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]).

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.

6. Legal Consequences of the Dual Nature of the European Constitutional Treaty.

It is obviously difficult to draw legal consequences from the dual nature of the European Constitutional Treaty, which contains international law as well as constitutional law elements. This is because one cannot deductively and abstractly determine from the outset which of these elements will prevail in each individual case. There is no other way but to proceed in an inductive and concrete manner by asking which answers the ECJ and other institutions have established in practice. It turns out that the ECJ uses constitutional methods in interpreting the EU/EC Treaty and that it engages in progressive development of the treaty, as national constitutional courts do with regard to national constitutions, and all this with the (tacit) consent of the member states.

The answer to the question whether individual member states may withdraw from the Union/Community if they so desire is less straight forward because to date there is no clear rule in the treaties. The draft Constitution introduces a new era in this respect. Its Art. I-60 now allows each member state to leave the European Union, even against the will of the other member states. This provision will underline the treaty character of the new European constitution without, however, eliminating its constitutional character. It is

9 For the authentic French text cf. Assemblée consultative du Conseil de l’Europe, cinquième session ordinaire, Document 111 (31 March 1953). 10 See Art. 48 of the EU Treaty.

3 not so much an expression of the drafters’ intention to weaken the Constitution’s binding force but rather of their confidence that the European integration is so firmly established by now that it can afford to grant its member states a theoretical right to withdraw11.

II. Second Fundamental Controversy: Association of States or Union of Nations?

1. Legal Relevance of the Differentiation

The second controversy of the European constitutional debate, which is closely linked to the first one, concerns the characterization of the EU/EC as an association of states or rather a union of nations. How closely these two baselines are connected becomes evident if one refers to the opposites ”association of states according to international law” and ”union of nations according to constitutional law”. The answer to the question if and to what extent the EC/EU represents an association of states or a union of nations will have consequences not only for the legitimation of European sovereignty but also for the identification of the institution that has the final word on the interpretation of the EU/EC Treaty.

2. The Supranational ECSC as a Decisive Step toward a European Federation

The withering of the federal traits in the Statute of the Council of Europe induced Robert Schuman only one year after this statute had been signed to make a new federal effort in the limited field of coal and steel, an effort to unite nations instead of only forming an association of states12. By establishing an Assembly the ECSC, and later the European Economic Community (EEC), which from an institutional point of view is based on the ECSC, clearly reached beyond a mere association of states and showed first signs of a union of citizens. These signs were enhanced in 1979, when direct elections to the European Parliament were introduced13.

3. The ECJ as a Founding Father of the Union of Citizens: Europeans as Co- subjects of the EEC Treaty

It is primarily the ECJ’s achievement that the federal traits of the EEC were not buried, unlike those of the Council of Europe which does not have an equivalent to the ECJ14. In its groundbreaking decision in van Gend & Loos of 1963, the ECJ held that the EEC Treaty conferred actionable rights directly on the nationals of the member states. The individuals were thereby made co-subjects and co-pillars of the EC, alongside the member states15. When the Treaty of Maastricht introduced the citizenship of the Union in 199216, this was no more than a declaratory consummation of a long development.

4. From the European Political Community to the European Union of 2004

11 Art. 1 (1) of the above mentioned draft statute of a European Political Community of 1953 explicitly laid down that the Community be indissoluble. 12 The motto of the Mémoires of Jean Monnet, who played a significant part in developing the Schuman Plan, is: ”Nous ne coalisons pas des Etats, nous unissons des hommes.” 13 Decision and Act of 20 September 1976 concerning the election of the representatives of the Assembly by direct universal suffrage (OJ No. L 278/1). 14 The European Court of Human Rights is not a general court of the Council of Europe entrusted with safeguarding and developing its statute. Rather, it is a special court of human rights whose jurisdiction is limited to the European Convention on Human Rights and its Additional Protocols. 15 ECR 1963, 1 (C-26/62). 16 Art. 17 et seq. of the ECTreaty.

4 The draft ”Treaty on the Statute of the European Community”17 that failed in 1954 together with the European Defence Community had aimed at organizing the European Political Community primarily as a union of nations and secondarily only as an association of states.

