’s membership increased but also unleashed pressure to streamline the internal constitution of each institution to render it more cohesive, which proved easier said than done. The Commission was affected by a major identity crisis after the direct election of the members of the European Parliament, as it ceased being the exclusive carrier of the “supranational” interest; the Council was trapped between the need to accommodate national institutional plurality (with regions in federal member states seeking special arrangements to ensure their participation in the workings of the sectoral councils) and to provide a single European voice vis-à-vis third countries (as the establishment of the Special Representative in foreign policy proves); the Parliament was successful in its demands for further competences, but this only reinforced the claims of national parliaments to regain some say in the legislative process (something that led first to the establishment of COSAC and much later on, as we will see in chapter 4, to their becoming players in the Community lawmaking process). The peculiar “in-between” institutional structure of comitology is reflected in this tension between


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institutional consolidation and pluralistic affirmation. The more it was formalized and its procedure codified, the more it had to take into account the complex constitutional geometry of European integration. The European Commission. The tensions within constitutional synthesis were perhaps best illustrated by the fact that the most important democratic development in the period, the direct election of the European Parliament, led to the Commission experiencing a deep identity crisis. The EP’s increased role cast doubts on the Commission’s credentials as the embodiment of the supranational interest, given that there was now a competing institution that was not only structurally supranational but also had a direct democratic mandate. While one can discern clear attempts by the Commission to act with the support of the Parliament, in democratic terms the relationship was bound to be inverted, as indeed can be said to have been the case since the Santer crisis177 (and perhaps even more acutely, since the Butiglione crisis, which took place after the period examined in this chapter). At the same time, the Union’s enlarged competence basis did not go hand in hand with a growth in the Commission’s manpower and resources, rendering its action necessarily less comprehensive.178 Enlargement of the membership of the Union also seriously affected the internal cohesiveness of the Commission and created a serious tension between collegiality among Commissioners and control of the Commissioner over her or his directorate general.179 The Council. The Council of Ministers kept its basic institutional design. Still, it must be noted that substantial amendments to the treaties resulted in internal changes (the Maastricht Treaty resulting in new or substantially revamped preparatory bodies in what concerned Justice and Home Affairs and economic issues). Three major changes concerned (a) the tendency to render the Council more cohesive by reducing the number of sectoral formations and increasing the salience of the Council meetings of Foreign Affairs ministers; (b) the progressive opening, through national legislation, of Council meetings to regional representatives in federalist countries; and (c) the transformation of the position of secretary general of the Council into that of the “High Representative of the European Union,” an embryonic form of foreign minister, which laid the ground for tighter integration in foreign policy.180 All this resulted in a growing number of images or conceptions of what the Council of Ministers is,181 which would be further compounded when, starting in 2002, the Council’s deliberations would be rendered more transparent to the public, “domesticating” the image of the Council as the “second legislative chamber” of the Union. European Parliament. A major transformation resulting from the several incremental changes through treaty reforms in the 1980s and 1990s was the increased breadth and depth of the legislative and political monitoring powers of the European Parliament. The members of the European


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Assembly made use of a double tactic: the strategic and negative use of the decision-making rights acknowledged to Parliament under the 1970 and 1975 Budgetary Treaty reforms to increase its general legislative power; and the development of a discourse concerning the legitimizing capacities of granting Parliament such decision-making powers.182 In lawmaking terms, the move to co-decision impelled a parallel move to make the Parliament a co-legislator with the Council proper. MEPs managed to convert this into gains concerning participation in the writing of the Community equivalent of statutory instruments in the comitology procedure183 and to force the Commission into being sensitive to the agenda of Parliament when making use of its right of initiative. In political monitoring terms, the European Parliament has become a key player in the process of nomination not only of the president and the members of the Commission, but also of the president of the European Council and of the members of the European Court of Justice.184 The period also saw a further consolidation of the European multilevel parliamentary field, through the establishment of the Conference of European Affairs Committees (COSAC). COSAC was established in May 1989 with the express purpose of strengthening the role of parliaments in EU matters, whose role has been gradually reinforced over time.185 Comitology Now Placed in a Triangle. Finally, the overall institutional changes and transformations within the European Union resulted in a transformation of the regulatory implementation mechanisms. The comitology institutional structure was also subject to major changes, resulting from a double pressure: that of the European Parliament to mirror at the implementing stage the same power gains that it had obtained in the legislative process; and that of the Commission’s intending to assume the main responsibility over implementing legislation, thus contributing to its institutional redefinition. From the Single European Act to the Nice Treaty (especially with the belated “triumph” in the form of the third comitology decision of the Council), it seemed that the European Parliament had managed to transform the structure of comitology in the direction and sense it wished.186 The Long Constitutional Season between Constitutional Change and Denial We have seen that the agenda and the reform process were becoming increasingly constitutional. Despite this, most European leaders remained in a state of denial and kept on pretending that they were engaged in the reform of international treaties, even if quite complex international treaties. The lack of a well-established constitutional theory was the obvious pretext for this increasingly obvious muddling through. As we argued in the previous section, the distinct features of the European Union as a constitutional


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polity made their way into the reform processes; however, European leaders consistently refused to engage with fundamental reform through a constitutional language and according to a constitutional understanding of the Union. This state of constitutional avoidance and even explicit denial187 has played a major role in the successive semifailures (and less than semisuccesses) of all treaty reform processes since. The long constitutional season of the European Union was marked by an unresolved tension between, on the one hand, the definition of the European Constitution as the expression of the general will of the heads of state and government acting as the ultimate representatives of a collection of national democratic wills, and on the other hand the view of the European constitution as the expression of the general will of European citizens. This tension is intrinsic to the very structure of the European constitutional field. The member states’ constitutions have authorized the legal structure in place, and as long as the EU structure cannot convincingly demonstrate that it is a self-standing democratic constitutional order, the member states are constitutionally required (by their own constitutions) to ensure that the European constitutional structure is an adequate reflection of the aggregate of national fundamental laws. At the same time, the Union has been authorized, through numerous treaty changes, and has developed democratic constitutional arrangements, to speak to member state nationals in their capacity as European citizens and as members of a European constitutional order. The many instances of both failed (the Spinelli project) and successful treaty amendments (the Single European Act, the Maastricht Treaty, the Amsterdam Treaty, and the Nice Treaty) that mark the Laeken period can be properly constructed as different efforts to reconcile the tension between these two conceptions. All of them illustrate that the complex character of the European constitutional field defies making a simple choice. Instead, the period is marked by a vacillation between these two polar extremes. The Spinelli project was an attempt to transcend the definition of the European constitutional will by reference to diplomatic, intergovernmental bargaining, whereas the Single European Act moved treaty amendment back to the intergovernmental model. However, the Spinelli project left its imprint and triggered some degree of “constitutionalization” in the IGC process, which was further expanded with Maastricht, Amsterdam, and Nice, thus testifying to how the more recent processes have sought to accommodate the two. In brief, the long constitutional season of the European Union was marked by a slow process of constitution making through stealth and denial. After having rejected the constitutional road advocated by the European Parliament in 1984, the Council pretended to conduct reform by avoiding the constitutional implications of fundamental reform. But the ongoing transformative constitutionalization of the Union did not stop pushing issues of constitutional import onto the European reform agenda,


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and that unleashed great pressure to steadily but progressively increase the constitutional color of what formally remained purely intergovernmental reform processes. These dynamics were reinforced by the dramatic shift in the understanding of Community economic freedoms followed by the Court of Justice, as it progressively brought to public attention the dramatic mismatch between the breadth and scope of the “negative” economic constitution of the Union and the meager political capabilities of the European-level institutions. It was further compounded by the emergence of a new alternative to both synthesis and full constitutionalization of the Union: governance. While the choice of governance arrangements was first imposed by the lack of political will to proceed to the type of monetary union most consistent with constitutional synthesis (i.e., one including fiscal and thus political union), they were soon refashioned into a full-fledged alternative constitutional theory for the Union.

CONCLUSION This chapter had three specific aims. First was to provide a coherent narrative of the process of European integration, accounting for the Union’s identity conflicts and the progressive affirmation of the Union as a constitutional polity. We have shown how both legislative and judicial decisions contributed to a transformed understanding of Community law as a constitutional order. But we have also clarified why this was not translated into a full-fledged constitutional transformation. Constitutional avoidance and denial did not succeed in repressing the constitutional tide but in stymieing it, failing at the same time in the professed task of reforming synthesis so as to stabilize it. One such notable half-hearted decision was that of establishing an imperfect monetary Union. This led to the crystallization of “governance” mechanisms (which, as we noticed, had in embryonic form been part of the European constitution since its inception, resulting from institutional experimentation), which were soon taken as an instance of a larger governance paradigm as the proper image for reconstructing the Union. Our second aim was to demonstrate that European integration is best reconstructed as the result of the distinct approach to constitution making that we have labelled constitutional synthesis. Through documentary sources and systematic reconstruction of concrete provisions, historical developments, and institutional structures and processes, we have found that the Union was created in a synthetic constitutional moment (the founding treaties) in which the mandate to undertake supranational integration enshrined in the constitutions of the founding member states was realized. It illustrates the extent to which the evolution of the Union from 1951 to the


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late 1970s was marked by the progressive realization of the constitutional nature of the process and by the slow but steady clarification of the substantive contents of the common constitutional norms—through a complex interaction of transformative and simple constitutionalization. It provides evidence of the complicated constitutional times the Union has experienced since the early 1980s, when the success of the previous processes of constitutionalization bred inner contradictions (reinforced by external shocks, paramount among which were the oil crises and the fall of the Berlin Wall), which in their turn resulted in pressure to stabilize or overcome the synthetic path of integration. It puts in view the constitutional tensions resulting from the structural frailties of a synthetic process of integration and its internal dynamics. We have further shown that the tension between the drive toward homogeneity characteristic of normative synthesis and the drive toward plurality characteristic of institutional development (and reinforced by the rise of governance arrangements) has been mounting. The third aim of the chapter was to clarify why the European Union appears a highly fragile construct but has nevertheless also experienced formidable growth. Key in that regard was the democratic license provided by the synthetic constitutional moment, by the transfer of the collective of national constitutional norms to the supranational constitutional order. This not only provided a substitute for revolutionary democratic legitimacy but offered a solid framework for the processes of transformative and simple constitutionalization of the European Union. However, we have also shown that synthetic constitutionalism has its limits. It is especially sensitive to external shocks, given the limited resources the polity has to rebuild its social and especially economic environment. It also fosters limits intrinsic to its form, as evidenced, for instance, in a certain emancipation of European constitutional standards (concretized in the jurisprudence of the Court on economic freedoms and competences) and heightened institutional pluralism. Once this process is started, then the temporary character of the democratic license resulting from synthesis is rendered apparent and is likely to spark democratic reactions. In the period covered by this chapter, the stymied and long constitutional season had the effect of increasing the menu of reform roads on offer, including transcending constitutional synthesis in favor of the revolutionary constitutional path (see chapter 4). But the apparently successful steering of an “imperfect” monetary union gave common currency to the idea that synthesis could be mended through adding “governance” mechanisms and, ultimately, by a “governance” reconstitution of the process of constitutional reform and of the Union itself. This new alternative was given credence by the European Council in 2000 (with the launch of the open method of coordination as a fundamental tool of the economic agenda of 2000) and promoted by the Commission in its 2001 “White Paper on Governance.” And patiently in the


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wings, advocates of intergovernmentalism kept on claiming that all this talk about fundamental reform was exaggerated and that the Union needed only some modest tinkering that could be conducted through intergovernmental conferences. Indeed a mixture of the second and third alternatives reappeared strongly in the Lisbon process, as we will see in the next chapter.


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4 From Laeken to Lisbon Moving Beyond Synthesis or Heightened Constitutional Ambiguity?

We will find much of the first project of a European Political Community in any similar future initiative. And one day, one of them will be favoured by the prevailing circumstances and will be successful. The text which was sent to the six European governments on March 10th, 1953, would be recognized as the template in which all others had to be written. —Jean Monnet, Mémoires

This chapter provides an account of the two fundamental reform processes that the European Union has undergone in the past decade, the “Laeken” (2001–2005) and “Lisbon” (2007–2009) processes. Our purpose is to clarify the main changes they have brought both to the process of European integration (especially to its constitutional dynamics) and to the substantive content of European constitutional law. As was already stated in the introduction to this book, we depart from the firm conviction that Laeken and Lisbon can be properly approached, reconstructed, and assessed only when placed in their historical constitutional context. In the previous chapter we claimed that the combined effect of five decades of transformative constitutionalization and two decades of stymied constitution making was to render evident and even palpable the limits of the constitutional framework within which the Union had been operating since its establishment. So Laeken and Lisbon represent two distinct answers to the same question of how to reform the Union to create a stable European political order. The reform agenda had been for four decades structured as a contest between, on the one hand, transcending beyond synthesis through democratic constitution making (the democratic foundation of the Union that failed both in 1954 with the Political Community Treaty and in 1984 129


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with the “Spinelli” Treaty and partially succeeded with the Maastricht Treaty) and, on the other hand, the “revamping” of constitutional synthesis (a route that was tried with only half-success in the several rounds of treaty reform from the Single European Act to Nice). In the previous chapter we signalled that a third path started to emerge in the late nineties, loosely corresponding to the emergence of the “governance” paradigm, out of the need to find an institutional structure to fit the “imperfect” monetary union agreed to at Maastricht. Laeken and Lisbon do indeed replay these patterns. And indeed, Laeken and Lisbon can be characterized as different combinations, different “mixes” of these three paradigms of fundamental reform.

LAEKEN: EUROPE’S CONSTITUTIONAL MOMENT OR CONTINUED SYNTHESIS? Signalling a Reform of Constitutional Color and Consequence In the previous chapter, we pointed out that the Nice reform process ended up in a fiasco. There was a considerable gap between the reform agenda (in essence, reforming synthesis so as to entrench a stable and efficient political order before the massive enlargement to eastern and southeastern European countries) and the reform achievements reflected in the Treaty of Nice, which were meager, to say the least.1 This flop contrasted with the apparent success of the process through which the Charter of Fundamental Rights had been drafted. The charter process was structured around a convention2 where seconded national as well as European parliamentarians sat with representatives of national governments and European institutions. Against most odds, the convention managed to produce a rather coherent single document in a relatively short period of time, supported by a vast majority of the conventionnels.3 Opinion makers and academics were soon putting the blame for the Nice failure to reform the Union properly (the third time in a row an IGC was closed with a considerable number of leftovers) on the intergovernmental method of reform. Many of them were responding to an influential speech made the previous spring by the then German minister of foreign affairs, Joschka Fischer. The Green politician had indeed made a well-argued case for a European constitution that deserved its name, a clarion call to transcend synthesis through democratic constitution making.4 The speech prompted a series of reactions on the side of national politicians, through which the case for reform gathered momentum before Nice,5 so much so that the European Council, on the very night of the Nice failure, added Declaration 23 to the treaty,6 calling for “a deeper and wider debate about the future of the European Union.” That declaration was the closest one can get


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to the intonation of a collective mea culpa by the European Council. The declaration also called for “wide-ranging discussions with all interested parties: representatives of national parliaments and all those reflecting public opinion, namely political, economic and university circles, representatives of civil society, etc.,” not only from actual member states but also from candidate countries. More to the point, it contained a constitutional agenda in nuce, including the call for decisions on (a) the legal status of the Charter of Fundamental Rights of the European Union; (b) the distribution of powers among the European Union, the member states, and regions; and (c) the role of national parliaments in the resulting institutional architecture. Furthermore, the ultimate goal was supposedly to “improve and monitor the democratic legitimacy of the Union and its institutions, in order to bring them closer to the citizens of the Member States.” The “deeper and wider [national] debate(s)” that Declaration 23 demanded did not materialize. There was barely any kind of public discussion proceeding. Contrary to the expectations (and to the overoptimistic assessment by the Swedish presidency),7 the debate was conducted around strong, not weak or general, publics,8 something that did not add to the democratic legitimacy of the enterprise. Even if national publics seemed fairly unresponsive, agreement on the need to change the reform procedure to effect change gained ground by the day. An elite-driven push for constitution making was taking shape. The European Council came very close to the explicit signalling of a constitutional moment in the “Laeken Declaration” of 15 December 2001.9 The declaration did indeed give credence to this as a constitutional moment because it framed fundamental reform in explicit constitutional terms, something that not even the European Parliament had done in the early eighties.10 Crucially, the Laeken Declaration did include a new reform vehicle that appeared to signal a constitutional intent, namely the Convention on the Future of Europe. The choice of words matters: symbolically speaking, the word convention has a clear constitutional connotation (mainly, but not exclusively, coming from U.S. constitutional history plus the recent Charter Convention) that can always be exploited. Still, when considering the mandate and the character of the envisaged representative body, the actual situation was more ambiguous when analyzed from a democratic constitutional perspective. While clearly more inspired by the federalist vocation of the Belgian presidency and clearly more so than previous treaty reform platforms, the final text of the Laeken Declaration was the product of consensus making in the European Council, which rendered the constitutional foundation of the reform more an afterthought than an explicit constitutional reform mandate.11 The upshot was that the constitutional nature of the eventual Reform Treaty was merely hinted at.12 The literal tenor of the declaration, steeped as it was in the spirit and language of “simplifying


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reforms” or “simplification,” noted that this might require the drafting of a text of constitutional import (a phrase that revealed its political overtones in its substantively illogical nature).13 Further, the Laeken Declaration’s ambiguous constitutional vocation also showed up in the limited formal role assigned to the convention—to produce one or several reform proposals for the subsequent IGC.14 This formally speaking quite confined role is indicative of a clever political strategy of placating different positions within the European Council. If we look at its composition, there is no doubt that the European Convention bore more semblance to a constitutional assembly than was the case with the European Council–run IGC.15 But confining it to nothing beyond a preparatory body was akin to circumscribing it to a body more similar to the reflection group that had preceded the Amsterdam Treaty than to a constitutional assembly proper.16 The Laeken Convention 2002–2003 The “Laeken” Convention was convened on 28 February 2002. The 2001 Declaration had established its composition (similar to that of the Charter Convention: seconded national and European parliamentarians, representatives of national governments and of European institutions),17 the rudiments of its structure (by establishing a praesidium and nominating the president, Valéry Giscard d’Estaing, and the two vice presidents, Giuliano Amato and Jean Luc Dehaene), and, as we saw, its basic mandate. But how to deal with its task in terms of procedure and style was left to the convention itself to determine. Sixteen months later, and against most expectations, the convention put forward a single proposal on a “Treaty Establishing a Constitution for Europe,” which it then transmitted to the European Council on 18 July 2003.18 In this section we concern ourselves with what happened in between these two dates; and we claim that (a) the convention was initially propelled by a constitutional élan that resulted in its appropriation of a constitutional mandate out of the ambivalent, if not contradictory, text of the Laeken Declaration; (b) this élan underpinned to a considerable extent the first stages of the work of the convention; (c) the shadow cast by the intergovernmental conference was indeed long, and the European political leaders found ways and means to influence and shape the work of the convention, turning the process into a hybrid of constitutional rhetoric and substantive synthetic reform. In a later section, we consider how this was clearly reflected in the text of the convention’s proposal. The Convention Turns Laeken into a Constitutional Mandate The actors in charge of the convention defined their undertaking as a constitution-making exercise from literally the first day of their labors.19 The


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convention used the broad range of questions in the Laeken Declaration to justify European treaty reform as a constitutional undertaking. The flamboyant convention president, Valéry Giscard d’Estaing, compared the convention to the Philadelphia Convention, a body with a high symbolic constitutional connotation.20 He also underlined the difference between the convention and the IGC: “We are not an Intergovernmental Conference because we have not been given a mandate by Governments to negotiate on their behalf the solutions which we propose.” Instead, Giscard, in his inaugural speech, pleaded with delegates not to feel bound by those who had selected them. The convention, he argued, should work to produce a constitutional proposal through an open and consensus-oriented process of unencumbered deliberation (without any votes being taken).21 There was considerable support for a European constitution outside, but notably also within, the convention. Giscard was well aware of the fact that a vast majority of the convention membership was willing to reach a rather ambitious agreement.22 It was therefore hardly surprising that Giscard affirmed during the first session that the convention should try to achieve “broad consensus on a single proposal [. . . that] would thus open the way towards a Constitution for Europe.”23 The conventionnel identity was also fostered by developments that were not driven by the president and the praesidium of the convention. First, there was a considerable (and rather successful) opposition to the very dirigiste and restrictive rules of procedure proposed by the praesidium.24 Second, informal meetings in which conventionnels met in ideological, institutional, or national formations soon started to be organized, something that replicated the formal and informal arrangements characteristic of constitutional assemblies.25 In addition, and in stark contrast to all IGCs, including the Laeken IGC, the convention considered the general European public as its natural audience. This was reflected in the fact that most of the convention documents were rendered public as they were produced and that most of the convention’s meetings were open to the public.26 The convention also seemed intent on addressing itself to the European public, as attempts were made to gain visibility in national public debates and even to connect to civil society organizations (although the latter seem to have been more inspired by the aim of managing public relations than by a sincere constitutional intention).27 It should be made clear that it was really the convention that read a clear-cut constitutional mandate into Laeken. It appealed to the Laeken Declaration and justified its role on the grounds that it was, in its view, a more representative body than the IGC. Its main composition was parliamentarians (from the EP and the national parliaments); the convention was far more broadly composed than the IGC;28 and in contrast to the IGC’s secretive negotiations, the convention would deliberate in public and reach out to Europe’s citizens. The implicit argument was that the convention,


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in clear contrast to the IGC (which we described in chapter 3 as a secondorder constitutionalizing agent), was a European first-order constitutionalizing agent: its composition (of parliamentarians, notably its sixteen-strong European Parliament component) and its open and transparent procedures would give it a privileged access to Europe’s citizens and lend democratic credence to its constitutional vocation. More democratic than the IGC was the operative phrase; it was never explicitly stated that the convention had a direct popular mandate (which it did not).29 And still there were some continuities with the past. The convention would write a constitution, but discussion never took off on what constitution for what kind of polity. Or, put another way, the convention never clarified what kind of polity the constitutional project would apply to nor what more precise democratic standards would apply. Instead, participants underlined the sui generis status of the undertaking—its unprecedented nature.30 The precise political objective was to frame the process as constitutional and operate as if the convention were a constitution-making body31 so as to overshadow the fact that the remainder of the process would still be steeped in the IGC mold. Given the convention’s formal role in the overall process, this was a gamble. If the convention succeeded in gaining acceptance for framing the process as constitutional, everyone involved in the process would understand himself or herself as a European constitutional stakeholder with the responsibility that such a role carries. This would apply throughout the process. It would clearly also apply to those citizens who would vote in nationally organized referenda: it would make clear to them that they should act not in their capacity as national citizens but instead in their capacity as European citizens whose task it would be to accept or reject the European constitution. This was the most effective way the convention had to steer the remainder of the process and the best way in which it could shape the criteria for success. Whether this would work hinged on the credibility of the convention’s constitutional vocation, the quality of the proposal, and whether the actors in charge of the next stages of the process would remain faithful to the convention’s constitutional definition. While the convention passed the first test, it ended up failing the latter two. The Actual Work of the Convention The convention thus set itself the concrete task of writing a constitutional proposal.32 In its first weeks, this also seemed to be the main game, and it came with efforts to heighten the democratic legitimacy of a body with rather convoluted and mixed democratic credentials.33 Following the battle over rules of procedure mentioned in the previous section, the president managed to impose an organization of the labors of the convention in three phases: a listening phase (from March to July 2002), a deliberating


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phase (extending from June 2002 to January 2003), and a drafting phase (which was launched by a very preliminary proposal from the president in October 2002, labelled the “skeleton” proposal on account of its apparent thinness, and which extended until July 2003).34 Whether intentional or not, the choice of the praesidium to devote a considerabe period of time to the listening phase and to start considering concrete drafts of the text at a rather late stage were bound to result in a tight framework in which time prevented the explicit articulation of reasons for the choice of certain alternatives. Thus, it could be said that timing favored bargaining, not deliberation.35 The second, “deliberating” phase was fairly uneven. The praesidium did originally convene ten working groups whose work was organized in two “waves.” The first wave was devoted to structural and substantive constitutional principles (subsidiarity, complementary competences, the Charter of Fundamental Rights) and institutional design (the legal personality of the European Union, which spilled over into one of the working groups of the second wave on simplification, and the role of national parliaments). The second wave was mainly concerned with specific policies (economic governance—a rather telling label—external action, defense, and the third pillar, freedom, security, and justice). Notice that the convention leadership did not establish a working group to deal with some of the most controversial—institutional—issues, and it postponed discussion of these questions that would yield vital information on the character of the polity until the very end (when there was no time to deal with them properly). The conventionnels, however, managed to force the convening of an eleventh working group on social Europe. This was triggered by the cul de sac in which the working group on economic governance had found itself since the beginning of its labors. While this was creating unrest among center and left-leaning conventionnels, Giscard claimed in his usual ambivalent manner that no member of the convention had argued for an increased competence of the Union in social matters.36 That boomeranged and solidified pressure within the convention to create a new and specific working group on “social Europe.”37 The question was raised by several members in the plenary sessions in October.38 The praesidium apparently tried to settle the question by means of devoting some time in the plenary to a debate on social issues.39 But more members of the convention sent written contributions where they spelled out their arguments in favor of rebalancing the goals, objectives, and policies of the Union in a social direction.40 This resulted in the actual creation of the working group,41 which, however, was as inconclusive as the one on economic governance. As time progressed and the convention entered its drafting phase, it became increasingly clear that the convention would not and could not foster


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a constitutional moment for Europe as understood in the revolutionary tradition. There were three main reasons for this. First, the convention failed to clarify the normative status of the undertaking. In his inaugural speech, Giscard noted, “In order to avoid any disagreement over semantics, let us agree now to call it: a ‘constitutional treaty for Europe.’” This ended up being a successful effort to foreclose the politically contentious issue of “what kind of constitution for what kind of European Union.” It is easy to understand that those in charge of the process were concerned with preventing such a debate from derailing the process. But shirking away from this debate carried risks. Retaining ambiguity about the normative status of the constitution and the kind of polity it would fashion would also make it more difficult to ensure that those involved in the process would consider it as a proper constitutional undertaking.42 Second, the interaction within the plenary and the working groups has tended to be described as a deliberative one.43 Even if partially agreeing (even sympathizing) with such an assessment, two major caveats have to be made. For one, voting was excluded from the very start as a technique of decision making. It has been argued that voting would have been impossible, given the very different kinds and degrees of legitimacy of the different members of the convention (what would have been the proper weight to be assigned to government versus parliamentary representatives or to representatives from a would-be candidate such as Turkey?). Some claim that this need was actually fortunate, as this enhanced deliberative interaction.44 However, it can be claimed that voting is actually preferable to other forms of decision making, especially from a deliberative-democratic perspective. If preceded by a proper deliberation, voting is a normatively justified way of adopting a decision.45 Further, in more practical terms, voting in the convention might also have put more pressure on recalcitrant governments that were in a minority. The lack of transparency in the meetings of the praesidium46 casts a shadow of doubt over the extent to which the outcomes of the convention can be said to be the result of deliberative interaction. The three leading members of the praesidium held a firm hand on the unfolding of the convention. There was some strategic shifting among voting within the praesidium, and even on who was entitled to vote.47 And further, the opening to civil society was half-hearted at best. Indeed, many members of “civil society” came to be highly critical of what they saw as a top-down convention-run orchestration rather than inclusion of civil society actors,48 and civil society organizations complained that the convention offered limited access and paid even less heed to the concerns of civil society organizations.49 Third, time pressures resulted in fully skipping the debate on part III, where most of the treaty norms on specific policies were to be enshrined. This was a task “delegated” to the Legal Secretariat of the Council. This went


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hand in hand with a clear veto on any attempt of hierarchical ranking of the different parts of the convention’s draft, thus effectively hyperinflating the constitutional currency, a decision that came to haunt the Constitutional Treaty in the French and Dutch ratification debates. The Constitutional Countermove: The Long Shadow Cast by the European Council The convention faced important constraints that weakened its constitutional impetus. Of critical importance is the role of the European Council. This was apparent in the ambiguous role the European Council had attributed to the convention in the Laeken Declaration, and it became even more apparent in the role it allowed the convention to play throughout the process (initially through the appointment of the convention leadership, and subsequently through close interaction).50 The convention leadership was not only wholly aware of this but also as the process proceeded proved well ready to accept and even to ensure by means of political manipulation.51 The convention leadership, through agenda control, contacts, and various other means, structured the convention’s work in such a manner as to ensure that it could anticipate in an ongoing manner what the European Council would accept.52 The European Council had directed the convention to work within a fixed time frame: the convention was given a year to deliver its proposal(s).53 Despite requests for more time, the time limit was only very modestly increased (from March to June 2003). This worked as an important constraint. It meant that the convention had only a month and a half to review the entire text of over three hundred pages (from end of May to mid-July 2003).54 The European Council’s deadline effectively deprived the convention of time to debate part III, which contained a large body of detailed provisions that would give a strong direction to how the general provisions in parts I and II would be interpreted and dealt with.55 This was a decision that upset many convention members (and negatively affected national ratification debates, especially in France).56 It effectively substituted the convention for a set of legal experts operating within the Council of Ministers, thus contradicting the very purpose of simplifying the primary law of the Union, and notably the idea that the convention was necessary because it was writing a constitution. Inserting the entire body of specific provisions that makes up part III into the document labelled the Constitutional Treaty cannot but be understood as devaluing the constitutional currency of the draft.57 The convention thus reoriented itself to placate the European Council,58 which meant that it also effectively redefined its main constituency from we the European peoples to we the European Council. Here it should be underlined that the convention had, of course, been barred from making a


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constitutional proposal directly to the people. Instead, precisely because it had been interspersed into the IGC treaty amendment framework rather than replacing it, the convention had to concentrate much of its effort—if it wanted a material result that would last—on ensuring safe passage of the draft through the next, European Council stage.59 Such a reorientation was also symbolized through several leading member states directly participating in the convention through their foreign ministers, which in itself gave a strong governmental direction to the convention process.60 This was later translated into a broader process of “second-guessing,” which helped to direct part of the constitutional debate into an assessment of whether a given draft would be acceptable to the IGC. The structure of the process helped to effect this shift. Note, for instance, the special role that government representatives—notably foreign ministers—played in the overall process. Those foreign ministers that were part of the convention’s deliberations also re-entered the process as direct participants at the deciding, European Council stage. Each government was equipped with veto at the European Council meeting; hence the government representatives in the convention—and notably the foreign ministers—could exercise credible veto threats in the convention.61 This also made one author refer to the convention as “deliberating in the shadow of the [European Council] veto.”62 The result of this process was that the convention’s appropriation of constitution-making power was effectively transferred to the European Council. The European Council was, after all, the body in charge of treaty amendment, and it ended up exercising this role even through the convention. The convention thus ended up paying a rather high price for raising the constitutional card. In thus aligning itself with the European Council, it effectively eluded the political constitutional terrain, and instead framed its constitutional role in the language of consolidation and simplification of Community law.63 This strange mode of constitutional politics becomes meaningful when we consider it in light of how executives have dominated the management of treaty reform and thus conditioned the very language within which constitution making is framed in the European Union. The strong European Council steering of the convention played an important part in shaping this result. The Convention’s Constitutional Draft We have seen that the convention had at most an ambiguous constitutional mandate, which it sought to expand but was constrained from doing. It thus ended up neither clarifying the political stakes nor the larger polity and constitutional implications of its work. This ambiguity clearly marked


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the text of the draft. Indeed, it seems to us that (a) a close look at the draft as established by the convention reveals the match of constitutional rhetoric and synthetic reform that comes in the “fine print,” or emerges from a systematic interpretation of the text. This is compounded by (b) the avoidance of all key issues concerning the socioeconomic policies of the Union. Constitutional Wrapping for Reformed Synthesis The tension between the constitutional grammar and the reformed synthetic substance of the convention’s Constitutional Treaty can be well illustrated by considering what perhaps are the most important changes to the primary law of the Union advocated by the convention. On what concerns the structural constitutional law of the Union, the convention’s draft contained provisions affirming the primacy of Community law over national law (article I-10.1: “The Constitution, and law adopted by the Union’s Institutions in exercising competences conferred on it, shall have primacy over the law of the Member States”) as well as a rather neat set of provisions distinguishing among different types of competences and allocating them between the Union and the member states (exclusive, shared, and supportive competences, plus the “peculiar” competences on foreign, security, and economic coordination) (articles I-11 through I-14). In both cases, the draft follows the typical template of a constitutional text, affirming the primacy of federal law and laying down the basis for a clear competence catalogue. However, the actual implications of these provisions may have been more nuanced. On what concerns primacy, not only the travaux préparatoires reveal that article I-10.1 was intended as a codification of the existing constitutional practice (which is to say the least complex, as national constitutional laws limit the breadth and scope of the primacy of Union law, as we considered in chapter 3), but the Constitutional Treaty, article I-5.1, contained an explicit recognition of the national constitutional identity of each member state (“The Union shall respect the national identities of the Member States, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including those for ensuring the territorial integrity of the State, and for maintaining law and order and safeguarding internal security”). The latter could not but reinforce the qualified recognition of the primacy of Union law. On what concerns competences, the neat categories included in part I of the constitution were in contrast to the intricacies of the actual allocation of competencies in part III. That would not have been much of a problem if the parts of the Constitutional Treaty had been somehow ranked hierarchically (as many conventionnels would have preferred, through the explicit characterization of part III as nonconstitutional). But because all


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parts were finally situated on the same hierarchical level,64 whether the reforms enshrined in part I would make much difference would depend on how in constitutional practice the relationship between the different parts of the treaty would be settled. On what concerns the substantive constitutional law of the Union, the Charter of Fundamental Rights of the European Union was formally incorporated in the primary law of the Union (indeed making up part II of the Constitutional Treaty). This seemed to be as clear as possible an indicator of the constitutional nature of the treaty. Indeed, the incorporation of the Charter was perhaps the reddest of the red lines of the MEPs attending the convention, on account of its constitutional implications.65 Still, keep in mind that the most Charter-skeptic national governments (the United Kingdom and Ireland at this stage) had obtained in the Charter Convention a dilution of the legal bite of socioeconomic rights, a reinforced drafting of the right to private property, and quite restrictive “horizontal clauses” governing the relationship between the Charter and national laws.66 Having the chance of a second round of bargaining, they only agreed to the incorporation of the Charter after the “horizontal clauses” were tightened even further. Sections 2 and 3 of article 52 deactivated most of the normative bite of the Charter, so much so that some authors considered this as leading to its self-effacement.67 And under the further condition that the “explanations” the Legal Secretariat of the Council had produced during the Charter Convention were qualified as authoritative constructions of the document. Less obviously, the incorporation of the Charter proceeded hand in hand with the reaffirmation of the role played by national constitutional traditions as grounding the fundamental rights in the Union.68 This implied affirming that, in fact, the incorporation of the Charter did not change much its effective legal bite, as it should continue being regarded as an authoritative interpretation of the ultimate source of fundamental rights in Union law, that is, the constitutional law common to the member states. Regarding the general design of the institutional structure of the European Union, the draft treaty was trumpeted as breaking new ground on account of the explicit affirmation of the legal personality of the Union (article I-6), the elimination of the three-pronged pillar structure erected in the Treaty of Maastricht (cf. articles I:6, I:33, ref.III:302, I-24), and the thorough reformation of the system of sources of Union law (coupled with a hierarchy of legal acts, in article I:32.8). However, the first two moves were more symbolic than substantive, and the latter was deeply ambivalent. First, it should be kept in mind that both the European Community and the Euratom had legal personality, so the new provision “only” added an explicit recognition of the legal personality of the Union sensu stricto, which had not been explicitly granted legal personality before. However, remem-


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ber that the Treaty of Amsterdam had amended article 24 of the Treaty of European Union, empowering the Council to conclude agreements with third countries and international organizations and that in general, it seemed European constitutional practice was evolving toward the development of a constitutional practice implying the acknowledgment of the legal personality of the Union.69 Second, the removal of the pillar structure confirmed a process that was under way with regard to the third pillar, while it was mere wordplay in respect of the second pillar (foreign and security policy), as the specificities concerning institutional setup, decision-making and review processes, and system of normative acts were fully preserved in the convention’s Constitutional Treaty draft (see especially articles I-39 through I-41). Third, the simplification and hierarchization of legal categories was a clear step in the constitutional direction. It went hand in hand with the change of their names (from directives and regulations to laws and framework laws). But while there was a very good democratic case for the clarification of the system of sources of law, there was no good democratic case for the relabelling of the sources of law in Union law in the absence of a further democratization of lawmaking procedures. The term laws has always had, and keeps on having, a clear connection with the democratic genesis of common action norms in the constitutional traditions of the member states of the European Union. Laws are those norms, and only those norms, that can be said to constitute an expression of the general will. Indeed, the concept of law, in the tradition of democratic constitutionalism, is not only normatively loaded (the law as the expression of the volonté generale),70 but such a normative characterization explains many of the technical features assigned to statutes, such as the presumption of constitutionality. So this last change was deeply ambivalent. Finally, on the specifics of decision making, the convention’s Constitutional Treaty was regarded as pushing the Union toward the generalization of qualified majority voting in the Council71 and the designation of codecision as the standard procedure (I:33, ref. 302, I-24, with important exceptions in part III72); it was said to have contributed to the democratization of European lawmaking through the establishment of a citizens’ legislative initiative (article I:46.4).73 But that was only a half-truth. On the one hand, the bulk of decisions with clearly redistributive implications remained subject to the traditional Community method requiring unanimous consent in the Council. Indeed, the more questions to be decided through co-decision, the more that the structural bias of the division of competences among Community procedures became obvious.74 On the other hand, the right of popular initiative was in fact a glorified version of the general political rights of citizens, as the Commission was expected only to consider whether the initiative merited putting forward a legislative proposal; there was no binding outcome from the initiative.


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Avoiding Socioeconomic Policy The constitutional nature of the Constitutional Treaty must also be assessed by reference to what was not said, what was avoided. And in that regard, it is difficult to avoid the conclusion that the whole design of the socioeconomic constitution of the Union was bracketed as much as possible. As we considered earlier, the working groups on economic governance75 and social Europe76 were totally inconclusive. At the end of the day, the “socioeconomic” balance was transferred to the drafting of article 3, on the objectives of the Union, and more specifically, on the relationship between the single market and the Sozialer Rechtsstaat. Indeed, in article I-3.3 it was said: “The Union shall work for the sustainable development of Europe based on balanced economic growth, a social market economy, highly competitive and aiming at full employment and social progress, and with a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance.” That looked like (and indeed was) a constitutional pastiche, and it failed to take proper account of the peculiar political genealogy of the phrase social market economy, which should have been far from reassuring to those left of the center of the political spectrum.77 The substantive provisions of the convention’s draft basically testify to the fact that the unavoidable political battle in any constitution-making process, the battle for the constitutional soul of the polity, had been largely avoided. As such, the draft underlined the continuity with the past. It envisioned a Union that would preserve its synthetic identity, and not a constitutional federation (with the member states transformed accordingly).78 Still, the fact that many of the provisions in the draft were couched in mainstream constitutional terminology (with the exception only of part III) implied that the battle over the polity’s soul could continue by other means, shifting in a way to the constitutional turf. The upshot of all this is that the Constitutional Treaty reflected the gradual transformation of the Laeken process from a moment of constitutional promise to, at most, an exercise in managed constitution making.

The Intergovernmental Conference 2003–2004 We have seen that the convention “raised the constitutional card,” but this initiative was reined in by the European Council. Still, there were clear symbolic and substantive legacies of the constitutional élan in the text agreed to by the conventionnels. The European Council of June 2003 considered the convention draft as “a good basis for starting in the Intergovernmental Conference,”79 and decided to convene an IGC. This had two contradictory consequences. On


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the one hand, it put an end to all speculation about the IGC being substantially sidelined, with national representatives simply limiting themselves to rubber-stamping the convention’s draft. On the other hand, there was some element of creeping constitutionalization still involved, because this would be the first time in European fundamental reform that the IGC would start from not only a complete draft text but also one that was public, as well as the outcome of discussions that had been staged in public (with one exception, as already indicated, part III of the Constitutional Treaty). This brought with it an element of publicity that would increase the degree of follow-up of the IGC by the media and also the extent to which national delegations combined “hard” bargaining within the Council with public justificatory strategies (something that was probably increasingly perceived as necessary in countries where national ratification was going to proceed through referenda with uncertain outcomes). The IGC was launched in Rome on 4 October under the Italian presidency (this was the first EU decision process that involved all the thentwenty-five member states, and it raised questions about the manageability of the IGC format with so many members present). The Italian presidency was concerned with ensuring safe passage of the convention’s draft and limiting the number of changes as much as possible (its own list consisted of seven changes,80 of which four were contentious matters pertaining to the question of including a reference to Christian values in the preamble, the definition and scope of qualified majority voting [QMV], and the minimum number of seats per state in the EP). It set a short deadline (end of the term of its presidency, that is, roughly half a year) and sought to locate the process at a high political (ministerial) level but did not otherwise have a clear negotiating strategy.81 During the process leading up to the IGC, the Italian presidency was unable to contain the number of change proposals. When the December summit started, the list included forty-three issues (including the composition of the Commission, the revision procedure, and the European Council and European Council president). At the summit, the draft became privy to diplomatic hardball.82 The single most contentious issue was the voting weights in the Council, where Germany and France were pitted against Spain and Poland. This was far from the only contentious issue, however. Subject to clumsy, unprofessional, and occasionally farcical steering by the Italian presidency,83 the Brussels European Council on December 13, 2003, ended up failing because the parties were unable to reach an agreement.84 The draft was thereafter passed on to the Irish presidency (during the first half of 2004), which started with a two-month-plus “cooling-down period.” Then they relaunched the process but with a very different approach (labelled “quiet diplomacy” by the Irish Times).85 They did not set any fixed deadlines and engaged in a series of secret bilateral meetings to iron out


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issues in a stepwise fashion. It was only in March that they signalled that an agreement might be within reach.86 And they waited to reconvene the IGC until they were quite confident that they would be able to conclude the negotiations. At the reconvened IGC summit in Brussels on 17–18 June 2004, the deal was done.87 The Constitutional Treaty was signed in Rome on October 29, 2004. The total number of changes the IGC made to the convention’s draft was far from unsubstantial.88 The most important changes may be summed up as weakening the supranational and strengthening the national dimension, both in substantive and symbolic89 terms and also in a democratic sense.90 Ratification Ratification would take place in line with the standard IGC format. That meant that the Constitutional Treaty would enter into force if, and only if, all the Union’s member states were to ratify it (ex article 48 of the Treaty of European Union, confirmed by article 448 of the Constitutional Treaty).91 The ratification provisions were based on unanimity and national idiosyncrasy (in terms of procedure and timing).92 By the time the French and Dutch referenda were held in the late spring of 2005, twelve countries had already ratified (Austria, Belgium, Bulgaria, Germany, Greece, Hungary, Italy, Lithuania, Romania, Slovakia, Slovenia, and Spain, all except the latter through a parliamentary vote without popular consultation). When the process ended, eighteen countries had ratified, two had rejected, six had suspended the scheduled referenda, and one the scheduled parliamentary ratification. In the case of Laeken, the ratification process was designed to be long (it was scheduled to last from October 2004 to October 2006). This long time frame coupled with the strong national imprint fragmented the debate and made it into twenty-seven loosely coupled events.93 The procedure could easily subvert the European dimension, because the European Union has a very weakly developed public sphere.94 The procedure also lent itself to strategic manipulation: national leaders could sequence ratification events, especially popular referenda, in such a manner as to maximize the likelihood of a yes.95 They could also alter the ratification procedure well into the process, or at a point in time when a positive result had been achieved. Consider France: it had no constitutional referendum requirement, but on 14 July 2004—Bastille Day—President Jacques Chirac decided to hold a popular referendum on 29 May 2005. In the Netherlands there was also no legal provision for a referendum, and the government did not initiate it.96 After considerable pressure (starting with a November 2002 initiative), a decision was made on 25 January 2005 to hold a referendum on 1 June 2005. From a democratic perspective, in both cases the decision to consult the people directly was taken after the Laeken process had produced a decision.


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The need to submit the decision to the public directly had certainly not been a factor in how the Dutch had struggled to structure the Laeken process.97 Here again we see the contrast between Laeken and a revolutionary constitutional moment. The heightened procedural legitimacy of a revolutionary constitutional moment is what assures popular authorship of the constitution. It is based on the notion that the people can understand itself as a constitutional author proper only if it can be assured that the process reflects its authorship from the very outset of the process. In the Laeken case neither was there an explicit popular mandate, nor were the terms under which the population would exercise its role as constitutional author spelled out. Instead, the procedure effectively left it up to the individual heads of state and government (who had appropriated the constitutional mandate) to determine, even late into the process, whether and how the citizens should be consulted. These observations suggest that the ratification procedures apparently fit better with the notion of international law as a legal order equal but separate from national legal orders98 than with the notion of a self-standing European constitutional order. Ratification rules have not been harmonized— neither in a horizontal nor in a vertical manner. But it should be noted that there was a certain element of harmonization (in a directly democratic direction) of the ratification procedure at Laeken, in that ten countries decided to hold popular referenda (the Czech Republic, Denmark, France, Ireland, Luxembourg, the Netherlands, Poland, Portugal, Spain, and the U.K.). But the fact that the EP had no formal power to ratify or reject (and no other European-wide ratification mechanism existed) meant that there was no procedure to ensure to European citizens that they—acting in their capacity as European citizens—could give themselves the norms, instead of having the norms heteronomously imposed upon themselves. The constitutional ambiguity we have discussed above was, if anything, amplified by this type of ratification procedure. The combination of the unanimity rule and the national idiosyncratic rule resulted in different national ratification procedures explicitly or implicitly characterizing the Constitutional Treaty in different legal-constitutional terms. The (then) twenty-five national decisions were therefore only apparently decisions on the same thing; substantively, they were a collection of different types of decision, not only due to the eventual rejection or endorsement of the text (negative/ positive), but mainly due to the fact that they would be rejections or endorsements of different things, pace the different legal qualifications of the text in each national constitutional context. The national ratification procedures in place reflected the three main conceptions of what the legal norms to be ratified would be: (a) a standard international treaty;99 (b) a hybrid between international treaty and constitutional norms, which can be labelled as a European integration treaty100 (and which can also be de-


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fined as an international treaty with wide constitutional implications); and (c) a constitution.101 The sheer persistence of these procedures testifies to the lack of constitutional clarification. Their very persistence also entails that the constitutional salience of Laeken as a European endeavor would be differentially sustained as the process advanced. But before moving on, it is important to stress that both positive and negative outcomes of the ratification process would be problematic. The persistence of the unanimity and the national idiosyncratic rules was linked to respect for national constitutional autonomy, which would presumably also permit different characterizations of the text to be ratified. Nevertheless, the pragmatic implication of these rules resulted in an implicit assignment of different democratic weights to each national decision (because the procedure concerned a European and not a national decision). More specifically, in this situation of considerable constitutional ambiguity, the closer the national ratification procedure came to characterizing the Constitutional Treaty as a European constitution, and the more explicitly this was stated by the political leaders, the more weight the decision should be attributed in terms of determining this as a European-constitutional matter. The French referendum qualified on both points.102 This was further compounded by the breadth and scope of the deliberation preceding the vote in France (which both preceded and contrasted with the subdued character of the Spanish debate).103 The internal conflict within the ranks of the French Socialist and Green parties focused the attention of the general public on the Constitutional Treaty from November 2004, almost eight months ahead of the referendum. There was a considerable wave of pamphlets, even books, on the issue, followed by sustained attention in the quality media. This created many opportunities for the constitutional debate to become contextualized by considering the actual and concrete implications it would have on the specific policy preferences of the electorate.104 Indeed, while it would be foolish to claim that national politics (and especially the unpopularity of Chirac and his prime minister Raffarin) did not play a role in the outcome,105 it must be stressed that the “decisive” fraction of the electorate, the left-wing voters who had supported the Maastricht Treaty but now voted clearly against the Constitutional Treaty, did not follow the official line of the biggest parties (Socialist and Greens) and clearly were not fully persuaded by the media (where the “yes” messages were clearly overrepresented).106 Given that in fact the movements that led the “no” campaign through local meetings and the Internet developed a rather complex discourse specifically on the treaty and the future of Europe, it is fair to say that the interpretation of the “no” vote in a pure national political key is at least an odd claim. Indeed, it seems that if the French “non” and the Dutch “nee” carried the day, it was because they were two processes where the constitutional implications of the Constitutional Treaty were addressed and


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reflected in the structure of the ratification process itself, and because the debate (especially in the French case) came close to what can be expected in a democratic polity: long, sustained, and contextualized, and where victory could also fall to the side with less institutional and media support. On such a basis, the choice of a given procedure to ratify the Constitutional Treaty (and figuring out whether citizens should be given a direct voice, through the holding of a referendum, through the election of a special body of representatives, or through general elections focused on the issue) could not be regarded as a discretionary national issue but determined the relative weight of each national decision as a positive or negative European constitutional verdict. This is because the national procedures differed in the degree to which they spoke to the European constitutionality of the Constitutional Treaty. Differentiated European imprint also related to how the constitutional issue was framed in the different national settings. The leaders in a number of member states denied that the process was about constitution making (consider notably the U.K., Denmark, and Sweden). They addressed the citizens as members of their national communities and justified the undertaking as beneficial to them in their capacity as nationals operating in a broader European setting. In this situation, marked as it was by an ambiguous constitutional signal and a very vaguely stated constitutional imprint, the people said no. The paradoxical outcome of Laeken was that the initial democratic constitutional promise was slowly but steadily rendered hollow but in the very last moment was reappropriated by French and Dutch citizens, only to reject resoundingly the concrete text. They took seriously the rhetoric of this as a constitutional moment, they engaged in a constitutional debate, and they exercised their constitutional power to say no.107 Whether their act is properly to be characterized as an instance of Fiat democratia, perit Europa is another question. What is interesting to notice, as we will stress in the conclusion, is that by saying no, French and Dutch electorates rendered Laeken a ratification failure; but because their noes put an end to the process, it could and should be regarded as a constitutional success, as it affirmed the procedural principle that the citizens, not the states, were the masters of the treaties. We have shown that Laeken does not qualify as a constitutional moment. Although the convention embarked on an extraordinary journey and succeeded beyond most expectations, Laeken was still very much steeped in the intergovernmental mold. The Laeken Declaration did not provide a clear constitutional signal, the formal body in charge was still the European Council and not the convention, despite the latter’s effort to exceed its formally designated role as a preparatory body. Thus, whereas the convention succeeded in coming up


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with a constitutional proposal, the European Council played a central steering role. This shows the resilience of the IGC method, which underlines Laeken’s high degree of continuity with the past. It also underlines that the process was still located within the ambit of constitutional synthesis, despite the fact that Laeken appeared as a major symbolic change in that it did raise the constitutional flag. We have seen that the Convention was reined in by the European Council, but it should be added that it succeeded in symbolically encoding its ambiguous form of constitution making onto the remainder of the process. There was therefore considerable continuity with the past, which in our view justifies our conclusion that the Laeken reform process oscillated between democratic constitution making and synthetic reform. The original constitutional impetus was progressively reined in and diluted, only to be spectacularly reaffirmed in the negative and with uncertain consequences. Did then the next round of reform mark a major break? Or was it also in the end tracked along the same prevailing lines of constitutional synthesis? That is something we tackle later in the chapter. But to make sense of the Lisbon Treaty it is necessary to look at the constitutional impasse that the Union found itself in between 2005 and 2007.

IN THE MIDDLE OF THE CONSTITUTIONAL NOWHERE: THE CONSTITUTIONAL IMPASSE (2005–2007) In response to the negative referenda in France and the Netherlands, the European Council at its 16–17 June 2005 summit stated that: “We have noted the outcome of the referendums [sic] in France and the Netherlands. We consider that these results do not call into question citizens’ attachment to the construction of Europe. Citizens have nevertheless expressed concerns and worries which need to be taken into account. Hence the need for us to reflect together on this situation.”108 This indeed was reflective of the state of shock, horror, and confusion in which European political leaders found themselves after two ratification failures in three days. The reconvening of the convention being tacitly out of the question, despite the hollow hopes of the peuple du non in France,109 the first reaction of the European leaders (with the president of the Commission as its head) was to denigrate the constitutional importance of the Constitutional Treaty and, invoking Declaration 30 annexed to the Constitutional Treaty, which subjected an imprecise political solution to ratification failures if four-fifths of the member states had ratified,110 insist that there was a point in con-


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tinuing with ratification. Indeed Luxembourg held a successful ratification referendum on 10 July (although the majority was smaller than expected), and Cyprus, Estonia, Finland, Latvia, and Malta all ratified after the referenda through the parliamentary route. At the same time, an appeal was made to open an undefined “period of reflection,” in which an undefined subject was to find an unspecified way out of the constitutional morass. The Commission engaged itself quickly (albeit not very effectively) here.111 The Union stayed put in this constitutional impasse for eighteen months.112 And still, two main characteristic features of Lisbon took shape at this point in time. First, the view that started to gain ground, espoused as it was from many quarters—decision makers and analysts alike—was that Laeken was the foremost misguided example wherein the European Union had embraced the radical mirage of democratic constitution making.113 Accordingly, the decision to open ratification to excessive and chaotic public participation (through the vehicle of referenda) had been reckless. The dominant reading was that Laeken had failed because democratic constitution making was impossible at the European level. Some of the elites George Ross interviewed “criticized Giscard d’Estaing and his Praesidium for ‘pretentious and provocative’ insistence on turning the Convention into an assembly with Philadelphia-like constitutional claims.”114 This revealed the implicit belief that the kind of reforms the Union needed could really be implemented only if constitutional politics were avoided and an orderly return were made to the intergovernmental pragmatism of old. Oddly enough, opinion makers had gone full circle, from blaming the failure of fundamental reform on the IGC and its diplomatic bargaining, to asking for a return to it to avoid overpoliticized constitution making. Second, there was a growing concern with the fact that the lack of institutional reform would lead to a new and virulent bout of Eurosclerosis, the (alleged) malaise that the Union suffered in the late seventies and early eighties, when the two oil crises hit the continent and agreement in the Council of Ministers proved elusive. The key problem now was, however, the lack of reform of the institutional setup and decision-making processes to render them effective in an enlarged European Union.115 That was the line developed by then candidate to the French presidency and incumbent interior minister Nicolas Sarkozy. In two influential speeches, Sarkozy blended the claim that reform was urgent to avoid paralysis with the call for a “mini-Treaty,” which would contain the set of provisions of the Constitutional Treaty that were imperative in order to render the Union functional.116 Albeit there were some discordant voices in fact pleading for the wholesale abandonment of fundamental reform,117 the reflection period is best understood as an incubation period aimed at finding a nonconstitutional, nondemocratic way out of the mounting tensions.


