A Study of the Making of a Constitutional Architecture for Europe

THE POLICY-MAKING PROCESS OF AN EMERGING POLITY: A STUDY OF THE MAKING OF A CONSTITUTIONAL ARCHITECTURE FOR EUROPE University of Malta Library – Electronic Thesis & Dissertations (ETD) Repository The copyright of this thesis/dissertation belongs to the author. The author’s rights in respect of this work are as defined by the Copyright Act (Chapter 415) of the Laws of Malta or as modified by any successive legislation. Users may access this full-text thesis/dissertation and can make use of the information contained in accordance with the Copyright Act provided that the author must be properly acknowledged. Further distribution or reproduction in any format is prohibited without the prior permission of the copyright holder. THE POLICY-MAKING PROCESS OF AN EMERGING POLITY: A STUDY OF THE MAKING OF A CONSTITUTIONAL ARCHITECTURE FOR EUROPE CHRISTOPHER POLLACCO A THESIS PRESENTED TO THE FACULTY OF ECONOMICS, MANAGEMENT AND ACCOUNTANCY UNIVERSITY OF MALTA FOR THE DEGREE OF DOCTOR OF PHILOSOPHY OCTOBER 2016 ii iii ACKNOWLEDGEMENTS I would like to thank Professor Edward Warrington for his impeccable guidance during our review meetings, and moral support whenever I expressed doubts about whether I would actually finish writing this thesis. It was a privilege to have him as my supervisor. I must also thank my other supervisor Professor Godfrey Pirotta for his comments and suggestions, which gave me food for thought regarding the completion of this study. Another thanks goes to the University of Malta Junior College administration, which made it possible for me to balance my research programme with lecturing duties. Finally, I would like to thank my wife for her moral support and practical help, especially in the formatting and proofreading of this thesis. iv DEDICATION I would like to dedicate this thesis to my mother who would have liked to see its completion. v ABSTRACT The European Union’s constitution-making process has been characterized by a piecemeal approach to integration, which has given rise to a treaties-, rather than a constitution-based compound polity. In 1989–91, the end of the Cold War and subsequent dissolution of the Soviet Union prompted the EC leaders to expand the Community’s remit into policy areas beyond economic and monetary union. Eventually, the post- Maastricht era was characterized by an unprecedented string of EC/EU accession applications from across the continent; hence the maturation of what seemed to be a quasi-constitutional moment for Europe, during which European leaders seemed willing to tie the Union’s constitutional ‘loose ends’ that had accumulated over the previous fifty years of piecemeal constitution-making and disjointed incrementalism, into one simplified constitutional treaty text, possibly modelled along federal lines. This study posits that the Union’s confederative process has experienced a slowdown, especially after the rejection of the Constitutional Treaty by the French and Dutch electorates in 2005, due to the resurgence of a sovereignist rationale among Europeans and certain Eurosceptic national governments, which seems to have dampened the integrationists’ vision of a Union run on a federalist basis. Furthermore, it is argued that the practice of adding extra-Treaty accords piecemeal to the basic Treaties continues to characterize the Union’s constitution-making process. Finally, this study illustrates that the various treaty mechanisms and safeguard clauses crafted by the Masters of the Treaties continue to be vital ‘holding together’ arrangements because they provide enough flexibility for the Union’s edifice to persist. vi CONTENTS Abstract vi Contents vii List of Tables xiii Abbreviations and Acronyms xiv Chapter 1: The policy-making process of an emerging polity: a study of 1 the making of a constitutional architecture for Europe 1.1 Introduction 1 1.2 The research objective 3 1.3 The Union’s ‘quasi-constitutional moment’ 5 1.4 European integration theory in context 8 1.5 Research design and methodology 14 1.6 Structure of the study 23 Chapter 2: The making of federal polities 29 2.1 Introduction 29 2.2 Why federate? 