Since 1992, the present European Union’s dual nature has been defined in Art. 1 TEU stating that the High Contracting Parties establish among themselves a European Union (i.e., an association of states) but that the EU Treaty at the same time marks a new stage in the process of creating an ever closer union among the peoples of Europe (i.e., a union of nations). The draft Constitution retains this dual character, but reverses the order in Art. I-1 (1), thereby returning to the fifty-year-old draft of the Ad Hoc Assembly: the establishment of the European Union by the Constitution primarily reflects the will of the citizens, and secondarily the will of the states, of Europe. This new wording has two implications: first, that the EU is not a union of ethnic groups, but a community of the citoyens, i.e., individuals jointly exercising political rights; second, that the EU is not a community of the peoples of the member states (i.e., of the citoyens of the member states strictly compartmentalized by national boundaries) but a transboundary community of Union citizens, i.e., of a people of the EU in statu nascendi. Accordingly, the European Parliament no longer consists of representatives of the peoples of the member states but of the Union’s citizens18.

5. Consequences of the EC/EU’s Dual Character as an Association of States and Union of Citizens

Dual Democratic Legitimation of EU/EC Power

In accordance with the dual character of the EU as an association of states and a union of citizens the power exercised by the EU/EC is democratically legitimized in dual form: it is derived from the member states (via the Council) on the one hand and by their peoples (via the European Parliament) on the other hand. The draft Constitution exposes this dualism as the main feature of the principle of representative democracy, on which the functioning of the Union is founded19.

The relative weight of these two strands of legitimation has shifted considerably towards the European Parliament in the course of the European integration process. The draft Constitution extends Parliament’s powers without, however, according it equal status with regard to the Council in all respects. At the same time, the European Council, consisting of the heads of state or government of the member states and the President of the Commission, is further developed into the Union’s main steering organ and it is given a President who, being entirely a president of the member states, will compete with the President of the European Commission who is a president of the citizens and the states20.

Final Decisionmaking Power of the ECJ instead of Member States’ Nullification of EC/EU Law.

17 See supra note 9. 18 Compare Art. 189 of the EC Treaty with Art. I-20 (2) of the Draft Constitution. 19 Art. I-46 (2). 20 Art. I-21, I-22, I-27 of the draft Constitution.

5 The ECJ, as the EU/EC’s constitutional court, claims the final decisionmaking power over the interpretation of the EU/EC’s constitution and over the validity of acts of secondary Community law21. Only by this means can the uniform interpretation and application of European law throughout the Union be guaranteed and the survival of the European integration as a legal project be secured22. It also shows that the EU/EC is not a mere association of states but at the same time a union of citizens, who can enforce the rights granted to them by the Treaties with the help of the ECJ against the member states.

The contrary position, primarily held by the German Federal Constitutional Court, which claims the competence to hold that acts of secondary Community law are inapplicable within Germany if they go beyond the powers granted to the EC by the EC Treaty, as interpreted by the Federal Constitutional Court. This opinion, from my point of view, is not only incompatible with the EC Treaty, but also with the German Constitution which was drafted to further the unification of Europe and German participation therein.

The draft Constitution held on to the rules of the EC Treaty on the Community’s judiciary giving the ECJ final decisionmaking power23. Proposals aiming at establishing a special court made up of national judges with the jurisdiction over all those cases in which the ultra vires character of EC acts was alleged were dismissed.

III. Third Fundamental Controversy: Dynamism or Consolidation?

1. The Federalist Centripetal Force of the European Integration Process

La Méthode Monnet A third fundamental controversy has determined the European integration project from the very beginning: the effort to balance the protagonists of an active development toward a not clearly defined final state of European unity on the one hand (federalists) and the consideration for less passionate integrationists (antifederalists) as well as for the general need for consolidation on the other hand. In 1950, at the instigation of Jean Monnet, Robert Schuman had suggested that ”action be taken immediately on one limited but decisive point”, instead of attempting in vain to create a federal construction of Europe all at once. A small number of states willing to pursue the path of integration was to undertake an initial step towards a federal union. This step was to be made in a thematically limited field (coal and steel) and to be followed by further steps in other fields. An increasing number of European states would eventually participate. The initial step would thus have a spill-over effect.

21 Cf. especially ECJ, ECR 1987, 4199 (C-314/85 – Foto-Frost); ECR 1991, 6079 (advisory opinion 1/91 – EEA I); ECR 1997, I-1847, § 20 (C-27/95); ECR 2000, I-11369, §§ 52 et seq. (Rs. C- 344/98 – Masterfoods). 22 Giegerich (supra note 2), 694 et seq. 23 Art. I-29 (1), Art. III-365, Art. III-369.