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LISBON: BETWEEN THE REFORM OF THE SYNTHETIC PATH AND THE GOVERNANCE TURN This third part of the chapter seeks to clarify the status of the Lisbon Treaty and how it relates to the EU’s constitutional past. Did Lisbon depart from, or did it continue down, the Union’s constitutional synthetic path? In the following we will clarify the mandate, the process, and the major changes to clarify how Lisbon related to the past, and especially to Laeken, since many have underlined their similarities.118 From Reflection to Mini-Treaty A year into the “reflection period” (June 2006), the European Council asked the incoming German presidency to provide an assessment of the state of the discussion and “to explore possible future developments.”119 When the time came for the Germans to take the helm of the European Council, Europe’s political leaders apparently had become persuaded of the need to put an end to the reflection period and produce a “new” text. Days into the presidency, Chancellor Angela Merkel declared that “The phase of reflection is over. Our task now is to prepare new decisions by June. I intend to strive to ensure that at the end of the German Presidency a road map setting the way forward for the constitutional treaty can be adopted.”120 Under German stewardship, the main lines of the “new” constitutional decision emerged. In substantive terms, the Sarkozy strategy became widely accepted. This boiled down to taking most of the old wine of the Constitutional Treaty and putting it into a new bottle, a bottle that was explicitly nonconstitutional. That entailed, as we will consider when analyzing the contents of the Lisbon Treaty, cleansing it of all the symbols and provisions of an explicit constitutional character while preserving many provisions of clear constitutional import as long as their symbolism was not evident.121 In procedural terms, member states solidified a tacit agreement to avoid the politicization of the ratification process, ruling out referenda and lowering the political profile of ratification debates. This implies that the European leaders had started considering themselves not only as citizens’ representatives but also as authoritative interpreters and conveyors of citizens’ concerns to the European arena. Since the states were the masters of the treaties, they were free to decide on the most suitable procedure to ensure that reform would be forthcoming. The German presidency circulated a first proposal for the new treaty by the end of May.122 Sensing that an agreement was possible, the presidency published the report it had been mandated to write the year before on 14 June and recommended the rapid convening of an IGC, which should adopt a Reform Treaty. The text of the presidency reveals the extent to which the very notion


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that the EU could be a constitutional project had become a matter for political bargaining and horse trading. Constitutional skeptics used the referenda rejections to argue for the need to remove any sign to the effect that the Union had a constitutional vocation (“a new amending Treaty without constitutional characteristics”123), whereas the supporters insisted on retaining as much of the substance of the Constitutional Treaty as possible. The compromise (as the Commission labelled it124) was to revert back to the IGC procedure (article 48 TEU), as well as to ensure speedy passage of the reformed treaty. Soon thereafter, on 19 June 2007, the presidency produced a Draft IGC Mandate.125 After negotiations in the pure Italian style of componenda or inciucio,126 the European Council approved a formal mandate to the IGC within days.127 The IGC was officially opened on 23–24 July. The Lisbon Treaty process deviated in several respects from the standard IGC model. First, the European Council that inaugurated the IGC continued the practice first initiated at Laeken, namely to steer the IGC through providing it with a detailed draft of provisions. In the Laeken case, the draft was the product of the convention’s labors; in the Lisbon case, basis was constituted by the decision taken by the European Council. The difference is apparent in the IGC mandate, which stated that “The Reform Treaty will introduce into the existing Treaties, which remain in force, the innovations resulting from the 2004 IGC, as set out below in a detailed fashion.”128 What this signals is that the IGC would pick and choose those aspects of the Constitutional Treaty that it wanted to include. In fact, when the mandate was presented to the European Council in June, much of this picking and choosing had already taken place and was spelled out in the detailed mandate elaborated by the German presidency. This mandate, or better, specific template for the concrete amendments to be undertaken by the IGC was the product of a series of bilateral meetings among state officials (between January and June 2007), who had spelled out their desired changes to the 2004 Constitutional Treaty, many of which were included. How many of these proposals ended up being included remains unclear as the process of negotiations was conducted in utter secrecy. This also means that it is not clear whether it was only states that had failed to ratify (rejected or not yet ratified) whose proposals were accepted or whether all had had their proposals accepted. Commenting on the process of drafting the mandate, the U.K. House of Commons European Scrutiny Committee concluded that it was “an essentially secret drafting process conducted by the Presidency, with texts produced at the last moment before pressing for agreement. The compressed timetable now proposed, having regard to the sitting terms of national parliaments, could not have been better designed to marginalize their role.”129 Second, it was explicitly stated in the mandate that the IGC process should be swift and efficient. The procedure with sounding out in advance and the very detailed mandate were specifically designed to ensure speedy passage of the draft. This also meant that the Intergovernmental Conference was from


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the outset considered as a mere rubber-stamping device. The mandate, which would “provide the exclusive basis and framework for the work of the IGC,” left the IGC with the task of dealing with the changes that the presidency had negotiated secretly and bilaterally with the various parties. The role of the European Council (in the IGC) as the collegial body to fashion treaty changes had thus been for the most part relegated to that of a mere symbolic sanctioning body. The focus on expedient passage informed a third unique feature of Lisbon, namely that the process was explicitly structured so as to avoid popular referenda. There was, of course, no formal basis for doing so, but it was a clear political objective. This can only be understood as an attempt to harmonize the member states’ ratification stances, thus reining in the national idiosyncrasy rule that lies at the heart of the IGC procedure. In these regards, it could be argued that the Lisbon Treaty came about through a distinct, even innovative, version of the IGC. It was not only very different from the Laeken process, it was a far more secretive and top-down politically controlled process than the EU had used at least since the SEA (Single European Act). At any rate, the IGC formally ran until 19 October, when the Lisbon Treaty was finally accepted by all governments.130 The new Treaty was signed on 13 December, and the intention was to have it ratified “as quickly as possible, and in any case before the end of 2007, so as to allow for sufficient time to ratify the resulting Treaty before the European Parliament elections in June 2009.”131 That would turn out to be a tall order indeed. The Lisbon Treaty There were thus important procedural differences between Laeken and Lisbon but also between Lisbon and earlier treaty reform processes (Maastricht, Amsterdam, Nice). Such differences are confirmed by the substantive content of the treaty. In that regard, we highlight in the following: (a) the explicit negation of the constitutional character of the treaty; (b) the concrete denials of constitutional status, in particular by limiting the legal bite of fundamental rights and by not codifying the principle of primacy of Community law; (c) the componenda or unprincipled side deals concerning the opt-outs from the Charter of Fundamental Rights and from justice and home affairs provisions, and finally the postponement ad calendas polonias of the double majority within the Council of Ministers. A Constitution in the Negative . . . The Lisbon mandate explicitly stated that it would “not have a constitutional character.”132 Accordingly, all the TEC’s references to “constitution” and other “statelike” symbols, such as the characterization of Community legal acts as laws and framework laws, flag, and national anthem, were


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removed from the Lisbon Treaty.133 By removing the term constitution and state-type language and symbols, the European Council sought to reassure the more Euro-skeptic electorates that the EU was not a state; neither did it have the vocation to become one. Further, by removing all direct symbolic associations to constitution, the Council sought to declare that the Lisbon Treaty was not of constitutional salience and hence did not require to be put to the people in popular referenda. . . . Two Denials . . . The negative constitutional character of the Union was then further emphasized by two specific decisions: (a) to remove any direct reference to the primacy of Community law and (b) to lower the symbolic status of the Charter by incorporating it through mere reference. First, the Lisbon Treaty removed article 6 of the TCE on primacy and replaced it with Declaration 17.134 Replacing article I-6 with a declaration in which the IGC takes notice of what the legal advisers of the Council think leaves a major degree of uncertainty on what is the actual standing of the principle of primacy. What kind of legal value does the acknowledgment of the opinion of a set of legal advisers have? How is it to be interpreted by the European Court of Justice, national constitutional, supreme, or even ordinary courts? That is an open question that is likely to increase legal uncertainty and complexity. Strangely enough, Declaration 17 exclusively refers to the jurisprudence of the European Court of Justice, while it is obvious that also national constitutional courts have offered authoritative interpretations of this same principle, and very notably the German, the Italian, the French, and the Polish Constitutional Courts, fleshing out in one way or the other limits to the said primacy.135 It is revealing of the extent to which Lisbon was crafted on the hoof that a move intended to rule out a purely supranational interpretation of primacy (and consequently of the competences of the Union) was translated into a legal formula whose unintended consequence seems to be the opposite. Second, the Lisbon Treaty incorporated into the primary law of the Union the Charter of Fundamental Rights but with some caveats and provisos. For one, the charter was somehow hidden from the plain view. Instead of reproducing the text of the charter in full, the Lisbon Treaty incorporated the charter by reference to it in the consolidated article 6 of the Treaty of European Union.136 And Three Componenda Perhaps the more problematic contents are the following three componenda, or deals that lack even the semblance of a principled justification.


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These are the (a and b) opt-outs from the charter and the provisions dealing with justice and home affairs and (c) the postponement of the double majority ad calendas polonias (probably, 2017). First, protocol 30 to the Lisbon Treaty purports to establish the nonapplicability of the Charter of Fundamental Rights to the United Kingdom and Poland, “a veritable dog’s dinner, and not only due to its abominable drafting.”137 It rules out any form of constitutional review of British and Polish legislation or administrative practices making use of the right reaffirmed in the charter138 as a constitutional yardstick (stating that twice on what concerns socioeconomic or rights to solidarity).139 This is echoed in unilateral Declaration 61 made by Poland (yet contradicted in Declaration 62, the result of the change of government caused by a parliamentary election literally weeks before the signature of the treaty). This protocol has no equivalent in the Constitutional Treaty.140 It may be argued that this protocol has mere rhetorical value. When the European Court of Justice (ECJ) and national courts directly or indirectly review the European constitutionality of national norms by reference to Community fundamental rights standards, they do not do it on the basis of the charter but rather on the basis of the principle of protection of fundamental rights.141 Still, the text is ambivalent enough to be capable of being constructed in such a manner as to undermine the unity of Community law. This is so for two related reasons. As we have stated, protocol 30 refers not only to charter rights or to the rights or faculties added by the charter itself but also to all rights as reaffirmed in the charter. The text of the protocol can be seen to put into question the applicability of the principle of protection of fundamental rights as articulated in the jurisprudence of the Court of Justice within British and Polish territory. It is hard to imagine the conditions under which the ECJ would come to accept that line of interpretation. But keep in mind that the constitutional life of any fundamental law provision is not only jurisdictional. Indeed, it is not impossible to imagine national judgments justifying breaches of fundamental rights as defined in Community law by reference to the protocol.142 Further, the concessions have been articulated in clauses with a territorial, not a personal, scope of application, so not only will Britons and Poles suffer whatever restrictive effect the concessions will have on individual rights, but so will all Europeans who happen to be, permanently or transitorily, in the territory of the United Kingdom or Poland. These concessions imply that the status of a European citizen might vary across the Union. In that sense the protocol not only questions the goals it proclaimed the treaty to serve (in terms of simplification of Community law), but it could end up seriously undermining the coherence of Community law. Second, some important changes occurred in the area of justice and home affairs. For one, the United Kingdom and Ireland have obtained a general opt-out clause from the justice and home affairs provisions of the


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Lisbon Treaty, the specific breadth of which is further complicated by the different protocols added to the text and which is definitely amplified by recharacterizing issues such as passports and identification cards not as citizenship issues, but as pertaining to justice and home affairs, and thus susceptible to the opt-out.143 This goes along the same lines of fragmenting the unity of Community law, as was mentioned in the second point above. Further, there is a new and rather vague article 66a that states that “it shall be open to Member States to organize between themselves and under their responsibility such forms of cooperation and coordination as they deem appropriate between the competent departments responsible for safeguarding national security.” This is a rather odd text to include in an international treaty aspiring to set the operational framework of a major organization. This is especially true if one takes into account that historical experience reveals the extent to which fostering the mingling of national security services in the absence of a clear legal framework does not necessarily result in magnificent outcomes in neither procedural-democratic nor substantive terms.144 Further still, the procedure through which national parliaments are expected to intervene in the Community lawmaking process has been altered, de facto increasing the degree to which a collective of national parliaments can make legislation harder to pass.145 Third, the Lisbon Treaty substantially amends the voting rules in the Council of Ministers, the key institution in the Community lawmaking process. Article I-25 of the Constitutional Treaty would have resulted in a system where qualified majority applied when a vote was supported by 55 percent of the members of the Council as long as they represented at least 65 percent of the population of the Union (the so-called double majority system).146 Article 9c of the Treaty of Lisbon would result in the adoption of the same rules, but only in the long run. In the short run, and according to the protocol on transitory provisions, the old rules of the Nice Treaty (the triple majority of member states, 62 percent of the population, and a number of weighted votes) would apply until 2014 and eventually until 2017. Even if temporary in nature, these provisions matter, not least because streamlining the Union’s procedures was considered an urgent priority of the reform process (making majorities easier to establish, given the risk that the EU of twenty-seven members would collapse if it continued to operate according to the decision-making rules of the “Little Europe” of 1957). Ratification The tacit agreement not to call referenda and to lower the political profile of parliamentary debates was justified by reference to two main arguments. The first argument was that Lisbon was Laeken by other means and, as such, carried with it the democratic legitimacy of a treaty that had been ratified by


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most Europeans, either directly or through their representatives (an argument avoided in whole in France and the Netherlands, where any talk of a transfer of political legitimacy was at least problematic). The second argument was the insistence on the need of avoiding politicization to ensure the proper management of “institutional” reform. Despite the strong effort to control the process, the ratification process was long and arduous (from 17 December 2007 to November 2009) with many twists and turns and near shipwrecks. First it was Ireland, where there was no way of avoiding a referendum.147 Against all odds, and despite all the efforts of the main political leaders (including a fresh prime minister designated on purpose weeks before the referendum to avoid the so-called Chirac effect (referring to the alleged claim that the “no” in France was really a vote of protest against Chirac),148 a clear majority of Irish voters (53.4 percent against and 46.6 percent in favor) rejected the treaty on 12 June 2008.149 After a new set of componenda to placate the Irish voters,150 a second referendum was held on 2 October 2009, when 67.1 percent voted in favor and 32.9 percent voted against. No doubt the financial crisis had a major impact on the second Irish vote.151 Between one Irish referendum and the second, the Czech152 and the German153 Constitutional Courts had cleared ratification, affirming the compatibility of the Lisbon Treaty with their respective national constitutions. And still, the Czech president persisted in his refusal to sign the treaty even after the second Irish referendum. Klaus was seconded by the Polish president with vague arguments, in a move apparently aimed at gaining time until elections in the United Kingdom would result in a Euro-skeptic Tory government’s repudiating the Lisbon Treaty. After a second positive judgment of the Czech Constitutional Court,154 political pressure mounted on Klaus, who pointed now to the risks that the legally binding character of the charter posed in the form of Germans reclaiming property in the Czech Republic nationalized in the Beneš decrees.155 This final hurdle was overcome through the final componenda: a problematic agreement forged by the Swedish (rotating) presidency, granting Klaus the promise of a charter opt-out identical to that of the British and the Polish when and if a new accession treaty would have to be ratified by all member states.156 Assessment Thus far we have made clear that whereas Lisbon incorporated much of the substance of the 2004 TCE, the argument for straight continuity between the TCE and the Lisbon Treaty overstates the case. A democratic constitution is not only characterized by its substantive contents, by the extent to which it creates an institutional setup and decision-making pro-


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cesses through which power is exercised, it is also characterized by the way in which those subject to the fundamental law come to authorize it, thus creating public power in the first instance. The constitution is the fundamental law not only because of what it says, but also because of how it has been deliberated and decided upon. That is true not only of revolutionary constitutions in the continental European tradition initiated after World War II but also of evolutionary constitutions in the British mold. In other words, constitutional politics is about processes, the processes that, if followed, ensure the democratic legitimacy of constitutional decisions. The question is whether the Lisbon process is qualitatively different, in the sense of elevating governance to the leitmotif, with institutional and procedural designs understood as problems to be solved through their proper management. The need to address the Union’s many challenges required institutions and working methods that would produce “streamlined decision-making equal to the fast-moving challenges of today.”157 Stakeholder democracy would permit the traditional IGC model to be disentangled from the democratizing add-ons that had emerged through the Union’s constitutional history. In other words, the solution was to formally revert to the IGC’s being understood as a classical secretive—diplomatic— intergovernmental conference mode of treaty amendment and, in doing so, change the constitutional path from that of constitutional synthesis to one of octroyé constitutionalism, in which the elites make the constitutional decisions in the name of the people but without the people.158 Further, the move toward governance was justified in that the misguided attempt at engaging in democratic constitution making at the European level had precipitated the crisis the Union was in. It was thought that the crisis could be overcome if the heads of national governments would engage in pragmatic negotiations and would make use of all their political leverage to get the text ratified by national parliaments without opening the constitutional Pandora’s box of national referenda. From a democratic perspective, such referenda would prove unnecessary because the reforms to be undertaken were managerial, not political. This view was associated with a particular view of the crisis facing the Union, that it was foremost of an economic kind, that the core European national economies had failed to grow and modernize.159 The Union’s legitimacy credit needed to be replenished through efficiency, not democracy. Part of the problem facing the EU was a significant communications failure; people lacked proper information on the many good things that the EU did for them. The Lisbon Treaty has now come into effect. This does not necessarily mean that the treaty will add to (it may actually subtract from) the legitimacy basis of the European Union. Consider the remarkable constitutional double-talk. There was a clear “tendency of each Member State to sell the


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TL [Treaty of Lisbon] to its own domestic audience: countries which had previously ratified the CT [Constitutional Treaty] promised their constituents that the TL was identical in every meaningful respect; those which had rejected the CT or wished to avoid putting it to a popular vote vowed that the TL was fundamentally different from its predecessor.”160 We see from this that Lisbon appeared as a wholesale reversal of Laeken in symbolic terms. This impression was reinforced by the secretive procedure, a clear move backward to early-day IGCs. Both these elements suggest that Lisbon represented a major reversal of constitutional synthesis. Such a conclusion is, however, premature as the Lisbon Treaty contains most of the substance of the Laeken Constitutional Treaty. This suggests that constitutional synthesis has been symbolically undercut but not substantially undermined. But it should also be clear that today’s setting is very confusing. European constitutional norms are likely to be increasingly experienced as foreign, as radically heteronomous, and as lacking, as such, the democratic dignity that in a Rechtsstaat is a precondition for citizens’ voluntary compliance with them.

CONCLUSION In conclusion, we have seen that Laeken and Lisbon were underpinned by different conceptions of the European Union and of democratic legitimacy. They were intended as almost diametrically opposite attempts at breaking out of the Union’s stymied synthetic constitutional path, with Laeken a shot at embarking on a full-blown constitutional process through an explicit constitutional moment, the failure of which ended up boomeranging into Lisbon as an executive-led octroyé constitutionalism, justified by the rhetoric of “constitutional crisis.” And still, such a view must be nuanced so as to make clear what this apparent U-turn really amounts to in constitutional terms. We have shown that, when considered more closely, neither qualifies as a break with Europe’s synthetic past. Thus, it is clear that the theory of constitutional synthesis is capable of making sense of each of these instances as well as the deeper significance of this apparent U-turn. The very notion of there being a U-turn stems from the lack of a proper constitutional theory to bring out the continuities between Laeken and Lisbon, or to be more precise, how much of Lisbon avant la lettre was already there in the Laeken process. The fact that the constitutional identity of the Union has never been clarified, and indeed has remained deeply ambivalent since its founding, goes a long way to account for what otherwise seems a radical shift. Similarly, constitutional synthesis accounts for the paradoxical fact that two strikingly different reform procedures ended up resulting in markedly similar substantive reforms being implemented (that is, it can account


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for the substantive continuity between the Constitutional Treaty and the Lisbon Treaty).161 Constitutional synthesis throws light on the just-mentioned paradoxical succession of the “constitutional” path of Laeken by the “executive and managerial” path of Lisbon, compounded by the similarities between the Constitutional Treaty and the Treaty of Lisbon. Constitutional synthesis reveals not only the break between the two processes but also the hidden continuities between them. The radical democratic impulse that in particular propelled much of the convention to democratize the IGC process was compromised from the very beginning of the Laeken process by the ambivalence in the role and mandate assigned to the convention. The rub is that such ambivalence (and the consequent lack of clarity as to the constitutional nature of the enterprise) was seen to be necessary to overcome the unanimity hurdle in the European Council. That laid the foundation for a reform dynamic that ran largely against the radical democratic impulse, fed by several contingent political factors, including external ones such as the aggressive and abrasive foreign policy of the George W. Bush administration and the subsequent loss of popularity and confidence on the side of the national governments that supported the invasion of Iraq. To make things even more complicated, the defining moment in Laeken, the rejection of the Constitutional Treaty by French and Dutch voters, was also ambivalent. It put an immediate end to the process, even if national governments kept up a contrary pretense for many months, and in doing so, it affirmed in the negative, the democratic character of the procedure of treaty reform, by establishing a constitutional convention contrary to the formal treaty rule, which can still be plausibly interpreted as conferring on national governments the condition of masters of the treaties. But precisely because the constitutional nature of the Union was affirmed in the negative, and in the negative only, and because the Union lacks the institutional and structural means for positivizing such democratic power into an alternative constitutional configuration (especially given the thin, episodic, and ephemeral connection among and to national public spheres), the ratification failure was wrongly perceived as a constitutional failure. Finally, Lisbon was a managerial attempt at obtaining the entry into force of most of the provisions of the Constitutional Treaty by means of designing the ratification procedure in such a way that ratification success would be guaranteed from the start. That placed agreement in the European Council at such a premium that the very urgency that would justify streamlining the ratification process and reverting to a constitutionalism octroyé was flatly and plainly contradicted by some of the newly inserted provisions. But perhaps even more to the point, it forced a recharacterization of the text of the Constitutional Treaty that would dramatically increase the constitutional heterogeneity at the base of European constitutional law. From


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a procedural perspective, the price of ratification success would be the widespread characterization of the Treaty of Lisbon as a set of heteronomous rules, thus absent the democratic radiating force of national constitutional norms. There is even a serious risk of that perception spreading to Community law as a whole (a perception clearly aided by the recent set of radical neoliberal judgments of the ECJ). That would indeed render the reform pointless, as the underlying political problems of European integration, far from being solved, would be aggravated. Similarly, constitutional synthesis makes it easy to explain why the Lisbon process initially backfired and why its entry into force is unlikely to increase the European Union’s legitimacy. First, it is quite obvious that the widespread endorsement of the constitutional road (or, at least, of the constitutional symbolism) of Laeken was directly related to the utter failure of previous intergovernmental reforms to deliver substantive results. The negotiation processes that led to the Amsterdam and Nice treaties were not only time consuming but also failed to deliver on the promise to provide an efficient and normatively sound transformation of the Union. The whole structure of the Lisbon process was premised on the peculiar assumption that by adding a pinch of common will and good intentions on the side of European leaders (by then almost twice the number of those present at the previous round of standard IGC reform during Nice), it would be possible to do what was not possible in previous IGCS and Laeken. But the fact that Laeken ended up in ratification failure did not entail that the efficiency reasons for preferring a constitutional reform process were not there (indeed, there were even more reasons to doubt the efficiency of the standard diplomatic intergovernmental method when not fifteen but twenty-seven actors held individual veto power). Second, it was only vaguely understood that Laeken was a ratification failure, whereas it escaped public attention that it was also a constitutional success in the negative. At the outset of the process, Eurobarometer polls showed a generally positive attitude among citizens in almost all member states to the idea of a European constitution.162 The very fact that a “no” on the side of French and Dutch voters killed the Laeken process, even if their democratic representatives in Parliament were strongly in favor of ratification, brought home the full appropriation of citizens’ negative constitutional power. The broad French debate responded to and addressed in considerable depth the issue of a European constitution. Many French and Dutch voters voted against this treaty but not against the idea of a European constitution. The important point here is that within a context where an issue is explicitly cast as a European concern, the instantiation of a referendum, even if it is held nationally, represents a plea to citizens to act in their capacity as European citizens, not merely as nationals. Thus, every instance in which citizens are directly consulted in their capacity as Europeans is also at the same time an appeal to them to appropriate the voice of those Europeans that are not heard directly. This


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is clearly amplified when the issue at stake is a European constitution; then the citizens of each member state are being addressed in their capacity as constituents under a European constitutional arrangement. When they rejected the Laeken constitutional proposal but not the notion of a European constitution as such, then they acted in their capacity as holders of negative constitutional power. Quite obviously, the negative character of the constitutional character of Laeken, coupled with the fact that the “no” supposed a rejection of the institutional structures that would help transform the negative force of the vote into a constitutional constructive force, did not entail a democratic constitutional transformation of the European Union. But the negative constitutional force of the vote was bound to lead to a long-term shift in the default attitude of citizens toward reform proposals, notably procedures that would deny them access to such negative constitutional power. A clear signal of that change came to the fore with the negative outcome of the Irish referendum and, in general, with the cold reception of the Lisbon Treaty by national electorates. This casts a long shadow over the long-term effects of the formal ratification of the treaty. Because of the lack of democratic authorship, it is unlikely to compensate for the shrinking democratic legitimacy provided through national constitutions. Indeed, it is more likely that the new constitutional norms would be regarded as heteronomous, in the same way as a growing number of rulings of the European Court of Justice are being experienced by social actors, reinforced in their views by a growing number of scholars and intellectuals. There are thus three main lessons to be drawn from Laeken and Lisbon. The first lesson is that Laeken and Lisbon have indeed transformed the European Union. But instead of focusing exclusively (and narrowly) on the substantive contents of the Treaty of Lisbon and the changes they bring about in the constitutional law of the Union, it seems to us imperative to consider first and perhaps foremost the structure of the reform processes, and very especially, their democratic legitimating potential. We will accordingly argue that Laeken did change the Union even if it ended in a ratification failure; indeed, it changed Europe because the ratification failure at the hands of citizens pointed toward a democratic constitutionalization of the Union. And we will claim that the literal reproduction of most of the substantive content of Laeken’s Constitutional Treaty in the Lisbon Treaty does not immediately entail the conclusion that Lisbon is Laeken by other means.163 Because the dignity of constitutional law depends on the process through which it is approved, the explicit denial of constitutional ambitions that characterized Lisbon cannot be without effects on the actual legal force of the provisions enshrined in the treaty. A second lesson is that the élan of both Laeken and Lisbon was mixed and untidy. Both processes were uneasy compromises among the three alternative paths toward a stable European political order that we distinguished at the end of the previous chapter and have briefly mentioned here.


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At first glance, Laeken may look like a constitutional moment and Lisbon a counterconstitutional moment, due to the appropriation of constituent power by the European Council (not only doing away with the kind of constitutional assembly that the Laeken Convention was, but also reducing the intergovernmental conference as such to an editor of legal language). But there was something of Lisbon already in Laeken, given the long shadow that the IGC cast over the convention, and elements of the spirit of Laeken persisted in Lisbon, mainly through the “copying” of many of the provisions enshrined in the Constitutional Treaty. Moreover, the uneasy compromise between different paths of fundamental reform can be explained only by reference to European constitutional history, which set the realm of the options being considered. This is why the governance color of the “managed constitutional reform” that can be discerned in Lisbon is not a sudden development but the virulent manifestation of an ongoing trend in European constitutional law. At the end of the day it seems to us that, all things considered, Laeken is better reconstructed as a process initially aimed at transcending synthesis through democratic constitution making, albeit with strong and growing traits of a glorified reform of synthesis, while Lisbon was mainly intended as the stabilization of synthesis through its reform, albeit also colored by a certain governance imprint. A third lesson to learn is that the construction of the Lisbon Treaty must be firmly anchored to European constitutional practice. As we have insisted, Lisbon is only one chapter in the long book of European constitutional history. The fact that it was not the first chapter implies that whatever the intentions of the drafters, the provisions enshrined in the treaty should be interpreted systematically, and thus there are limits to whatever creativity its drafters thought they were infusing into European integration. Clear proof of this can be found in the Lisbon judgment of the German Constitutional Court. The judges at Karlsruhe gave the green light to the new treaty while providing clear guidance on how the treaty should be interpreted for it to be constitutional. Whatever one’s assessment of the judgment, it seems to us that the clear structural implication of the ruling is to “limit” the treaty by reference to the ongoing European constitutional practice, in which the Federal Constitutional Court had been a key player. The fact that Lisbon is unlikely to be the last chapter of European constitutional history implies not only that its drafters were far from having the last word, but also that what matters is not simply the substantive norms of the treaty but how those norms came to be forged. This is where the dominance of Europe’s governmental elites may prove to be detrimental to the stability of European integration. Indeed, this episode marks a clear contrast between the European breed of constitutional synthesis and the Canadian one, as we will consider in chapter 6.


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5 Untangling the Knots by Means of the Theory of Constitutional Synthesis

In chapters 3 and 4, we provided a brief reconstruction of the evolution of European constitutional law and in general of European integration from the vantage point of the theory of constitutional synthesis. These two chapters have shown that constitutional synthesis is the theory that offers the best rendition of what the six decades of European integration have wrought, namely a European Union with a peculiarly pluralistic constitutional identity. In this chapter we assess the theory in relation to some of the “Gordian knots” of European constitutional practice. As we already indicated in the introduction to the book, conflicts between European and national laws seem rather intractable because European constitutional practice has come to accept the basic structural principles of Community law (primacy and direct effect) without providing a clear foundation for this practice. Can constitutional synthesis do better? We think so. And we argue why by considering the controversial character of European constitutional conflicts, which we boil down to two constitutional riddles: why did European law become a constitutional legal order, and why does European law prevail over national constitutional orders while still also being derived from them? We also offer a synthetic solution to the two riddles.

EUROPEAN CONSTITUTIONAL CONFLICTS AND THE UNDERLYING CONSTITUTIONAL RIDDLES European Constitutional Conflicts In the introduction and in chapter 3 we stated that a key part of the constitutional transformation of the European Union consisted in the wide 163


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acceptance of two structural principles governing the relationships between Community law and national law: the direct effect of Community norms and the primacy of Community norms when in conflict with national norms. We stressed that while legal argumentation is eminently reconstructive and assumes that such principles always have the same breadth and scope, a close reconstruction of the case law of the Court reveals that the present formulation of these two principles is the result of a cumulative jurisprudence. However, it is correct to say that the core of the systemic implications of both principles was already contained in the ultimate leading cases in Community law, the arch-famous Van Gend and Costa. By affirming that the direct effect of treaty provisions entailed that Union law governed the actual effects of Community norms not only within the supranational legal order but also in all legal orders, the Court in Van Gend was endorsing a “monistic” view of the European legal order and was indeed affirming the full-blown constitutional nature of Community law. By granting primacy to Community norms over posterior national legislation, the Court in Costa affirmed that equality before the law was the core principle of the European constitution. Indeed, only if the law in which national systems were integrating were supreme would it be possible to ensure equality before the law. European constitutional practice came to endorse these principles over time, as indeed has been shown in detailed studies, especially on those focusing on national courts. Still, wide acceptance has not gone hand in hand with a clear elucidation of the grounds on which these two principles rest. This is what explains that while primacy and direct effect are widely accepted, the specific breadth and scope of these principles is highly controversial, especially on matters concerning conflicts between Community law and national constitutional norms. While national constitutional courts started by defending the overall primacy of national constitutional norms over contrary Community norms, they have progressively retreated into a more nuanced stance, limiting the range of prevailing norms to those at the “core” of the national constitution. The last chapter in this saga where formal limits go hand in hand with an ever-growing acceptance of the primacy of Community law is the Lisbon judgment of the German Constitutional Court. And still, the real crux of the matter is that there are no clear grounds on where and why to draw the line. This is the background against which European constitutional conflicts revolving around different interpretations of how conflicts between European and national constitutional laws are to be solved have emerged and against which these conflicts are likely to grow in importance and frequency in the future. Recall the Viking case,1 to which we referred in the introduction. Finnish law seemed to affirm that the right to collective action of Finnish workers should include the right to trigger a pan-European strike to prevent a Finn-


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ish ferry company from relocating to Estonia, where labor costs were lower (and workers’ rights were weaker). The right of the employer to decide where to set up shop was to be trumped and set aside because otherwise, there was not much left of the constitutional commitment to protect workers’ rights, which indeed is premised on the state’s countering the growing economic power of capital owners in a globalizing world and on workers being capable of organizing at the same level as capital makes use of its structural power. In brief, Finnish law was for workers’ right to strike. And so, one suspects, were most, if not all, national constitutions of the member states.2 And still the European Court of Justice solved the conflict in favor of the freedom of establishment of the ferry owners. The ruling may be in the books, but it is far from obvious whether member states will comply with it. The Two Riddles Why is it so that these problems seem intractable? Why are we condemned to endorse primacy and direct effect but at the same time have serious doubts concerning where they should stop? In our view, the two riddles that render constitutional conflicts so ineffable are what we have labelled the genesis and the primacy riddles. They are indeed two riddles that standard theories of European constitutional history have failed to grapple with properly. The genesis riddle refers to the history of the Union before it became the Union: why should formal international treaties whose ratification was authorized by national constitutions now be constructed as if they had given birth to a constitutional order? (Why should we indeed consider that there is a conflict at all in Viking, what moves us to consider that Community law can dare to contradict national constitutional law, being its own creation?) Furthermore, how can it be that Community law, logically and normatively derivative from national constitutional law, cannot only contradict but also have a pretense to prevail over national constitutional law? The Genesis Riddle The genesis riddle concerns the tension between the international form of the founding treaties of the Communities and the constitutional nature of Community law that underpins European constitutional practice; to be more precise, the genesis riddle consists of the lack of a normatively sound explanation of how the proverbial “international frog” was transformed into the “constitutional princess.” To put it in more detail, it is far from obvious how and why the European legal order could become a constitutional political and legal order, an


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order that would be embedded in a set of (mainly, but far from exclusively, treaty-based) norms that social practice treats as materially constitutional, and regulations and directives understood materially, if not formally, as statutes (recall from chapter 3 that this is indeed the outcome of the transformative constitutional reconstruction of Community law, a characterization of Community law that had become entrenched by the late sixties and early seventies). How can this be so, given that the founding documents of the Communities were international treaties? Viewed in this light, the “constitutional” transformation of the European Union and of its legal order becomes extremely problematic.3 It is generally accepted that European integration cannot be understood as an instance of revolutionary constitution making (we have also shown that not even during Laeken was there a “European constitutional moment” in a revolutionary sense). In fact, some analysts and decision makers, and outstandingly the German Constitutional Court, have provided the opposite interpretation of the failure of the Constitutional Treaty, namely as confirming that the European Union is not a federal constitutional polity.4 In brief, there is no firm basis on which to claim that the treaties have evolved into a constitution. Member states remain highly protective of their national constitutional identities (something that has resulted in the simultaneous enshrinement in the treaties of the “supranational” principles of loyalty—with a clear centripetal force—and respect for national constitutional identities—with a centrifugal valence, as we also saw in chapter 4). The process of integration has not evolved so far as to render the member states’ constitutions subservient to a European constitutional construct. But then, if the Union was constituted as, formally speaking, an international organization, set up by an international treaty, and there has been no revolutionary or evolutionary mutation of its identity since then, how can both constitutional practice and the European integration discourse refer to the European Union as a constitutional polity and its legal order as a constitutional legal order? At what point did the conversion take place?5 The Primacy Riddle The primacy riddle relates to the lopsided relationship between supranational and national legal orders. National constitutions are logically, historically, and normatively prior to European Union law. Still, in European constitutional practice, Community law prevails over conflicting national provisions, even constitutional provisions, barring a marginal category of cases (when the “hard core” of the national constitution is involved, even if we are still to see the concrete instance in which even this residual primacy is enforced). How can this be so?


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Indeed, European constitutional practice solves conflicts between Community and national norms by granting primacy to Community norms. Discrepancy and conflict have become marginal and are indeed limited to those conflicts where the national norm at stake is a constitutional norm, or to be more precise, where the national norm is one of the core constitutional norms.6 So even the most zealous and active constitutional courts (and paradigmatically, the German Constitutional Court) have reinterpreted, and in the process narrowed down, the range whereby national constitutions hold the upper hand; arguably, they have rendered the principle hollow when considered from the perspective of the individual rights holder (but perhaps not in collective terms, and consequently, in terms of institutional balance between levels of government). Still, it is far from obvious how and why Community law should prevail. For one, standard constitutional theories do not explain how the primacy of Community law can be reconciled with the (still affirmed) primacy of national constitutions. Can there be two overlapping and conflicting constitutional orders simultaneously claiming to embody the supreme law of the land?7 Further, standard constitutional theories do not offer a convincing explanation for the primacy of Community law. Community law is widely characterized as “derivative,” as the creature of national constitutions, so much so that the idea that the member states are the masters of the treaties (an ambiguous phrase from a democratic constitutional perspective) has a very wide currency. But how can an order that is deemed to be derivative also be supreme, especially when it is subject to amendment by the collective of governments constituted by what would then go as the “inferior” constitutional norms, that is, national constitutions? And further still, standard constitutional theories do not offer a proper normative explanation for the primacy of Community law. In democratic constitutional orders, normative hierarchy is dependent on democratic legitimacy. The more intense the democratic legitimacy of the procedure through which a norm has been produced, the higher the norm’s rank and dignity in the legal system (in what is usually, albeit somehow confusingly, labelled the system of sources of law).8 Federal systems are also structured according to this credo, but since federalism is about divided sovereignty, it does so in a more complex manner, through a division of competencies across levels. Federal systems presuppose that the different levels are equivalent in terms of democratic legitimacy. There is no equivalent federal agreement underpinning Community law. Further, it is clear that the democratic legitimacy of Community law (including the constitutional norms) is problematic.9 How, then, can it be that Community law prevails (except in some quantitatively few, albeit qualitatively important, constitutional conflicts) over national norms, even over national constitutional norms?


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THE SYNTHETIC ANSWER The theory of constitutional synthesis offers solutions to these two riddles. It provides a distinct yet coherent conception of the Union’s constitutional vocation and a key to the analysis of the Union’s institutional and constitutional features. Note that in discerning the synthetic answer to these riddles, our leitmotif is the theory of constitutional synthesis, not European practice as such. As we have noted, European practice falls well short of what the theory of constitutional synthesis prescribes, partly because the actors in charge of the process have not developed their intuitions into a coherent theory. To make proper sense of the riddles, we therefore have to draw on how the theory would program the practice, paying particular attention to how the European situation would look if it had been programmed by the theory. The Genesis Riddle The theory of constitutional synthesis contains a viable answer to the constitutional genesis riddle. As we highlighted in chapters 2 and 3, constitutional synthesis underlines that Europe’s constitutional foundation occurred through a constitutional synthetic moment where the international treaty format was used to establish the institutional and constitutional frameworks into which the national political and legal orders would gradually fuse—in line with the regulatory ideal of a common constitutional law. This relates to the distinct feature of European constitution making, namely that it was a process that had to be started from and that had to unfold in a setting of already established constitutional states. But if that is so, constitutional origin is no longer a mystery when we consider the key role that national constitutions played in enabling the “synthetic” constitutional moment and in defining the constitutional ground on which European constitutional law was built. As noted, the process of synthesis was not only enabled, but was actually also mandated, by the innovative national constitutional clauses that prescribed the active participation of each nation-state in supranational processes of integration (the integration clauses that we considered in chapters 2 and 3). These clauses authorized the process of transfer of state sovereign powers to the new polity in a radically new fashion. In order to realize the basic constitutional principles, they actually mandated provisions and arrangements that would transcend the nation-state as the appropriate unit of political action, recognizing that every effort to realize fully the core constitutional values within the confines of a single nation-state would run up against limits. Thus, the “opening” (international) clauses of the postwar constitutions and the explicit European designation of the more


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recent ones reflect how the national constitution-making power is aware of its own inherent limitations and also recognizes the need to situate the national constitution and the constituted powers within the larger European constitutional field. At the same time, the clauses offered no direct license to federate through the development of a European state. In this context, no explicit European act of authorization was possible. The constitutional transformation could therefore be undertaken only insofar as the national constitutional principles could be projected unto the new constitutional order, through seconding the collective of national constitutions to the role of the constitutional law of the new polity. Thus, the regulatory ideal of the constitutional traditions common to the member states, and thus the characterization of national constitutions as the deep collective constitution of the European Union. European integration presupposes the creation of a new legal order, but not the creation of a new set of constitutional norms; a key source of the legitimacy of the new legal order is indeed the seconding of national constitutional norms to the new legal order. We can reconstruct this situation as a license to experiment within given bounds. The integrationist license stems from the recognized need to keep past conflicts from reoccurring; this necessitates some form of supranational arrangement (including elements of experimentation) that is constitutionally authorized to prevent further violent excesses. There must be guarantees that the supranational structure can be reined in by the member states, and because the structure has been issued with a constitutional license that affects the operation of the member states’ democratic arrangements, it must respond to requirements of democratic legitimacy. We see these elements reflected in European constitutional history. The founding treaties were explicitly aimed at setting in motion social, economic, and legal integration among formerly warring European states so as to prevent further destructive wars. There might have been a window of opportunity for establishing a European federation in the immediate aftermath of World War II, but it was shut very quickly. In 1951 and 1957, nation-states were back; they were again socializing citizens into nationals, making it easy for at least one state to mobilize public opinion against such a project and to make it fail. A good illustration of that was the refusal of the French parliament to ratify the 1954 Draft Treaty establishing the European Defence Community (which would have also entailed a political union). Instead of a federation, the legal and institutional framework that was subsequently set up reflects the importance attached to striking a careful balance between ensuring that the process of integration proceeds and safeguarding a sustained measure of national control and influence over the process. The choice of the international treaty format, national veto on treaty change/amendment, and a strong direct national say in the operation of the EU-level institutions (notably within


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the Council) reflects the important role of operative national constraints. At the same time, several of the institutions contained genuine supranational features, which testifies to the innovative character of the integration process. This took place in a setting of states that held a range of compatible structural features (all were constitutional-representative democracies and welfare states in the making with a complex array of tax and regulatory powers). The license to experiment within given bounds called for a flexible and experimental framework of integration, which could not be based on the ex ante ratification of a full-blown federal constitution but which would instead be configured as a more loosely structured, pluralistic institutional structure. This left sufficient room for national diversity and national protection while at the same time also enabling a process of synthetic integration of constitutional orders. It might seem ironic, but it is entirely understandable in the circumstances, that formerly warring parties would embark on the experiment with binding integration only so long as the structure was programmed by national constitutional norms with recourse back to the national should the experiment fail. The normative encoding and the open-endedness of the field were critically important to the launch of the process of integration and lent it democratic legitimacy precisely because it did not predetermine the ultimate shape of the political community. Simply put, the field permitted supranational integration without the risk of throwing the constitutional baby out with the bathwater. This unprecedented effort at setting up a constitutional structure on top of already established constitutional states necessarily had to contain experimental traits, although the scope for genuine experimentation would also be strongly affected by the shape of the institutional arrangement (roughly speaking, the more it emulated national arrangements, the less real room there would be for genuine experimentation). The international treaty form lent itself to this experimentation within given bounds. It was also preferable to the constitutional form, given the high likelihood of an explicit process of constitution making badly backfiring, with the fallout ruling out any future integrationist effort. The apparent disjuncture of form (international treaty) and substance (constitution) is thus the result of and reflects the hybrid nature of synthetic constitutionalism (in its initial stages). To summarize, the theory of constitutional synthesis solves the genesis riddle by showing that the integration of national legal orders into Community law implies that the constitutional law of the new legal order is defined with reference to what is common to national constitutional norms. Such a transformation can be deemed legitimate because it has been authorized and mandated by the national constitutions themselves; further, when national constitutions become the material constitution of the European Union, they transfer democratic legitimacy to it. Thus, constitutional synthesis plays a legitimating role that is somewhat equivalent to demo-


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cratic constitution making. In particular, the legitimating value of citizens’ participation in the deliberation and decision making of constitutional norms is substituted by the framing of the European legal order by common national constitutional norms, capable of radiating their democratic legitimacy to the European legal order as a whole—based on the fact that they were deliberated and decided upon democratically by their citizens. And still, the legitimacy conferred through constitutional synthesis is not fully equivalent to that of democratic constitution making, especially not in the long run. The Primacy Riddle Constitutional synthesis claims that the primacy riddle is dissolved once we take into account that European constitutional law and national constitutional law cannot be properly portrayed as two sets of differentiated constitutional norms. For the reasons put forward throughout this book, the collective of national constitutional norms constitutes the deep layer of European constitutional law. European constitutional law is derivative not only in the sense of being a creature of national constitutional law, but through being what is common to national constitutional norms. Once the standard primacy riddle is dissolved, once we realize the derivative character of Community law, we are in a position to disaggregate the most vexing types of conflicts, namely European constitutional conflicts. Standard constitutional theories characterize all constitutional conflicts as if they were vertical conflicts between European and national constitutional law (which legal system is regarded as superior and prevailing and which is inferior determines the specific solution to European constitutional conflicts and makes up the difference between “Community” and “national” theories of Union law). But that fails to take proper heed of the fact that European constitutional conflicts are not all vertical. Conflicts may be vertical, but they may also be purely horizontal; in most cases, however, they are both vertical and horizontal. Let us explain what we mean by that. The typical constitutional conflict in European law is both horizontal and vertical. Consider the famous Costa case. The usual reconstruction of the affair goes that Italian constitutional law, through its mouthpiece, the Italian Constitutional Court, sustained that Italian statutes approved after the entry into force of the treaties prevailed over the treaties themselves, in strict application of the principle lex posterior derogat lex anterior. European Community law, through its mouthpiece, the European Court of Justice, claimed that the treaties prevailed over national statutes, even if approved after the entry into force of the treaty.10 The conflict was solved in European constitutional practice by endorsing the solution put forward by the European Court of Justice so that a conflict that opposed Italian law and


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Community law was solved by granting primacy to European law and somehow establishing elements of a hierarchical ranking between Community norms (the higher and prevailing law) and national norms (the lower and defeased law).11 And still this misses a second dimension of the conflict. Indeed, if Community law is derivative, if it is the expression of the constitutional law common to the member states of the European Union, then behind the conflict between Community and national law cannot but lurk a conflict between different interpretations of what is “common” in the common constitutional law. Or, to put it differently, saying that Costa led to a confrontation between Community and Italian law is a shorthand version of the underlying constitutional conflict between on the one hand Italian law and on the other hand (quite likely) the other five legal orders of the original Communities. So instead of a vertical conflict, requiring a vertical ordering of legal orders, we are confronted with a horizontal conflict, with a contest among different national constitutional traditions to define the substantive content of the common constitutional law. In the terminology of constitutional dynamics, European constitutional conflicts are but a virulent manifestation of the process of constitutionalization of Community law, of the fleshing out of specific constitutional norms from the regulatory ideal of a common constitutional law.12 When national legal orders diverge but it is still necessary to have one single constitutional standard, then national constitutional norms enter into conflict. From the perspective of constitutional synthesis, this is done in a proper constitutional way, respectful of the common constitutional law and of each national constitution insofar as the chosen solution is supported by the better reasons, and is the one that better fits with the rest of European constitutional law. In this sense the primacy of Community law must emerge through the Union’s handling of horizontal conflicts because primacy is a necessary requirement for the realization of the process of integration through constitutional law. That is so because equality before Community law cannot be guaranteed but by a single constitutional standard. Yet constitutional synthesis also breeds genuinely vertical conflicts, in which European constitutional law antagonizes national constitutional norms understood as a collective. Vertical conflicts can be the result of the need to define an innovative constitutional standard given the specific needs of a process of supranational integration (a need that has been formalized by the European Court of Justice when claiming that Community concepts may need to be defined in an autonomous way from national constitutional concepts);13 or they might result from the “creeping” emancipation of Community law from national constitutional standards. As we saw in chapter 4, transformative constitutionalization may result in the progressive emancipation of supranational constitutional law from the constitutional traditions common to the member states. And indeed we claimed that this is what


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underlies the reconfiguration of economic freedoms advocated by the European Court of Justice since the late seventies and through the eighties. These conflicts have a genuine vertical character because in their typical form, the normative contrast involves an emancipated European constitutional norm and the collective of national constitutions. This is in our view the structure of the conflict behind the (in)famous judgment on the Viking case. As we already stated in this chapter, Finnish law seemed to affirm that the right to collective action of Finnish workers should include the right to engage in transnational boycotts to prevent an employer’s relocating into a jurisdiction where labor costs were lower (and workers’ rights weaker). The right of the employer to decide where to set up shop was to be trumped and set aside. While different national constitutional traditions might characterize the problem in different ways, hardly any of them could be said to support the solution put forward by the European Court of Justice, which solved the conflict in favor of the freedom of establishment of the employer. A similar structure (although more murky) underpins what might become the next petard in the relationship between the European Court of Justice and the German Constitutional Court, the Mangold case.14 The backlash these judgments have resulted in can be properly explained only if indeed we take into account the fact that primacy was not a means of solving a horizontal conflict among national constitutional traditions but was perceived as a means of imposing a self-standing, transcendental interpretation of Community law. That background is, as noted, what radicalized even scholars and turned them into advocates of civil disobedience toward the European Court of Justice.15 Finally, there might be purely horizontal conflicts to the extent that there are different national constitutional solutions to a problem that is doubtful as to whether it falls under the remit of Community law or which has not been solved or even tackled in Community law. The universalizing and homogenizing drives internal to constitutional law rendered these latter cases of conflict increasingly rare. And indeed, both the institutional structure of integration and its constitutional dynamics tend to transform such conflicts into mixed ones, with the horizontal conflict solved via a vertical, European solution.16 These comments show that constitutional synthesis implies a particular form and understanding of constitutional primacy. In other words, the shape of primacy under constitutional synthesis does not emanate from the elevation of one set of constitutional norms to the status of supreme law of the land, but rather through one overarching arrangement emanating from the synthesis of the many. Once the initial legal-institutional structure is put in place, synthesis is not achieved by finding a common minimum denominator but by means of considering which of the national constitutional norms is more congenial to Community law. This is no mere copying exercise, however, as we have underlined above. It is a reflexive process that


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considers the underlying arguments in favor of or against the range of competing national constitutional solutions. It considers the extent to which the national norm can be “Europeanized,” in the sense of both whether it fits with European constitutional law as it stands (as already synthesized in the treaties, the amendments to the treaties, or the legislation and case law of the Union) and whether its consequences will be acceptable to the Union as a whole.17 Numbers are relevant, but they are not decisive. The key question is one of critical comparison between national solutions, which is preferably settled through the Community lawmaking process. When a national constitutional norm is relegated or trumped by the common constitutional standard, that solution is not incompatible with the national constitution but can be justified by the reflexivity that is an implicit requirement of the national constitutional mandate of openness. Thus, in horizontal conflicts, there is only an apparent riddle in claiming that the derivative legal order (Community law) prevails over the original legal orders (national constitutional orders). The primacy of the derivative order is willed by each national constitution because it is a necessary requirement for the process of integration through constitutional law. From the national viewpoint, European legal integration leads to the “opening” of national constitutional norms to the fundamental laws of all the other member states. As already hinted at, this “opening” may eventually trigger a process of reflexive change to reconcile the primacy of the national constitution with the constitutional mandate to integrate into supranational political structures. From the Community standpoint, this entails that the constitution of the Community be underpinned by a plurality of constitutional sources (each of the constitutions of the member states), but at the same time as the constitutional aspiration of the Community is to forge a single and cohesive set of fundamental norms as integration proceeds. Primacy is less obviously justified in vertical conflicts. Indeed, and as we claimed in chapter 3, the Court of Justice is still to substantiate good arguments for giving primacy to its “transcendental” understanding of the economic freedoms over national laws protecting overriding national interests. The right intuition behind the “counterlimits” and “national constitutional identity” of national constitutional courts, which we considered in chapter 3, is precisely that all constitutional conflicts cannot be solved by reference to a one-size-fits-all standard. Indeed, it seems to us that what is wrong in the theoretical construction of national constitutional courts is the emphasis on the defense of the national constitution against the European one (even if that emphasis is easy to explain, given the national institutional identity of European constitutions). The best argumentative countermove would be to gain the supranational constitutional ground and claim that limits to vertical primacy are required by the defense not only of the national constitution as national, but of the collective of national constitu-


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tions, and thus, of the deep constitution of the European Union. Because Community law combines the regulatory ideal of one single constitutional order with a radical institutional pluralism, national constitutional courts should take seriously their duty to guard not only the national but also the European constitution. The theory of constitutional synthesis shows that the primacy riddle is more easily solved once we realize that synthesis gives a distinct shape to the very notion of primacy, given the composite character of the supranational constitutional order. Acknowledging primacy to European constitutional norms is not demeaning of the overall primacy of the constitution but mostly contributes to realizing it and only marginally requires revising the national constitutional standard by reference to the collective of national constitutional standards. The derivative character of Community law goes hand in hand with its primacy in horizontal and mixed conflicts because primacy is the only way to realize the shared objective of integrating through constitutional law. Primacy is indeed problematic (and should not be enforced by supranational institutions) only when the vertical conflict is the result of the emancipation of Community constitutional standards against the substantive contents of national constitutional standards.

