The State of the European Union Constitution – Identity, Democracy, Transparency, Decisiveness and Prospects of Foreign and Security Policy in post Afghanistan and Iraq Wars Era by Michael W. PLETSCH 2 Table of Contents 2 Preface: The study´s objective and method 18 Chapter I 20 A. Introduction 20 B. Twenty theses: the state of the European Union 24 Chapter II 38 The European Union under construction A. Introduction: 38 The Nature of the EU – a “ sui generis actor” according to the Founding Treaty on EU and to its dynamic development B. The European Union´s dynamic development 39 creating a unique entity “sui generis I. The European Union´s basic motive to perform the dynamics of stages 39 in a process of creating an ever closer Union II . Milestones of a stepwise dynamic development of the EC integration, 40 History and Institutions 1. Introduction: The dynamic, evolutive character of the European 40 Union as developed in the history of the European Union, creating a unique entity “sui generis” 2. History of the European Union: from the Monnet-method to the 42 European Union 3. Survey on the milestones in the history of the European Union 47 III. The Treaties shaping the European Union 63 . 1. Treaty establishing the European Economic Community, the 63 Treaty of Rome 2. Single European Act (SEA) 64 3. Treaty on European Union (TEU) 64 3 IV . Identity shaping essentials of the European Union, the structure of the 66 European Union 1. Identity shaping essentials 66 2. the organization , created by the member States, 66 the “finalite´” of the EU is kept open, Article 1 Treaty on EU 3. the Treaty´s objectives and major successes 67 3.1 general on the European Union and European Community´s 67 Treaty objectives 3.2 integration and cooperation : two different models to implement 70 the Union´s objectives 4. EU Treaty architecture of the three pillars 73 5. Major successes of European integration method 75 a) completing the internal market 76 b) the EU budget´s identity shaping role, assisting regional infrastructure programs, stabilising cohesion within the EU c) creating the third level within the European Union: 77 Europe of the Regions, the “Committee of the Regions” d) achieving the single currency “Euro ” e) enlarging the EU to the “Europe of the Twentyseven” 78 f) consensus on imperatives of making decision-making more effective g) promoting democracy throughout Europe,but diluting forces 79 of extreme nationalism at stake 6. EU institutions under the Maastricht Treaty on EU- TEU- 80 and under the TEU consolidated version(2002)- structure and power of the institutions 6.1 The Commission 83 6.2 The Council 88 6.3 The European Parliament (EP) 95 . 6.4 . The European Council 99 6.5 The Court of Justice 100 V. Deficiencies : the situation after the signing of the Nice Treaty 102 1. Introduction: The enlargement issue and the European Union´s 102 deficiencies in democracy, transparency and decisiveness in the Union´s political and institutional structure 2. the issue of enlargement 106 3. the issue of reforms: the EU attempting to improve identity and decisiveness 106 3.1 amendment procedures laid down in the Treaties 106 3.2 the question of extensive reform of the Treaties 107 3.3 Until the 1980s little use of the provisions for reforming the Treaties 107 4 3.4 European Parliament´s approval of the “Draft Treaty on European Union”, 108 February 14, 1984 3.5 the Single European Act ,1986 108 3.6 the second phase of the reform process , the Treaty of Maastricht ,1992 109 3.7 the Intergovernmental Conference 1996/97 to prepare the basics 109 for the Treaty of Amsterdam, 1997 . 3.8 The Amsterdam and Nice Treaty unsatisfactory on the institutional front 110 4. Conclusion 111 VI. Activities to establish a Constitution for Europe to overcome the Union´s mess of 111 tensions between deepening and enlarging the Union 1. The Laeken Declaration 111 2. The drawing up of a draft Treaty establishing a Constitution 113 for Europe by the Convention for the future of Europe 2.1 Introduction 113 2.2 The draft Constitution 113 2.2 1 Definition and objectives of the Union, membership 114 2.2 2 A single legal personality and the conduct of a Common Foreign and 115 Security Policy including a Common Security and Defence Poliy 2.2 3 Distributing exlusive and shared competences between the European 117 Union and the Member States 2.2 4 Creating one institutional framework for the Union´s institutions 118 2.2 5 Principle of attributed, limited powers; transparency of decision-making119 2.2 6 The European Parliament 119 2.2 7 The Council of Ministers 120 2.2 8 The Commission 120 2.2 9 Conclusion 121 3. The Intergovernmental Conference debating the draft Treaty establishing a 122 Constitution for Europe 4. The Treaty establishing a Constitution for Europe 122 4.1 the Constitution and simplification of the European construction: 123 one single