6 This aspiration to enlarge the integration project thematically and geographically and to deepen it has given the EC a dynamic which has ultimately transformed it into a continental economic and monetary union of 25 European states that is complemented by forms of intergovernmental cooperation with regard to foreign and security policy as well as interior policy.

2. The Draft Constitution: Upholding the Dynamics of Integration Toward an Undefined Destination

The ultimate destination of the ever closer union among the peoples of Europe, which was to be based on the E(C)C Treaty24, was purposely never defined in a treaty. Many – but by no means all – people hoped and still hope for the European federal state25. The draft Constitution does not bring any light into this issue: it does not establish a European federal state and does not take any position on whether it should be established later. Although the term ”Constitution” suggests a consolidation and stabilization of the status quo achieved, the draft retains the dynamics of integration not only geographically but also thematically.

Further accessions (Bulgaria, Romania, Croatia, Turkey) are already on their way26. But the dynamics are maintained also in a thematic sense: the preamble of the draft Constitution states that a ”Europe, reunited after bitter experiences, intends to continue along the path of civilisation, progress and prosperity” and that ”the peoples of Europe are determined to transcend their former divisions and, united ever more closely, to forge a common destiny” and to pursue ”the great venture”. The Constitution defines itself as a continuation and consolidation of the level of integration achieved so far and has no intention of freezing the current acquis communautaire. The general power to adopt the appropriate measures to attain the objectives of the Union by unanimous decision of the Council, in the absence of a more specific enabling clause, is maintained27.

Also, Art. IV-444 has made it easier to autonomously amend the Constitution in certain areas, i.e., to amend it by a unanimous decision of the European Council without ratification by the member states. But especially dynamic proposals that amendments to Part III of the Constitution should enter into force after ratification by a majority of the member states did not gain acceptance28. The draft Constitution itself has to be ratified by all member states according to its Art. IV-447, a requirement ensuing from Art. 48 TEU because the Constitution is to repeal the Treaties establishing the EC and the EU29.

3. Consolation to the Federalists: Expansion of Enhanced Cooperation

24 Cf. the first recital of the preamble of the E(E)C Treaty. 25 Cf. Giegerich (supra note 2), 887 et seq. 26 Cf. Art. I-1 (2), I-58 of the draft Constitution. 27 Art. I-18 (now called ”flexibility clause”). Cf. Art. 308 of the EC Treaty. 28 Cf. the joint proposal of the SPE, EPP und LDPE of 8 July 2003 (CONV 833/03 of 24 July 2003). See Peter Norman, The Accidental Constitution (2003), 81. Art. 110 et seq. of the Draft EPC Statute (supra note 9) provide an early example. 29 Art. IV-437 of the draft Constitution.

The concept of a Europe advancing at several speeds provides a compromise between those who insist on a formal amendment to the Treaty, which has to be ratified by all member states, for every step deepening the European integration process and those who wish to push this process at a greater pace than the slowest ship in the escort. This concept gives the federalist member states the opportunity of deepening the integration among themselves within the institutional framework of the EU/EC while allowing the other member states to stay out. The latter will, however, have the opportunity of joining this process at a later stage30. So far, this option has not been used – the Schengen process and the European Monetary Union are special cases. The draft Constitution retains the option of enhanced cooperation, however, and once again lowers the threshold for initiating it31. It may after all gain importance in the course of the EU’s eastward enlargement.

4. The Antifederalist Centrifugal Force

The federalist centripetal force has given the European integration a considerable dynamic, without, however, dominating the field uncontestedly at any stage. A weaker, yet noticeable counterforce that has existed at all times might be termed antifederalist centrifugal force. This force was never strong enough to stop the integration process once and for all or even reverse it, but it did, at least for a certain time, bring the process to a temporary standstill – in the years of ”eurosclerosis” following the Luxembourg Compromise of 1966.

This centrifugal force is expressed in certain demands directed at the Convention, calling for a transfer of EU/EC competences back to the member states32 and a clearer delimitation of the remaining competences of the EU/EC. While no powers were taken from the EU/EC – on the contrary, its powers were extended – the Convention took considerable efforts to delimit the European competences more precisely so as to counter expansionist tendencies (creeping jurisdiction). Yet, the call of the German Laender for a strict ”catalog of competences” was not heard. On the other hand, the Convention tried to enhance the efficacy of the subsidiarity and proportionality principles, so as to curb the EU’s use of competences where it shares them with the member states33.