CONCLUSION The lack of clarity on the character of the basic institutional configuration of the European Union (the polity and constitutional questions) and on the appropriate normative standards to apply to the Union has a direct effect on the legal practice of Community law, especially on what concerns the application of Community law to cases in which national and European laws enter into conflict or where the construction of Community norms is deeply controversial. Because the European Union was created by member states and not the reverse, it would be reasonable to expect that European law could not but be regarded as derivative from national constitutions. Indeed, the treaties were ratified in compliance with national fundamental laws, by reference to the constitutional clauses that authorized ratifying treaties such as the founding treaties of the Communities. Under such conditions, one may be tempted to think that the rules according to which conflicts between Community law and national law should be solved would be national (and that in line with national traditions, such rules would not assign primacy to Community law when the latter enters into conflict with national constitutions). And still, European constitutional practice is far more complicated. Community norms have been acknowledged to have direct effect, something which (as we have seen in chapter 3) implies that conflicts between national and Community


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norms are indeed settled by Community, not national law, because it is Community law, not national law, that governs whether a Community norm has direct effect in one member state. Moreover, and despite the residual disagreement we analyzed in chapter 3, both European and national institutions have come to accept that Community law should prevail over national law, even over some national constitutional norms. However, that practice is deeply muddled and lacks a clear, principled foundation, which cannot be forthcoming in the absence of a full-blown constitutional theory of European integration. This is why constitutional synthesis is also relevant as an applied constitutional theory. The very terms in which the genesis riddle is formulated obscure the continuity between European and national constitutional law. European constitutional law is neither separate nor even fully autonomous from national constitutional laws. To the contrary, it is a collective outgrowth the main normative point of which is to allow integration through constitutional law also across borders and not only within borders. The creation of a supranational polity without a revolutionary constitution-making act could be legitimate only if the new legal order was indeed filled in by national constitutions, seconded to the collective role of common constitutional law. There is thus no paradox in the constitutional nature of Community law, as the latter is indeed the common constitutional field that national constitutions integrate into. The primacy riddle stems from insufficient attention to the actual normative structure of European constitutional conflicts. Constitutional synthesis helps us distinguish three varieties of conflicts: purely horizontal ones (where national norms enter into conflict outside the scope of Community law and it is solving the conflict that expands the breadth and scope of European law), mixed ones (where national norms enter into conflict concerning the proper fleshing out of the regulatory ideal of a common constitutional law, a type of conflict intrinsic to the progressive constitutionalization of Community law), and vertical ones (where supranational law enters into conflict with the collective of national constitutions and which were bred by the transformative constitutionalization of the Union in the late seventies and early eighties, especially by the new configuration of economic freedoms supported by the European Court of Justice). By solving these two riddles, constitutional synthesis helps clarify European constitutional practice. While it seems sensible that horizontal and mixed conflicts are basically decided at the supranational level (at the judicial stage, by the European Court of Justice), vertical conflicts are the ones in which the institutional pluralism of the Union recommends considerable doses of selfrestraint on the side of supranational institutions. The Court of Justice went several miles further than it should have in both Viking and Laval because it shaped European constitutional law in a way that was openly contradictory to the collective constitutional law of the European Union.


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6 Canada’s Constitutional Experience and Lessons for Europe

This book has shown that with the appropriate conceptual tools, the puzzles and paradoxes that beset Europe’s constitutional experience become comprehensible. In this chapter, we further argue that this understanding of the constitutional character, origins, and development of the EU’s legal order opens up conceptual space for comparison with other polities. Still, the EU defies constitutional orthodoxy, and so the scope for comparison is limited. Comparison needs to take proper heed of the specific constitutional challenges facing the EU. This is why we compare the European Union with Canada. Canada faces constitutional challenges similar to those of the EU and has also dealt with them in a comparable manner. First, both Canada’s and the EU’s constitutional law have derivative origins. In the EU, the source was the member states’ constitutional law; in Canada it was the country’s colonial master, the U.K., that bequeathed the original constitution, the British North America Act, 1867 (renamed in 1982 as the Constitution Act, 1867, and hereafter referred to as BNA Act, 1867), on those setting up Canada in that year. In both cases the new entities obtained their constitutional norms through processes of transfer of constitutional norms and dignity. Second, the constitutional laws of both the Union and Canada hold pluralistic traits, the EU’s distinctly so, but Canada’s also, which relates to its multinational and polyethnic character.1 Third, there are important parallels in how the EU and Canada operate the process of fundamental constitutional reform, with key executives (heads of states and governments) playing a central role in both cases. Fourth, we have seen how conflict and contestation over constitutional essentials and absence of agreement on type of community and polity mark the EU, but this to a large extent also applies to Canada. 177


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Both are constitutional polities but lack clarity and/or agreement on their constitutional identity. Fifth, we have shown that the EU’s constitutional structure has failed to obtain explicit democratic authorization; this EU trait also finds parallels in Canada. These commonalities suggest that the EU and Canada share several important challenges; there are also important parallels in how these challenges have been dealt with, including a synthetic orientation. Thus, comparison can help us to establish whether constitutional synthesis is a theory with relevance only for Europe, or whether it can also be extended beyond Europe. And in extending it, we may be able to draw lessons from Canada to the European case. In the following sections, we provide a brief constitutional narrative of the Canadian case that is particularly oriented to ascertain whether the theory of constitutional synthesis can (be adapted to) shed light on the complex Canadian constitutional experience—an experience that does not fit well with either the revolutionary or the evolutionary tradition of constitutionalism. To this end, the chapter has been broken down into two main periods. The first covers the period from confederation (1867) up to the patriation of the constitution in 1982. We discern the main parallels to the EU, with this period roughly corresponding to the EU pre-Laeken. The second period, from patriation in 1982 to the present, covers the central transformation of Canada’s constitution through what is frequently referred to as the “Charter Revolution.”2 This effort to “bring home” and found the Canadian constitution on an explicit rights-based democratic constitutionalism finds its parallel in the EU’s effort to forge a constitution for Europe with the European Charter as a vital ingredient. Both cases thus represent efforts at “charter-driven constitutional transformation” in pluralist legal systems with derivative constitutional origins. The important and instructive difference is that Canada’s—cathartic—constitutional transformation has altered the terms of synthesis in a clear constitutional-democratic direction. That realization is part of the second theoretical purpose of this chapter, namely to clarify what the European Union can learn from Canada, what constitutional lessons can be derived from one version of synthetic constitutionalism to another, so to speak.

CANADA’S CONSTITUTIONAL DEVELOPMENT PREPATRIATION In this section we will show that the Canadian constitution came about through a critical process of constitutional transfer. This process lasted for well over a half-century and unfolded with a clear domestic-Canadian synthetic orientation. It shows that the constitutional contestations that have


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given rise to its synthetic constitutionalism have roots that stretch back to Canada’s very founding. The conflicts are over constitutional essentials and are rooted in different conceptions of sovereignty, community, and democracy. The conflicts are kept alive today also because, as we will show, scholars currently interpreting these events do not agree on what they signify. An Unconventional Moment for a State: Constitutional Foundation through Transfer The Dominion of Canada was constituted by the BNA Act, 1867.3 It resulted from the consolidation into one polity of three former colonies in British North America and contained initially four provinces, because with the founding the province of Canada was split into two: Ontario and Quebec.4 The United Province of Canada, which was established in 1841 from the previous Upper and Lower Canada, had proved unworkable. To the newly founded Ontario and Quebec, therefore, “Confederation was a deeply desired coming apart as a prerequisite to the larger coming together with other colonies in the central government of the new nation.”5 Confederation thus restored an institutional home—the province of Quebec—for the majority of Canada’s French speakers (together with a minority of English speakers). As with the United States and indeed with the European Union, the territorial scope of the constitution was open, and the dominion was gradually extended to today’s Canada with ten provinces and three territories.6 The text of the BNA Act, 1867 granted Canadians the rudiments of a constitutional and democratic order. It established “One Parliament for Canada consisting of the Queen, an Upper House styled the Senate, and the House of Commons.”7 The new system was thus set up with a bicameral legislature, with the Senate as an appointed body8 and the House of Commons as a popularly elected body,9 and with the consent of all three required for the passage of legislation. The Senate’s formal powers were coequal to those of the House of Commons, albeit with the exception that money bills had to originate in the House of Commons.10 The Senate was modeled on the preconfederation legislative councils, notably that of the United Province of Canada.11 The Senate is clearly similar to the British House of Lords in that both are nonelected, they share many of the same parliamentary procedures, and they operate to check legislation. But the Canadian Senate also differed in that it had a fixed membership, there was no time limit to how long it could delay legislation, and its federal character shaped its composition, which was based on the principle of regional representational equality.12 The House of Commons was to be popularly elected, with an election cycle of five years. The House of Commons was styled on its U.K. namesake. The BNA Act, 1867 contained no explicit reference to


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the principle of responsible government, but this was a well-established constitutional convention. Also by convention, members of the cabinet had to hold a seat in Parliament (either in the House of Commons or in the Senate). In overall terms, there was no doubt that “Westminster was the mother of Canadian parliamentary practice.”13 The system was configured to work on the basis of the principle of responsible government but could not be translated into parliamentary sovereignty because the Canadian parliament’s role was subject to limits imposed by the imperial mother, the British Empire. Further, the unelected Senate’s strong role raised the question of responsible to whom—this strong role was a further obstacle to popular sovereignty proper. The BNA Act, 1867 thus set up the federal parliament; it also affirmed the role of the representative bodies in the provinces, each of which would have a legislature, a lieutenant-governor representing the queen, and an elected lower house, the legislative assembly. In addition, with the exception of Ontario, all the other provinces would each have an appointed upper house, the legislative council.14 The BNA Act, 1867 conferred broad powers on the Crown through the governor general.15 The executive was called the Queen’s Privy Council. There was no mention of the office of prime minister or cabinet, although it existed through convention—the cabinet is best understood as a committee of the Privy Council.16 In addition, “[t]he British government’s power to ‘disallow’ colonial statutes, which had been included in the Constitutional Act, 1791, and the Union Act, 1840, was to be continued in the new Canadian state. So, too, was the governor general’s power to ‘reserve’ a bill for consideration by the British government.”17 Both practices were ended only with the Statute of Westminster of 1931. From 1875, there was the Supreme Court of Canada, even if the recourse of last appeal was to send litigants to London. However, it was not the will of the Canadians but of Westminster that turned the act into binding law, even if the terms of the act were negotiated with London by representatives from three North American colonies.18 Furthermore, until 1982 (with the duo of the Canada Act of Westminster and the “native” Constitution Act), the British parliament remained the institution empowered to amend the act in the absence of any explicit provision to the contrary (although from 1949—with the Second British North America Act—the power to amend the constitution was partially repatriated).19 This link to the U.K. indicates why the Canadian constitution is usually characterized as derivative.20 In marked contrast to the U.S. constitution of 1787, or for that matter, with the many South American constitutions of the early nineteenth century, that in symbolic and substantive terms marked a clear break with


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the colonial European past, the Canadian constitution reinforced continuity with the past.21 Continuity was expressed through the combination of an imperial form and a democratic substance. Thus, executive functions remained formally in the hands of the queen (acting generally through her governor-general), legislative power continued to be formally vested in the imperial parliament, and the Judicial Committee of the Privy Council remained the supreme court within the Dominion. In brief, the act containing the fundamental laws of Canada was granted to the people, rendered possible government by the people, but was not made by the people. It had been a Canadian initiative, was negotiated by delegations of executives from the provinces, and was ratified by all the provincial legislatures (in some provinces after dissolution and appeal to the people in election), in British Columbia (1871), New Brunswick (1867), and Prince Edward Island (1873).22 But using the categories that we put forward in chapter 2, it could be said first that the act was an unconventional constitutional act, as a new polity and a new legal order with a democratic aspiration were established neither through a revolutionary “constitutional moment” nor from a slow constitutional outgrowth. The main difference was that in the Canadian case, the pouvoir constituant was external to the new polity. Thus, in this sense the BNA Act, 1867 did also have the color of an octroyé constitution. The act not only transferred British constitutional law to the dominion, but actually brought onboard many preexisting material constitutional arrangements, and critically for the nineteenth-century, it grounded the continued validity of a pluralistic system of private law. The actual contents of the Constitution partially resulted from the constitutional practice of the colonies since their establishment, and especially in the constitutional conventions developed within areas in which formally or informally self-government was the practice.23 While that implied a clearcut influence of British constitutional law and practice, there were also elements resulting from the emulation of aspects of the U.S. Constitution (both in a positive and in a negative sense).24 Where the British legacy was outstandingly dominant was in the form of the act. In the preface to the document, it was indeed stated that Canada would have a constitution that would be “similar in Principle to that of the United Kingdom.”25 This implied that the constitution was only halfwritten. In contrast to the U.S. Constitution that contained in a coherent and synthetic manner a rather complete body of fundamental norms, the BNA Act, 1867 contained only the provisions that were strictly necessary to set up the confederation. There was no bill of rights, but the reference to similarity with the British constitution was taken as substantiating an implied bill of rights. Similarly, as already noted, the act did not spell out explicit provisions for responsible government, despite the fact that they had


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already been achieved in British North America “in or about 1848.”26 But the British similarity was enough to import several British constitutional conventions into the “living” Canadian constitution, notably the convention of responsible government, the convention of the rule of law, and the convention of parliamentary sovereignty.27 And as we already pointed out, the drafters of the act did not insert an amendment clause. This was left to the imperial parliament. Even more importantly at a time where most legal norms were part of private, not public law, section 129 of the Constitutional Act affirmed the continued validity of preexisting laws. This entailed endorsing the essentially dual nature of the private law in the dominion, as Quebecers had managed to hold fast to their droit civil,28 “in respect of the legal rules governing the relations between and among private individuals in contract, property, and civil wrongs. . . .”29 It created a complex system of legislation. In the application of British imperial constitutional law (which had been recently clarified in the 1865 Colonial Laws Validity Act), imperial statutes were to be part of the system of sources of law of the dominion. English laws that were not suitable to the colonial circumstances were excluded through a rather vague doctrine of unsuitability.30 In addition, “autochtonous” institutions were empowered to adapt to local circumstances the core component of the applicable law (British law), even if subject to the strong unifying thrust of the imperial Judicial Committee of the Privy Council. A brief comparison of this system with that of the EU shows that both constitutional arrangements were derivative, incomplete, and relied on transferred legitimacy. When comparing their respective starting points we also see that Canada was from the outset institutionally speaking far better democratically equipped: a federal state with broad prerogatives and based on the notion of representative and responsible government. But the centralist-sounding constitutional text was not in line with the political realities and constitutional visions that marked this complex entity. The Contested Constitutional Status of the BNA Act, 1867 In the previous section, we considered three key features of the “foundational” act of Canada that do not fit into the typical constitutional traditions or paths of nation-states, namely (a) the octroyé character of a democracyenabling constitution, (b) the transferred character of constitutional norms (composed of the fact that the written constitution is only a partial statement of the “deeper” constitution, left unwritten and in the form of constitutional conventions), and (c) the plural and rather baroque system of sources of law foreseen in the constitution. This creates some parallels between the European unconventional foundation and the Canadian constitutional foundation.


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In this section, we consider whether it makes sense to reconstruct Canadian constitutional practice in the first decades under the BNA Act, 1867 as synthetic. That requires us to consider the constitutional dynamics at work and their combination in order to determine whether the BNA Act, 1867 instituted a constitutional practice that could be regarded as proper of revolutionary or evolutionary constitutionalism. While the BNA Act, 1867 was approved by Westminster, it was the result of a Canadian initiative, which was highly influenced by the growing political tension on the other side of the Canadian-U.S. border. Indeed, the centrifugal forces unleashed in the extremely bloody American Civil War (1861–1865) gave impetus to a centripetal reaction among British subjects in North America to forge a form of union. The American war was a critical factor in the colonists’ decision to opt for a Canadian federation and deeply colored their constitutional thinking. That resulted in a peculiar combination: a constitution enmeshed in a pluralistic constitutional reality, which takes full notice of and even endorses pluralism but at the same time also establishes an institutional structure and a division of competences with a clear centralizing orientation. Indeed, the ensuing Canadian federal model was a model of parliamentary federalism, based on parliamentary government at both key levels of government and steeped in a federal framework, basically organized and structured along the lines of the bipolar version of federalism.31 The BNA Act, 1867 allocated such a great range of powers to the federal level of government that some commentators preferred to label Canada as “quasi-federal” rather than federal proper.32 What is remarkable is that this apparently centralizing arrangement gave rise to a long process of transformative constitutionalism, which at numerous instances has appeared to move almost in reverse. Or, to put it differently, Canada experienced a constitutional practice marked by contestation over the constitutional character of the legal order, resulting from the controversial nature of the polity that had been constituted. The American Civil War, as a major threat to the very integrity of British North America, had temporarily helped to paper over the opposing views of North America. However, once the war was over and the Canadian constitutional system was put into operation, the different underlying constitutional visions came into full play, challenging its very constitutionality. The pluralistic nature of Canada was strongly asserted by Quebec. Quebecers indeed contested the federalizing nature of the BNA Act, 1867 by relativizing its constitutional status. By emphasizing the subdued constitutional character of the text (a merely partially written constitution) and the more fundamental role played by the Quebec Act of 1774, what they saw as the true constitutive document of Canada,33 Quebecers highlighted the dualistic nature of the polity, its binational character,34 and in the process cast serious doubts on the “federal” interpretations of the federal-provincial


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division of powers and institutional setup of the BNA Act, 1867.35 Running through Quebec’s entire history is the theme of duality, constitutional recognition for Quebec distinctness, and Quebec’s ability to protect its cultural and linguistic distinctness through veto on constitutional amendment and other institutional provisions.36 This dualistic reading understands Quebec as one nation and implicitly or explicitly defines the English-speaking majority as the other nation or national community. But such a uniform vision of English Canada was also deeply contested. English-speaking Canadians, especially outside the economically dominant province of Ontario, tended to stress the institutional diversity of English-speaking Canada. This grounded and nourished a third conception of the BNA Act, 1867 as a treaty “made among the representatives of the British North American colonies, in which they came together to constitute the new federal government.”37 This could be labelled as a confederal version with a twist, in that the constitution was considered as a compact among the provinces (the so-called provincial compact theory).38 After all, the founding moment was also referred to as confederation.39 Taken literally, this could refer to a confederative constituting act, by and for the provinces. Indeed, each province would have considerable jurisdictional autonomy and a veto in the amendment of the Canadian constitution.40 We should note another historical source of pluralism with constitutional implications, namely the system of aboriginal and treaty rights that existed prior to 1867. The 1867 settlement acknowledged this system, albeit in a highly paternalistic (internal colonial) manner.41 Of particular importance here was the Royal Proclamation, 1763. It referred to the “several Nations and Tribes of Indians” and defined them as collectivities, recognized their autonomy, and defined the relations between them and the Crown as one between peoples. This kind of relation has continued and marks contemporary relations as well.42 Thus, underneath the 1867 Founding Act we find at least four more-orless well-entrenched and competing conceptions of community, each with its particular conception of whose constitution it was and who the main constitutional stakeholders were. The tension among these four competing visions runs through the entire constitutional history of Canada. The contested character of the nature of the polity and of the legal order made agreement on how the collective constitutional will was to be forged impossible. In practical terms, federal and provincial governments were not capable of agreeing on a constitutional amending formula. In that state of disagreement, the imperial connection was maintained malgré London as a source of unity that could not be produced within Canada. Between 1867 and the 1960s some sporadic efforts (1927, 1931, 1935, and 1956) were initiated by the federal government to effect constitutional


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reform, but they had all stalled for lack of agreement on an amending formula. This became fully apparent during the process that led up to the 1931 Statute of Westminster, based on the spirit of the 1926 Balfour Declaration. The latter accepted the principle that the dominions and the U.K. were equal in status. Its section 4 stated that no statute of the U.K. would extend to a dominion unless it was expressly declared in that act that the dominion had requested, and consented to, the enactment thereof.43 The Canadian representatives, however, insisted on an exemption from this (the ensuing section 7.1, which provided that “nothing in this Act shall be deemed to apply to the repeal, amendment, or alteration of the British North America Acts, 1867 to 1930, or to any order, rule or regulation made thereunder”) because they feared that either level of government in Canada would be able to alter constitutional law through ordinary legislation. The Canadian response to the 1931 Statute of Westminster illustrates how the Canadians’ failure to agree to a domestically functional amending formula made them cling to the imperial connection even when the U.K. sought to loosen the ties. This failure thus meant that the basic question of to whom the constitution belonged, and the kind of community it set out to constitute, remained unsettled. The contested character of the polity bred the kind of disagreement that blocked the constitution-making path. And the absence of change was bound to reinforce governmental dominance over constitutional issues. The BNA Act, 1867 was indeed a “governments’ constitution.”44 The text was long on intergovernmental relations and framed in a rather detailed way the powers and prerogatives of governments. Furthermore, it was very short on citizen-state relations in a democratic sense because it did not contain a bill of rights, provisions for responsible government, or an amending formula, but merely relied on the relevant constitutional conventions. Thus, while perhaps the substance was there, the form of the constitution left little scope to appeal to the constitution in a normative-evocative manner. The governmental “bias” of the constitution plus the blockage of constitutional reform reinforced the central role of governments in constitutional dynamics. So only belatedly (from 1964 onward), in a fragmentary manner and avoiding the big constitutional changes, was some marginal tinkering with constitutional norms undertaken. Compromises were forged in intergovernmental fashion through what was labelled federal-provincial diplomacy45 (a) to underline the parallels this system has with the international realm and (b) to focus attention on this as a structure for bargaining and negotiation.46 The main participants have been the heads of governments (or first ministers) from the federal and provincial governments, which attended eleven conferences on constitutional issues from 1964 to 1983. Thus, the Federal-Provincial Conference of Prime Ministers and Premiers has arguably “come to be one of the most crucial institutions of Canadian


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federalism.”47 This system privileges executive officials and sidelines representative assemblies, but “the pursuit of jurisdictional autonomy takes place outside a shared acceptance of constitutional and legal norms about the respective powers of the two orders of government.”48 While no major formal constitutional amendment was effected until patriation in 1982, during the entire postwar period much was happening in the area of informal constitutional change.49 The great postwar increase in the state’s role in the economy and society took place at both levels and underlined the great overlap of federal-provincial powers and competences. To deal with this overlap, a comprehensive system of intergovernmental relations with administrative officials at both levels of government was set up to smooth the operation of the federal system. From the early 1960s, the system of executive federalism emerged.50 The intergovernmental affairs ministries at the core of this bureaucratic apparatus have emerged as critically important instruments for elected executive officials in constitutional negotiations. All governments have established intergovernmental affairs ministries to serve as the locus of constitutional research and expertise, including negotiating techniques and expertise in reaching agreements and accords. Thus, elected executive officials play a central role in policy and political processes, not the least in constitutional dynamics. Because the limited constitutional reform that was achieved took place through the same process as transformative constitutionalization, the system was not symbolically designated—and confined—to deal with constitutional issues as in a constitutional convention. Officials can designate some of the first ministers’ meetings as constitutional conferences, but they are not obliged to use this label. Thus the system leaves them with great flexibility and leverage to frame issues as constitutional. In effect, constitutional was what governments and courts defined it to be. Thus, in direct parallel to the EU’s Intergovernmental Conference (IGC), the First Ministers’ Conference (FMC) is an instrument that executive officials can use to amplify or downplay the constitutional label and the symbolic-constitutional salience of a given issue, with clear bearings on the normative dignity of the constitution. Under such circumstances, the U.K. Judicial Committee of the Privy Council (JCPC), as the final judiciary in the constitutional system, was bound to have a key umpire role in the process of transformative constitutionalism “in reverse.” The U.K. JCPC was first pushed into the constitutional fray because the BNA Act, 1867 had been devised when government had a limited role in the configuration of society. The drafters of the BNA Act, 1867 were still living in a world where states had not dramatically expanded their competences in economic regulation and social policy; they were at a long remove from the very idea of the welfare state. So when such policies came to the


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political agenda, they were bound to spark jurisdictional conflict and to end up, sooner or later, before the JCPC through litigation. The judges in London followed two basic principles. First was to consider the division of competences enshrined in the BNA Act, 1867 as watertight. Here were the competences of the federation, and there those of the provinces; they could and should not overlap; they should be regarded as mutually exclusive categories.51 The second principle centered on broadly interpreting two key terms defining provincial competences: “property” and “civil rights,” as enshrined in section 92(13) of the BNA Act, 1867. In the latter case, they went as far as to consider as civil rights all forms of legal rights possessed by persons within the province. The consequence of this broad interpretation was recognition of provincial authority to enact laws on virtually any subject, since all provincial laws would necessarily deal with civil rights in one form or another.52 The upshot was that “[t]he Privy Council took a document whose clear intention was to create a centralized federation and interpreted it as allocating many of the most important areas of legislative jurisdiction to the provinces.”53 This strong provincialist thrust was further reinforced by the JCPC’s very narrow interpretation of the federal residual power in section 91, the opening words of which state that Parliament is authorized to enact laws “for the Peace, Order, and Good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.” Rather than seeing it as a general grant of powers, one that in accordance with the text of section 91 need not be confined to the provisions set out in section 91 on federal authority, the JCPC understood this mainly as a power that came into effect when issues did not clearly fall within sections 91 or 92. From the 1920s onward the “Peace, Order and Good Government” clause has mainly been understood as an emergency power for use in situations of national crisis. The JCPC has been widely criticized by Canadian academics for its impact on the workings of the Canadian federal system. But it is clear that it responded to the strong advocates of provincial rights, especially the special demands by the province of Quebec. The broad interpretation of provincial authority in the realms of property and civil rights sat well with Quebec’s onus on protecting its civil law tradition and on maintaining special provisions to protect the cultural—notably linguistic and religious—features of Quebec, which included education and, in more recent times, manpower training and immigration. The supporters of this strong provincialist thrust of the JCPC then also underline that it was important to stem the strong fissiparous powers within Canada. Pierre Trudeau, in fact, argued in 1968 that if the JCPC had not ruled in that direction, “Quebec separatism might not be a threat today: it might be an accomplished fact.”54


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All these developments show that constitutional pluralism is a central component of the Canadian constitutional edifice. The French fact could not be compartmentalized and stowed away as a quaint feature of Quebec but has put a deep mark on Canada55 and has also helped drive a much broader centrifugal process of provincialization, in line with the decentralized conceptions of national community that the other provinces have often propounded. Under such circumstances, attempts at reconstructing Canadian constitutional dynamics as a matter of revolutionary or evolutionary constitutionalism were bound to exist but were also bound to be highly unsatisfactory. The most widely held view is that Canada’s founders were not political theorists who were concerned with constitutional democracy, but rather political pragmatists who sought Canadian union as a solution to pressing political challenges, notably the threat posed by the American Civil War. This reading sits well with an evolutionary—Burkean—conception of the development of the Canadian constitution. Peter Russell notes that “[t]he political elites who put Confederation together were happy colonials. Their basic constitutional assumptions were those of Burke and the Whig constitutional settlement of 1689 rather than that of Locke and the American Constitution.”56 Russell argues that Canadians failed to consider head-on “the question whether they share enough in common to form a single people consenting to a common constitution.”57 Against this, Janet Ajzenstat, who has studied the Canadian founding debates extensively, argues58 that “the doctrine of popular sovereignty and its corollary, the right of revolution, has underpinned politics in this country from 1867.”59 Her reasoning is based on at least three sets of arguments: the framers were concerned with liberal democracy and set up a system of responsible parliamentary government; this is more firmly entrenched in the provisions of the BNA Act, 1867 through explicit provisions (sections 53 and 54) than is generally recognized; and the constitution rests on the principle of popular sovereignty because the BNA Act, 1867 underwent parliamentary ratification. Parliamentary ratification can be understood as an expression of popular sovereignty. In direct contrast to Peter Russell, she then argues that John Locke “is the philosopher of Canadian Confederation. . . .”60 These two readings, broadly speaking, draw to different degrees on the two main traditions of constitutional development: the evolutionary and the revolutionary. Russell’s reading is very much steeped in the evolutionary tradition. Ajzenstat understands the English Glorious Revolution of 1688 as basically having instantiated the principle of popular consent through parliamentary sovereignty. Neither reading, however, captures the distinctive traits of the Canadian context, namely the way in which a set of normative principles were em-


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bedded in an incomplete, derivative constitutional order, which gradually severed the U.K. ties and simultaneously sought to work out the relations between its roots in different legal-constitutional traditions. Understood from this perspective, basic constitutional principles were transferred from Britain to a new entity (Canada). The process of transfer contained several distinct elements. The first refers to the presence of core elements of democratic constitutionalism. So far, Ajzenstat is correct. But as Russell also correctly notes, this was not carried to its natural democratic solution because of the second factor that refers to the derivative origin and character of the Canadian constitution. Canadian constitutional statutes required approval by the imperial parliament in London. This meant that constitutionally speaking, Canada was not a self-standing entity in democratic terms. The democratic quality of the constitutional construct was neither exclusively established nor exclusively sanctioned by Canadians and their representative institutions. Neither could Canadians exclusively handle this; constitutional salience depended on compliance with democratic constitutionalism as understood and interpreted by the imperial parliament. Neither Russell nor Ajzenstat properly factor in the particular democratic license with which the imperial connection equipped the Canadian constitution. Canadians had to comply with English-style liberal-democratic constitutionalism. At the same time, the relative lack of specification in the English model offered them considerable leverage to fashion their political communities and address the fact of Canadian constitutional pluralism. The English constitution could not simply be grafted onto the new entity because the English constitutional tradition was not the only one relevant or acceptable to the new entity. The French and the aboriginal traditions had to be accommodated. How this pluralism was dealt with is best understood through the notion of constitutional synthesis. The process of synthesis was one wherein the relationship among the different constitutional traditions involved had to be properly worked out under the guardianship and through the democratic safeguards set up by the colonial power, together with the representativedemocratic bodies at both levels of government in Canada. In effect, we see here the makings of a “constitutional field” wherein the central constitutional stakeholders (the U.K. government and the federal and provincial governments) are tightly linked and the operating constitution is the result of these forms of bi- and multilateral interactions. The process, as Ajzenstat and Romney underline,61 was not one where representative-democratic institutional arrangements were set up with confederation (1867); such institutions were already in place. These were also not simply the product of imperial U.K. rule; they were also the products of colonists struggling to replace oligarchies with elected systems of responsible government.


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This process subjected both relevant constitutional traditions (English and French) to democratic constitutional norms. The battle in Canada stood over the kind of communal expression that these different constitutional traditions should take. Thus, it is quite clear that the Canadian process of constitutional synthesis did not unfold along the same lines as in Europe; at the same time, however, there were important parallels. The process is thus perhaps best understood as one of distilling a distinct constitutional tradition from a complex blend of English, French, and a set of already made-in-Canada provisions deeply colored by these and (by then to a very limited extent) aboriginal traditions. Constitutional Avoidance This was at best a process of stymied synthesis. As time went on, it became increasingly apparent that this constitutional construct rested on a number of constitutional assumptions and practices that caused or at least exacerbated the constitutional problems, which came to a head in the late 1970s (to be addressed in the next section). As we have shown, the contested character of the polity and of the legal order made it virtually impossible to agree on how the collective constitutional will should be forged. This resulted in a distinct Canadian breed of constitutional avoidance. Thus Canadian synthetic constitutional development went hand in hand with the repression of constitutional politics. This manifested itself in a plethora of unresolved constitutional issues and conflicts as well as in a blatant failure to resolve “the national issue”: what kind of a nation was Canada? The imperial connection offered, at most, ambivalent support: it exacerbated the confusion by being the distant framework to which Canadians could resort when domestic consensus could not be achieved. Was Canada a territorial nation or a transnational Canadian-British nation (where Canadians retained a strong British allegiance through close ties to Britain)? Or was Canada a compact between two founding peoples, a federal community of communities, or a compact of provinces? These tensions were becoming more acute as time went by, through processes of province building and notably through Quebec’s Quiet Revolution (1960– 1966)62 as a process of modernization, secularization, and state building in Quebec that was harnessed to serve the Quebec nationalist cause.63 A final element of constitutional avoidance pertained to the popular and citizenship roots of the constitutional construct. The BNA Act, 1867 had systematically organized out or excluded issues pertaining to aboriginal peoples, where status Indians obtained the right to vote only in 1960; exclusion also manifested itself in a strong gender and ethnic bias.64 As the postwar period proceeded, notably from the late 1950s onward, this elite-based system was becoming challenged. One important change


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effort was the attempt by Prime Minister Diefenbaker to amend the constitution to include provisions for individual rights. The provinces refused to support the amendment, and Diefenbaker responded with the Bill of Rights, 1960. It was applicable to the federal level only, and the courts interpreted the bill very narrowly. In retrospect, its importance resides as much in the negative example it provided for later constitution makers, who sought to avoid the limitations built into it. Probably the single most vital impetus to constitutional reform came through the election of the Quebec separatist Parti Quebecois in November 1976. Before examining Canada’s constitutional transformation, we need to clarify the parallels between Canada and the EU in their respective precharter eras.

HOW COMPARABLE IS THIS TO THE EU? First, Canada’s and the EU’s constitutional arrangements both represent efforts to learn from and prevent violent catastrophe: an important reason for Canadian confederation was the need to prevent a destructive experience similar to the American Civil War (as well as to provide a bulwark against possible U.S. expansionism). European integration through an “ever closer Union” was a central vehicle to prevent further destructive wars on the European continent after two devastating world wars in the first half of the twentieth century. The two entities share some common elements regarding the initial integration impetus. Second, both Canada and the EU were established in a manner and through processes that traditional constitutional theory, made in the image of European nation-states, would deem unconventional acts. Neither the BNA Act, 1867 nor the founding treaties easily fit into the template of revolutionary or evolutionary constitutional moments. In the Canadian case, the constitution was octroyé. Canada’s constitution was part of and partly operated through the imperial U.K. parliament. Constitutionally speaking, this tied up Canada in a broader world-encompassing imperial system and rendered the operation of the Canadian constitution subject to ultimate approval by the U.K. parliament. The mode of transfer was through derivation, as the contents of the act and the companion constitutional conventions derived mainly (but far from exclusively) from British constitutional law at its imperial stage. The EU’s constitution was established through a decision to realize the supranational integration mandate of postwar constitutions, and its substantive content referred to the common constitutional law of the member states (apart from the scattered provisions enshrined in the treaties). Constitutional amendment (and, for a long time, ordinary lawmaking) was subject to unanimous approval by all the Union’s member states.


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Third, and as a consequence of the second element, both were pluralist constitutions. The EU was set up as a supranational polity with a common constitutional law that encompassed member states that also retained their own constitutional identities. Canada was set up as a federal state composed of already existing entities with somewhat different constitutional traditions: the British constitutional tradition (as adopted by the different provinces); the French influence through the Quebec Civil Code; and elements of the aboriginal tradition through aboriginal treaty rights. The two former sources of pluralism were well entrenched in constitutional and political practice, whereas the latter has obtained constitutional prominence only quite recently (postpatriation, through article 35 of the Constitution Act). Fourth, the ensuing constitutional practice was in both cases marked by the absence of a clear-cut path of explicit constitution making. In Canada, the contested nature of the polity fostered a process of transformative constitutionalism almost in the reverse, through which the constitutional character of the BNA Act, 1867 was contested. That presented the process of forging a collective constitutional will with an ineffable question. It resulted not only in substantive constitutional avoidance, but also in a retained imperial connection even against the apparent wish of Westminster. Some constitutional changes were undertaken after 1964, but with considerable labor and fatigue. This constitutional impasse exacerbated governmental dominance over constitutional politics, and a process of muddling through with informal changes. The indecisive jurisprudence of the JCPC, itself fostering a centrifugal understanding of the constitution, could not offer a solution to the problem. In the EU, we may understand the constitutional avoidance as a natural consequence of the daunting task of making the founding treaties work combined with the quite smooth process of transformative constitutionalization led by the Council of Ministers and seconded by the Court of Justice. But the more that the constitutional nature of the polity and legal order became clear, the more the same difficulties with the definition of the general constitutional common will that were characteristic of the Canadian polity affirmed themselves in Europe. Fifth, in both cases, we find a system of organized intergovernmental relations to forge constitution making/change. There is a clear parallel between the Canadian system of First Ministers’ Conferences (FMCs) within executive federalism and the EU’s system of intergovernmental diplomacy through the “IGC approach” to treaty making/change. And we find in both cases strong subunit veto actors and a norm of constitutional unanimity (in the EU, this is formalized in article 45 TEU; in Canada, this norm had limited formal support). Sixth, both Canada and the EU faced the challenge of ensuring proper democratic authorization. The two processes of constitutional transfer


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shaped the character of the authorization challenge: it was not a matter of democratic sanction of a new constitutional construct (the revolutionary tradition); it was a matter of democratic sanction of a constitutional construct that had operated over time. But in contrast to the evolutionary tradition, the constitution was not simply a manifestation of a domestic tradition but a domestic tradition that had originated from and continued to be mediated by another constitutional agent (in Canada, the U.K.; in the EU, the member states). The more it was dislodged from and became independent of its origins, the more pressing would be the question of democratic authorization. Our theory of constitutional synthesis provides a means of understanding the practical steps taken in both Canada and the EU to meeting the democratic authorization challenge. Taken together, these features mark both entities as distinct cases of constitutional synthesis. They are different manifestations of constitutional synthesis because they are different political systems with different roots. Canada is a parliamentary federation, whereas the EU is a quasiparliamentary nonstate. Canada’s character as a deeply contested, multinational, and highly decentralized federation, and the EU’s makeup and operation by member states show that both rely on elements of statehood. In effect, we may say that they exhibit different degrees of “stateness.”65 This analysis has shown that constitutional synthesis is compatible with different degrees of stateness. It has also shown that synthesis can unfold in different ways: in the EU the synthetic process operates through a common European constitutional law made up of a distillation of national traditions situated in a European constitutional field, whereas in Canada the synthetic process unfolded in the working out of domestic pluralism under the guardianship of the U.K.

PATRIATION AND CHARTERED TRANSFORMATION OF CONSTITUTION AND COMMUNITY A major difference between Canadian and European constitutional history is that there is a major turning point in Canadian constitutional history that bears some semblance to a revolutionary constitutional moment. This was the constitutional “patriation,” literally the bringing of the constitution home66 through an act that in a double move marked the end of British sovereignty and the adoption of a new constitution, complete with a charter of rights. But there was a rub. While the act was initiated and consented to by most of Canada’s democratically elected officials and representative bodies, the province of Quebec refused to sign it. The Quebec Court of Appeal declared that the Quebec government did not possess a veto under the unpatriated amending process,67 and this was upheld by an unsigned


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opinion of the Supreme Court of Canada.68 With this major constitutional stakeholder (and most of its citizens) withholding such assent, Canada’s potential constitutional moment did not materialize. Was patriation simply a case of constitutional failure, as Quebec separatists have argued again and again? And if so, has it really turned the Canadian constitution autochtonous or simply put a different face on the same constitutional status quo?69 Or should it still be regarded as the moment in which the Canadian people gave themselves a democratic constitution? In the terms that we put forward in chapter 1, was patriation the final transcendence of Canada’s peculiar version of constitutional synthesis? With the British sovereign finally out of the picture, would the different and contrasting constitutional visions of the Canadian polity finally be reconciled? Or was patriation a mere mending of synthesis, a constitutional moment manqué accompanied by some beneficial cathartic effects? To answer these questions, we proceed in two steps. First, we assess patriation, clarifying its constitutional status. This requires considering the main political and constitutional rationales behind patriation, the democratic qualities of the process, and the substantive constitutional changes it produced. Second, we consider the peculiar constitutional dynamics after the patriation and the charter, focusing especially on the cathartic effects of the series of ratification failures following the constitutional moment manqué of 1982.

Patriation through the Constitution Act 1982 The Road to Patriation The Trudeau liberal government had campaigned for constitutional reform in the 1979 election, but this issue did not figure much in the 1980 election that returned Trudeau to power after the short Clark conservative interregnum.70 The liberal government’s strong Quebec electoral support no doubt reinforced the element that was of greatest importance for bringing the constitutional issue to the front of the stage for Trudeau, namely the decisive “no” win in the 1980 Quebec referendum on sovereignty-association.71 Trudeau took this as a mandate to proceed with major constitutional reform.72 It should also be added that survey data from across the country in August 1980 showed popular support for patriation as well as for constitutional guarantees of human rights and minority language rights. Soon after the Quebec referendum result, a continuing committee of ministers was set up to work through a range of issues for the patriation package.73 The ensuing first ministers conference in September failed to reach agreement, whereupon Trudeau sought to break the deadlock by arguing that the federal parliament could unilaterally approach Britain.74 The process


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was thus shifted over to the Canadian federal parliament, which heard witnesses and deliberated the issues in public and through televised broadcasts conducted hearings.75 For Simeon and Robinson, this “was an experience of Parliament in action which Canadians had seldom witnessed, and it gave the constitution a popular focus that it had not hitherto possessed.”76 The ensuing popular mobilization then also produced a number of changes to the proposals. Several of the provinces took the issue of federal unanimity to their provincial courts, with Manitoba’s Court of Appeal ruling 3–2 in Ottawa’s favor and Newfoundland’s Supreme Court ruling 3–0 against Ottawa and in favor of provincial participation.77 Ottawa was then compelled to take the issue to the Supreme Court of Canada, which stated that Ottawa could legally patriate the constitution unilaterally but that this would also breach the convention of substantial (not unanimous) provincial consent.78 After new first ministers conferences, all the provinces except Quebec signed the Constitution Act, 1982. Quebec has still not signed it (although seventy out of the seventy-five elected members of the Quebec delegation in the federal parliament supported it).79 In Quebec, the Parti Quebecois and nationalist intellectuals characterized the 1982 constitutional package as a “great betrayal”80 and as a major denial of recognition. The patriation event did not qualify as a democratic constitutional moment. The patriated constitution was rejected by the provincial government representative of Canada’s most important minority. But given that there was no legal obstacle to proceed, characterizing this as a constitutional failure hinges on whether it weakened or strengthened democracy. Procedurally speaking, the federal parliament’s important role in the process opened up the system of intergovernmental negotiations, with (as we shall see) clear democratic results.81 But patriation was still no clear break with the synthetic past. The Constitution Act, 1982 In formal terms, patriation resulted from a new Westminster statute, the Constitution Act, 1982, which put an end to any remnant of British sovereignty over Canada at the same time that it gave legal force to a new and more complete fundamental law for Canada (critically including a charter of rights).82 Here London was simply endorsing a text of material constitutional character and color produced by Canadian institutions. Westminster was not granting anything, but simply renounced all future powers over Canada. So there was a contrast between form and substance, but that by itself did not cast any real doubt on the constitutional character of the Constitution Act, 1982.


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The new constitution built on the BNA Act, 1867 and was named the Constitution Act, 1982. There was, of course, no longer a requirement for formal sanction by the U.K. parliament. The most important single change was the introduction of the Canadian Charter of Rights and Freedoms, appropriately situated first in the Constitution Act (part I, sections 1–33). It provides basic civil and political rights, rights to mobility, protections against discrimination, gender rights, linguistic rights, and educational rights. Part II (section 35) refers to the protection of aboriginal treaty rights. Part III sets out provisions to ensure equal opportunities and regional equalization. Part V includes a new procedure for amending the Canadian constitution. Section 92 of the BNA Act was amended to strengthen provincial powers over nonrenewable natural resources. There were no changes in the democratic institutions. With regard to the amending formula, Ottawa had proposed a popular referendum device for the federal government to activate in cases of intergovernmental disagreement. This democratic measure was rejected by the provinces. The ensuing amending formula was based on the so-called 7/50 procedure (consent of the two houses of Parliament, coupled with consent in the legislatures of two-thirds of the provinces with at least 50 percent of the population) plus (governmental) unanimity on a constitutional amendment procedure. Senate consent would no longer be needed for constitutional amendment. But what seems to us fundamental is that the Constitution Act, 1982 was larger than the symbolic affirmation of Canadian constitutional ownership and normalcy. It went beyond signalling (mainly to Quebecers) that Canada was no longer tied to British apron strings.83 Far more consequentially, the Constitution Act, 1982 incorporated a charter of fundamental rights, which marked a major constitutional break, and indeed unleashed a “Charter Revolution.”84 The political purpose of the charter was to entrench individual rights in the constitution and to foster national unity.85 This may be construed as a transformative intent in that it was envisioned from several perspectives as (a) a means of weakening the executive-style governmental imprint that had marked the constitution in the pre-charter era; (b) a vehicle to inject a more citizen-participant constitutional ethos into the constitution; and (c) a means to found the constitution on popular sovereignty. A central goal of the federal government in the constitutional reform process was to alter constitutional dynamics by weakening the ability of the government of Quebec to foster a French-language-based Quebec nationalism. This was to be achieved by creating a common Canadian national identity (albeit with a strong bilingual tenor) and by removing the symbolic ownership of the constitution from the governments and instead presenting it to the people as rights holders.86 The transformative thrust


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was thus both directed at individual empowerment and communal reconfiguration through altered allegiances. The insertion of the charter into the Constitution Act, 1982 symbolically signalled a transformation from a “governments’ constitution” to a “citizens’ constitution.”87 Having said that, the Canadian charter was based on a complex democratic constitutionalism that sought to balance the forging of a common sense of community with group-based and communal difference and distinctness. It offered both special constitutional recognition for a range of groups88 as well as provisions for government actors to opt out of certain Charter of Rights provisions, hence introducing its own unique blend of rights-based constitutionalism and majoritarian democracy through the socalled notwithstanding clause.89 At the same time, by establishing bilingualism as a nationwide commitment and by not permitting governments to opt out of the language provisions, the charter was set up to curtail the fostering of provincial (notably Quebec) nationalism. The Constitution Act, 1982 contained a set of provisions to recognize Canada’s aboriginal peoples.90 This was an important move away from the more-or-less explicitly stated assimilationist policy stance in Canadian Indian policy for a century (never accepted by many Indians, Metis, or Inuits). Explicit constitutional recognition of Canada’s aboriginal population reflected an attempt to address an element of Canada’s constitutional pluralism that had been largely ignored and even suppressed. The new constitution offered some recognition of existing rights and some guarantees of access to and participation in further negotiations. Constitutional provisions thus committed the majority society to reconfigure its terms of coexistence with a historically suppressed and marginalized group, in a process of constitutional negotiation rather than through a clear settlement.91 To sum up, the charter was intended to create a sense of popular sovereignty, through subsuming diversity under a complex notion of democratic constitutionalism that would induce people to understand themselves in multicultural rather than monocultural or classical nationalist terms. The charter (and its aboriginal provisions) aimed at negotiating Canadians’ plural selves within a constitutional framework explicitly anchored in a rightsbased notion of individual autonomy, where governments would retain a central role in constitutional amendment. The upshot was to continue the path of constitutional synthesis. The patriation package nevertheless altered the terms of synthesis: through the insertion of the charter, the working out of Canadians’ plural communal and constitutional visions would take place in the interface of representative assemblies, intergovernmental negotiations, and courts (notably through charter cases and the handling of aboriginal rights claims). This process would also have to be more sensitive to the rights recently obtained in the charter.


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Constitutional Life After 1982 While we saw in the previous section that the process of patriating the constitution was still basically conducted within the intergovernmental (First Ministers Conference) framework, it nevertheless also had a strong social mobilizing and democratizing effect.92 This was, of course, related to Parliament’s role, as well as to the symbolic and substantive role of the charter, which reminded citizens that as rights bearers they could not be content with a system of constitution making in which the heads of government simply negotiated agreements among themselves. Thus, the democratic dynamic of the patriation process coupled with the charter’s insertion in the Constitution Act, 1982 brought to the fore two central questions that were subsequently to dominate Canadian constitutional politics: Who are legitimate participants in the process of constitution making? How can the process be organized to include the legitimate participants? These important normative questions were discussed within a deeply politicized context. The province of Quebec had failed to sign the Constitution Act, 1982 and also declined to participate in further constitutional rounds so that when the First Ministers discussed aboriginal issues in 1983, Quebec was present, but only as an observer. Further, much of the political establishment also outside Quebec was not willing to settle for the status quo.

The Meech Lake Accord A 1984 change in political leadership in Ottawa and Quebec gave new impetus to constitutional change. Conservative prime minister Brian Mulroney replaced liberal Pierre Trudeau in 1984. Mulroney had campaigned on the need to obtain Quebec’s signature on the Constitution Act so as to include Quebec in the constitutional family “with honour and enthusiasm.”93 A new round of reforms that resulted in the 1987 Meech Lake Accord was thus set in motion. The rationale for the Meech Lake Accord was to ensure that the government of Quebec would assent to the Constitution Act and that Quebecers would acknowledge that the constitution recognized their particular contribution to Canada and their distinctiveness, through the insertion of the “distinct society” clause.94 The distinct society clause was intended to be “a powerful constitutional interpretative clause that instructs Supreme Court justices to interpret the entire charter, except sections 25 and 27, [dealing with aboriginal rights and guarantees and multicultural rights, respectively] in the light of this sociological reality.”95 The Meech Lake Accord, while initially a matter of recognizing Quebec’s difference, became a matter for all the provinces. In a series of bilateral meetings, the federal government and Quebec worked out what the other provinces would accept, with the tacit understanding that there would


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be another provincial round afterward to reward the provinces for their restraint in this round.96 The notion that all provinces were equal was reflected in the process of forging the accord (and in the preamble of the accord), in the sense that it was negotiated in a closed setting by the eleven heads of federal and provincial governments.97 The accord had to be ratified by each of these eleven (federal and provincial) governments (with approval by legislature) within three years as stipulated by the new amendment rules. During that period, three provinces and the federal government held elections. The accord was very unpopular, and this was reflected in the election results (in the federal election, the accord was overshadowed by the battle over the free trade agreement with the United States, which returned Mulroney to power with strong support from Quebec). In the province of Newfoundland, new premier Clyde Wells became the effective leader of the anti-Meech forces and rejected it, as did Manitoba. Opposition came from the political left and from many interest groups that had recently come to understand themselves as constitutional stakeholders, most notably women’s groups and aboriginals. Pierre Trudeau also vocally opposed the accord.98 The Meech Lake Accord failed because of strong popular opposition to the elite-based and secretive manner in which it had been forged and because it was based on “an inadequate, outdated constitutional theory.”99 Women’s groups also reacted negatively to the “distinct society” provision for Quebec.100 The leaders who forged the accord in secret and defended it in public were motivated by the constitutional thinking of the pre-charter era, in which the key constitutional stakeholders were governments and in which government executive officials were in charge of constitution making.101 The public reaction, however, was strongly informed by the democratic constitutionalism of the charter and the Constitution Act, 1982, which spoke to citizens as constitutional stakeholders.102 Citizens therefore challenged executive privilege and raised the question of how a democratically legitimate process of constitution making should be conducted. The fate of the Meech Lake Accord illustrates that a society mobilized by the norms of democratic constitutionalism will not accept a theory and a system of constitutional change that privileges governments and excludes citizens. Indeed, once the genie of democratic constitutionalism is brought out of the bottle, it cannot easily be controlled and even less be put back in. That, we will insist, is a lesson that Europeans should take to heart.103 Prime Minister Mulroney, Quebec nationalists, and numerous accord supporters presented the failure of the Meech Lake Accord as a major betrayal of Quebec.104 Aboriginals were also pressing for self-government; with the accord’s self-government provisions dashed along with the rest of it, they thus sought another constitutional round.105 The same applied to Quebec. Barring a new agreement, Quebec’s political leaders announced


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that it would reconsider its role in the federation, with a possible secession as one option. The centuries-old issue of addressing Canada’s constitutional pluralism remained a central item on the constitutional agenda but would now have to be addressed in a constitutional context to which Canadian citizens attached much stronger democratic expectations. The Charlottetown Accord The next major effort at formal constitutional change, which led to the Charlottetown Accord, was far more open and consultative than even the patriation process had been. Those in charge recognized that a more open process than the Meech Lake round was needed.106 But when they launched the process, there was no plan to place the package before the public for direct approval. The need for that step became evident only after the package had been negotiated. Thus, “the development of constitutional proposals was completely detached from the referendum process,”107 another clear parallel to the EU’s Laeken process, as we have seen in chapter 4. The dynamic of the Charlottetown process emerged as a result of a perceived failure; it was far more open in that it was an explicit attempt to go beyond negotiation between governments only. However, the process was also greatly shaped by the Quebec ultimatum. The Charlottetown process was both more intense and far more comprehensive than Meech Lake. It reversed the Meech Lake sequence in the sense that it started with a constitutional debate involving parliamentary committees and regional constitutional mini-conventions and, most importantly, involving the general public at each site.108 Following consultation, the documents and proposals were handed over to the heads of government (with aboriginal representation present), who negotiated among themselves.109 During the quite open and intensely debated Charlottetown process, a very large number of items were thrust into the resultant accord. In terms of symbolic, substantive, and institutional changes and in normative terms, the Charlottetown Accord was far more comprehensive and complex than its Meech Lake predecessor or even the 1982 patriation, for that matter. The Charlottetown Accord expanded the Meech Lake principle of recognition of Quebec’s distinct identity to include aboriginals.110 In fact, while initially framed as an effort to rectify the alleged historical injustice to Quebec, the Charlottetown Accord came to revolve as much around what people saw as a deeper and more profound case of historical injustice: the plight of Canada’s aboriginal peoples.111 This recognition was to be balanced with equality protection and diversity awareness along gender, ethnic, racial, provincial, and linguistic lines. The accord thus ended up as a unique attempt to balance four ideas of equality: of citizens, of provinces, of two na-


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tions, and of aboriginals. “The product was a document that could appeal to no clear conception of justice.”112 Canadians were then asked to accept or reject this most substantial change to Canada’s institutions since its inception in two popular referenda held simultaneously in the Rest-of-Canada (ROC) and in Quebec. This event prompted Russell to note, “On 26 October 1992 the Canadian people, for the first time in their history as a political community, acted as Canada’s ultimate constitutional authority.”113 The accord was rejected in both referenda. Thus the Canadian people (not simply Quebec) could apparently only provide a negative constitutional clarification.114 The accord offered constitutional recognition to what divided Canadians as much as to what kept them together. Many of the people who rejected the accord believed they had more in common than was reflected in the accord.115 It was such a comprehensive package of different types of reforms that very few supported the entire reform package (only 12 percent agreed with all six proposals).116 Further, whereas Prime Minister Mulroney argued early on in the process that it was “Canada’s last, best chance for survival,” most citizens did not succumb to such threats. Many (45 percent) reckoned that there would be a further round of constitutional talks.117 This did not happen. The narrow victory for the “no” side (50.6 percent) in the 1995 Quebec referendum underlined the need to clarify the procedures for secession set out in the Supreme Court’s 1998 secession reference and the Clarity Act.118 Since then, decision makers have sought to leave the constitutional question in abeyance. Higher barriers to constitutional change have also emerged as a consequence of the federal government’s “loaning” its veto to the provinces, many of which have introduced referendum requirements for constitutional amendment. “The public, infused with a rights consciousness based on its stake in the constitution, is unwilling to defer to the leadership of governments which the amendment formula presupposes.”119 Constitutional Catharsis? Canadian constitutional patriation had a transformative intent, but this did not result in a successful constitutional moment. The postpatriation process unfolded as a major struggle for recognition. The constitutional transformation was laden with conflict. Distinct and competing conceptions of political community were mobilized, but the process never degenerated into violence. It is on that basis that we claim that the process is best understood as an unwieldy, cathartic process of constitutional clarification. With constitutional catharsis, we think of a particularly intense—even traumatic—process of peaceful constitutional contestation with certain


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democratic effects.120 Catharsis was sparked through the effort to break the intergovernmental logjam by opening a closed system of constitution making to public scrutiny and participation. But citizens were only partially let into a process still organized within the general ambit of intergovernmental relations. Citizens experienced unstable and unpredictable openings and closings of the process that were not justified by a proper constitutional theory and that bred distrust. Citizens became variously spectators to and direct participants in high-stakes politics marked by first ministers’ power games, strategic action, threats (of secession and breakup) and brinkmanship. Citizens saw this system as bargaining over their rights, as redefining issues and concerns, as organizing certain concerns in and excluding others, and as elites using the constitution as a mere strategic resource in their haggles. This process, however traumatic, nevertheless had clear democratizing effects. It also took place in a setting with agreement on the fundamental liberal principles of democracy and the rule of law.121 The first effect was a reconfigured conception of justice: weak and disenfranchised groups received some form of constitutional recognition. Canada’s constitutional transformation thus helped to shift the standards of justice, at least those articulated in intergovernmental negotiations.122 In the pre-charter period these were shaped by the perceived need to accommodate Quebec nationalism. Now this had to compete with the need to rectify historical injustice to aboriginals and to accommodate demands from other groups in Canadian society (i.e., women’s groups, gays and lesbians, and disabled people). As such, it appears that opening up the process has helped to rank conflicts and concerns more in line with people’s intuitive conceptions of justice (rectification of historical and contemporary injustice).123 Second was heightened constitutional reflexivity. The Canadian political system appears to have developed clearer principles on such issues as Quebec separation. The Supreme Court deemed unilateral secession unconstitutional but still possible, provided it met with a set of procedural requirements.124 These pertained to standards of justice as well as to the need for deliberation and consultation. In this question, after three decades of attempts at accommodation, it was recognized that there was a need for a democratic framework for secession. In this matter, Canada preceded the EU. Finally, more inclusive democratic norms permeate the political system: Quebec separatists have increasingly justified separation in such terms, to the extent of labelling Quebec a multicultural society and hence echoing the multicultural character of Canada. Finally, we can observe that the constitutional transformation did not put an end to the accommodating style of politics associated with the Canadian intergovernmental approach, but it gave it a more principled foundation.


