1 Continuous Controversies in the Debate on the European

Continuous Controversies in the Debate on the European Constitution Prof. Dr. Thomas Giegerich ∗ Introduction The European Convention’s draft Treaty Establishing a Constitution for Europe (hereinafter draft Constitution) is not the result of a revolution but that of a constitutional evolution of more than 50 years. While the draft represents a major step in this continuing evolutionary process it will certainly not constitute the end of it. To demonstrate this, I have taken on the task of demonstrating that a relatively straight line can be drawn from the European Coal and Steal Community (ECSC) of 1951, consisting of 6 member states, to the European Union (EU) and the European Community (EC) of 2004 with 25 plus x member states. During this process, five fundamental, partially overlapping issues have determined the European constitutional debate for more than 50 years that are still controversial. These fundamental controversies of the European constitutional debate include the issues of I. Whether the EU/EC Treaties represent international treaties or a constitution; II. the EU as an association of states or a union of nations; III. dynamism vs. consolidation; IV. autonomy vs. heteronomy of the EU/EC legal order; V. national vs. European constitutionalism. I. First Fundamental Controversy: Treaty or Constitution? 1. European Policy Background and Legal Consequences of the Controversy. The controversy on whether and to what extent the EU/EC Treaty represents an international treaty or a constitution is not solely academic, rather, it has a background in realpolitik. When dealing with the EU/EC, different legal consequences will often ensue depending on whether an international law approach or a constitutional approach is taken, e.g., with regard to the interpretation of the EU/EC Treaty: Does it follow the international legal rules of interpretation which primarily aim at determining the common intent of the contracting parties? Or do interpretation methods of constitutional law apply which perceive the text of the constitution as an objective set of rules with a life of its own beyond the subjective intentions of the contracting parties? May the European Court of Justice accordingly act as a constitutional court interpreting the fifty-year-old constitution of the EU/EC as a ”living instrument”1 and thereby adapting it to present-day circumstances so as to maintain its effectiveness? May it even engage in a progressive development of the EU/EC Treaty beyond the limits set by its text? 2. Use of the Term ”Constitution”. ∗ I am indebted to Nora Janssen for her linguistic assistance. A more extensive German version of this text will be published elsewhere. 1 The term is taken from the jurisprudence of the European Court of Human Rights on the European Convention on Human Rights (ECHR), another international treaty of a constitutional character (Tyrer v. U.K. [Ser. A, No. 26, § 31 (1978)]; Vo v. France [No. 53924/00, § 82 [2004]). 1 The European Treaties have to date avoided the use of the term ”constitution”. The European Coal and Steal Community was meant to be a supranational community in which elements of international law and constitutional law would be merged. But the ECSC Treaty avoided using the term ”constitution” to prevent this new entity from rashly being squeezed into categories of national public law2. It was the European Court of Justice which eventually introduced the term ”constitution” to the official language of the EC. Since 1986, the Court has in several instances termed the EC Treaty a ”constitutional charter”3. But it was not until the Convention titled its draft ”Treaty Establishing a Constitution for Europe” that the term truly caught on. The European Parliament had titled the Spinelli draft of 1984 ”Draft Treaty Establishing the European Union”, thereby avoiding the term ”constitution”4. It was not until ten years later that the Herman draft of the Parliament’s Committee on Institutional Affairs spoke of a ”Constitution of the European Union” and actually dropped the term ”treaty” entirely. In the end, however, the plenary did not have the courage to adopt this draft5. 3. Acceptance and Amendment Procedure in the Forms of International Law. The Convention procedure represented a turning point with regard to previous procedures. All the European treaties from the ECSC Treaty of 1951 to the Treaty of Nice of 2001 were concluded as international treaties between sovereign states. While the draft Constitution largely follows this tradition6, the procedure leading to its adoption raises serious doubts as regards the formalities of international law. Generally, the text of an international treaty is drafted by an intergovernmental conference7. In this instance, a Convention was entrusted with the task of formulating a proposal, a method which had proved successful when drafting the Charter of Fundamental Rights of the European Union. In this Convention the representatives of the European Parliament and of the national parliaments had a two-thirds majority over the