institutional framework 4.2 Commission ,recognition of its different missions 124 4.3 Institutional framework: Parliament and Council 4.4 Main institutional innovations within the Council 4.5 The European Council 4.6 Composition of the institutions 4.7 Qualified majority for decision-making in the Council: Strengthening the Union´s decisiveness by striking the balance between sovereign equality of each Member State and the democratic legitimacy by proportionate weigthing the votes : 4.8 The Union’s newly acquired single legal personality 125 4.9 Achievements in the area of freedom, security and justice, and in the field of common foreign and security policy 5 4.10 Economic, taxation, social policies 126 4.11 Increased democracy and transparency ? . 126 5. Conclusion: 126 5.1 The situation after the failing French and Dutch votes on ratification 5.2 leaving the impasse through focussing on identity shaping essentials 128 ` transparency, democracy, decisiveness ` not necessarily presented in a Treaty labelled “ Constitution “ Chapter III 129 The identity issue and the formal text called “Constitution” A. Introduction 129 B. Basics of nation states Constitutions and mutual interdependencies between 131 the national constitutional systems of the EU Member States and the existing political and legal order of the EU I. The comparative approach to the basics of national constitutional laws .: 131 the functional role of nation states´ constitutions and the functional role of the EU´s legal and political order II. Notion of nation state constitution and the functional role of main national 132 constitutional systems of the EU Member States 1. Germany 132 2. Great Britain 133 3.Spain 133 4.Sweden: 134 5.Conclusion on the functional role of main national constitutional systems 135 of the EU Member States C. The constitutional quality of the political and legal system of the European 135 Union on the basis of the Founding Treaties on EU/EC. The EU´s constitutional essentials, not depending on a formal text called “Constitution” . I. Introduction: The nature and development of European Union law: 135 The nature of the secondary law of the EU as developed under the TEU`s 1 st pillar, the Treaty establishing the European Community-TEC- provisions II. General characteristics of the European Community´s primary and 135 Secondary law III. European Community law special characteristics, its main features as 136 constitutional principles in EC law : 1. Constitutional transfer of power from the Member States to the Community 136 6 1.1 Introduction 136 1.2 National Constitutions contain “ gateway “ clauses to open the 137 national law to the European Union law 1.2.1. France 137 1.2.2 Germany 138 1.2.3 Italy 139 1.2.4 The United Kingdom 140 1.2.5 Conclusion 141 2. Basic provisions of the Treaty establishing the European Community: 141 constitutional principles and their functional role in EC primary law and as case law crafted by the Court of Justice 2.1 Constitutional principles of attributed, limited powers, subsidiarity 141 and effectiveness of Community law in the EC Treaty: they manifest the “sui generis “ nature of the EC 2.2 Functional role of the Community´s law according to the caselaw 142 of the Court of Justice 3. Conclusion: pleading for the integrative approach using 145 constitutional essentials to be incorporated in a new Treaty : 3.1 national constitutions` clauses transferring parts of national 145 sovereignty to a common “pooling “ 3.2 Establishing a formal text called “constitution” and risking the sustainable 146 constitutional development of the existing integrated duality of EU-level and nation state level as basic elements of one emerging European constitutional order 3.3 The identity issue: maintaining and improving the legitimacy acquis of the 149 current Treaty on EU by integrative approach. Constitutional essentials count more than the formal aspect Chapter IV 151 The identity issue: legitimacy compliance needed for any text to avoid gradual disintegration of the Union A. Identity shaping essentials of the European Union ? Factors 151 contributing to the permanent process of European identity building. – form, levels and substance 1. Definition of the European Union´s identity shaping essentials 151 7 2.Factors contributing to identity shaping essentials 151 3. Identity and legitimacy compliance needed for any text to avoid gradual 155 disintegration of the Union : B. The identity issue of the European Union, „ constitution“ 158 and the idea of Europe I. Introduction : the identity issue, legal and living constitution, “sui generis” nature of the EU/EC and the secondary law, principle of attributed powers 1. The identity issue , the EU as a “sui generis “ collectivity, the European Union´s final design, its “finalité “ kept open in a dynamic process of creating an “ever closing Union among the peoples of Europe “ 2.