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CANADIAN SYNTHETIC LESSONS FOR EUROPE? Through patriation, Canada underwent a major constitutional transformation where it did away with the remaining vestiges of the initial derivative constitutional order. The charter was key in the constitutional transformation and enjoys great popular support across the country.125 And still, we have seen that patriation was peculiar in constitutional terms, looking more like a constitutional moment manqué than a full transcendence of the peculiar Canadian blend of constitutional synthesis. Nonetheless, the “citizens’ constitution” was a major symbolic change; it empowered citizens and produced changes in interinstitutional relations, along both horizontal and vertical lines, all with democratic implications. And all of this was achieved through ratification failures, not constitutional successes. We thus have the somewhat ironic result that Canada’s patriation, which failed to obtain support from all major constitutional stakeholders, has effected a major constitutional transformation through the broadly accepted Canadian Charter of Fundamental Rights. This suggests that there is less of a parallel between the EU and Canada in this second Canadian postpatriation phase. The EU seemed to seek to undergo a similar constitutional transformation at Laeken, but this was rejected in referenda in France and in the Netherlands. Indeed, national governments found ways and means—including dressing most of the Constitutional Treaty as a mere reform treaty, thus avoiding politicization of the ratification process—to close the ratification crises by getting fundamental reform legally enacted in the form of the Lisbon Treaty. But whether this treaty, accepted by all major (governmental) stakeholders, would enjoy similar popular support is something on which the jury is still out. After each major constitutional effort in Canada (1982) and the EU (Laeken process), the elites reverted back to bare-bones intergovernmental/ first ministers types of conferences (Canada, Meech Lake, and EU, Lisbon). The important difference was that in Canada, the Meech Lake Accord met with strong public opposition, which killed it, whereas in the EU, the European Council dropped the constitutional label and got Lisbon passed, effectively weakening the association between EU democratization and democratic constitutionalism. Indeed, the Lisbon agreement leaves the project of EU democratization on a much weaker normative foundation. It is therefore useful to pay attention to the important difference between Canada and the EU, namely the long-term effect of the Charter Revolution despite ratification failures, plus the robustness of the democratic institutional framework. First, the Charter Revolution took root because it met with a high level of citizens’ acceptance, even in Quebec, which has still not formally signed


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the Constitution Act, 1982. This success allowed the charter to foster a rights-based (and in allegiance terms, thin and reflexive, and therefore also more tenuous) constitutional patriotism, based across the country; it also instilled a sense of democratic ownership of the constitutional construct in place. Further, the state frame also gave normative credence and served to stabilize the process. Constitutional turbulences occurred within a setting of already established representative-democratic government at both levels. These arrangements, as strong publics, worked as important democratic enabling devices as well as important democratic safety valves. They provided and interpreted information, served as vehicles for critical scrutiny of power holders, were for the inclusion of persons and arguments, and served as platforms for political mobilization. They dealt with the strong public uproar that built up against the closed and secretive system of constitution making through FMCs. Indeed, the robust institutionalization of democratic institutions rendered palpable the continued relevance and salience of familiar constitutional-democratic standards. At the same time, this system also contained important mobilizing and sanctioning devices with which to limit centrifugal forces. The Canadian process of constitutional catharsis was driven by actors with competing constitutional conceptions and without an agreed-upon theory of how the process should unfold. This description should strike a chord with observers of European constitutional politics. Still, the Canadian case shows that such a volatile process can still contribute to constitutional clarification. Indeed, constitutional catharsis has allowed Canadians to achieve four major things: 1. A strengthened allegiance to basic democratic constitutional norms and procedures. 2. A set of constitutional precepts within which continued contestation over polity and community can take place without destabilizing the polity (indeed, the secession judgment of the Supreme Court and the Clarity Act contain provisions for democratic secession). 3. An altered approach to community coexistence. The nationalist modus is one of a largely taken-for-granted sense of allegiance. Canada’s is instead marked by an onus on contestation and reflexivity; thus the system appears more attuned to voice than to loyalty.126 4. A sense of the risks of judicialization; constitutional catharsis has made crystal clear the central importance of properly entrenched representative government, crucial in providing clear political steering and in helping to rein in judicial derrapages, which could have serious democratic implications. On such a basis, we contend that the Canadian postpatriation transformation has furthered constitutional synthesis and indeed has helped in stabi-


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lizing synthesis. The charter amplified the constitutional-symbolic status of fundamental rights so that Canadian democracy is now about reconciling democratic majoritarianism with basic individual rights in a rather synthetic fashion (a binding charter of rights tempered by a “notwithstanding” clause to accommodate provincial variation when provincial legislatures take the politically risky step of declaring some charter rights inapplicable to provincial legislation).127 We saw this also in the charter’s language rights that sought to reconcile French and English diversity through a nationwide commitment to bilingualism, although the strong Quebec reaction has also shown that the effort was not successful. And we saw it in the major attention that has been paid to aboriginal (First Nations) issues and concerns. This is indeed the most ambitious aspect of Canada’s constitutional development, namely the effort to develop a viable synthesis based on a complex and composite conception of underlying community.128

CONCLUSION In this chapter we have seen how Canada’s constitutional arrangement has changed. The initial prepatriation period marks the gradual process of removing it from the colonial anchor. This was a difficult process because of domestic constitutional pluralism and contestation over type of polity and nature of community, with occasionally deleterious effects. It appeared almost as a constitutional transformation in reverse and helped to keep alive a penchant for constitutional avoidance. Domestic and international developments from the 1960s onward rendered this situation increasingly untenable, which resulted in the move to patriation in the early 1980s. The charter excepted, the constitutional substantive changes were quite limited. But the charter has been key to Canada’s subsequent constitutional transformation. We depicted the process as one of constitutional catharsis to underline its contested but also eventually democratizing character. Canada attests to the difficulties of reconciling constitutional pluralism; it also testifies to the central role of proper democratic institutions. However gradual, the entire process has been about establishing an institutional-constitutional apparatus that can put a democratic mark on the complex process of managing pluralism and diversity.


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Conclusion The Future of a Constitutional Experiment

Until now, we could reflect and describe things. From now onwards, action, always adventurous and risky, must take the place of meditation. —Altiero Spinelli, La Sfida Europea

BRIEF SUMMARY OF THE ARGUMENT We started this book with three puzzling questions. The first was: What kind of polity is the European Union? Is it an international organization, a state, or something else? Second, what kind of constitution does the Union have? Are the founding treaties a constitution of sorts? What then of the role of national constitutions in European integration? Third, what are the Union’s legitimacy credentials? Is the Union democratically legitimate? If so, how can that be reconciled with the European Parliament’s circumscribed powers (given that the EP is the only body that can claim direct democratic legitimacy at the Union level)? Or is the European Union a new breed of polity that derives its legitimacy from nondemocratic sources, from a flexible, dynamic, interactive, noncoercive coordination of public institutions? These puzzles, we have shown, can be properly addressed only with the appropriate analytical tool kit. The profound contestation over the Union’s character makes this an important strategic choice. We found that it made no sense to abandon standard constitutional categories but that it was still necessary to sharpen the standard vocabulary of democratic constitutional law. The debate on the European constitution was marred with confusion due to the failure to distinguish properly among the three conceptions of 207


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the constitution (formal, material, and normative). But introducing this distinction was not enough to untangle the confusion. The Union is highly dynamic and has exhibited a remarkable growth since its inception. This required special attention to constitutional dynamics. The problem here is that the Union has not unfolded in a manner comparable to the development of a state; therefore, we needed conceptual categories that could take proper heed of that. What appeared most suitable was a threefold distinction among constitution making, transformative constitutionalization, and simple constitutionalization. Different democratic constitutional traditions exhibit different constitutional dynamics, with the two main traditions being the revolutionary and the evolutionary. Neither appeared to fit the Union’s dynamic development very well. It was clear that when we held the Union up against the established constitutional categories, we could not get a clear answer to the question of the Union’s constitutional status and character. The real issue at stake was whether it was possible to imagine a democratic constitution beyond or above the nation-state. That was a matter for constitutional theory. Was there a suitable theory? We have shown in chapter 2 that there were several inspirational theories we have drawn on in the development of the theory of constitutional synthesis. Theoretical Innovation The theory of constitutional synthesis provides a distinct approach to the establishment of a democratic constitution that on the one hand is a clear alternative to both revolutionary and evolutionary constitutionalism and on the other hand is configured to the distinctness of the EU experience— the development of a constitutional order in a setting of already established constitutional states. Constitutional synthesis provides the democratic constitutional grammar to integrate through constitutional law already established constitutional states (that is precisely the point of the constitutional practice of European integration). We have shown that constitutional synthesis is characterized by three main features. The first is that instead of a revolutionary act of constitution making or the slow growth of constitutional conventions, constitutional synthesis is launched by an act wherein national constitutions are seconded to the role of common constitutional law. Synthetic constitutional founding requires fewer political resources (popular commitment and engagement) than does revolutionary founding and is also much quicker than the evolutionary route. The price to be paid is that instead of an explicit set of constitutional norms, the founding treaties reflect only a limited set of norms, while the bulk of the common constitutional law remains implicit, a regulatory ideal to be fleshed out as integration proceeds.


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The second feature of constitutional synthesis is that the supranational legal order goes hand in hand with a supranational institutional structure. But the latter is only partially established at the founding because the participating states deny the supranational institutions the right to form a new supranational state. Instead, a more complex process is unleashed where bits and pieces of national institutional cultures and structures are uploaded to the supranational level in processes of emulation, adaptation, and even experimentation. This entails that constitutional synthesis can be described as the combination of normative synthesis and institutional consolidation, two processes with rather different inner logics. While normative synthesis exerts a centripetal pull toward homogeneity, institutional consolidation is a more complex process with strong centrifugal elements; in this process the constitutional plurality of the constituting states becomes wired into the supranational institutional structure. The third feature is that the regulatory ideal of a single constitutional law goes hand in hand with respect for national constitutional and institutional structures. This entails that whereas supranational law is one, several institutions apply the supranational law in an authoritative manner. The peculiar combination of a single law and a pluralistic institutional structure results from the fact that there is no ultimate hierarchical structuring of supranational and national institutions; it is compounded by the pluralistic proclivities of institutional consolidation at the supranational level. Organizationally speaking, constitutional synthesis is best understood as embedded in a fragile constitutional field with far weaker coordinating and integrating mechanisms than those of a state. Furthermore, the unavoidable transformation of national institutional structures as integration proceeds puts into question the constitutional conventions that structure relationships among national constitutional institutions (which is the least explored side of the creation of a common constitutional field, as we argued). These three features of constitutional synthesis lead us to identify the peculiar constitutional dynamics of synthetic integration in a threefold sequence: (a) a synthetic constitutional moment, where the polity is created and national constitutions are seconded to the role of common constitutional law; (b) a two-pronged process of transformative and simple constitutionalization, through which the constitutional nature of the polity and its law is internalized and the regulatory ideal of the common constitutional law is fleshed out; and (c) a stage at which the inner tensions within synthesis coupled with the vulnerability of synthetic integration to external shocks create pressures to undertake explicit fundamental reform. In that regard, we clarified why the success of synthetic integration breeds its own countervailing forces (endogenous limits to integration, stemming from the temporary democratic license that the regulatory ideal


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of a common constitutional law provides) and why synthesis is especially vulnerable to exogenous factors (shocks with differential and fragmenting effects on the field). The theory was developed to make sense of the European experience, but precisely because it is a theoretical construction there is the issue of suitability. How applicable was it to the European setting? Could it make sense of the Union’s development? To address this we had to consider the Union’s constitutional development in light of this theory (chapters 3 and 4). Simply holding the theory up to the Union’s development to consider goodness of fit is necessary but not sufficient to our endeavor. The further important question was what headway it would make in terms of shedding light on the many puzzles that mark the Union’s complex constitutional nature and status. Further, if synthesis really marks a distinct constitutional path, then it might have applicability beyond the EU. To address that, we examined the theory in relation to the case of Canada. The European Synthetic Case When applying the theory to the European case, we were able to identify a synthetic constitutional moment, specifically linked to the integration clauses that were inserted in postwar European constitutions. The founding treaties created the institutional and normative structures that would render integration through constitutional law possible also across borders, in itself a necessary precondition for the effectiveness of national constitutions. Two world wars in one generation had rendered painfully clear to Europeans that autarchic democratic constitutionalism, democratic constitutionalism in one single country, was no longer a viable option. The structure that was wrought in 1951 and 1957 was the foundation for the constitutional law of the European Union effected as it would be through the collective of national constitutions. We then proceeded to reconstruct the first three decades of European integration and found this to qualify as a two-pronged process of constitutionalization with clear synthetic traits. On the one hand, supranational and national institutions rendered the constitutional color and dignity of the Union explicit. However, it should be added that there were clear builtin limits on this process from the outset: the onus on preserving the states implied that synthesis started from a narrow range of policy fields within an institutional structure strongly controlled by the member states. A critical issue was therefore whether it would expand in breadth—to new policy areas—and whether the policy areas it revolved around lent themselves properly to democratic constitutionalism. There was no doubt, as is well documented, that the European Court of Justice and ordinary national courts played an important role in entrenching synthesis. But there


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was also an important process of expanding policy substance through common policies, with the Union’s political institutions playing a central role, especially the Council of Ministers. First was the common agricultural policy, embryonic common economic policies came later, and a whole array of competences were added from the early seventies onward, even if many of these efforts have created problems and/or are unfinished processes. Integration through substantive policies therefore plays an important role in the story. In this period, the regulatory ideal of a common constitutional law was progressively fleshed out, propelled at first by the program toward a single market enshrined in the treaties, and later by the aim of realizing the wider political objectives of the European Union. The relative success of both processes of constitutionalization brought home the actual implications of European integration. But when the two oil crises hit and the relatively benign hegemony of the United States changed face with Nixon’s and Kissinger’s policies, constitutional synthesis was thrown off balance. These differentiating shocks weakened the affinities among the national constitutional orders, something which rendered more feeble the synthetic thrust. Some member states flirted with rolling back the common market by deploying social policies with protectionist effects. And, less obviously but more decisively, national socioeconomic constitutions shifted away from the consensus that had emerged since the late sixties, once Germany revised its ordoliberal macroeconomic policies and had turned more “Keynesian.” The coming to power of Margaret Thatcher rendered the growing divergence permanent, as it pushed British socioeconomic policy from one of the most interventionist to the more neoliberal in a spectacular volte-face only possible in such a short time given the majoritarian political constitution that Britain has. But there were also many successes of constitutionalization, including the direct election of the members of the European Parliament. When this took place, the initial limited democratic license in constitutional synthesis became an important constraint. The European institutional structure now included an institution that was directly elected by the citizens and with a clear vocation to forge a general European will but clearly institutionally incapable of doing so in a wholly democratic manner. The cumulative pressure of external shocks and inner contradictions opened the door to the long season of fundamental reform in the European Union that we also described in chapter 3. As we highlighted, the process unfolded in the same contradictory fashion that had come to characterize European integration at large. Fundamental reform oscillated between two visions: on the one hand, reforming synthesis through reengineering the relationship between the supranational and the national constitutional norms and institutions; on the other hand, transcending synthesis through democratic constitution making and a more-or-less federal reconstitution


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of the Union. The result was a stymied constitutional process, where the European political leaders effectively repressed the constitutional color and import of the reforms only to see constitutional issues reemerge with a vengeance. Similarly, the many cracks in what remained an intergovernmental process of reform resulted in a progressive constitutionalization of IGCs. The substantive policy decision of creating an imperfect monetary union, or a federal monetary policy coupled with national fiscal policies but without further progress toward federal political union, had two important effects. On the one hand, it stymied the process of constitutional synthesis that had to proceed within a policy range and realm that was not overly conducive to democratic constitutionalism. On the other hand, it resulted in the slow but steady emergence of a third reform vision predicated on disembarking from the Union as a democratic constitutional project. In practical terms, an imperfect monetary union was coupled with a whole array of new procedures and mechanisms that were not structured according to the grammar of democratic constitutional law. Multilateral budgetary surveillance within the Union at large, and especially within the euro area, as well as the “open coordination” of social policies were characterized by vague structures of political responsibility, unclear democratic accountability, and the explicit decision to opt for “moral” integration instead of legal coercion (the only exception being the sanctions contemplated in the Growth and Stability Pact, which were, however, included more for symbolic than actual purposes). But they became popular among the European political leaders and generated hype among scholars. It was thus by the end of the century that the “governance” turn of European integration started to be transformed into a full-blown alternative to reforming synthesis and democratic constitution making. This was the historical background for the Laeken and Lisbon reform processes. In chapter 4 we assessed their implications for the process of European integration as well as the actual changes that the Treaty of Lisbon has brought to positive Community law. On the basis of a detailed reconstruction of the events, we confirmed that in very broad terms, the main impulse behind Laeken was to transcend synthesis by opting for democratic constitution making. The first signs were Declaration 23, annexed to the Treaty of Nice, and notably the Laeken Declaration, 2001, which implicitly admitted the limitations in the IGC method of treaty reform. But as we showed, it was the Laeken Convention that appropriated an explicit constitutional mandate, which was confirmed in the negative by French and Dutch voters in the treaty ratification referenda in the spring of 2005. And yet we showed that the Laeken process was much more mixed than it may appear at first sight. The convention’s constitutional impetus unfolded in a setting still very much controlled by the formal deciding body, the European Council, through the IGC. This greatly


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affected the convention’s operation and results, the draft Constitutional Treaty, which was further toned down in the protracted process of getting it passed in the IGC. On the basis of an equally detailed reconstruction, we found that the Lisbon process was guided by the overarching vision of reforming synthesis to render the European political order stable. It was not possible to obtain consensus among Europe’s political leaders that such stability should be anchored in a document with explicit constitutional salience. Thus, with Lisbon, Europe’s political leaders formally rejected democratic constitution making and underlined that the Lisbon Treaty did not have a constitutional character. This was also clearly reflected in the procedure: the option of reconvening a convention was ruled out, and there was a clear attempt to avoid politicization of the ratification process through popular referenda. The rejection of the constitutional label was intended to lower the political profile even of the parliamentary ratification option. We found that Lisbon was also influenced by the third vision of reform, namely governance. The result was a highly ambiguous constitutional situation. First, we noted that the reform process was not structured as the standard IGC but in reality also had sought to avoid even the IGC. Second, the Lisbon Treaty copied most provisions of the Constitutional Treaty (duly cleansed of constitutional language and symbolism) but combined these with a series of wholly unprincipled agreements (which we found it necessary to label with the Italian term componenda), including the British and Polish opt-out from the charter, the enlarged British and Irish opt-outs in justice and home affairs, and the postponement ad calendas polonias of the double majority rule of voting in the Council of Ministers. These features were fully confirmed in the protracted and convoluted process of ratification. New compromises were necessary in order to overcome the first negative in the Irish referendum and to navigate around the Czech president’s opposition to signing the treaty. The outcome was thus a treaty formally resembling the Constitutional Treaty, but with a very thin basis of democratic legitimacy, and whose passage has cast serious doubts over the Union’s commitment to democratic constitutionalism. Thus, the two substantive chapters (3 and 4) have shown that the theory of constitutional synthesis makes sense of the Union’s constitutional development. Note that this does not amount to claiming that the Union’s constitutional development has consistently and systematically unfolded as a synthetic constitutional process. Clearly it has not, and we have shown where and when that has not been the case. Part of this can be put down to tensions intrinsic in the synthetic approach; part of it stems from external factors and influences; and part of it stems from the Union’s also starting to veer off the constitutional path through the partial embrace of governance.


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After having shown that the theory was a useful reconstructive device, we proceeded in chapter 5 to consider how it could make sense of the several riddles that have beset European constitutional practice, namely the two major legal riddles that muddle constitutional thinking and practice. Those riddles concern (a) the genesis of Community law (how is it possible that what formally were international treaties have come to be acknowledged as constitutional in actual practice?) and (b) the primacy of Community law (how is it possible that a legal order that seems logically and normatively derived from national constitutional orders pretends to prevail over national constitutions?). We sought to demonstrate that constitutional synthesis solves both these two riddles. First, we claimed that the terms in which conflicts between European and national laws are constructed obscure the continuity between European and national constitutional law. European constitutional law is neither separate nor fully autonomous from national constitutional laws: it is a collective outgrowth whose main normative point is to allow integration through constitutional law also across borders, not only within borders. The creation of a supranational polity without a revolutionary constitution-making act could be legitimate only if the new legal order was filled in by national constitutions, seconded to the collective role of common constitutional law. There is thus no paradox in the constitutional nature of Community law, as the latter frames the common constitutional field within which national constitutions integrate. Second, the primacy riddle results from insufficient attention to the actual normative structure of European constitutional conflicts. Constitutional synthesis helps us to distinguish among three varieties of conflict: purely horizontal conflicts (where national norms enter into conflict outside the scope of Community law, and it solves the conflict that expands the breadth and scope of European law); mixed conflicts (where national norms enter into conflict concerning the proper fleshing out of the regulatory ideal of a common constitutional law, a type of conflict intrinsic to the progressive constitutionalization of Community law); and vertical conflict (where supranational law enters into conflict with the collective of national constitutions, bred by the transformative constitutionalization of the Union in the late seventies and early eighties, especially by the new configuration of economic freedoms supported by the European Court of Justice). This helps to clarify European constitutional practice. While it seems sensible that horizontal and mixed conflicts are basically decided at the supranational level (at the judicial stage, by the European Court of Justice), vertical conflicts require self-restraint on the part of the supranational institutions. We have thus shown that the theory can shed light on the two central riddles that have plagued European constitutional theory and practice. The


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third and final step was to consider transferability to other contexts. This, of course, meant that we would have to understand the theory at a higher level of generality, as no other polity would really much resemble the Union in constitutional-institutional terms. The critical issue was not similarity as such, but reliance on a synthetic constitutional approach. In chapter 6 we discerned the synthetic character of the Canadian constitutional experience, broken down into two historical periods. The first was opened with the founding through the British North America Act, 1867, which established the polity through a federation made up of three previous colonies that were formally granted the rudiments of a constitution by the colonial mother, the U.K. The second was set off by the Constitution Act of 1982, through which fundamental laws were patriated and Canada became an independent polity, cutting constitutional ties with the United Kingdom. Canada’s constitutional experience exhibits clear parallels to that of the EU. In both cases, a central forming impetus was a major war (in the Canadian case, the American Civil War). Both the EU and Canada were established through unconventional constitutional acts (the grant of a constitution by the imperial power and an international treaty laying the basis for a multinational constitution), and both legal orders were intentionally pluralistic. Their subsequent constitutional development also exhibited similarities. In both cases, explicit constitution making was very limited. Both drew heavily on intergovernmental mechanisms so that much of the politics of constitutional reform took place within closed and self-contained processes of negotiation and bargaining among government executives. In both cases there was a challenge of ensuring direct democratic sanction of the constitution. But there were important differences. The British North America Act, 1867 was more of a constitutional document than the founding treaties of the Communities, and Canada was established with a full-fledged system of representative government at both major levels of government. Still, we have shown that the fundamental status of the BNA Act was seriously contested and even relativized not only by some of the provinces, but also by the judicial chaperone, the U.K. Judicial Committee of the Privy Council. That was in some contrast to the rather smooth transformative constitutionalization of the Communities in the first three decades, led and supported by the European Court of Justice. For all the similarities between the EU and prepatriation Canada, the constitutional path followed by the two polities has diverged over time. The Constitution Act, 1982 not only rendered Canada an independent country and consolidated its fundamental laws, but also reconfigured its constitutional law by the inclusion of an explicit bill of rights, the Canadian Charter of Rights and Freedoms. But we showed that Canada did not abandon the synthetic path through patriation. The new constitutional documents were openly “pluralistic” (the charter combining the universalistic traits of a rights declaration with a “notwithstanding” clause that


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enabled provincial variation), but the act failed to be ratified by Quebec. This opened a long and unfinished Canadian constitutional season, where governments tried to reappropriate constitution-making power in the Meech Lake Accord but were rebuffed by a citizenry that had been galvanized by the Charter of Fundamental Rights into the role of holder of sovereignty. There is an obvious parallel between the patriation–Meech Lake sequence in Canada and the Laeken-Lisbon sequence in the EU. The main difference is that in Canada the Meech Lake sequel, the Charlottetown Accord, was a real attempt to open the process but failed partly because it was seen by many to be overly geared to accommodate Canada’s pluralism. The obvious difference, then, is that in Europe government leaders can manipulate symbols and change constitutional philosophy with apparent ease whereas in Canada, when government leaders sought to retake control of the process in the postpatriation period, the new, more democratic conception of the constitution had citizens reject the accord. The net effect of patriation for Canada was that it pushed synthesis back onto the democratic track, which appears less likely in Europe at the time of this writing.

THE EUROPEAN LEGITIMACY-POLITY-CONSTITUTION CONUNDRUM In this section we will draw on the findings of the book to shed light on the kind of polity the European Union is, as well as conclude on the character of the Union’s constitution and its legitimacy credentials, all through the vantage point of constitutional synthesis. What Kind of Polity? What can constitutional synthesis say about the polity puzzle? If the Union is not a state and is not an international organization, what is it? Our short answer is that the Union is a constitutional union of already established constitutional states, or in shorthand, a synthetic polity. By that we mean a pluralistic political community which is, however, integrating through constitutional law, or a polity where the regulatory ideal of a single constitutional law (more or less fleshed out in concrete common constitutional norms, depending on how much integration and/or disintegration has proceeded) and the progressive creation of a supranational institutional structure go hand in hand with the maintenance of separate national constitutional identities and institutional structures. On such a basis, a synthetic polity might seem a baroque construct, albeit one aimed at overcoming the challenge of postnational integration: how to integrate when the preconditions for a revolutionary constitution are not there and


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when reliance on the growth of an evolutionary constitution is not only risky but requires considerable time, which is not at our disposal. That circle can be squared through synthesis. The European Union as a synthetic polity is pluralistic in a double sense. First, it is pluralistic because there is one single European constitutional law but a plurality of institutions that can interpret and apply this single law in an authoritative manner. Among courts, that means that both the European Court of Justice and national constitutional courts can articulate authoritative views about the contents of European constitutional law. This is so because supranational and national institutions have autonomous existence; while the law is integrated in one single legal order, institutions are not structured according to a hierarchical structure. So there is nothing hierarchical about the relationship between the European Court of Justice and national constitutional courts, but also for that purpose between European and national parliaments, and so on. This is why European constitutional conflicts are not only about competences but also about visions of European law and of the European polity; all of which are authoritative. What was at stake in Viking, for example, was not who was competent for what as much as what kind of socioeconomic identity the European Union as a whole has; deciding on workers’ rights in Finland when in conflict with the rights of holders of capital cannot be only a Finnish problem. Second, it is pluralistic because of the peculiar process of institutional consolidation of the European Union. The supranational institutional structure was close to an empty space before the Paris Treaty (indeed, one could find the ruins of the League of Nations1 and some embryonic institutional structures created in the different integration initiatives launched after World War II, as the Council of Europe, the OEEC,2 or the Western European Union). It was then partially established in the founding treaties and was completed over time. This makes the Union’s institutional structure deeply pluralistic, as different institutional actors have fought to gain a hold over it, and their cultures, role conceptions, and traditions have been grafted onto organizations, sectors, and segments in a rather patchy manner. The theory of constitutional synthesis thus designates the Union a synthetic polity. This captures another core trait of the Union, namely its dynamic character. A synthetic polity is always in process, its member states integrating (or disintegrating!) through constitutional law. The European Union is made up of a supranational system of government embedded in a constitutional field. The field makes up the supranational structure and the member states. The latter are transformed through their mutual interaction and through the effects of the joint governmental structure, but precisely because these components are coded in the basic constitutional principles that mark the member states, there is no real transcendence of the state form as such.


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A central element of the Union’s dynamism comes from the addition of new members, through so-called enlargements. The two latest rounds of enlargement since the turn of the millennium have added twelve new Member States and greatly increased the Union’s legal, institutional, social and cultural diversity. The act of boundary drawing and the conditions under which a polity incorporates (and excludes) new members yield important information on the polity’s character and self-conception. The theory of constitutional synthesis has a distinct take on the character of and the conditions under which a process of enlargement (EU-speak for inclusion of new member states) will unfold. Synthesis underlines that this is a process that shapes the member states and also recursively works on the scope for and the pattern through which the very process of synthesis itself can proceed. Once one or several new members are included, their systems enter into the synthetic equation, which then also changes. The material from which a further process of synthesis will unfold changes so that the very process of finding synthesis is reconfigured. In that sense, the Union’s entrance requirements for new applicants and the long and arduous process of vetting that these are subject to are also intrinsic parts of constitutional synthesis. As noted, it is a necessary requirement for a process of synthesis that the constitutional raw material from which the synthetic process operates share certain basic similarities. In that sense, entrance requirements and a process of ensuring compliance with such for every new applicant is intrinsic to synthesis. If the Union had been a truly pluralistic entity, there would never have been the need for such requirements. Further, as we also know from the European case, as the process of synthesis has unfolded, so have the requirements tightened,3 all of which should be expected from a synthetic process but not from one marked by constitutional pluralism. The inclusion of new members in turn works itself into the broader operation of the Union. We see this in the way in which the process of constitutional synthesis drives the progressive ascertainment of common constitutional standards that contain pressures on national constitutional norms to align themselves with the contents of Community constitutional law, in turn reflective of what is actually common to the member states. Taken together, these factors set the Union apart from both state and international organization. The ideal of a single constitutional law, encompassing both the supranational and the national level (an unavoidable consequence of the doctrine of direct effect of Community law, as we pointed out in chapter 3), renders it implausible to characterize the Union as a mere international organization. It also explains why the Union’s legitimacy basis is fundamentally democratic, even if derivatively democratic. At the same time, the Union lacks core state vestiges, is not hierarchically structured, and exercises de facto territorial control through the member states. Thus, even if it has statelike traits, it is not a state. Neither is it a


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poststate transnational network-type arrangement.4 Thus we can conclude that constitutional synthesis does not dissolve or transcend member states as state-type entities, but it aims at reinforcing the central integrative role played by national constitutions. Synthetic integration is integration through constitutional law, not governance. So what kind of polity is the European Union? A synthetic polity. Which Constitution? In the first chapter we distinguished among three different conceptions of the constitution: the formal, the material, and the normative. In reconstructive terms, this distinction allowed us in chapter 1 to conclude that the Union has a material constitution (a set of norms that in actual social practice define the basic normative framework, institutional structure, and decision-making setup of the European Union), seems to lack a formal constitution (even if after the solemn proclamation of the Charter of Fundamental Rights, and now the Lisbon Treaty, despite the alleged nonconstitutional nature of the reform process through which it was elaborated and of the document itself, we are close to a written European constitution), and it is contested whether it has a constitution in a normative sense. The Union does not have a constitution that deserves its name, namely a constitution with the equivalent democratic legitimacy credentials of, say, the Italian or the French constitutions (and clearly after reunification, the German constitution). In more critical terms, this threefold conceptualization allowed us to go beyond the polemics about the European constitution (where the lack of clear conceptual distinctions creates lots of confusion) and realize that the critical issue at stake when debating the constitution of Europe is the proper relationship among the three conceptions of the European constitution. In chapter 3, we reconstructed three different visions on how to stabilize the European political order: reforming synthesis, transcending synthesis through democratic constitution making, and transcending democratic legitimacy through governance. Democratic constitution making aims at making the formal and the material constitution overlap and to reform the material constitution so as to make of the Union a democratic state for all purposes bar perhaps its name. Reforming synthesis is concerned with introducing changes in the material constitution of the Union in a way that not only renders the Union more effective but also mends the channels of transfer of democratic legitimacy between the member states and the Union. The governance strategy is exclusively interested in changes in the material constitution of the Union and is disdainful of the democratic legitimacy of both the reform process and the resulting material constitution.


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We have shown that the Union has basically adhered to the synthetic approach, although there have been important fluctuations that may not reconfigure its material constitutional stature but may, with Lisbon as noted, weaken further the normative constitutional dimension. So does the European Union have a constitution? Certainly it has a material constitution and is now close to having a formal constitution, while its normative constitution has become increasingly problematic as integration has run its course.

What Legitimacy Credentials? The Democratic Surpluses of European Integration Constitutional synthesis gives a distinct solution to the democratic legitimacy puzzle of the European Union. It does so because it clarifies the constitutional identity of the European Union and reveals the threefold structure of the Union’s derivative democratic legitimacy basis. First, constitutional synthesis underlines the democratic-constitutional nature of the European Union. The point of the practice of European integration since the very moment it started was indeed to project integration through democratic constitutional law across national borders. That is confirmed by the integration clauses inserted in postwar European constitutions. Chapters 2 and 3 showed why we should reconstruct the founding treaties of the Communities as the actual realization of those national constitutional mandates to integrate. But if that is so, if the point of the European Union is to create the conditions under which it is possible to integrate across borders through constitutional law, then the legitimacy of the European Union cannot but be democratic. Having said that, the democratic license to integrate in constitutional synthesis is critically dependent on substantive and institutional mechanisms capable of transferring democratic legitimacy from the member states to the European Union. This is indeed the main point of synthetic integration: to allow integration to be launched and its positive effects enjoyed, but to do so in a manner that does not overtax the direct legitimating capacities of supranational norms, institutions, and decision-making processes at the supranational level. As a result, the democratic legitimacy of the Union as a synthetic polity is essentially democratic but derivative, which does not deny that the Union also has direct democratic legitimacy credentials. Second, the theory of constitutional synthesis reveals the structure of the (mainly, but not exclusively) derivative democratic legitimacy of the European Union. First, the creation of a supranational constitutional and institutional structure creates the conditions under which it is possible to ensure a modicum of democracy across national borders, as it renders


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conflict solving and action coordination possible in accordance with commonly established norms. Second, the derivative character of European constitutional law, literally made up of the common constitutional law, creates the conditions under which the democratic legitimacy of national constitutions can be transferred to supranational constitutional law and from it radiated to all European norms, including ordinary ones (or regulations and directives). This serves as a temporary democratic legitimizing alternative to revolutionary constitution making and is indeed the core of the democratic legitimacy equation in a synthetic constitutional system. It is because (and one could add, it will remain being the case as long as) national constitutional norms play the same role in the domestic and the Community legal orders that European legal integration will remain infused with the democratic legitimacy that provides decisive motivational force to citizens and institutional actors alike. Third, the supranational institutional setup and decision-making processes further contribute to the transfer of democratic legitimacy from the nation-states to the Union. The original institutional design of the Union aimed at creating the means and ways of wiring national democratic decision making into the supranational decision-making process. In that regard, it is quite obvious that the central role assigned to the Council of Ministers in Community lawmaking is part of this complex constitutional structure. And keep in mind that the Community method, even at its most intergovernmental, is a democratically superior alternative to standard diplomatic methods (and even more so, as the Lisbon process has revealed, of the secretive diplomatic method that has come to characterize recent European Councils). Something that is more rarely observed is that the writing of implementing regulations through comitology also has a democratizing potential. Provided that regulations and directives properly define the essential elements of legislation, comitology adds a surplus of democratic legitimacy, given the indirect legitimacy that national representatives bear with them (even if a modest one, given the many links in their chain of democratic legitimation) and on account of the deliberative style according to which comitology proceeds. To this it must be added that the European Parliament adds a surplus of direct democratic legitimation. Even in its early days when it was limited to a consultative role, the structural participation of the European Parliament in the standard Community method had a clear democratizing effect, as it created the conditions under which national parliaments (which were originally well integrated into the system through the seconding of national parliamentarians to the common assembly) could affect the contents of Community legislation before it was adopted, something rarely possible in diplomatic negotiations, where national parliaments are usually faced with done deals that they can ratify or reject as a package. Parliament has, however, contributed


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further to the democratic credentials of the Union since its members were directly elected in 1979. In particular, co-decision has emerged as a lawmaking process where the European general will is defined in a composite manner, by a qualified majority of the states as represented in the Council of Ministers and by a majority of the direct representatives of citizens, the members of the Parliament. This signals a shift in the direct democratic legitimacy mode of the Union but is, however, still very precarious. The sheer complexity of co-decision has created a gravitational pull toward trialogues, with a more dubious legitimacy record. And as we will discuss in the next paragraphs, the division of labor between the standard Community method and co-decision may have aggravated the structural democratic deficit of the European Union. The Democratic Deficits of European Integration It should also be clear from the above that constitutional synthesis comes with a particular account of the European Union’s democratic deficit. It must be noted that constitutional synthesis helps us understand what at first sight is indeed paradoxical: how the very constitutional path that allowed Europe to be established in a democratic fashion alternative to both revolutionary and evolutionary constitutionalism is also at the root of the democratic shortcomings of the Union. The synthetic path provides a democratic license that is, however, limited in time and conditioned on specific institutional and substantive developments. This paradox is at the basis of a very concrete puzzle in European integration: the more fundamental reform has led to changes that were regarded as contributing to the democratization of the European Union, the more the democratic credentials of the Union have been found wanting. How is that possible? A key part of the answer is that the further the process of synthesis has proceeded, the less easily democratic legitimacy has been transferred from the national to the supranational level. Fundamental in that regard has been the process of emancipation of European constitutional law from the constitutional traditions common to the member states. Keep in mind that the synthetic constitutional moment results in the affirmation of the regulatory ideal of a common constitutional law, not in a set of substantive norms. What was common was not rendered explicit, and indeed remained an unwritten regulative ideal pro tempore. As we saw in chapter 3, the task of making explicit and concrete what was merely implicit (the constitutionalization of Union law) was thus forced upon the Community legislator and the Community courts. In discharging such a task, they were left with a taller task than that characteristic of constitutionalization under national constitutions, for four main reasons. First was the lack of a clear theoretical template or examples of polities wherein synthesis has unfolded. There was simply no guidance on how common constitutional principles should be


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fleshed out. Second was the different approach to constitutionalization resulting from national constitutions belonging to different traditions of constitutionalism (with Germany coming closer to evolutionary constitutionalism among the original six, later joined by the United Kingdom). Third were the differences in the scope of national constitutional law and the differences among the concrete derivative constitutional norms affirmed in each member state, which will require lawmakers and courts to opt for one norm while leaving aside all others in many cases (what in chapter 5 we argue was indeed the typical structure of a mixed European constitutional conflict). Fourth, all national constitutional norms were drafted as part and parcel of national constitutional law, and thus, they will rarely be automatically transferable to the Community legal order, for the simple reason that the context of integration was different, because they have to become part and parcel not of the constitutional law of an established legal order, but of a legal system of integration of legal orders. This very often required adaptation of national constitutional norms, once again requiring a constrained exercise of lawmaking. As a result of these four factors, the discretion of lawmakers and courts was potentially wider than that characteristic under national constitutional law. First, if common constitutional law remained an unwritten regulative ideal, it was because there had been no explicit synthetic theory nor an explicit European constitution-making process. The lack of an explicit constitution-making process entailed that neither lawmakers nor judges could make use of the constitutional debates as a guide to interpreting constitutional norms, as is customary at the national level. Second, the limited legislative role played by the European Parliament deprived legal actors of a further guide in the interpretation of constitutional norms; indeed, at the national level the debates of Parliament are a clear auxiliary tool when interpreting legal norms. But here it was the Council meeting in secret, and not the European Parliament, that carried most of the legislative power. As these factors cumulated into concrete decisions, the definition of European constitutional law showed a tendency to become autonomous from national constitutional law. As European constitutional practice thickened, laws and judgments became more self-referential, thus weakening the normative link between the legal and the judicial formulation of European constitutional norms and national constitutional norms. The breaking point came when, in the aftermath of the second oil crisis and with serious consideration on the side of several member states to relax their commitment to free movement of goods, the Court put forward the rudiments of a self-standing, more aggressive characterization of economic freedoms, first of free movement of goods, and later of the other three fundamental freedoms (with such a line of jurisprudence further spurred on by the Single European Act and the 1988 directive on free movement of capital). As the


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line of jurisprudence thickened, it not only extended the horizontal effect of economic freedoms to the whole of the national legal orders but resulted in a process of judicialization of politics of considerable proportions. But more importantly, it confirmed the decoupling of supranational and national constitutional law. This can result in a formulation of European constitutional law that is clearly at odds with the norm resulting from a systematic interpretation of national constitutional law. This has not led to an increased perception of European laws as heteronomous norms imposed upon citizens who feel like subjects devoid of political rights to deliberate and decide on European norms, but in the punctual breaking of the democratic legitimacy chain between European and national law. In that regard, it suffices to consider again the Viking case we refer to in chapter 5, the jurisprudence of the Court of Justice concerning the implications for national company taxation of the principle of freedom of establishment.5 In addition, the peculiar way in which constitutional synthesis has evolved in the Union (in contrast to the Canadian case) has fostered a huge structural democratic deficit, leading to the disempowering of politics. As we have just seen, the transformative constitutionalization of economic freedoms has subjected all national laws to a potential review of European constitutionality, disempowering national political processes to undertake socioeconomic policies that even marginally limit economic freedoms. De facto, the national Sozialer Rechtssaat is under suspicion when not in retreat. That would not be dramatic were it not for the fact that this has not gone hand in hand with the restoration of political capabilities at the supranational level. It is not so much that the Union has limited competences (that is only true on what concerns some social policies) as that the competences that the Union has and that should be urgently exerted to rebalance socioeconomic policy, to rescue the Sozialer Rechtsstat at the supranational level, are subject to a unanimity vote in the European Council. We showed in chapter 4 that the usual assumption that co-decision has become the Community legislative procedure fails to realize that in critical areas such as taxation, labor law, and social rights (the core of the Sozialer Rechtsstaat), this is not the case. That renders the probability of political action on redistributive matters close to nil. When one needs twenty-seven votes of countries with highly diverse levels of wealth and population and with rather different constitutional histories (Germans fearing inflation, French fearing deflation, many Eastern European countries still digesting the draconian policies of transition to capitalism, which the Union felt so impotent to shape in its own semblance and according to the “European” social model), one should not have much hope. So has the Commission, which has not made any serious major proposal on personal taxation since the adoption of the directive on the taxation of savings in 2004. Political


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disempowerment is thus not a natural or causal phenomenon but has deep roots in the constitutional law of the European Union. Finally, constitutional synthesis also gives a particular twist to the notion of “permissive consensus”6 that was said to have marked the process of European integration up to the Maastricht Treaty. From the perspective of constitutional synthesis, permissive consensus is a correct intuition, but presented within a misleading normative-democratic interpretive framework. It is generally understood as silent and unquestioning acquiescence to a process with dubious democratic legitimacy credentials. This reading of the process is misleading. It also cannot make proper sense of why politicization has occurred only in recent years. Constitutional synthesis, on the other hand, understands the permissive consensus as a natural component of the constitutional-democratic license that synthesis affords. From a constitutional synthesis perspective, politicization is a natural—and democratically necessary—component of the very process of synthesis. Politicization is a necessary characteristic of a process wherein the supranational entity takes on ever-greater tasks of proper democratic direction and corrective; politicization is a vital component in ensuring reflexivity. So what are the legitimacy credentials of the European Union? Democratic, mainly derivative (essentially from the derivation of European constitutional law from the collective of national constitutional laws), but also direct (very especially through the legislative roles of the European Parliament). Still, the progressive emancipation of European constitutional law from the common constitutional law and the specific combination of the division of competences between the Union and its member states and between European lawmaking processes undermines the legitimacy of the Union, as it feeds structural democratic deficits.

CONCLUDING REFLECTIONS In closing, we end with three lessons. The first and most important is that theory matters. We have shown that it matters to understanding: it is not possible to get a proper handle on the Union’s experience simply with reference to established categories of constitutional thought. There is need for a theory that takes proper heed of the Union’s distinct traits but that also does not succumb to fashion or caprice by embracing the lure of being sui generis (assuming that a proper theory has to start almost from scratch). Theory also matters to evaluation: it can establish the appropriate framework for evaluation of the normative quality of what is being wrought. In that sense, it is also politically very significant—it provides and justifies the salience and veracity of the account that feeds into the political process and serves as the raw material for holding officials to account. But even more


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critically, theory matters to politics. Only when we know what the Union really is can we actually change it. Second is that fundamental reform will never result in a stable European political order if the agenda of reform does not go beyond the narrow set of questions related to the power of the European governing elites. Reform can bear tangible fruits only if it deals with institutions as frameworks of democratic decision making on substantive policies, about the who gets what and how—in tax matters, in labor law, in social policy, and so on. Laeken and Lisbon are amply illustrative of this point. Enormous time and effort was spent on voting rules within the Council of Ministers. Indeed, the IGC of 2003 collapsed due to lack of agreement on that precise point. In marked contrast, discussion on the origins and remedies of the structural democratic deficit of the Union was simply avoided. But without sorting out the latter, there is no chance of rendering the European political order viable. It is the structural democratic deficit that must be tackled through reform if reform is to achieve something. To put it differently, institutions do matter, because their design is fundamental to ensuring that policies can be decided and implemented democratically. To render our argument topical, the deep financial crisis, which casts a long shadow over the future of the Union and of the euro at the time of writing, is but the last consequence of this political disempowerment. The structural power of international financial markets did not grow overnight. It was consolidated by a cascade of processes of privatization of public companies and utilities and the promotion of private pension funds with taxpayers’ money, which was presented as part of the drive toward the single market. It was accelerated by the extension of free movement of capital to third countries, a crucial part of the institutional design of monetary union (indeed, international markets were expected to do what they have done: serve as a mechanism of accountability of national fiscal policies, prevent reckless expenditure, and force budgetary discipline; the theory was always this—what practice has shown is how wrong the theory was). It was magnified by the renunciation of the coupling of monetary union with fiscal union, which would centralize a sizable part of taxing and expenditure at the federal level. Crucial powers were delegated to private parties, from the clearing of payment settlements (which is the key missing link in the chain of an effective monitoring of tax evasion) to the rating of public debt. The third lesson is that the return to the “normalcy” of intergovernmentalism has proved to be a mirage, it has also failed to solve the problems. At the time of writing, a new round of treaty reform has already been requested by the German government. At this stage, a democratic refounding of the Union is unlikely, bar a sudden and drastic politicization of the European Union, which is at the same time sufficiently focused so as to bear constitutional fruit.


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The political constellations appear particularly troublesome at this point in time, but the Union has gotten through crises before. One way of handling the crisis is to affirm one’s self-understanding. In that sense, it is important that the Union take up and discuss its already entrenched approach to constitutional synthesis. That would be the ultimate test case of the salience of theory—can a proper theoretical recognition alter actual behavior? Theory is important, especially if it can be made to inspire European citizens to discuss, organize, and act.


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Notes

INTRODUCTION: THE EUROPEAN ENIGMA 1. For the sake of clarity, we use the term European Union throughout, applying it as a generic term with which to appraise the entire period of integration from the Paris Treaty of 1951 establishing the Coal and Steel Community. We occasionally refer to the legal system of the European Union as Community law, not only out of nostalgia, but because the term is so deeply rooted in actual usage. 2. Derrick Wyatt, “New Legal Order or Old,” European Law Review 7 (1982): 147–66. 3. Albert Sbragia, ed., Euro Politics: Institutions and Policymaking in the “New” European Community (Washington, D.C.: Brookings Institution Press, 1992); Philomena Murray and Paul Rich, Visions of European Unity (Boulder: Westview Press, 1996). 4. Jan Zielonka, Europe as Empire: The Nature of the Enlarged European Union (Oxford: Oxford University Press, 2006); a cosmopolitan empire, according to Ulrich Beck and Edgar Grande, Das kosmopolitische Europa (Frankfurt: Suhrkamp, 2005); a republic empire, according to Claus Offe and Ulrich K. Preuss, “The Problem of Legitimacy in the European Polity: Is Democratization the Answer?” in The Diversity of Democracy: Corporatism, Social Order and Political Conflict, ed. Colin Crouch and Wolfgang Streek (Cheltenham: Edward Elgar, 2007), 175–204. 5. John Gerard Ruggie, “Territoriality and Beyond: Problematizing Modernity in International Relations,” International Organization 47 (1993): 139–74; Deirdre Curtin, Postnational Democracy: The European Union in Search of a Political Philosophy (The Hague: Kluwer Law, 1997). 6. Contrasting views on the figures are found in Roman Herzog and Lüder Gerken, “Revise the European Constitution to Protect National Parliamentary Democracy,” European Constitutional Law Review (2007): 209–18; and Yves Bertoncini, “What Is the Impact of EU Interventions at the National Level?” (Paris: Notre Europe, 2009), 229


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also available at http://www.notre-europe.eu/uploads/tx_publication/Etud73-Y_ Bertoncini-en.pdf. The latter study, which is thoroughly documented, calculates at less than one-fifth the number of European laws in each national system. While we find the debate an important one, it seems to us that the issue is not merely a matter of quantity, but also of quality. This is why, as we state at the end of the chapter, our focus is on structuring discourses and decisions which, while quantitatively marginal, have a pervasive effect on European constitutional practice. 7. This new European Council president is in effect part of a system of four presidents, which includes the European Council president, the president of the Council, the European Commission president, and the president of the European Parliament. The Commission president presides over a European administrative structure, and the European Parliament president chairs the world’s first supranational parliament. 8. See notably Alan Milward, The European Rescue of the Nation-State (London: Routledge, 1992). 9. Perceptive criticisms appear in Belén Balanyá, Ann Doherty, Olivier Hoedeman, Adam Ma’anit, and Erik Wesselius, Europe Inc.: Regional and Global Restructuring and the Rise of Corporate Power (London and Sterling, Va.: Pluto Press, 2000) and Bastiaan van Apeldoorn, Jan Drahokoupil, and Laura Horn, eds., Contradictions and Limits of Neoliberal European Governance: From Lisbon to Lisbon (Basingtoke: Palgrave Macmillan, 2008). 10. Harold Dwight Lasswell, Politics: Who Gets What, When, How (New York and London: Whittlesey House, 1936). 11. Quoted by Claude Cheysson, “Defining Europe’s Place in the World,” in Philip Morris Institute, Discussion Paper 13 (Brussels: Philip Morris, 1997), 33–40, at p. 35. A close friend of Kissinger, Peter Rodman claims that Kissinger denied having said so and was actually fed up with having to deal with the European Council president. 12. Public lecture at the London School of Economics, “Economics and Politics Post-Lisbon,” 11 May 2010, audio available at http://richmedia.lse.ac.uk/public LecturesAndEvents/20100511_1830_economicsAndPoliticsPostLisbon.mp3. 13. As we document in chapter 3, there are two immediate precedents: the “Constitution” drafted in 1953 as part of the double project of a defense and political community (Richard T. Griffiths, Europe’s First Constitution [London: Kogan Page, 2000]) and the “Spinelli” project of 1984, put together by the first directly elected European Parliament—see Francesco Capotorti, Meinhard Hilf, Francis Jacobs, and Jean Paul Jacqué, eds., The European Union Treaty (Oxford: Oxford University Press, 1986); Juliet Lodge, ed., European Union: The European Community in Search of a Future (London: Palgrave Macmillan, 1986). 14. Case C-438/05, Viking, [2007] ECR I-10779. 15. While different national constitutional traditions might characterize the problem in different ways, they could not be said to give unqualified support to the solution put forward by the European Court of Justice, which solved the conflict in favor of the freedom of establishment of the employer. 16. Roman Herzog and Lüder Gerken, “Stop the Court of Justice,” Frankfurter Allgemeine Zeitung, 8 September 2008, English version available at http://www.cep .eu/fileadmin/user_upload/Pressemappe/CEP_in_den_Medien/Herzog-EuGH-Web seite_eng.pdf.