representatives of the national governments. Also, the term ”Convention” has traditionally been reserved for a body which has the task of drafting a constitution. One has to admit, however, that the European Convention was not given the power to produce the final text of the European Constitution. Under Art. 48 of the EU Treaty (TEU), only an intergovernmental conference can adopt a final text which will then still be subject to the ratification of all the member states. In July of 2004, the Intergovernmental Conference ultimately adopted a revised version of the Convention’s draft, leaving its basic structure intact8. The Ad Hoc Assembly of 1952/53 served as a model for the Convention. The history of European integration provides this example of a body dominated by parliamentarians being asked to formulate a proposal for a challenging constitutional project and to forward it to the governments of the Member States. In 1952, in the very beginning of developments, shortly after the ECSC Treaty had entered into force, a so-called Ad Hoc Assembly was convened under the presidency of Paul-Henri Spaak. After only a couple of months, on 10 March1953, it presented a draft treaty establishing a federal European Political 2 Thomas Giegerich, Europäische Verfassung und deutsche Verfassung (2003), 306. But see the treaties establishing the United Nations Educational, Scientific and Cultural Organization and the World Health Organization which both use the term ”constitution”. 3 ECR 1986, 1339, para. 23 (C-294/83) – Les Verts; ECR 1991, I-6079, para. 21 (advisory opinion 1/91) – EEA I; cf. also ECR 1996, I-1763, para. 35 (advisory opinion 2/94) – accession to the ECHR. The German Federal Constitutional Court has on several occasions used similar terms (BVerfGE 22, 293 [296]; 51, 222 [246]). 4 OJ 1984 No. C 77/33. See Francesco Capotorti/Meinhard Hilf/Francis G. Jacobs/Jean-Paul Jacqué, The European Union Treaty (Oxford 1986). 5 OJ 1994 No. C 61/155. Siegbert Alber, Die Entwürfe des Europäischen Parlaments für eine europäische Verfassung (Vorträge, Reden und Berichte aus dem Europa-Institut der Universität des Saarlandes, Sektion Rechtswissenschaft, Nr. 248 [1994]), 44 et seq. 6 Art. IV-443. 7 Cf. Art. 9, 10 of the Vienna Convention on the Law of Treaties of 1969. 8 The final version, scheduled to be signed on 29 October 2004, is available online as document CIG 87/04 of the Intergovernmental Conference (6 August 2004). The provisions mentioned in this article are cited from this document. 2 Community to the governments of the member states9. This treaty, however, never entered into force because it was linked to the ill-fated European Defence Community which had to be abandoned in 1954. 4. Constitutional Functions and Content of the EC Treaty and the EU Treaty. Although the EC Treaty for the most part has the form of an international treaty its functions and its content are constitutional. Complemented by the EU Treaty, the EC Treaty exercises the main functions for the EU/EC which are generally exercised by a national constitution for the nation state: the formation and maintenance of legitimate political unity (integrating and legitimizing function); the determination of the vertical (federal) and horizontal institutional structure as well as the assigning of competences to the participating entities and organs (organizational function); the determination of the supreme norms, binding on all governmental powers and amendable only in an especially cumbersome procedure (normative guidance function)10. By its content the EC Treaty determines the relationship between the political entity called ”European Community” and its member states, the legal status of the citizens of the Union vis-à-vis the Community and the member states as well as the Community’s objectives, duties and powers. The EC Treaty, obviously, does not represent a ”complete” constitution regulating the entirety of constitutional issues within the European political entity. It is only a partial constitution comparable to a federal constitution which determines the constitutional relationships within a federal state completely only in conjunction with the constitutions of the constituent states. 5. The EU/EC Treaty as an Internationally Agreed Constitution. The treaty form cannot be used as an argument to counter the assumption that the EU/EC Treaty with its constitutional functions and content have at least developed into the Community’s constitution. German history provides a number of examples of constitutional agreements partially shaped according to international law (”paktierte Verfassungen”). The title of the Convention’s draft of a Treaty Establishing a Constitution for Europe alone proves that at the European level the phenomena of a ”treaty” and a ”constitution” are not mutually exclusive but that they add up to an integral whole. When the Convention presented us with a constitutional document in the form of an international treaty it created nothing new, it only had the courage to give its product a name articulating an old truth.

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