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Constitutional Reform in the European Union: Two steps forward, one step back?

Publié le 1 octobre, 2007 | Pas de commentaires

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The constitutional project for the European Union, shelved since the failed ratifications of 2005, is currently witnessing a revival. Under the guise of a new “Reform Treaty” most of the original Constitution’s content has been preserved, but is now being presented in an underhanded manner that expressly avoids public dialogue. This strategy on the part of the political elite raises concerns as to the viability of the European Union as a true political community.

A detail of BO130's painting on the 2nd floor
Garrison Gunter, A detail of BO130’s
paintingon the 2nd floor
, 2006
Certains droits réservés.

As the final act to Germany’s presidency of the European Council, Chancellor Angela Merkel placed constitutional reform at the top of the agenda for the June 2007 EU summit meeting. In so doing, she revived an issue that had lay abandoned since the double-blow of the French and Dutch “no” responses to the proposed European Constitution of 2004. What failed to re-ignite, however, is any form of meaningful public debate over the nature of this reform. Rather, the recent constitutional revival has given rise to an elite-driven process culminating in the mere re-packaging of much – though crucially not all – of the original Constitution’s substance as a routine exercise in treaty amendment. Not only does this work to further distance the EU from its citizens, but it also works against the formation of the organic pan-European political community necessary to legitimize the EU as a valid form of government.

Business as Usual

Much to the chagrin of committed euroskeptics, the sky did not fall following the negative results of the referenda on the Constitution in France and the Netherlands during the summer of 2005. Though it did precipitate a period of gloomy reflection, with many experts going so far as to label it a “crisis”, the failure of the constitutional project did not truly jeopardize the legal standing of the EU. That is because the interstate treaties upon which the Union was founded – Rome, Maastricht, Amsterdam and Nice – have long since been considered to legally form a “constitutional charter” (1). The constitutionality of the new document, which had been in development since 2002, was derived from its attempt to amalgamate and replace these Byzantine constituent treaties with one single, comprehensive text.

In so doing, it was widely hoped that the Constitution would allay public disinterest and disenchantment with European integration by bringing the EU closer to its citizens (2). Part I painted the common values and basic objectives of the Union – peace, freedom, democracy, equality – in broad strokes, and made direct reference to the official symbols of the EU encountered in everyday life: the euro, the flag of twelve gold stars set in a circle on a deep blue background, etc. Part II contained the Charter of Fundamental Rights. The remainder – and majority – of the document detailed the functioning of the Union, including the delineation of competencies between EU and member states and the introduction of several institutional reforms designed to help cope with the ever-expanding number of member states. Requiring unanimous ratification, the French and Dutch referenda placed the constitutional project on ice, its future uncertain.

Style vs. Substance

Merkel’s announcement of constitutional revival – a well-publicized priority of the six-month Germany presidency – was swiftly followed by the seemingly contradictory proposal that the constitutional concept be completely abandoned (3). Whatever did this mean? It gradually emerged at the June summit meeting of EU heads of state and government that the content of the draft Constitution would be re-packaged as a “Reform Treaty” that amended rather than replaced the EU’s founding treaties. Like its predecessor, the proposed Reform Treaty includes the creation of a more-permanent presidency and minister for foreign affairs, adjustments to voting procedures, a smaller European Commission and greater powers to the European Parliament; analysis suggests that 90% to 95% of the original content has been preserved. According to Spanish Prime Minister Jose Zapatero: “We have not let a single substantial point of the constitutional treaty go.(4)” Unlike the constitutional project, however, treaty amendments are not generally subject to the popular vote.

This daring public relations spin-game, in which old ideas are re-packaged in order to be re-sold to the same public, has not gone unnoticed. What is remarkable, however, is that open denunciations of this process are emanating not only from traditional sources – euroskeptic think-tanks, lobbyists and press – but from the very statesmen at the center of the constitutional project itself. Valéry Giscard d’Estaing, the former French president who oversaw the drafting of the 2004 Constitution, believes that “Public opinion will be led to adopt, without knowing it, the proposals that we dare not present to them directly […] Making cosmetic changes would make the text more easy to swallow.(5)

These cosmetic changes alluded to by Giscard d’Estaing account for the main differences between the two documents, but mostly work to heighten the overall ambiguity and complexity of the new text. Foremost among them is the removal of the full text of the Charter of Fundamental Rights, though the direct reference to it still contained within will work to ensure that the Charter remains legally binding to all parties. Similarly, all mention of the official symbols of the EU has been excised, though the symbols themselves will continue to exist, if not flourish. In the same vein, French President Nicolas Sarkozy is said to have worked tirelessly during the summit to convince his peers to drop a reference to free-market competition from the document’s opening paragraph. The presence of similar wording 13 times elsewhere in the text means the alteration will carry no substantive legal weight, but its absence from the preamble could be very valuable to politicians eager to pitch the Reform Treaty as less neoliberal than its predecessor (6).