A further obstacle to an unfettered federal dynamic of European integration lies in the Union’s obligation to respect the member states’ constitutional structures which is already part of its obligation under the present Art. 6 (3) TEU to respect the member states’ national identities. The draft Constitution clarifies this duty by now explicitly defining the member states’ national identities as being inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government34.

30 Art. 43 et seq. TEU. 31 Art. I-4, III-416 et seq. 32 The futile demand for the deletion of the ‘lacuna-filling competence’ (Art. 308 of the EC Treaty) also comes under this aspect. 33 Art. I-11 (3), (4) of the draft Constitution. See also the Protocol on the Application of the Principles of Subsidiarity and Proportionality annexed to the Constitution. 34 Art. I-5 (1).

The antifederalist force within the draft Constitution finally reveals itself in the aforementioned newly created right of each member state to withdraw from the EU35.

IV. Fourth Fundamental Controversy: Autonomy or Heteronomy of the EU/EC Legal Order?

The choice between automomy and heteronomy of the EU/EC legal order reflects the choice between the ”new” Europe of supranational integration and the ”old” Europe pictured as a concert of states as it was last attempted when establishing the Council of Europe.

1. The Founding Treaty as an Autonomous Source of Law

According to the case law of the ECJ, the Community legal order flows from the EC Treaty as an autonomous source of law with no constant feedback to national constitutional law36. Although the parties to the EU/EC Treaty and the future Treaty Establishing a Constitution for Europe are all European constitutional states, the force binding their organs to the national constitutions does not extend to the EU/EC which was created by these national organs. Rather, the Treaty serves as the only source of EU/EC law cutting off any recourse to the national constitutions. This is the only way to guarantee the uniform validity and application of EU/EC law throughout the Union which is a precondition of the existence of a Union/Community based on law.

2. The EU’s Exercise of ”Conferred” Competences ”on a Community Basis”

One instance of the autonomy of EU/EC law vis-à-vis national constitutional law is the claim to primacy of any provision of Community law over national law even of the highest rank which has so far been supported only by the constant jurisprudence of the ECJ37 but will now be embodied explicitly in the text of the Constitution38. This concept of autonomy stands in contrast to other provisions of the draft Constitution which stipulate that the member states have conferred competences onto the European Union39. These provisions might give the impression that the EU/EC exercises merely delegated powers that are burdened with the ”mortgage” of national constitutional restraints40. However, the draft Constitution obviously has no intention of falling behind the level of integration the EU/EC has already reached or of tying the new Constitution

35 Art. I-60. 36 ECJ, ECR 1963, 1, 24 et seq. – van Gend & Loos; ECR 1964, 1251, 1269 et seq. – Costa v. ENEL; ECR 1964, 1329, 1344; ECR 1991, I-6079, §§ 21, 30 – EEA I; ECR 1992, I-2821, §§ 17 et seq., 24 – EEA II. 37 ECJ, ECR 1964, 1251, 1269 et seq. – Costa v. ENEL; ECR 1970, 1125 – Internationale Handelsgesellschaft; ECR 1978, 629 – Simmenthal II. 38 Art. I-6. 39 Art. I-1 (1), I-11 (1), (2). 40 According to the Roman law maxim ”nemo plus iuris transferre potest quam ipse habet”.

9 to 25 different national constitutions. On the contrary, Art. I-1 (1) clearly states that the Union shall exercise the competences conferred onto it by the member states ”on a Community basis”, i.e., in the traditional forms of the autonomous Community legal order.

3. The Autonomy of the National Governmental Representatives in the Council

The autonomy of the EU/EC’s legal order would be no more than a chimera if the EU/EC’s main political institution, the Council consisting of representatives of the national governments, were tied to the national constitutions via its individual members41. This would mean that acts of secondary legislation could only be passed if they were in conformity with the constitutions of all member states or of a qualified majority of them, depending on the basis of authorization in the Treaty. Actually, the members of the Council are not only national representatives but at the same time members of a European constitutional body who must always also further the EU/EC’s interests. The Council has a dual function at the intersection of two sovereignties.

4. The Independent Commission as a Symbol of EU/EC Autonomy

The autonomy of the EU/EC’s legal order is embodied in the European Commission – an unprecedented body of ”supranational character”42, which goes back to the High Authority of the Schuman Plan. The Commission consists of persons who are independent of instructions from any governments or other institution of the member states or the EU/EC and whose only obligation is to promote the general interest of the EU/EC43. To make clear that the members of the High Authority were not representatives of the six member states, their number was set at nine in the ECSC Treaty. Today, there are 30 Commissioners, and from 1 November 2004, there will be 2544.