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17. Fritz Scharpf, “The Only Solution Is to Refuse to Comply with ECJ Rulings,” Social Europe 4, no. 1 (2009): 16–21; see also the arguments of Damian Chalmers, “Here Are the Rules for Disobeying Brussels,” The Times, 5 June 2009, available at http://www.timesonline.co.uk/tol/comment/columnists/guest_contributors/ article6434022.ece. Further evidence of the trend is in William Phelan, “Can Ireland Legislate Contrary to European Community Law?” European Law Review 33 (2008): 530–49. 18. That is the core of the pluralist understanding of Community law put forward by the groundbreaking article of Neil MacCormick, “Beyond the Sovereign State,” Modern Law Review 52 (1993): 1–18, at 5. 19. In the second chapter we will illustrate this by using the image of the field as a metaphorical device. Indeed, the founding of the Communities implied that national constitutions abandoned their constitutional loneliness as constitutions of the self-sufficient nation-state and placed themselves in the common European constitutional field. Constitutional autarchy was thus replaced by constitutional openness, cooperation, and reflexivity. 20. Even the initial six members were hugely different in size, they included federal and unitary states, they had different systems of representation (party systems and electoral systems) and accountability, they had different administrative systems and styles (across states but also across levels and even functional domains), and so on. 21. Ronald Dworkin, Law’s Empire (London: Fontana, 1986), 58–59. 22. Ibid., 63. 23. Jack P. Greene, Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States (New York: Norton, 1986), 7. 24. Robert Schuman, in Paul Reuter, La Communauté Européenne du Charbon et de l’Acier (Paris : Librairie générale de droit et de jurisprudence R. Pichon et R. DurandAuzias, 1953), 7. 25. Alexander Somek, “On Supranationality,” European Integration Online Papers 5 (2001), available at http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID302776 _code020313500.pdf?abstractid=302776&mirid=1. 26. Mauro Cappelletti, Monica Secombe, and Joseph Weiler, eds., Integration through Law: Europe and the American Federal Experience (Berlin: De Gruyter, 1986). 27. Indeed, Kelsen’s pure theory was not aimed at purifying normativeness from law, but politics. Kelsen engaged in several polemics with sociologists precisely on this point. The most famous formulation of the distinction between external and internal perspectives on law is to be found in H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961). 28. Our theory draws inspiration from institutional perspectives in law, politics, and sociology. In law, consider notably Neil MacCormick, Questioning Sovereignty (Oxford: Oxford University Press, 1999); and Neil MacCormick, Institutions of Law (Oxford: Oxford University Press, 2007). In political science, consider notably James G. March and Johan P. Olsen, Rediscovering Institutions (New York: The Free Press, 1989); and James G. March and Johan P. Olsen, Democratic Governance (New York: The Free Press, 1995). In sociology, see W. W. Powell and P. J. DiMaggio, The New Institutionalism in Organizational Analysis (Chicago: University of Chicago Press, 1991). In this book we do not have the space to spell out the specific contributions of each of these strands of thought. We also account for further intellectual debts


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concerning constitutional theory and European integration theory in the relevant sections of the book. 29. Carl Joachim Friedrich, Constitutional Government and Politics (New York: Harper and Brother Publishers, 1937); Hans Kelsen, General Theory of Law and State (Cambridge, Mass.: Harvard University Press, 1949); Karl Loewenstein, Political Power and the Governmental Process (Chicago: University of Chicago Press, 1958); Manuel García Pelayo, Derecho Constitucional Comparado (Madrid: Alianza Editorial, 1982).

CHAPTER 1: INTRODUCING THE CONSTITUTIONAL TOOL KIT 1. Carl Joachim Friedrich, Constitutional Government and Politics (New York: Harper and Brother Publishers, 1937); Hans Kelsen, General Theory of Law and State (Cambridge, Mass.: Harvard University Press, 1949); Karl Loewenstein, Political Power and the Governmental Process (Chicago: University of Chicago, 1958); Manuel García Pelayo, Derecho Constitucional Comparado (Madrid: Alianza Editorial, 1982). 2. If the Union is a truly new and distinct political order, it must have transformed its constituent member states to such an extent that they no longer qualify as states. For a critical comparative assessment of this, see John Erik Fossum, “Conceptualizing the European Union through Four Strategies of Comparison,” Comparative European Politics 4 (2006): 94–123. 3. Ironically, the sui generis positions make the constitutional future of the Union ultimately dependent on intellectual creativity: we will be able to solve the many puzzles that beset the EU’s legal-political order only if we are able to develop those novel concepts and analytical tools that can properly describe the complex Union. 4. See Ulrich Beck, “Toward a New Critical Theory with a Cosmopolitan Intent,” Constellations 10 (2003): 453–68, at 454. 5. Christian Joerges, Yves Mény, and J. H. H. Weiler, eds., What Kind of Constitution for What Kind of Polity? Responses to Joschka Fischer (Florence and Cambridge, Mass.: Robert Schuman Centre and the Harvard Law School, 2000). 6. Eric Stein, “Lawyers, Judges, and the Making of a Transnational Constitution,” American Journal of International Law 75 (1981): 1–27; Giuseppe Federico Mancini, “The Making of a Constitution for Europe,” Common Market Law Review 26 (1989): 595–614; Joseph H. H. Weiler, “The Transformation of Europe,” Yale Law Journal 100 (1991): 2403–83. 7. This is stated perhaps more histrionically in Jack Straw, “The European Constitution,” Economist 8 (July 2004), available at http://www.economist.com/world/ europe/displaystory.cfm?story_id=E1_NJDDNDG. In that regard, the characterization of the Union as an association of states and of Community law as a not fully constitutional legal order advocated by the German Constitutional Court is paradigmatic. This was first expressed in 1967 (see its judgment at 22 BVerfGE 293, especially at 296) and recently reiterated in the Lisbon ruling (available at http://www .bundesverfassungsgericht.de/en/decisions/es20090630_2bve000208en.html), par. 229 and 231 of the judgment.


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8. Kelsen, supra, n. 1, at 124. 9. In the France of the grande révolution, the Declaration of the Rights of Man and Citizen preceded the Constitution of 1791; and it is also known that the said declaration keeps on being part of the constitutional documents of France, even if it was quite obviously not written in the same breadth of time and constitutional effort as the Constitution of 1958, which is now in force in France. In a symmetrical manner, the U.S. Constitution of 1787 was written before and independently from the first ten amendments, which made up a federal bill of rights of sorts. See Marcel Gauchet, La révolution des droits de l’homme (Paris: Gallimard, 1989); Akhil Reed Ahmar, The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press, 1998); and by the same author, America’s Constitution: A Biography (New York: Random House, 2005). On the comparison between the two bills of rights, see the classic text of George Jellinek, The Declaration of the Rights of Man and of Citizens: A Contribution to Modern Constitutional History (New York: Henry Holt and Co., 1895). 10. The extreme example of this symbolic aspect of the written constitution is to be found in the constitutional practice of distributing free copies of the constitution in a rite de passage. That was characteristically the case of the Weimar Constitution, cf. article 148, second paragraph. 11. Cornelius Castoriadis, “Imaginaire politique grecque et moderne,” in Les Carrefours du Laberynthe, IV: La Montée de l’insignificance (Paris: Seuil, 1995): 159–82, at 161. 12. Loewenstein, supra, n. 1, at 152ff. See also H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961), 95, where he associates modernity and legality. 13. Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1964). 14. See Bruce Ackerman, We the People, vol. 1, Foundations (Cambridge, Mass.: Harvard University Press, 1991), 21, 292. 15. For an analysis of constitutional moments in the United Kingdom, see Elizabeth Wicks, The Evolution of a Constitution (Oxford: Hart Publishers, 2006). 16. See references to judgments of the German Constitutional Court in supra, n. 7. 17. This has been partially rendered evident by the clear-cut distinction resulting from entry into force of the Treaty of Lisbon between the norms contained in the Treaty on European Union and those reproduced in what is now called the Treaty on the Functioning of the European Union. 18. The founding treaties did not contain any direct reference to fundamental rights protection, unless one constructs as fundamental rights provisions the antidiscriminatory clauses (nondiscrimination on the basis of nationality and nondiscrimination on the basis of gender). It was only in the judgments in cases 29/69 Stauder [1969] ECR 419, and 11/70 Internationale [1970] ECR 1125 that the Court of Justice affirmed the unwritten but fundamental principle of rights protection. On this, and on the implications this has for European constitutional theory, see Agustín J. Menéndez, “Some Elements of a Theory of European Fundamental Rights,” in Arguing Fundamental Rights, ed. Agustín J. Menéndez and Erik Oddvar Eriksen (Dordrecht: Springer Verlag, 2006), 155–84. 19. Cf. Aristotle, Politics, 1275a and 1278b. In the Jowett translation (Oxford: Oxford University Press, 1895), the pages are 67 and 77.


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20. “The Social Contract,” in Social Contract and Discourses, book 2, chap. 12 (London and Toronto: J. M. Dent, and New York: E. P. Dutton, 1913), 47. 21. Kelsen, supra, n. 1, at 124. 22. The predisposition of German scholars and politicians to draw a clear line between the form and the substance of the law was increased by the lack of success of the codification of private law during the nineteenth century. 23. Ferdinand Lassalle, ¿Qué es una Constitución? (Barcelona: Ariel, 1977), 57 and especially at 94. 24. Karl Marx, “On the Jewish Question,” in Early Writings (Harmondsworth: Penguin, 1975), 211–41. 25. A similar train of reasoning can be found in Koen Lenaerts, “Interlocking Legal Orders in the European Union and Comparative Law,” International and Comparative Law Quarterly 52 (2003): 873–906. 26. In the original version, article 16 states: “Toute société dans laquelle la garantie des Droits n’est pas assurée, ni la séparation des pouvoirs déterminée, n’a point de Constitution.” 27. On the specific context surrounding the drafting of the declaration, see Thomas Paine, Rights of Man (Harmondsworth: Penguin, 1984), 52ff. More recently, see Lynn Hunt, Inventing Human Rights (New York: Norton, 2007), 126–35. On the internal reverberations of the declaration, see Bailey Stone, Reinterpreting the French Revolution: A Global Historical Perspective (Cambridge: Cambridge University Press, 2002), 118ff. It could be said that, all things considered, article 79 of the German Constitution—the eternity clause—plays a similar role. 28. Paine, supra, n. 34, at 131. 29. Cf. article 49 of the Treaty of European Union, as restated after the entry into force of the Treaty of Lisbon. 30. Jean Jacques Rousseau, The Social Contract, in Oeuvres completes, vol. 3 (Paris: Seuil, 1793), 380; Jürgen Habermas, Between Facts and Norms (Cambridge, Mass.: MIT Press, 1996), 408. 31. Jürgen Habermas, “Constitutional Democracy: A Paradoxical Union of Contradictory Principles?” Political Theory 29 (2001): 766–81. 32. Jürgen Habermas, supra, n. 27, at 118–31. 33. See David Estlund, “The Insularity of the Reasonable: Why Political Liberalism Must Admit the Truth,” Ethics 108 (1998): 252–75; and Robert Alexy, “Discourse Theory and Human Rights,” Ratio Juris 9 (1996): 209–35. 34. See Agustín José Menéndez, Complex Democracy and the Obligation to Obey the Law, ARENA Working Paper 25/00, available at http://www.arena.uio.no/publica tions/wp00_25.htm. 35. That is the real conflict behind the infamous trio of judgments in Cases C-438/05, Viking, [2007] ECR I-10779; C-341/05, Laval, [2007] I-11767; and C-346/06, Ruffert, [2008] I-1989. 36. Loewenstein, supra, n. 1, at 165ff. 37. Víctor Ferreres Comella, “Una defensa de la rigidez constitucional,” Doxa 23 (2000): 29–47. 38. A point very well taken by Friedrich, supra, n. 1, at 138, where he claims that modern popular government presupposes a nation fundamentally at one, whose customs and opinions support the constitution.


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39. Gustavo Zagrebelsky, Il Diritto Mitte (Torino: Einaudi, 1992), 47–50. This is indeed the key intuition behind both the “veil of ignorance” in the “original position” of John Rawls (see Theory of Justice [Cambridge, Mass.: Harvard University Press, 1971]) and the role of constitutional agreements in John Buchanan, The Limits of Liberty: Between Anarchy and the Leviathan (Chicago: University of Chicago Press, 1975). 40. See Nancy Fraser, “Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy,” in Habermas and the Public Sphere, ed. Craig Calhoun (Cambridge, Mass.: MIT Press, 1992), 109–42, at 134. 41. On what follows, we rely on our “The Constitution’s Gift,” European Law Journal 11 (2005): 380–410. 42. Strong publics refer to institutionalized deliberations whose discourse encompasses both opinion formation and decision making. In institutional terms, strong publics alludes to parliamentary assemblies and discursive bodies in formally organized institutions imbued with decision-making power, yet constrained by the logic of arguing and impartial justification. See Nancy Fraser, “Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy,” in Habermas and the Public Sphere, ed. Craig Calhoun (Cambridge, Mass.: MIT Press, 1992), 109–42, at 134. 43. For this distinction, see Klaus Gunther, The Sense of Appropriateness: Application Discourses in Morality and Law (New York: State University of New York Press, 1993). 44. The concept comes rather close to Loewenstein’s “constitutional mutation.” However, Loewenstein considers it essential that the transformation not be registered in the formal constitution (Loewenstein, supra, n. 1, at 165). For us, on the contrary, the key factor is whether or not the change has been the result of a deliberation and a decision explicitly framed and intended to change the constitution. To the extent that what is the “document” of the constitution is something that depends on a social practice, Loewenstein’s definition is prone to be fragile to changes in the social practice itself. 45. On the jurisprudence resulting from the Human Rights Act, see Ian Leigh and Roger Masterman, eds., Making Rights Real: The Human Rights Act in the First Decade (Portland: Hart Publishing, 2008). 46. Kelsen, supra, n. 1, at 126. 47. The content of the material constitutional norms also changes through the slow process of application of the constitution to the daily life of the political community and society. On the one hand, it is clear that constitutional norms need to be interpreted in the process of applying them. This makes it absolutely necessary, among other things, to distill rules that solve conflicts among constitutional principles and to elaborate rules aimed at realizing the goals that the constitution aims at. Over time, such rules may end up reinterpreting the way in which the institutional and substantive contents of the constitution are understood. On the other hand, changes in the social structure, due to technological, demographic, or external changes, result in the slow adaptation of the substantive and institutional contents of the constitution. 48. In terms of legal reasoning and of the normative and institutional implications, see Robert Alexy, Theory of Constitutional Rights (Oxford: Oxford University Press, 2002), 33–38, 54–56.


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49. These essentially correspond to the legge costituzionali in Italy, the lois organiques in France, and perhaps the concept of a “bloque de constitucionalidad” in Spain. 50. See Francisco Rubio Llorente, “La Constitución como fuente de Derecho,” in La Forma del Poder (Madrid: Centro de Estudios Constitucionales, 1993), 43–62. 51. See Sir John Davies, Le Premier Report des Cases et Matters en Ley Resolues at Adiudges en les Courts del Roy en Ireland, of 1615, now in David Wootton, ed., Divine Right and Democracy (Harmondsworth: Penguin, 1986), 133. This was highly influential upon Hayek, even if he traced the origin of the idea only in Coke. See Constitution of Liberty (London: Kegan Paul, 1960), 58 (especially n. 20). 52. See references supra, n. 6. 53. That was not the case in all member states. Clearly it was not the case in Sweden, where the Constitutional Treaty was debated in political and legal terms as another ordinary international treaty. See Fredrik Langdal, Ratifying the Constitutional Treaty in Sweden (Stockholm: Swedish Institute of Policy Studies), available at http://www.epin.org/pdf/RM-CR-Sweden040505.pdf. 54. On the “revolutionary tradition” of democratic constitutionalism, see Hannah Arendt, On Revolution (Harmondsworth: Penguin, 1970); Maurizio Fioravanti, “Constitutionalism,” in A Treatise of Legal Philosophy and General Jurisprudence, vol. 9, A History of the Philosophy of Law in the Civil Law World, 1600–1900, ed. Damiano Canale, Paolo Grossi, and Hasso Hoffmann (Dordrecht: Springer, 2009), 263–300; Bruce Ackerman, We the People, planned in three volumes: vol. 1, Foundations (Cambridge, Mass.: Harvard University Press, 1991); vol. 2, Transformations (Cambridge, Mass.: Harvard University Press, 1997); vol. 3, forthcoming, partially reflected in “The Living Constitution,” Harvard Law Review 120 (2007): 1737–1813. For an assessment of the notion of constitutional moment in relation to the Laeken process, see John Erik Fossum and Agustín José Menéndez, “The Constitution’s Gift?,” European Law Journal 11, no. 4 (July 2005): 380–410. 55. On the democratic procedural foundation of democracy, see Ackerman, supra, n. 14, especially at 20. See also Ackerman, “Revolution on a Human Scale,” Yale Law Journal 108 (1999): 2279–2349. 56. On the claim that each generation should write its own constitution, see Thomas Jefferson, “Letter to James Madison,” 6 September 1789, in The Works of Thomas Jefferson, vol. 6, Federal Edition (New York and London: Putnam, 1905), 3–11. Jefferson was writing from Paris during the key period of the revolution. See also Paine, supra, n. 27, at 42. 57. The locus classicus is Paine, supra, n. 34, at 71. 58. On the democratic ideals behind the référé legislatif and in general of the prohibition of any kind of creative interpretation on the side of judges, see John Henry Merriman, “The French Deviation,” American Journal of Comparative Law 44 (1996): 109–19. 59. Which arguably was the most effective kind of review of constitutionality in France until the recent constitutional reform of 2009. On the idea of popular constitutional review, see Larry D. Kramer, Popular Constitutionalism and Judicial Review (Oxford: Oxford University Press, 2004). 60. Carl Friedrich, “The Political Theory of the New Constitutions,” in Constitutions and Constitutional Trends Since World War II, ed. Arnold J. Zurcher (New York: New York University Press, 1951), 13–35.


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61. Ackerman, supra, n. 14, at 17–24, against “Burkean” constitutionalism, a phrase that largely corresponds to what we characterize as evolutionary constitutionalism. 62. On the evolutionary constitutional tradition, the canonical expositions are Walter Bagehot, The English Constitution (Oxford: Oxford University Press, 1865 [2001]), especially p. 3; and A. V. Dicey, Introduction to the Study of the Law of the Constitution (London: Macmillan, 1866 [quoting from the Liberty Press edition of 1982, especially pp. cxlv–cxlvi and 277–78]. A contemporary restatement is in Anthony King, The British Constitution (Oxford: Oxford University Press, 2007), 2–3. A historical analysis is found in O. Hood Phillips, “Constitutional Conventions: Dicey’s Predecessors,” Modern Law Review 29 (1966): 137–48 and Wicks, supra, n. 15. The prodigious flexibility of an evolutionary constitution was canonically summarized by Griffith in his famous dictum that “the Constitution is what happens”; see A. J. Griffiths, “The Political Constitution,” Modern Law Review 42 (1979): 1–21. A very interesting analysis of social beliefs through a comparison of legal scholarship and fiction is found in Asa Briggs, “Trollope, Bagehot and the English Constitution,” in Victorian People (Chicago: Chicago University Press, 1954), 87–115. 63. On the different “constitutional moments” in British history and the residue of constitutional norms, see Neil MacCormick, “Does the United Kingdom Have a Constitution—Reflections on MacCormick v. Lord Advocate,” Northern Ireland Legal Quarterly 29 (1978): 1–20; Wicks, supra, n. 15; and Iain McLean, What’s Wrong with the British Constitution (Oxford: Oxford University Press, 2010). From a theoretical perspective, see A. V. Dicey, Introduction to the Law of the Constitution (London: Macmillan, 1915), chaps. 14 and 15; Ivor Jennings, Cabinet Government (Cambridge: Cambridge University Press, 1959); and Nicholas W. Barber, “Constitutional Laws and Constitutional Conventions,” Law Quarterly Review 125 (2009): 294–309. 64. Within the evolutionary tradition, specific problems are posed by those cases in which an octroyé constitution becomes an autochthonous (and democratic) constitution, such as in cases of decolonization. For a typology within the Commonwealth, see K. C. Wheare, The Constitutional Structure of the Commonwealth (Oxford: Oxford University Press, 1960), 58–113; Manuel García-Pelayo, Derecho Constitucional Comparado (Madrid: Alianza Editorial, 1984), 34–45 (the rational-normative and the historical conceptions of constitution); Cristoph Möllers, “The Politics of Law and the Law of Politics,” in Developing a Constitution for Europe, ed. Erik Oddvar Eriksen, John Erik Fossum, and Agustín José Menéndez (London: Routledge, 2004), 129–39.

CHAPTER 2: A THEORY OF CONSTITUTIONAL SYNTHESIS 1. Indeed, as is argued in more detail later in the chapter, postwar constitutions were written or amended so as to include clauses that made possible and mandated supranational integration. See the references in note 7 of chapter 3.


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2. The idea of a supranational constitutional law that is the result of seconding national constitutions was hinted at by the European Court of Justice in Case 11/70 Internationale, par 4 when claiming that the lack of a written bill of rights in the primary law of the Union went hand in hand with an unwritten principle of protection of fundamental rights, which was filled in by reference to the “constitutional traditions common to the Member States” properly spelled out in the context of European integration. On the technical aspects of legal synthesis, it must be stressed that a critical comparative approach has underpinned the case law of the ECJ since its very inception. See Koen Lenaerts, “Interlocking Legal Orders in the European Union and Comparative Law,” International and Comparative Law Quarterly 52 (2003): 873–906. 3. Our use of the concept of “constitutional field” intends to visualize, to provide a metaphorical device for understanding more clearly what we intend by a process of constitutional synthesis. While we find the whole body of literature that we refer to in this note inspirational, we find more suggestive the way organizational sociology uses the notion of the field. Here, organizational field has been characterized by “those institutions that, in the aggregate, constitute a recognized area of institutional life.” P DiMaggio and W. W. Powell, “The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields,” American Sociological Review 48 (1983): 147–60, at 148. The field is made up of a set of organizations that are interconnected and structurally similar. A characteristic feature of the organizational field is that it is marked by strong isomorphic pressures. On the other hand, the notion of legal field has also been introduced in the study of the EU but then draws on Bourdieu’s notion of field. See Pierre Bourdieu, “The Force of law: Towards a Sociology of the Field of Law,” Hastings Law Journal 38 (1987): 805–53; Michael Rask Madsen, “Transnational Fields: Elements of a Reflexive Sociology of the Internationalisation of Law,” Retfærd 29 (2006): 34–41. 4. This process transforms the very attitude of national political and legal systems toward foreign institutions and foreign laws. See, for example, Basil Markesinis, Engaging with Foreign Law (Oxford: Hart Publishers, 2009). 5. The constitutional theoretical framework of reference is found in Francisco Rubio Llorente, “Constitutionalism in the Integrated States of Europe,” Jean Monnet Working Paper 98/5, available at http://centers.law.nyu.edu/jeanmonnet/ papers/98/98-5-.html; Peter Häberle, Pluralismo y Constitucionalismo: Estudios de la Teoría Constitucional de la Sociedad Abierta (Madrid: Tecnos, 2002); and Pedro Cruz, La Constitución Inédita (Madrid: Trotta, 2004). 6. On the “national” transformation of the United States, see Bruce Ackerman, “The Living Constitution,” Harvard Law Review 120 (2007): 1737–1813. 7. See article 4 of the Weimar Constitution. Then article 148 gears civic and professional education toward both German national culture and international conciliation, while article 162 crucially commits the commonwealth toward the international regulation of the legal status of workers and the promotion of a standard minimum of social rights. 8. Carl Friedrich, “The Political Theory of the New Constitutions,” in Constitutions and Constitutional Trends Since World War II, ed. Arnold J. Zurcher (New York: New York University Press, 1951), 13–35.


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9. In terms of the legal dogmatics triggered by the case law of the European Court of Justice, the constitutional law of the new legal order has always been grounded on the collective of national constitutions, a fact that the Luxembourg judges are keen to refer to with the rather misleading phrase of “common constitutional tradition.” 10. See Pedro Cruz, La Constitución Inédita (Madrid: Trotta, 2004); Rainer Arnold, “The European Constitution and the Transformation of National Constitutional Law,” in A Constitution for Europe: The IGC, the Ratification Process and Beyond, ed. Ingolf Pernice and Jirí Zemánek (Baden-Baden: Nomos, 2005), 1–11. 11. See Joseph Weiler, “Federalism without Constitutionalism: Europe’s Sonderweg,” in The Federal Vision, ed. Kalypso Nicolaidis and Robert Howse (Cambridge: Cambridge University Press, 2003), 54–70; and see Tony Judt, A Grand Illusion? (New York: Hill & Wang, 1996). 12. On this, see Alexander Somek, “Kelsen lives,” European Journal of International Law 18 (2007): 409–51. A critique of pluralistic theories of European law is in Agustín J. Menéndez, “Is European Law a Pluralist Legal Order?” in The PostSovereign Constellation, ARENA Report 4/2008, ed. Agustín José Menéndez and John Erik Fossum (Oslo: ARENA, University of Oslo), 233–314. 13. See especially Neil MacCormick, Questioning Sovereignty (Oxford: Oxford University Press, 1999), 121ff. This “moderate” pluralism under international law was analytically clarified by Catherine Richmond, “Preserving the Identity Crisis: Autonomy, System and Sovereignty in European Law,” Law and Philosophy 16 (1997): 377–420. See also Menéndez, supra, n. 12 for a contrast between constitutional synthesis and constitutional pluralism. 14. The term national constitutional identity entered the European debate in the famous ruling of the German Constitutional Court Solange I, 1974 WL 42441 (BverfG (Ger)), [1974] 2 C.M.L.R. 540, par. 22. It was then propelled to the supranational level in Maastricht (resulting in article 6.3 of the Treaty of European Union, where the principle of respect of national identities in general terms was affirmed). And in the Constitutional Treaty and in the Treaty of Lisbon, this principle was spelled out by reference to constitutional identity. On the academic debate following the Constitutional Treaty, see Michel Rosenfeld, “The European Treaty-Constitution and Constitutional Identity: A View from America,” International Journal of Constitutional Law 3 (2005): 316–31. 15. Cf. Neil D. MacCormick’s writings on European constitutional pluralism, partially collected in Questioning Sovereignty (Oxford: Oxford University Press, 1999). 16. Alan Milward, The Rescue of the European Nation-State (London: Routledge, 1992). 17. William E. Scheuermann, “Postnational Democracies without Postnational States? Some Skeptical Reflections,” Ethics & Global Politics 2 (2009): 41–63; Hauke Brunkhorst, “Reply: States with Constitutions, Constitutions without States, and Democracy—Skeptical Reflections on Scheuerman’s Skeptical Reflection,” Ethics & Global Politics 2 (2009): 65–81. 18. See Zachary Elkins, Tom Ginsburg, and James Melton, The Endurance of National Constitutions (Cambridge: Cambridge University Press, 2009). Previous literature on the issue has been dominated by economic analyses of constitutional law.


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19. On the demanding character of pluralism, see MacCormick, supra, n. 15, chap. 7 (“Juridical Pluralism and the Risk of Constitutional Conflict”). In more general constitutional terms, see Gustavo Zagrebelsky, La Virtù del dubbio (Bari: Laterza, 2007), especially at 50 and 105. This observation makes it natural to consider both (a) the preconditions for synthetic constitutionalism, as done in this section, and (b) the limits to synthetic constitutionalism, as done in the section of this chapter entitled “Exogenous and Endogenous Constraints.” 20. See Rainer Bauböck, “Why European Citizenship? Normative Approaches to Supranational Union,” Theoretical Inquiries in Law 8 (2007): 453–88, for the differentiated rights these categories of citizens have in the EU. 21. See Tony Judt, Postwar (New York: Penguin, 2005), chap. 1 (“The Legacy of War”). 22. Cf. the British federalist literature, which is the “missing link” between the democratic thought about the Commonwealth and European integration. See John Pinder, ed., Altiero Spinelli and the British Federalists (London: I. B. Tauris, 1999) (compiling texts of Beveridge and Robbins along the Manifesto de Ventotene). On the Italian federalist literature, see Altiero Spinelli, From Ventotene to the European Constitution, ed. Agustín José Menéndez, RECON Report 1 (Oslo: University of Oslo, 2007). 23. John Rawls, Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971), 334. In Morgenthau’s classical argument in Politics among Nations, a world state is claimed to be needed in order to ensure peace and order (p. 525). While the functional approach of the European Communities is felt to be “promising” (and European integration in general “revolutionary” in terms of method [p. 555]), the world state is unattainable under present “social, moral and political conditions” (p. 563). On the normative underpinnings of Morgenthau’s thinking, see William Scheuerman, Morgenthau (London: Polity, 2009), especially 132–34. We are quoting from the sixth edition of Politics among Nations (New York: McGraw-Hill, 1986). The strength of Keynes’s argument in The Economic Consequences of the Peace (London: Macmillan, 1920) derives from the combination of these prudential and normative considerations. 24. The endorsement of the European project by European citizens was not articulated in electoral terms, but was rather obvious in the early fifties. See, for example, the very informative Gérard Herberichs, “Is There No European Opinion?” American Behavioral Scientist 3 (1959): 3–9. On resistance movements, the opus magnus is Walter Lipgens’s multivolume Documents in the History of European Integration (Berlin and New York: De Gruyter, 1988). A critical analysis of the actual influence of resistance movements on European integration is in Pieter Lagrou, The Legacy of Nazi Occupation (Cambridge: Cambridge University Press, 2000), especially chap. 14. 25. See references in n. 8, chap. 3. 26. See Ingolf Pernice and Franz Mayer, “La Costituzione Integrata dell’Europa,” in Diritti e costituzioni nell’Unione Europea, ed. Gustavo Zagrebelsky (Bari: Laterza, 2003), 43–68, at 59. 27. On the unfolding of the process through the ratification of the founding treaties, see European Coal and Steel Community, “Le Traité C.E.C.A. devant les parlements nationaux” (Luxembourg: Assemblée Commune du Communaté Européene du Charbon et de l’acier, Feb. 1958), and the dossiers compiled in ena.lu


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(Paris: http://www.ena.lu/ratification_ecsc_treaty-2-36456; Rome: http://www.ena .lu/signing_rome_treaties-2-26527). 28. Friedrich, supra, n. 8. 29. See the so-called Birkelbach report of the European Parliament (“Report by Willi Birkelbach on the Political and Institutional Aspects of Accession to or Association with the Community, European Parliament, 19 December 1961,” available at http://www.ena.lu/report_willi_birkelbach_political_institutional_aspects_acces sion_association_with_community_december_1961-020006013.html. On socialization processes in the European Union, see Cris Shore, Building Europe (London: Routledge, 2000); Gerard Delanty, Inventing Europe (Houndsmills: Palgrave, 1995); Gerard Delanty and Chris Rumford, Rethinking Europe (London: Routledge, 2005). 30. On the complex history of the European Convention of Human Rights and the European Court, with a very sophisticated analysis of its (intended) role in the Cold War and its (unintended) role in decolonization, see A. W. Brian Simpson, Human Rights and the End of Empire (Oxford: Oxford University Press, 1999); Mikael Rask Madsen, “France, the United Kingdom and the Boomerang of the Internationalization of Human Rights,” in Human Rights Brought Home, ed. Simon Halliday and Patrick Schmidt (Oxford: Hart Publishers, 2004), 57–86; Mikael Rask Madsen, “From Cold War Instrument to European Supreme Court,” Law and Social Inquiry 32 (2007): 137–59. 31. The concept of a “synthetic constitutional moment” contains an intentional echo to Ackerman’s “constitutional moment.” The difference between the two should be clearly established. The synthetic constitutional moment corresponds to the “new constitutional beginning” in which a new supranational order is established. This is, however, not preceded by a legitimizing revolutionary constitutionmaking process. A similar legitimizing role is played by the regulatory ideal of a common constitutional law. On the constitutional moment, see the references in n. 54, chap. 1. 32. The vertical dimension refers to the “uploading” of institutions from the member states to the EU level whereas the horizontal dimension refers to the member-state level. Synthesis speaks to both simultaneously. 33. The realization that the federal path was difficult to follow once the nationstates had consolidated after the European zero hour was noted by the federalist literature in the last months of the war and the first of the postwar. See the works of Spinelli referred to in n. 22. 34. That was perhaps further proved by the failure of the European Defence Community (EDC) in 1954. 35. As correctly affirmed in the Lisbon Judgment of the German Constitutional Court, Judgment of 30 June 2009, available at http://www.bundesverfassungsgeri cht.de/en/decisions/es20090630_2bve000208en.html, par. 262. 36. See Joseph H. H. Weiler, “The Transformation of Europe,” Yale Law Journal 100 (1991): 2403–83; Karen Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (Oxford: Oxford University Press, 2001). 37. Because the regulatory ideal needs to be fleshed out in concrete cases, it is not surprising that courts played a key role in the process. 38. Constitutional synthesis is different from evolutionary constitutionalism in the sense that there is always an agent (be it the legislature or the judiciary) behind


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the process of fleshing out the concrete implications of the regulatory ideal of a common constitutional law. 39. See Agustín José Menéndez, “More Human, Less Social: The Jurisprudence of the ECJ on Citizenship,” in The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty, ed. Miguel Poiares Maduro and Loic Azoulai (Oxford: Hart Publishers, 2009), 363–93. See also Alexander Somek, “The Argument from Transnational Effects I: Representing Outsiders through Freedom of Movement,” European Law Journal 16 (2010): 315–44. 40. Case C-438/05, Viking, [2007] ECR I-10779; Case C-341/05, Laval, [2007] ECR I-11767; Case C-346/06, Ruffert, [2008] ECR I-1989. Paragraph 59 of the Conclusions of Advocate General Maduro is especially revealing. 41. Lisbon judgment, supra, n. 35. 42. Lisa Conant, Justice Contained: Law and Politics in the European Union (Ithaca: Cornell University Press, 2002). 43. Indeed, the absence of a compelling theory is wrongly taken as conclusive evidence to the effect that Community law is undemocratic or even unconstitutional. 44. The European Union was forged as a congeries of organizations. But this organizational structure is adapted to and gives distinct shape to the Union’s legal-constitutional system. In contrast to the state (including the federal state), the Union’s structure is marked by absence of explicit conferral of constitutional authority to the overarching federal level. This sets the EU apart from federations where federalization entailed a new status for the member states. See Andrew Glencross, What Makes the EU Viable (London: Palgrave Macmillan, 2009), 27, with reference to Carl Schmitt, “The Constitutional Theory of Federalism,” Telos 91 (1992): 26–52, at 55. Instead, the constitutional structure is carried by all the component legal-constitutional chaperones (high or supreme courts in all member states and at the Union level). This is what we call the constitutional field. We draw on the notion of organizational field to underline the peculiar manner in which the constitutional dimension is organizationally embedded. 45. On the Parliament, see Berthold Rittberger, Building Europe’s Parliament: Democratic Representation beyond the Nation-State (Oxford: Oxford University Press, 2005). See in more detail the references in chapter 3, nn. 144–59. 46. Berthold Rittberger notes in his analysis of the formation of the European Parliament that “the model of representative, parliamentary democracy is the template which guides political elites’ responses to the perceived legitimacy deficit.” Ibid. 47. Ibid. 48. See Alter, supra, n. 36, and Alec Stone Sweet, The Judicial Construction of Europe (Oxford: Oxford University Press, 2004). 49. Indeed, the fleshing out of the right of access to a Community court by the European Court of Justice in the late eighties and nineties (which we consider in chapter 3) put considerable isomorphic pressures on national courts. See, for example, Eduardo García de Enterría, La batalla por las medidas cautelares: Derecho comunitario europeo y proceso contencioso-administrativo español (Madrid: Civitas, 2006). See also Filip Ragolle, “Access to Justice for Private Applicants in the Community Legal Order: Recent (R) evolutions,” European Law Review 28 (2003): 90–101. Denning’s incoming tide (H. P. Bulmer Ltd. v. J Bollinger SA [1974] Ch 401, at 418) is indeed rising malgré Denning.


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50. See chapter 3 and also Anne Marie Slaughter, New World Order (Princeton: Princeton University Press, 2004). 51. Simon Hix, Abdul G. Noury, and Gérard Roland, Democratic Politics in the European Parliament (Cambridge: Cambridge University Press, 2007). 52. Ben Crum and Eric Miklin, “Reconstructing Parliamentary Sovereignty in Multilevel Polities: The Case of the EU Services Directive” (paper prepared for the Workshop “Inter-Parliamentary Relations in Europe” at the 2010 ECPR Joint Sessions in Münster (D), 22–27 March 2010). 53. The structure of interparliamentary cooperation is unique in the EU and has taken on the shape of an organizational field. In that sense we are talking about the possibility of further solidifying this field. See Ben Crum and John E. Fossum, “The Multilevel Parliamentary Field: A Framework for Theorising Representative Democracy in the EU,” European Political Science Review 1, 2 (2009): 249–71. 54. See Christian Joerges, “Deliberative Supranationalism: Two Defences,” European Law Journal 8 (2002): 133–51; Agustín José Menéndez, “The European Democratic Challenge,” European Law Journal 15 (2009): 277–308. 55. Article 7, first paragraph of the original text of the Treaty of European Community. On the principle of nondiscrimination as expression of a general right to equality, see Joined Cases 124/76 and 20/77, Moulins Pont-à-Mousson, [1977] ECR 1795, especially par. 16 and 17. See also Takis Tridimas, The General Principles of EC Law (Oxford: Oxford University Press, 2000), chap. 2; Anthony Arnull, The European Union and Its Court of Justice (Oxford: Oxford University Press, 2006), 201–3. 56. Indeed, see Joseph H. Weiler, “Federalism without Constitutionalism: Europe’s Sonderweg,” in The Federal Vision, ed. Kalypso Nicolaïdis and Robert Howse (Cambridge: Cambridge University Press, 2001), 54–70; Weiler, “Thou Shalt Not Oppress a Stranger,” European Journal of International Law 3 (1992): 65–91. 57. See Helen Wallace, “The Impact of the European Communities on National Policy-Making,” Government and Opposition 6 (1971): 520–38; see also Johan P. Olsen, Europe in Search of Political Order (Oxford: Oxford University Press, 2006). 58. See, for example, Adrienne Héritier, Dieter Kerwer, Christopher Knill, Dirk Lehmkuhl, Michael Teutsch, and Anne-Cecile Douillet, Differential Europe: The European Union Impact on National Policymaking (Lanham, Md.: Rowman & Littlefield, 2001). 59. In addition, we would like to underline the role of MacCormick’s institutional theory of law, which the Scottish philosopher applied to the Union since the early nineties. MacCormick was a theorist on a broader scale than that of European integration. 60. Wolfgang Wessels, “An Ever Closer Fusion? A Dynamic Macropolitical View on Integration Processes,” Journal of Common Market Studies 35, no. 2 (1997): 267–99; see also Wolfgang Wessels and Dietrich Rometsch, “Conclusion: European Union and National Institutions,” in The European Union and Member States: Towards Institutional Fusion?, ed. D. Rometsch and W. Wessels (Manchester: Manchester University Press, 1996), 328–65. 61. This mode of thinking has roots in the German federal-inspired cooperative federalism literature. Consider the large body of German literature on Politikverflechtung, which was initially discussed in relation to the EU by Fritz Scharpf, “The


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Joint-Decision Trap: Lessons from German Federalism and European Integration,” Public Administration 66 (1988): 239–78. 62. Wolfgang Wessels, “Keynote Article: The Constitutional Treaty—Three Readings from a Fusion Perspective,” Journal of Common Market Studies 43 (2005): 11–36, at 14–15. 63. Pernice, supra, n. 26; Pernice, “Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-Making Revisited?” Common Market Law Review 36 (1999): 703–50; and Pernice, “The Treaty of Lisbon: Multilevel Constitutionalism in Action,” Columbia Journal of European Law 15 (2009): 349–407. 64. Ibid. (2009), at 374. 65. See also what to us seems to be a variant of multilevel constitutionalism, the theory of the composite legal order put forward by Giacinto della Cannanea, Unione europea: Un ordinamento composito (Rome and Bari: Laterza, 2003). 66. Pernice, supra, n. 63 (2009), at 372. 67. Andrew Moravcsik, The Choice for Europe (London: UCL Press, 1998), 1. 68. In numerous publications, he has sought to explain the emergence of the EU. In his major work he devises a three-step LI approach, which consists of state preferences, interstate bargaining, and institutional choice. The conclusion with regard to European integration is that it “exemplifies a distinctly modern form of power politics, peacefully pursued by democratic states for largely economic reasons through the exploitation of asymmetrical interdependence and the manipulation of institutional commitments.” Cf. ibid., at 5. See also Andrew Moravcsik, “Negotiating the Single European Act: National Interests and Conventional Statecraft in the European Community,” International Organisation 45, no. 1 (1991): 19–56; Moravcsik, “A Liberal Intergovernmental Approach to the EC,” Journal of Common Market Studies 31, no. 4 (1993): 473–524; Moravcsik, “Is There a ‘Democratic Deficit’ in World Politics? A Framework for Analysis,” Government and Opposition 39, no. 2 (2004): 336–63; Moravcsik, “The European Constitutional Compromise and the Neofunctionalist Legacy,” Journal of European Public Policy 12, no. 2 (2005): 349–86; Moravcsik, “Europe without Illusions: A Category Error,” Prospect Magazine 112 (2005): 1–5, available at http://www.prospect-magazine.co.uk/pdfarticle .php?id=6939; Moravcsik, “What Can We Learn from the Collapse of the European Constitutional Project?” Politische Vierteljahresschrift 47, no.2 (2006): 219–41; Moravcsik, “The European Constitutional Settlement,” in Making History: European Integration and Institutional Change at 50, ed. K. McNamara and S. Meunier (New York: Oxford University Press, 2007), 8:23–50. 69. Ibid. (2007). 70. Moravcsik establishes issue salience through examining whether citizens consider the issues that the EU is presently handling to be of importance to them. For this to work for Laeken, it must be made clear that these issues are of such a character as to render a constitutional project unfeasible. We will show in chapter 4 that the project was considered neither unfeasible nor unimportant to citizens. 71. Pernice, supra n. 63 (2009), at 371. 72. See Joseph Weiler, “To Be a European Citizen: Eros and Civilization,” Journal of European Public Policy 4 (1997): 495–519; The Constitution of Europe (Cambridge: Cambridge University Press, 1999); “Editorial: Does the European Union Truly Need a Charter of Rights?” European Law Journal 6 (2000): 95–97; “European De-


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mocracy and the Principle of Toleration: The Soul of Europe,” in A Soul for Europe, Vol. 1, ed. F. Cerutti and E. Rudolph (Leuven: Peeters, 2001), 33–54; “Federalism without Constitutionalism: Europe’s Sonderweg,” in The Federal Vision, ed. Kalypso Nikolaïdis and Robert Howse (Oxford: Oxford University Press, 2001), 54–71; “A Constitution for Europe: Some Hard Choices?” Journal of Common Market Studies 40 (2002): 563–80. 73. For later theories of constitutional pluralism very much influenced by Weiler and Joerges, see Miguel Maduro, “Contrapunctual Law,” in Sovereignty in Transition, ed. Neil Walker (Oxford: Hart, 2003), 501–37; and Neil Walker, “The Idea of Constitutional Pluralism,” Modern Law Review 65 (2002): 317–59. 74. Weiler, “The Community System: the Dual Character of Supranationality,” in Yearbook of European Law (1981), 267–306; and “The Transformation of Europe,” Yale Law Journal 100 (1991): 2403–83. 75. In addition to the references in the previous note, see also Anne Marie Slaughter, Alec Stone Sweet, and Joseph Weiler, eds., The European Court and National Courts: Doctrine and Jurisprudence (Oxford: Hart, 1998). 76. Weiler, n. 72 (2002), at 568. 77. See his Europa Cristiana (Milan: Rizzoli, 2004), where he defends a “Christian” Europe, perhaps more aptly labeled as a “Catholic” Europe; for a critique in Weilerian spirit, see Alexander Somek, Solidarity Decomposed: Time and Being in European Citizenship (forthcoming and on file with the authors). 78. Christian Joerges, “The Challenges of Europeanization in the Realm of Private Law: A Plea for a New Legal Discipline,” Duke Journal of Comparative and International Law 14 (2004): 149–96; Christian Joerges and Florian Rödl, “On the Social Deficit of the European Integration Projects and Its Perpetuation through the ECJ Judgments in Viking and Laval” (RECON working paper, 2008/06), available at http://www.reconproject.eu/main.php/RECON_wp_0806.pdf?fileitem=5456225; Rainer Nickel, ed., Conflict of Laws and Laws of Conflict in Europe and Beyond: Patterns of Supranational and Transnational Juridification, RECON Report 7, available at http://www.reconproject.eu/main.php/RECONreport0709.pdf?fileitem=29736995 (including Joerges’s own chapter, “Integration through Conflicts Law: On the Defence of the European Project by Means of Alternative Conceptualisation of Legal Constitutionalisation,” 531–61); Christian Joerges, “Sozialstaatlichkeit in Europe? A Conflict-of-Laws Approach to the Law of the EU and the Proceduralisation of Constitutionalisation,” German Law Journal 10 (2009): 335–60. 79. Joerges and Rödl, supra, n. 82.

CHAPTER 3: FROM PARIS TO NICE 1. As already presciently predicted by John Maynard Keynes, The Economic Consequences of the Peace (London: Macmillan, 1920) and Luigi Einaudi, La guerra e l’unità europea (Florence: Le Monnier, 1984). On the social, economic, and political atmosphere on May 1945, see the magisterial Tony Judt, Postwar (New York: Viking, 2006).


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2. See, for example, The Manifesto of Ventotene, authored by Altiero Spinelli and Ernesto Rossi, now reproduced in Agustín José Menéndez, ed., From Ventotene to the European Constitution (Oslo: ARENA Report 1/2007). 3. Peter Flora, Stein Kuhnle, and Derek Urwin, eds., State Formation, NationBuilding, and Mass Politics in Europe: The Theory of Stein Rokkan Based on His Collected Works (Oxford: Oxford University Press, 1999). 4. A superb account of this terrible moment is found in Tony Judt, Postwar (New York: Penguin, 2005), chap. 1. 5. Carl Friedrich, “The Political Theory of the New Constitutions,” in Constitutions and Constitutional Trends Since World War II, ed. Arnold J. Zurcher (New York: New York University Press, 1951), 13–35. 6. See the interesting debate between two of the most distinguished “émigré” constitutional lawyers and political theorists (Carl Friedrich and Karl Loewenstein) on the nature of postwar European constitutions. “Reflections on the Value of Constitutions on Our Revolutionary Age,” in Constitutions and Constitutional Trends since World War II, ed. Arnold J. Zurcher (New York: New York University Press, 1951), 191–224, and the Friedrich chapter in the previous note. 7. The preamble of the 1946 French constitution stated that “provided the principle of reciprocity is guaranteed, the French Republic will agree to limitations of sovereignty when necessary for the organization and guarantee of peace.” Article 11 of the 1948 Italian constitution still reads, “Italy repudiates war as an instrument offending the liberty of the peoples and as a means for settling international disputes; it agrees to limitations of sovereignty where they are necessary to allow for a legal system of peace and justice between nations, provided the principle of reciprocity is guaranteed; it promotes and encourages international organizations furthering such ends.” The first two sections of article 24 of the German constitution stated that “1. The Federation may, by legislation, transfer sovereign powers to international institutions; 2. For the maintenance of peace, the Federation may join a system of mutual collective security; in doing so it will consent to such limitations upon its sovereign powers as will bring about and secure a peaceful and lasting order in Europe and among the nations of the world.” Even if the Luxembourgian constitution still did not contain anything vaguely resembling a protoEuropean clause, the Conseil d’État constructed its fundamental law along very similar lines. When reviewing the constitutionality of the treaty establishing the Coal and Steel Community, the Conseil affirmed that Luxembourg not only could, but should, renounce certain sovereign powers if the public good so required. See “Avis du Conseil d’État” of 9 April 1952 at http://www.ena.lu?lang=1&doc=9644. By 1957, both the Dutch and the Luxembourgian constitutions had been amended to include a similar proto-European clause. In the Dutch case, the constitutional amendment had been introduced in 1953 in view of the eventual ratification of the treaty that established the European Defence Community. The new drafting of article 67 enabled the conferral of legislative, administrative, and jurisdictional powers to “organizations based on international law” at the same time as article 63 went so far as to state that “the contents of an agreement may deviate from certain provisions of the constitution,” subject to the double condition that “development of the international legal order requires this” and that the agreement is approved by a two-thirds majority in both parliamentary chambers. Moreover,


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article 65 as thus amended affirmed the primacy of international law within the national legal order. On what concerns the Constitution of the Grand Duchy, a new article 49a was inserted into the fundamental law in 1956, and it read that “[t] he exercise of the powers reserved by the Constitution to the legislature, executive, and judiciary may be temporarily vested by treaty in institutions governed by international law.” On the role of courts in realizing the national mandate of integration, see Michael Waelbroeck, “The Application of EEC Law by National Courts,” Stanford Law Review 19 (1967): 1248–76; Pierre Pescatore, “L’application directe des traités européens par les juridictions nationales: la jurisprudence nationale,” Revue Trimestrielle de Droit Européen 5 (1969): 697–723. 8. On international law and national constitutions, see Karl Loewenstein, “Sovereignty and International Cooperation,” American Journal of International Law 48 (1954): 222–44, especially 233–34 (Coal and Steel Community) and 237–38 (European Defence Community); Antonio Cassesse, “Modern Constitutions and International Law,” Recueil 192 (1985): 331–476; Thomas M. Franck and Arun K. Thiruvengadam, “International Law and Constitution-Making,” Chinese Journal of International Law 2 (2003): 467–518. On European clauses in the constitutions of member states of the European Union, see Monica Claes, “Constitutionalising Europe at Its Source,” Yearbook of European Law 24 (2005): 81–125; Christopher Grabenwarter, “National Constitutional Law Relating to the European Union,” in Principles of European Constitutional Law, ed. Armin Von Bogdandy and Jürgen Bast (Oxford: Hart Publishers, 2006), 95–144. On more recent clauses, see Anneli Albi, “‘Europe’ Articles in the Constitutions of Central and Eastern European Countries,” Common Market Law Review 42 (2005): 399–423. Specifically on the Belgian and Dutch constitutions, see Bruno de Witte, “Do Not Mention the Word: Sovereignty in Two Europhile Countries, Belgium and the Netherlands,” in Sovereignty in Transition, ed. N. Walker (Oxford: Hart Publishing, 2003), 351–66. 9. See references in n. 7 above. 10. Polanyi, in The Great Transformation (Boston: Beacon Press, 1944) rightly refers to international capitalists, especially financiers, as key actors in the process of maintaining the peace, as they were the only set of people who could exercise effective voice across borders. 11. One should also take into account the pressure exerted by the United States as the main hegemonic power in Western Europe, reinforced through the Organisation for European Economic Cooperation and later the Marshall Plan. There was also a widespread belief that Europe could achieve a standard of living similar to that of the United States only through increasing the size of its markets. Thus, one could argue that normative and constitutional arguments were reinforced by favorable prudential arguments and geopolitical factors. See Alan Milward, The Reconstruction of Western Europe 1945–1951 (Berkeley: University of California Press, 1984); on the structural power of the United States, see Susan Strange, “Towards a Theory of Transnational Empire,” in Global Changes and Theoretical Challenges: Approaches to World Politics for the 1990s, ed. Ernst-Otto Czempiel and James N. Rosenau (Lexington, Mass.: Lexington Books, 1989), 161–76. On cultural hegemony and propaganda, see Victoria De Grazia, Irresistible Empire: America’s Advance through Twentieth-Century Europe (Cambridge, Mass.: Harvard University Press, 2005); Frances Stonor Saunders, Who Paid the Piper?: CIA and the Cultural Cold War


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(New York: New Press, 2001); Kees Van Der Pijl, The Making of an Atlantic Ruling Class (London: Verso, 1984), chaps. 6 and 7. 12. Cf. Ernst B Haas, “The United States of Europe,” Political Science Quarterly 63 (1948): 528–50. 13. The question as to whether supranational integration should be undertaken at a European or at a world scale was intensely debated. This was especially so in the British case. See Richard Mayne and John Pinder, Federal Union: The Pioneers (Houndmills: Palgrave Macmillan, 1990). 14. After a failed attempt at creating a Defence and Political quasi-federal community. See Kevin Ruane, The Rise and Fall of the European Defense Community: Anglo-American Relations and the Crisis of European Defense, 1950–55 (Basingstoke: Palgrave, 2000); and Richard T. Griffiths, Europe’s First Constitution: The European Political Community, 1952–1954 (London: Kogan Page, 2000). 15. Merger Treaty, OJ 152, of 13 July 1967; available on e-mail request from http://www.eur-lex.eu. 16. The characterization of Community law as public international law has been rather resilient in the doctrine. See, for example, Derrick Wyatt, “New Legal Order or Old,” European Law Review 7 (1982): 147–66. And indeed, treaty amendments continue to be characterized as mere matters of ratification of international treaties in many member states (indeed, most during Lisbon, resulting from the characterization of the process by the European Council). 17. Still a far-from-negligible tax, and historically a determinant one. See Alan Milward, “Tariffs as Constitutions,” in The International Politics of Surplus Capacity, ed. Susan Strange and Roger Tooze (London: George Allen & Unwin, 1981), 57–66. 18. More than 20 percent of the population of the EEC was occupied in agriculture and farming in 1951. See Tony Judt, Postwar (New York: Penguin, 2005), 327. On the relationship between fear of economic change and electoral support of the Nazis, critically by farmers, see Thomas Childers, “The Social Basis of the National Socialist Vote,” Journal of Contemporary History 11 (1976): 17–42 at 29: “It was most successful with those small merchants, craftsmen, and farmers of the old middle class who feared, or actually suffered, the social and economic displacement associated with the emergence of modern industrial society and who were, therefore, most receptive to the regressive anti-modernist appeal of National Socialism.” 19. For an account of the Common Assembly’s metamorphosis into the European Parliament, see Berthold Rittberger, Building Europe’s Parliament (Oxford: Oxford University Press, 2005). 20. Article 6 contained a clause on prohibition of discrimination on the grounds of nationality, and article 119 stated the principle of equal pay for equal work for men and women. For the limited and truncated character of the constitution of antidiscrimination, see Alexander Somek, “A Constitution for Antidiscrimination: Exploring the Vanguard Moment of Community Law,” European Law Journal 5 (1999): 243–71. 21. Ingolf Pernice, “The Treaty of Lisbon: Multilevel Constitutionalism in Action,” Columbia Journal of European Law 15 (2009): 349–407, at 369. Pernice refers to the explanatory memorandum to the 1957 German law ratifying the EEC, which described the Community as a “European body of constitutional nature.”