30 2.3 The United States of America 34 2.3.1 Origins of the US Constitution 34 2.3.2 The making of the American demos 37 2.3.3 The ‘melting pot’ strategy 38 2.4 Canada 40 2.4.1 The dual nature of the Canadian polity 40 2.4.2 The pre-federal era (17631867) 41 vii 2.4.3 The federalist rationale and the British North America Act (1867) 42 2.4.4 The Statute of Westminster and the patriation of the Constitution 46 2.5 The Swiss Confederation 48 2.5.1 Constituent elements of the Swiss nation 48 2.5.2 Evolution of the Swiss federal process 50 2.6 Germany 53 2.6.1 Origins of the German nation 53 2.6.2 Prussian leadership of the German Volk 55 2.6.3 The making of the Federal Republic of Germany 58 2.7 Conclusion 59 Chapter 3: Federal constitution-making: six propositions that emerge 65 from the confederative processes of the four comparators 3.1 Introduction 65 3.2 Transferring of security and defence matters from the constituent-state-, to the federal level 67 3.3 Purposive acts of human agency 69 3.4 Economic factors and technological developments 71 3.5 The question of legitimacy 73 3.6 Recognition of sub-national units’ competences within the federal framework 76 3.7 Institutional provisions that secure stability and longevity of federal polities 81 3.8 EC/EU constitution-making: an overview 83 Chapter 4: In search of a common security and defence policy 91 4.1 Introduction 91 4.2 The initial trigger 93 viii 4.3 Pan-European triggers in the Gorbachev era 96 4.4 Thematic study: European defence a question of flexibility 100 4.4.1 The opening gambits 100 4.4.2 First proposals for a not-so-common CSDP 103 4.4.3 The Praesidium proposes, and the Convention disposes 108 4.4.4 CSDP in the wider transatlantic context 115 4.4.5 The 2003 IGC 118 4.5 Conclusion 124 Chapter 5: Supranationalist and sovereignist tensions in the Union’s 127 constitution-making 5.1 Introduction 127 5.2 ‘Ever closer union’ 128 5.3 The Commission’s changing configuration in a widening EU 130 5.4 Thematic study: institutional reform and popular input: the European Commission in the post-Nice era 139 5.4.1 The opening gambits 139 5.4.2 A contentious die is cast 139 5.4.3 Enter (and exit) the Commission 147 5.4.4 The people(s) speak 148 5.4.5 The tail wagging the dog? 150 5.5 Conclusion 154 Chapter 6: Enlargement of the EU and the political economy of 157 Confederation 6.1 Introduction 157 6.2 EMU: the opening gambits 158 6.3 Post-Bretton Woods concerns and the relance of EMU 162 6.4 On the road to Maastricht 167 ix 6.5 The structural weaknesses of EMU 169 6.6 Thematic study: post-Nice sovereignist resistance to the completion of EMU 171 6.6.1 The Union’s economic governance under examination 171 6.6.2 The Praesidium proposes, and the Convention disposes 176 6.6.3 The 2003 IGC 183 6.6.4 The structural weaknesses of EMU confirmed 184 6.6.5 Enter the European Council: the ESM and fiscal compact Treaties 186 6.6.6 A triple ratification process 189 6.7 Conclusion 192 Chapter 7: An evolving institutional framework and a dubious 196 constitutional legitimacy 7.1 Introduction 196 7.2 The nature of the legitimacy crisis 198 7.3 Top-down governance and constitutional (il)legitimacy 202 7.4 Political elitism, neoliberalism, and the ‘democratic deficit’ 203 7.5 The EU demos‘European identity’ dilemma 206 7.6 Thematic study: The Union’s legitimacy, and the European citizens’ initiative 209 7.6.1 The opening gambits 209 7.6.2 A side entry for the European citizens’ initiative 213 7.6.3 A constitutional ‘Sleeping Beauty’ 216 7.7 Conclusion 221 Chapter 8: Constitutional settlements 225 8.1 Introduction 225 8.2 The nation-state rationale and Europeans’ difficulties with the ‘f-word’ 226 x 8.3 Post-Maastricht decision-making and the national interest 230 8.4 Thematic study: The crafting of the Protocol on the principles of subsidiarity and proportionality, and the Protocol on the role of the national parliaments in the EU 231 8.4.1 The opening gambits 231 8.4.2 The preparatory phase 234 8.4.3 The Praesidium proposes, and the Convention disposes 237 8.4.4 The Praesidium proposals revised 244 8.4.5 The structural weakness of the ‘early warning mechanism’ revealed 246 8.5 Conclusion 249 Chapter 9: Reconciling diversity and unity: in search of a common weal 252 9.1 Introduction 252 9.2 Post-national citizenship, constitutional patriotism, and the civic society 254 9.3 Institutional implications of Union citizenship: a post-Maastricht Perspective 258 9.4 Thematic study: Post-national citizenship, the symbols of EU identity, and the double-majority predicament explored 260 9.4.1 The opening gambits 260 9.4.2 The initial debate 261 9.4.3 The Praesidium proposes, and the Convention disposes 263 9.4.4 The 2003 IGC 271 9.4.5 The post-referenda amendments 276 9.4.6 The final hurdle 278 9.5 Conclusion 279 Chapter 10: Conclusion 281 10.1 Ambivalent Europeans 281 10.2 Strengths and shortcomings of primary sources used 284 xi 10.3 Sovereignist traits in the Union’s institutional framework 287 10.4 The politics of constitution-making, voluntary cooperation, à la carte integration, and disjointed incrementalism 289 10.5 The impact of national referenda on EU constitution-making 293 10.6 The democratic deficit 296 10.7 The seemingly impossible definition of a constitutional ‘horizon’ 298 10.8 The state of the Union: suggestions for further research 301 10.9 Closing remarks 302 Bibliography 304 xii LIST OF TABLES 3.1 Factors affecting

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