The Nice Conference of 2000 had already put the limitation of the number of Commissioners on its agenda with the aim of maintaining the functionality of the Commission. There, it was already agreed in general terms to introduce a system of equal rotation among the member states45. The Convention tried to implement this notion by providing for a Commission of only 15 voting members and additional non- voting Commissioners from the remaining member states46. This proposal was rejected by the smaller member states even though the rotation system would have ensured equal treatment of large and small member states with regard to the distribution of voting Commissioners. The Intergovernmental Conference has now proposed to set the number

41 For the details, see Giegerich (supra note 2), 652 et seq. 42 As stated in the original version of Art. 9 of the ECSC Treaty, which was amended by the Merger Treaty of 1965. 43 Art. 213 (1), (2) of the EC Treaty. Art. I-26 (1), (4), (7), III-347 of the draft Constitution. 44 Art. 4 (1) of the Protocol on the Enlargement of the EU of 2001, as amended by Art. 45 (2) (d) of the Act concerning the conditions of accession annexed to the Treaty of Accession of 16 April 2003. 45 Art. 4 (2) of the Protocol on the Enlargement of the EU. 46 Art. 25 (3) of the Convention’s Draft.

10 of Commissioners at two thirds of the number of member states, beginning with the appointment of the second Commission after the entry into force of the Constitution47.

While the basic questions relating to the previous three fundamental controversies had to be answered with a ”both … and”48 the fourth basic question calls for a clear answer in favor of the autonomy of EU/EC law: It is only by this means that European integration can function in the forms of the law.

V. Fifth Fundamental Controversy: National or European Constitutionalism?

Constitutionalism marks a form of governance whose basis and limits are defined by a (written) constitution, which satisfies certain minimum standards set by the rule of law and democracy principles. In this context, the basic question – which has also been debated for more than 50 years – is this: Can European constitutionalism only be established at the expense of national constitutionalism, and can the latter only be preserved at the expense of European constitutionalism? The answer is definitely no, because the national and European constitutional structures are intertwined and dependent on each other, as is the case in all federal and quasi-federal systems. Thus, the qualitative standards of constitutionalism can only be achieved concurrently at both levels or not at all. This can be illustrated by means of the principle of democracy and the protection of fundamental rights.

1. National and European Democracy

Legitimation of the Integration Program of the European Treaties

From a German constitutional perspective, democracy, i.e., government by the people, calls for the personal responsibility of the policy makers to and the determination of the substance of each and every governmental act by the people as the sovereign, in the sense of a continuous, uninterrupted and sufficiently close legitimizing link between the government and the governed49. While in the national context all state authority emanates exclusively from the people of this state, this does not apply to the EU/EC authority whose acts often take direct effect within the national jurisdiction of constitutional states that have opened themselves to integration. The legitimacy of this European authority can only be provided jointly by the peoples of all member states.

Majority Vote or National Veto in the Council?

Governmental acts must not only have a legitimate constitutional basis but must also be democratically legitimized as such via the bodies involved in the decisionmaking

47 Art. I-26 (6). 48 I.e., both treaty and constitution; both association of states and union of nations; both dynamism and consolidation. 49 Ernst-Wolfgang Böckenförde, Demokratie als Verfassungsprinzip, in: Josef Isensee/Paul Kirchhof (eds.), Handbuch des Staatsrechts vol. II (3d ed. 2004), § 24 marginal notes 11 et seq.

11 process. Those who perceive democracy in the sense of nation state democracy will tend to insist that EU/EC acts be legitimized by the peoples of all member states. As a consequence, a unanimous vote in the Council appears at least desirable50. For, the people of a member state whose representative in the Council has been outvoted, will play only a minor part in the legitimation of an EU/EC act passed by majority vote. Fortunately, this tendency to preserve the national veto has not prevailed, as it would have almost incapacitated the EU/EC, thereby minimizing its output legitimacy. Moreover, it would bespeak an odd conception of democracy to give the smallest member state of a European Union, which now encompasses most of the continent, the right to block the European decisionmaking process. On the contrary, the majority vote is one of the fundamental components of the principle of democracy.