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22. See the parliamentary debates on the ratification of the treaty establishing the Coal and Steel Community, in Le Traité C.E.C.A. devant les parlements nationaux (Luxembourg: Common Assembly, 1958). Walter Hallstein was a staunch speaker in that sense as first president of the Commission of the European Economic Community. See, for example, “The EEC Commission: A New Factor in International Life,” International and Comparative Law Quarterly 14 (July 1965), 727–41. 23. Andrew Moravcsik, “Preferences and Power in the European Community: A Liberal Intergovernmentalist Approach,” Journal of Common Market Studies 31(1993): 473–524; The Choice for Europe (London: UCL Press, 1998). 24. Eric Stein, “Lawyers, Judges, and the Making of a Transnational Constitution,” American Journal of International Law 75 (1981): 1–27; Giuseppe Federico Mancini, “The Making of a Constitution for Europe,” Common Market Law Review 26 (1989): 595–614; Joseph H. H. Weiler, “The Transformation of Europe,” Yale Law Journal 100 (1991): 2403–83; and Karen Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (Oxford: Oxford University Press, 2001). 25. Paul Reuter, “Le Pouvoir politique dans le Plan Schuman,” Revue française de science politique 1 (1951): 256–76, at 268. 26. Imbalances were, however, looming. In national political terms, the impact of decolonization was considerable, at some points fostering integration—Suez looms large in explaining French endorsement of the Rome Treaties; see Tony Judt, Postwar (New York: Penguin, 2005), 292, referring to Guy Mollet’s succinct summary: “Europe will be your revenge”—at others, rendering it problematic (the colonial war in Algeria created a risk of internal implosion and authoritative transformation, which was overcome only by the Fifth Republic and the rise of de Gaulle, who then exerted a major influence in the shape of the Communities); on defense policy, see Frédéric Bozo, Two Strategies for Europe: De Gaulle, the United States and the Atlantic Alliance (Lanham, Md.: Rowman & Littlefield, 2001); on foreign and monetary policy, see Erin R. Mahan, Kennedy, De Gaulle and Western Europe (Basingstoke: Palgrave, 2002); on European policy in more general terms, see Andrew Moravcsik, “De Gaulle between Grain and Grandeur: The Political Economy of French EC Policy, 1958–1970,” Cold War Studies 2 (2000): 3–43 and 117–42, and the comments and reactions published in the same issue, and at the same time cushioning against internal involution (Italy and the “strategia della tensione”: Maurizio Calvi, Alessandro Ceci, Angelo Sessa, and Guilio Vasaturo, Le date del terrore: La genesi del terrorismo italiano e il microclima dell’eversione dal 1945 al 2003 [Roma: Luca Sossella Editore, 2003]; and Stefania Limiti, L’Anello della Repubblica [Milano: Chiarelettere, 2009]). On social imbalances resulting from the implicit xenophobic traits in the use of guest workers as a flexible supply of labor, see Stephen Castles, “The Guest-Worker in Western Europe: An Obituary,” International Migration Review 20 (1986): 61–78. 27. Geir Lundestad, “Empire by Invitation? The United States and Western Europe, 1945–1952,” Journal of Peace Research 23 (1986): 263–77. 28. See references in n. 22. 29. The original in French reads: “Bien que le but directement visé par le Traité et les Conventions soit d’ordre économique, il est incontestable que le Plan a une portée politique voulue. . . . L’Histoire nous apprend que très souvent la


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collaboration économique entre Etats a été le prélude et la base d’une unification politique. . . . Ces buts élevés à atteindre justifient certains sacrifices que les Etats européens doivent nécessairement consentir. Il est évident que l’institution d’autorités supranationales exige la renonciation à certaines parts de souveraineté nationale. La question de la reconnaissance, au regard de la Constitution luxembourgeoise, d’une autorité supranationale, fera l’objet de développements ultérieurs. Mais, en principe, il faut admettre qu’un Etat peut et doit renoncer à certaines parties de sa souveraineté, si le bien public, fin dernière de l’organisation étatique, l’exige. A côté du bien public interne, il y a le bien public international. En maintes occasions, la réalisation du bien public interne peut être en fonction du bien public supranational.” (Authors’ translation) 30. “Rapport du Comité Fiscal et Financier,” more usually referred as the Neumark Report (1962), available at http://bookshop.europa.eu/is-bin/INTERSHOP .enfinity/WFS/EU-Bookshop-Site/fr_FR/-/EUR/ViewPDFFile-OpenPDFFile?FileNam e=CB6208070FRC_002.pdf&SKU=CB6208070FRC_PDF. 31. Even if the long-term consequences were far from fully satisfactory, as even the key drivers of the Common Agricultural Policy would come to realize, including Commissioner Sicco Mansholt. 32. Th. W. Vogelaar, “The Approximation of the Laws of the Member States under the Treaty of Rome,” Common Market Law Review 12 (1975): 211–30. 33. The Grosse Koalition of 1967 led to the Growth and Stability Law of 1967, which shifted political policy from Erhard’s ordoliberalism to Schiller’s overt Keynesianism. See Jeremy Leaman, The Political Economy of West Germany, 1945–85 (Houndmills: Macmillan, 1988). (On the Growth and Stability Law of 1967, see pp. 197ff.) 34. See Christopher S. Chivvis, The Monetary Conservative (De Kalb, Ill.: Northern Illinois University Press, 2010). 35. Christian Franck, “New Ambitions: From the Hague to Paris Summits, 1969–72,” in The Dynamics of European Union, ed. Roy Pryce (London: Croom Helm, 1987). 36. See Per Lachmann, “Some Danish Reflections on the Use of Article 235 of the Rome Treaty,” Common Market Law Review 18 (1981): 447–61; Robert Schutze, “Dynamic Integration—Article 308 EC and Legislation in the Course of the Operation of the Common Market,” Oxford Journal of Legal Studies 23 (2003): 333–44. 37. This process of “consultation” further testifies to the character of this structure as a “constitutional field” because the procedure underlines how tightly interwoven the legal systems were in actual operative practice. 38. “Rapport fait par M. P.-H. Teitgen sur les pouvoirs de contrôle de l’Assemblée Commune et leur exercice” (1954), available at http://www.ena.lu/teitgen_ report_19_november_1954-2-5124 ; followed by “Résolution de l’Assemblée commune relative aux pouvoirs de l’Assemblée commune et à leur exercice” (2 December 1954), available at http://www.ena.lu/common_assembly_resolution _december_1954-2-5122; “Résolution du Parlement européen sur les compétences et les pouvoirs du Parlement européen” (27 June 1963), available at http:// www.ena.lu/european_parliament_resolution_concerning_powers_responsibilities _june_1963-2-4525. After the 1970 treaties, on parliamentary powers, see “Report of the Working Party Examining the Problem of the Enlargement of the Powers


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of the European Parliament: Report Vedel,” available at http://www.ena.lu/vedel_ report_25_march_1972-2-790. 39. “Rapport général de Fernand Dehousse, président du groupe de travail pour les élections européennes, relatif au Projet de convention sur l’élection de l’Assemblée parlementaire européenne au suffrage universel direct, soumis à l’Assemblée le 30 avril 1960,” available at http://www.ena.lu/general_report_fernand_dehousse_ member_european_parliamentary_assembly_april_1960-2-10411. 40. “Rapport fait au nom de la commission politique de l’Assemblée parlementaire européenne sur les aspects politiques et institutionnels de l’adhésion ou de l’association à la Communauté par M. Willi Birkelbach, Rapporteur” (19 December 1961), available at http://www.ena.lu/report_willi_birkelbach_political_institutional_ aspects_accession_association_with_community_december_1961-2-18103. 41. Opinion in case 8/55, Federation Charbonnière de Belgique v. High Authority, [1954-56] ECR 292. Lagrange stated that the European Coal and Steel Treaty should be regarded as “the Charter of the Community from the material point of view . . . even though concluded in the form of a Treaty.” On the German Constitutional Court, see 22 BVerfGE 293, at 296. On the European Court of Justice, see Case 294/83, Parti écologiste ‘Les Verts’ v European Parliament, judgment of 23 April 1986, [1986] ECR 1357, paragraph 23. 42. Despite Case 25/70 Köster, [1970] ECR 1161. 43. See Fernando Losada and Agustín José Menéndez, “El sistema de fuentes del derecho comunitario: Toma de Decisiones en la Unión Europea: Las normas jurídicas y la Política en la Formación del Derecho Europeo,” in El Consejo de Estado y la integración europea, ed. Francisco Rubio Llorente (Madrid: Consejo de Estado y Centro de Estudios Políticos y Constitucionales, 2008), 335–467. 44. Cf. Francis Snyder, “The Use of Legal Acts in EC Agricultural Policy,” in Sources and Categories of European Union Law, ed. Gerd Winter (Baden-Baden: Nomos, 1996), 347–84. 45. Joseph Falke and Gerd Winter, “Management and Regulatory Committees in Executive Rule-Making,” in Winter, supra, n. 44, 541–82; Ellen Vos, “The Rise of Committees,” European Law Journal 3 (1997): 210–29 and “EU Committees: The Evolution of Unforeseen Institutional Actors in European Product Regulation,” in EU Committees: Social Regulation, Law and Politics, ed. Christian Joerges and Ellen Vos (Oxford: Hart Publishing, 1999), 19–47; and Carl Fredrik Bergström, Comitology: Delegation of Powers in the European Union and the Committee System (Oxford: Oxford University Press, 2005). 46. Including the Saar Treaty of 27 October 1956, available at http://www.ena .lu/saar_treaty_27_october_1956-2-1203, which dealt with the terms of return of territory to German sovereignty. 47. The original text of the treaty establishing the European Economic Community merely enunciated the general contours of the Common Agricultural Policy and referred its concretization to a “convention.” That was no other than the conference held in Stresa, Italy, in midsummer of 1958. Member states upheld three key principles that came to define the Common Agricultural Policy and confirm that the Community was not only about negative integration and marketization. Such principles were market unity (through the establishment of target prices), community preference, and financial solidarity (or centralizing the costs of subsidizing farmers).


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That left open the questions of how and at what level prices would be fixed and how specific sectors would be subject to a common policy. See “Résolution finale de la Conférence agricole des États membres de la CEE (Stresa, 12 juillet 1958),” available at http://www.ena.lu/final_resolution_adopted_agriculture_conference _member_states_stresa_july_1958-21609. Such decisions were supposed to be made before the end of 1961. However, in the very first “marathon session” in European integration, Sicco Mansholt, commissioner in charge of agriculture, “stopped” the clocks and managed to push governments into an agreement by 14 January. A very interesting personal account of the session is found in Mansholt, La Crise, relevant sections available at http://www.ena.lu/sicco_mansholt_crisis-2-2870. The key common market organizations on cereals, pork, poultry, eggs, fruits and vegetables, and wine were there first established; “Déclaration de Walter Hallstein à l’issue du premier marathon agricole (14 janvier 1962),” available at http:// www.ena.lu/statement_walter_hallstein_outcome_agricultural_marathon_14_ january_1962-2-1324. The key financial instrument was decided within weeks. Council Regulation 25 on the institutional means of financing of the agricultural policy is available at http://www.ena.lu/council_regulation_eec_25_april_1962-2-18649. While as is well known, the Commission’s proposals to establish a permanent supranational funding framework for the Common Agricultural Policy resulted in the empty chair crisis, as de Gaulle found that financial interest did not trump distrust in supranational institutions, financing was agreed by 1967. 48. This filled the gap in article TEC 269. See “70/243/ECSC, EEC, Euratom: Council Decision of 21 April 1970 on the Replacement of Financial Contributions from Member States by the Communities’ Own Resources,” OJ L 94, p. 19 of 28.4.70, and the “Council Regulation (EEC, Euratom, ECSC) No 2891/77 of 19 December 1977 Implementing the Decision of 21 April 1970 on the Replacement of Financial Contributions from Member States by the Communities’ Own Resources,” OJ L 336, p. 1, of 27.12.77; “Treaty Amending Certain Budgetary Provisions” (1970) OJ L 2, of 02.01.1971; “Treaty Amending Certain Financial Provisions” (1975) OJ L 359 of 31.12.77. 49. The same can be said of the Act on Parliament Elections of 1976, which implemented the provisions contained in article 138.3 TEC concerning the election of members of the European Parliament by direct suffrage. Cf. “Act Concerning the Election of the Representatives of the Parliament by Direct Universal Suffrage, Annexed to the Council Decision of 20 September 1976,” OJ L 278, of 8.10.1976, 5–11. 50. It is very telling that the EEC Treaty of 1957 regulating free movement of goods is in chapter 2 of Title I, while the other three economic freedoms are enshrined in Title III, common agricultural policy being Title II. 51. Under this double structural framework (a clear division of labor between economic freedoms and the characterization of economic freedoms as concretizations of the principle of nondiscrimination on the basis of nationality), the expansive interpretation of free movement of workers by the Community legislature and by the Court (by stretching the very concept of worker and thus of right holder under Community law) had not only openly progressive effects in terms of access to social rights but was also genuinely enhancing to democratic ideals, as it did not undermine the competence of member states in defining the substantive shape of


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their policies but also forced them to extend the breadth and scope of such policies to Community (i.e., citizens of other member states, who by definition did not have the right to vote and whose discrimination thus did not have much chance of being addressed politically) “workers.” On the progressive effects of the “first” jurisprudence of the Court of Justice, see Agustín José Menéndez, “More Human, Less Social: The Jurisprudence of the ECJ on Citizenship,” in The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty, ed. Miguel Poiares Maduro and Loïc Azoulai (Oxford: Hart Publishers, 2010), 363–93. This progressiveness extended its benign effects beyond Community workers. Indeed, the way in which guest workers were treated was decisively shaped by the socialization in the application of the principle of nondiscrimination on the basis of nationality. See on the French case Patrick Weil, Liberté, égalité, discriminations (Paris: Gallimard, 2009), chap. 1. 52. See chapter 4 of Title III of the original text of the treaty establishing the European Economic Community. See also Fernando Losada, “Free Movement of Capital as the Deep Constitution of the European Union,” in The Sinews of Peace, ed. Raúl Letelier and Agustín José Menéndez (Oslo: University of Oslo, 2009), 119–56. 53. OJ L 149, of 5 July 1971 p. 2. 54. Cf., for example, Alter, supra, n. 36, chap. 2. 55. Case 26/62, Van Gend en Loos, [1963] ECR 1. 56. Ibid., at 12–13. 57. 57/65, Lütticke, [1966] ECR 205 [1971] CMLR 674. 58. Leading cases on the horizontal effect of treaty provisions were 36/74, Walrave and Koch, [1974] ECR 1405 (concerning freedom to provide services as operationalization of nondiscrimination on the basis of nationality) and 43/75 Defrenne, [1976] ECR 455 (concerning the right to nondiscrimination on the basis of gender). 59. Leading cases were 41/74, Van Duyn, [1974] ECR 1337 and 148/78, Ratti, [1979] ECR 1629. The doctrine was hinted at in 9/70 Grad, [1970] ECR 825. On direct effect of directives, see Pierre Pescatore, “The Doctrine of Direct Effect: An Infant Disease of Community Law,” European Law Review 8 (1983): 155–77. 60. On the lack of horizontal direct effect of directives, see 152/84, Marshall I, [1986] ECR 723; and C-91/92, Faccini Dori, [1994] ECR I-3325. A convoluted judgment confirming the lack of horizontal effect but reaching a substantive solution not far from it is in Case C-555/07, Kücükdeveci, not yet reported. See further Paul Craig, “The Legal Effect of Directives: Policy, Rules and Exceptions,” European Law Review 34 (2009): 349–77. 61. Case 6/64, Costa, [1964] ECR 585. 62. Case 11/70, Internationale, [1970] ECR 1125. 63. See 106/77, Simmenthal, [1978] ECR 629, par. 22. 64. In Henry Schermers and Denis F. Waelbroeck, Judicial Protection in the European Union (The Hague: Kluwer, 2001), 183–85, a detailed account is given of the specific provisions of the treaties to which the Court has acknowledged direct effect. Interestingly, only the core provisions on the four economic freedoms and on competition, plus the principles of nondiscrimination on the basis of nationality and on gender, have been granted such direct effect. Once we realize that preliminary rulings are indeed the procedural means through which the Court of Justice reviews the European constitutionality of national norms, it becomes clear that the


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jurisprudence on which norms have direct effect determines the breadth and scope of the canon of constitutionality of Community law. 65. See Agustín José Menéndez, “Finalité through Rights,” in The Chartering of Europe: The Charter of Fundamental Rights of the European Union in Context, ed. Erik Oddvar Eriksen, John Erik Fossum, and Agustín José Menéndez (Baden-Baden: Nomos, 2003), 30–47. 66. The Prague Spring of 1968 undermined the Soviet propaganda concerning the purely “bourgeois” character of civil rights. At the same time, the upheaval and unrest of May 1968 in France and other Western countries made urgent the need to find a discourse to challenge the materialistic and alienating critique of Western welfare states. Cf. P. Pescatore, “Les Droits de l’Homme et l’Integration Européenne,” Cahiers de droit européen 4 (1968): 629–73; J. Weiler and N. J. S. Lockhart, “Taking Rights Seriously: The European Court and Its Fundamental Rights Jurisprudence,” Common Market Law Review 32 (1995): 51–94 and 579–627. 67. Typically, Case 4/73 Nold, [1973] 491 and Case 44/79 Hauer, [1979] ECR 3727, where the right to private property was invoked against regulatory powers on coal retailing and on use of agricultural land. 68. On the principle of equivalence, see Case 33/76, Rewe, [1976] ECR 1989, par. 6. On the principle that national norms cannot make the claiming of Community rights impossible or excessively difficult, see Case 199/82, San Giorgio, [1983] ECR 3595, par. 17. A precedent concerning sanctions applicable to those infringing on Community law is in Case 8/77, Sagulo, [1977] ECR 1495, par. 12. 69. Case 22/70, ERTA, [1971] ECR 263. 70. See Opinion 1/75, Draft OECD Understanding on a Local Cost Standard [1975] ECR 1355. 71. See Eugene Cross, “Preemption of Member State Law in the European Economic Community: A Framework for Analysis,” Common Market Law Review 29 (1992): 447–72. 72. The process of national adaptation to the structural principles of Community law is well described in Alter, supra, n. 36, chap. 2. 73. An alternative (but interesting) analysis is in Pierre Legendre, “Legal Systems Are Not Converging,” International and Comparative Law Quarterly 45 (1996): 52–81. 74. Article 144, Treaty Establishing the European Economic Community. 75. Article 137, Treaty Establishing the European Economic Community makes this clear. 76. Hallstein, supra, n. 22, 727. Hallstein also confirms its supranational character. 77. Anne Stevens and Handley Stevens, Brussels Bureaucrats? The Administration of the European Union (London: Palgrave, 2001), 32. 78. Sabino Cassese, “Divided Powers: European Administration and National Administrations,” in The European Administration, ed. Sabino Cassese (Brussels: International Institute of Administrative Sciences, 1987), 8–20. 79. E. E. Schattschneider, The Semisovereign People: A Realist’s View of Democracy in America (Hinsdale, Ill.: The Dryden Press, 1975), 30. 80. Consider Jean Monnet. After long training as cognac salesman in the family business in Cognac, he played a key role in the planning of the economic effort of the Allies during World War I and was deputy secretary of the League of Nations


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from 1919 to 1923 (a position later held by Pilotti, first president of the ECJ), bootlegger in the American shadow alcohol market, international financier, and again key liaison in the economic effort of the Allies in World War II. He became in 1946 Commissaire General du Plan in France. He carried all that experience with him as adviser to Schuman and as first president of the Coal and Steel Community. See Jean Monnet, Memoires (Paris: Fayard, 1976); and François Duchêne, The First Statesman of Interdependence (New York and London: Norton, 1997). A critical biography is Marc Joly’s Le mythe Jean Monnet (Paris: CNRS Editions, 2007). 81. Formally “Assembly” in the founding treaties, but relabelled “Parliament” in the Single European Act. 82. Article 138, Treaty Establishing the European Economic Community. 83. Helen Wallace, William Wallace, and Mark A. Pollack, Policy-Making in the European Union, 5th ed. (Oxford: Oxford University Press, 2005), 56. 84. Jarle Trondal, An Emergent European Executive Order (Oxford: Oxford University Press, 2010). 85. Its role and functions are specified in articles 145–154 of the Treaty of Rome establishing the European Economic Community. 86. Fiona Hayes-Renshaw and Helen Wallace, The Council of Ministers (London: Macmillan, 1997), 136. 87. On the educational and socialization implications of the rotating presidency, see Hayes-Renshaw and Wallace, supra, n. 83, 155. See also (concerning foreign policy) Spyros Economides, “The Europeanisation of Greek Foreign Policy,” West European Politics 28 (2005): 471–91. 88. Hayes-Renshaw and Wallace, supra, n. 83, 30, table 2.1. 89. Emile Noel, “The Committee of Permanent Representatives,” Journal of Common Market Studies 5 (1967): 219–51. 90. In constitutional terms, this became an important body after the establishment of the European Council (as a body outside the treaties) in 1974 because it was assigned the task of preparing European Council meetings, including the Intergovernmental Conference (IGC), that set of European Council meetings specifically dedicated to treaty change. 91. Hayes-Renshaw and Wallace, supra, n. 83, 70–100. 92. It should be added that in the recent treaty negotiations, the Council Secretariat has played an important role that Beach finds to strengthen the European over the intergovernmental character of this process. See Derek Beach, “The Unseen Hand in Treaty Reform Negotiations: The Role and Impact of the Council Secretariat,” Journal of European Public Policy 11 (2004): 408–39. 93. Thomas Christiansen, “Out of the Shadows: The General Secretariat of the Council of Ministers,” Journal of Legislative Studies 8 (2002): 80–97 makes reference to the Legal Service having played a major role in recent treaty negotiations. 94. Summiting was favored by de Gaulle as a way of diluting the supranational character of the Union’s institutional structure (a complete set of summits is available at http://aei.pitt.edu/summit_guide.html) but was a practice started in earnest with the Hague Summit of 1 and 2 December 1969 (final communiqué at http:// www.ena.lu/final_communique_hague_summit_december_1969-2-1565). On 9 and 10 December 1974, during the Paris Summit, it was agreed that there should be regular meetings of the “European Council” at least three times a year (“Le sommet


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européen est mort, vive le Conseil européen,” were the words of the always austere d’Estaing). See http://aei.pitt.edu/1740/01/EP_report_436_74.pdf. 95. Although the original text of the treaties contemplated the phasing in of qualified majority voting, this was simply left aside by the Luxembourg Compromise of 1966, itself the result of a major European crisis. Cf. 3 (1966) Bulletin CE, at 10. The text is available online at http://www.ena.lu/communique_final _session_extraordinaire_conseil_luxembourg_29_janvier_1966-1-19630. 96. The main driver for formalizing this into a fixed system of summitry was French president Pompidou, although it was his successor, Valéry Giscard d’Estaing, and the German chancellor Helmut Schmidt who initiated the practice that became formalized in the European Council. Martin Westlake, The Council of the European Union (London: Cartermill, 1995), 19–21. For detailed assessments of the European Council, see notably Jan Werts, The European Council (Amsterdam: North-Holland, 1992), but also Simon Bulmer and Wolfgang Wessels, The European Council: Decision-Making in European Politics (Houndmills: Macmillan, 1987). 97. See Paul Reuter, La Communauté Européenne du Charbon et de l’Acier (Paris : Librairie générale de droit et de jurisprudence R. Pichon et R. Durand-Auzias, 1953); G. Sperduti, La CECA, ente sopranazionale (Padua: CEDAM, 1966). 98. Sabino Cassese and Giacinto della Cananea, “The Commission of the European Economic Community: The Administrative Ramifications of Its Political Development (1957–1967),” in Early European Community Administration: Jahrbuch für Europäische Verwaltungsgeschichte 1992, ed. Erk Volkmar Heyen (Baden-Baden: Nomos), 75–94, at 86. 99. Emile Noël, Les Rouages de l’Europe (Paris: Nathan and Brussels: Labor, 1976), 32. 100. Michelle Cini, The European Commission: Leadership, Organisation and Culture in the EU Administration (Manchester: Manchester University Press, 1996), 14. 101. Before they start their work, Commissioners must declare (in the oath they take in the European Court of Justice) their autonomy from the member states. Practice shows that they do not take overt national positions, although they may communicate national stances and sensitivities that help ensure successful Commission policy making. Ibid., 110–11. 102. Ibid., 39. 103. This is a point underlined by Edward C. Page, People Who Run Europe (Oxford: Clarendon Press, 1997). 104. This also relates to structural factors, including the Commission’s distinct role in regulatory implementation (comitology), seconding of civil servants from the national administrations, the system whereby experts are “parachuted” to senior positions, and the diversity of backgrounds of senior officials. Ibid., 5–6. 105. See Sabino Cassesse and Giaccinto della Cannanea, “The Commission of the European Economic Community: The Administrative Ratifications of Its Political Development (1957–67),” Yearbook of European Administrative History 4 (1992): 75–94; and D. Berlin, “Organisation et fonctionnement de la Commission des Communautés europénnes,” in The European Administration, ed. Sabino Cassesse (Brussels: Institut International des Sciences Administratives, 1987), 21–142. See also Edoardo Chiti and Claudio Franchini, L’integrazione amministrativa europea (Bologna: Il Mulino), 2003.


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106. C. Bertram, “Decision-Making in the EEC: The Management Committee Procedure,” Common Market Law Review 5 (1967/1968): 246–64; P. Schindler, “The Problems of Decision-Making by Way of the Management Committee Procedure in the European Community,” Common Market Law Review 8 (1971): 184–205. See also the leading cases in the jurisprudence of the Court, 41/69, ACF Chemiefarma, [1970] ECR; 661; 25/70, Köster, [1970] ECR 1161; 23/75, Rey Soda, [1975] ECR 1279; and 5/77, Denkavit, [1977] ECR 1555. 107. See Christian Joerges and Michelle Everson, “Challenging the Bureaucratic Challenge,” in Democracy in the European Union: Integration through Deliberation?, ed. Erik O. Eriksen and John E. Fossum (London: Routledge, 2000), 164–88, at 165. 108. Christian Joerges and Jürgen Neyer, “From Intergovernmental Bargaining to Deliberative Political Processes: The Constitutionalisation of Comitology,” European Law Journal 3, no. 3 (1997): 274–300. 109. Guy Van Oudenhove, The Political Parties in the European Parliament: The First Ten Years (Leiden: Sijthoff, 1965). An interesting comparison of the different “European” assemblies (out of the ECSC, the Council of Europe, and even the Nordic Council) can be found in the book by the veteran British politician Kenneth Lindsay, European Assemblies: The Experimental Period, 1949–1959 (London: Stevens, 1960). 110. Martin Westlake, A Modern Guide to the European Parliament (London: Pinter, 1994), 16. 111. Rittberger, supra, n. 19. 112. There is by now a broad literature on this theme. See, for instance, Andreas Maurer and Wolfgang Wessels, eds., National Parliaments on Their Ways to Europe: Losers or Latecomers (Baden-Baden: Nomos, 2001); Katrin Auel and Arthur Benz, eds., The Europeanisation of Parliamentary Democracy (London: Routledge, 2006). 113. T. Bergman, “National Parliaments and EU Affairs Committees: Notes on Empirical Variation and Competing Explanation,” Journal of European Public Policy 4 (1997): 373–87. 114. Finn Laursen, “The Danish Folketing and Its European Affairs Committee: Strong Players in the National Policy Cycle,” in Maurer and Wessels, supra, n. 112, 99–115; by the same author, “The Role of National Parliamentary Committees in European Scrutiny: Reflections Based on the Danish Case,” Journal of Legislative Studies 11 (2005): 412–27. 115. Ben Crum and John E. Fossum, “The Multilevel Parliamentary Field: A Framework for Theorising Representative Democracy in the EU,” European Political Science Review 1, no. 2 (2009): 249–71. 116. This has given rise to a broad literature on Europeanization in both administrative and more general terms. See, for instance: Christopher Knill, The Europeanisation of National Administrations (Cambridge: Cambridge University Press, 2001); Beate Kohler Koch, ed., Linking EU and National Governance (Oxford: Oxford University Press, 2003); Johan P. Olsen, Europe in Search of Political Order (Oxford: Oxford University Press, 2007); Klaus H. Goetz and Simon Hix, eds., Europeanised Politics? European Integration and National Political Systems (London: Frank Cass, 2001). 117. Cf. Phillippe Schmitter, “Imagining the Future of the Euro-Polity,” in Governance in the European Union, ed. Gary Marks, Fritz W. Scharpf, Phillippe Schmitter, and Wolfgang Streeck (London: Sage, 1996), 121–50, at 145.


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118. Christopher Knill, “European Policies: The Impact of National Administrative Traditions,” Journal of International Public Policy 18, no. 1 (1998): 1–29. 119. That is perhaps the main theme of many of the publications of Anne Marie Slaughter and of her vision of the “disaggregated” state; see A New World Order (Princeton: Princeton University Press, 2004). 120. The implications of the case law were ambivalent. Review of the European constitutionality of national norms prevented in some cases short-term populist decisions, which were probably self-defeating anyway (that is the context against which the Court decided 8/74 Dassonville). In others, it cut the more radical corners of national policies in clear divergence from the European core, as was the case with labor law under Thatcher (which gave Community law goodwill among British labor lawyers and trade unionists, paradoxically enough; see Brian Bercusson, European Labour Law [London: Butterworths, 1996], 31). But the structural implication of the new turn in the interpretation of economic freedoms was to erode national capacity to steer the Sozialer Rechtsstaat. 121. See Erik Oddvar Eriksen, John Erik Fossum, and Helene Sjursen, “Widening or Reconstituting the EU?,” in Making the European Polity: Reflexive Integration in Europe, ed. Erik Oddvar Eriksen (London: Routledge, 2005), 237–52. Frank Schimmelfennig sees the Union as rhetorically entrapped here. See F. Schimmelfennig, “The Community Trap: Liberal Norms, Rhetorical Action, and the Eastern Enlargement of the European Union,” International Organization 55 (2001): 47–80. For a critical evaluation of Schimmelfennig’s argument, see Helene Sjursen, “Why Expand? The Question of Legitimacy and Justification in the EU’s Enlargement Policy,” Journal of Common Market Studies 40 (2002): 491–513. 122. A well-known story that is very well put in the heavily researched book by David Marsh, The Euro (New Haven and London: Yale University Press, 2009). 123. The impact of the Eastern European shift to capitalism was a massive increase in “intrafirm” trade with the East of major companies of the EU-15. See Julie Pellegrin, The Political Economy of Competitiveness in an Enlarged Europe (Houndmills: Palgrave, 2001). This resulted in a structural downward pressure on wages, reinforced in some member states (as Germany) by national reforms. On the latter, see Stefan Collignon, “The Failure of the Macroeconomic Dialogue on Wages (and How to Fix It),” in Letelier and Menéndez, supra, n. 52, 427–69. 124. On the form of fundamental reform, see Gráinne de Búrca and Joanne Scott, eds., Constitutional Change in the EU: From Uniformity to Flexibility (Oxford: Hart, 2000); cf. Bruno de Witte, The National Constitutional Dimension of European Treaty Revision: Evolution and Recent Debates (Groningen: Europa Law Publishing, 2004). From a political science perspective, see Andrew Moravsik, The Choice for Europe: Social Purpose and State Power from Messina to Maastricht (Ithaca, N.Y.: Cornell University Press). A constitutional reading of fundamental reform is found in John Erik Fossum and Agustín José Menéndez, “The Constitution’s Gift?,” European Law Journal 11 (2005): 380–410. Among the many proposals to amend the treaty amendment procedure, see Reforming the Treaties’ Amendment Procedure (San Domenico: European University Institute, 2000), available at http://www.eui.eu/ RSCAS/Research/Institutions/2ndrapport_UK.pdf. 125. On the Spinelli Treaty, see Francesco Capotorti, Meinhard Hilf, Francis Jacobs, and Jean Paul Jacqué, eds., The European Union Treaty (Oxford: Oxford Uni-


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versity Press, 1986); Juliet Lodge, ed., European Union: The European Community in Search of a Future (London: Macmillan, 1986). 126. On the Single European Act, see Dennis Swann, ed., The Single European Market and Beyond: A Study of the Wider Implications of the Single European Act (London and New York: Routledge, 1992); Jean De Ruyt, L’Acte Unique Européen (Brussels: Editions de l’Université de Bruxelles, 1989); G. Grin, The Battle of the Single European Market: Achievements and Economic Thought 1985–2000 (London: Kegan Paul, 2003). 127. On Maastricht, see Richard Corbett, The Treaty of Maastricht: From Conception to Ratification (Harlow: Longman, 1993); David O’Keeffe and Patrick M. Twomey, eds., Legal Issues of the Maastricht Treaty (London: Wiley, 1994); Andrew Duff, John Pinder, and Roy Pryce, eds., Maastricht and Beyond: Building the European Union (London and New York: Routledge, 1994). 128. On Amsterdam, see Franklin Dehousse, Amsterdam: The Making of a Treaty (London: Kogan Page, 1999); David O’Keeffe and Patrick M. Twomey, eds., Legal Issues of the Amsterdam Treaty (Oxford: Hart Publishers, 1999); Jörg Monar and Wolfgang Wessels, eds., The European Union after the Treaty of Amsterdam (London: Continuum, 2001). 129. On Nice, see Mads Andenas and John A. Usher, The Treaty of Nice and Beyond: Enlargement and Constitutional Reform (Oxford: Hart Publishers, 2003); Finn Laursen, ed., The Treaty of Nice: Actor Preferences, Bargaining and Institutional Choice (Leiden: Martinus Nijhoff, 2006). 130. This in analogy to the oft-cited notion of European elections as secondorder elections, where citizens in each member state use the European-level elections to send signals to their national leaders; hence the elections become verdicts on national leaders and lose much of their European orientation. See K. H. Reif and H. Schmitt, “Nine Second-Order National Elections: A Conceptual Framework for the Analysis of European Election Results,” European Journal of Political Research 8 (1980): 3–44. 131. Available at http://www.ena.lu/rapport_comite_ad_hoc_questions_institu tionnelles_bruxelles_29_30_mars_1985-1-7639. 132. Available at http://www.ena.lu/lettre_introduction_pietro_adonnino_bet tino_craxi_29_mars_1985-1-7660 and http://www.ena.lu/rapport_comite_pour _europe_citoyens_remis_conseil_milan_28_29_juin_1985-1-17822. 133. Available at http://www.ena.lu/rapport_union_economique_monetaire _communaute_europeenne_12_avril_1989-1-9656. 134. Available at http://www.ena.lu/rapport_groupe_reflexion_strategie _leurope_bruxelles_decembre_1995-1-19371. 135. Available at http://www.ena.lu/rapport_commission_europeenne_implica tions_institutionnelles_elargissement_octobre_1999-1-17947. 136. Beach, supra, n. 92. 137. See, for more detail, John Erik Fossum and Agustín José Menéndez, ‘The Constitution’s Gift?,” European Law Journal 11 (2005): 380–410. Budden labels the 1985 SEA as the first of the “quasi-constitutional” IGCs. See Philip Budden, “Observations on the Single European Act and ‘Relaunch of Europe’: A Less ‘Intergovernmental’ Reading of the 1985 Intergovernmental Conference,” Journal of European Public Policy 9 (2002): 76–97, at 77.


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138. This has also been termed indirect veto; see Thomas Christiansen, “Supranational Actors in EU Treaty Reform,” Journal of European Public Policy 9 (2002): 33–53. 139. For an overview of the different treaty ratification procedures, consult http://www.unizar.es/euroconstitucion/Treaties/Treaty_Paris.htm. 140. Case 120/78, Rewe Zentral (Cassis de Dijon), [1979] ECR 649. See also “Declaration of the Commission concerning the Consequences of the Judgment Given by the European Court of Justice on 20 February 1979 (‘Cassis de Dijon’),” OJ C 256, of 30.10.1980, 2 and 3, of great relevance given that it articulated the principle of mutual recognition. See also Joseph Weiler, “The Constitution of the Common Market Place: Text and Context in the Evolution of the Free Movement of Goods,” in The Evolution of EU Law, ed. Paul Craig and Grainne de Búrca (Oxford: Oxford University Press, 1999), 349–76. 141. Key leading cases were Case C-76/90, Säger, [1991] ECR I-4221; Case C-55/94, Gebhard, [1995] ECR I-4165; Case C-415/93, Bosman, [1995] ECR I-4921; and after the entry into force of Directive 88/361 on free movement of capital, Case C-163/94, Sanz de Lera, [1995] ECR I-4821. On the literature, see Álvaro de Castro Oliveira, “Workers and Other Persons: Step by Step from Movement to Citizenship,” Common Market Law Review 39 (2002): 77–127; Vassilis Hatzopoulos and Thien Uyen Do, “The Case Law of the ECJ concerning the Free Provision of Services: 2000–2005,” Common Market Law Review 43 (2006): 923– 91; Eddy Wymeersch, “The Transfer of the Company’s Seat in EEC Law,” 40 Common Market Law Review (2002): 661–95; S. Mohamed, European Community Law on the Free Movement of Capital (Stockholm: Kluwer Law International, 1999); A. Landsmeer, “Movement of Capital and Other Freedoms,” Legal Issues of Economic Integration 28 (2001): 57–69; Leo Flynn, “Coming of Age: The Free Movement of Capital Case Law,” Common Market Law Review 39 (2002): 773–805; Mads Andenas, Tilmann Gütt, and Matthias Pannier, “Free Movement of Capital and National Company Law,” European Business Law Review 16 (2005): 757–86. An overall interpretation congenial to ours is in Alexander Somek, Individualism (Oxford: Oxford University Press, 2008). 142. Alina Tryfonidou, Reverse Discrimination in EC Law (Dordrecht: Kluwer Law International, 2009). 143. One of us has indeed argued that the competence “flooding” now results from the structural effects of economic freedoms and not so much from actual Community legislation. See Menéndez, supra, n. 51. An account of the structural democratic deficit is in Agustín José Menéndez, “The European Democratic Challenge,” European Law Journal 15 (2009): 277–308, at 301–2. 144. Case C-376/98, Germany v. Parliament and Council, [2000] E.C.R. I-8419. On this, see Alexander Somek, Individualism (Oxford: Oxford University Press, 2008). 145. Case C-300/89, Titanium Dioxide, [1991] ECR I-2867. 146. Judgment in case C-106/89, Marleasing, [1991] ECR I-4135. See Paul Craig, “Once upon a Time in the West: Direct Effect and the Federalization of EEC Law,” Oxford Journal of Legal Studies 12 (1992): 453–79; and “Directives: Direct Effect, Indirect Effect and the Construction of National Legislation,” European Law Review 22 (1997): 519–38. See also Nick Maltby, “Marleasing: What Is All the Fuss About,” Law Quarterly Review 109 (1993), 301–11.


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147. See the leading joined cases 6 & 9/90, Francovich, [1991] ECR I-5357 and, among the academic literature, Michael Dougan, “The Francovich Right to Reparation: Reshaping the Contours of Community Remedial Competence,” European Public Law 6 (2000): 103–28; and Marie-Pierre F. Granger, “National Applications of Francovich and the Construction of a European ius commune,” European Law Review 32 (2007): 157–92. 148. Case C-265/95, Commission v France, [1997] ECR I-6959, par. 32. 149. See C-183/91, Commission v Greece, [1993] ECR 3131 and C-473/93, Commission v. Luxembourg, [1996] ECR I-3207. On the supremacy issue, see Mattias Kumm, “The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe Before and After the Constitutional Treaty,” European Law Journal 11 (2005): 262–307. 150. Case C-103/88, Fratteli Costanzo, [1989] ECR 1839. 151. See leading judgments in joined cases 60 and 61/84, Cinéthèque, [1985] ECR 2605; Case 12/86, Demirel, [1987] ECR 3719; 5/88, Wachauf, [1989] ECR 2609; C-260/89, ERT, [1991] ECR I-2925; and C-168/91, Konstantinidis, [1993] ECR I-1191. 152. C-112/00, Schmidberger, [2003] ECR I-5659; C-36/02, Omega, [2004] ECR I-9609; C-402/05 P and C-415/05 P, Kadi, [2008] ECR I-06351; Order of the Court in C-328/04, Vajnai, [2005] ECR I-8577. 153. C-438/05, Viking, [2007] ECR I-10779; C-341/05, Laval, [2007] ECR I-11767; C-346/06, Ruffert, [2008] ECR I-1989. See also C-319/06, Luxembourg Case, [2008] ECR I-4323. 154. C-213/89 Factortame I, [1990] ECR I-2433, where the Court held that if the effectiveness of Community rights hinged on the granting of an interim relief that was precluded by national norms, the national court should set aside that rule. 155. Joined Cases 6 & 9/90, Francovich, [1991] ECR I-5357. 156. Case C-208/90, Emmott, [1991] ECR I-4269. 157. Case C-222/84, Johnston, [1986] 1651. 158. Case C-50/00 P, Unión de Pequeños Agricultores, [2002] ECR I-6677, especially par. 41 and 42. See John Temple Lang, “Actions for Declarations That Community Regulations Are Invalid: The Duties of National Courts under Article 10 EC,” European Law Review 28 (2003): 102–11. 159. Granital, Gazz Uff. of 20 June 1984, especially par. 4 (English version in Andrew Oppenheimer, The Relationship between European Community Law and National Law: The Case [Cambridge: Cambridge University Press, 2005]) the Solange II ruling of the German Constitutional Court, BvR 2, 197/83, (English version in [1987] 3 C.M.L.R. 225), especially par. 31. 160. Cf. Graínne de Búrca, “Proportionality and Subsidiarity as General Principles of Law,” in General Principles of European Community Law, ed. Ulf Bernitz and Joakim Nergelius (Dordrecht: Kluwer, 2001), 95–112. 161. Klaus Dieter Ehlermann, “The Modernization of EC Antitrust Policy: A Legal and Cultural Revolution,” Common Market Law Review 37 (2000): 537–90; Koen Lenaerts and Damien Gerard, “Decentralisation of EC Competition Law Enforcement: Judges in the Frontline,” World Competition 27 (2004): 313–49. 162. Annika Suomine, ‘The Past, Present and the Future of Eurojust,” Maastricht Journal of European and Comparative Law 15 (2008): 217–34. See also report of the


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House of Lords on Eurojust, available at http://www.statewatch.org/news/2004/jul/ eurojust-hol.pdf. More generally, see David O’Keeffe, “Recasting the Third Pillar,” Common Market Law Review 32: 893–920; Steve Peers, EU Justice and Home Affairs Law (Oxford: Oxford University Press, 2007). 163. The more-or-less informal meetings of national parliaments were given some institutional form through the so-called COSAC from 1989. But not only had gatherings and networks of national parliaments emerged well before that date, but COSAC has also fostered parallel contacts and informal channels among them. This is weakly institutionalized, with weak substantive powers, and supports the informal networks of relationships among parliaments. 164. For general considerations of governance as a political paradigm, consider Beate Kohler-Koch, “The Evolution and Transformation of European Governance,” in The Transformation of Governance in the European Union, ed. Beate Kohler-Koch and Rainer Eising (London: Routledge, 1999), 14–35; Paul F. Kjaer, Between Governing and Governance (Oxford: Hart, 2010); a critical analysis of the relationship between neoliberal political and legal theory and governance is in Alain Supiot, L’Esprit de Philadelphie: La Justice Sociale face au marché total (Paris: Seuil, 2010). 165. To the point that the legal services of the Bank were to hold in proceedings before the European Court of Justice that the European Central Bank was to be regarded as a fully independent international organization. See Chiara Zilioli and Martin Selmayr, “The European Central Bank: An Independent Specialized Organization of Community Law,” Common Market Law Review 37 (2000): 591–643. That view is rebuffed by the European Court of Justice in C-11/00, Olaf, [2003] ECR I-7147. 166. Tomasso Paddoa Schiopa, The Euro and Its Central Bank: Getting United After the Union (Cambridge, Mass.: MIT Press, 2004); Kenneth Dyson, ed., Euro at Ten: Europeanisation, Power and Convergence (Oxford: Oxford University Press, 2009). 167. David Marsh, The Euro (New Haven: Yale University Press, 2009); Otmar Issing, The Birth of the Euro (Cambridge: Cambridge University Press, 2008); David Howarth and Peter Loedel, The New European Leviathan? (Houndmills: Palgrave, 2003). 168. “Presidency Conclusions, Lisbon, 23/24 March 2000,” available at http:// www.europarl.europa.eu/summits/lis1_en.htm; “Commission’s Governance White Paper of 25 July 2001,” available at http://eur-lex.europa.eu/LexUriServ/site/en/ com/2001/com2001_0428en01.pdf; Sabriba Regent, “The Open Method of Coordination: A New Supranational Form of Governance?” European Law Journal 9 (2003): 190–214. 169. Open coordination was perhaps first tried on corporate tax matters and was successful within reasonable limits. However, coordination here proceeded in the shadow of coercion in the form of the threat of Commission infringement procedures were member states not to find some basis of agreement. Cf. Claudio Radaelli, “The Code of Conduct on Business Taxation: Open Method of Coordination in Disguise?” Public Administration 81 (2003): 513–31. 170. Jonathan Zeitlin, “A Decade of Innovation in EU Governance: The European Employment Strategy, the Open Method of Coordination, and the Lisbon Strategy” (La Follette School Working Paper 2007-031), available at http://www .lafollette.wisc.edu/publications/workingpapers.


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171. David M. Trubek and Louise G. Trubek, “Hard and Soft Law in the Construction of Social Europe: The Role of the Open Method of Co-ordination,” European Law Journal 11 (2005): 343–64; Milena Büchs, New Governance in European Social Policy: The Open Method of Coordination (Houndmills: Palgrave, 2007). 172. Ase Gornitzka, “Coordinating Policies for a ‘Europe of Knowledge’: Emerging Practices of the Open Method of Coordination in Education and Research” (ARENA Working Paper 16/ 2005), available at http://www.arena.uio.no/publica tions/working-papers2005/papers/wp05_16.pdf. 173. Robert Kaiser and Heiko Prange, “Managing Diversity in a System of Multilevel Governance: The Open Method of Co-ordination in Innovation Policy,” Journal of European Public Policy 11 (2004): 249–66. 174. But agencies were also a pragmatic way of creating administrative capacities on the side of the Commission. On agencies, see Edoardo Chiti, “An Important Part of the EU’s Institutional Machinery: Features, Problems and Perspectives of European Agencies,” Common Market Law Review 46 (2009): 1395–1442. 175. Vassilis Hatzopoulos, “Why the Open Method of Coordination Is Bad for You: A Letter to the EU,” European Law Journal 13 (2007): 303–42. 176. Oliver Gerstenberg, “The Denationalization of the Very Idea of Democratic Constitutionalism,” Ratio Juris 14 (2001): 298–325; Oliver Gerstenberg, “Expanding the Constitution Beyond the Case of Euro-Constitutionalism,” European Law Journal 8 (2002): 172–92; and Oliver Gerstenberg and Charles Sabel, “DirectlyDeliberative Polyarchy: An Institutional Ideal for Europe,” in Good Governance in Europe’s Integrated Market, ed. Christian Joerges and Renaud Dehousse (Oxford: Oxford University Press, 2002), available in its entirety at http://www2.law.columbia .edu/sabel/papers/gerst-sabel1029.doc. 177. Nils Ringe, “Government-Opposition Dynamics in the European Union: The Santer Commission Resignation Crisis,” European Journal of Political Research 44 (2005): 671–96; A. Wonka, “Technocratic and Independent? The Appointment of European Commissioners and Its Policy Implications,” Journal of European Public Policy 14 (2007): 169–89. 178. See Veith Mede, “Responsibility and Accountability in the European Commission,” Common Market Law Review 40 (2003): 423–42; Emannuelle SchönQuinlivan, “Administrative Reform in the European Commission: From Rhetoric to Re-legitimation” (EU-Consent Paper), available at http://www.eu-consent.net/ library/deliverables/D17_Team7_Schon2.pdf. For empirical results, see Michael W. Bauer, “Impact of Administrative Reform of the European Commission: Results from a Survey of Heads of Unit in Policy-Making Directorates,” International Review of Administrative Sciences 75 (2009): 459–72. 179. John Peterson, “The Prodi Commission—Fresh Start or Free Fall?” in The Changing European Commission, ed. Dionyssis G. Dimitrakopoulos (Manchester: Manchester University Press, 2004), 15–33, at 22ff, documents the lack of collegiality in Prodi’s commission. 180. See Deirdre Curtin, Executive Power of the European Union (Oxford: Oxford University Press, 2009), 100–103. 181. Hellen Wallace, “The Council: An Institutional Chameleon?” Governance 15 (2002): 325–44. 182. Rittberger, supra, n. 19.


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183. Kieran St Clair Bradley, “Institutional Aspects of Comitology: Scenes from the Cutting Room Floor,” in Christian Joerges and Ellen Vos, supra, n. 45, 71–93. 184. Julie Smith, Europe’s Elected Parliament (Sheffield: Sheffield Academic Press, 1999), 66–68; Nils Ringe, “Government-Opposition Dynamics in the European Union: The Santer Commission Resignation Crisis,” European Journal of Political Research 44 (2005): 671–96. 185. Lars Blichner, “The Anonymous Hand of Public Reason: Interparliamentary Discourse and the Quest for Legitimacy,” in Democracy in the European Union: Integration through Deliberation? ed. Erik Oddvar Eriksen and John Erik Fossum (London: Routledge, 2000), 141–63. 186. The Council approved the first comitology decision in 1987 (Decision 87/373/EEC, OJ L 197, of 18 July 1997, 22). It failed to satisfy the European Parliament. Indeed, the more influence over lawmaking that the Parliament acquired, the more predisposed it felt toward questioning the first comitology decision. K. Bradley, “Comitology and the Law: Through a Glass Darkly,” Common Market Law Review 29 (1992): 693–721; K. Bradley, “The European Parliament and Comitology: On the Road to Nowhere?” European Law Journal 3 (1997): 230–54. The ECJ, however, was not very receptive. After a modus vivendi (OJ C 102, of 4 April 1996, 1) came the second Decision of the Council (99/468/EC, of 28 June 1999, OJ L 184, 17 July 1999, 23; an analysis can be found in Karl Lenaerts and Amarylis Verhoeven, “Towards a Legal Framework for Executive Rule-Making in the E.U.? The Contribution of the New Comitology Decision,” Common Market Law Review 37 (2000): 645–86. The Parliament managed a success only with the third and, for the time being, final Decision 2006/512/EC, OJ L 200, 22 July 2006, 11. 187. John Erik Fossum, “European Constitutional Avoidance,” mimeo (2008), available from the author.