Not only do the changes do little to satisfy the public’s concern with the overall content of the proposed reforms – of which the French and Dutch “no” votes were only the most visible manifestation – but this dangerous game of semantics through which the new document is being formulated and marketed demonstrates contempt for the electorate. A product of closed-doors negotiations and political posturing, the Reform Treaty risks to further augment the separation between Brussels and ordinary citizens by leaving the latter out of the political process of EU-level governance. According to former Italian Prime Minister Giuliano Amato, who was also involved in the drafting of the original constitution:

“They [EU leaders] decided that the document should be unreadable. If it is unreadable, it is not constitutional, that was the sort of perception … any Prime Minister – imagine the UK Prime Minister – can go to the Commons and say ‘look, you see, it’s absolutely unreadable, it’s the typical Brussels treaty, nothing new, no need for a referendum.’(7)

We, the Europeans?

Why is this cause for concern? After all, the Reform Treaty will still need to be ratified by each member state’s parliament if it is to be enacted – aren’t they qualified to speak in the name of the people? Moreover, doesn’t the majority of the business of government generally proceed unnoticed by the public-at-large? The legal complexity of this text and the contemptuous manner in which it is being presented to Europeans matter because a constitution should be, in the words of Franklin D. Roosevelt, “a layman’s document, not a lawyer’s contract.(8)

There are those, like Luxembourg Deputy Prime Minister Jean Asselborn, who believe that: “the main objective of the constitutional process […] is to create a more efficient and democratic framework for the European Union. It is the provisions of the document that matter, not its label or packaging.(9)” But the proponents of this reform-at-any-cost camp neglect that democratic government, at any level, is about the process as much as it is the product. The lack of interest shown by the governing elite to popular concerns in the creation of what is, in all but name, a constitution is all the more worrying for the EU in light of the relative novelty of this project in political integration.

Though the institutional elements of European integration have developed apace since the post-war era, much slower to emerge have been the social elements which define a true political space. Specifically, “the building of a political community means the creation of a sense of community or solidarity among the people of a given region. It is this sense of solidarity which gives legitimacy to the Community’s institutions” and upon which these institutions can draw in times of crisis (10). The EU, however, benefits from, at best, mass public indifference and, at worst, antipathy, evidenced by abysmal turnout rates in European parliamentary elections and the low priority generally accorded to European issues in national- and regional-level politics. It is this lack of a sense of political community and collective identity, of a demos which acts as the fount of legitimate sovereignty for any polity, which is hampering the EU’s attempts to act as a true form of government (for example, engaging in redistributive measures).

The irony of the current constitutional revival is that the project, had it been pursued with a different strategy, contained with it the capability to foster this sense of pan-European political community. Though Europe’s nation-states may present themselves in the popular imagination as immutable entities, the lessons to be learned from the past two centuries of European history centre around the emergence of political identities, which, far from being immutable, are the products of lengthy, purposeful processes. As Jürgen Habermas is at pains to point out, it is important to not forget the

“voluntary character of a nation state whose collective identity did not exist prior to the democratic process which, although not vital to such states, nevertheless gave birth to them … This process is part of an ongoing cycle in which national awareness and a democratic sense of citizenship have provided a mutually stabilizing basis.(11)

If the democratic process, therefore, can give rise to collective identities, then the manner in which the constitutional project has been revived actually works to worsen the democratic deficit of the EU. On the level of substance, the Reform Treaty purposefully leaves out all the physical symbols of the EU, which would work to create a common political culture. On the level of style, the Reform Treaty is being presented in a manner that hoodwinks the European public and denies them the opportunity to engage in a debate that cross-cuts national boundaries and purely national preoccupations.


The lack of public legitimacy of the European Union comes not from what it does for its citizens, but how it does it. If the project of European integration is to have any longevity and durability, some sort of reform is needed to shift allegiance and engagement from the elite- to the mass-level. In theory, returning to the Constitution is a way to achieve that. In practice, however, the strategy currently being pursued is highly counterproductive.


(1) Case 294/83, Les Verts – Parti Ecologiste v European Parliament [1986] ECR 1339, par.23, cited in Pavlos Eleftheriadis, “The Idea of a European Constitution,” Oxford Journal of Legal Studies 27(1), 2007: 2.
(2) Gráinne de Búrca, “The European Constitution Project after the
Referenda,” Constellations 13(2), 2006: 206.
(3) “EU to drop idea of constitution,” BBC Online, 20 June 2007 <http://news.bbc.co.uk/2/hi/europe/6222992.stm>
(4) Open Europe, The Revised EU Constitution: Rhetoric and Reality, July 2007 <http://www.openeurope.org.uk/research/rhetoric&reality.pdf>
(5) Open Europe, op.cit.
(6) “Scraps make for heavy EU soup,” BBC Online, 22 June 2007 <http://news.bbc.co.uk/2/hi/Europe/6230776.stm>
(7) Lisbeth Kirk, “Treaty made unreadable to avoid referendums, says Amato,” EUobserver, 16 July 2007 <http://euobserver.com/18/24481>
(8) Quoted in Hauke Brunkhorst, “The Legitimation Crisis of the European Union,” Constellations 13(2), 2006: 167.
(9) Jean Asselborn, “An Unwarranted Pessimism,” Harvard International Review 28(3), Fall 2006, p.22. [LUX deputyPM]
(10) David Michael Green, The Europeans. Political Identity in
an Emerging Polity, Boulder/London, Lynne Rienner Publishers, 2007: 10.
(11) Jürgen Habermas, “Toward a European Political Community,” Society July/August 2002: 59.

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