The history of integration has therefore been the history of a gradual transition to qualified majority voting in the Council, with a twenty-year interruption by the Luxemburg Compromise of 1966. This qualified majority, however, is difficult enough to obtain as it requires more than 70% of the votes51. The Convention’s draft boldly redefined qualified majority as the majority of member states representing at least three fifths (60%) of the EU’s population52. It was primarily this provision which almost doomed the whole Convention project to failure. The opposition was led by Poland and Spain, to whom the Nice Treaty and the Act of Accession have given almost as much voting power as to the four largest member states53. Poland and Spain felt downgraded by the Convention because their populations each amount to only about one half of the German and two thirds of the British, French and Italian populations. The compromise with which the Intergovernmental Conference has come up now defines the qualified majority as at least 55% of the members of the Council, comprising at least fifteen of them and representing member states comprising at least 65% of the population of the Union. A blocking minority must include at least four Council members54.

Increasing Transparency in Decisionmaking While the ”national democrats” postulate that the Council’s dominance within the EU’s decisionmaking process, in conjunction with a veto right of each representative, is required by the principle of democracy, the ”European democrats” consider this dominance of the Council, consisting of governmental representatives and deciding in an intransparent process behind closed doors, to be the major cause for the much- lamented European democratic deficit. This latter position has obviously gained ground, as is proven by the fact that the Community’s decisionmaking process has gradually been opened to public scrutiny and that the parliamentary elements within it have been strengthened to the point where the European Parliament has almost reached a status co- equal to the Council in the field of legislation. Whereas the national parliaments’ legitimizing influence on the Council’s decisions has diminished with the growing

50 This tendency is apparent in the judgment of the German Federal Constitutional Court on the Maastricht Treaty (BVerfGE 89, 155 [183 et seq.]). 51 Art. 205 (2) of the EC Treaty as well as Art. 3 of the Protocol on the Enlargement of the EU (to be applied from 1 January 2005). 52 Art. 24 (1), (2). 53 The relation now stands at 27 votes (Poland, Spain) : 29 votes (Britain, France, Germany, Italy) (Art. 205 (2) of the EC Treaty). 54 Art. I-25 (1).

12 number of issues decided on by majority vote this has been compensated by the European Parliament’s increasing influence. At the same time, this parliamentary influence has made the Community’s decisionmaking process more transparent, because the pros and cons regarding legislative bills are discussed in a public parliamentary debate.

Furthermore, the decisionmaking process of the Council has been made more transparent. The draft Constitution now provides that the Council meet in public when considering and voting on a draft legislative act and that the Council publish those documents that concern the legislative procedures55.

European Democracy at the Expense of the National Parliaments? Power losses of national parliaments turn into power gains of national governments. When legislative powers are transferred from the member states to the European level the national parliaments who exercise the legislative function on the national level primarily carry the loss. However, the right to participate in the EU/EC’s legislative process, which is granted as a compensation for the loss of competences, is exercised by representatives of the national governments within the federal body of the Council. It is true that each national parliament retains the power to control its government, so that it can exert some indirect influence on European legislation. But this indirect influence by the national parliaments has been ever more diminished by the growing number of majority decisions taken by the Council and the European Parliament’s enhanced role as a real ”second chamber” of the Community legislature. Thus, the very same phenomena that have strengthened democracy at the European level have led to a further shift of powers from the parliaments to the governments at the national level.

The decisive issue is the increasing of national parliaments’ indirect and direct participation in European politics. It is not surprising then that this question of how the role of the national parliaments in European politics can be upgraded has been on the agenda for quite a while. Two aspects have to be viewed separately: first, the indirect part national parliaments play by way of controlling and perhaps of determining national political decisions in European policy matters, the results of which find their way into the Council’s decisions; second, the national parliaments’ independent and direct participation in the European decisionmaking process. The first aspect has been discussed in Germany since the 1950s and has in 1993 led to the adoption of Art. 23 para. 2 – 7 of the German Constitution (Basic Law) and two implementing statutes. As this issue goes to the roots of the constitutional system of each member state, the Convention did no more than propose an improvement of the flow of information directly between the EU institutions and the national parliaments so as to enhance their ability to control the representative of their government in the Council56.

With regard to the part national parliaments are to play within the EU architecture proper, the European Council’s Laeken Declaration on the Future of the European Union of 14/15 December 2001 put three concrete questions to the Convention: whether the national parliaments should be represented in a new European institution, alongside the Council and the European Parliament; whether they should play a role in areas of

55 Art. I-50 (2), Art. III-399 (2). 56 See the Protocol on the Role of National Parliaments in the European Union.

13 European action in which the European Parliament has no competence; whether they should focus on the division of competence between Union and member states, for example through preliminary checking of compliance with the principle of subsidiarity57.