CHAPTER 4: FROM LAEKEN TO LISBON 1. Mads Andenæs and John A. Usher, The Treaty of Nice and Beyond: Enlargement and Constitutional Reform (Oxford: Hart Publishing, 2003); Finn Laursen, ed., The Treaty of Nice: Actor Preferences, Bargaining and Institutional Choice (Leiden: Martinus Nijhoff, 2006). 2. Named a “body” in the mandate of the European Council (see “Presidency Conclusions of the Cologne European Council,” 3–4 June 1999, European Council Decision on the Drawing Up of a Charter of Fundamental Rights of the European Union, available at http://europa.eu.int/council/off/conclu/june99/june99_en.htm.). But the “body” soon decided to give itself a more dignified name. See Erik Oddvar Eriksen, John Erik Fossum, and Agustín José Menéndez, “The Charter of Fundamental Rights in Context,” in The Chartering of Europe, ed. idem. (Baden-Baden: Nomos, 2003), 19. 3. But it was “merely” solemnly proclaimed by all three European institutions on one side in the European Council of Nice, as the European Council also failed to elicit an agreement on this. See Agustín José Menéndez, “Chartering Europe: Legal


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Status and Policy Implications of the Charter of Fundamental Rights of the European Union,” Journal of Common Market Studies 40 (2002): 471–90. 4. Christian Joerges, Yves Mény, and Joseph H. H. Weiler, eds., What Kind of Constitution for What Kind of Polity? Responses to Joschka Fischer (Florence and Cambridge: Robert Schuman Centre and Harvard Law School, 2000), 23. 5. See Mark Leonard, ed., The Future Shape of Europe (Brussels: Foreign Policy Centre, 2001). See also the transatlantic edition of Internationale Politik. The boldest speech was by far that of Jospin. See the text in Ma vision de l’Europe et de la mondialisation (Paris: Plon, 2001). It is relevant to notice that most of those speeches addressed a series of core common issues and were characterized by being addressed to European audiences, not only national ones. They made it clear that there was a need for a constitutional reform, although the concrete contours of such reform were not clearly delineated. 6. OJ C 80, of 10 March 2001, 85–86. 7. “Report on the Debate on the Future of the European Union,” 9520/01, POLGEN 14 (Brussels, 8 June 2001). 8. See Erik Oddvar Eriksen and John Erik Fossum, “Democracy through Strong Publics in the European Union?” Journal of Common Market Studies 40 (2002): 401–24. 9. Laeken Declaration on the Future of the European Union. SN 273/01 (Laeken: 15 December 2001), available at http://www.ena.lu/laeken_declaration_future _european_union_15_december_2001-020003970.html. 10. The European Parliament had quite cunningly avoided the constitutional idiom in 1984. There is, for instance, no mention of a European constitution in the text of the Spinelli Draft. 11. See Hendrik Voss and Emilie Bailleul, “The Belgian Presidency and the PostNice Process after Laeken,” (Working Paper C 102/2002, ZEI), available at http:// www.zei.de/download/zei_dp/dp_c102_voss-baillieul.pdf. 12. Under the heading “Towards a Constitution for European Citizens,” the Laeken Declaration discussed simplification and reorganization of the existing treaties and ended by saying: “The question ultimately arises as to whether this simplification and reorganisation might not lead in the long run to the adoption of a constitutional text in the Union. What might the basic features of such a constitution be? The values which the Union cherishes, the fundamental rights and obligations of its citizens, the relationship between Member States in the Union?” Laeken Declaration, supra, n. 9. The careful wording reflects the fact that there was no agreement among the member states to launch a constitution-making process. See Paul Magnette, “Deliberation or Bargaining? Coping with Constitutional Conflicts in the Convention on the Future of Europe,” in Developing a Constitution for the European Union, ed. Erik Oddvar Eriksen, John Erik Fossum, and Agustín José Menéndez (London: Routledge, 2004), 207–25. 13. Laeken Declaration, supra, n. 9, 6. 14. Laeken Declaration, supra, n. 9, 7. 15. The convention was composed of two members from each national parliament, sixteen from the European Parliament, two from the Commission, one from each national government (a total of 102 full members plus an equal number of substitutes), a president, two vice presidents, and a number of observers. These were from the then fifteen member states, the ten candidate states, three applicant states,


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and several of the EU’s institutions. The core body in the IGC is the European Council, which is made up of the heads of states and governments (including foreign ministers and various aides). 16. The position of several national leaders was crystal clear at the onset. See Ana Palacio, Spanish representative and later foreign minister, “Una Convención para Irak,” El País, 7 July 2003, where she compared the European and the Iraqi conventions. 17. In concrete: fifteen representatives of the heads of state or government of the member states (one from each member state), thirteen representatives of the heads of state or government of the candidate states (one per candidate state), thirty representatives of the national parliaments of the member states (two from each member state), twenty-six representatives of the national parliaments of the candidate states (two from each candidate state), sixteen members of the European Parliament, and two representatives of the European Commission. 18. Available at http://european-convention.eu.int/docs/Treaty/cv00850.en03 .pdf. 19. Andrew Moravcsik, “Reassessing Legitimacy in the European Union,” Journal of Common Market Studies 40 (2002): 603–24, at 603. 20. The European Convention president Valéry Giscard d’Estaing noted that “the European Union now stands at a crossroads, not wholly unlike that of Philadelphia 1787.” The Henry Kissinger Lecture at the Library of Congress, Washington, D.C., 11 February 2003, available at http://european-convention.eu.int/docs/speeches/7072 .pdf. Cf. Michel Rosenfeld, “The European Convention and Constitution Making in Philadelphia,” International Journal of Constitutional Law 1 (2003): 373–78. 21. “Introductory Speech by President Valéry Giscard d’Estaing to the Convention on the Future of Europe” (26 February 2002), available at http://european convention.eu.int/docs/speeches/1.pdf. 22. Giscard set high stakes for the exercise. See ibid., at 2. Giscard had high ambitions not the least because he saw this as a real occasion to “leave his mark on history. . . .” See also Peter Norman, The Accidental Constitution: The Story of the European Convention (Brussels: EuroComment, 2003), 48. 23. Giscard also noted, “In order to avoid any disagreement over semantics let us agree now to call it: a ‘constitutional treaty for Europe.’” (ibid., at 11). This characteristically ambiguous label would presumably also help to vaccinate against a major debate on the principled constitutional character of the Union’s legal construct. Such a clarification would of course be an essential element of any constitutional moment proper. 24. See, for example, CONV 55/02. See also Koen Lenaerts and Marlies Desomer, “New Models of Constitution-Making in Europe: The Quest for Legitimacy,” Common Market Law Review 39 (2002): 1217–53, at 1237ff. 25. Widely documented and considered very relevant by Olivier Duhamel, Pour L’Europe (Paris: Seuil, 2003); Gisela Stuart, The Making of Europe’s Constitution (London: Fabian Society, 2003); and Neil MacCormick, A Union of Its Own Kind? (Edinburgh: Greens/European Free Alliance, 2004). 26. But the documents internal to the praesidium and the secretariat were not public. Of the meetings of the praesidium, the working groups, and the discussion


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circles we have only summaries, which avoid mentioning the name of the member who claimed this or that. 27. See Carlos Closa, “The Convention Method and Transformation of EU Constitutional Politics,” in Eriksen, Fossum, and Menéndez, eds., supra, n. 12, 183–206. 28. It also included observers and alternates from the applicant countries—including Turkey. Since there were no votes taken, they could influence the process through their arguments, something for which they were not necessarily very well prepared, given that member states tend to have more knowledge, experience, and human resources devoted to European issues and questions. 29. See Olivier Duhamel, “Convention vs. IGC,” European Public Law 11 (2005): 55–62. 30. This can also be politically very useful as it does not pin the process to a specific set of democratic standards. It also makes incremental democratic gains appear far more politically salient in that they can be said to point in the right general direction—without being held to compliance with a given standard, as the standard has not been made clear. 31. See Koen Lenaerts and Marlies Desomer, “New Models of ConstitutionMaking in Europe: The Quest for Legitimacy,” Common Market Law Review 39 (2002): 1217–53, at 1237, who refer to convention member Klaus Hänsch, who considered the “as if” approach the convention’s categorical imperative. Bulletin Quotidien Europe, no. 8154 (20 February 2002): 4. 32. See Closa, supra, n. 27, at 187. The constitutional route was also endorsed by members in plenary sessions. See, for instance, European Convention, “Note on the Plenary Meeting—Brussels, 21 and 22 March 2002” (CONV 14/02, Brussels, 25 March 2002). 33. As noted, the convention was not democratically authorized to launch a constitution-making process; see John Erik Fossum and Agustín José Menéndez, “The Constitution’s Gift,” European Law Journal 11 (2005): 380–410. Convention membership was not subject to any electoral contest. There was no unified nomination procedure; members were nominated by their respective institutions according to their own selection methods. See Jo Shaw, “Process, Responsibility and Inclusion in EU Constitutionalism,” European Law Journal 9 (2003): 45–68. In terms of representativeness, there was a strong gender bias: 17 out of 105 (16.19 percent) members were women, and 24 out of 105 (22.85 percent) alternates were women. See Mercedes Mateo Diaz, “The Participation and Representation of Women in the Debate on the Future of the European Union,” South European Society and Politics 9 (2004): 208–22. Hardly any visible minorities were present. Initially, there was no representation from the candidate countries in the leadership, the praesidium (this was later altered through including the Slovenian MP Alojz Peterle as invitee). The convention’s initial rules of procedure were similar to the Council’s standard procedures (interviews with convention member and staff ) and thus were not consistent with an open deliberative assembly, which the convention’s president, Giscard d’Estaing, presented it as in its inaugural meeting. These procedures sparked great uproar and opposition, and they were subsequently changed. See Carlos Closa, “Improving EU Constitutional Politics? A Preliminary Assessment of the Convention,” Constitutionalism Web-Papers (ConWEB no. 1/2003), available at http://www


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.unizar.es/union_europea/files/conweb1-2003.pdf. See also Lenaerts and Desomer, supra, n. 26. 34. CONV 369/02, 28 October 2002, available at http://european-convention .eu.int/docs/sessplen/00369.en2.pdf. 35. An analysis of the issue on what concerns the Charter Convention can be found in Justus Schönlau, “New Values for Europe? Deliberation, Compromise and Coercion in Drafting the Preamble of the EU Charter of Fundamental Rights,” in Eriksen, Fossum, and Menéndez, supra, n. 2, at 112–32. 36. “La dernière chance de l’Europe unie,” Le Monde, 22 July 2002, available at http://www.lemonde.fr/abonnes/article/0,9883,3232--285497-,00.html. 37. See CONV 300/02, “Motions to the Praesidium according to Article 2 and 15 of the Working Method: Constitution of a Working Group on Social Europe,” available at http://register.consilium.europa.eu/pdf/en/02/cv00/00300en2.pdf. Most of the signatories were affiliated with left-wing political parties or those left of the center, such as the Scottish Nationalist Party. 38. See “Verbatim Report of the Plenary Meeting of the Convention, October 3, 2002,” available at http://www.europarl.eu.int/europe2004/textes/verba tim_021003.htm. 39. See CONV 374/02, “Questionnaire for the Debate on Social Issues” (29 October 2002), available at http://register.consilium.europa.eu/pdf/en/02/ cv00/00374en2.pdf. 40. See, for example, CONV 388/02, by Pierre Moscovici, available at http:// register.consilium.europa.eu/pdf/fr/02/cv00/cv00388.fr02.pdf. 41. CONV 421/02, “Draft Mandate of the Working Group on Social Europe” (22 November 2002), available at http://register.consilium.europa.eu/pdf/en/02/cv00/ cv00421.en02.pdf. 42. See what was said by the minister for European affairs in Denmark, Bertel Haarder, in 2001: http://www.folketinget.dk/Samling/20012/salen/F4_BEH1 _22_4_69.htm. 43. Magnette, supra, n. 12; see also Magnette, “Coping with Constitutional Incompatibilities: Bargains and Rhetoric in the Convention on the Future of Europe” (Working Paper 12/03, Jean Monnet Working Paper Series). 44. Ibid. 45. See Joshua Cohen, “Deliberation and Democratic Legitimacy,” in The Good Polity, ed. A Hamlin and B Pettit (Oxford: Blackwell), 17–34; see also Loren A. King, “Deliberation, Legitimacy and Multilevel Democracy,” Governance 16 (2003): 23–50. 46. No official record of its meetings has been kept, despite the insistence of some conventionnels. On this, see the exchange between Giscard and Fayot on the plenary session of 24 May 2002, available at http://www.europarl.europa.eu/ Europe2004/textes/verbatim_020524.htm. 47. On the role of the praesidium and its strong leverage on the convention, see Carlos Closa, “Improving EU Constitutional Politics? A Preliminary Assessment of the Convention,” Conweb Papers 1/2003, available at http://www.unizar.es/ union_europea/files/conweb1-2003.pdf; and Kalypso Nicolaïdis and Paul Magnette, “Bargaining in the Shadow of Rhetoric,” West European Politics 27 (2004): 381–404. 48. This was also expressed by a member of the convention. “Interview with MEP Convention Member,” 9 July 2003.


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49. See Emmanuela Lombardo, “The Participation of Civil Society,” in Constitutional Politics in the European Union: The Convention Moment and Its Aftermath, ed. Dario Castiglione, Justus Schönlau, Nieves Pérez Solorzano, and Miriam Aziz, 153– 69 (Houndmills: Palgrave, 2007). See also Geir Kværk, “Organised Civil Society in the EU Constitution-Making Process,” in Public Sphere and Civil Society? Transformations of the European Union, ed. John Erik Fossum, Philippe Schlesinger, and Geir Kværk (ARENA Report 2/07, Oslo: University of Oslo), 141–223. 50. The European Council went so far as to decide the identity of the three leading members of the convention: Valéry Giscard d’Estaing was nominated president, and Giuliano Amato and Jean Luc Dehane were vice presidents. Laeken Declaration, supra, n. 9, 6. 51. The presidency and the praesidium played a central role in this regard, according to George Tsebelis and Sven-Oliver Proksch, “The Art of Political Manipulation in the European Convention,” Journal of Common Market Studies 45 (2007): 157–86. Giscard notably steered through control of timing, control of the agenda, and, given the absence of voting, defining what counted as consensus. 52. Each national government had its own government representative in the convention. As stated in n. 50, The European Council went so far as to decide the identity of the three leading members of the Convention. For more on the convention’s “forward linkage,” see Fossum and Menéndez, supra, 33, and John Erik Fossum, “Contemporary European Constitution-making—Constrained or Reflexive?” in Making the European Polity, ed. Erik Oddvar Eriksen (London: Routledge, 2005), 143–66. See also Chris Lord, A Democratic Audit of the European Union (Basingstoke: Palgrave, 2004), 86–94. 53. See Laeken Declaration, supra, n. 9. 54. Jean-Claude Piris, The Constitution for Europe: A Legal Analysis (Cambridge: Cambridge University Press, 2006), 51. 55. Cf. Norman, supra, n. 22, at 220. 56. See Carlos Closa, “Deliberative Constitutional Politics and the Turn towards a Norms-Based Legitimacy of the EU Constitution,” European Law Journal 11 (2005): 411–31. 57. Cf. Agustín José Menéndez, “Between Laeken and the Deep Blue Sea,” European Public Law 11 (2005): 103–43. 58. Giscard, for instance, “monopolized reporting of the work of the Convention to both Member States and the public” (David Allen, “The Convention and the Draft Constitutional Treaty,” in The Future of Europe, ed. F. Cameron [London: Routledge, 2004], 18–34, at 24) and had regular meetings with the European Council (an institution that he had been one of the founders of). To illustrate, Giscard refused to come up with any drafts of the controversial institutional issues before he and Kerr had discussed these issues with the leaders in the European Council. See Norman, supra, n. 22, at 219. Another driver here was the strong contingent of government representatives in the convention, several of whom would re-enter the process during the deciding and closed IGC stage. 59. See Fossum, supra, n. 52. 60. Two national representatives from member states were deputy prime ministers, and six from member states and eight from candidate countries were (deputy) ministers for European affairs. Thus, sixteen out of a total of twenty-eight were ministers. In addition to these sixteen, six were retired senior statesmen. See Closa, supra, n. 27, table 11.3, at 199.


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61. There were four convention members present at the European Council meeting in Copenhagen 12–13 December 2002. See European Convention, “Report Submitted by Valéry Giscard d’Estaing Chairman of the European Convention to the Copenhagen European Council on 12 and 13 December 2002,” available at http://european-convention.eu.int/docs/speeches/6321.pdf. 62. See Magnette, supra, n. 12. 63. Ibid. 64. Part III was on a par with the other parts of the Draft Treaty, if only because all the contents of the constitution were subject to amendment procedures that required the unanimous consent of the member states in Council and ratification according to national constitutional procedures. See Menéndez, supra, n. 57. 65. Olivier Duhamel, Pour l’Europe: Le texte intégral de la constitution expliqué et commenté (Paris: Seuil, 2003). 66. See Justus Schönlau, Drafting the EU Charter: Rights, Legitimacy and Process (Houndmills: Palgrave, 2005). 67. Pedro Cruz Villalón, “La Carta o El Convidado de Piedra,” in La Constitución Inédita (Madrid: Trotta, 2004), 115–29, at 121. 68. See article I-7.3 of the convention’s draft. 69. On this, see Inger Österdahl, “The EU and Its Member States, Other States and International Organisations: The Common European Security and Defence Policy after Nice,” Nordic Journal of International Law 70 (2001): 341–72. 70. See Raymond Carré de Malberg, Contribution à la théorie générale de l’Etat (Paris: Dalloz, 2003), 109. 71. The draft retained, and perhaps even strengthened, aspects of the Council-led (former pillars two and three) decision-making method. Such a potential strengthening would derive from the increased use of QMV in the Council, which is indeed elevated to the status of general voting principle (article I-23.3), while keeping Union institutions at bay in what remained of the pillar procedures. 72. Exceptions correspond to three alternative lawmaking procedures: first, where the EP has no say on the legislative procedure and is only consulted. The Council decides unanimously certain citizenship rights (art. III-10, III-9.2, III-11.1); some key norms defining the single market, such as (a) the regime of the free movement of persons (III-62.2 and III-65bis), (b) rights and interests of employed persons (III64.2 and III-65bis), and (c) social security and protection of workers (III-104.3, c,d, f and g, and art. III-104.1); norms concerning the harmonization of tax measures (III-62 and III-65.2); constraints to the free movement of capital to third countries (III-46.3); linguistic regime of uniform intellectual property rights protection and centralized Unionwide authorization (III-68); family law norms with cross-border implications (article III-170.3); certain aspects of environmental policy (III-130.2); and police cooperation (III-176.3, III-178). Second are areas where the European Parliament has no say on the legislative procedure and it is not even required that the EP be consulted: common foreign and security policy (article III-201); common security and defense policy (article III-210.2); common commercial policy negotiations (III-217.3); the so-called open method of coordination; monetary policy, where powers are monopolized by the European system of central banks, with the European Central Bank at its head. Third are areas such as the budgetary procedure,


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which is subject to a specific procedure of great complexity, in which the allocation of powers extends to national parliaments: The Decision on Own Resources, now named as Own Resources Law (art. I-53); the Financial Perspectives; and the annual budget (I-55), which determines the revenue and expenditure of the Union for the fiscal year. 73. Note that the popular initiative (article I-47.4) boiled down to an invitation to the Commission to submit a legislative proposal. The Commission remains free to do whatever it finds suitable with such an initiative. 74. Menéndez, supra, n. 57. 75. See CONV 375/1/02, REV 1, “Final Report of the Working Group on Economic Governance,” and “Verbatim Report of the Plenary Meeting of the Convention, November 7th, 2002,” available at http://www.europarl.eu.int/europe2004/ textes/verbatim_021107.htm. 76. See CONV 516/1/03, REV 1, “Final Report of the Working Group on Social Europe,” available at http://register.consilium.europa.eu/pdf/en/03/cv00/cv00516 -re01.en03.pdf. 77. A contextualization in the history of ideas and a critique is in Christian Joerges, “What Is Left of the European Economic Constitution,” European Law Review 30 (2005): 461–89. 78. See article I-1. 79. European Council, “Presidency Conclusions: Thessaloniki European Council 19 and 20 June 2003,” POLGEN 55, 11638/03, at 2, available at http://www .consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/76279.pdf. 80. The seven issues were: the Council rotating presidency, the foreign minister, European security and defense policy, Christian values in the preamble, QMV in the Council, scope of QMV, and the minimum threshold for number of seats in the EP. Ben Crum, “The EU Presidency: Comparing the Italian and Irish Presidencies of the 2003–04 Intergovernmental Conference,” in Leadership in the Big Bangs of European Integration, ed. Derek Beach and Colette Mazzucelli (London: Palgrave, 2007), 58–75, at 62. 81. Ibid., 66. 82. The Council secretariat had worked out a range of possible compromise solutions for the Brussels summit, but Berlusconi sidelined the secretariat. See Derek Beach, “Oiling the Wheels of Compromise: The Council Secretariat in the 1996–7 and 2003–4 IGCs,” in Leadership in the Big Bangs of European Integration, ed. Beach and Mazzucelli (London: Palgrave, 2007), 76–93, at 90. 83. The Italian presidency (with Berlusconi as prime minister and Frattini as foreign secretary) was rather calamitous and a trifle burlesque. On the academic literature, see Lucia Quaglia and Edward Moxon-Browne, “What Makes a Good EU Presidency? Italy and Ireland Compared,” Journal of Common Market Studies 44 (2006): 349–68, who, despite their formalistic and neutral approach, conclude that agency and (lack of) commitment actually mattered. See also Crum, supra, n. 83. 84. Andrew Duff, The Struggle for Europe’s Constitution (London: Federal Trust, 2005), 29. 85. The Irish commitment was to do “all within its powers to advance the work of the IGC” by consulting with its partners and reporting back, “at which point it may


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Notes to Page 144

be possible to chart a way forward.” Government of Ireland, Europeans Working Together: Programme of the Irish Presidency of the European Union (Dublin: Stationery Office, 2003), available at http://www.ena.lu/programme_irish_presidency_european _union_january_30_june_2004-2-12993. 86. “Presidency Conclusions European Council 25 and 26 March 2004,” especially paragraphs 3 and 4, available at http://ec.europa.eu/external_relations/gac/ pres_concl/march2004.pdf. 87. “Addendum to Presidency Conclusions” laying down the terms of the agreement, available at http://ec.europa.eu/councils/bx20040617/addendum_en.pdf. The content of the agreement was rendered public in the usual baroque diplomatic jargon in “IGC 2003—Meeting of Heads of State and Government,” available at http://europa.eu/rapid/pressReleasesAction.do?reference=DOC/04/2&format=PDF &aged=1&language=EN&guiLanguage=en. 88. There were both institutional (I-19.2, I-24, I-25, I-26) and noninstitutional changes (III-92.2, I-11.3, I-14.1, III-76, I-54, II-52, III-88, III-91.2, 4, III-174.2, III324.1, III-325.2, III-326.2, III-328, III-116, III-56.2.c, III-56.3.a, III-134, III-141, I-13, III-157, IV-10.2, and a new protocol on the position of the United Kingdom and Ireland on policies in respect of border controls, asylum and immigration, and judicial cooperation in civil matters and on police cooperation). For a specification of these changes, see the last documented quoted in the previous note. 89. As one illustration, consider the difference in I-11.3: The convention draft stated that “The Union shall have competence to promote and coordinate the economic and employment policies of the Member States,” whereas the IGC draft (CIG 84) stated that “The Member States shall coordinate their economic and employment policies within arrangements as determined by Part III, which the Union shall have competence to provide.” 90. The total number of MEPs was increased from 736 to 750. Further, there was an increase in the minimum number of seats per member state in the EP from four to six and at the same time a cap of ninety-six for the largest member state, thus increasing the differentials in number of votes required to elect a German as opposed to a Luxembourgian MEP. The same argument applies to the changed formula for QMV, where the convention’s 50 percent of member states with 60 percent of the population was replaced with 55 percent of the member states with 65 percent of the population. 91. The Constitutional Treaty did contemplate modest changes in the amendment rules applicable once it entered into force. 92. For an overview of the different national procedures and how the Constitutional Treaty was ratified, see http://www.unizar.es/euroconstitucion/Treaties/ Treaty_Const_Rat.htm. 93. Romania and Bulgaria, then mere applicant countries, did ratify the Constitutional Treaty through the Accession Treaty. 94. For an assessment, see John Erik Fossum and Philip R. Schlesinger, eds., The European Union and the Public Sphere: A Communicative Space in the Making? (London: Routledge, 2007). 95. It is therefore no coincidence that when Spain held the first (nonbinding) referendum (on 20 February 2005), it was expected to deliver a strong yes, which would spill over to the other countries. It was also no coincidence that the U.K.


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would be among the last to vote, as U.K. voters then would feel the weight of all those already on board. 96. The initiative was taken in May 2003 by three MPs (from two of the opposition parties and the smallest party in the governing coalition). The main parties in the governing coalition were against a referendum, and it took until 25 January 2005 for the proposal to go through the Dutch Senate. The legislation produced an Independent Referendum Commission, which set the date for the vote. The interior ministry sought as early as possible a date and exerted pressure to that end, but the Commission (originally intent on 29 June) settled for 1 June. 97. Robert Harmsen, “The Dutch Referendum on the Ratification of the European Constitutional Treaty 1 June 2005” (EPERN Referendum Briefing Paper, no. 13), available at http://www.sussex.ac.uk/sei/documents/epern-rb_netherlands_2005.pdf. 98. Under such a conception, international law determines in a fully autonomous way the legal force of its own norms within its scope of application (basically, in relations among states); each national legal order is equally autonomous to determine the legal force of international norms within the scope of application of national law; and national courts and administrations are in most cases bound by their own national constitution to follow the latter characterization when in conflict with the one stemming from international law. 99. Article 121 of the Estonian Constitution, as there is no specific procedure for European treaties but only for treaties “by which the Republic of Estonia joins international organizations or unions” and “the implementation of which requires the passage, amendment or repeal of Estonian laws.” 100. Article 23 of the German Constitution contains the European clause. 101. As is implicit in the choice of a referendum and on the scrutinizing the Constitutional Treaty in accordance with the national constitution. 102. Paul Hainsworth, “France Says No,” Parliamentary Affairs 59 (2006): 98–117, at 103. 103. The intense French debate produced strong diffusion effects, especially on the later Luxembourg referendum debate. See Ece Atikcan, “Spotting Diffusion Effects in Referendum Campaigns: A Methodological Challenge?” paper presented at the Annual General Meeting of the Canadian Political Science Association, Montreal, June 1–3, 2010. 104. Sönke Maatsch, “The Struggle to Control Meanings: The French Debate on the European Constitution in the Mass Media,” Perspectives on European Politics and Society 8 (2007): 261–80. See also Cristopher Lord, “Two Constitutionalisms? A Comparison of British and French Attempts to Legitimize the Constitutional Treaty,” Journal of European Public Policy 15 (2008): 1001–18. 105. There are different accounts of the results of both votes. See Silvayn Brouard and Vicent Tiberj, “The French Referendum: The Not So Simple Act of Saying Nay,” Political Science & Politics 39 (2006): 261–68; Sarah Wolff and Gregory Mounier, “France: The Come-back of Political Parties,” European Constitutional Law Review 1 (2005): 383–92; Kees Aarts and Henk van der Kolk, “Understanding the Dutch ‘No’: The Euro, the East and the Elite,” Political Science & Politics 39 (2006): 243–46; Arjen Nijeboer, “The Dutch Referendum,” European Constitutional Law Review 1 (2005): 393–405. In addition, the consequences of the “non” and the “nee” were also much discussed.


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106. Guilhem Fouetillou, “Le web et le débat sur la constitution européenne en France,” available at http://www.observatoire-presidentielle.fr/?pageid=20. 107. Herman van Gunsteren echoes this in his article “The Birth of the European Citizen out of the Dutch No Vote,” European Constitutional Law Review 1 (2005): 406–11. 108. “Declaration of Heads of State and Government of the Member States on the Ratification of the Treaty Establishing a Constitution for Europe, on the Occasion of the European Council of 16 and 17 June,” available at http://www .consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/ec/85325.pdf. 109. Laurent Fabius, Une certaine idée de l’Europe (Paris: Plon, 2004). 110. Declaration of 17 June, supra, n. 108. Declaration 30 annexed to the Constitutional Treaty stated that if four-fifths of the member states would ratify the Constitutional Treaty but it would prove “difficult” to achieve unanimity, the European Council would consider what to do. But there was no hint of what exactly could be done. 111. The main result was the ingeniously named Plan D for Democracy, Dialogue and Debate. “The Commission’s Contribution to the Period of Reflection and Beyond: Plan-D for Democracy, Dialogue and Debate,” COM (2005) 494 final, available at http://ec.europa.eu/commission_barroso/wallstrom/pdf/communica tion_planD_en.pdf. The reflection period was also influential on the design of the new communication policy of the Commission. See “White Paper on a European Communication Policy,” (1 February 2006), available at http://eur-lex.europa.eu/ LexUriServ/LexUriServ.do?uri=COM:2006:0035:FIN:EN:PDF. The official report of the Commission on the period is “The Period of Reflection and Plan D” (10 May 2006), COM 212, available at http://eur-lex.europa.eu/LexUriServ/site/en/ com/2006/com2006_0212en01.pdf. And see the assessment in Hans Jörg Trenz and Regina Vetters, “No News from Brussels: Comment on the Commission’s White Paper on a European Communication Policy,” European Newsletter March/April 2006 of the Federal Trust for Education and Research: 3–4, available at http://www.fedtrust .co.uk/admin/uploads/NewsMar06.pdf. 112. See Hans Jörg Trenz and Ulrike Liebert, “Mass Media and Contested Politics: EU Constitutional Politics after Popular Rejection” (working paper, Robert Schuman Centre, 2008/28), available at http://cadmus.eui.eu/dspace/bitstream/ 1814/9147/1/RSCAS_2008_28.pdf. 113. This was also explicitly stated by academic critics, notably in Andrew Moravcsik, “What Can We Learn from the Collapse of the European Constitutional Project?” Politische Vierteljahresschrift 47 (2006): 219–41; Moravcsik, “The European Constitutional Settlement,” The World Economy (2008): 157–82; and “The Myth of Europe’s ‘Democratic Deficit,’” Intereconomics: Journal of European Economic Policy (2008): 331–40. 114. George Ross, “What Do ‘Europeans’ Think? Analyses of the European Union’s Current Crisis by European Elites,” Journal of Common Market Studies 46 (2008): 389–412, at 402. 115. See House of Commons, “The Future of the European Constitution” (Research Paper 05/45), available at http://www.parliament.uk/commons/lib/research/ rp2005/rp05-045.pdf. Academic assessments of this crisis abound. See, for instance, Thomas König, Stephanie Daimer, and Daniel Finke, “The Treaty Reform of the EU:


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Constitutional Agenda-Setting, Intergovernmental Bargains and the Presidency’s Crisis Management of Ratification Failure,” Journal of Common Market Studies 46 (2008): 337–63. 116. The first speech was read on 16 February 2006 (http://www.botschaft-frank -reich.de/IMG/sarkozy_europa_berlin_fr.pdf), and the second on 8 September 2006 (http://www.robert-schuman.eu/doc/actualites/discours_2006-09-08.pdf). 117. Outstanding among them Tony Blair. See the speech at the European Studies Centre, St Anthony’s College, of 2 February 2006, available at http://www.sant .ox.ac.uk/esc/docs/blair_speech.pdf. See also Ross, supra, n. 118. 118. Valéry Giscard d’Estaing, The Independent, 30 September 2007, available at http://www.independent.co.uk/opinion/commentators/valeacutery-giscard -destaing-the-eu-treaty-is-the-sa%0d%0a%0d%0ame-as-the-constitution-398286 .html. See also Stefan Griller, “Is This a Constitution?” in The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty? ed. Stefan Griller and Jacques Ziller (Vienna: Springer, 2009), 21–56. 119. “Presidency Conclusions, European Council,” 15–16 June 2006, supra, n. 113, par. 47. 120. Speech by Angela Merkel, Chancellor of the Federal Republic of Germany, to the European Parliament in Strasbourg on Wednesday, 17 January 2007, available at http://www.eu2007.de/en/News/Speeches_Interviews/January/Rede_Bunde skanzlerin2.html. 121. See 10659/07 of 14 June 2007, available at http://www.statewatch.org/ news/2007/jun/eu-treaty-10659-07.pdf. 122. The preparation of the Presidency Draft was “sourced out.” Instead of what had become standard in previous IGCs, namely to charge a “political” committee (a comité des sages politiciens) to prepare the discussion with a set of proposals, two privately funded groups played that role. Foremost was the Action Committee for European Democracy (a denomination with intentional Monnetian overtones), funded by the Robert Bosch Foundation and housed by the European University Institute (and in which Amato was active). See http://www.eui.eu/Departments AndCentres/RobertSchumanCentre/Research/ArchivesInstitutionsGovernance Democracy/ACED/BrusselsConf2007.aspx. 123. U.K. Foreign and Commonwealth Office, “The Reform Treaty—The British Approach to the European Union Intergovernmental Conference” (July 2007), Cm 7174, available at: http://www.fco.gov.uk/resources/en/pdf/pdf18/fco_beu_eureform treatywhitepaper. 124. 11625/07, available at http://register.consilium.europa.eu/pdf/en/07/st11/ st11625.en07.pdf, 4. 125. SN3116/02/07 REV2, available at http://www.unizar.es/euroconstitucion/ Treaties/Library%20(Since%20June%202007/German%20Presidency%20 2007%20Draft%20IGC%20Mandate.pdf. 126. Literally, to whisper in secret, but also meaning an agreement devoid of principles. On the way in which the European Council negotiated, see Ana Carbajosa, “Sarkozy, el negociador,” El País, 23 June 2007. 127. “Presidency Conclusions of the European Council of 21–22 June 2007.” Annex I includes the specific mandate to the IGC, available at http://www.consilium .europa.eu/uedocs/cms_data/docs/pressdata/en/ec/94932.pdf.


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128. European Council, “IGC 2007 Mandate,” POLGEN 74, 11218/07, 2. 129. The committee was struck that “those representing the UK did not see the draft IGC mandate until 5:00 pm on 19 June, even though the European Council was due to commence just over 48 hours later.” U.K. House of Commons European Scrutiny Committee, 35th Report, Session 2006–07, 24, available at http://www.parliament.the-stationery-office.com/pa/cm200607/cmselect/cmeu leg/1014/101402.htm. 130. All IGC documents are available at http://www.consilium.europa.eu/show Page.aspx?id=1317&lang=en. 131. European Council, “Brussels European Council 12/22 June 2007—Presidency Conclusions, 20 July 2007,” 11177/1/07 REV 1. 132. General Secretariat of the Council, “IGC 2007 Mandate,” Brussels, 26 June 2007, POLGEN 74, 11218/07, at 3, available at http://74.125.77.132/search?q=cac he%3A2SGiiMkuV70J%3Aregister.consilium.europa.eu%2Fpdf%2Fen%2F07%2Fs t11%2Fst11218.en07.pdf+POLGEN+74&hl=no&gl=no. 133. On the constitutional significance of these symbols, see Armin von Bogdandy, “The European Constitution and European Identity: Text and Subtext of the Treaty Establishing a Constitution for Europe,” International Journal of Constitutional Law 3 (2005): 295–315; Olivier Duhamel, “Igniting the Spirits,” European Constitutional Law Review 1 (2005): 12–16. On the symbol of the constitution itself, see Joseph H. H. Weiler, “On the Power of the Word: Europe’s Constitutional Iiconography,” International Journal of Constitutional Law 3 (2005): 173–90. 134. Declaration 17 reproduces the Opinion of the Council Legal Service. 135. See chapter 3 on the limits to primacy in national constitutional orders. 136. The official text is now published as part of the consolidated version of the treaties after the entry into force of the Treaty of Lisbon; see OJ C 83, of 30 March 2010, 391–403. 137. Michael Dougan, “The Treaty of Lisbon 2007: Winning Minds, not Hearts,” Common Market Law Review 45 (2008): 617–703. 138. See Maya Sion-Tzidkiyahu, “Opt-Outs in the Lisbon Treaty: What Direction for Europe a la Carte,” European Journal of Law Reform 10 (2008): 497–514; Stephen Carruthers, “The Treaty of Lisbon and the Reformed Jurisdictional Powers of the European Court in the Field of Justice and Home Affairs,” European Human Rights Law Review 6 (2009): 784–804. On the British debate on the relevance of the optout, see European Union Committee of the House of Lords, “The Treaty of Lisbon: An Impact Assessment (2008), available at http://www.publications.parliament.uk/ pa/ld200708/ldselect/ldeucom/62/62.pdf, 101, 106. On the relationship between the principle of protection of fundamental rights and the charter, see now judgment in case C-555/07, Kücükdeveci, not yet reported, available at http://curia.europa .eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=Submit&numaff=C-555/07, especially par. 21 and 22. 139. Article 1.2 of protocol 7. 140. This protocol reflects the persistent distrust that British governments have felt toward the idea and the contents of the charter, distrust that was justified by the later (in)famous Lord Goldsmith by reference to fears of a surreptitious increase of the powers of the Union pace the charter. Such objections were supposed to have been quelled by the horizontal clauses inserted in the charter in 2000 and by their


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subsequent amendment in an even more restrictive sense, again upon insistence of the representative of the British government during the Laeken Convention. And still, in the run-up to the Berlin Council of 2007, the British delegation threatened to block the approval of what became later the Lisbon Treaty unless they obtained an opt-out clause. 141. See the article by the late B. Bercusson, “The Lisbon Treaty and Social Europe,” ERA Forum 10 (2009): 87–105, at 98. 142. Moreover, the consequences the protocol should have on defining “rule of reason” justifications invoked by the United Kingdom and Poland could indeed be intriguing, especially if the ECJ decides to tie its jurisprudence in that regard to the charter. 143. Steve Peers, “British and Irish Opt-Outs from EU Justice and Home Affairs (JHA) Law,” analysis available at http://www.statewatch.org/news/2009/jun/ uk-ireland-analysis-no-4-lisbon-opt-outs.pdf. 144. Gladio comes immediately to mind. Although unnecessarily erratic in style and slightly precipitated in its conclusions, Daniele Genser, NATO’s Secret Armies: Operation Gladio and Terrorism in Western Europe (London: Frank Cass, 2005) provides a wealth of material that should have made drafters of the treaty think twice about including a provision such as article 66a. 145. See the amended protocol 1 on the role of national parliaments. Given the executive dominance that characterizes national politics in many member states, the effects of these provisions are bound to be contrary to those said to be intended to reform the voting rules in the Council. 146. Alternatively, the vote will be deemed as positive if only three member states opposed it, even if they represented more than 35 percent of the population of the Union. 147. There is no explicit provision making mandatory a referendum prior to the ratification of the treaty. Still, since Ireland joined the Union, it has been customary to amend the constitution to take notice of amendment treaties (cf. article 29.3, 29.4, 29.5, and 29.7 of the Irish constitution). Because the constitution cannot be amended until after the people have consented to it, ex article 47 of the constitution, there was no way of avoiding the plebiscite in Ireland. 148. Bertie Ahern was replaced by Brian Cowen on 7 May 2008. 149. On the reasons for the “no,” see Milward Brown IMS, “Post-Lisbon Treaty Referendum Research Findings,” available at http://www.dfa.ie/uploads/documents/ Publications/Post%20Lisbon%20Treaty%20Referendum%20Research%20Find ings/post%20lisbon%20treaty%20referendum%20research%20findings_sept08 .pdf; Eurobarometer, “Post-Referendum Survey in Ireland,” available at http://ec .europa.eu/public_opinion/flash/fl_245_full_en.pdf. 150. “Presidency Conclusions, European Council 18 and 19 June 2009,” available at http://europa.eu/rapid/pressReleasesAction.do?reference=DOC/09/2&form at=DOC&aged=0&language=ES&guiLanguage=en, par. 1 to 5 and annexes 1 to 3. In the first annex, the Council sets itself the task of answering Irish worries on the Treaty of Lisbon and clarifies its impact on the following and miscellaneous set of questions: right to life, family, and education, taxation, and security and defense. Even if this is labelled as a declaration, the Council adds a strange clause concerning when the declaration will have effects (on the same date as that of entry into effect


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of the Lisbon Treaty). The second annex is a solemn declaration on the rights of workers, social policy, and other affairs. In the third annex is a national declaration made by Ireland. 151. John Fitzgibbon, “The Second Referendum on the Treaty of Lisbon in the Republic of Ireland,” available at http://www.sussex.ac.uk/sei/documents/epernireland referendum2009.pdf. 152. First Judgment on the Lisbon Treaty, of 26 November 2008, available at http://www.usoud.cz/file/2339. 153. Judgment of 30 June 2009, available at http://www.bundesverfassungsgericht .de/en/decisions/es20090630_2bve000208en.html. 154. Judgment of 3 November 2009, available at http://www.usoud.cz/file/2506. 155. See Steven Peers, “The Beneš Decrees and the EU Charter of Fundamental Rights,” briefing paper available at http://www.statewatch.org/news/2009/oct/ lisbon-benes-decree.pdf. 156. Presidency Conclusions of the European Council, 29 and 30 October 2009, available at http://europa.eu/rapid/pressReleasesAction.do?reference=DOC/09/5&f ormat=PDF&aged=0&language=ES&guiLanguage=en, par. 1 and 2, annex 1. Paragraph 1 and annex 1 result in the application of protocol 30 of the Lisbon Treaty to the Czech Republic when a new accession Treaty is to be ratified. 157. European Commission, “Reforming Europe for the 21st Century,” POLGEN 83, 11625/07, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri= COM:2007:0412:FIN:EN:PDF, 3. 158. In the words of Ziller, “Pouvoir constituant v. drafters of the constitution”; see Jacques Ziller, “National Constitutional Concepts in the New Constitution for Europe,” European Constitutional Law Review 1 (2005): 247–71, at 264. 159. König, Daimer, and Finke, supra, n. 115. 160. Dougan, supra, n. 137, 701. 161. See further Agustín J. Menéndez, “Governance and Constitutionalism in the European Order,” in The European Union Legal Order after Lisbon, ed. Patrick Birkinshaw and Mike Varney (Dordrecht: Kluwer Law International, 2010), 65–90. 162. In Autumn 2004, 68 percent of those polled supported the idea of a European constitution. Eurobarometer 62, “Public Opinion in the European Union,” European Commission, May 2005 (fieldwork October–November 2004), available at http://ec.europa.eu/public_opinion/archives/eb/eb62/eb_62_en.pdf. 163. Giscard, supra, n. 118.

CHAPTER 5: UNTANGLING THE KNOTS BY MEANS OF THE THEORY OF CONSTITUTIONAL SYNTHESIS 1. Case -438/05, Viking, [2007] ECR I-10779. 2. While different national constitutional traditions might characterize the problem in different ways, they could not be said to support the solution put forward by the European Court of Justice, which solved the conflict in favor of the freedom of establishment of the employer.


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3. Some analysts go so far as to label this a juridical coup d’état. See Alex Stone Sweet, “The Juridical Coup d’État and the Problem of Authority,” German Law Journal 8 (2007): 915–28. 4. See paragraph 277 of the Lisbon ruling of the German Constitutional Court, Judgment of 30 June 2009, available at http://www.bundesverfassungsgericht.de/ en/decisions/es20090630_2bve000208en.html. 5. This uncertainty also accounts for the different renditions of what Laeken represented. Some argue that it fails to qualify as constitutional; others present it as an instance of constitution making; and still others cast it as a matter of constitutional transformation (of the constitutional order already in place). 6. On constitutional conflicts, see Agustín José Menéndez, “Sobre los Conflictos Constitucionales Europeos,” Anuario de Filosofía del Derecho 24 (2007): 139–94. 7. A very apt Kelsenian perspective is in Juan Luis Requejo Pagés, “Defensa de la Constitución Nacional y Constitucionalización de Europa: Inflación de Derechos y Deslegalización del Ordenamiento,” Fundamentos 4 (2006): 443–53. 8. On the confusing connotations of the term, see Hans Kelsen, Pure Theory of Law (Berkeley: University of California Press, 1967), 232. 9. The different layers of the democracy equation of the European Union are considered in Agustín José Menéndez, “The European Democratic Challenge,” European Law Journal 15 (2009): 277–308. 10. Italian Constitutional Court Judgment 14/64, Costa, of 24 February, available at http://www.cortecostituzionale.it/giurisprudenza/pronunce/schedaDec.asp ?Comando=RIC&bVar=true&TrmD=costa&TrmDF=&TrmDD=&TrmM=&iPagEl=1& iPag=1. Judgment of the ECJ on 6/64 Costa, [1964] ECR 585. 11. Karen Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (Oxford: Oxford University Press, 2001). 12. The immediate consequence of substituting the exercise of an explicit pouvoir constituant for the constitutional traditions common to the member states was that European constitutional norms remained for a good part unwritten rules. National constitutional norms are in most cases written, as they are formulated in constitutional statements contained in texts that are widely acknowledged in legal practice as being the national constitution or a part of it. But as we take the further step of considering which of all of these national constitutional norms would be coming together to form a common constitutional law, the formal and substantive differences among national constitutions introduced a degree of uncertainty as to what the actual contents of the common constitutional law would be. First, we see that the degree of correspondence between the formal and the material constitution varies. Some constitutions (generally older ones, such as the Belgian constitution at the time of the founding) do not contain all, and perhaps not even most, of the constitutional norms as practiced. The “living constitution” complements the “written constitution”; that may be a fairly straightforward affair for national legal scholars, but it creates an additional difficulty for legal scholars from other member states, not to speak of citizens in general. In other cases, the formal constitution would basically correspond to the material constitution; but the written constitution having been enacted recently (as was the case in France, Germany, and Italy at the time of the founding) is such that the concrete implications of constitutional norms would not have been fully worked out yet. To put it differently, neither political nor judicial


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practice would have sufficiently determined the derivative constitutional norms to be discerned from the written constitutional statements. Second, European integration was rendered possible by a high degree of structural affinity among national constitutions. But differences also remained. On the one hand, there were differences in terms of the questions that had to be decided at the constitutional level. Thus, which rights should be regarded as part of the “fundamental core” of the constitution, and which should be regarded exclusively as constitutional rights, or even ordinary rights, would be answered differently in different national constitutional traditions. On the other hand, there would be differences in how conflicting constitutional principles would be weighed and balanced, resulting in differences in derivative constitutional rights. All member states affirm that citizens have a right to property and a right to health, but there are differences in the way in which these two rights are weighed and balanced in concrete cases. 13. This was clearly at work in the expansive definition of who was a “worker” for the purposes of free movement of workers and implementing regulations. See the paradigmatic case 75/63, Hoekstra, [1964] ECR 177. A general statement of this line of interpetation can be found at Case 64/81, Corman, [1982] ECR 13, par. 8. 14. Case C-144/04, Mangold, [2005] ECR I-9981. Mangold is more complicated, however, because the Court of Justice based its ruling on appeal to the constitutional traditions common to the member states. However, the judgment reveals that the Court finds substantive support for a right to nondiscrimination on the basis of age on only two of the twenty-five relevant constitutions at the time the case was discussed. To make matters worse, the Court seems to jump quite happily from such a general right to rather specific normative implications, a move that cannot be taken for granted and would be supported even in these two constitutional traditions. 15. Fritz Scharpf, “The Only Solution Is to Refuse to Comply with ECJ Rulings,” Social Europe 4 (2009): 16–21; Roman Herzog and Lüder Gerken, “Stop the Court of Justice,” Frankfurter Allgemaine Zeitung, 8 September 2008, English version at http://www.cep.eu/fileadmin/user_upload/Pressemappe/CEP_in_den_Medien/Her zog-EuGH-Webseite_eng.pdf. 16. At this stage of the evolution of Community law, that is the only relevant sense of article 273 of the treaty on the functioning of the European Union. 17. If all national constitutional norms converge, as in most cases they do, the common norm is easy to establish. The strong affinity between national and Community constitutional norms is due to the history of European integration, to the fact that all member states are parties to the European Convention on Human Rights; moreover, accession to the European Union is conditioned to candidate states’ indeed fitting in the constitutional paradigm defined by the common constitutional traditions.

CHAPTER 6: CANADA’S CONSTITUTIONAL EXPERIENCE AND LESSONS FOR EUROPE 1. Will Kymlicka, Multicultural Citizenship. A Liberal Theory of Minority Rights (Oxford: Clarendon, 1995); Kymlicka, Finding Our Way (Oxford: Oxford University Press, 1998).


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2. F. L. Morton and Rainer Knopff, The Charter Revolution and the Court Party (Peterborough, Ontario: Broadview Press, 2000); Alan C. Cairns, “The Canadian Experience of a Charter of Rights,” in The Chartering of Europe: The Charter of Fundamental Rights and Its Constitutional Implications, ed. E. O. Eriksen, J. E. Fossum, and A. J. Menéndez (Baden-Baden: Nomos, 2003), 93–111. 3. The act was given royal assent as a British statute on 29 March 1867. On 1 July 1867 it was proclaimed into law, thus establishing the Dominion of Canada. 4. These were Nova Scotia, New Brunswick, and the province of Canada, which upon joining was split into two: Ontario and Quebec. 5. Cairns, supra, n. 2, at 96. 6. Manitoba joined in 1870, the Northwest Territories in 1870, British Columbia in 1871, Prince Edward Island in 1873, Yukon in 1898, Alberta and Saskatchewan in 1905, Newfoundland in 1949, and Nunavut in 1999. The Northwest Territories, Yukon, and Nunavut are territories; the rest are provinces. 7. BNA Act, ss. 17, available at http://www.justice.gc.ca/eng/pi/const/lawreg-loireg/ p1t16.html. 8. It was initially stated to have a total of seventy-two senators, equally distributed among three regions: Ontario, twenty-four; Quebec, twenty-four; and the Maritimes, twenty-four—twelve from Nova Scotia and twelve from New Brunswick (ss. 22). Senators would be appointed by the central government’s executive (specifically by the governor general, acting on the advice of the prime minister). 9. It would consist of 181 seats, with 82 from Ontario, 65 from Quebec, 19 from Nova Scotia, and 15 from New Brunswick (ss. 37). The number of seats could be increased, “provided the proportionate Representation of the Provinces prescribed by this Act is not thereby disturbed”(ss. 52). The federal principle here clearly interfered so that this system was not based on a straightforward principle of digressive proportionality. 10. The British North America Act, 1867, ss. 53, available at http://www.justice .gc.ca/eng/pi/const/lawreg-loireg/p1t16.html. 11. The United Province of Canada was made up of the union in 1840 of Upper Canada (Ontario) and Lower Canada (Quebec). 12. There is also a small similarity to the U.S. Senate in that both are federal chambers based on geographical equality (although the Canadian Senate is based on regional as opposed to individual state equality), but the two bodies are otherwise quite different because Canadian senators are not elected and do not take part in ratifying executive decisions. The Senate of Canada, “A Legislative and Historical Overview of the Senate of Canada,” Committees and Private Legislation Directorate, revised May 2001, available at http://www.parl.gc.ca/information/about/process/ senate/legisfocus/legislative-e.htm. 13. Alan C. Cairns, Reconfigurations: Canadian Citizenship and Constitutional Change (Toronto: McClelland & Stewart, 1995), 100. 14. The Province of Manitoba, which was established by the federal parliament in 1870, was then also provided with an upper house. The provinces that entered later—British Columbia, 1871, Saskatchewan and Alberta, 1905, and Newfoundland, 1949—did not have one. Since then, Manitoba, Prince Edward Island, New Brunswick, Nova Scotia, and Quebec have all abolished their upper houses. See http://www2.parl.gc.ca/Sites/LOP/AboutParliament/Forsey/parl_gov_01-e.asp.


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15. This included the right to appoint senators, judges to the Supreme Court, and lieutenant governors of the provinces (24, 96, 58), summon and dissolve the House of Commons (38,50), assent to as well as refuse assent to legislation, and exclusively to recommend money bills (54). 16. Patrick J. Monahan, Constitutional Law, 3rd ed. (Toronto: Irwin Law, 2006). 17. Ibid., 50. 18. These were the provinces of Canada, Nova Scotia, and New Brunswick. The negotiations had included representatives also from Prince Edward Island and Newfoundland, but they decided not to join then. Prince Edward Island joined in 1873, and Newfoundland joined in 1949. 19. Between 1867 and 2000, the Canadian constitution was amended more than twenty times, most of these by the U.K. parliament. (Monahan, supra fn. 16, 5.) The Statute of Westminster, 1931 (U.K.) confirmed Canada’s legal independence from Great Britain. However, the statute still provided that only the U.K. parliament could enact amendments to the British North America Act, 1867. In 1949, through the British North America (No. 2) Act, the federal government sought a limited power to the Canadian parliament to amend the constitution. This was to apply in areas under federal jurisdiction only, although precisely what this entailed was not easy to establish. This unilateral attempt at partial patriation was met with criticism from the provinces. The government then also implicitly recognized the provincial role by calling a federal-provincial conference in 1950, but the conference failed to reach agreement. Scott notes how this act entails that the federal government “has withdrawn certain defined classes of matters from its competence, leaving them to be amended by a process to be agreed upon at the Dominion-provincial conference. Thus, it has voluntarily retreated, so to speak, from the position which, by subjecting the legal supremacy of the Parliament to the conventional control of the Canadian Parliament, had accidentally resulted in giving Canada a federal constitution as flexible as the English constitution itself.” See F. R. Scott, “The British North America (No.2) Act, 1949,” University of Toronto Law Journal 8, no. 2 (1950): 201–7, at 203–4; James Ross Hurley, Amending Canada’s Constitution: History, Processes, Problems and Prospects (Ottawa: Minister of Supply and Services, 1996), 30–31. 20. See Cairns, supra, n. 13, 110; Peter Hogg, Constitutional Law of Canada (Toronto: Thomson & Carswell, 2007); Monahan, supra, n. 16. 21. In this, the Canadian case was typical of the Commonwealth pattern. See K. C. Wheare, The Constitutional Structure of the Commonwealth (Oxford: Oxford University Press, 1960), chap. 3 and 4, where he discusses the concepts of autonomy and autochtony of the constitution. Indeed, the intricacies and logical tensions implicit in derivative constitutionalism were to result in major legal-theoretical puzzles, first in Rhodesia (see J. M. Eeekelar, “Principles of Revolutionary Legality,” in Oxford Essays in Jurisprudence, ed. A. W. B. Simpon [Oxford: Oxford University Press, 1973], 22–43, at 41; F. M. Brookfield, “The Courts, Kelsen, and the Rhodesian Revolution,” University of Toronto Law Journal 19 [1969]: 326–52; Tony Honoré, “Reflections on Revolutions,” Irish Jurist n.s. 2 [1967]: 268–78) and then in Grenada (see Simeon C. R. McIntosh, Kelsen in the Grenada Court [Kingston and Miami: Ian Randle Publishers, 2008]). Indeed, it is Commonwealth constitutionalism that made H. L. A. Hart ponder about the necessary unique character of the rule of recognition. See H. L. A. Hart, The Concept of Law (Oxford: Oxford University, 1961), 120–23.


