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Ten Reflections on the Constitutional Treaty for Europe

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Ten Reflections on the Constitutional Treaty for Europe Bruno de Witte edited by Ten Reflections on the Constitutional Treaty for Europe Edited by Bruno de Witte EUROPEAN UNIVERSITY INSTITUTE en Reeflections on the Constitutional Treaty for Europe en Reeflections on the Constitutional Treaty T Robert Schuman Centre for Advanced Studies and Academy of European Law E-book published in April 2003 by the Robert Schuman Centre for Advanced Studies, European University Institute, San Domenico di Fiesole, Italy. All rights reserved. © 2003 Robert Schuman Centre for Advanced Studies, Academy of European Law and authors individually. Except single printing for personal use, no part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, or linked from any website, without permission from the publisher. Permissions for quotations should be addressed directly to the author(s). Source should be acknowledged. Contents Yves Mény, Helen Wallace and Bruno de Witte Introduction...........................................................................................................1 Armin von Bogdandy The Preamble ........................................................................................................3 Gráinne de Búrca Fundamental Rights and Citizenship.................................................................11 Stephen Weatherill Competence.........................................................................................................45 Jacques Ziller et Jaroslav Lotarski Institutions et organes judiciaires......................................................................67 Helen Wallace Designing Institutions for an Enlarging European Union...............................85 Koen Lenaerts and Marlies Desomer Simplification of the Union’s Instruments.......................................................107 Stefan Griller External Relations.............................................................................................133 Neil Walker Freedom, Security and Justice.........................................................................159 Jo Shaw Flexibility in a ‘Reorganised’ and ‘Simplified’ Treaty ..................................183 Bruno de Witte Entry into Force and Revision .........................................................................203 List of Authors ........................................................................................ 221 Preface The Robert Schuman Centre for Advanced Studies, part of the European University Institute in Florence, has a long-standing interest in the question of the reorganisation and reconfiguration of the European Treaties. Since 1996, the Schuman Centre has undertaken four projects relating to the architecture and evolution of the European Treaties.1 The most widely known of these earlier projects is a study, undertaken in 2000 on request of the European Commission, entitled A Basic Treaty for the European Union. This study deals with the feasibility of a reorganisation of the Treaties into two parts, by which the basic (or ‘constitutional’) Treaty provisions would be separated or distinguished from the rest. This idea, and indeed its experimental implementation in the EUI report, have played a role in framing the current EU constitutional reform process, as it developed since the Nice summit of December 2000. The present study is a further contribution by the EUI to the debate, within the radically changed political context of today, in which the constitutionalisation of the European treaties is no longer a hypothetical scenario for the future, but a living reality in the work of the Convention on the Future of the European Union. The study was undertaken by the Schuman Centre in cooperation with the Academy of European law at the EUI. A number of, mainly legal, experts both from within and from outside the EUI met on several occasions in order to reflect together on ten selected constitutional reform themes. These themes correspond to important 1 These earlier studies can be accessed on the website of the Robert Schuman Centre: http://www.iue.it/RSCAS/Research/Institutions/EuropeanTreaties.shtml building blocks of the constitutional treaty that is being elaborated within the framework of the Convention. The aim of the present document is not to provide a complete commentary on the latest draft being discussed within the Convention, nor that of drafting a full-fledged Constitution of Europe, but to draw the attention of the Convention members and of other participants in the European constitutional debate on some of the legal and political constraints and implications that should be heeded by those drafting the European Constitution. The ‘Ten Reflections’ take the form of short essays on each of the themes, authored by individual members of the group, who propose and expose their own views on the matter after having discussed them within the group. Most authors have made specific recommendations that are not couched in formal legal language; these recommendations are highlighted throughout the text in bold. Some of the authors have, in addition, made specific drafting proposals for articles of a constitutional treaty; these are highlighted in bold italics. We are confident that this study, which will soon be made available also in printed form, will form a useful contribution to the debate on the future constitution of Europe. Florence, 23 March 2003 Yves Mény, President of the EUI Helen Wallace, Director of the Robert Schuman Centre for Advanced Studies at the EUI Bruno de Witte, Professor of European Law, Co-director of the Academy of European Law at the EUI 2 © 2003 EUI-RSCAS/AEL The Preamble Armin von Bogdandy A constitutional text serves many objectives. Its immediate tasks are to set up, organize and direct public power in order to attain certain ends while respecting certain fundamental principles: all this can easily be deduced from the text itself. But there is also a “between the lines” and a “beyond the words”: it is widely assumed that a constitutional text fulfils further functions. Among those, the “manifesto” function appears to be of particular importance for the preamble and the introductory provisions, because more than most other parts they give an account of the basic features of a political organization in a way accessible to most citizens. In the tradition of legal thought and political philosophy, this function can be given further readings. For example, it is assumed by many that a polity declares through those parts its basic understanding of public power and perhaps even its self- understanding. For those who understand a constitution as an instrument of identity formation for the citizenry, these parts are of utmost importance. In particular any direct influence of a constitutional text on the self-understanding of a citizenry1 will largely depend on these parts, as the quantity of text that can be expected to be read and understood by the public is rather limited. Last but not least, the following proposals are as close as possible to the current Treaties, respecting thereby the European constitutional acquis, the intention of Declaration No. 23 to the Nice Treaty and the mandate granted by the European Council at Laeken. 1 In my understanding, indirect effects of a constitutional text for identity-formation are far more important. To the extent that a constitutional text contributes to the convincing operation of a political organization, it indirectly furthers the identification processes. EUI-RSCAS/AEL © 2003 ARMIN VON BOGDANDY 3 ARMIN VON BOGDANDY Preambles—as far as they can be found in constitutional texts2—are the parts most clearly expressing fundamental convictions, experiences or aspirations. It appears safe to say that there isn’t any constitutional homogeneity among the constitutions of Member States when it comes to preambles; there is not even a broad European understanding of what should be part of a constitutional preamble. The current preambles of the national constitutions rather display the European diversity. They are, however, usually quite short, the longest being the Portuguese with six sentences. Preambles of international treaties, by contrast, are usually rather long. The overwhelming understanding of the European Union as something “in between” international organizations and states or a “tertium” to these two forms of political organization could find expression in an intermediate solution with respect to the length. 1 – At the beginning of the new preamble, one has to decide who speaks: the heads of state, the national parliaments alone or together with the European Parliament, the European people or the European peoples in (or of) the countries of Austria, Belgium, Denmark, Germany, Greece, Spain, Finland, France, Ireland, Italy, Luxembourg, Netherlands, Portugal, Sweden and the United Kingdom of Great Britain and Northern Ireland (as well as the other countries that will have joined by the time the Constitutional Treaty is adopted). If the new Treaty is to resemble a constitution, it appears inappropriate to refer in its preamble to the heads of state. In democratic societies the enactment and amendment of a constitutional text is largely understood as an act of auto-determination or at least as an act of an institution of parliamentary character. Placing the heads of state at the outset would give the preamble a rather paternalistic tone and could recall constitutional settlements of the 19th century (see, e.g. Preamble of the Statute for the
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