The Convention found a minimum solution to this problem. The Convention’s draft implicitly gives a negative answer to the first question put forward by the European Council of Laeken: In order not to further complicate the European legislative process, which would at the same time make it more intransparent, no third legislative chamber representing the national parliaments will be established on the EU level. The second question is also answered in the negative: the Convention does not give the national parliaments a role in those policy areas, from which the European Parliament is excluded (e.g., the Common Foreign and Security Policy).

The Convention’s draft does, however, include the national parliaments in the preventive and repressive mechanisms which are to ensure compliance with the subsidiarity principle58. They have the right to send to the Presidents of the European Parliament, the Council and the Commission a reasoned opinion with respect to any of the Commission’s legislative proposals stating why it considers that the proposal does not comply with the principle of subsidiarity. The European Parliament, the Council and the Commission have to take account of such reasoned opinions. If their number reaches a certain threshold the Commission will be obliged to reconsider its proposal and, in case it decides to maintain the proposal, give reasons for its decision. Once a legislative act has been enacted, a member state can bring an action for annulment on the grounds of non-compliance with the principle of subsidiarity not only on its own behalf but, in accordance with its legal order, also on behalf of its parliament or one parliamentary chamber.

2. National and European Protection of Fundamental Rights

No Legally Binding Fundamental Rights Catalog on the EU Level.

Even though the European Treaties – from Paris (ECSC Treaty) to Nice – have performed constitutional functions within the European integration process, they have never included a comprehensive catalog of fundamental rights of the kind one finds in the constitutions of the member states. It was the ECJ which struggled to close this gap after several national courts, including the German Federal Constitutional Court, had threatened to review secondary acts of Community law according to the national constitutional standards of fundamental rights59. In exercising its function to ensure that in the interpretation and application of the EC Treaty the law is observed (Art. 220 of the EC Treaty), the ECJ has developed unwritten general principles of Community law protecting human rights. The ECJ thereby drew upon the constitutional traditions common to the member states as well as the European Convention on Human Rights, ratified by all of them.

57 http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/ec/68827.pdf. 58 See the Protocol on the Application of the Principles of Subsidiarity and Proportionality. 59 BVerfGE 37, 271.

This development should have prompted the treaty-amending power to add the missing catalog of fundamental rights to the treaties but the member states could not agree on that. Only in 1992 did the Treaty of Maastricht codify the jurisprudence of the ECJ in very general terms in Art. 6 (2) TEU. Nevertheless, the German Federal Constitutional Court was satisfied with the way the ECJ had closed the fundamental rights gap and thus promised no longer to use national fundamental rights provisions against EC acts60.

The EU Charter of Fundamental Rights of 2000

Not until 1999 did the European Council decide on framing a charter of fundamental rights of the EU with the view of making existing fundamental rights ”more visible”. This Charta was solemnly proclaimed in 2000 as a political document, but did not as such become legally binding because it was not adopted by way of the ordinary amendment procedure of Art. 48 TEU. It does, however, have a declaratory function as regards fundamental rights standards that are already legally binding for other reasons.

In the cause of deliberations within the Convention, the participants agreed relatively soon to incorporate the Charter of Fundamental Rights into the text of the Constitution, thereby hoisting the Charter to the highest normative level. On the other hand, further provisions limiting the range of application and clarifying the scope and interpretation of these fundamental rights had to be inserted61.

The Convention could not agree on introducing a kind of European constitutional complaint procedure before the ECJ to enhance the implementation of the fundamental rights of the Charter. But at least the overly restrictive admissibility criteria of actions for annulment brought by natural or legal persons against EU acts producing legal effects were eased62.

EU/EC Accession to the European Convention on Human Rights

One last issue of fundamental rights protection which had been controversial for decades – the accession of the EU/EC to the ECHR – has been almost resolved by the draft Constitution. In 1996, the ECJ had held that such an accession by the EC required an express authorization in the EC Treaty, due to the constitutional consequences it would have63. Art. I-9 (2) of the draft Constitution now provides that the Union shall accede to the ECHR. The 14th Protocol to the ECHR of 13 May 2004, which has not yet entered into force, will make the necessary amendments to the ECHR64. As soon as this accession has been completed it will at last be possible for individuals to file applications before the European Court of Human Rights directly against the EU if they can claim to be the victims of a violation of their fundamental rights by an act

60 BVerfGE 73, 339; 102, 147. 61 See now Art. II-111, 112 of the draft Constitution. 62 Compare Art. 230 (4) of the EC Treaty, as interpreted by the ECJ (last in the judgment of 1 April 2004 [C-263/02 P] – Jégo-Quéré), with Art. III-365 (4) of the draft Constitution. 63 ECJ, ECR 1996, I-1759. 64 CETS No. 194.