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22. Jane Ajzenstat, The Canadian Founding. John Locke and Parliament (Montreal: McGill-Queen’s University Press, 2007), 46. 23. Joseph Edwind Crawford Munro, The Constitution of Canada (Cambridge: Cambridge University Press, 1896), 3. 24. “The colonists deliberately aimed to reverse the American system: to the provinces were to be allotted exclusive legislative powers over enumerated classes of matters and to the federation should belong the vast residue of undefined legislative powers. For better or worse, this seemed an obvious lesson from that war to the colonial statesmen. . . .” W. P. M. Kennedy, “The Interpretation of the British North America Act,” Cambridge Law Journal 8 (1943): 146–60, at 147. 25. Preface of the BNA Act, 1867. 26. Janet Ajzenstat, The Once and Future Canadian Democracy: An Essay in Political Thought (Montreal and Kingston: McGill-Queen’s University Press, 2003), 40. Nova Scotia was also the first part of Canada to win responsible government: government by a cabinet answerable to, and removable by, a majority of the assembly. New Brunswick followed a month later, in February 1848; the Province of Canada (a merger of Upper and Lower Canada formed in 1840) in March 1848; Prince Edward Island in 1851; and Newfoundland in 1855. 27. In effect, this approach to the constitution and the constitutional text underlines first that the Canadian constitution’s normative underpinning was steeped in the principles of rule of law and liberal representative democracy. The U.K. imperial parliament played a central role as the guardian of the core principles of Canadian constitutionalism, including the central representative-democratic component. Gerald Gall, The Canadian Legal System, 5th ed. (Toronto: Thomson & Carswell, 2004), 62. 28. This drew on the Code Napoléon of 1804 (ibid., 264). This had its roots in the importation of French civil law to New France in the 1660s. Quebec was deemed a conquered colony. In 1763 the Royal Proclamation of 1763 (U.K.), R.S.C. 1985, appendix II, no. 1. instituted English law, but this was so contentious that French civil law was reinstated via the U.K. Quebec Act, 1774, (U.K.); R.S.C. 1985, appendix II, no. 2. This was then also subsequently codified in the Quebec Civil Code of July 1,1866. 29. Monahan, supra, n. 16, at 35. 30. “The Colonial Laws Validity Act, 1865 defined an imperial statute as an ‘Act of Parliament [i.e., of the Parliament at Westminster] extending to the colony,’ and provided that an Act of Parliament was deemed to extend to the colony only if it was made applicable to the colony ‘by the express words or necessary intendment’ of the statute itself. The Colonial Laws Validity Act went on to provide that colonial laws were void if they were ‘repugnant’ to an imperial statute (as defined) but were not void if they were repugnant to a received statute or rule of common law. The Colonial Laws Validity Act was intended to remove doubts as to the capacity of colonial legislatures to enact laws that were inconsistent with English law.” Hogg, supra, n. 20, at 51–52. 31. Fritz W. Scharpf, “The Joint-Decision Trap: Lessons from German Federalism and European Integration,” Public Administration 66 (1988), 239–78; Scharpf, “Community and Autonomy: Multi-level Policy-making in the European Union,” Journal of European Public Policy 1, no. 2 (1994): 219–42. 32. Kenneth C. Wheare, Federal Government (Oxford: Oxford University Press, 1963), 19.


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33. “[T]he act’s importance cannot be understated, for it was the first imperial statute that recognized a colony’s own formal constitution.” Alain-G. Gagnon and Raffaele Iacovino, Federalism, Citizenship, and Quebec: Debating Multinationalism (Toronto: University of Toronto Press, 2007), 29. 34. This dualistic position sees Canada as a compact between two cultural groups. Ibid., 72. This is the national compact theory (see Paul Romney, “Provincial Equality, Special Status and the Compact Theory of Canadian Confederation,” Canadian Journal of Political Science 32, no. 1 [1999]: 21–39, at 23), or cultural or racial compact theory (Paul Romney, Getting It Wrong: How Canadians Forgot Their Past and Imperilled Confederation [Toronto: University of Toronto Press, 1999], 5). 35. Notably associated with Canada’s first prime minister and one of its foremost architects, Sir John A. MacDonald, who saw these features as a step in the direction of his desired (centralistic) legislative union. Hogg, supra, n. 20, at 114. 36. Different legal cultures also induced different constitutional expectations: “One of the constitutional difficulties in Canada has been the instinctive desire of French-speaking Canadians for the definitive document in the grand civil law manner, as distinguished from the Anglo-Canadian pragmatic tradition in legal and political matters.” R. I. Chefffins and R. N. Tucker, The Constitutional Process in Canada (Toronto: McGraw-Hill Ryerson, 1976), 5. This is also clearly a parallell with the European Union. 37. Richard Simeon and Ian Robinson, State, Society and the Development of Canadian Federalism (Toronto: University of Toronto Press, 1990), 21. 38. A clear example is constituted by the provincial rights movement, which championed the provincial compact theory and was not only able to cement the principle of provincial autonomy in the expansive manner in which they understood it but also was “able to show that the centralizing mechanisms of the Macdonald constitution were inconsistent with the underlying principles of federalism and British constitutionalism—as they understood those terms.” R. C. Vipond, “ Constitutional Politics and the Legacy of the Provincial Rights Movement in Canada,” Canadian Journal of Political Science 18, no. 2 (1985): 267–94, at 288. 39. Hogg, supra, n. 20, at 113. 40. Romney, supra, n. 34, at 22. 41. Section 91(24) of the Constitution Act, 1867 left the power over “Indians, and Lands reserved for the Indians” to the federal government. 42. Jeremy Webber, Reimagining Canada (Kingston and Montreal: McGillQueen’s University Press, 1994), 87. Patrick Macklem notes that “the Proclamation illustrates . . . that Canada was literally constituted on ancestral territories. To ignore this aspect of Aboriginal prior occupancy would be to ignore a foundational feature of Canadian constitutional identity.” Patrick Macklem, Indigenous Difference and the Constitution of Canada (Toronto: University of Toronto Press, 2002), 105. 43. Imperial Conference, 1926 Inter-imperial Relations Committee Report Proceedings and Memoranda, E (I.R./26) series, available at http://www.foundingdocs .gov.au/resources/transcripts/cth11_doc_1926.rtf. 44. A. C. Cairns, Disruptions: Constitutional Struggles from the Charter to Meech Lake (Toronto: McClelland & Stewart, 1991).


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45. Richard Simeon, Federal-Provincial Diplomacy: The Making of Recent Policy in Canada (Toronto: University of Toronto Press, 1972). 46. This system of intergovernmental relations was sometimes explicitly labelled as Constitutional Conference but was an intrinsic part of the structure that from 1927 was labelled as the Dominion-Provincial Conference; then, from the 1950s the name changed to Federal-Provincial Conference, and since 1985 it has been termed the First Ministers’ Conference. CICS (2004) lists a total of seventysix first ministers’ meetings between 1906 and 2004. From the topics dealt with, twenty-five of these were explicitly addressing constitutional issues, although the substance of many of the other meetings was also directly constitutionally relevant. 47. D. Smiley, Canada in Question: Federalism in the Eighties, 3rd ed. (Toronto: McGraw-Hill Ryerson, 1980), 98. 48. Ibid., at 116. 49. Out of the total of seventy-six first ministers’ conferences that were held from 1906 to 2004, only nine were held before 1945, with the remaining sixty-seven held from 1945 onward. Canadian Intergovernmental Conference Secretariat (CICS), “First Minsters’ Conferences 1906–2004,” (2004), available at: http://www.scics .gc.ca/pubs/fmp_e.pdf. 50. This system has been characterized by “the concentration and centralization of authority at the top of each participating government, the control and supervision of intergovernmental relations by politicians and officials with a wide range of functional interests, and the highly formalized and well-publicized proceedings of federal-provincial conference diplomacy.” Garth Stevenson, Unfulfilled Union: Canadian Federalism and National Unity, 3rd ed. (Agincourt, Ontario: Gage, 1989), 224; Bruce Pollard, Managing the Interface: Intergovernmental Affairs Agencies in Canada (Kingston: Institute of Intergovernmental Relations, 1986), 2. 51. Monahan, supra, n. 16. 52. Ibid., 234. 53. Ibid., 236. 54. Pierre E. Trudeau, Federalism and the French Canadians (Macmillan, 1968), 198, cited in Alan C. Cairns, Constitution, Government, and Society in Canada (Toronto: McClelland & Stewart, 1988), 63. 55. Will Kymlicka, Finding Our Way (Oxford: Oxford University Press, 1998), 139, sees the BNA Act as heralding in a new tradition of federalism, namely multination federalism. 56. Peter Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People? 3rd ed. (Toronto: University of Toronto Press, 2004), 12. 57. Peter Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People? 2nd ed. (Toronto: University of Toronto Press, 1993), ix. 58. Ajzenstat, supra n. 22; J. Ajzenstat, P. Romney, I. Gentles, and W. D. Gairdner, eds., Canada’s Founding Debates (Toronto: University of Toronto Press, 2003). 59. Ajzenstat, supra n. 22, at 83. 60. Ibid., at 54. 61. Ibid., and Romney, supra, n. 34.


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62. Covers the tenure in government in Quebec of the liberal Jean Lesage government, which used the Quebec state to modernize and which served to politicize language and class issues, with direct constitutional implications. 63. Kenneth Roberts and Dale Posgate, Quebec: Social Change and Political Crisis (Toronto: McClellan & Stewart, 1980); Gagnon and Iacovino, supra n. 33. 64. Alexandra Dobrowolsky, The Politics of Pragmatism: Women, Representation, and Constitutionalism in Canada (Don Mills, Ontario: Oxford University Press, 2000); and Webber, supra n. 42. 65. H. Brunkhorst, “State and Constitution: A Reply to Scheuerman,” Constellations 15, no. 4 (2008): 493–501. “Law needs means enforcement (state I) but no monopoly of power (state II). What we need for global constitutionalism today is a world state I, not a world state II.” H. Brunkhorst, “States with Constitutions, Constitutions without States, and Democracy: Skeptical Reflections on Scheuerman’s Skeptical Reflection,” Ethics & Global Politics 2, no. 1 (2009): 65–81, at 75. 66. Patriation is a new term. It was derived from repatriation but since the BNA Act, 1867 had never been a Canadian act, it could not be repatriated to Canada. Hogg, supra n. 20, at 57. 67. Russell, supra n. 57, at 128. 68. Reference Re: Amendment To The Canadian Constitution [1982] 2 S.C.R. 793, 1982: 14, 15 June. 69. How independent patriation made Canada is contested. Hogg, supra, n. 20 argues that it gave symbolic credence to an existing political reality wherein the U.K. Parliament had no authority over Canada; it also equipped Canada with autonomy in the sense that the Canadian constitution would be operated in Canada only; but it did not equip Canada with constitutional autochthony, which implies that its claim to authority springs from only within the polity. This is in contrast to the U.S. Constitution, whose authority emanates from the United States exclusively, whose very forging entailed breaking the links with the colonial past. 70. Here Trudeau’s liberals obtained 68.2 percent of the vote and seventy-four out of seventy-five seats in Quebec. S. Clarkson and C. McCall, Trudeau and Our Times: The Magnificent Obsession (Toronto: McClelland & Stewart, 1991), 1:276. 71. The result was 59.5 percent opposed to giving the Quebec government a mandate to negotiate sovereignty-association with the federal government, and 40.5 percent in favor. This result included a “no” majority in all the linguistic groups in Quebec. Clarkson and McCall, supra n. 70. 72. Simeon and Robinson, supra n. 37, at 253; Russell, supra n. 56, at 107ff. 73. Russell, supra n. 57, at 110. 74. Ibid., 114. 75. Ibid. 76. Simeon and Robinson, supra n. 37, at 276. 77. Russell, supra n. 57, at 118. 78. With a clear majority—seven to two—the justices stated that provincial consent was not required. At the same time a majority of six found that “in terms of constitutional convention, the unwritten fundamental rules concerning the proper use of legal power that have always been an essential element in the British and Ca-


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nadian constitutions, there was a requirement of a ‘substantial degree’ of provincial consent.” Russell, supra n. 57, at 119. 79. In 1975, Quebec passed its Charte des droits et libertés de la personne (partie I de la Loi de 1982 sur le Canada (R.-U.), 1982, c.11). The Quebec Charter offers far stronger protections of French language rights and is more conducive to the pursuit of collective goals than is the Canadian Charter. 80. Cairns, supra n. 44, at 23. 81. For a list of these changes in the charter, see Russell, supra n. 57, at 114. 82. For a brief selection of accounts of patriation, see Keith Banting and Richard Simeon, eds., And No One Cheered: Federalism, Democracy & the Constitution Act (Toronto: Methuen, 1983); Edward McWhinney, Canada and the Constitution 1979–1982 (Toronto: University of Toronto Press, 1982); Guy LaForest, Trudeau and the End of a Canadian Dream (School of Policy Studies, Queen’s University, June 1995); Russell supra n. 56. 83. Simeon and Robinson, supra n. 37, at 257. 84. F. L. Morton and R. Knopff, The Charter Revolution and the Court Party (Peterborough, Ontario: Broadview Press, 2000); A. C. Cairns, “The Canadian Experience of a Charter of Rights,” in The Chartering of Europe: The Charter of Fundamental Rights and Its Constitutional Implications, ed. E. O. Eriksen, J. E. Fossum, and A. J. Menéndez (Baden-Baden: Nomos, 2003). 85. Webber, supra n. 42, at 83–84. 86. Cairns, supra nn. 42 and 2. 87. Cairns, supra n. 44; Alan C. Cairns, Charter versus Federalism: The Dilemmas of Constitutional Reform (Montreal and Kingston: McGill-Queen’s University Press, 1992); Cairns, supra n. 13. 88. Particularly relevant sections were 15, on equality rights (race, national or ethnic origin, color, religion, sex, age, or mental or physical disability); 23, on minority language educational rights; 25, on aboriginal rights; and 27, on multicultural heritage. 89. Section 33 of the charter, the so-called notwithstanding clause, permits governments (federal and provincial) to opt out of sections 2 or 7–15 of the charter for renewable periods of five years each. A similar although weaker instrument is section 1, the reasonable limits clause, which provides that the rights guaranteed in the charter are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” 90. See notably part II, section 35. Section 25 in the charter also noted that charter rights should not “abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada. . . .” 91. The original Constitution Act, 1982 then also contained a provision, section 37.1, which stated that there should be a constitutional conference on aboriginal and northern issues within one year. 92. For different positions on the political mobilizing effect of the charter insertion, see I. Brodie and N. Nevitte, “Evaluating the Citizens’ Constitution Theory,” Canadian Journal of Political Science 26, no. 2 (1993): 235–59; I. Brodie and N. Nevitte, “Clarifying Differences: A Rejoinder to Alan Cairns’s Defence of the Citizens’ Constitution Theory,” Canadian Journal of Political Science 26, no. 2 (1993): 269–72; A. C. Cairns,


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“A Defense of the Citizens’ Constitution Theory: A Response to I. Brodie and N. Nevitte,” Canadian Journal of Political Science 26, no. 2 (1993): 261–67. See also Charles Epp, The Rights Revolution (Chicago: University of Chicago Press, 1998). 93. Cairns, supra n. 44, at 223. 94. Proposed Section 2(1)(b) of the amended Constitution Act states that “[t]he Constitution of Canada shall be interpreted in a manner consistent with . . . (b) the recognition that Quebec constitutes within Canada a distinct society.” 95. M. D. Behiels, “Deciphering the Distinct Society Clause: Introduction,” in The Meech Lake Primer: Conflicting Views of the 1987 Constitutional Accord, ed. M. D. Behiels (Ottawa: University of Ottawa Press, 1989), 141–42. 96. Cairns, supra n. 44, at 225. 97. Ibid.; Russell, supra n. 57, at 127–53. 98. Russell, supra n. 57, at 127–53. 99. Cairns, supra n. 44, at 246. 100. “[T]he Supreme Court of Canada is the final court of appeal for all of Canada, including Quebec. Cases from Quebec dealing with conflicts between sex equality and the distinct society will, once decided by our highest court, be in our jurisprudence for citation in other sex equality cases, arising in other parts of Canada. It is thus not at all true to say that the relation between sex equality and the distinct society is a domestic matter, for Quebec only.” M. Eberts, “Why Are Women Being Ignored?” in Behiels, supra n. 95, 302–20, at 316. 101. Cairns, supra n. 44, at 108–38, 223–63. 102. Ibid. 103. J. E. Fossum, “On Democratizing European Constitution Making: Possible Lessons from Canada’s Experience,” Supreme Court Law Review 37 (2007): 343–81. 104. Cairns, supra n. 44, at 228. 105. Russell, supra n. 57, at 155. 106. Ibid., 156–68. 107. Ibid, 207 108. Ibid., 190ff. 109. Ibid., 193. 110. Cairns, supra n. 13, at 216. 111. Ibid. 112. Alain Noel, “Deliberating a Constitution: The Meaning of the Canadian Referendum of 1992,” in Constitutional Predicament: Canada After the Referendum of 1992, ed. C. Cook (Montreal and Kingston: McGill-Queen’s University Press, 1994), 64–88, at 75. 113. Russell, supra n. 57, at 190. 114. Ibid., 5. 115. Pierre Trudeau articulated this view clearly. He said that the accord would “institutionalize constitutional bickering,” where collective rights would matter more than would individual ones, where the accord would create a “hierarchy of classes of citizens,” and where “the blackmail [from Quebec] would continue,” cited in Richard Johnston, Neil Nevitte, Andre Blais, and Elisabeth Gidengil, eds., The Challenge of Direct Democracy: The 1992 Canadian Referendum (Kingston & Montreal: McGill-Queens University Press, 1996), 69.


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116. H. D. Clarke, A. Kornberg, and P. Wearing, A Polity on the Edge: Canada and the Politics of Fragmentation (Peterborough, Ontario: Broadview Press, 2000), 97. 117. Ibid., 97–102. 118. Canada, An Act to Give Effect to the Requirement for Clarity as Set Out in the Opinion of the Supreme Court of Canada in the Quebec Secession Reference, 2000, C-26, available at: http://laws.justice.gc.ca/eng/C-31.8/20100525/page-0 .html?rp2=HOME&rp3=SI&rp1=Clarity%20Act&rp4=all&rp9=cs&rp10=L&rp13=5 0#idhit2. 119. Cairns, supra n. 2, at 109. 120. Fossum, supra n. 103. 121. C. Taylor, Reconciling the Solitudes: Essays on Canadian Federalism and Nationalism (Montreal and Kingston: McGill-Queen’s University Press, 1993). 122. Evidence of value change is provided in Paul M. Sniderman, Joseph F. Fletcher, Peter H. Russell, and Philip E. Tetlock, The Clash of Rights: Liberty, Equality and Legitimacy in Pluralist Democracy (New Haven: Yale University Press, 1997). It should be added that the ability of the Harper government to govern as it does suggests that value changes need not translate into effective action. It should also be added that there is no scholarly consensus on the beneficial effects of the charter. For some critical voices on failures or deficiencies, consider Joel Bakan, Just Words: Constitutional Rights and Social Wrongs (Toronto: University of Toronto Press, 1997); Allan C. Hutchinson, Waiting for Coraf: A Critique of Law and Rights (Toronto: University of Toronto Press, 1995). 123. Fossum, supra n. 103. 124. Reference re Secession of Quebec, [1998] 2 S.C.R. 217. See also Alain-G. Gagnon and James Tully, eds. Multinational Democracies (Cambridge: Cambridge University Press, 2001). 125. Opinion polls consistently show strong nationwide support for the charter. J. F. Fletcher and P. Howe, “Public Opinion and Canada’s Courts,” in Judicial Power and Canadian Democracy, ed. Paul Howe and Peter H. Russell (Montreal: McGillQueen’s University Press, 2001), 257–59; Cairns (2003), 105, supra n. 2. 126. Fossum, supra n. 103. See also J. E. Fossum, “Constitutional Patriotism: Canada and the European Union,” in Constituting Communities: Political Solutions to Cultural Difference, ed. P. Mouritsen and K. E. Jørgensen (London: Palgrave, 2008), 138–61. 127. Dobrowolsky, supra n. 64, and Webber, supra n. 42. 128. James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995).

CONCLUSION: THE FUTURE OF A CONSTITUTIONAL EXPERIMENT 1. Massimo Pilotti, first president of the European Court of Justice, had been general secretary of the League of Nations.


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2. Robert Marjolin, who was a longtime commissioner and vice president of the Commission, was secretary general of the OEEC. 3. See Helene Sjursen, ed., Questioning EU Enlargement: Europe in Search of Identity (London: Routledge, 2007). 4. Consider Joshua Cohen and Charles Sabel, “Directly-Deliberative Polyarchy,” European Law Journal 3 (1997): 313–42; and James Bohman, Democracy across Borders: From Dêmos to Dêmoi (Cambridge, Mass.: MIT Press, 2007). 5. A key episode in the long saga is Case C-196/04, Cadbury Schweppes [2006] ECR I-7995. 6. See Heidrun Abromeit, Democracy in Europe: Legitimising Politics in a Non-State Polity (New York: Berghahn Books, 1998); Clifford J. Carrubba, “The Electoral Connection in European Union Politics,” Journal of Politics 63 (2001): 141–58.


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Index

Note: “EU” refers to the European Union.

aboriginal peoples, in Canada, 184, 197, 200, 284n42 accession, to European Union, 120, 218 Ackerman, Bruce, 17, 57 Act of Union with Scotland, 21 Act on Parliament Elections (1976), 252n49 adaptation, of institutional structures, 66, 68, 100 administrations, national, 106 Adonnino report, 112 agricultural policy, 81, 87–88, 91, 251n47 Ajzenstat, Janet, 188–89 Amato, Giuliano, 132, 269n50 Amsterdam Treaty (1997), 5, 111, 112, 114, 121, 125, 141 Aristotle, 23; Politics, 22 Ashton, Baroness, 4 Atomic Energy Community, 80 Balfour Declaration, 185 Belgium, parliament of, 114 Berlin Wall, fall of, 110

Bill of Rights, 21, 233n9 bill of rights, European, 96 BNA Act (1867). See British North America (BNA) Act (1867) Bretton Woods, 108 Britain. See United Kingdom British North America (BNA) Act (1867), 179–92, 196, 215, 281n3. See also Second British North America Act (1949) Broad Policy Economic Guidelines, 122 Buchanan, John, 235n39 Budgetary Treaties (1970, 1975), 124 Bundesbank, 110 Burke, Edmund, 188 Bush, George W., 64, 159 Butiglione crisis, 123 Canadian Charter of Rights and Freedoms, 196–97, 203–5, 215 Canadian constitution, 177–205; amendments to, 282n19; and avoidance of constitutional issues, 190–91; and Canadian 291

10_581_16_Idx.indd 291

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292

Index

independence, 286n69; challenges of, 177–78; Charter of Rights and Freedoms and, 196–97, 203–5, 215; Constitution Act and its preliminaries, 194–97; constitutional moment absent from, 193–95, 201; contested status of BNA Act, 182–90; and continuity with past, 181; democratic impulse of, 197–98, 201–2; derivative character of, 177–78, 180, 182, 189, 203; distinctiveness of, 182, 188–89; early conceptions of, 183–84; EU constitution compared to, 177–78, 182, 191–93, 203–5, 215; and federalism, 183, 185–87; institutions underlying, 179–80; and justice, 202; origins of, 179–82, 188–89; patriation of, 193–202, 286n66, 286n69; and pluralism, 183–84, 188–90, 197; post-1982, 198–202; prepatriation development of, 178–91; Quebec and, 193–205; and transformative constitutionalization, 183; underlying principles of, 188–89; and United Kingdom, 179–91, 195–96, 283n27 capital, movement of, 93, 95 Cappalletti, Mauro, 13 Cassis de Dijon case, 62, 74, 115 central banking, 121 Charlottetown Accord, 200–201, 216 Charter of Fundamental Rights of the European Union, 8, 130, 131, 140, 153–54. See also fundamental rights Charter Revolution (Canada), 178, 196, 203–4 Chirac, Jacques, 144, 146, 156 citizenship, 71–72 civil society, 136 Civil War, American, 183, 188 Clarity Act (1998), 201 Clark, Joe, 194 Coal and Steel Community. See European Coal and Steel Community co-decision, 124, 141, 222


Cold War, 85 collective goods, 117 Colonial Laws Validity Act (1865), 182, 283n30 comitology: democratic legitimacy of, 69; democratizing potential of, 221; experimental character of, 68, 90, 101, 104; in-between character of, 122–23; and regulatory decision making, 68; and theory of conflicts, 74; transformation of, 124 Committee of Permanent Representatives (COREPER I and II), 255n90 Common Agricultural Policy, 251n47 Common Assembly, 81 common constitutional law. See Community law common constitutional tradition, 239n9 common market, 107 Community. See European Union Community law: breadth and scope of, 115, 118; coercive resources of, 53; defined, 229n1; derivative character of, 7, 83, 92, 96, 165, 167, 171–75, 177–78, 221; direct effect of, 8, 89, 94–96, 116–17, 164, 253n64; and economic freedoms, 93; as international law, 248n16; interpretation of, 13–14; legislative action and, 92–93; legitimacy of, 26; national vs., 2, 7–8, 26, 230n6; normative synthesis and, 52; primacy of, 88–89, 94–95, 97, 116–18, 139, 153, 164; questions concerning, 7–9; as regulatory ideal, 10, 46, 47–50; structural principles of, 88, 93–96; substantive principles of, 88, 93–94, 96–97; synthetic characterization of, 10; theory of constitutional synthesis and, 10–11; and transformative constitutionalization, 88, 90; treaties and, 9; unwritten principles of, 19, 60, 95, 279n12. See also constitutional conflicts; legal order

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Index competences: in Canada, 186–87; in constitutional season, 114; of European Parliament, 122–24; EU vs. national, 96–97; expansion of, 119; Laeken Convention on, 139; and socioeconomic policy, 224 Conference of European Affairs Committees (COSAC), 122, 124, 262n163 conflicts, theory of, 74–75 Conseil d’État, 86–87, 105, 246n7 Constitution Act (1982), 195–97, 215 Constitutional Act (1791), 180, 182 constitutional argumentation, 29 constitutional catharsis, 201–2, 204–5 Constitutional Conference (Canada), 285n46 constitutional conflicts, 115, 163–76, 217; genesis riddle, 165–66, 168– 71; primacy riddle, 166–67, 171–75; vertical and horizontal, 171–76 constitutional courts, national, 164, 167 constitutional dynamics, 18, 28–35; constitutional synthesis and, 57–65; constitution making, 29–31; implications of, 34–35; simple constitutionalization, 33–34; transformative constitutionalization, 31–33 constitutional exploration, 33 constitutional field, 125, 189, 242n44. See also field, European Union as constitutional law. See European constitutional law constitutional moments, 35, 36, 38, 39, 57–59, 131, 193–95, 201. See also synthetic constitutional moments constitutional mutation, 235n44 constitutional narratives, 35–41 constitutional norms: general and abstract character of, 29, 32–33; material, 31–32; process of constructing, 31–32 constitutional season, 109–26; constitution making in, 111–14; contours of, 109–11;


293

denial in, 124–26; simple constitutionalization in, 116–18; transformative constitutionalization in, 114–16 constitutional synthesis. See theory of constitutional synthesis constitutional theory, traditional, 18 constitutional tolerance, 73–74 constitutional traditions, 18 constitutional transformation, 35–41 Constitutional Treaty (Treaty Establishing a Constitution for Europe) [2004], 5, 132, 213; and decision making, 141, 270n72; failure of, 6–7; Lisbon Treaty compared to, 28, 150, 158–62; ratification of, 144–47; referenda on, 6, 36–37, 144–47. See also European Union constitution; Laeken reform process constitutional will, 39 constitution making, 29–31, 39–40; in constitutional season, 111–14 “constitution of sorts,” 22 constitutions: affirmation in the negative of, 148, 159–61, 203; conceptions of, 17, 19–28; democratic, 24–25; formal conception of, 20–22; integrative role of, 29, 33; legitimacy guaranteed through, 82–83; living, 29; material, 22–23; national constitutions as basis for Community constitution, 9–10; normative, 24–26; power of, in European minds, 82–83; processes as important to, 156–57; rigidity of, 21, 27; singularity of, 20; social practices concerning, 21–22; stability of, 21; written, 20–21, 279n12. See also Constitutional Treaty (Treaty Establishing a Constitution for Europe); European Union constitution; national constitutions; theory of constitutional synthesis conventionnels, 130, 133, 135

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294

Index

Convention on the Future of Europe, 131–32 COSAC. See Conference of European Affairs Committees Costa case, 36, 94, 115, 164, 171–72 Council of Europe, 217 Council of Ministers. See European Council cultural compact theory, 284n34 customs union, 81 Czech Constitutional Court, 156 damages, compensation for, 117 Dassonville case, 62 decision making: and Constitutional Treaty, 141, 270n72; constitution making and, 30; in European Council, 141, 155, 222; in European Parliament, 222 Declaration of the Rights of Man and of the Citizen (1789), 24, 233n9 decolonization, 237n64, 249n26 De Gaulle, Charles, 88, 249n26, 255n94 Dehaene, Jean Luc, 132, 269n50 Dehaene report, 112 deliberation, constitution making and, 30, 31 Delors Report, 112 democracy: Canadian constitution and, 197–98, 201–2; derivative, 220–21; enlargement and, 109; as entrance criterion for EU, 120; EU constitution and, 37–38; European Parliament and, 3, 221–22; European Union and, 3–4, 220–25; EU shortcomings concerning, 3–4, 111, 114, 222–25; institutional structure and, 98–99; Lisbon Treaty and, 156–57, 203; in revolutionary and evolutionary constitutionalism, 40–42; rights and, 25 democratic constitutionalism: Canadian constitution and, 197; constitution making and, 30; decision making in, 30; deliberation in, 30; European Union and,


19, 24–25, 220; meaning of, 25; normative aspect of, 25–26; and relationship of formal and material constitution, 26–27 democratic deficits, 3–4, 111, 114, 222–25 democratic representation, 25 Denmark: ECJ and, 105; parliament of, 106; referenda in, 114; and reform, 113 Diefenbaker, John, 191 direct effect, doctrine of, 8, 89, 94–96, 116–17, 164, 253n64 directives: changed to laws, 141; interpreted as statutes, 90 disabled people, 202 distinct society provision, in Canadian constitution, 198–99 Dominion-Provincial Conference (Canada), 285n46 Dooge report, 112 double majority system, 155 double pluralism, 52, 54, 217 drafting, of constitutions, 30–31 Draft Treaty on European Union. See Spinelli Draft Treaty Dworkin, Ronald, 12 Eastern Europe, 110–11 ECJ. See European Court of Justice Economic Community (“the Community”), 80–81 economic freedoms: Community law and, 88, 93; in constitutional season, 114; as constitutional standards, 109; ECJ on, 53, 62, 95, 114–15, 223–24; and economic policy, 93; European citizenship as criterion for, 62; influence of, 115; legal regimes related to, 93; and political disempowerment, 226 economic policy, 88, 93, 122 elections: to European Parliament, 89, 91, 105, 106, 108; European vs. national character of, 259n130 enlargement: Commission affected by, 123; constitutional effects of, 120;

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Index democracy and, 109; dynamism resulting from, 218; entrance criteria for, 120, 218; pluralizing effects of, 119–20; socioeconomic effects of, 111 equality before the law, 82 Erhard, Ludwig, 88 Estonia, 8, 165 Euratom, 80–81, 101, 140 Euratom Treaty, 66 Eurojust, 119 European Assembly: and European Parliament, 123–24; institutional framework for, 80; powers of, 98–99 European Central Bank: and monetary union, 120; power of, 119; status of, 262n165 European Coal and Steel Community, 13, 35, 80–81, 103, 119 European Coal and Steel Community Treaty (1951), 66, 82, 87, 89, 91, 104 European Commission: accountability of, 98; as adaptation of national institutions, 68, 100; and agricultural policy, 89; competences of, 81; constitutional impulse and, 87; establishment of, 66; High Authority as forerunner of, 103; and institutional development, 101; institutional identity of, 122–23; integration promoted by, 103; nature of, 103, 256n101; and reform, 113; and socioeconomic policy, 224; weakening of, 102 European Commission president, 230n7 European Communities Act, 21 European Community, 4, 140 European Community Defence Treaty, 87 European Community Political Treaty, 87 European Community Treaty, 66 European constitutional law, basis of, 19–20, 239n9 European Convention, 6


295

European Convention of Human Rights, 57 European Council: Committee of Permanent Representatives (COREPER I and II), 102; Committee on Political Cooperation, 102; constitutional impulse and, 87, 92, 102–3, 107, 130–31, 150; and Constitutional Treaty rejection, 148; decision making in, 141, 155, 222; and economic freedoms, 95; establishment of, 98; and EU/ national interests, 101, 122–23; and governance, 127; and institutional development, 101; institutional identity of, 68; and Laeken Convention, 137–38, 142, 269n50; Legal Secretariat of, 113, 136, 140; national parliaments and, 106; operations of, 102; and reform, 112–13; secretary general of, 123; and socioeconomic policy, 224; Special Committee on Agriculture, 102; structure of, 102; trans- and supranational networking of, 110 European Council president, 2, 101, 230n7 European Court of Human Rights, 57 European Court of Justice (ECJ): changing identity of, 104; and the constitution of EU, 22, 23, 36, 88– 89, 93–97, 107, 116–18; dress code of, 105; and economic freedoms, 53, 62, 95, 114–15, 223–24; establishment of, 66, 67, 81, 104; on freedom of establishment, 8, 164–65, 173, 224; and institutional development, 101; institutional framework for, 80; narrative concerning, 36; tension underlying, 63 European Defence Agency, 119 European Defence Community, 169, 241n34, 246n7 European Economic Community (EEC), 80–81, 87

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296

Index

European Economic Community Treaty, 81, 82, 91, 251n47 Europeanization, 69, 106 European Parliament (EP): as adaptation of national institutions, 68; competences of, 122–24; composition of, from national parliamentarians, 100; constitutional impulse and, 87, 89, 105, 265n10; decision making in, 222; democratic character of, 3, 221–22; election of members to, 89, 91, 105, 106, 108; establishment of, 67; institutional development of, 105; institutional framework for, 80; institutional identity of, 105; nominations role of, 124; and reform, 113, 114; status of, 63; supranational legitimacy of, 108 European Parliament president, 230n7 European System of Central Banks, 110 European System of Central Banks (ESCB), 66, 120 European Union: and democracy, 3–4, 220–25; dynamism of, 217–18; enigma of, 1–9, 11, 163–76, 207, 216–25; entrance requirements for, 120, 218; establishment of, 2, 5, 7, 49–50, 58, 78–80, 169–70, 242n44; fragility and resilience of, 77, 127; impact of, on daily lives, 2; legal personality of, 140–41; legal practice in (see Community law); legitimacy of, 3–4, 10–11, 19, 53, 82–83, 220–25; national vs. democratic interests in, 125; norms of, 3; pluralistic character of, 10, 217; political nature of, 1–3, 18, 216–19, 232n2; reform processes in, 5–7; structure of, 10; sui generis characterization of, 1, 4, 13, 18–19; terminology related to, 229n1; theory of constitutional synthesis and, 210–16; transfer of powers to, 80–81. See also Community law; institutional structure; legal order


European Union constitution: assessment of, 27–28; Canadian constitution compared to, 177– 78, 182, 191–93, 203–5, 215; conceptions of, 20–26, 219–20; constitutional dynamics of, 34–35; controversies over, 3; democracy and, 37–38; European Court of Justice and, 22, 23, 36; future of, 7; initiative for (2000), 5–6; judicial constitutionalization, 93–97; lack of formal, 22, 219; lack of normative, 26, 219; Laeken Constitutional Treaty and, 5; legislative constitutionalization, 92–93; Lisbon Treaty and, 5; material, 22, 219; narrative of, 36; national constitutions in relation to, 83, 171, 175–76, 222–24, 279n12, 280n17 (see also primacy of EU over national law); overview of, 210–16; political context for, 85–86; simple constitutionalization and, 92–97; transformative constitutionalization and, 86–92; treaties in relation to, 19–20, 22, 23, 35, 36. See also Constitutional Treaty (Treaty Establishing a Constitution for Europe); constitutions; primacy of EU over national law European Union Treaty (1993), 43, 141, 233n17, 239n14. See also Treaty on the Functioning of the European Union European University Institute, Florence, 73 Europol, 119 Eurosclerosis, 149 Euro-skepticism, 3–4 evolutionary constitutionalism, 18; character of, 40–41; constitutional synthesis vs., 45–46, 64–65 experimentation: with comitology, 68, 90, 101, 104; with institutional structures, 66, 68–69; with integration, 169–70

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Index Factortame case, 117 Federal-Provincial Conference of Prime Ministers and Premiers (Canada), 185, 285n46 federal-provincial diplomacy, 185 field, European Union as: characteristics of, 46–47, 50, 217; comitology and, 104; as constitutional field, 125, 242n44; dealing with differences in, 92; establishment of EU and, 46–47, 231n19; factors shaping, 64; sociological concept of field and, 238n3; tensions in, 125; theory of constitutional synthesis and, 15 Finland, collective action rights in, 8, 164–65, 173, 217 First Ministers’ Conference (Canada), 186, 192, 285n46 Fischer, Joschka, 5, 130 Foreign and Security Policy pillar, 119 foreign ministers, 138 formal conception of constitution, 20–22 former communist countries, 120 Founding Act (1867), 184 framework laws, 141 France: civil law of, imported to Quebec, 283n28; constitutional moment of, 35; constitutional referendum held by, 6, 36–37, 144, 146–47, 156, 160; ECJ and, 105; limitations on sovereignty of, 246n7; rejection of Draft Treaty by, 169 freedom of establishment, 8 free movement of workers, 252n51 Friedrich, Carl, 56 fundamental rights: Canadian constitution and, 196–97, 203–5, 215; Community law and, 88, 93–95; democracy and, 25; ECJ and, 233n18; founding treaties and, 233n18; protection of, 96, 233n18; supranational, 116–17. See also Charter of Fundamental Rights of the European Union fusion theory, 70


297

gays, 202 gender of Laeken Convention members, 267n33 General Affairs Council, 102 genesis riddle, 9, 165–66, 168–71 German Constitutional Court, 8, 38, 62, 118, 156, 162, 166, 167, 232n7, 239n14 Germany: constitutional referendum held by, 37–38; constitutional tradition of, 37–38, 223; economic policy of, 107; European Commission and, 106; limitations on sovereignty of, 246n7; parliament of, 105, 106; and reform, 226; reunification of, 110 Giscard d’Estaing, Valery, 132–33, 135– 36, 149, 256n96, 266n22, 269n50, 269n58 governance: as alternative constitutional theory, 110, 126, 127; Lisbon Treaty and, 157; and monetary union, 121; and pluralism, 120, 122 Greece, accession of, 120 Growth and Stability Pact, 121 Habeas Corpus Act, 21 Hallstein, Walter, 103, 249n22 Herzog, Roman, 8 High Authority: as adaptation of national institutions, 100; competences of, 81, 87; nature of, 103 High Representative of the Union for Foreign Affairs and Security Policy, 3, 4, 123 institutional consolidation, 52–53 institutional development: in constitutional season, 118–24; theory of constitutional synthesis and, 65–69 institutional structure: constitutional synthesis and, 52–53; democratic character of, 98–99; development of, 65–69, 100–107; formation of,

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298

Index

81–82; general traits of, 98–100; gradual establishment of, 5, 10, 46; Laeken Convention on, 140–41; legal order in relation to, 46; Lisbon Treaty and, 5–6; modeled on international diplomacy, 2; pluralistic character of, 10, 46, 52–53, 66, 98–100, 119–22; Rome Treaty and, 98 institutional triangle, 122–24 integration: Commission and, 103; consequences of, 63; through constitutional law, 88; constitutional season and, 109–26; constitutional synthesis and, 47–51, 126–27; decolonization and, 249n26; destabilization of, 107–9; economic, 88; experimental framework for, 169–70; interdependence and, 55– 56; mandates for, 10, 49, 56, 58, 79; obstacles to, 64; promise of, 78–79; proposals for, 79–80; resistance to, 63; sectoral, 66; synthetic constitutional moment and, 78–84; theories of, 69–75 (see also theory of constitutional synthesis); world wars’ effect on desire for, 78–79 intergovernmental agencies, 119 Intergovernmental Conferences (IGCs): Canadian First Ministers’ Conference compared to, 186, 192; in constitutional season, 112–13; Laeken, 6, 138, 142–44, 226; Laeken Convention vs., 133–34; Lisbon, 151–52 international capitalists, 247n10 Internationale case, 96, 233n18, 238n2 interstate relationships, 48, 54–57; awareness/recognition of interdependence in, 55–56; and constitutional affinity, 56–57; interdependence in, 55 Iraq invasion, 159 Ireland: and Charter of Fundamental Rights, 140; ECJ and, 105; and justice and home affairs provisions, 154–55; Lisbon Treaty rejected by, 6, 156


Italian Constitutional Court, 94, 171 Italy: constitutional tradition of, 35; limitations on sovereignty of, 246n7; parliament of, 114 Jefferson, Thomas, 236n56 Joerges, Christian, 74–75 Judicial Committee of the Privy Council (JCPC) [United Kingdom], 186–87, 192 judicial review: in European context, 23; revolutionary constitutionalism and, 39 Justice and Home Affairs pillar, 119, 154–55 Kelsen, Hans, 21, 231n27 Khadi case, 117 Kissinger, Henry, 4, 102, 230n11 Klaus, Václav, 156 Laeken Convention, 19, 132–42; changes proposed in, 139–41; composition of, 133, 265n15, 266n17, 267n28, 267n33, 269n60; conduct of, 134–37; constitutional draft of, 138–42; constitutional mandate of, 132–34; constraints on, 137–38; deliberating phase of, 135–36; drafting phase of, 135; European Council and, 137–38, 142, 269n50; listening phase of, 135; praesidium of, 132–33, 135–36, 149; and socioeconomic policy, 142 Laeken Declaration, 131–33, 212, 265n12 Laeken reform process, 130–48; failure of, 72–73; Intergovernmental Conference and, 142–44; interpretations of, 279n5; and Laeken Convention, 19, 132–42; legitimacy of, 37; lessons of, 161–62; and ratification, 144–47; reaction to failure of, 148–49; summary of, 147–48. See also Constitutional Treaty (Treaty

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Index Establishing a Constitution for Europe); reform processes Lassalle, Ferdinand, What Is a Constitution?, 23 Laval case, 62, 74, 117, 176 law. See Community law law and context approach, 73 laws, Laeken Convention on, 141 League of Nations, 10, 104, 217 legal order: autonomy of, 23; constitutionalization of, 31–32, 38; constitutional law of, 239n9; constitutional nature of, 90; establishment of, 49; institutional structure in relation to, 46; national law in relation to, 9, 11; sui generis theories of, 18. See also Community law; constitutional conflicts legitimacy: of Community law, 26; constitutional synthesis and, 49, 171; constitutions as guarantee of, 82–83; crisis of, 53; of European Union, 3–4, 10–11, 19, 53, 82–83, 220–25; of evolutionary constitutionalism, 40–42; of Laeken reform process, 37; of revolutionary constitutionalism, 39, 42 lesbians, 202 liberal intergovernmentalism, 72–73, 244n68 Lisbon Treaty (2007), 150–58, 213; assessment of, 156–58; componenda of, 153–55; constitutional synthesis and, 159–60; Constitutional Treaty compared to, 28, 150, 158–62; and democracy, 156–57, 203; doubletalk concerning, 157–58; and formal constitution, 43; Intergovernmental Conference and, 151–52; lessons of, 161–62; multilevel constitutionalism theory and, 72; non-constitutional character of, 6–7, 150, 152–53; origins of, 6; peculiar features of, 152–55; preliminaries to, 149; ratification of, 155–56; significance of, 5; signing of, 152; strategy of, 150. See also reform processes


299

living constitutions, 29, 40 Locke, John, 188 Loewenstein, Karl, 235n44 Lütticke case, 94 Luxembourg, limitations on sovereignty of, 246n7 Maastricht Treaty (1992), 4, 5, 72, 110, 111, 112, 114, 116, 119, 120, 123, 125, 130, 140, 146, 225 MacDonald, John A., 284n35 Macklem, Patrick, 284n42 Magna Carta, 21 Mangold case, 8, 280n14 Manitoba, Canada, 195, 199 Mansholt, Sicco, 252n47 Marshall Plan, 247n11 Marx, Karl, The Jewish Question, 23 material constitutions, 22–23, 235n47 May 1968 unrest, 254n66 Meech Lake Accord, 198–200, 203, 216 Merger Treaty, 80, 81 Merkel, Angela, 150 minorities, at Laeken Convention, 267n33 monetary union, 120–21, 226 Monnet, Jean, 103, 129, 254n80 Moravcsik, Andrew, 72–73, 244n68 Morgenthau, Hans, 240n23 Mulroney, Brian, 198–99, 201 multilevel constitutionalism theory, 70–72 Mussolini, Benito, 289n1 national administrations, 106 national compact theory, 284n34 national constitutional courts, 164, 167 national constitutional identity, 239n14 national constitutions: and constitutional synthesis, 47–50; double role of, 50; EU constitution in relation to, 83, 171, 175–76, 222–24, 279n12, 280n17 (see also primacy of EU over national law); EU legal order vs., 116–18; and genesis riddle, 168–71; insularity

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300

Index

of, 47–48; legitimacy of, 83; and primacy riddle, 171–75; seconding of, 46, 48, 238n2; sovereignty of, 48. See also primacy of EU over national law national parliaments: and EU reform, 113; Europeanization of, 106; meetings of, 262n163; role of, 122 National Socialism, 248n18 natural law, 21 negative affirmation of constitutional impetus, 148, 159–61, 203 negative revolutionary zeal, 48, 78 neoliberalism, 64 Netherlands: constitutional referendum held by, 6, 144, 146–47, 156, 160; limitations on sovereignty of, 246n7 Newfoundland, Canada, 195, 199 New Public Management, 66, 122 Nice Treaty (2001), 5, 111, 114, 125, 130, 155, 212 Nixon, Richard, 64, 102 nondiscrimination, 73, 82 normative conception of constitution, 17, 24–28, 97 normative synthesis, 52 octroyé constitutionalism, 157, 158, 159, 181, 182, 191 OEEC. See Organisation for European Economic Cooperation oil crises, 107, 108, 223 Omega case, 117 open method of coordination, 121–22, 127, 262n169 Organisation for European Economic Cooperation (OEEC), 217, 247n11 Own Resources decision, 89, 91 Paris Treaty (1951), 35, 49, 80, 86–87, 101, 217 Parliament Act (1911), 21 parliaments. See European Parliament; national parliaments Parti Quebecois, 191, 195 Peace, Order and Good Government clause, 187


peer review, 121 Permanent International Court, League of Nations, 104 permissive consensus, 225 Pernice, Ingolf, 70–73 pillar structure, 141 Pilotti, Massimo, 105, 255n80, 289n1 pluralism: Canadian constitution and, 183–84, 188–90, 197; constitutional synthesis and, 50–51; double, 52, 54, 217; enlargement and, 119–20; of European Union, 10, 217; governance and, 120, 122; institutional, 10, 46, 52–53, 66, 98–100, 119–22; monetary union and, 120–21; in structure of EU, 10; treaties and, 119 Poland, and Charter of Fundamental Rights, 154 Polanyi, Karl, 247n10 Political Community Treaty (1954), 129 politicization, 225 politics, disempowerment of, 224–26 Pompidou, Georges, 256n96 Portugal, accession of, 120 positive law, 21 powers, transfer of, 80–81 Prague Spring, 254n66 pre-accession period, 120 preemption. See primacy of EU over national law presidency of the Council, 230n7 presidents of EU, 230n7 primacy of EU over national law, 88–89, 94–95, 97, 116–18, 139, 153, 164 primacy riddle, 9, 166–67, 171–75 private property, 117, 140 procedural rights, 96 provincial compact theory, 184, 284n38 provincial rights movement, 284n38 public opinion: and Canadian Charter of Rights and Freedoms, 203, 289n125; and Canadian constitution, 199–201, 204; on

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Index European constitution, 160; Laeken Convention and, 133; and ratification of Constitutional Treaty, 144–45; and reform, 113–14 Quebec, 287n79 Quebec, Canada, 183–84, 187–88, 191, 193–205, 283n28 Quebec Act (1774), 183 Quiet Revolution (Quebec, 1960– 1966), 190, 286n62 racial compact theory, 284n34 Raffarin, Jean-Pierre, 146 ratification: of Constitutional Treaty, 144–47; of constitutions, 31; of Lisbon, 155–56; national character of, 112, 144–47; and reform, 113–14 Rawls, John, 235n39 red lines, 6, 140 référé legislatif, 39 reflection period, 148–50 Reform Act (1832), 21 reform processes, 5–7; characteristics of, 111; in constitutional season, 110; failures of, 125; future of, 226; Intergovernmental Conference and, 112–13; major proposals in, 111; Nice, 130; phases of, 112–13; tensions in agenda for, 129–30. See also Laeken reform process; Lisbon Treaty (2007) regulations: changed to laws, 141; interpreted as statutes, 90 regulatory decision making, 68 remedies, legal, 117 replication, of institutional structures, 65–67 revolutionary constitutionalism, 18; character of, 39–40; constitutional synthesis vs., 45–46, 64; negative, 56 rights. See fundamental rights; workers’ rights Rittberger, Berthold, 242n46 Robinson, Ian, 195


301

Rome Treaties (1957), 35, 49, 80, 81, 87, 91, 98, 101, 104, 119 Romney, Paul, 189 Ross, George, 149 Rousseau, Jean-Jacques, 23; The Social Contract, 22 Royal Proclamation (1763), 184 Rueff, Jacques, 88 Ruffert case, 117 Russell, Peter, 188–89, 201 Saar Treaty, 91 Santer crisis, 123 Sarkozy, Nicolas, 149–50 Scharpf, Fritz, 8 Schattschneider, E. E., 100 Schmidberger case, 117 Schmidt, Helmut, 256n96 Schuman, Robert, 13 Scott, F. R., 282n19 Second British North America Act (1949), 180, 282n19 seconding of national constitutions, 46, 48, 238n2 sectoral integration, 66 signalling, in constitution making, 30, 112–13 Simeon, Richard, 195 Simmenthal case, 95 Simon report, 112 simple constitutionalization: in constitutional season, 116–18; constitutional synthesis and, 60–61; overview of, 33–34; revolutionary constitutionalism and, 40 Single European Act (1986), 5, 109, 111, 112, 114, 115, 116, 125, 223 Sixth VAT Directive, 90 social Europe, 135, 224 socioeconomic policy, 142, 224 socioeconomic rights, 140 Solange II case, 118 Soviet Union, collapse of, 110 Spain: accession of, 120; constitutional referendum held by, 146, 272n95 Spinelli, Altiero, 77, 114, 207

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302

Index

Spinelli Draft Treaty (1984), 5, 110, 111, 112, 125, 130, 265n10 Stalin, Joseph, 85 Statute of Westminster (1931), 185, 282n19 statutes, regulations and directives interpreted as, 90 Stauder case, 233n18 strike, right to. See workers’ rights strong publics, 235n42 stymied synthesis, 64, 120, 158, 190. See also constitutional season successes and failures of, 107–9 sui generis theories, 1, 4, 13, 18–19, 232n3 summitry, 255n94, 256n96 supranational institutional structure. See institutional structure Sweden, 236n53 synthetic constitutionalism, 60–62 synthetic constitutional moments, 58–59, 78–84, 241n31 tax harmonization, 90 tax powers, 91 Thatcher, Margaret, 209 theory of conflicts, 74–75 theory of constitutional synthesis, 45–76; applicability of, 14, 210–16; Canada as case study in, 177–205; and constitutional dynamics, 57–65; and constitutional enigmas, 163–76; constitutional synthesis defined, 45; and endogenous vulnerability, 62–63; European context for, 14; European Union as case study in, 210–16; on external shocks, 11; and genesis riddle, 168–71; insights behind, 45–47, 208–9; and institutional development, 65–69; on internal tensions, 11; interpretive nature of, 12–13; intuitions underlying, 9–10; and legitimacy, 49, 171; on limitations of synthesis, 11; and Lisbon Treaty, 159–60; other theories of integration compared to, 69–75; overview of, 9–12;


pluralistic character of, 50–53; and preconditions, 53–57; and primacy riddle, 171–75; and regulatory ideal, 47–51; status of, 12–14; and stymied synthesis, 64; and subprocesses of synthesis, 52–53; value of, 208–10, 225; and vulnerability, 62–65 time: evolutionary constitutionalism and, 41; revolutionary constitutionalism and, 40 Titanium Dioxide case, 115 Tobacco Advertising case, 115 trade, 81 transfer of powers, 80–81 transformative constitutionalization: in Canada, 183; in constitutional season, 114–16; constitutional synthesis and, 60; in European Union, 86–92; evolutionary constitutionalism and, 40–41; forces of, 86–89; institutional development and, 102; legal implications of, 90– 92; overview of, 31–33 treaties: amendments to, 89, 91; constitutional interpretation of, 90; constitution in relation to, 19–20, 22, 23, 35, 36, 82; establishment of EU through, 2, 5, 7, 50, 58, 80, 84, 169–70; implementation of, 87; legal effects of, 94; ratification of, 86–87 Treaty on the Functioning of the European Union (1958), 233n17 triple majority system, 155 Trudeau, Pierre, 187, 194, 198 U.K. Human Rights Act, 21, 32 Union Act (1840), 180 United Kingdom: and Canadian constitution, 179–91, 195– 96, 283n27; and Charter of Fundamental Rights, 140, 154; constitutional practices of, 21; constitutional referendum held by, 272n95; constitutional tradition of, 35–36, 37, 223; ECJ and, 105; and justice and home affairs provisions,

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Index 154–55; and monetary union, 121; parliament of, 106; transformative constitutionalization in, 32 United States: Civil War in, 183, 188; and EU constitutionalization, 85–86, 247n11; and EU integration, 107–8 United States Constitution, 181 unwritten principles of Community law, 19, 60, 95, 279n12 Vajnai case, 117 Van Gend en Loos case, 36, 93–94, 164 Viking case, 8, 62, 74, 117, 164–65, 173, 176, 217, 224 Von Weizsäcker report, 112


303

Weiler, Joseph, 73–74 Weimar Constitution, 48, 233n10, 238n7 Wells, Clyde, 199 Wessels, Wolfgang, 70 Westendorp report, 112 Western European Union, 217 Wollstonecraft, Mary, 45 women, at Laeken Convention, 267n33 women’s groups, 199, 202 workers, free movement of, 252n51 workers’ rights, 8, 164–65, 173, 217 World War II, 59, 78 world wars, 55, 78–79

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