15 attributable to the EU. Nowadays, such applications can only be filed against the member states65.

Conclusion: corpus monstro simile or stupor mundi et immutator mirabilis?

After all this, how should the development of European integration since 1950 be appraised: has it produced a monster66 or brought forth an amazing marvel, which will make the world a better place67? Opinions are divided also on this issue. Only history will tell. The answer will last but not least depend on whether the draft Constitution will ever enter into force and whether we Europeans will then succeed in developing it toward a model European order, well-functioning, democratic and adhering to the rule of law. In this event, Europe may after all serve as an example for a peaceful unification of the world.

Literatur: - Alber, Siegbert: Die Entwürfe des Europäischen Parlaments für eine europäische Verfassung, Vortrag vor dem Europa-Institut der Universität des Saarlandes, Saarbrücken, Europa-Inst., Sektion Rechtswissenschaft, 1994. - Böckenförde, Ernst-Wolfgang: Demokratie als Verfassungsprinzip, in: Josef Isensee/Paul Kirchhof (Hrsg.), Handbuch des Staatsrechts der Bundesrepublik Deutschl, Bd. II, 3.Auflg., Heidelberg, Müller Verlag, 2004. - Capotorti, Francesco, Hilf, Meinhard, Jacobs, Francis G., Jacqué, Jean-Paul: The European Union Treaty: Commentary on the Draft Adopted by the European Parliament on 14 February 1984, Oxford, Oxford University Press, 1986. - Giegerich, Thomas: Europäische Verfassung und deutsche Verfassung im transnationalen Konstitutionalisierungsprozeß: Wechselseitige Rezeption, konstitutionelle Evolution und föderale Verflechtung, Reihe: Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, Bd. 157, Berlin/Heidelberg, Springer-Verlag, 2003. - Monnet, Jean: Mémoires, Paris, Editions Fayard, 1976. - Norman, Peter: The Accidental Constitution. The Story of the European Convention, Brüssel, EuroComment, 2003.

- Vertrag über die Gründung der Europäischen Gemeinschaft für Kohle und Stahl (1951), http://europa.eu.int/eur-lex/lex/de/treaties/treaties_founding.htm. - Einheitliche Europäische Akte (1986), Amtsblatt Nr. L 169 vom 29. Juni 1987, http://europa.eu.int/eur-lex/lex/de/treaties/treaties_other.htm.

65 See, e.g., ECHR, judgment of 18 February 1999, Reports of Judgments and Decisions 1999-I (Matthews v. U.K.) where the U.K. was found guilty of a violation of Art. 3 of the Protocol to the ECHR of 1952 (right to free elections) because the EC Act concerning the election of the representatives of the Assembly by direct universal suffrage (supra note 13) had denied voting rights to the residents of Gibraltar. 66 ”Corpus monstro simile” is a term used by Samuel Pufendorf to describe the constitutional structure of the Holy Roman Empire of the German Nation in the 1660s. 67 ”Stupor mundi et immutator mirabilis” are terms used to describe Emperor Frederick II who died in 1250.

16 - Vertrag zur Gründung der Europäischen Gemeinschaft (Konsolidierte Fassung) Amtsblatt Nr. C 325 vom 24. Dezember 2002, http://europa.eu.int/eur- lex/lex/de/treaties/dat/12002E/pdf/12002E_DE.pdf. - Vertrag über die Europäische Union (Konsolidierte Fassung), Amtsblatt Nr. C 325 vom 24. Dezember 2002, http://europa.eu.int/eur- lex/lex/de/treaties/dat/12002M/pdf/12002M_DE.pdf. - Vertrag über eine Verfassung für Europa, Vorläufige konsolidierte Fassung des Vertrags über eine Verfassung für Europa, http://europa.eu.int/eur- lex/lex/de/treaties/dat/52003XX0718_01/pdf/52003XX0718_01_DE.pdf.